¹ See for example, Victoria Freeman, “Toronto Has No History!” Indigeneity, Settler Colonialism, and Historical Memory in Canada's Largest City, 38(2) Urban History Rev. 21-22 (2010).Google Scholar

² On methodological nationalism, see Nina Glick Schiller, Beyond the Nation-State and its Units of Analysis: Towards a New Research Agenda for Migration Studies, in Concepts and Methods in Migration Research: Conference Reader 39, 59-65 (Karin Schittenhelm ed., 2007), available online at: http://www.cultural-capital.net (last accessed: 18 November 2012). On transculturalism and the desire for fostering global labor market membership, including discussion of Schiller, methodological nationalism and Jennifer Gordon's proposals for transnational labor citizenship, see Leah Vosko, Out of the Shadows? The Non-Binding Multilateral Framework on Migration (2006) and Prospects for Using International Labor Regulation to Forge Global Labor Market Membership, in The Idea of Labor Law 383 (Guy Davidov and Brian Langille eds., 2011).Google Scholar

³ See for example, Samuel Moyn, The Last Utopia: Human Rights in History (2010); Adolf Berle, The 20^th Century Capitalist Revolution (1954); Barry Bluestone & Bennett Harrison, The Deindustralization of America: Plant Closings, Community Abandonment, and the Dismantling of Basic Industies (1982); Aihwa Ong, Neoliberalism as Exception: Mutations in Citizenship and Sovereignty (2006); Aihwa Ong, Flexible Citizenship: The Cultural Logics of Transnationality (1999); Guy Standing, The Precariat: The New Dangerous Class (2011).Google Scholar

⁴ See e.g. Buff, Rachel, Immigration and the Political Economy of Home: West Indian Brooklyn and American Indian Minneapolis, 1945-1992 (2001).Google Scholar

⁵ See e.g. Lippert, Randy, Sanctuary, Sovereignty, Sacrifice: Canadian Sanctuary Incidents, Power and Law (2005); Sean Rehaag, Bordering on Legality: Canadian Church Sanctuary and the Rule of Law, 26 (1) Refuge 43 (2009); Carolina Berinstein, Peter Nyers, Cynthia Wright & Sima Zeheri, Access Not Fear: Non-Status Immigrants and City Services. Report prepared for the ‘Don't Ask, Don't Tell’ Campaign Toronto (2006); Erika Khandor, Jean McDonald, Peter Nyers & Cynthia Wright, The Regularization of Non-Status Immigrants in Canada, 1960-2004: Past Policies, Current Perspectives, Active Campaigns. Report prepared for the STATUS Campaign (2004).Google Scholar

⁶ See Yessy, Byl, Temporary Foreign Workers – Alberta's disposable workforce: The Six-Month Report of the AFL's Temporary Foreign Worker Advocate, Alberta Federation of Labor (AFL, 2007); Yessy Byl, Entrenching Exploitation: The Second Report of the Alberta Federation of Labor Temporary Foreign Worker Advocate (AFL, 2009); David Tilson MP, Chair, Temporary Foreign Workers and Non-status Workers, Report of the Standing Committee on Citizenship and Immigration, 40^th Parliament, 2^nd Session (2009); Naomi Alboim, Adjusting the Balance: Fixing Canada's Economic Immigration Policies, Maytree Institute (2009); Delphine Nakache & Paula Kinoshita, The Canadian Temporary Foreign Worker Program: Do Short-Term Economic Needs Prevail Over Human Rights Concerns? Study No. 5 Institute for Research and Public Policy (2010), available online at: http://ssrn.com/abstract=1617255 (last accessed: 18 November 2012). More recently, see: Fay Faraday, Made in Canada: How the Law Constructs Migrant Workers’ Insecurity (Metcalf Foundation, 2012), available online at: http://metcalffoundation.com/publications-resources/view/made-in-canada/ (last accessed: 4 December 2012).Google Scholar

