paul mchugh on memory, history, and law in the jurisprudence of aboriginal rights


P. G. McHugh, ‘Time Whereof–Memory, History and Law in the Jurisprudence of Aboriginal Rights’, Saskatchewan Law Review 77 (2014).

We each have a personal relationship with the past, one that is utterly our own. This lecture is not a law-as-biography, but it draws upon my personal experience of the past and the impact of my LL.M. year at the College of Law in 1980-81.1 will use personal recollection of the aftermath of the decision made in Calder v. British Columbia (Attorney General) 1 as a portal to the ways in which law, history and memory engage in the jurisprudence of Aboriginal rights. I will be suggesting that there are three modes of approach towards invocation of the past, two of them disciplinary practices that are quite distinct, and one that is inherently personal. Memory, history and law occur, often overlap, if not merge, together in the jurisprudence. As a human activity, this jurisprudence lives in time. It has been on a journey through time. It has historicity. This essay will attempt to describe that historicity in very general terms. It will end with a rather scathing view of the Supreme Court of Canada’s majority judgment in Manitoba Métis Federation v. Canada (Attorney General). 2 My perspective is entirely western, predominantly that of a common lawyer and historian of constitutional thought. It is not an account of knowledge-formation and discourse inside Aboriginal culture, but it does concern the ways, past and present, in which Aboriginal people have been incorporated into Anglo-Canadian legalism.

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