Updated: Feb 9, 2021
A comparison between Australia, the United States, Canada and New Zealand
The highest courts in Australia, the United States, Canada, and New Zealand have all confirmed that the British Crown acquired sovereignty over Indigenous land in some way or another. However, sadly, all their explanations ultimately either deny or diminish pre-existing Indigenous sovereignty.
The “Discovery” Doctrine: A Flawed Foundation
“The Discovery Doctrine” featured in seminal cases surrounding Indigenous sovereignty in all the above jurisdictions. Chief Justice Marshall first described the discovery doctrine in Johnson — The mere act of discovery consummated by possession was found to give the discovering nation title to the land against other European governments and the ‘sole right of acquiring soil from the natives’. Indigenous land rights were consequently demoted to a ‘right of occupancy’, while the European nation gained ‘ultimate dominion’ and exclusive title to the land.
However, the doctrine is deeply flawed. Firstly, Marshall used problematic sources. Marshall relied on historian Chalmers’s claim that it was European law that discovered countries would be ‘deemed the absolute property of the discoverer’. However, there is no evidence of this agreement. Chalmers also often contradicted his own sources. For example, one of his sources, Vattel, required colonising powers to exercise actual control of the land and that the land be uninhabited. Chalmers ignores these qualifications. Chalmers did, however, use Vattel’s effective occupation requirements to explain how Indian presence was no barrier to sovereignty. Chalmers described them as ‘roving … erratic tribes’ who therefore could not possibly have effectively occupied their land.
This conclusion could only be supported by a Eurocentric definition of effective land use. It ignores the necessity for large expanses of land to accommodate traditional Indigenous lifestyles and fails to explain how sovereignty was acquired over more intensively used land. Marshall’s finding that Indigenous ‘rights to complete sovereignty’ was reduced by discovery is also contradictory. If Indigenous people ever had ‘complete sovereignty’, sovereignty should have only been legally acquired through ‘conquest or cession’. Lastly, the doctrine was an allegedly European agreement. Assuming one even existed, surely the doctrine was not enforceable against Indigenous people. This flawed doctrine, however, went on to feature in major cases regarding Indigenous sovereignty in Australia, the United States, Canada, and New Zealand.
Acquiring Sovereignty in Australia: Not for the Courts to Decide
In Coe, Gibbs recognised that Australia’s legal system depended upon settlement, by which the Crown’s laws were legitimately passed on to the state. Gibbs used Cooper, which described Australia as ‘practically unoccupied, without settled inhabitants or settled laws’ upon “discovery” and was thus ‘peacefully annexed to the British dominion’, to establish Australia as settled.
However, while it may have been necessary to conclude that Australia had been settled, it simply isn’t true. As Murphy pointed out in his judgment, Indigenous people were often forcibly removed in what might be described as attempted genocides and this historical fallacy of settlement is just ‘a convenient falsehood to justify the taking of aborigines’ land’.
This denial of Indigenous presence changed in Mabo. Marshall’s discovery doctrine was cited to establish that while Europe did often justify their acquisition of Indigenous land through discovery, Australia could no longer base their acquisition of sovereignty on the idea that the Australian Indigenous community were ‘too low in the scale of social organisation to be acknowledged as possessing rights and interests in land’. This was a huge victory in dismantling the “discovery” doctrine in Australia and recognising pre-existing Indigenous sovereignty.
However, while Indigenous people could now seek recognition of their native title, where it had not been legally extinguished, it would still be at the discretion of the Federal Court of Australia. If granted, native title would also only be recognised under Australian law. Thereby, allowing Australia to retain internationally recognised sovereignty over Indigenous land without a clear legal justification.
Acquiring Sovereignty in America: Qualifying the Discovery Doctrine
In Worcester, Marshall confirmed the discovery doctrine but only to the extent of its enforceability against other European countries. Therefore, Indigenous rights could not be annulled without Indigenous agreement. This effectively made acquisitions of sovereignty through discovery unenforceable against anyone besides the relevant European powers. As such, it became necessary in America for something more than discovery, like war or conquest, to acquire universally recognised sovereignty.
However, for the areas that had not been explicitly acquired, Cherokee found that Indigenous people, much like in Australia, could still not use their surviving sovereignty to operate as a foreign state. Instead, they were deemed ‘domestic, dependent nations’ where America asserts ‘a title independent of their will, which must take effect in point of possession when their [Indigenous] right of possession ceases’. Indigenous people are therefore able to practically use the land as their own but must remain under America’s jurisdiction, similarly depriving them of internationally recognised sovereignty without a legal basis.
Acquiring Sovereignty in Canada: The Doctrine and Assertion or Something More?
Canada’s SC in Siouoi, found that the Indigenous people and Europeans had a close and respectful relationship as one would ‘between sovereign nations’. This seemed to suggest the Crown did not acquire sovereignty in Canada upon discovery but rather treated the Indigenous as equals. However, just a week later, Sparrow employed Marshall’s problematic doctrine and found no ‘doubt that sovereignty and legislative power, and indeed … underlying title … vested in the Crown.’
