Leclair on L'évolution constitutionnelle de 1760 à 1867: progression pour les uns (Canadiens français) et regression pour les autres (peoples autochtones)

Jean Leclair, University of Montreal Faculty of Law, has published L'évolution constitutionnelle de 1760 à 1867: progression pour les uns (Canadiens français) et régression pour les autres (peuples autochtones) [Constitutional evolution from 1760 to 1867: progress for some (French Canadians) and regression for others (Aboriginal peoples)] as a University of Montreal Faculty of Law Research Paper. Here is the abstract.

French abstract: Ce texte vise à présenter à un large public, et non uniquement aux experts, un récit de l’évolution constitutionnelle du Canada, et plus précisément du Québec, avant l’avènement de la fédération canadienne. Le sort des peuples autochtones dans le territoire qui deviendra le Québec est également abordé.

 

English abstract: This manuscript aims to provide a broad audience, not just experts, with an account of the constitutional evolution of Canada, and more specifically Quebec, before the advent of the Canadian federation in 1867. The fate of the aboriginal peoples in the territory that was to become Quebec is also addressed.

Download the paper from SSRN at the link.

Kirkby on Reconstituting Canada: The Enfranchisement and Disenfranchisement of "Indians": c 1837-1900 @CoelKirkby

Coel Kirkby, University of Sydney Law School, is publishing Reconstituting Canada: The Enfranchisement and Disenfranchisement of ‘Indians’, c. 1837-1900 in volume 69 of the University of Toronto Law Journal (2019). Here is the abstract.

The constitutional history of Canada and First Nations is often told as the promise fulfilled of Aboriginal rights and treaties. I will challenge this dominant story by recovering the story of the enfranchisement and disenfranchisement of ‘Indian’ subjects in the first three decades of Canadian confederation. Far from forgotten actors in a foretold play, ‘Indian’ voters were crucial to determining the outcome of three closely-contested federal elections and challenging settler ideas of the nascent Canadian nation. The question of the ‘Indian’ franchise was always embedded in competing constitutional visions for Confederation. The Canadian dream of transforming and assimilating Indigenous peoples would give way to a cynical idea of segregation under the permanent regime of the Indian Act. If the Indian franchise was the apotheosis of assimilation, its revocation marked the start of racial segregation. I juxtapose these Canadian constitutional visions with two alternative possibilities. The Anishinaabe-dominated Grand General Council accepted the franchise as part of its vision of reconciling membership in both their treaty-recognized nations and the Canadian state. The Confederacy Council of the Six Nations, in contrast, rejected the franchise as an existential threat to Haudenosaunee self-rule mediated by a treaty relationship with the Canadian and imperial governments. Recovering the constitutional contests driving Indian enfranchisement and disenfranchisement shows us of how the successful imposition of a single vision of a white democracy silenced alternative visions of a multi-national coexistence. It also reminds us of the multiplicity of constitutional possibilities for a common constitutional future.

Download the article from SSRN at the link.

McMahon on "I Lost My Talk": Indian Residential Schools, Copyright, Archives, and Commissions of Inquiry

Thomas McMahon, Independent, has published 'I Lost My Talk': Indian Residential Schools, Copyright, Archives and Commissions of Inquiry. Here is the abstract.

People give statements to commissions of inquiry, courts, administrative tribunals, police and other government bodies. Who owns the copyright in those statements? What practical value is there in copyright ownership in those contexts? This paper examines in detail the copyright issues relating to the statements that survivors of Indian Residential Schools gave to Canada's Truth and Reconciliation Commission. As related background, the paper gives a detailed review of the Supreme Court of Canada's order to destroy statements given by survivors to the Independent Assessment Process. This paper examines copyright cases from Canada, England, the United States and Australia dealing with interviews generally, statements and indigenous peoples. This paper is one of a series by the author examining the many legal issues relating to Indian Residential Schools and the Indian Residential Schools Settlement Agreement.

Download the article from SSRN at the link.

NB:  Mr. McMahon was Executive Director of the Truth and Reconciliation Commission from October 2009 to July 2010, and then served as General Legal Counsel to the Commission for the remainder of the Commission’s mandate. McMahon was previously a long-time Department of Justice Canada lawyer. Before that, McMahon was Executive Secretary of the Manitoba Aboriginal Justice Inquiry