⁷ Id. Google Scholar

⁸ See e.g. Board, National Energy, Enbridge Northern Gateway Project Joint Review Panel by National Energy Board and Canadian Environmental Assessment Agency, available online at: http://gatewaypanel.review-examen.gc.ca/clf-nsi/index.html (last accessed: 18 November 2012); Robert Drinkwater, Groups ask Northern Gateway pipeline hearings about possibility of Chinese investment, Windsor Star, Sep. 9, 2012, available online at: http://www.windsorstar.com/business/resources/Groups+pipeline+hearings+about+possibility+Chinese/7213255/story.html (last accessed: 18 November 2012). For incisive reports on the Joint Review and Indigenous resistance to it, see Tyler McCreary, Enbridge issued final notice of trespass by Wet'suwet'en hereditary chiefs, Northern Notes, rabble.ca, Aug. 5, 2010, available online: http://rabble.ca/blogs/bloggers/tylermccreary/2010/08/enbridge-issued-final-notice-trespass-wetsuweten-hereditary-ch-0 (last accessed: 18 November 2012). For the full column listing, see Tyler McCreary, Northern Notes, available online at: http://rabble.ca/category/bios/tyler-mccreary (last accessed: 18 November 2012).Google Scholar

⁹ Manuel, George & Posluns, Michael, The Fourth World: An Indian Reality XI (foreword by Vine Deloria, Jr., 1974).Google Scholar

¹⁰ See e.g. Scott, Colin, Beyond Taxonomies for Private Sector Authority in Transnational Regulation, Presentation (March 2012), (slides on file with author); Peer Zumbansen, The Constitutional Itch, Presentation (March 2012), (notes on file with author).Google Scholar

¹¹ See also Scott, Colin, Fabrizio Cafaggi & Linda Senden, The Conceptual and Constitutional Challenge of Transnational Private Regulation 38(1) J. of Law and Soc. 1, 11 (2011). “ …. [I]t also becomes very clear from his [Cafaggi's] contribution that there is no question of a strict public-private divide in transnational governance, but that the relationship between the public and private spheres is intertwined and is being transformed in a variety of ways.Google Scholar

¹² See for example, Zumbansen, Peer, Neither ‘Public’ nor ‘Private’, ‘National’ nor ‘International’: Transnational Corporate Governance from a Legal Pluralist Perspective 38(1) J. of Law and Soc. 50, 56-57, 69-70 (2011) (on the collapsing and colliding of public-private, state-non-state and law-non-law distinctions).Google Scholar

¹³ See above, Scott, Colin, supra note 10.Google Scholar

¹⁴ See generally Linebaugh, Peter, The Magna Carta Manifesto: Liberties and Commons for All (2008); Allan Greer, Commons and enclosure in the colonization of North America, 117(2) Am. Hist'l. Rev. 365 (2012); Michael Hardt & Antonio Negri, Commonwealth (2009), but see criticism at Mark Driscoll, Looting the Theory Commons: Hardt and Negri's Commonwealth, 21(1) Postmod'n Cult.; Elinor Ostrom, Governing the Commons: The Evolution of Instiutions for Collective Action (1990); Karin Mickelson, Co-Opting Common Heritage: Reflections on the Need for South-North Scholarship, in Humanizing our Global Order: Essays in Honour of Ivan Head 112-124 (Obiora Chinedu Okafor & Obijiofor Aginam eds., 2003); See Colin Scott, Fabrizio Cafaggi & Linda Senden, The Conceptual and Constitutional Challenge of Transnational Private Regulation 38(1) J. of l. & Soc. 1, 3-5 (2011); Lee Maracle, Toronto May Day Assembly 2011, Youtube, available online at: www.youtube.com/watch?v=FNK3KDfMrRc (last accessed: 18 November 2012).Google Scholar

