School of Library and Information Studies

LIS 596: Archives, Research and Reconciliation: Litigation of Aboriginal and Treaty Rights in Canada

Course Outline
Fall 2016 

Instructor: Frank J. Tough
Phone: 780 492-7260 (leave voice message)
Office: 1-01 Pembina Hall
Class times: November 18-20, 2016 (13 hours): Friday 6:00 p.m.–9:00 p.m., Saturday 9:00 a.m.–5:00 p.m., Sunday 9:00 a.m.–12:00 p.m.

Calendar Description:
This course will explore the relationship between archives, research and the prospects for reconciliation through the judicial recognition of rights. While a wide variety of Aboriginal and Treaty rights could be contemplated, this course will focus on land and resource claims/rights. Brief consideration will be given to the meaning of Aboriginal rights, so as to understand how archival documents contribute to legal arguments made to obtain judicial recognition of rights. In contrast to the deconstruction of archives as false colonial authorities, this course will explore the research possibilities that ensue from an alignment of legal strategies (Treaty and Aboriginal rights) with the state’s very own historical records. The sorts of content that make up government archival records will be demonstrated, and as well, the manner in which archival holdings are described (indexed, catalogued, etc.) for management and use purposes will be examined, compared, and critiqued. A brief working foundation for understanding Aboriginal and Treaty rights will be provided, no prior knowledge is assumed. Access-to-information procedures will be assessed in terms of the research required for claims for constitutional protections of Aboriginal and Treaty rights. Consideration will be given to the changes effecting archives as public institutions over the last few decades. The role of the expert witness, as a conduit between the archival commons and the Court, will be discussed. Finally, the various themes of the course will be drawn together by considering the digital information needs of the Métis Nation.

The course materials will be presented from the point of view of an experienced archival researcher; hence a healthy bit of skepticism about the science of records management will result. Operative disconnects between archives dominated by custodial priorities and archives that serve public interests will be identified, explored and discussed. The content will be conveyed by a mixed-mode instruction: preparatory readings, presentations, discussions, in-class exercises, and a final written assignment.

Course Objectives:

  1. introduced to the specialized research field and information needs of section 35 rights litigation;
  2. acquainted with the changing nature and roles of public archives; and
  3. provided with a sense of the challenges facing researchers conducting Aboriginal rights research in archives settings.


  • Archival sources and content of documents relating to Aboriginal peoples
  • Select constitutional case law relating to Section 35 Aboriginal and treaty rights
  • The role of expert witnesses in rights research and litigation
  • Access-to-information challenges to archival research
  • Digital technology and the information needs of the Métis Nation


This course will be valuable to students interested in learning how researchers make use of archival holdings and/or the relationship between archival research (identification, selection, compilation, analysis and presentation) and the litigation of Treaty and Aboriginal rights in Canada.


Course Relationships: 
No course prerequisites.

Assignments and Weighting:  

Class participation: 30%
Written assignment (due December 12, 2016): 70%
Total: 100%

Class Participation:
Learning is enhanced by participation during class. Time does not permit a true seminar approach, however, some time will be set aside to discuss key pieces of the published literature. During the class, short, small group question/answer exercises will be used to introduce topics and to reinforce content.

Written Assignment:
The ability to demonstrate the acquisition of the course content and its application will be assessed by a short (2500-3000 words) assignment.  The specific requirements will be provided in a separate handout.  


Required Readings and Other Sources:

Some reading (•) is required in order to participate in discussions during instruction times (18-20 November 2016); however, most of the sources provided below should be considered as helpful background on a topic (*) or published sources for future consideration (∞). Cursory examination of legal authorities (cases and statutes) will advance your understanding of the archival mandates, access-to-information, and Aboriginal and Treaty Rights (†). 

Time spent on becoming familiar with several online interfaces archival repositories will also enhance your classroom experience. 

Web Sites to Explore
Please develop some familiarity with the structure and functionality of the following web interfaces connecting the public and archival holdings. Some class time will be set aside to assess and compare how researcher might identifying sources online. 

Library and Archives Canada
Library and Archives of Canada Research Tool
The National Archives (UK)
Find an archive (National Archives UK)
Archives of Manitoba 
Online Finding Aid (Archives of Manitoba)
Glenbow Museum (Archives)

The following codes provide a guide for reading intensity and prioritizing: 
• readings required for class discussion (seminar)
* background readings relevant to in-class presentations (lectures)
† legal authorities (statutes and court decisions) to be skimmed and examined selectively as background
∞ suggested readings for enhanced interest

A. Archives Sources relating to Aboriginal and Treaty Rights 
* Kennedy, Patricia, “Reassembling our scattered documentary heritage,” The Archivist vol. 17, no. 6 (1990) pp. 6-8.
* Mary Ann Pylypchuk, “The Value of Aboriginal Records as Legal Evidence in Canada, An Examination of Sources,” Archivaria No. 32 (1991) pp. 51-77.
∞ Bill Russell, “The White Man’s Paper Burden: Aspects of Record Keeping in the Department of Indian Affairs, 1860-1914,” Archivaria No. 19 (1984-85) pp. 50-72.
∞ Frank Tough, Edited Documents with Introduction: “Indian Hunting Rights, Natural Resources Transfer Agreements and Legal Opinions from The Department of Justice,” Native Studies Review vol. 10, no. 2 (1995) pp. 121-167. 
∞ “Indian Treaties,” The Archivist vol. 16, no. 6 (1989).

