Ka kuhu au ki te ture hei matua mō te pani

I seek shelter in the law, for it is a parent to the oppressed

- Te Kooti Arikirangi Te Turuki (c.1832-1893)

Thursday, May 10, 2012

The Doctrine of Discovery at the UN


The eleventh session of the United Nations PermanentForum on Indigenous Issues is taking place over this week and next week in New York. 

The Permanent Forum is an advisory body to the Economic and Social Council with a mandate to discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights.

The Permanent Forum is comprised of sixteen independent experts, who serve for a term of three years. Eight of the Members are nominated by governments and eight are nominated directly by indigenous organizations in their regions.  The current representative for the Pacific region is Valmaine Toki, a senior lecturer in the Faculty of Law at Waikato University.

According to its mandate, the Permanent Forum will:
  • provide expert advice and recommendations on indigenous issues to the Council, as well as to programmes, funds and agencies of the United Nations, through the Council;
  • raise awareness and promote the integration and coordination of activities related to indigenous issues within the UN system;
  • prepare and disseminate information on indigenous issues.
The special theme for the current session of the Permanent Forum is “The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the United Nations Declaration on the Rights of Indigenous Peoples)”.

The Doctrine of Discovery is an international legal construct which was used by European states from the 15th century onwards to exert rights of conquest and dominance over non-Christian indigenous peoples.  The origins of the Doctrine can be seen in a decree issued by Pope Nicholas V in 1455.  This type of communication is known as a ‘papal bull’, and the papal bull which provides the basis for the Doctrine of Discovery is titled Romanus Pontifex. The particular purpose of this papal bull was to legitimise the King of Portugal’s claim to colonial territories in Africa. In doing so, Pope Nicholas V set out a framework for the subjugation of non-Christian peoples by Christian state of Europe.  The basic principle that underlies the Doctrine of Discovery is that Christian states could assert territorial authority and rights over lands and resources by virtue of “discovery”.  “Discovery”, in this context, was something that only Christian peoples could assert.  The first Christian state to assert territorial authority would be recognised, despite the fact that there may have already been non-Christian, indigenous societies established on those lands.  In Aotearoa, for example, Hobson proclaimed the sovereignty of the British Crown, in relation to the South Island, by virtue of discovery, despite the obvious presence of pre-exisitng Māori communities there.

The Doctrine of Discovery became a fundamental support for colonial powers and the process of colonization.  The Doctrine is reflected starkly in the way in which colonial legal systems have dealt with the rights of indigenous peoples.  In an influential decision of the United States Supreme Court from the 1820s, Chief Justice John Marshall describes the terms of the royal charter issued by the British Crown to assert authority in the Americas as follows:
In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle [of discovery] which has been mentioned.  The right of discovery given by this commission, is confined to countries “then unknown to all Christian people”; and of these countries Cabot [an explorer under patronage of King Henry VII] was empowered to take possession in the name of the king of Engalnd.  Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.
There is a clear injustice in the Doctrine of Discovery, which has been described by a former Special Rapporteur on the Rights of Indigenous Peoples as “The Framework of Dominance”.  In a presentation to the Permanent Forum this week, Moana Jackson urged people to remember that the effects of the Doctrine of Discovery have been far-reaching:
. . . while the Doctrine of Discovery was always promoted in the first instance as an authority to claim land of indigenous peoples, there were much broader assumptions implicit in the doctrine.  For to open up an indigenous land to the gaze of the colonising “other”, there is also in their view an opening up of everything that was in and of the land being claimed.  Thus, if the Doctrine of Discovery suggested a right to take control of another nationa’s land, it necessarily also implied a right to take over the lives and authority of the people to whom the land belonged.  It was in that sense, and remains to this day, a piece of genocidal legal magic that could, with the waving of a flag or the reciting of a proclamation, assert that the land allegedly being discovered henceforth belonged to someone else, and that the people of that land were necessarily subordinate to the colonisers.
It is because of its far-reaching consequences, the effects of which indigenous peoples continue to feel today, that the Permanent Forum determined that this topic should be the special theme for the current session.  Many states, churches, and other organisations have now formally rejected the Doctrine of Discovery.  While this is an important step, and certainly welcomed by indigenous peoples, the next step would be for those that have profited from the Doctrine of Discovery, to actively support indigenous peoples to undo the consequences of the application of the doctrine.