¹⁵ Recent changes to the regulation of the TFWP by the Government of Canada place further faith in voluntary systems of private self-regulation. See for example, Judy Fudge & Fiona MacPhail, The Temporary Foreign Worker Program in Canada: Low-Skilled Workers as an Extreme Form of Flexible Labor (31) Comp. Lab. L. & Pol. J. 101-139 (2009); Sarah Marsden, The New Precariousness: Temporary Migrants and the Law in Canada 27(2) Can'n J. of L. & Soc. 209-229 (2012); Audrey Macklin, Foreign Domestic Worker: Surrogate Housewife or Mail Order Servant? 37 McGill L. J. 681-760 (1992).Google Scholar

¹⁶ Under the SAWP, migrant farm workers are not able to apply for and transition to permanent resident status, which is permitted under the two-step immigration process of the LCP. Under the LSPP, there are very few paths to permanent status under provincial nominee programs (PNPs), the bulk of which favor workers in higher-skill occupation classes (O, a, & B as opposed to C & D). Further, migrant workers under the LSPP are barred for four years from working in Canada after they have already completed four years of work. Conversely, skilled immigrants entering under the points-based Federal Skilled Worker Program (FSWP) enjoy permanent resident status upon their arrival in Canada. Over the last decade or so, the Government of Canada has expanded the Temporary Foreign Worker Program (TFWP) at the request of employers while decreasing the number of entrants under the FSWP. The reduction of the latter program includes a government refusal to process a large number of skilled worker applicants under the euphemism of eliminating a long-standing backlog, due in part to the shift in resources to expeditiously process TFWP applications.Google Scholar

¹⁷ Macklin, Audrey, Freeing Migration from the State: Michael Trebilcock on Migration Policy, 60 Uni. Toronto. L. J. 315, 345-346 (2010, notes omitted).Google Scholar

¹⁸ See e.g. Curry, Bill, Boardroom confidential: What CEOs are asking of Jim Flaherty, The Globe and Mail, Aug. 5, 2012, available online at: http://www.theglobeandmail.com/news/politics/boardroom-confidential-what-ceos-are-asking-of-jim-flaherty/article4483479 (last accessed: 18 November 2012); Notes from Jim Flaherty's policy retreat, The Globe and Mail, Aug. 15, 2012, available online at: http://www.theglobeandmail.com/news/politics/notes-from-jim-flahertys-policy-retreat/article4483497 (last accessed: 18 November 2012).Google Scholar

¹⁹ Cafaggi, Fabrizio, The New Foundations of Transnational Private Regulation, 38(1) J. of L. & Soc. 20-21 (2011).Google Scholar

²⁰ See e.g. Preibisch, Kerry & Grez, Evelyn Encalada, The Other Side of el Otro Lado: Mexican Migrant Women and Labor Flexibility in Canadian Agriculture 35(2) Signs 289-316 (2010); Abigail Bakan & Daiva Stasiulis eds., Not One of the Family: Foreign Domestic Workers in Canada (1997); Macklin, supra note 17.Google Scholar

²¹ Halley, Janet & Rittich, Kerry, Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism (Introduction to the Special Issue on Comparative Family Law), 58 Amer. J. of Comp. L. 753, 756, 758 (2010): seek to turn the traditional disciplinary focus of family law from a private, subordinated, feminine domain distinct from the public, masculine market, back towards the economic family and the household, as “an explicitly economic unit housing both human reproduction and material reproduction as well as a complex array of legal relationships,” working from a definition of modern household used by systems theorists Immanuel Wallerstein and Joan Smith, i.e. “a human association bounded through social negotiation and aimed at securing human reproduction, including reproduction from day to day of its members as well as the production of new human beings. In liberal economic orders, it is an importance source of social security. In modern capitalism, it is a crucial site of consumption.”Google Scholar

²² See e.g. Sassen, Saskia, The Global City (2001); Saskia Sassen, The Mobility of Labor and Capital: a Study in International Investment and Labor Flow (1988).Google Scholar

