Barrie Davis: The Doctrine of Discovery Essay

In recent years, a previously little-known principle called the Doctrine of Discovery from the Age of Discovery has been added to Maori grievances. 

It is said the Doctrine originated in 15^th century papal bulls, that it is present in New Zealand law and that it must be removed. 

In particular, the recent Maranga Mai! report claims New Zealand was colonized under the authority of the Doctrine, that the Doctrine was a factor to the impact of colonization on Maoris, and that rejecting the constitutional application of the Doctrine is central to establishing co-governance.

 

At face, that seems unlikely given that until recently most of us had not heard of the Doctrine of Discovery. 

Nevertheless, a faction of our intelligentsia claims that the application of the Doctrine in New Zealand can be traced back through legal history to the papal bulls. Yet, on the other hand, some academics say such arguments are little more than a conspiracy theory. 

With an impending election, and David Seymour proposing a referendum on the Treaty and co-governance, knowledge and understanding of this issue is a useful part of an informed vote. 

This article introduces the arguments for the opposing claims, considers their veracity, the media coverage and the implications, and offers a conclusion.

On 30 March 2023, the Vatican issued a repudiation of the Doctrine of Discovery saying, in part:

… the Church has heard the importance of addressing the concept referred to as the “doctrine of discovery.” … Certain scholars have argued that the basis of the aforementioned “doctrine” is to be found in several papal documents, such as the Bulls Dum Diversas (1452), Romanus Pontifex (1455) and Inter Caetera (1493). The “doctrine of discovery” is not part of the teaching of the Catholic Church. … Pope Francis has urged: “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 Catholic Church therefore repudiates … what has become known as the legal and political “doctrine of discovery”. 

On 3 April, The Dominion Post published “Rejection of Catholic policy ‘good first step’,” by Tom Hunt. The article says, “The Vatican's rejection of a 15th century policy, which allowed the ‘conquest, colonisation and subjugation’ of indigenous people including Māori, is being seen as a small start on a long road of amends. The so-called Doctrine of Discovery was a series of papal declarations in the 1400s that the Canadian Museum for Human Rights said ‘provided religious authority for Christian empires to invade and subjugate non‐Christian lands, peoples and sovereign nations, impose Christianity on these populations, and claim their resources’. The Vatican on Thursday repudiated the doctrine.” The article quotes activist Tina Ngata as saying, “What we really want is for them to take ownership of the impacts of the doctrine and work to reverse the ideology of white supremacy it initiated. The Crown here in Aotearoa also needs to reject the doctrine and remove its application in our legal frameworks.”

But is that true? Did the 15^th century Catholic Doctrine of Discovery really allow the conquest, colonization and subjugation of Maori, and is it applied in New Zealand law today? Whereas the Dominion claimed the “Doctrine of Discovery was a series of papal declarations”, the Vatican did not revoke the bulls and instead issued a “repudiation of the doctrine of discovery”, saying the doctrine “is not part of the teaching of the Catholic Church”. But even if it was, its application in New Zealand seems unlikely as Henry VIII famously separated the Church of England from papal authority in the 16^th century. The Act of Supremacy 1558 established the English monarchs as the head of the state and Church of England, a title still held by the British monarch. New Zealand was colonized by the British after the visit by Cook in the 18^th century and has the British monarch as head of state, thereby separating New Zealand from the authority of the Pope.

More compelling is that the claim has been refuted by academic historian Paul Moon who has written a score of books on New Zealand history. Moon’s central complaint is that the legal argument for application of the Doctrine in New Zealand trumps the historical facts. According to Moon, “the approach to the Doctrine of Discovery’s purported role in the country’s colonisation depends more on an evidentiary chain that connects the 1493 Papal Bull directly with particularly nineteenth-century British colonial policy – an evidentiary chain that has too many missing links to allow for the connection to have any basis in fact”. Moreover, Moon is not alone: Academic lawyer Paul McHugh also assures us, “From the first, the English aspired to place the legality (for they believed it was a matter of law) of any imperium [imperial power, sovereignty] the Crown might acquire over the non-Christian societies of the New World on a higher ground than conquest or unilateral assertion (as in the vilified Papal Bull Inter Caetera of 1493).” That is, an outcome of Britain separating from papal authority by an Act of Supremacy in 1558, was that the English positioned their approach to colonialism above the papal bull, which they derisively disparaged as a dogmatic, one-sided statement of belief.

