Dismantling Doctrines of Superiority

In June 2021 the government of Canada passed into law the United Nations Declaration on the Rights of Indigenous Peoples Act.[1] This historic legislation is an important step in the pathway of decolonization of what we now call a “settler colonial state”. The preamble of this Act includes a unequivocal statement on doctrines of superiority:

Whereas all doctrines, policies and practices based on or advocating the superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences, including the doctrines of discovery and terra nullius, are racist, scientifically false, legally invalid, morally condemnable and socially unjust.

This language echoes text from the UN Declaration[2] itself, which states:

… all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust … (preambular para 4).

Very similar wording had appeared much earlier, in the 1966 International Convention on the Elimination of all forms of Racial Discrimination, which stated:

… any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere ... (preamble).

In order to understand why dismantling these doctrines of superiority is so important for decolonization, particularly for Indigenous peoples, we must step back to the 15th century.

The Doctrine of Discovery emanates from a series of Papal Bulls and extensions, originating in the 1400s and used as legal and moral justification for colonial powers taking away lands from sovereign Indigenous Nations. Under these Papal Bulls, Christian explorers claimed lands they discovered for their Christian monarchs who could exploit the land, regardless of the original occupiers. The Doctrine of Discovery is based on the presumed superiority of European and Christian peoples.

The Doctrine was used to dehumanize, exploit and subjugate Indigenous peoples and dispossess them of their most basic rights. While we can easily reject this thinking today, such ideology led to practices that continue through modern day laws and policies.

Terra nullius literally meant that no one owned the land prior to European discovery and assertions of sovereignty. Once proclaimed as “empty”, land could justifiably be taken and by definition, land was empty if the inhabitants were not human/Christian.

As articulated by Professor Robert J. Miller,

... the Doctrine [of Discovery] provided that Europeans automatically acquired property rights in native lands and gained governmental, political, and commercial rights over the Indigenous inhabitants without their knowledge or consent. This legal principle was created and justified by religious, racial, and ethnocentric ideas of European and Christian superiority over other peoples and religions”.[3]

These doctrines were solidified in law in the United States of America in the early 1800s. The Doctrine of Discovery became a legal principle through US Supreme Court decisions of the 1820s and 1830s, known as the “Marshall Decisions”. Canadian law imported the Marshall decisions through the St. Catherine’s Milling and Lumber Company v. The Queen[4] decision of 1888 and was later imported into the laws of Australia and New Zealand as well.

In 2005, the United States Supreme Court cited the Doctrine of Discovery in the City of Sherrill v Oneida Indian Nation of New York. As recently as 2012 in Canada, the Court of Appeal in the province of British Columbia cited discovery in an attempt to continue to deny Indigenous Peoples their land rights.[5] While that decision was later overturned by Canada’s highest court in its landmark Tsilhqot’in Nation v. British Columbia (2014) decision, legal systems still rely on doctrines of superiority to justify the “presumed sovereignty” of the Crown.

Former UN Special Rapporteur on the Rights of Indigenous Peoples, Professor James Anaya concluded:

... the colonial-era doctrine of discovery, when coupled with related doctrines of conquest and European racial superiority, was a driving force for atrocities committed against indigenous peoples on a global scale, with the consequences continuing to be felt.[6]

Further, as Professor Robert Williams described:

... most people are simply unaware that this blatantly racist European colonial-era legal doctrine continues to be used by courts and policy makers in the West's most advanced nation-states to deny indigenous peoples their basic human rights guaranteed under principles of modern international law.[7]

The United Nations Human Rights Council, by consensus, ‘condemned’ doctrines of superiority as “incompatible with democracy and transparent and accountable governance”.[8]

Decolonization simply must include the dismantling of archaic doctrines of superiority. The path of decolonization includes the full and effective implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration).

