Book Review: A Reconciliation Without Recollection? an Investigation of the Foundations of Aboriginal Law in Canada

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

A Reconciliation without Recollection? An Investigation of the Foundations of Aboriginal Law in Canada. By Joshua Ben David Nichols. Toronto: University of Toronto Press, 2020. xxx, 376 p. Includes bibliography and index. ISBN 978-1-4875-2187-5 (paper) $49.95; ISBN 978-1-4875-0225- 6 (cloth) $125.00; ISBN 978-1-4875-1498-3 (ePub) $49.95; ISBN 978-1-4875-1497-6 (PDF) $49.95.

Reviewed by Andrea Black
Research Specialist
Dentons Canada LLP
In CLLR 45:3

A Reconciliation without Recollection? traces the origin and history of the relationship between the British Imperial and Canadian federal governments and Indigenous nations. In this text, Nichols describes the evolution of the concept of this relationship from that of (purportedly) equal nations dealing with mutual independence and respect to the open, unilateral assertion of Crown sovereignty that was intended “from the outset” (R v Sparrow, [1990] 1 SCR 1075 at para 49).

The author uses the historical record (including legislation, policy documents, letters, and commission reports) and the works of philosophers (Kant, J.S. Mills, Wittgenstein, and others) to question the legitimacy of the claim of Crown sovereignty, which stems from the racist legal fiction of terra nullius. He further examines how Canadian case law fails to question the basis of that claim.

According to Nichols, pursuing reconciliation without understanding the relationship between the parties is charting a course using a blank map. Recalling this history un-anchors reconciliation from the foundation of Crown sovereignty and opens up a “map of possibilities of the inherent right of self-government” (p. 294).

The book comprises five parts, each one resetting the research trail to pre-confederation and working its way forward to the topic under examination. It includes a bibliography and index and makes liberal use of footnotes.

Brief forewords by John Borrows and James Tully help situate the book and highlight its importance in proposing a path forward for the parties engaged in reconciliation grounded in the history of their relationship. The preface and introduction present key concepts and sources and detail the author’s approach in his investigation.

Part 1 looks at the evolving interpretation of reconciliation in the case law and at Canadian courts’ assumptions pertaining to Crown sovereignty. Part 2 considers conceptual foundations of the Indian Act. It explores the act’s stated purposes, as well as its philosophical underpinnings, including the topics of enfranchisement, civilizing liberal- imperialism, culturalism, extinction, and reconciliation.

Part 3 describes governance and policy relating to Indigenous peoples in Canada. It addresses the creation of the first Indian Department, early legislation relating to “Indian” lands and bands, the ending of treaty presents, the replacement of traditional political systems, and policies of assimilation. It also discusses colonial rebellions, the Red River and North- West resistances, the Six Nations appeal for justice to the League of Nations, and legislation created in response to and aimed at quelling resistance.

Part 4 examines how the federal government and Canadian courts have interpreted section 91(24) of the Constitution Act, 1867. It then describes how the federal government has delegated some of its authority over “Indians” to the provinces and the consequences of that action. This Part also begins to suggest different approaches going forward, including a “living tree” interpretation of section 91(24), and a re-examination of the “enclave theory” suggested by Laskin, J in his dissent in Cardinal v Alberta (Attorney General), [1974] SCR 695.

Part 5 considers the government and courts’ attempts to grapple with the issue of legitimacy after the existence of the inherent rights of Indigenous nations are acknowledged in Calder v British Columbia (Attorney General), [1973] SCR 313. It touches on modern land claims agreements, the Constitution Act, 1982, and the Penner Report. Nichols relates the quest for Aboriginal self-governance to international decolonization and speculates on how implementing the principles of the United Nations Declaration of the Rights of Indigenous Peoples could affect reconciliation efforts. Finally, he considers what mutual reconciliation with recollection might look like.

The book assumes a familiarity with the legal instruments and cases on this topic. In places, it discusses these without providing the relevant wording or background needed to understand them. Occasionally it gets bogged down in philosophical discussions, though in most instances these concepts complement the text very effectively.

Overall, this book is an engrossing read for those interested in Aboriginal law, Canadian history, and decolonization. I would strongly recommend it to any lawyers, judges, or policy analysts involved in the interpretation of section 91(24) or engaged in dealings between the Crown and Indigenous Peoples.

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