The Doctrine of Discovery - Part 6

Arguments for and against and a conclusion to the series

This sixth and final article in my series on the Doctrine of Discovery 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.

Other Views

Dr. Samuel Carpenter has commented on the Doctrine of Discovery and calls that have been made from some quarters for it to be rejected as a legal concept. Such a call presupposes that there ever was a legal concept known as the Doctrine of Discovery.

Dr Carpenter is doubtful that it is an issue that needs to be addressed, suggesting that

“A sound understanding of history means rejecting simplistic, one-dimensional explanations for complex phenomena”.

His view which I share is that if there was a theory of discovery in the 15^th century its aim was to prevent conflict between European states in the early modern era.

“Basically, if a state discovered a new land ahead of its European rivals, that gave it a prior or monopoly right in those territories – but only against other European states.”

This principle did not mean that discovering states could seize indigenous lands. Dr Carpenter suggests that

“the recent arguments made about a Doctrine of Discovery make little sense of the whole history of European powers making treaties for trade, acquisition of land, cession of sovereignty, or control of tax revenues, including with non-Western peoples.”

By the nineteenth century British colonial expansion was tempered by anti-slavery and indigenous protection movements.

By citing a “Doctrine of Discovery” what its proponents suggest is that at least morally the idea of discovery is illegitimate. That is all very well but overlooks any consequential impact that the assertion of such a so-called Doctrine may carry with it. Arguing ad absurdam it means that the assertion of power or sovereignty – irrespective of how that was obtained – either by Treaty or the barrel of a gun – is illegitimate and that the successor to a colonial power suffers from that illegitimacy.

Certainly from New Zealand’s point of view there were serious wrongs done to Maori which are being addressed by the process of reconciliation by means of Treaty Settlements. Interestingly in that process the existence of a “Doctrine of Discovery” merits not a mention as a justification for further redress. At worst, as Dr Carpenter suggests discussion about the “Doctrine” was almost non-existent in New Zealand although he concedes that there may have been Western notions of superiority accompanying early colonial attitudes but this did not justify nor was it used to justify the taking possession of lands by force that were already occupied.

A strong proponent of the Doctrine of Discovery and its legacy in New Zealand is Tina Ngata. Tina Ngata is a Ngati Porou author, advocating for environmental, Indigenous, and human rights. Her background is described as being in holistic approaches to public health, including oranga taiao (environmental wellbeing) and oranga whanau (collective wellbeing).

Since 2019, she has been developing models of wellbeing and protection, founding the award-winning Manaaki Matakaoa program that uses community-centered, flaxroots oranga services to build a community-based health infrastructure.

Ms Ngata did her Masters thesis focusing on the application of the Doctrine of Discovery in Aotearoa.

She has given evidence before the Waitangi Tribunal and has also participated in a Podcast entitled “Mapping the Doctrine of Discovery”. Episodes in that podcast perpetuate much of the imagined theory that has been earlier discussed. It is no surprise to see Professor Robert Miller is a contributor. She also runs a blog entitled Kia Mau (Resisting Colonial Fictions) focusing on “dismantling frameworks of domination, rematriating ways of being.”

Tina Ngata’s evidence before the Waitangi Tribunal is instructive and exemplifies the way in which a particular ideological theory may take root and spread through governmental and social channels. She says:

“I am further involved in the national action plan against racism on behalf of the Iwi Chairs Forum, which includes education and training for Crown officials on the Doctrine of Discovery and its application in Aotearoa in both historical and contemporary settings.”[1]

Ms Ngata’s opinion (I would hardly characterize it as evidence) on the Doctrine of Discovery commences at paragraph 50 of her brief. She tells a story of female dispossession during the colonial period claiming

“This judgement of women can be seen to stem from the legacy of religious sexism, and the core role of Christian supremacy within the Doctrine of Discovery process.”[2]

Her assertions about the Doctrine and her discussion of it start at paragraph 71 and continue to the concluding paragraph of her brief – paragraph 72. They read as follows:

“All proclamations of discovery upon Indigenous lands were based upon the principles of the Doctrine of Discovery which, as stated by Dr Moana Jackson, claimed rights not only over other lands, but over the bodies of the people who belonged to that land. New Zealand/Aotearoa has not been an exception to these phenomena.

The assumptions based within the Doctrine of Discovery, based upon ideas of European male supremacy, was in direct conflict with the Ngāti Porou worldview and universal order, which placed wahine Māori as central to social wellbeing, with inherent spiritual, economic and political authority and sexual and relational agency of their own. This set in train a series of colonial philosophical and political responses which set the scene for the ongoing abuse of wahine Māori post 1840.”[3]

The following points emerge from these paragraphs.