The Doctrine of Discovery

The Articulation of the Doctrine and its Background

This is the first of a series of six articles dealing with the phenomenon known as the Doctrine of Discovery.

I have divided the discussion into six articles because the full discussion is very long, covers over 50 pages and 23,450 words and is very detailed. The division into six articles allows for a less intimidating approach and I have tried to divide the full article into thematic sequences.

This “Doctrine” is used by some commentators – mainly academics – to describe the impetus and mindset adopted by Western European colonisers and its use as a justification by those colonisers for the wholesale suppression of indigenous peoples and their culture and the forcible acquisition of their lands. The series goes into some detail in analysing what this supposed Doctrine says and considers some of the authorities advanced for its existence.

The first article (this one) considers an articulation of the “Doctrine” and traces the background to it and the various decrees that were made by the Papacy in the 15^th and 16th centuries.

The second article deals with what I call “Legal developments” and considers the case of Johnson and Grahams Lessee v McIntosh, a decision of the US Supreme Court which is used by advocates of the Doctrine to establish it as a rule of law. The discussion will demonstrate how and why this reliance is misplaced. The second article will then turn to some of the New Zealand developments that are used to support the existence of the Doctrine although no New Zealand case mentions it in that way.

The third article is brief and looks at what I call colonial developments and the basis for colonization. It also considers what principles underpinned the British Government’s approach to colonization utilizing the Treaty process. I am grateful to Ned Fletcher and his excellent book “The English Text of the Treaty of Waitangi” which informs much of the discussion in the third article.

The fourth article, again brief, changes the focus and considers the Doctrine of Discovery as a manifestation of critical theory. It looks at the development of critical theory and post-modernism and the way that it is applied in the areas of racism, critical race theory and colonization and decolonization. The essential argument is that the Doctrine of Discovery has no objectively provable existence but is a critical theory construct.

The fifth article contains a critique of the development of the Doctrine and discusses the writings and views of Professor Paul Moon and his critique of the basis for the Doctrine. Professor Moon observes that the evidence supporting the application of the Doctrine of Discovery to British colonial intervention in New Zealand is limited and subject to debate.  While some scholars and activists argue for its relevance, it is important to note that the historical evidence does not strongly support this claim.  Professor Moon’s critique is examined in some detail.

The sixth and final article considers some other views on the validity of the Doctrine and looks at a supporter of and advocate for the Doctrine which demonstrates the critical theory approach to the Doctrine. The article and series concludes with a summary critique of the essential elements of the Doctrine and concludes that the so-called Doctrine of Discovery as a matter of fact is no more than a fiction. It is of concern that weight is given to this fiction by organisations such as the Human Rights Commission in Maranga Mai as well as other governmental and international agencies. Arguments based on the Doctrine of Discovery should be rejected as being ephemeral “smoke and mirrors” suggestions without objective form and substance. Disputes between colonizing and indigenous peoples should be addressed and dealt with on the basis of observable facts and the historical record rather than theoretical and baseless imaginings.

Introduction

This article is about the Doctrine of Discovery, whether there is indeed a coherent “Doctrine of Discovery”, how the term has been weaponized by academia in the last twenty years or so and how attempts have been made to introduce this questionable theory into the colonial and subsequent history of New Zealand.

The Doctrine of Discovery has been uncritically adopted by some historians and legal academics based primarily upon an assumption of its existence rather than proof thereof.

I start with an articulation of the “Doctrine of Discovery” as it appears in Maranga Mai[1] described as “an historical and phenomenological analysis which shines a light on the impact of colonisation, racism and white supremacy on tangata whenua in Aotearoa New Zealand.”

I then go on to trace the background to and the development of what is articulated in Maranga Mai and attempt to identify some of the anchor points for the theory. The discussion includes a consideration of the case of Johnson & Grahams Lessee v McIntosh[2] and the way that this case has been utilized in the development of the theory.

