Aboriginal Legal Service of Western Australia Limited

The Doctrine of Discovery

19 November 2010, University of New South Wales

National Indigenous Policy and Dialogue Conference

Presented by Ms. Tammy Solonec, Managing Solicitor

Law and Advocacy Unit, Aboriginal Legal Service of Western Australia (ALSWA)

and

Mr Les Malezer, Foundation for Aboriginal and Islander Research Action (FAIRA). 

 

The Indigenous Peoples Organisation (IPO) network of Australia presented an intervention on the Doctrine of Discovery at the United Nations Permanent Forum on Indigenous Issues (UNPFII) in April 2010. At that Forum, it was declared that the theme for the 2012 UNPFII would be the Doctrine of Discovery and Articles 28 (restitution) and 37 (treaties and agreements) of the Declaration on the Rights of Indigenous Peoples. This seminar was developed as a strategy to assist the IPO network of Australia in their preparations for 2012.

The Doctrine of Discovery is similar to Terra Nullius, with its basis in US law. It is most closely linked to the 1823 US case of Johnson v McIntosh. The Doctrine can be traced back to a series of Papal Bulls from the 1400s which sanctioned Christian explorers including Christopher Columbus to colonise and exploit non-Christian nations and claim their land for themselves. This became known as the Law of Nations.

Johnson v McIntosh was used as reasoning to declare a treaty made between the Port Phillip Association and a delegation of Aboriginals over what is now Melbourne void. This resulted in a proclamation by NSW Governor Bourke in 1835 prohibiting anyone other than the Crown from entering treaties with Aboriginal peoples in Australia. This proclamation articulated the legal principle of Terra Nullius, which was enshrined into Australian law by the Privy Council in the 1889 case of Cooper v Stuart.

The Doctrine of Terra Nullius became a morphed and more extreme version of the Doctrine of Discovery and was not overruled until the 1992 case of Mabo v State of Queensland. However, the legacy of Terra Nullius remains with the Crown retaining the underlying sovereignty of all land in Australia.

The Papal Bulls that sanctioned the invasion and exploitation of Indigenous peoples lands all around the world are still valid. The US decision of Johnson v McIntosh has not been overruled. Johnson v McIntosh continues to be relied on around the world including in Australian post Mabo decisions.

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