Pope Francis’ Visit to Canada Highlights Legal Significance of the Discovery Doctrine

By Kaitlin Lapka

In June 2022, Pope Francis visited Canada in an attempt to repair the Catholic Church’s historical relationship with Indigenous Peoples in Canada.[1] Calling his tour a “penitential pilgrimage,” the Pope “humbly beg[ged] for forgiveness” for the Church’s past actions but refused to take one final step Canada’s Indigenous communities demanded: Renounce the Discovery Doctrine.[2]

The Discovery Doctrine is a legal concept stemming from a longstanding papal bull issued by the Catholic Church — specifically the “Inter Caetera” published by Pope Alexander VI in 1493.[3] It authorized Spain the “right” to explore the New World and rationalized colonization and assimilation of the people that inhabited it to Christianity.[4]

In time, the Inter Caetera’s Latin concept of terra nullius, a justification for “discovery” (conquest) of lands and people deemed to be lesser, became internationally accepted to endorse seizure of Indigenous lands by many nations.[5]

For example, even non-Catholic countries like England justified its own colonization on the Inter Caetera.[6] In 1763, King George III issued a Royal Proclamation to claim territory in North America based on the Discovery Doctrine.[7]

In 1823, the Supreme Court of the newly formed United States codified the Discovery Doctrine into law in Johnson v. M’Intosh: A landmark ruling holding that only the United States, as the conquering nation, holds title to Indian land.[8]  

In 1888, Canada’s judicial system referenced Johnson v. M’Intosh in St. Catharines Milling and Lumber Co. v R., which was Canada’s first case to discuss Indigenous land title and held as good law for over eighty years.[9]

Importantly, the Discovery Doctrine also helped fuel forced assimilation of Indigenous children in Canada into the country’s horrific residential school system, which was funded by the federal government but operated by religious organizations.[10] Notably, the Catholic Church operated two-thirds of the more than 130 residential schools located throughout Canada.[11] 

The Vatican argues that the Discovery Doctrine has since been abrogated by other papal bulls and is merely “a historic remnant with no juridical, moral or doctrinal value.” Courtesy Pexels.

From 1883 to 1997, approximately 150,000 First Nations, Métis, and Inuit children were forced to attend these residential schools.[12] Like similar schools in the United States, Canada’s residential school system utilized the motto, “Kill the Indian, and save the man.”[13]

The schools harmed Indigenous children in immeasurable ways, denying them from using their language and culture, forcing them to convert to Christianity, and other appalling abuses like food deprivation, family separation, physical, sexual, and emotional abuse, and even death.[14]

In fact, the Canadian government’s Truth and Reconciliation Commission — established in 2007 as part of the Indian Residential Schools Settlement Agreement, the largest class-action settlement in Canada’s history[15] — has identified 4,100 deaths of Indigenous children from the schools to-date.[16] Unthinkably, these deaths have often been uncovered at mass unmarked grave sites at former school locations across Canada.

To atone for its actions, the Canadian government has since given $72 million to the Truth and Reconciliation Commission to discover the truth about the residential school system and begin a nationwide process of reconciliation.[17] Moreover, in 2021, the government also passed legislation to formally renounce the Discovery Doctrine.[18]

Thus, when the Pope underwent his own reconciliation tour in 2022, he was called on to take similar actions on behalf of the Catholic Church.[19] But, the Pope ignored this.[20]

Instead, the Vatican argues that the Discovery Doctrine has since been abrogated by other papal bulls and is merely “a historic remnant with no juridical, moral or doctrinal value . . . the fact that juridical systems may employ the ‘Doctrine of Discovery’ as a juridical precedent . . . is therefore now under the competence of national authorities, legislators, lawyers and legal historians.”[21]

However, for many, this viewpoint is “inadequate.”[22]

Legal scholars believe renouncement would help kick the legs out from under one of the most “foundational building blocks of white supremacy and Manifest Destiny that we are dealing with today.”[23] Others believe renouncement by the Pope could add another weight of pressure to Canada’s Supreme Court to finally remove Discovery Doctrine precedent from Canadian law.[24] This last point alone proves the legal significance of the Catholic Church’s continued failure to renounce its past teachings, no matter how old.[25] 

[1] Ian Austen and Elisabetta Povoledo, Pope to Offer a Long-Sought Apology to Canada’s Indigenous People, N.Y. Times (July 24, 2022), https://www.nytimes.com/2022/07/24/world/canada/pope-francis-apology-canada-indigenous.html.

[2] “I humbly beg forgiveness,” Pope Francis’ words in Maskwacis, Walking Together: Pope Francis Canada 2022, https://www.papalvisit.ca/i-humbly-beg-forgiveness-pope-francis-words-in-maskwacis/ (last visited Jan. 15, 2023); see also Gabriel Pietrorazio, Why Hasn’t the Pope Denounced the Doctrine of Discovery?, Sojourners (Oct. 4, 2022), https://sojo.net/articles/why-hasn-t-pope-denounced-doctrine-discovery.

