A Reconciliation without Recollection?: An Investigation of the Foundations of Aboriginal Law in Canada

by Joshua Ben David Nichols, John Borrows (Foreword by), James Tully (Foreword by)

Overview

The current framework for reconciliation between Indigenous peoples and the Canadian state is based on the Supreme Court of Canada’s acceptance of the Crown’s assertion of sovereignty, legislative power, and underlying title. The basis of this assertion is a long-standing interpretation of Section 91(24) of Canada’s Constitution, which reads it as a plenary grant of power over Indigenous communities and their lands, leading the courts to simply bypass the question of the inherent right of self-government.

In A Reconciliation without Recollection?, Joshua Ben David Nichols argues that if we are to find a meaningful path toward reconciliation, we will need to address the history of sovereignty without assuming its foundations. Exposing the limitations of the current model, Nichols carefully examines the lines of descent and association that underlie the legal conceptualization of the Aboriginal right to govern.

Blending legal analysis with insights drawn from political theory and philosophy, A Reconciliation without Recollection? is an ambitious and timely intervention into one of the most pressing concerns in Canada.

Product Details

ISBN-13:	9781487514983
Publisher:	University of Toronto Press
Publication date:	11/20/2019
Sold by:	Barnes & Noble
Format:	eBook
Pages:	408
File size:	4 MB

About the Author

Joshua Ben David Nichols is an assistant professor in the Faculty of Law at the University of Alberta.

John Borrows is a professor of law and Canada Research Chair in Indigenous Law at the University of Victoria Law School.

James Tully is emeritus distinguished professor of Political Science, Law, Indigenous Governance, and Philosophy at the University of Victoria.

Table of Contents

Foreword
John Borrows

Foreword
James Tully

Preface
Acknowledgments

Introduction

Part 1 Reconciliation without Recollection

1.1 Reconciliation in Canadian Jurisprudence
1.2 Reconciliation as Picture Thinking
A) Historicism
B) The Ship of State
1.3 History, Law, and Legitimacy
1.4 Problem of Reconciliation as Problem of Foundations
1.5 A Genealogy of the Indian Act
   
Part 2 A Genealogy of Reconciliation: Civilizing, Extinction, and Culturalism as the Discursive Foundations of the Indian Act

2.1 Liberty and Legitimate Despotism: The Liberal-Imperialism of J.S. Mill
2.2 The Science of Savage Character: The Uncivilized and Mill’s Philosophy of History
A) Governing the Uncivilized: The Role of the Intermediate Body
B) Peace, Order, and Good Government: Mill and the Indian Question
2.3 Reading the Right of History: Universal History and the Extinction Thesis
2.4 From Enfranchisement to Reconciliation: Culturalism and Indirect Rule

Part 3 A Despotism for Dealing with Barbarians: A Survey of the Foundations of Indian Policy in Canada

3.1 Pre-Confederation to the Indian Act of 1876
A) Imperial Federalism
B) Imperial Civilizing
C) Assimilation and Indirect Rule
D) Striation or Continuity?
3.2 The Indian Question and the Dominion
3.3 The Six Nations Status Case
A) The Six Nations of the Grand River
B) The League of Nations and the Mandate System
C) The Documents
3.4 A Building Crisis of Legitimacy

Part 4 A Law without Measure for a Land without Citizens: The Indian Act in Canadian Jurisprudence

4.1 The Authority of s.91(24)
A) St Catherine’s Milling, s.91(24), and the Division of Powers
B) Interjurisdictional Immunity and s.91(24)
C) The Theory of Enclaves
D) The Uncertain Measure of Indianness
E) Section 88 and Provincial Law
4.2 The Definition of Indians and the Authority of Bands                                         
A) Legislative Origins
B) The Judicial Definition of Indians
C) The Judicial Definition of Bands
D) Custom Band Councils and the Question of Jurisdiction
4.3 Tsilhqot'in Nation and the Meaning of s.91(24)

Part 5 An Era of Reconciliation, An Era of Indirect Rule: From the White Paper to the Full Box of Rights 

5.1 The Hidden Player: Policy from Calder to the Indian Act, 1985
A) Line One: Legislative Renovation
B) Line Two: Land Claim Agreements
C) Line Three: Constitutional Change
D) The Penner Report 
E) The Problem of Implementing the New Relationship
F) The Era of Indirect Rule and the Mechanism of Deferral
5.2 Reconciliation and Implementation
A) Unsettling the Ship of State
B) Recollection without Historicism
C) Implementing Reconciliation-with-Recollection

Select Bibliography
Index

What People are Saying About This

Mark D. Walters

"In this book, Joshua Ben David Nichols investigates the idea of reconciliation through a brilliant exploration of its use and misuse in Canadian legal discourse. In eloquent and powerful terms, he argues that genuine reconciliation demands that we remember our shared histories and see in law redemptive possibilities based on the kind of intercultural dialogue and respect that shaped treaty relationships in the past. Nichols has made a truly significant contribution to the understanding of reconciliation in Canada today."

Sarah Morales

"One of the major strengths of A Reconciliation without Recollection? is that it highlights the interdisciplinary nature of Aboriginal law and its history in the Canadian legal context. As a result, it will appeal to a number of different academic audiences, such as those in law, history, political science, Indigenous studies, and philosophy."

Editorial Reviews

"This book is an engrossing read for those interested in Aboriginal law, Canadian history, and decolonization."

—Andrea Black, Dentons Canada LLP, Canadian Law Library Review

"One of the major strengths of A Reconciliation without Recollection? is that it highlights the interdisciplinary nature of Aboriginal law and its history in the Canadian legal context. As a result, it will appeal to a number of different academic audiences, such as those in law, history, political science, Indigenous studies, and philosophy."

—Sarah Morales, Faculty of Law, University of Victoria

"In this book, Joshua Ben David Nichols investigates the idea of reconciliation through a brilliant exploration of its use and misuse in Canadian legal discourse. In eloquent and powerful terms, he argues that genuine reconciliation demands that we remember our shared histories and see in law redemptive possibilities based on the kind of intercultural dialogue and respect that shaped treaty relationships in the past. Nichols has made a truly significant contribution to the understanding of reconciliation in Canada today."

—Mark D. Walters, Dean and Professor of Law, Queen’s University

From the Publisher

"This book is an engrossing read for those interested in Aboriginal law, Canadian history, and decolonization."

Canadian Law Library Review - Andrea Black