The Contemporary Presence of Discovery’s Assertion in Canada

One of the striking features of chief justice John Marshall’s articulation of the Doctrine of Discovery is the assertion that Indigenous sovereignty and rights were necessarily diminished and impaired. This was necessary because, to paraphrase Marshall, the act of discovery gave exclusive title to the discoverer. It wouldn’t take too long before countries also determined that discovery alone wasn’t enough — one had to occupy what was discovered. It was essential that people live on and farm that claimed land. The logical inference from Marshall’s observation about discovery was that European monarchs asserted that they alone had ultimate dominion over the lands their subjects had discovered. While it will be seen that progress has been made by the Supreme Court of Canada (SCC), this assertion of sovereignty has become the centerpiece of Canadian law dealing with and determining Indigenous rights. The assertion of sovereignty has made it difficult for settler law makers and settler law interpreters to see treaties as a nation-to-nation activity. The effect of this assertion has imposed a forced submission. The Court identifies its purpose in cases involving Indigenous rights, and the interpretation of treaties, to reconcile Indigenous sovereignty and rights with the assertion of Crown sovereignty.

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