Last winter, before the COVID-19 pandemic dominated headlines, Canada was already in the midst of a national crisis. This crisis stemmed from Indigenous opposition to the construction of the Coastal GasLink (CGL) natural gas pipeline in British Columbia. Hereditary Wet’suwet’en chiefs (though not the elected band councils) objected to the pipeline’s approved route, which crosses unceded Wet’suwet’en territory. Commencement of construction led a broad range of Indigenous activists and allies to erect a series of blockades at numerous points across Canada’s fragile national transportation network. In late February, before the novel coronavirus fully dominated media coverage, economic forecasters expressed fear that the blockades would do “lasting damage to Canada’s brand.” Recently, as attention on the pipeline has waned, large-scale construction has resumed.

The pipeline, and the controversy surrounding it, now sits at the intersection of the economic crisis created by the COVID-19 pandemic and the recent spate of international protests calling for racial justice and criticizing police brutality against Black Americans and other racialized groups. In Canada, although anti-Black racism, including in policing, is alive and well, Indigenous populations have actually long been the most overrepresented group in Canada’s criminal justice system. Indeed, solidarity between Black Lives Matter and Indigenous activists has been a major feature of Canadian protests and activism this summer.

Regardless of how long the pandemic or the most recent spate of racial justice protests last, Canada will still have to deal with the issues raised by activist blockades of key rail lines, ports, and roads. Even if the claims of the Wet’suwet’en hereditary chiefs who oppose the CGL pipeline are dealt with in a way that satisfies their concerns as well as those of the elected councils who continue to support the project, Canada still faces hundreds of other long-smoldering Indigenous land rights claims, creating the ever-present risk of new flashpoints re-heating simmering tensions. Although Canada has been largely successful in dampening the spread of the coronavirus within its borders, it still must deal with the economic fallout of the pandemic. Given that Indigenous peoples’ continued claims to self-determination and to exercising their governance of traditional lands have been repeatedly scapegoated as impediments to economic growth in Canada in the past, many frustrated settler-Canadians in the uncertain years ahead – seeking a convenient group to blame – might remain suspicious of what they regard as Indigenous demands for special status within Canada. Such suspicions have a long lineage.

The Doctrine of “Discovery” and the Subordination of Indigenous Independence to “Civilization and Development”

As scholars such as Antony Anghie have pointed out, modern international law arose out of the efforts of Europe’s colonial powers to legitimate and thereby facilitate often violent processes of colonization and land expropriation. As a former British colony, Canada has been no exception to this leveraging of legal doctrines in the service of empire. In the North American context, the key legal mechanism utilized to justify wars of aggression, processes of land expropriation, and ultimately the state’s domination of Indigenous lives, was what scholars refer to as the “doctrine of discovery.” Emerging from European interests in annexing non-Christian lands in first Lithuania and the Middle East, and later Africa, the doctrine received its most extensive treatment in its application to North America, chiefly in the work of Chief Justice John Marshall of the United States Supreme Court. In the 1823 case Johnson v. M’Intosh, Marshall famously framed the core of the doctrine:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

Canadian jurisprudence readily incorporated Marshall’s treatment of the doctrine of discovery. In his contribution to the 1887 iteration of one of Canada’s most influential cases concerning Indigenous land rights, St. Catharines Milling and Lumber v. the Queen, Canadian Supreme Court Justice Henri Elzéar Taschereau concluded that any effort to acknowledge the claims of Indigenous peoples would mean that all “progress of civilization and development in this country is and always has been at the mercy of the Indian race.” Marshall’s formulation is at the heart of Taschereau’s opinion in St. Catharine’s Milling, which concerned whether the federal or provincial government would benefit from logging on Treaty 3 lands in northern Ontario. Chancellor John Alexander Boyd, the judge who presided over the case at the trial level, claimed that the members of the Anishinaabe nation whose lands were taken for the lumber operation possessed “more than [the] usually degraded Indian type” of character (quoted here at p. 73).