This is an important issue. The Human Rights Commission published “Maranga Mai! The Dynamics and Impacts Of Colonisation, Racism, and White Supremacy upon Tangata Whenua” in 2022. The Marangi Mai! report links the Doctrine with co-governance and claims it “Charts a harrowing 182-year narrative history of the impact that colonisation, the Doctrine of Discovery, racism and white supremacy has had on tangata whenua”. “New Zealand was colonised by the British Crown under the authority of the Doctrine of Discovery” and it “remains the authority by which Aotearoa was first colonized”. Maranga Mai! further says, “The reliance on the Doctrine of Discovery, to validate the New Zealand colonial state, must also cease alongside a transition to recognise Te Tiriti o Waitangi as the rightful source of kāwanatanga legitimacy in Aotearoa.” “The principal recommendation of Maranga Mai! tasks the government with committing to constitutional transformation and establishing co-governance … Central to this reform would be the government condemning and rejecting the constitutional application of the Doctrine of Discovery to Aotearoa…”

Co-governance is an election issue and if voters accept that the Doctrine has not been applied in New Zealand, the case for co-governance is weakened. That is a topic for public debate which needs to have happened before the election if we are to cast an informed vote.

The ‘Evidentiary Chain’ 

Here I consider the purported evidentiary chain of a legal argument from the Doctrine of Discovery to its implementation in New Zealand as an introduction to Professor Moon’s response from both legal and historical perspectives. Links to his introductory video and two recent journal articles on the topic are given below: the 2023 article is more accessible and the 2022 article more detailed. If you think Moon is correct, that the Catholic Doctrine of Discovery was not applied in New Zealand, you may also like to wonder what is meant when it is claimed that its application should be removed from our ‘legal frameworks’.

The legal argument is outlined by Tina Ngata in “James Cook and the Doctrine of Discovery” as follows:  

The Doctrine of Discovery (also known as the Doctrine of Christian Discovery) is an international legal concept and Christian principle, that is borne out a number of catholic laws (called “papal bulls”) originating out of the Vatican in the 15th and 16th centuries. It gave the monarchies of Britain and Europe the right to conquer and claim lands, and to convert or kill the native inhabitants of those lands... 

One of the most famous court-cases in New Zealand legal history is Wi Parata vs The Bishop of Wellington 1877. You can find the details out here [Wikipedia, s.v. “Wi Parata v Bishop of Wellington”], but it’s impact was huge for New Zealand law, in that it famously declared the Treaty of Waitangi ‘a simple nullity’ and found that the only valid title to land was Crown title. This finding, by Judge James Prendergast, relied upon a precedent case from the USA: Johnson vs McIntosh which invoked the Doctrine of Discovery. 

What Prendergast more fully said was: 

So far indeed as that instrument purported to cede the sovereignty – a matter with which we are not directly concerned – it must be regarded as a simple nullity. No body politic existed capable of making cession of sovereignty, nor could the thing itself exist. So far as the proprietary rights of the natives are concerned, the so-called treaty merely affirms the rights and obligations which, jure gentium, vested in and devolved upon the Crown under the circumstances of the case. 

Hence, in The Treaty of Waitangi in New Zealand’s Law and Constitution (2008), Matthew Palmer says, “Prendergast was concerned to deny the validity of the Treaty at international law, and found instead that ‘the title of the Crown to the country was acquired, jure gentium, by discovery and priority of occupation’.” Jure gentium or law of nations is a concept of international law within the ancient Roman legal system and Western law traditions. It is customary law thought to be held in common by all Western peoples or nations in compliance with standards of international conduct. Robert Miller and Jacinta Ruru (2010) have claimed that by the time of the 1493 Inter Caetera papal bull, discovery followed by occupation granted European monarchs ownership rights. So it may be that the Vatican provides an example of such a Western law tradition and that the papal bulls are derived all or in part from the ancient Roman jure gentium. That does not entail that the bulls determined British colonial policy, but that jure gentium was a common source to both. Kent McNeil (2016), however, disagrees with Miller and Ruru saying, “it is not apparent that such a rule was ever part of the European law of nations.” So what the Dominion article referred to as the Catholic Doctrine of Discovery was at best a convention or generic principle by which competing European nations claimed sovereignty and proprietary rights during the Age of Discovery. 

