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Alongside this colonial legal order, a multitude of indigenous laws and legal traditions have persisted in the territories of Canada. As John Borrows writes, the earliest practitioners of law in North America were its Indigenous inhabitants.<ref>John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 301.</ref> These indigenous laws and legal traditions have been defined by their diversity, continuity, repression, survival, and adaptability.<ref name=":32">Bhatia, Amar. "We Are All Here to Stay? Indigeneity, Migration, and ‘Decolonizing’ the Treaty Right to Be Here." Windsor Yearbook of Access to Justice, vol. 13, no. 2, 2013, p. 61.</ref> While First Nations have had a limited ability to enforce their legal regimes in the face of the Canadian nation-state, that does not negate the existence of legal orders governing, among others, matters that can properly be considered (im)migration and refugee law. Bhatia writes, for example, about a number of these nations' legal principles that relate to citizenship and welcoming the other,<ref name=":32" /> such as the Dish With One Spoon wampum agreement, an Indigenous citizenship law made between Haudenosaunee and Anishinaabe nations in 1701.<ref>Craft, A. 2013. Breathing Life into the Stone Fort Treaty An Anishinabe Understanding of Treaty One. Vancouver, BC: Purich Publishing.</ref>
== Early legal restrictions on immigration ==
Returning to the point of view of western states, before the First World War (WWI) people used to enjoy a certain freedom of movement in the world and, as such, defining a refugee was not a major concern for the reigning powers.<ref>Mathilde Crepin, ''The Notion of Persecution in the 1951 Convention Relating to the Status of Refugees and its Relevance for the Protection Needs of Refugees in the 21st Century,'' Dissertation, King’s College London, 2019, <https://kclpure.kcl.ac.uk/portal/> (Accessed August 1, 2020), at page 42 of document’s pagination.</ref> In the 19th and early 20th centuries, displaced, persecuted, and poor populations in Europe and North America simply moved to new jobs and opportunities in other regions.<ref>Andreas Zimmermann (editor), ''The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary''. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, at p. 6 (para. 2).</ref> Passports,In forChetail's examplesummary, werethe notrise generallyof requiredthe for Europeannation-state and Northits Americanimplicit travelcorollary—territorial untilsovereignty—did not coincide with the Firstintroduction Worldof Warborder controls.<ref>Julia Morrisname=":41">Chetail, V. (2019). ''TheInternational ValueMigration ofLaw''. RefugeesLondon, England: UNHCROxford andUniversity thePress, Growthpage of39.</ref> theFor Globala Refugeelong Industry''time, Journalrestrictions ofwere Refugeeinstead Studies,primarily 11imposed Januaryon 2021,the https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa135internal atmovement pageof 5.</ref>both Thenationals conceptand ofnon-nationals asylumwithin beganthe toterritory growof ineach importancestate in(mainly Europefor intax thepurposes). 1800sIn ascontrast, countriesthe beganadmission toof concludeforeigners bilateralwas treatiestraditionally forviewed theas extraditiona means of criminals,strengthening butthe sawpower fitof toa excludehost fromstate such(primarily extraditionfor regimesdemographic thoseand whoeconomic hadreasons). perpetratedPassports, politicalfor crimesexample, and were hencenot abroadgenerally seekingrequired asylum.<ref>Laabidi,for AEuropean and Nacir,North R.American (2021)travel Asylumuntil Betweenthe YesterdayFirst andWorld TodayWar.<ref>Julia Morris, A''The ComparisonValue Betweenof IslamicRefugees: LawUNHCR and Internationalthe Law. ReviewGrowth of Internationalthe GeographicalGlobal EducationRefugee (RIGEO)Industry'', Journal of Refugee Studies, 11(5) January 2021, 3602https://doi-3611org. doi: 10ezproxy.48047/rigeolibrary.11yorku.05ca/10.246,1093/jrs/feaa135 at page 36075.</ref>
 