I shall proceed to consider the way in which the theory has been applied in the colonial context and especially in the New Zealand context. I argue that in fact events have been interpreted to fit within the scope of the theory rather than the theory being a “First Cause” as has been asserted in much of the literature.

I shall also consider the way in which the theory has been deployed to essentially quell any debate or discussion about New Zealand’s colonial history.  A post-truth approach has been adopted with elements of critical theory and neo-Marxism in the development of the theory.

The suggestion is that the theory of the Doctrine is in fact a manifestation of European supremacy, which then translates to white supremacy. The ultimate conclusion deriving from this is that the colonization of New Zealand was anchored in racism. In this way the theory of the Doctrine of Discovery becomes a synonym for racism and a means of vetoing or shutting down any contrarian view.

The article concludes with the suggestion that the Doctrine of Discovery is a theory only. As articulated by the Human Rights Commission it has no historical basis and is an imagined theory by academics who wish to impose their own worldview upon historical and legal theory.

The Human Rights Commission Articulation

There are two passages in Maranga Mai where the “Doctrine of Discovery” is articulated. They read as follows:

“ Indigenous nations at the United Nations have described the Doctrine of Discovery as the driver of all “Indigenous dispossession” (United Nations PFII, 2012).

The Doctrine of Discovery refers to a series of Papal Bulls (Catholic laws) made by the Vatican during the fifteenth century. These decrees provided the rationale for the conquest, colonisation and subjugation of Indigenous peoples and the seizure of their lands.

These racist actions were premised on the basis that non-European, non-white and non-Christian peoples had forfeited their rights of independent sovereignty, ownership of land and natural resources to what was presumed to be a superior European power.

The doctrine became part of international law through a series of landmark cases, such as, Johnson v. McIntosh[3] in the United States, where judges ruled that Western states that had taken possession of Indigenous lands immediately acquired a radical title to the land and could extinguish Indigenous ownership at will.

The Doctrine of Discovery has never been rescinded. In Aotearoa, Lieutenant William Hobson under the doctrine, declared sovereignty over Te Waipounamu (The South Island) in 1840 and claimed it for the Crown. In 1840, The Treaty of Waitangi (English version) was partially signed and mainly by North Island rangatira. Nevertheless, the British Crown proclaimed sovereignty and cession under the doctrine and the treaty.[4]

The doctrine paved the way for colonisation of Aotearoa, underpinned the establishment of the New Zealand government and its legislation, and established the white supremacy and systemic racism which exists today. Through colonisation, premised on the notions of racial superiority outlined in the doctrine, tangata whenua were displaced from their traditional lands, territories and resources.”[5]

The second passage reads as follows:

“The Romanus Pontifex (1455) legalised the taking of lands from Indigenous peoples in new worlds without their knowledge or consent. Alongside other Papal Bulls, this emerged as the Doctrine of Discovery that articulated a violent European Christian entitlement to seize ‘discovered lands’. This led to the destruction of Indigenous economies (Taonui, 2021) and “the genocide and deaths of millions of men, women and children” (Jackson, 2019).

Aotearoa New Zealand was first colonised by the British Crown under an international legal principle known as the Doctrine of Discovery. This fifteenth century Papal Bull asserted that non-Christian, Indigenous peoples inhabiting ‘discovered lands’ were enemies of God, less human than Europeans and therefore their land could be taken from them. This was key to the authority by which the British Crown first gained its sovereign and property rights in Aotearoa.

The doctrine is still recognised under international law insofar as it has never been repudiated. In this way, it continues to underpin the position of the New Zealand government and its legislation.

The authority New Zealand Governments use to exercise legal rights over Māori lands and to control Indigenous people derives from the Doctrine (Ruru J. & Miller R.J, 2008). The United States, Australia and Canada were also claimed and colonised under the Doctrine of Discovery.

In 2012 the United Nations Permanent Forum on Indigenous Issues recommended the doctrine be repudiated, and in 2013 that it be denounced, describing it as the “shameful” root of all the discrimination and marginalisation that indigenous peoples face today (United Nations PFII, 2012-2013).