Furthermore, when Ngata complains that Prendergast found “the only valid title to land was Crown title”, she did not acknowledge there are two kinds of Crown interests in land according to English law and international practice: the territorial interest or underlying title, and the property or ownership interest. Alison Quentin-Baxter and Janet McLean (2017) explain that the arrangement originated in feudal England long before the papal bulls of the 15th and 16th centuries. The former territorial interest or underlying title is associated with the monarch’s right of jurisdiction and sovereignty. In New Zealand, consequent to the Land Claims Ordinance Act 1841, it includes that the Crown holds underlying title which means the Crown is the source of all title except Maori customary title, and is the owner of unoccupied lands. The arrangement has since been revised; for example by the Marine and Coastal Area Act 2011. In any case, Crown title does not preclude the Crown, Maoris or anyone else from owning land according to the latter property interest.

Prendergast also quoted from the Whig Secretary of State for the Colonies, Lord Normanby’s 14 August 1839 instructions to William Hobson, which included the government's policy for the sovereignty of New Zealand, saying: 

His Lordship writes:- 

We acknowledge New Zealand as a sovereign and independent State, so far at least as it is possible to make such acknowledgment in favour of a people composed of numerous, dispersed, and petty tribes, who possess few political relations to each other, and are incompetent to act, or even to deliberate in concert. 

Prendergast then claims, “Such a qualification nullifies the proposition to which it is annexed”, by which he meant that Normanby contradicted himself and that the Maoris had not established a sovereign state. Regarding the exclusive right of the Crown to acquire land, and without mentioning a Catholic Doctrine of Discovery, he says the Crown was compelled to assume “these rights and duties which, jure gentium, vest in and devolve upon the first civilised occupier of a territory thinly peopled by barbarians without any form of law or civi1 government.” 

Prendergast believed that jure gentium applied because Maori had no sovereignty or customary property rights, lacking both a treaty-making capacity and a “regular system of territorial rights” and “definite ideas of property in land”. He claimed sovereignty of the country was acquired by discovery and priority of occupation, under jure gentium, rather than the Catholic Doctrine of Discovery. Had Prendergast wanted to base his ruling on a Catholic Doctrine of Discovery or papal bulls, he would have said so; yet he did not mention it. The Wi Parata case, then, seems to be an example of a missing link in the evidentiary chain mentioned by Professor Moon. So, is the Pope’s repudiation of the Doctrine relevant to New Zealand? 

Tina Ngata says it is when she further writes that Wi Parata is predicated on the US Johnson v McIntosh: 

In this case, US Chief Justice John Marshall repeatedly cited the Discovery Doctrine ... In using this US case as a precedent, Judge Prendergast inserted the Doctrine of Discovery into New Zealand law, and these findings continued to then be used as precedent and be supported by New Zealand judges in the denial of Māori rights and the alienation of Māori land right up to the current day. 

However, regarding Maori ownership of land, Matthew Palmer says, “As common law, made by judges, the law of aboriginal title has existed for at least 200 years. It was given classic expression in judgements by the great United States Chief Justice Marshall in the early nineteenth century. The New Zealand Supreme Court judgement in R v Symonds recognised this body of law in 1847.” R v Symonds (The Queen v Symonds) incorporated into New Zealand law that the land rights of indigenous peoples to customary tenure continue after the assumption of sovereignty under settler colonialism. 

When considering Maori proprietary rights and sovereignty, Prendergast also deferred to Queen v Symonds, but again, note that it is with regard to law of nations or jure gentium: 

Our view of this subject is in accordance with previous decisions of this Court. In the case of the Queen v. Symonds, both Judges cite and rely upon the American authorities to which we have referred. Thus it is manifest that in their apprehension, the case of the Maoris, like that of the Indian tribes of North America, falls within those rules of the law of nations to which we have adverted [referred]. 

In 1840 NSW Governor George Gipps, who had some input into the development of the Treaty, and later the New Zealand Company which promoted organized colonization, drew from the US law and maintained that Maoris did not own land but had a right of use limited to occupied land. Gipps and The New Zealand Company argued that by reason of sovereignty, ownership resided with the Crown which also had exclusive right to purchase occupied land from the Maoris. However, that argument was rejected by the British government which Ned Fletcher claims was “sensitive to contemporary humanitarian anxiety about the impact of colonization on native peoples”.

