I was recently asked to contribute an opinion piece on the recent discourse surrounding “the Doctrine of Discovery”. I attempted to locate the “doctrine” in context by explaining what it was (and what it wasn’t). I argued that it has little direct relevance to New Zealand history, while also acknowledging that an assertion of sovereignty over the South Island by discovery was made by Captain William Hobson in May 1840: he had however already dispatched a treaty sheet to the South Island, in conformity with Colonial Office instructions that, as far as possible, Māori consent – via treaty – was necessary to establish Crown authority in the country. I argued Aotearoa NZ’s history is defined more by treaty, and our ongoing settlements process is the primary way the country is seeking to resolve treaty breaches and historic injustices.

I also acknowledged a general (though messy) link between such ideas of European discovery and Western notions of superiority; it is right that these should be “renounced”. But I queried whether it would be meaningful for the NZ Crown to renounce a doctrine that played a minimal role in our history. My basic argument was that, to the extent that any doctrine of discovery was relevant to European, especially British, colonization, it did not of itself justify (or seek to legitimate) taking possession by force of lands already occupied. This is seen in the Admiralty instructions to Captain James Cook before his southern voyages:

Cook was also instructed to ‘observe the Genius,
Temper, Disposition and Number’ of any ‘Natives’. With
‘the Consent of the Natives’, he was instructed ‘to take
possession of Convenient Situations in the Country in
the Name of the King of Great Britain’. If Cook found any
country uninhabited, however, he should simply ‘take
Possession for his Majesty by setting up Proper Marks and
Inscriptions, as first discoverers and Possessors’.

(Waitangi Tribunal, 2014, Wai 1040, p. 37)

Since I initially posted the link, I’ve had two sets of feedback: (i) those that thought I had gone too far by saying any focus on the Doctrine of Discovery would be “side-tracking” us from our treaty/te Tiriti path; and (ii) those that cited the US case law, incorporated into New Zealand through one or two nineteenth century legal judgments.

These critiques are valid to some extent; however, I maintain that the dominant treaty narrative in our political history makes the discovery discourse somewhat of an academic point (even if some legal judgments cited it; the context of those needs separate explanation in a separate post.) Until the last few years (two decades at most) any discussion of a discovery doctrine was almost non-existent in New Zealand. (The Waitangi Tribunal’s northland report of 2014, although it discusses Hobson’s and Cook’s claims/assertions of discovery, does not identify any “doctrine of discovery” in a 500+ page report on te Tiriti.) Explaining why discovery discourse has recently acquired prominence in some quarters is another interesting story; it probably has something to do with the influence of indigenous rights discourse from North America (and the United Nations), and with the US case law of the 1820s-30s itself (which stated that a right of discovery only applied against other European states).

This is a big topic and deserves further attention in future posts. For now, here is the article, published on the Newshub website on 6 August 2023:

Opinion: Aotearoa NZ must keep pursuing treaty justice, not get sidetracked by Doctrine of Discovery | Newshub