From an Impediment to “Civilization” to “Infringeable” to Serve the Settler Economy

In the decades since Canada’s entrenchment of “Aboriginal and treaty rights” in the Constitution Act, 1982, Canada’s high court has suggested that notions of degraded Indigenous character are out of date, as though they were simply swept aside by the course of time. For instance, in the 1985 case Simon v. The Queen, Chief Justice Dickson wrote that language used in a 1929 New Brunswick treaty rights case “reflects the biases and prejudices of another era in our history” (para. 21). Equally dismissive of the doctrine of discovery’s influence, in the landmark 2014 Tsilhqot’in Nation v. British Columbia judgment, Chief Justice McLachlin claimed that the doctrine of “terra nullius” – a version of the doctrine of discovery more common in Australia but exercised somewhat in North American “New France” as well – “never applied” in Canada (para. 69), a factual claim that at best oversimplifies historical scholarship. These cases and a range of others, however, demonstrate that Canada’s courts have done little to directly challenge the doctrine of discovery’s continued influence in both law and society.

In 2000, for instance, British Columbia’s Supreme Court referred to Marshall’s decisions as “celebrated” in Campbell v. Attorney General (British Columbia), accepting Marshall’s account of colonial era history in its conclusion that Indigenous nations were left with a diminished right to self-government (para. 88). In 2011 the same court referred to the Marshall decisions as “possibly persuasive authority” in Chief Mountain v. British Columbia (Attorney General), wherein it upheld its 2000 decision in Campbell (para. 64).

More recently, in 2017 an Ontario court considering a family law custody dispute affirmed Marshall’s view of limited Indigenous powers in the wake of discovery over the plaintiff’s argument that Crown sovereignty was “all-encompassing” in Beaver v. Hill (para. 111). However, the presiding judge found no reason to accept the Mohawk respondent’s argument that he could not be made subject to the jurisdiction of provincial courts or child welfare services (a jurisdiction ultimately grounded in the doctrine of discovery) because he was a member of a self-determining Indigenous nation, the Haudenosaunee (the Iroquois Confederacy), which enforces its own laws concerning child custody (para. 151).

Thus, the doctrine of discovery endures at the level of provincial courts and in several areas of law, despite repeated calls for Canada to explicitly renounce it from legal scholars, Indigenous governance groups such as the Assembly of First Nations, and in the recommendations of the Truth and Reconciliation Commission (2015) and the Royal Commission on Aboriginal Peoples (1996).

In addition to its continued appearance in Canadian jurisprudence, fundamental assumptions shaping Canadian law and society also have their foundations in the doctrine of discovery. One key commonplace assumption in this regard is that Canadian law rests wholly on English common law and French civil law. This assumption ignores the fact that the issue of jurisdiction is far from a new question and is long-contested. In 1727, Penobscot chief Laurence Sagouarram, one of the four Wabanaki Confederacy signers of the Treaty of Boston (1725), related a conversation he’d had with William Dummer, the acting governor of the Massachusetts colony. According to Sagouarram, the governor had said to him “‘But do you not recognize the King of England as King over all his states?’” Sagouarram replied to the presumptuous Dummer, “Yes, I recognize him as King of all his lands; but … do not hence infer that I acknowledge thy King as my King, and King of my lands. Here lies my distinction – my Indian distinction. God hath willed that I have no King, and that I be master of my lands in common” (quoted here).

The doctrine of discovery also plays a large, though less directly asserted, role in the leading Supreme Court decisions attempting to articulate the extent of obligations entailed in the Canada’s entrenchment of “Aboriginal and treaty rights” in the constitution. Last winter Wet’suwet’en hereditary chiefs and government representatives held discussions in response to the anti-pipeline protests and blockades, which concluded with a Memorandum of Understanding (MOU), though one opposed by Wet’suwet’en elected chiefs and councils, who were not included in the discussions. Even though the MOU states that “Wet’suwet’en rights and title are held by Wet’suwet’en Houses under their system of governance,” the discussions made public in the weeks prior to its signing indicated that the agreement sits within the Supreme Court’s established framework for understanding the meaning of “Aboriginal and treaty rights.”

As the court has held in cases such as R. v. Sparrow (1990), R. v. Van der Peet (1996) and Haida Nation v. British Columbia (2004), whatever these rights may be, they are not challenges to “the Crown’s assertion of sovereignty” (Haida Nation, para. 32). Which is to say that they are consistent with Marshall’s rendition of the doctrine of discovery and the “ascendancy” of the “superior genius of Europe” over pre-existing Indigenous societies, since there is no other explanation for how Crown sovereignty ever came to displace Indigenous self-determination. Within such a framework, even a right of self-governance means only that Indigenous nations have the self-determining powers of a municipality within Canada’s federalist constitutional order.