Government policy was determined by the Colonial Office which was dominated from 1836 to 1847 by the humanitarian lawyer Sir James Stephen, Permanent Undersecretary of State for Colonies and brother-in-law of slave reformer William Wilberforce. Stephen had previously contributed to the Slavery Abolition Act 1833, passed two years before the Maoris began the 1835 to 1860 genocide of the Morioris by slavery and cannibalism. In a minute to Robert Vernon Smith, 28 July 1840, Stephen wrote that Johnson v McIntosh was unjust and had no application in New Zealand:

The case of Johnson and Mackintosh … shows that the whole territory over which those [Indian] tribes wandered was to be regarded as the property of the British Crown in right of discovery and of conquest – and that the Indians were mere possessors of the soil on sufferance. 

Such is American law. British Law in Canada is far more humane, for there, the Crown purchases of the Indians, before it grants to its own subjects...

The two cases [Maori and American Indians] seem to me altogether dissimilar, and the decision of the Supreme Court of the United States, though it may be good American Law, is not the Law we recognize and act upon on the American Continent. 

The Johnson v McIntosh case was a land dispute after Thomas Johnson, a Supreme Court Justice, bought land from Native Americans in the Piankeshaw tribe. The federal government gave William McIntosh a land patent to allegedly the same land, although in reality the properties were actually separate. Johnson’s descendants inherited the land after Johnson's death and leased it to individuals who brought the action against McIntosh. So the parties brought this litigation to obtain a general judgment on priority rights to property. Ruling that the Native American tribe did not have the right to transfer the title to the land, the federal district court held that Johnson's initial purchase and the subsequent inheritance of title were invalid. The ruling means that land transfers from Native Americans to private individuals are void. When a tract of land has been acquired through conquest, and the property of most people who live there arise from the conquest, the people who have been conquered have a right to live on the land but cannot transfer title to the land. 

Paul Moon (2022) makes two comments regarding the Johnson v McIntosh case by John Marshall:

First, The Doctrine of Discovery was not predicated on the 1493 papal bull:

In addressing the Doctrine of Discovery (or more accurately, the generic principle, as it was effectively characterised in the Court’s decision), Marshall made no mention of the Doctrine being predicated on the 1493 Papal Bull. On the contrary, the Court determined that the Doctrine had emerged primarily from a practical arrangement between European powers engaged in colonising North America, by which ‘discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession’. The Court further noted – in a more explicit distancing from the 1493 Papal Bull – that ‘Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States all show that she placed in on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title.’

Presumably Moon refers here to jure gentium, which I described above as a ‘convention’ and he describes as a ‘generic principle’ and a ‘practical arrangement’.

Second, the determinations of the Johnson v. McIntosh case applied only to the United States:

Marshall was explicit that whatever principles or doctrines the Chief Justices were making their determination on applied only to the area of the United States. The geographical confinement of this judgment is critical, because if principles drawn from it are to be applied to any other geographical region outside of the United States, then those undertaking that application have the burden of establishing a clear and incontestable chain of evidence with respect to such principles or doctrines being given effect in the territories they are addressing. There is also the accompanying requirement to verify the link between the original papal Doctrine of Discovery and, in the case of New Zealand, its application to eighteenth- and nineteenth-century British foreign policy on the country.

A further problem with the case is that Chief Justice John Marshall (1755-1835) had large real estate holdings (as did his family and friends) that would have been affected if the case were decided contrary to those interests. Rather than remove himself from the case, however, in a unanimous Supreme Court opinion, Marshall found that only the government, rather than the Native American tribes, held title to the land. 

Moreover, the case has recently been criticised as being fraudulent. The litigants’ land claims did not overlap, so there was no case. McIntosh did not contest any of the facts alleged in the complaint, which became the stipulated facts of the case. Neither the district court nor the Supreme Court questioned any of these facts. It is claimed the case was the result of collusion between the two parties to have a particular effect on a court. This means that the two “sides” were only pretending to have a dispute in order to get the case before the USA court system. It seems everyone involved wanted a decision on the legal question of the validity of private purchases from the Native Americans. The Johnson v. McIntosh case was apparently a fraud. 

