CRITICAL ANALYSIS OF LAW WORKSHOP
Presents:
Joshua Nichols
University of Alberta
Faculty of Law
A Reconciliation without Recollection? An Investigation of the Foundations of Aboriginal Law in Canada
Tuesday, March 26, 2019
12:30 - 2:00
78 Queens Park, Room FL219(John Willis Classroom)
The Supreme Court of Canada has referred to reconciliation as the ‘governing ethos’ of Section 35, but what kind of ethos is it exactly? If we consult the case law in this area, we are immediately confronted by a puzzling series of tests and procedural checks. What is clear is that the Court has accepted the Crown’s assertion of sovereignty. The basis of this is their interpretation of Section 91(24), which reads it as a plenary grant of power over Indians and their lands. This has led them to simply bypass the question of the inherent right of self-government and to generate a constitutional framework that amounts too little more than a proportionality check on the exercise of Crown sovereignty. I argue that if we are to find a meaningful reconciliation—and not simply one that is assigned by the logic of force that resides behind the unquestioned assumption of sovereignty—then we will need to address the history of sovereignty without assuming its foundations. The problem of reconciliation and the question of sovereignty cannot be treated as if they are separate and divisible as they are constitutively related. So how are we to begin to get past limitations that the current model of reconciliation takes for granted? My project sets out to expose the limitations of the current model by following the lines of descent and association that underlie the legal conceptualization of Aboriginal sovereignty. A major part of this lineage finds legislative expression in the Indian Act. In particular, in how the act and its associated institutions operate to control the basic elements of self-government, such as membership (who is and is not an “Indian”), political structure (what is a “Band”), and jurisdiction (the meaning of s. 91(24)). These are the lines of authority and resistance that my project focuses on. I follow these lines by adopting a contextual, historical, and comparative approach. I survey the 19th century foundations of the Indian Act from its discursive context to the various changes in policy and legislation that lead to it and the crisis of legitimacy that occurs with the White Paper in 1969. I then relate this to the case law on s. 91(24) and show how law, policy and practices of governance have been animated by the understanding of the division of powers set out by the Privy Council in St. Catherine’s Milling in 1888. This serves to show that the current framework of reconciliation is predicated on an interpretation of a constitutional provision that unilaterally excludes Aboriginal peoples from having any say over how they are governed or how their lands are used. By continuing to uphold the Crown’s claim to sovereignty, legislative power and underlying title the Court is confining Aboriginal peoples to the very ‘straightjacket’ they cautioned against in the Reference re Secession of Quebec.
Joshua Nichols holds a B.A. (Hons.) In political science and an M.A. in sociology from the University of Alberta; a Ph.D. in philosophy from the University of Toronto; a J.D. from the University of British Columbia; and a Ph.D. in law from the University of Victoria. He is a member of the Law Society of British Columbia, the International Law Association and a research fellow at the Centre for International Governance Innovation (https://www.cigionline.org/person/joshua-nichols). His research centers on the deeply complicated and (all too often) conflictual constitutional relationship between Canada and Indigenous peoples. In particular, he is interested in how the notion of Crown sovereignty has become entangled with the Westphalian model of the state (i.e., the state as a politically self-contained and legally autonomous unit for a singular ‘people’ or ‘nation’). This entanglement has effectively set the boundaries of constitutional interpretation in Canadian courts and confined Indigenous peoples to the status of ‘cultural minorities’ with a limited range of Charter-analogous rights. His work addresses this problem by adopting a genealogical approach that relates the jurisprudence to the history of the British Empire, the development of Canada and the relationship with the Crown (in all of its varied manifestations) and Indigenous peoples.
For more workshop information, please contact Events at events.law@utoronto.ca
