Colonising HistoryCompiled by David Waretini-Karena for Indigenous Liberation course

Main sources from: Churchill, W. (1993). Struggle for the land: Indigenous resistance to genocide, ecocide & expropriation in contemporary North America. Maine: Common Courage Press Pgs 33-63.

The Age of Discovery

• Precipitated by Columbian voyages

• European powers were eager to obtain some portion of land emissaries were encountering

• European powers recognized need to establish a formal code of judicial standards

• This lent a patina of legality to the actions of the European Crowns

The Age of Discovery 2

• The system was envisioned to solve disputes between the European Crowns themselves

• Each vying with the others in a battle over the wealth accruing through ownership of given regions in the new world

Sanctioning of Regulatory code by the Catholic Church

• In order for any regulatory code to be considered effectively binding by all Old World Parties it was vital to have the sanction of the Catholic Church

• A theme began with a series of Papal Bulls begun by Pope Innocent IV during the late 13th Century First Crusade

• Was used to define the proper relationship between Christians & Infidels in worldly matters such as property rights

Papal Bulls• In terms of content, the bull is

simply the format in which a decree of the Pope appears.

• Any subject may be treated in a bull, and many were and are, including statutory decrees, episcopal appointments, dispensations, excommunications, apostolic constitutions, canonizations and convocations.

• The bull was the exclusive letter format from the Vatican until the fourteenth century

The Doctrine of Discovery

• 16th Century Spanish Jurists developed the Theory of the Regulatory Code into what became known as the Doctrine of Discovery

• Also an attended dogma the Rights of Conquest

• The Discovery Doctrine endorsed by the Pope evolved to hold the following as primary tenants of international law

The Doctrine of Discovery 2

The Doctrine stipulates:1. Outright ownership of land

accrued to the crown represented by a given Christian ( European) discoverer only when the land discovered proved to be uninhabited

(territorium res nullius )

2.Title to inhabited lands discovered by Crown representatives was recognized as belonging inherently to the indigenous people encountered, but rights to acquire land from, & to trade with the natives of the region accrued exclusively to the discovering Crown vis-à-vis

3. In exchange for this right the discovering power committed itself to proselytizing the Christian Gospel among the Natives

Conditions to Acquisition of Land Title 1:

5. Acquisition of land title from indigenous peoples could only occur with their consent by an agreement usually involving purchase rather than through force of arms

6. Conditions being:

Arbitrarily declining to trade with Crown representatives

7. Refusing to admit missionaries among them

8. Inflicting gratuitous violence upon citizens of the Crown

Conditions to Acquisition of Land Title 2:

• Should one or more of the three conditions be present then the Crown had the legal right to subdue native resistance & impound their property as compensation

• Land title gained prosecution of such -Just Wars was considered valid

Impact of Discovery Doctrine for European States

• England adopts a policy of entering into formal treaties with Native nations

• Recognized the sovereignty of Indigenous parties to such agreements as being equivalent to that of the respective crowns

The Doctrine of Discovery Norman Yoke Appendage

• Widely viewed as the cornerstone of modern international law & diplomacy

• Britain adopts Protestantism confronting Frances Catholicism

• Began to mark its independence from the papal regulation by adding an element of its own

• Land rights were said to rest on the extent to which owners demonstrate a willingness & ability to develop their territories in accordance with a scriptural obligation to exercise dominion over nature

• Bestows on British settlers an inherent right to dispossess native people of their land other than that which the latter might be reasonably expected to put to use i.e. cultivation

• Placed British Crown on a legal footing in which to contest the discovery rights of any European power not adhering to the requirement of not overcoming the wilderness

• Allowed England to abide by the Law and directly confront Catholic France for ascendancy in the Atlantic regions of North America

Contrapreferentum

To resolve ambiguity, use contrapreferentum i.e. where ambiguity leads to 2 reasonable interpretations, should resolve in favour of the party who did not prepare the contract i.e. the drafter loses out since they are responsible for the ambiguity

In terms of Te Tiriti O Waitangi?

International Law stipulates that when ambiguity leads to two reasonable interpretations of the Treaty

The Indigenous version prevails over the Crown version