So, if Johnson v McIntosh is fraudulent, then its validity is doubtful; and even if it is valid it needs to be shown how it would apply outside the United States; and if that is achieved, it then needs to be shown that it is predicated on the papal bulls. If that chain cannot be shown, then the Catholic Doctrine of Discovery was not inserted into New Zealand law via Johnson v McIntosh. We have also seen that Prendergast did not directly apply the papal bulls in Wi Parata. If the Doctrine of Discovery is not in New Zealand law it cannot be removed, so Tina Ngata’s claim reported in the Dominion article that “The Crown here in Aotearoa also needs to reject the doctrine and remove its application in our legal frameworks” does not stand.

Summary and Conclusion 

I have written a story to introduce Moon’s claim that the role of the Doctrine of Discovery in Britain’s intervention in New Zealand has not been demonstrated. I have shown that the purported connection between the papal bulls, which the Dominion article says comprise the Doctrine, and British colonial policy is lacking on several points. Moon’s overarching complaint, which I have not explored here, is that the legal argument trumps the historical facts of the Doctrine of Discovery. He instead says that “the historical evidence militates so strongly against claims that it played any role at all in Britain’s intervention in New Zealand.” “Certainly, Britain’s intervention in New Zealand was never predicated on the two essential tenets of the Doctrine of Discovery: the arbitrary assertion of territorial sovereignty over a colony; and the subjugation of that territory’s indigenous population.” “… for historians working in the field of New Zealand’s colonisation, arguments about the Doctrine come across as little more than a latter-day conspiracy-theory…”

The ‘Doctrine of Discovery’ is being trained into the public psyche by repetition as an historic factor to supposed contemporary economic and social inequality. For example, the Dominion article reports Human Rights Commission indigenous rights governance partner Claire Charters as saying the Doctrine of Discovery “is a racist doctrine and a source of inequality that Maori continue to experience today.” But that claim needs to be supported with evidence which shows how, specifically, the Doctrine of Discovery affects contemporary Maoris. Just as ‘Treaty of Waitangi’ is a name for unspecified principles that radical Maoris, politicians and academics want included in New Zealand’s legislation and practices, ‘Doctrine of Discovery’ is a name for a nebulous set of yet to be identified issues they want removed. Instead, if there are specific issues, they need to be described and rationally argued based on the relevant evidence.

Absence of evidence is not evidence of absence, but the burden of providing the evidence lies with The Dominion Post which claimed the Doctrine “allowed the ‘conquest, colonisation and subjugation’ of indigenous people including Māori”. To demonstrate that claim it is necessary to address the points raised by Moon in his articles where he shows that the evidentiary chain between the papal bull and British colonial policy “has too many missing links for the connection to have any basis in fact”. If the claim about the unspecified Doctrine of Discovery is allowed to stand, a collective social belief may be created according to which anything that is said to be under the auspices of the Doctrine of Discovery is considered to be a valid Maori grievance. I conclude that references to the Doctrine of Discovery in The Dominion Post article and the Maranga Mai! report are of a biased and misleading nature used to promote a radical Maori political point of view and so constitute pro-Maori co-governance propaganda. 

References:

“Rejection of Catholic conquest and 'white supremacy' law not enough: advocate,” Stuff, Tom Hunt, 2 April 2023. 
https://www.stuff.co.nz/pou-tiaki/131672474/rejection-of-catholic-conquest-and-white-supremacy-law-not-enough-advocate  

“Reconciling the Treaty - 5 Paul Moon” Karuwhā Trust, 14 December 2022.  
https://www.youtube.com/watch?v=2vUbpZ4yF3o 

“The Doctrine of Discovery in New Zealand: A Case of Historical Disinformation,” Paul Moon, Open Inquiry, 12 April 2023.  
https://openinquiry.nz/the-doctrine-of-discovery-in-new-zealand-a-case-of-historical-disinformation/ 

“The historicity of the Doctrine of Discovery in New Zealand’s colonisation,” Paul Moon, 29 June 2022, Te Kaharoa: the Journal of Indigenous Pacific Issues 15(2): 1-39. 
https://www.tekaharoa.com/index.php/tekaharoa/article/view/399/364

Barrie Davis is a retired telecommunications engineer, holds a PhD in the psychology of Christian beliefs, and can often be found gnashing his teeth reading The Post outside Floyd’s cafe at Island Bay.