A reconciliation without recollection? : an investigation of the foundations of Aboriginal law in Canada

Nichols, Joshua 1978- (author.).

Summary: "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. (The Centre for International Governance Innovation is an independent, non-partisan think tank with an objective and uniquely global perspective. Our research, opinions, and public voice make a difference in today's world by bringing clarity and innovative thinking to global policy making. By working across disciplines and in partnership with the best peers and experts, we are the benchmark for influential research and trusted analysis.)"--

Record details

ISBN: 9781487521875 (paperback)
Physical Description: xxx, 376 pages ; 23 cm
print
Publisher: Toronto : University of Toronto Press, [2020]
Copyright: ©2020

Content descriptions

Bibliography, etc. Note:

Includes bibliographical references (pages 359-371) and index.

Formatted Contents Note:

Machine generated contents note: pt. 1 Reconciliation without Recollection -- 1.1. Reconciliation in Canadian Jurisprudence -- 1.2. Reconciliation as Picture Thinking -- A. Historicism -- B. Ship of State -- 1.3. History, Law, and Legitimacy -- 1.4. Problem of Reconciliation as Problem of Foundations -- 1.5. Genealogy of the Indian Act -- pt. 2 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. Science of Savage Character: The Uncivilized and Mills 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 -- pt. 3 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. Indian Question and the Dominion -- 3.3. Six Nations Status Case -- A. Six Nations of the Grand River -- B. League of Nations and the Mandate System -- C. Documents -- 3.4. Building Crisis of Legitimacy -- pt. 4 Law without Measure for a Land without Citizens: The Indian Act in Canadian Jurisprudence -- 4.1. 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. Theory of Enclaves -- D. Uncertain Measure of Indianness -- E. Section 88 and Provincial Law -- 4.2. Definition of Indians and the Authority of Bands -- A. Legislative Origins -- B. Judicial Definition of Indians -- C. 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) -- pt. 5 Era of Reconciliation, an Era of Indirect Rule: From the White Paper to the Full Box of Rights -- 5.1. Hidden Player: Policy from Colder to the Indian Act, 1985 -- A. Line One: Legislative Renovation -- B. Line Two: Land Claim Agreements -- C. Line Three: Constitutional Change -- D. Penner Report -- E. Problem of Implementing the New Relationship -- F. 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.