Racism and the rule of law

indigenouse genocide

Consider living under a set of laws decreed by a racist theocratic dictator calling for ethnic cleansing, slavery, and cultural genocide if not outright genocide. It would probably not be the humanitarian thing to do while alternatively promoting freedom, democracy, and the ‘rule of law’. Unfortunately at its base, this is where the people of the Anglo empire – Canada, New Zealand, Australia, and their belligerent cousin, the U.S. (also the Five Eyes) – have settled their lives.

Truly settled – while the British Empire spanned the world, these countries are the main survivors of the colonial-settler nature of the British imperial quest for more land, more resources, and more power. Other colonial areas were essentially satrapies – controlled by a subservient domestic leader under British Foreign Office tutelage, or controlled by the British directly without encouraging colonial settlers. In many of the latter cases the number of indigenous people vastly outnumbered the British, resulting eventually in successful rebellions that pushed the formal British empire influence out: South Africa, the former Rhodesia (Zimbabwe), and India/Pakistan are prime examples of that.

The current Five Eyes are essentially successful colonial-settler countries having created varying systems of ethnic cleansing, apartheid, cultural and physical genocide, and have retained significant traits of their colonial past – today’s broad societal racism.

Throughout the era of western European imperialism mainstream history teaches that areas “discovered” by “explorers” belonged to certain countries through the simple right of discovery. These areas were decreed to be open for possession and the indigenous inhabitants subject to “perpetual slavery,” removal, and they and their “lands, possessions, and goods” were to be used by the discoverers for “their use and profit.”

The victim becomes perpetrator

If the indigenous people objected “we will enter your land against you with force and will make war in every place and by every means we can and are able….” and further blame the victims as “we avow that the deaths and harm which you will receive thereby will be your own blame, and not that of Their Highnesses, nor ours, nor of the gentlemen who come with us.”

“Violence becomes the instrument of its own exoneration…Your fear of our presence threatens our safety and we have come to make it safe. Secure. Irrational fear and self-defense have become the rationale for global slaughter.” [1]

Rule of Law

Consider again living under a set of laws decreed by a racist theocratic dictator calling for ethnic cleansing, slavery, and cultural genocide if not outright genocide. The Papal Bull of 1452 and a subsequent Bull, the Requerimiento of 1514, set out this set of what could be considered international law. Empires of the day, initially the Portuguese and Spanish, took this ‘law’ as promulgated by a white racist theocratic dictator and used it to rationalize their conquest of as much of the rest of the world as they could. In polite terms, it is the Christian Doctrine of Discovery and it has become embedded in the laws of many countries pertaining to all facets of governmental control over land, resources, and people.

Contemporary politicians and pundits love to use the phrase “rule of law”. They are supporting these fundamental denials of human rights as even today, 450 years later, these Papal Bulls are still referenced to impose governmental dictates in order to deny indigenous rights – and indeed as they give all lands to the “sovereign” – they are used to be able to deny all rights to the citizen as required by the state.

The U.S. Supreme Court justice Ruth Bader Ginsberg reasoned in a 2005 case that “fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign – first the discovering European nation and later the original states and the United States.” Simple really: declare the land to be owned by the reigning foreign sovereign and it is open for exploitation of all kinds, regardless of whoever lives there. However, if a previous Christian entity had already claimed the land – maybe a problem of communication in the days of sailing ships – “the prior title of any Christian” was recognized.

The case in Canada

Canada is a very strong proponent of “rule of law.” All political leaders and wannabe leaders in Canada believe their own wisdom in repeating this mantra. Unfortunately, the very “rule of law” they shout about are the laws created from the heritage of the Christian Doctrine of Discovery.

Canada has referenced earlier court cases concerning the doctrine of discovery in some of its decisions, yet only this year Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples was passed denying the policies of discovery and terra-nullius, and supporting the UN Declaration on the Rights of Indigenous People. The policies of terra nullius and the Doctrine of Discovery are now labelled “racist, scientifically false, legally invalid, morally condemnable and socially unjust.” [2]

Sounds great on paper but that is where it ends, in meaningful rhetoric stuffed inside what could lead to some important legislation; but the “rule of law”, as based on the very principles essentially annulled in C-15, continue to weave their powers across Canada.

In British Columbia there are two ongoing protests by indigenous people, one concerning the destruction of old growth forests, the other an attempt to stop the construction of a gas pipeline from passing through unceded native land. The latter is the crux of the matter, at least here in British Columbia where only a miniscule portion of provincial lands (the sovereign) have been acquired by treaty. While the Supreme Court of Canada has recognized that land title has not been extinguished in many areas, little has been accomplished within the province to negotiate fairly with the indigneous people.

Consider some domestic incidents. Within the last week, dozens of arrests of protesters – natives, journalists, and supporters – were made by a highly militarized RCMP platoon on Wet’suwet’en territory. The Alberta tar sands cover thousands of hectares of indigenous land, destroying the water, the forests, the air. Fairy Creek on Vancouver Island has become mostly an argument about climate change and deforestation, especially with old growth forests, but at its base is the element of unextinguished territorial rights.


It might be a stretch but put the two references together: the illegality of the policies of terra nullius and the Doctrine of Discovery as per Bill C-15; and the ongoing usage of the very laws created by those policies in order to support the ongoing control and extraction of land resources. It is a huge contradiction between words and action, and it is the actions that speak much louder than words.

What needs to be extinguished is the “rule of law” as determined by these ancient and racist papal doctrines. It is not likely to happen: the rights of sovereigns and large corporations over the land and people are too well embedded in the underlying culture, a racist culture from its foundation. A few token agreements may be made sporadically but the underlying nature of Canada’s domestic corporate laws, the so called ‘free’ trade regulations, and the ongoing use of militarized force to support those domains will continue.

Foreign Policy

It goes further. Canada’s foreign policy is largely determined by “racist, scientifically false, legally invalid, morally condemnable and socially unjust” policies as these policies as well reflect the “rule of law” descending from the papal bulls of centuries ago. There is no determination in Canada’s foreign policy that their support of other governments actions based on settler colonialism, militarized forces of suppression, ethnic cleansing, and the creation of apartheid societies is to be equally condemned. Nor is it ever likely to happen. Racism is built into Canada’s structures and laws as it is in most countries colonized and settled under British dominion.

Under Canada’s domestic law (Bill C-15) and current international law, settler law is null and void. Also under international law, those occupied have a right to resist that occupation (Fourth Geneva Convention). Most of western wealth is based on ethnic cleansing and genocide from the “discovered” empires of western Europe. Much cannot be changed, but reconciliation, restitution, and the true equality of all before domestic and international law need to be addressed.

[1] https://www.counterpunch.org/2021/11/26/roaming-charges-34/

[2] https://parl.ca/DocumentViewer/en/43-2/bill/C-15/third-reading

Jim Miles is a Canadian educator

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