A second feature of the continued role of the doctrine of discovery appears in a seminal case that gained renewed public attention during the CGL pipeline protests, the Supreme Court’s 1997 Delgamuukw v. British Columbia decision, which famously concluded that Aboriginal title actually exists as a collective and “sui generis” form of right within Canadian law. Nevertheless, that decision provided the Gitxsan and Wet’suwet’en litigants with no determination regarding title, but merely called for a new trial and further negotiations with the government. In Delgamuukw, and in all cases following it over the last 23 years, any land rights that Indigenous peoples may continue to hold, remain subject to “infringement.” Former Chief Justice Antonio Lamer, who authored key sections of the plurality decision, expressed a breathtakingly broad view of the ways in which Indigenous title could be infringed by the settler government, stating:

In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title (para. 165).

Lamer’s vision encompasses nearly the entire scope of nation building as justifiable “infringing” uses of Indigenous lands. Lamer’s expansive vision of legally permissible infringing activities were also incorporated into the 2014 Tsilhqot’in Nation v. British Columbia decision, the first case in Canada acknowledging that a particular Indigenous nation retains title to at least a portion of its traditional lands. Although Tsilhqot’in confirmed that Aboriginal title conferred a right to possession, in keeping with Delgamuukw, it also found that such rights are subject to justifiable infringement “on the basis of the broader public good.” (para. 77). Of course, the “public” in question must be the non-Indigenous settler population, given that infringement necessarily entails a violation of the interests and aims of affected Indigenous nations.

The Threat of a Post-Pandemic Revival of Anti-Indigenous Racism in Canada

From Johnson and St. Catharine’s Milling, to Delgamuukw and Tsilhqot’in Nation, while Indigenous rights have been increasingly recognized and explicit anti-Indigenous racism increasingly denounced, the notion that Indigenous rights should not stand in the way of the “progress of civilization and development” has endured in the courts’ willingness to accept that  justifiable infringements can constrain those rights. However, even the protection that courts have occasionally bestowed on Indigenous nations’ lands, livelihoods and persons, still seems to many Canadians like the corrupt outcome of the courts and the government awarding Indigenous people a special status that they themselves are denied.

In a future post-pandemic world, those Canadians who find themselves frustrated with the pace of the country’s economic recovery may find themselves agreeing with Justice Taschereau that their interests should not be held “at the mercy of the Indian race.” The unasked question lurking beneath Canadian conversations about the status of Indigenous nations is how is it that so many Canadians are inclined to think that the interests of settler communities carry a default primacy over those of Indigenous communities. That is, how does the “progress of civilization and development” cited by Justice Taschereau seem like such an obvious good, one that should not be hindered in the name of respecting the (pre-existing) rights of Indigenous peoples? The only way to produce an answer to this question is to draw upon the doctrine of discovery’s contention that “savagery” must necessarily yield to “civilization.”

The best thing Canada can do today to ensure that blockades and other desperate measures don’t become routine, and to reinforce the country’s tenuous increase in public support for Indigenous rights, is to formally and explicitly renounce the doctrine of discovery. If this is unachievable, then at least in pursuit of honesty, the government, the courts, and Canadians in general ought to explain forthrightly why they still believe that this doctrine continues to have merit. Anything less can only guarantee the persistence of the long-tortured relations with Indigenous nations that are Canada’s legacy.

Image: First Nations protestors man a barricade on Highway 6 near Caledonia, Ontario which the protestors set up in support of the Wet’suwet’en hereditary chiefs and the Tyendinaga Mohawks on February 26, 2020. Canadian police on February 24, 2020 cleared out indigenous protesters blocking a key east-west rail artery for nearly three weeks to protest a pipeline, causing major disruptions to the economy. The protesters, confronting Prime Minister Justin Trudeau with a political crisis, had mounted the blockade on a Canadian National Railway line east of Toronto and at other places in support of a small group fighting construction of a natural gas pipeline on indigenous lands in British Columbia.(Photo by GEOFF ROBINS/AFP via Getty Images)