As described above, free movement across borders has long been the rule, rather than the exception, in the history of humanity, and, indeed, Canada.<ref name=":41">Chetail, V. (2019). ''International Migration Law''. London, England: Oxford University Press, page 39.</ref> Chetail summarizes the European history on this point when noting that from the 16th to the end of the 18th century, the rise of the nation-state and its implicit corollary—territorial sovereignty—did not coincide with the introduction of border controls. For a long time, restrictions were instead primarily imposed on the internal movement of both nationals and non-nationals within the territory of each state (mainly for tax purposes). In contrast, the admission of foreigners was traditionally viewed as a means of strengthening the power of a host state (primarily for demographic and economic reasons). This is not to say that these open-door immigration practices of the past resulted in historical refugees enjoying the suite of rights set out in the modern Refugee Convention. For example, as Emma Borland writes, the French Huguenots of the 17th century did not receive an entirely welcoming reception in the United Kingdom and were not granted permanent residence.<ref>Emma Borland, ''Temporal pillars of fairness: reflections on the UK's asylum adjudication regime from an original refugee-centred position'', PhD Thesis, 2020, Cardiff University, <https://orca.cardiff.ac.uk/132879/> (Accessed June 30 2021), page 38.</ref> Instead, the Huguenots kept the status of foreigner, rather than being considered ‘subjects’, and therefore only had limited rights in England at that time.<ref>Bernard Cottret, ''The Huguenots in England: Immigration and Settlement C.1550-1700'' (Cambridge University Press 1991) 53.</ref> The concept of asylum also began to grow in importance in Europe in the 1800s as countries began to conclude bilateral treaties committing to extradite criminals, which otherwise limited the freedom of individuals to abscond from one state to another. The states saw fit to exclude from such extradition regimes those who had perpetrated political crimes, on the basis that they should properly be granted asylum from prosecution.<ref>Laabidi, A and Nacir, R. (2021) Asylum Between Yesterday and Today, A Comparison Between Islamic Law and International Law. Review of International Geographical Education (RIGEO), 11(5), 3602-3611. doi: 10.48047/rigeo.11.05.246, page 3607.</ref> The laissez-faire attitude towards immigration which prevailed during most of the 19th century began to give way to greater immigration controls at the turn of the 20th century.<ref name=":41" /> Thériault notes that the emergence of restrictive immigration policies in the 20th century coincided with the emergence of the welfare system. As states became more financially involved in the welfare of their population, they became increasingly concerned with the perceived additional burden of refugees.<ref>Pierre-André Thériault, ''Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System'', April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf?sequence=2> (Accessed July 10, 2021), page 18.</ref>
 
That said, a more laissez-faire attitude towards immigration prevailed during most of the 19th century until the introduction of immigration controls at the turn of the 20th century.<ref name=":41" /> Thériault notes that the emergence of restrictive immigration policies in the 20th century coincided with the emergence of the welfare system. As states became more financially involved in the welfare of their population, they became increasingly concerned with the perceived additional burden of refugees.<ref>Pierre-André Thériault, ''Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System'', April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf?sequence=2> (Accessed July 10, 2021), page 18.</ref>
 
Canada's first ''Immigration Act,'' passed in 1869, initially reflected the laissez-faire zeitgeist by saying nothing about which classes of immigrants should be admitted and which categories should be proscribed.<ref>Valerie Knowles, ''Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015'', March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 71.</ref> However, even at that time, not all migrants were welcomed by Canadian society. While all British subjects at that time formally had the right to settle anywhere in the Empire, including the British Dominion of Canada,<ref>Alia Somani, ''Untangling the Strands of Memory: Historicizing the 1914 Komagata Maru Incident and the Concept of Refugeeness'', Chapter 2 in Vinh Nguyen and Thy Phu (eds.), ''Refugee States: Critical Refugee Studies in Canada'', 2021, Toronto: University of Toronto Press, <https://tspace.library.utoronto.ca/bitstream/1807/106645/1/Refugee_States_UTP_9781487541392.pdf> (Accessed July 17, 2021), Page 55.</ref> as Jan Raska describes it, the Canadian government admitted migrants based on prevailing sociocultural, economic, and political views of the ‘desirable’ immigrant.<ref name=":20">Jan Raska, ''Canada’s Refugee Determination System'', Canadian Museum of Immigration at Pier 21, August 21, 2020, <https://pier21.ca/research/immigration-history/canada-s-refugee-determination-system> (Accessed January 1, 2021). </ref> This includes those who would today be termed refugees, as exceptions to the country’s immigration restrictions were generally not made based on the reason why an individual wished to depart their home state. As James Hathaway puts it, "what mattered was not the motive for immigration, but rather the immigrant's potential to contribute to the development of Canada".<ref>Hathaway, James C., 1988. "Selective Concern: An Overview of Refugee Law in Canada", ''McGill Law Journal'' 33, no. 4: 676-715, at 679.</ref>
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In response to an appeal from the International Committee of the Red Cross,<ref>Shauna Labman, ''Crossing Law’s Border: Canada’s Refugee Resettlement Program,'' 2019, UBC Press: Vancouver, page 19.</ref> Member states of the League of Nations approved the creation of a refugee office in 1921 and appointed Fridtjof Nansen as the first High Commissioner for Refugees.<ref name=":31">Peter Gatrell, Anindita Ghoshal, Katarzyna Nowak & Alex Dowdall (2021) ''Reckoning with refugeedom: refugee voices in modern history'', Social History, 46:1, 70-95, DOI: 10.1080/03071022.2021.1850061 . </ref> In 1922, Nansen created the so-called 'Nansen Passport' for Russian refugees.<ref>Andreas Zimmermann (editor), ''The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary''. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, at p. 6 (para. 1).</ref> This was an international identity certificate facilitating the movement and resettlement of refugees uprooted by the events of World War I, the Russian revolution, and the Armenian genocide in Turkey. This institutional innovation provided several million post-WWI European refugees with a way to seek protection and assistance.<ref name=":31" /> It has also been pinpointed as the beginning of international refugee law.<ref>Julia Morris, ''The Value of Refugees: UNHCR and the Growth of the Global Refugee Industry'', Journal of Refugee Studies, 11 January 2021, <nowiki>https://doi-org.ezproxy.library.yorku.ca/10.1093/jrs/feaa135</nowiki> at page 8.</ref> In 1925, the Refugee Service of the International Labor Organization (ILO) took on responsibility for issuing these Nansen Passports. Five years later, the League of Nations entrusted this humanitarian aspect of refugee work to the Nansen International Office for Refugees, or International Refugee Office for short.<ref>Shauna Labman, ''Crossing Law’s Border: Canada’s Refugee Resettlement Program,'' 2019, UBC Press: Vancouver, page 20.</ref><ref>Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. ''International Migration Review'', ''28''(2), 281–306. <nowiki>https://doi.org/10.1177/019791839402800203</nowiki> at page 284.</ref>
 