B. Introduction to Aboriginal and Treaty Rights 
† R. v. Sparrow [1990] 1 Supreme Court Reporter 1075 [Case number 20311]
• Peter J. Usher, “Some Implications of the Sparrow Judgment for Resource Conservation and Management,” Alternatives vol. 18, no. 2 (1991) pp. 20-21.
*Brian Slattery, “Making Sense of Aboriginal Rights,” Canadian Bar Review vol. 79, no. 2 (2000) pp. 196-224. 

C. Role of Archives
† Library and Archives of Canada Act, Statutes of Canada [SC], 2004, chapter 11.
• Wendy Kramer, W. George Lovell and Christopher H. Lutz, “Pillage in the Archives: The Whereabouts of Guatemalan Documentary Treasures,” Latin American Research Review vol. 48, no. 3 (2013) pp. 153-167.
• Elise T. Freeman, “In the Eye of the Beholder: Archives Administration from the User’s Point of View,” The American Archivist vol. 47, no. 2 (1984) pp. 111-123.
• Terry Cook, “Viewing the World Upside Down: Reflections on the Theoretical Underpinnings of Archival Public Programming,” Archivaria No. 31 (1990-1991) pp. 123-134. 
* Terry Cook, “From Information to Knowledge: An Intellectual Paradigm for the Archives,” Archivaria No. 19 (1984-85) pp. 28-49.
* Ian Wilson, “Towards a Vision of Archival Services,” Archivaria No. 31 (1990-91) pp. 91-100.
∞ Terry Eastwood, “Archives, Democratic Accountability and Truth,” Better Off Forgetting? Essays on Archives, Public Policy, and Collective Memory, Cheryl Avery and Mona Homlund, eds. (Toronto: University of Toronto Press, 2010) pp.143-168.
∞ Tom Nesmith, “Archivists and Public Affairs: Towards a New Public Archival Programming,” Better Off Forgetting? Essays on Archives, Public Policy, and Collective Memory, Cheryl Avery and Mona Homlund, eds. (Toronto: University of Toronto Press, 2010) pp. 169-191.

D. The Role of the Expert Witness in Aboriginal and Treaty Rights Litigation
• Arthur J. Ray, “Creating the Image of the Savage in Defence of the Crown: The Ethnohistorian in Court,” Native Studies Review vol. 6, no. 2 (1990) pp. 13-29.
• Arthur J. Ray, “Ethnohistoircal geography and aboriginal rights litigation in Canada, Memoir of an expert witness,” Canadian Geographer vol. 55 no. 4 (2011) pp. 397-406. 
• Laurence M. Hauptman, “Going off the Reservation”: A Memoir,” The Public Historian vol. 25, no. 4 (2003) pp. 81-94.
∞ Arthur J. Ray, “Native History on Trial: Confessions of an Expert Witness, Canadian Historical Review vol. 84, no. 2 (2003) pp. 253-275.
∞ Frank Tough, Commentary: “Prof v. Prof in the Trial of the Benoit Treaty Eight Tax Case: Some Thoughts on Academics as Expert Witnesses,” Native Studies Review vol. 15, no. 1 (2004) pp. 53-72.
∞ Hamar Foster and Alan Grove, “Looking Behind the Masks: A Land Claims Discussion Paper for Researchers, Lawyers and their Employers,” University of British Columbia Law Review vol. 27, no. 2 (1993) pp. 213-255.
∞ Paula Pryce, “The Manipulation of Culture and History: A Critique of Two Expert Witnesses,” Native Studies Review vol. 8, no. 2 (1992) pp. 35-46.
∞ Brian Thom, “Aboriginal Rights and Title in Canada after Delgamuukw: Part One: Oral Traditions and Anthropological Evidence in the Courtroom,” Native Studies Review vol. 14, no. 1 (2001) pp. 1-26; and “Aboriginal Rights and Title in Canada after Delgamuukw: Part Two, Anthropological Perspectives on Rights, Tests, Infringement and Justification,” Native Studies Review vol. 14, no. 2 (2001) pp. 1-42.