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) fourth preambular paragraph refers to the doctrine when it states:

Affirming further that 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

(UNDRIP 2007).

The Inter-Caetera (1492) set a goal of dividing Indigenous lands and territories between colonising Western powers. The Inter-Caetera was influential to the recognition of the Doctrine of Discovery in international law (Johnson v McIntosh 1823, 21 US 543). This doctrine provided that “newly-arrived Europeans automatically acquired property rights in the lands of indigenous peoples and gained political and commercial rights over the inhabitants” (Ruru, 2010, p.14).

Whether treaties with colonised peoples were harsh, benevolent, obscure, or absurd, they served as a mechanism between European nations for signalling and dividing areas of interest to each other. This system, which came to be known as the Law of Nations (European), also served as a way of temporarily suspending intentions to obliterate colonised peoples. Hence, treaties secured with the good faith of indigenous peoples were frequently broken by colonisers long before the ink had dried on the parchment (Taonui, 2021).

In Aotearoa, the Doctrine of Discovery “underpinned the European belief in their right to set up government sculpting societal reasoning of European superiority over all who are non-white and non-Christian alongside a supreme European entitlement to all non-white, non-Christian lands and resources” (Ngata, 2019).

The early decision of the New Zealand courts in R v Symonds (1847) (NZPCC 387) found that rights of land ownership “cannot be extinguished (at least in times of peace) other than by the free consent of the Native occupiers” (p.390). However, recognition of Māori customary title was rejected by Judge Prendergast in Wi Parata v Bishop of Wellington (1877) (3 NZ Jur (NS) 72) in favour of the Doctrine of Discovery (p.78).

In his ruling, Judge Prendergast stated that the Treaty of Waitangi was a simple nullity, which remained the default position of the New Zealand courts for over a century.

It was not until the Court of Appeal’s decision in Attorney-General v Ngati Apa (2003) NZLR 643 that the Wi Parata case was overruled, and

recognition of tangata whenua customary title was restored (paragraphs [13], [31] and [183] – [185]).

In response to the Court’s decision in Ngati Apa, Parliament passed the Foreshore and Seabed Act 2004, to affirm Crown sovereignty in foreshore land (section 13). This legislation was repealed in 2011 when Parliament enacted the Marine and Coastal Area (Takutai Moana Act) 2011 which declared that “[n]either the Crown nor any other person owns, or

is capable of owning, the common marine and coastal area” (section 11(2)). This Act, while repealing Crown ownership, also continued the Crown denial of tangata whenua rights of title to land, marine

and coastal areas.[6]

The assertions about the Doctrine of Discovery in Maranga Mai are presented in a sequential manner, covering various aspects of its role in New Zealand's colonization.

The report claims that the Doctrine of Discovery formed the philosophical and legal basis for Britain's colonization of New Zealand and suggests that a series of papal bulls issued in the fifteenth century provided the rationale for the conquest, colonization, and subjugation of indigenous peoples and the seizure of their lands.

It also mentions that the Doctrine of Discovery is embedded in international law and continues to have relevance in New Zealand's legal framework

In summary there’re there are four major points about the Doctrine of Discovery that arise from the Maranga Mai articulation and they are as follows:

1. Origin of the Doctrine: The Doctrine of Discovery refers to a series of papal bulls issued by the Vatican in the fifteenth century.

2. Application of the Doctrine to New Zealand: New Zealand was colonized by the British Crown under the authority of the Doctrine of Discovery.

3. Status of the Doctrine in International Law: The Doctrine of Discovery became part of international law through landmark cases.

4. Current Status of the Doctrine in New Zealand: The Doctrine of Discovery has never been rescinded and is still recognized under international law.

These assertions about the Doctrine raise some interesting questions the first of which must be how it was that the Doctrine of Discovery came to be developed and first propounded.