Thériault states that at first it was generally assumed that the refugee problem was temporary and states voluntarily afforded refugees relatively generous benefits. However, by the late 1920s, European states began to recognize the enduring nature of the refugee problem and increasingly refused to integrate refugees. This led to a shift in international refugee law and the adoption of agreements that imposed substantial obligations on states - agreements that very few states were willing to subscribe to.<ref>Pierre-André Thériault, ''Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System'', April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf?sequence=2> (Accessed July 10, 2021), pages 21-22.</ref> Canada, for one, refused to endorse any of these international initiatives aimed at aiding refugees. Canada did not sign the 1922 or 1924 arrangements regarding the issuance of the Nansen Passport to Russian and Armenian refugees.<ref>Pierre-André Thériault, ''Settling the Law: An Empirical Assessment of Decision-Making and Judicial Review in Canada's Refugee Resettlement System'', April 2021, Ph.D Thesis, Osgoode Hall Law School, York University, <https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/38504/Theriault_Pierre-Andre_2021_PhD_v2.pdf> (Accessed July 10, 2021), page 89.</ref> The Canadian government steadfastly refused to recognize the Nansen Passport on the basis that Canada would only accept such passport bearers if they were returnable to another country in the event that they became criminals or insane, something that Kaprielian-Churchill describes as a smokescreen and means of rejecting refugees.<ref>Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. ''International Migration Review'', ''28''(2), 281–306. <nowiki>https://doi.org/10.1177/019791839402800203</nowiki> at page 281.</ref> In fact, even once other countries strove to accommodate the Canadian demand for returnability, Canadian officials continued to refuse refugees, finding other grounds for rejection.<ref>Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. ''International Migration Review'', ''28''(2), 281–306. <nowiki>https://doi.org/10.1177/019791839402800203</nowiki> at page 290.</ref> In 1931, Canadian officials spoke with pride that only "a dozen refugees" had been admitted to Canada on the League of Nations' Nansen Passport.<ref name=":19">Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. ''International Migration Review'', ''28''(2), 281–306. https://doi.org/10.1177/019791839402800203 at page 297.</ref> In order to address the fact that the agreements underpinning the Nansen Passport lacked the status of treaty law,<ref>Andreas Zimmermann (editor), ''The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary''. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, at p. 13 (para. 26).</ref> the League of Nations convened an international conference in 1933 to negotiate a ''Convention Relating to the International Status of Refugees''. Canada neither attended the conference nor subscribed to the ensuing agreement.<ref>Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. ''International Migration Review'', ''28''(2), 281–306. <nowiki>https://doi.org/10.1177/019791839402800203</nowiki> at page 291.</ref>
 
The stark limits on Canada's willingness to take in refugees can be illustrated by looking at the main refugee groups that sought sanctuary during this period. As Irving Abella and Petra Molnar write, xenophobia and anti-semitism permeated Canada and "there was little public support for, and much opposition to, the admission of refugees [to the end of the Second World War]".<ref name=":6" /> For example, in the 1930s Canada restricted the admission of European Jews who sought safe haven from antisemitism and the emergence of fascism in Germany, but welcomed Sudeten Germans from Czechoslovakia in search of refuge given that they were considered to be more "desirable" immigrants.<ref name=":20" /> Armenian refugees were also subject to Canada's exclusionary policies. The Ottoman Empire began the mass killing, relocation, and deportation of its Armenian population in 1915. This claimed more than 1 million lives and resulted in more than half a million displaced persons. While 80,000 Armenian refugees would receive sanctuary in France, and 23,000 in the United States, fewer than 1,300 were admitted to Canada.<ref>Ninette Kelley and Michael J. Trebilcock. ''The Making of the Mosaic: A History of Canadian Immigration Policy''. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 205.</ref>
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