E. Access-to-Information

† An Act to extend the present laws of Canada that provide access to information under the control of the Government of Canada Revised Statutes of Canada [RSC], 1985, chapter-1A.
† An Act to extend the present laws of Canada that protect the privacy of individuals and that provide individuals with a right of access to personal information about themselves Revised Statutes Canada [RSC], 1985, chapter P-21. 
† The Information Commissioner of Canada and The Minister of Industry Federal Court of Canada (13 February 2006) Docket T-421-04
† Canada (Industry) v. Canada (Information Commissioner) Federal Court of Appeal (1 June 2007) File A-107-07
* Terry Cook and Bill Waiser, “The Laurier Promise: Securing Public Access to Historic Census Materials in Canada,” Better Off Forgetting? Essays on Archives, Public Policy, and Collective Memory, Cheryl Avery and Mona Homlund, eds. (Toronto: University of Toronto Press, 2010) pp. 71-107.
* Jo-Ann Munn Gafuik, “Access-to-Information Legislation: A Critical Analysis, Better Off Forgetting? Essays on Archives, Public Policy, and Collective Memory, Cheryl Avery and Mona Homlund, eds. (Toronto: University of Toronto Press, 2010) pp. 39-59.

F. Métis Nation Rights and Digital Information 

∞ Thomas Isaac, A Matter of National and Constitutional Import: Report of the Minister’s Special Representative on Reconciliation with Métis: Section 35 Métis Rights and the Manitoba Métis Federation Decision ([Ottawa]: Minister of Indigenous and Northern Affairs Canada, 2016). 
∞ Yvette Hackett, “Preserving Digital History: Costs and Consequences,” Better Off Forgetting? Essays on Archives, Public Policy, and Collective Memory, Cheryl Avery and Mona Homlund, eds. (Toronto: University of Toronto Press, 2010) pp.124-139.
∞ Frank J. Tough and Véronique Boisvert, “‘I am a half-breed head of a family …’: A Database Approach to Affidavits Completed by the Métis of Manitoba, ca. 1875-1877,” Histoires et identités métisses: homage à Gabriel Dumont / Métis Histories and Identities: A Tribute to Gabriel Dumont Denis Gagon, Denis Combet and Lise Gaboury-Diallo, eds. (Winnipeg, Presses universitaires de Saint-Boniface, 2009) pp. 141-184.
∞ Frank J. Tough and Erin McGregor, “‘The Rights to the Land May Be Transfer’: Archival Records as Colonial Text—A Narrative of Métis Scrip,” Natives and Settlers: Now and Then: Historical Issues and Current Perspectives On Treaties and Land Claims in Canada Paul W. DePasquale, ed. (Ottawa: University of Alberta Press and Canadian Review of Comparative Literature, 2007) pp. 33-63.
∞ Robert Cole and Chris Hackett, “Search v. Research: Full-text Repositories, Granularity, and the Concept of ‘Source’ in the Digital Environment,” Better Off Forgetting? Essays on Archives, Public Policy, and Collective Memory, Cheryl Avery and Mona Homlund, eds. (Toronto: University of Toronto Press, 2010) pp. 111-123.

Other Significant Supreme Court Judgments:
Calder v. Attorney-General of British Columbia [1973].
R. v. Guerin [1985]. 
R. v. Horseman [1990]
R. v. Van der Peet [1996]
Delganuukw v. British Columbia [1997].
R. v. Powley [2003].
Haida Nation v. British Columbia (Minister of Forests) [2004].
Taku River Tlingit v. Tulsequah Chief Mine Project [2004].
Manitoba Metis Federation Inc. v. Canada (Attorney General) [2013].
Tsilhqot’in Nation v. British Columbia [2014].

School of Library and Information Studies Grading Statement:
Grades reflect professional judgements of student achievement made by instructors. These judgements are based on a combination of absolute achievement and relative performance in class. The instructor should mark in terms of raw scores, rank the assignments in order of merit, and with due attention to the verbal descriptions of the various grades, assign an appropriate final letter grade.

Academic Integrity:

The University of Alberta is committed to the highest standards of academic integrity and honesty. Students are expected to be familiar with these standards regarding academic honesty and to uphold the policies of the University in this respect. Students are particularly urged to familiarize themselves with the provisions of the Code of Student Behaviour (online at and avoid any behaviour which could potentially result in suspicions of cheating, plagiarism, misrepresentation of facts and/or participation in an offence. Academic dishonesty is a serious offence and can result in suspension or expulsion from the University.

Students should also be mindful of the SLIS Copyright Policy.

Inclusive Language and Equity:

The Faculty of Education is committed to providing an environment of respect for all people within the university community and to educating faculty, staff, and students in developing teaching and learning contexts that are welcoming to all. The Faculty recommends that students and staff use inclusive language to create a classroom atmosphere in which students’ experiences and views are treated with equal respect and value in relation to their gender, racial background, sexual orientation and ethnic background. Students who require accommodations in this course due to a disability affecting mobility, vision, hearing, learning, or mental or physical health are advised to discuss their needs with Student Accessibility Services.

Recording of Lectures:
Recording of lectures is permitted only with the prior written consent of the professor or if recording is part of an approved accommodation plan.

Policy about course outlines can be found in Section 23.4(2) of the University Calendar.