Anchor Points for the Theory

Robert Miller and Harry Hobbs consider what I call the anchor points for the theory in a lengthy article entitled “Unravelling the International Law of Colonialism: Lessons from Australia and the United States”.[7] Professor Miller has been very influential in developing the theory of the Doctrine of Discovery and his other writings will be referenced in this article.

Miller and Hobbs assert as follows:

“The international law of colonialism dates from at least the early fifteenth century. Today, it is known as the Doctrine of Discovery (“DoD” or “the Doctrine”) because of the very influential two-hundred year-old United States Supreme Court case, Johnson v. M’Intosh. The Doctrine is one of the earliest examples of international law; that is, the rules that nations agree to abide by in their interactions with other nations.

As European powers began their voyages of “discovery” and established colonies and empires, they saw the need to agree on rules of conduct that would control their own competition”.[8]

Two significant points arise from this passage. The first is that main support for the DoD comes from the US Supreme Court case of Johnson v M’Intosh which I shall discuss later.

The second point is that the passage is critical to an understanding of the development of the theory of the Doctrine of Discovery. It is clear that it was not – in the fifteenth and sixteenth centuries or after the shift to secular international law – a coherent doctrine expressed as such.

The DoD is a concept that has been constructed by the historians of colonialism to explain the conflict between indigenous and colonial people. It has been developed through a critical theory approach of the empowered vs the disempowered and has elements of neo-Marxism to it which I shall discuss in detail later in this article. European colonial powers did not point to a coherent “doctrine of discovery” to justify their activities. To suggest that this was so is to ignore reality and the fact that the “doctrine” is a modern construct to encompass a critique of colonialism.

Miller and Hobbs go on to make some other interesting assertions.

“Of all the countries in the world, the United States still appears to be the only one that has recognized in the past, and still recognizes today, Indigenous sovereignty. The U.S. Constitution from 1787 clearly recognizes Indian nations as governments that interact with the United States through Congress and treatymaking and explicitly recognizes Indian individuals as citizens of their own governments who were not federal or state citizens.”[9]

This sweeping statement is clearly grounded on a narrow view of colonial developments especially in the Nineteenth Century and flies in the face of the New Zealand situation where the Treaty of Waitangi[10] in February 1840 clearly acknowledged indigenous (Maori) sovereignty and preserved tino rangatirataga.

The theory becomes an assertion of fact when Miller and Hobbs state:

“The Doctrine of Discovery is one of the earliest precepts of international law. European countries developed the doctrine to control and lessen competition and risk of war amongst themselves as they sought to establish empires and colonies in the non-European, non-Christian world. This international law of colonialism was ultimately adopted and applied nearly uniformly by all Euro-American countries from the fifteenth throughout the twentieth centuries. Distinct elements of this international law continue to be applied in settler colonial societies. The devastating results on Indigenous nations and peoples continue to this very day.”[11]

It is incorrect to say that European nations developed the Doctrine to control and lessen competition between themselves. There is no evidence of a crystallised DoD present at the beginning of or during the Age of Discovery. What is correct is that international law developed as a means of regulating conduct between nations in certain circumstances.

The decrees and various Treaties emerging from and encouraged by the Papacy which will be discussed later in this article were designed to reduce the likelihood of conflict between nations when it came to territorial claims of newly discovered lands. Some of the rules that developed were designed to pre-empt conflict. Thus if explorer nation A discovered, hoisted its flag and claimed an island it had a pre-emptive right to that island as against explorer nation B who might later come upon the island in question.

So the assertion by Miller and Hobbs is only partially correct to suggest that the development of this pre-emptive right was a precept of the DoD. In fact different European nations had different approaches to colonialism with varying affects – most of them adverse – on indigenous people. Belgian colonial policy in the Congo is perhaps the most extreme example of a colonial policy that was anything but benevolent to the indigenous people of the region. Therefore to suggest that the DoD as a precept underpinned the international law of colonialism and to suggest it was applied uniformly by “all Euro-American countries from the fifteenth throughout the twentieth centuries” cannot be supported.

The Origin of the Doctrine