Indigenous Peoples negotiated with states for more than 20 years to create the UN Declaration.[9] Adopted by the United Nations Generally Assembly in 2007 and (as of this writing) reaffirmed 15 times by consensus at the General Assembly, the UN Declaration has been described as a principled framework “on which States can build or rebuild their relationships with indigenous peoples”.[10]

The UN Declaration is a universal, remedial human rights instrument. The UN Expert Mechanism on the Rights of Indigenous Peoples, concluded more than a decade ago:

As a normative expression of the existing international consensus regarding the individual and collective human rights of indigenous peoples ... the Declaration ... provides a framework for action aiming at the full protection and implementation of the rights of indigenous peoples….[11]

After an initial study on the Doctrine of Discovery, the United Nations Permanent Forum on Indigenous Issues concluded:

... Such rights [in art. 26 of UN Declaration] have the same legal status as all other property rights to lands, territories and resources. States are no longer allowed to deploy positivist legal interpretations of laws adopted during an era when doctrines such as terra nullius were the norm. International human rights law, including norms on equality and non-discrimination such as those affirmed in the International Convention on the Elimination of All Forms of Racial Discrimination and the United Nations Declaration on the Rights of Indigenous Peoples, demand that States rectify past wrongs caused by such doctrines, including the violation of the land rights of indigenous peoples, through law and policy reform, restitution and other forms of redress for the violation of their land rights... (para. 7).

During its tenth session, the Permanent Forum emphasized that redefining the relationship between Indigenous peoples and the State is an important way to understand the doctrine of discovery and a way to develop a vision of the future for reconciliation, peace and justice. The Permanent Forum encourages the conduct of the processes of reconciliation “in accordance with the principles of justice, democracy, and respect for human rights, equality, non-discrimination, good governance and good faith” (para. 8).[12]

The UN Permanent Forum on Indigenous Issues went on to do a second study – to examine the extensive and challenging topic of redress for the violation of human rights resulting from the doctrine of discovery.[13] The study concludes with the following recommendations:

34. Processes and mechanisms of redress, as well as independent oversight, are required at international, regional and domestic levels. Decolonization processes must be devised in conjunction with indigenous peoples concerned and compatible with their perspectives and approaches. Such processes must be fair, impartial open and transparent, and be consistent with the Declaration and other international human rights standards.

35. Such processes should encourage peace and harmonious and cooperative relations between States and indigenous peoples. Where desired by indigenous peoples, constitutional space must be ensured for indigenous peoples’ sovereignty, jurisdiction and legal orders.

36. Within their respective mandates, United Nations treaty bodies and regional human rights bodies have an important role to play in establishing relevant standards and jurisprudence. Similarly, the Permanent Forum, the Expert Mechanism on the Rights of Indigenous Peoples and United Nations Special Rapporteurs should play a role. The universal periodic review should also be used to encourage States to engage together with indigenous peoples in processes of decolonization.…

38. History cannot be erased. Its course, however, can be changed to ensure the present and future well-being, dignity and survival of indigenous peoples. Dignity and respect for human rights must be guaranteed, especially in the light of existing vulnerabilities. There must be a full and honest account of the past, in order to ensure that colonial doctrines do not continue to be perpetuated. A clear shift of paradigm is critical from colonial doctrines to a principled human rights framework, consistent with the United Nations Declaration on the Rights of Indigenous Peoples and other international human rights law.

Also in 2010, the Holy See clarified its own position on doctrines of superiority, including at the UN.[14] In a response to the first study done by the Permanent Forum, the Holy See stated:

The fact that juridical systems may employ the “Doctrine of Discovery” as a juridical precedent is therefore now a characteristic of the laws of those states and is independent of the fact that for the Church the document has had no value whatsoever for centuries. The refutation of this doctrine is therefore now under the competence of national authorities, legislators, lawyers and legal historians.

While Indigenous peoples agree that the doctrines of superiority must be dismantled within the legal frameworks of nation-states, they have also asked for the Vatican to take further action. There have been many appeals for the Pope to formally issue a statement that repudiates and condemns doctrines of superiority and their ongoing legacies. This was again raised by Indigenous peoples when His Holiness visited Canada in 2022. Indigenous peoples asked the Vatican to work with Indigenous peoples to release a formal repudiation that is more than a previous statement of regret and necessarily include efforts to address the legacy of human rights abuses, including dispossession of lands and the undermining of Indigenous peoples’ original and inherent sovereignty.

In 2016 Catholic bodies in Canada released a statement in response to doctrines of superiority and the report of the Truth and Reconciliation Commission.[15] This statement includes suggestions for Catholic communities to engage in the work of dismantling.

