The enduring legacy of the doctrine of discovery: a comparative critique of the Dakota Access Pipeline in the USA, the Site-C dam in Canada and the Adani mine in Australia

This thesis is based on the premise that the Doctrine of Discovery explicitly and tacitly underpinned the colonisation of the USA, Canada and Australia. Elements of the Doctrine, including first discovery, civilisation, Christianity, pre-emption, native title, limited sovereign and commercial rights, and conquest, have been used recurrently by the Crown and by subsequent governments to extinguish Indigenous rights and cultures, dispossess them of their lands and undermine their sovereignty, self-determination and systems of government. Some of these elements continue to be used by governments and their agencies to acquire Indigenous lands and to exploit their resources. Indigenous lands are still prime lands for the development of mines, highways, dams, pipelines and many other projects, for which Indigenous rights are ignored. This thesis draws on Indigenous perspectives that identify the continuing application of the Doctrine in the dispossession of their lands. Most notably, the rise of neoliberalism and globalisation has resulted in further dispossession through the expansion of global markets and a corresponding increase in government support for multinational corporations that seek to extract natural resources and construct mega infrastructure projects on Indigenous lands. This thesis argues that these developments have given rise to a new era, in which a Doctrine of Neo-Discovery now prevails.

To exemplify the enduring legacy of the Doctrine, this thesis examines three recent case studies in detail: the Dakota Access Pipeline in the USA, the Site-C dam in Canada and the Adani mine in Australia. While these development projects have lacked the ‘free, prior and informed’ consent and Indigenous peoples continued to struggle to have their rights recognised, the governments in these countries have different approaches towards Indigenous peoples. The differences in each government’s approach may be traced to differences in government structures, histories of dispossession and ill treatment of Indigenous peoples in each nation. Despite these differences, the outcomes for Indigenous peoples appear to be largely the same. In each case, government supported economic development in line with neoliberal and globalisation trends. While attempts have been made to challenge these developments in the courts, their power to circumvent these developments is limited either by common law precedents or by laws enacted by parliament. Further, international legal developments have not served to address the continuing negative effects of the Doctrine. In view of the limitations of current national and international legal regimes to protect and safeguard Indigenous rights, this thesis presents recommendations that could temper the enduring effects of the Doctrine across national and international levels.