In Delgamuukw, however, the SC found the date of the Crown’s acquisition of sovereignty to be a bilateral treaty between America and Britain. The treaty took place about two hundred years after discovery as per the doctrine. This suggested that a formal confirmation or assertion beyond discovery was necessary to acquire sovereignty. However, this treaty did not include Indigenous people, meaning it seems to have been enough that this assertion was recognised by another state, once again endorsing unilateral acquisitions of sovereignty from Indigenous people. This idea of binding Indigenous people to others’ agreements was exactly what Marshall tried to correct in Worcester. However, while Canada relied on his doctrine, they did not adopt his correction.
Haida, however, later found that it took both ‘the Crown’s assertion of sovereignty… and de facto [or actual] control of lands and resources’ to acquire sovereignty. It also required the Crown to legitimise their claims to sovereignty through treaties. These requirements seemed to suggest that sovereignty could not be unilaterally declared but must have either been actively taken or negotiated from Indigenous people.
However, in Tsilhqot’in, the bilateral treaty from Delgamuukw was again confirmed as the date of Crown acquisition of sovereignty in British Columbia, when Canada had yet to exercise actual control. Therefore, Haida appears to be an outlier in what has otherwise been a general reliance in Canada on the doctrine and a formal assertion (even without Indigenous recognition) to justify their acquisition of sovereignty.
Acquiring Sovereignty in NZ: Discovery or Treaty?
In New Zealand, the Crown had a treaty with the Maori. According to the English translation, the Maori ‘ceded to the Crown absolutely and without reservation all the rights and powers of Sovereignty… over their respective Territories’. The Maori version, however, ceded governance to the Crown but retained sovereignty to the Maori people, suggesting a ‘future bound more in respectful separation’. This discrepancy, however, has been ignored in case law. Regina v Symonds deemed the treaty to be purely symbolic. It found the treaty did not ‘assert either in doctrine or in practice any thing new and unsettled’. This suggested that even without the treaty, the Crown had acquired sovereignty and therefore impliedly upheld the discovery doctrine. However, as discussed earlier, the doctrine assumes no legitimate society occupied the land at discovery, certainly not one with the political authority to enter into a treaty.
This contradiction in applying the discovery doctrine, while acknowledging the Maori’s political authority to enter into a Treaty, was handled in Wi Parata by denying Maori sovereignty and rejecting the treaty’s validity altogether. The case concluded that the Crown acquired sovereignty ‘by discovery and priority of occupation’ of ‘a territory inhabited only by savages’. Later cases have avoided invalidating the Treaty so bluntly. However, more recently Re Ninety-Mile Beach found the treaty to be ‘immaterial whether sovereignty was assumed by virtue of the Treaty… or by settlement or annexation before this date’. By refusing to give the Treaty the weight it was undoubtedly perceived to have by the Maori when entering into it, New Zealand joins the other jurisdictions in covertly applying the doctrine and relying on unilateral acquisitions of sovereignty.
Each jurisdiction has had their nuances in explaining the Crown’s acquisition of sovereignty. However, they have all formulated judgments that have justified to varying extents the unilateral taking of sovereignty in spite of Indigenous presence.
Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (Joseph Chitty trans, London S Sweet, 1834) [first published 1758]
George Chalmers, Political Annals of the Present United Colonies from their Settlement to the Peace of 1763 (New York: Burt Franklin, first published in 1780, 1968 ed.)
Kent McNeil, ‘The Discovery Doctrine Reconsidered: Reflecting on Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies, by Robert J Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, and Reconciling Sovereignties: Aboriginal Nations and Canada, by Felix Hoehn’ (2016) 53(2) Osgoode Hall Law Journal 699
Kent McNeil, ‘Sovereignty and Indigenous Peoples in North America’ (2016) 22(2) UC Davis Journal of International Law and Policy 81
Robert J. Miller et al, Discovering Indigenous Lands (Oxford University Press, 2010)
Cherokee Nation v Georgia, 30 US (5 Pet) 1 (1831) (‘Cherokee’)
Coe v Commonwealth  HCA 68 (‘Coe’)
Cooper v Stuart  14 App Cas 286, 291(‘Cooper’)
Delgamuukw v British Columbia  3 SCR 1010 (‘Delgamuukw’)
Haida Nation v British Columbia (Minister of Forests)  3 SCR 511  (‘Haida’)
Johnson & Graham's Lessee v McIntosh, 21 US (8 Wheat) 543, 573 (1823) (‘Johnson’)
Mabo v Queensland [No. 2] (1992) 175 CLR 1, 31 (‘Mabo’)
Regina v Symonds  NZPCC 387
Re Ninety-Mile Beach  NZLR 461
R v Sparrow  1 SCR 1075, 1103 (‘Sparrow’)
Sioui v Quebec (Attorney General)  1 SCR 1025, 1052–53 (‘Sioui’)
Tsilhqot’in Nation v British Columbia  2 SCR 257 (‘Tsilhqot’in)
Wi Parata v Bishop of Wellington  3 NZ Jur (NS) 72 (‘Wi Parata’)
Worcester v Georgia, 31 US (6 Pet) 515 (1832) (‘Worcester’).
Treaty of Waitangi Act 1975 (NZ)
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