On March 30, 2023, a formal statement was issued by the Vatican concerning the Doctrine of Discovery.[16] In it, “the Church acknowledges that these papal bulls did not adequately reflect the equal dignity and rights of indigenous peoples. … and are not expressions of the Catholic faith”. It goes on to say that “the contents of these (Papal Bulls) were manipulated for political purposes by competing colonial powers in order to justify immoral acts against indigenous peoples that were carried out, at times, without opposition from ecclesiastical authorities”. In the words of Pope Francis: “Never again can the Christian community allow itself to be infected by the idea that one culture is superior to others, or that it is legitimate to employ ways of coercing others.”

The statement is clear regarding the position of the Vatican: “The Catholic Church therefore repudiates those concepts that fail to recognize the inherent human rights of indigenous peoples, including what has become known as the legal and political ‘doctrine of discovery’”.

In terms of actions now required by settler states to dismantle doctrines of superiority, a key example is Canada, which now has both federal and provincial legislation to ensure the implementation of the UN Declaration. As part of this legislation, Canada is required to produce a National Action Plan to ensure the implementation of the UN Declaration. Other States could follow this example.

Having the Declaration entrenched in law, and implementing this international human rights instrument as the framework for reconciliation[17] is a path of decolonization. Recognizing, respecting, and affirming Indigenous Peoples’ human rights is a start. The tools exist, and all eyes will now be on the States for the political will to make this reality happen.

1. United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14.
2. UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295 [accessed 10 June 2023].
3. “The International Law of Colonialism: A Comparative Analysis”, (2011) 15 Lewis & Clark L. Rev. 847 at 849
4. St Catharine’s Milling and Lumber Company v. The Queen, [1888] UKPC 70, 14 App Cas 46.
5. Tsilhqot’in Nation v. British Columbia, 2012 B.C.C.A.
6. Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, UN Doc. A/HRC/21/47 (6 July 2012), para. 5.
7. Robert A. Williams, Jr., Savage Anxieties: The Invention of Western Civilization (New York: Palgrave Macmillan, 2012), 228.
8. Human Rights Council, Incompatibility between democracy and racism, UN Doc. A/HRC/RES/18/15 (29 September 2011), para. 5.
9. See generally Sheryl Lightfoot, Global Indigenous Politics: A Subtle Revolution. “Worlding Beyond the West” series. (Oxfordshire, UK: Routledge, 2016) and Jackie Hartley, Paul Joffe, Jennifer Preston, Realizing the UN Declaration on the Rights of Indigenous Peoples: Triumph, Hope, and Action (Purich Publishing, 2010).
10. Secretary-General (Ban Ki-moon), “Protect, Promote, Endangered Languages, Secretary-General Urges in Message for International Day of World’s Indigenous People”, SG/SM/11715, HR/4957, OBV/711 (23 July 2008).
11. Final report of the study on indigenous peoples and the right to participate in decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc. A/HRC/18/42 (17 August 2011), Annex – Advice No. 2 (2011), para. 4.
12. Report on the eleventh session (7-18 May 2012), Economic and Social Council, Official Records, Supplement No. 23, United Nations, New York, E/2012/43-E/C.19/2012/13.
13. Permanent Forum on Indigenous Issues, Study on the impacts of the Doctrine of Discovery on indigenous peoples, including mechanisms, processes and instruments of redress, UN Doc. /C.19/2014/3 (20 February 2014) [Study by Forum member Edward John].
14. Statement by Permanent Observer Mission of the Holy See, Economic and Social Council, 9th session of the Permanent Forum on Indigenous Issues On Agenda Item 7: Discussion on the reports “Impact on Indigenous Peoples of the International Legal construct known as the Doctrine of Discovery, which has served as the Foundation of the Violation of their Human Rights” and “Indigenous Peoples and boarding Schools: A Comparative Study” New York, 27 April 2010.
15. Concacan Inc., The “Doctrine of Discovery” and Terra Nullius: A Catholic Response, March 19, 2016.
16. Holy See Press Office, Joint Statement of the Dicasteries for Culture and Education and for Promoting Integral Human Development on the “Doctrine of Discovery”, 30 March 2023 [accessed 10 June 2023.]
17. See the extensive body of work produced by Canada’s Truth and reconciliation Commission, and the Report, 2015.