[3] See Erin Blakemore, This 500-year-old Catholic decree encouraged colonization. Will the pope revoke it?, Nat’l Geographic (July 7, 2022), https://www.nationalgeographic.com/history/article/doctrine-of-discovery-how-the-centuries-old-catholic-decree-encouraged-colonization.

[4] Id.

[5] Id.

[6] Id.; see also Truth & Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future, Nat’t Cent. for Truth and Reconciliation: Univ. of Manitoba (2015). Available at: https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Executive_Summary_English_Web.pdf.

[7] Royal Proclamation, 1763, Indigenous Found., https://indigenousfoundations.arts.ubc.ca/royal_proclamation_1763 (last visited Jan. 15, 2023).

[8] See Matthew Fletcher, A Short History of Indian Law in the Supreme Court, A.B.A. (Oct. 1, 2014), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/2014_vol_40/vol--40--no--1--tribal-sovereignty/short_history_of_indian_law/.

[9] See Blake Watson, The Impact of the American Doctrine of Discovery on Native Land Rights in Australia, Canada, and New Zealand, 34 Seattle U. L. Rev. 532-35 (2011). See also “Grace and Policy”: St. Catharine’s Milling & Lumber Co v. the Queen, Raven (Oct. 31, 2012), https://raventrust.com/grace-and-policy-st-catharines-milling-lumber-co-vs-the-queen/.

[10] See Blakemore, supra note 3.

[11] Guy Davies, Phoebe Natanson, and Aleem Agha, Pope Francis apologizes for Church's role in Canada's Indigenous residential school system, ABC News (Apr. 1, 2022), https://abcnews.go.com/International/pope-francis-apologizes-churchs-role-canadas-indigenous-residential/story?id=83806881.

[12] See Carina Xue Luo, Missing Children of Indian Residential Schools, Leddy Libr. Univ. of Windsor (Sept. 6, 2022), https://storymaps.arcgis.com/stories/cfe29bee35c54a70b9621349f19a3db2; Truth & Reconciliation Commission of Canada, supra note 6 at 3.

[13] See “Until There Is Not a Single Indian in Canada,” Facing Hist. and Ourselves (July 28, 2020), https://www.facinghistory.org/en-ca/resource-library/until-there-not-single-indian-canada;“Kill the Indian in him, and save the man”: R. H. Pratt on the Education of Native Americans, Carlisle Indian Sch. Digit. Res. Cent., https://carlisleindian.dickinson.edu/teach/kill-indian-him-and-save-man-r-h-pratt-education-native-americans (last visited Jan. 15, 2023).

[14] See Ian Mosby and Erin Millions, Canada’s Residential Schools Were a Horror, Sci. Am. (Aug. 1, 2021), https://www.scientificamerican.com/article/canadas-residential-schools-were-a-horror/. See generally Truth & Reconciliation Commission of Canada, supra note 6.

[15] Top Class Action Cases in Canada, Klein Lawyers LLP, https://www.callkleinlawyers.com/full-disclosure/top-class-action-cases-in-canada/ (last visited Jan. 15, 2023).

[16] Ian Austen, How Thousands of Indigenous Children Vanished in Canada, N.Y. Times (June 7, 2021), https://www.nytimes.com/2021/06/07/world/canada/mass-graves-residential-schools.html.

[17] Truth and Reconciliation Commission of Canada, Gov’t of Canada, https://www.rcaanc-cirnac.gc.ca/eng/1450124405592/1529106060525 (last visited Jan. 16, 2023).

[18] Teresa Wright, How Canada's UNDRIP bill was strengthened to reject 'racist' doctrine of discovery, CTV News (June 19, 2021), https://www.ctvnews.ca/canada/how-canada-s-undrip-bill-was-strengthened-to-reject-racist-doctrine-of-discovery-1.5477403.

[19] Mitchell Consky, Pope asked to renounce Doctrine of Discovery – what is it?, CTV News (July 27, 2022), https://www.ctvnews.ca/canada/pope-asked-to-renounce-doctrine-of-discovery-what-is-it-1.6004411.

[20] Bryan Eneas, The Doctrine of Discovery: Its effects are still being felt, but only the Pope can rescind it, CBC News (May 12, 2022), https://www.cbc.ca/news/canada/saskatchewan/doctrine-of-discovery-calls-to-rescind-can-it-happen-1.6450029.

[21] See Truth & Reconciliation Commission of Canada, supra note 6 at 192-93.

[22] Id. at 193.

[23] See Blakemore, supra note 3.

[24] Rhythm Sachdeva, Why the official repudiation of the Doctrine of Discovery is necessary: lawyer, CTV News (Aug. 2, 2022), https://www.ctvnews.ca/canada/why-the-official-repudiation-of-the-doctrine-of-discovery-is-necessary-lawyer-1.6010798.

[25] Id.