²³ See for example, Adelle Blackett & Christian Lévesque, Social Regionalism in the Global Economy (2011); Aprodicio Laquian, Beyond Metropolis: The Planning and Governance of Asia's Mega-Urban Regions (2005).Google Scholar

²⁴ See infra note 31, regarding public international law measures.Google Scholar

²⁵ See e.g. Cafaggi, , supra note 19, at 48-49.Google Scholar

²⁶ See Scott, Cafaggi, Senden, supra note 14, at 11.Google Scholar

²⁷ Zumbansen, , supra note 10.Google Scholar

²⁸ See for example, Freeman, , supra note 1; Schiller, supra note 2, at 58-61, discussing the importance of scalar perspectives on locality; Cristina Rodríguez, Building Capacity for the Transnational Regulation of Migration 110 Colum. L. Rev. SIDEBAR 1, 4 (2010), available online at: http://www.columbialawreview.org/building-capacity-for-the-transnational-regulation-of-migration (describing bilateralism mechanisms spanning federal cabinet level ministers, agency heads, border state governors, neighboring town mayors, and state and local officials seeking to attract new forms of investment).Google Scholar

²⁹ See also Cavallar, Georg, The Rights of Strangers 2-3 (2002), defining international hospitality as the offering or affording of welcome and entertainment to strangers, visitors, or guests of members of different out-groups, cultures, and communities; contrasting Las Casas’ view of benevolent indigenous hospitality with Vitoria's view of hospitality as “a right foreigners could enforce if denied” versus Kant's limited right of foreigners to visit in the absence of a special pact.Google Scholar

³⁰ See e.g. Antony Anghie, Imperialism, Sovereignty and the Making of International Law, ch. 4-5 (2005); Martti Koskenniemi, Empire and International Law: The Real Spanish Contribution 61(1) Univ. Toronto L. J. 1, 36 (2011), “[t]here is no doubt on which side imperialism has gained its greatest victories: since decolonization, Western domination of the ‘people without history’ has returned to its classical mainstay, informal empire, the creation of wealth and influence and the distribution of material and spiritual resources through the exercise of private power. Today's ius gentium continues to be divided into the law of treaties, on the one side, and the law of contract, on the other. There is no doubt on which side the most significant aspect of dominium – that is, the power of human beings over other human beings – is exercised.”Google Scholar

³¹ See e.g. Anghie, Tony & McCormack, Wayne, The Rights of Aliens: Legal Regimes and Historical Perspectives, in Migration in the 21^st Century: Rights, Outcomes and Policy 23-53 (2011); Ryszard Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (1997); Ryszard Cholewinski, The human and labor rights of migrants: vision of equality, 22(2) Georgetoen Imm. L. J. 177 (2008); Joel Trachtman, The International Law of Economic Migration: Toward the Fourth Freedom (2009); Chantal Thomas, Convergences and Divergences in International Legal Norms on Migrant Labor, 32 Comp. Lab. & Pol'y J. 405 (2011).Google Scholar

³² See for example, id. Summarizing from these authors, a brief list would include: diplomatic protection & state responsibility doctrine, the Vienna Convention on Consular Relations, ILO Conventions 97 and 143, the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Rights of the Child (CRC), the Convention Regarding the Status of Refugees, the Convention against Torture (CAT), the Convention on the Rights of All Migrant Workers and Members of their Families (UNCMW), the (Palermo) Protocols to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and Against the Smuggling of Migrants by Land, Sea and Air (supplements to the UN Convention against Transnational Organized Crime), the WTO, General Agreement on Trade in Services, Mode 4 (liberalizing the temporary movement of people providing services and erstwhile promotion of a GATS visa). There have also been calls for a World Migration Organization (akin to the WTO and beyond the ILO, what might have come to pass as a post WWI, Fourth Bretton Woods Institution); See Trachtman, id. at Chapter 9; Bimal Ghosh, Managing Migration: Time for a New International Regime? (2000).Google Scholar

³³ See for example Cholewinski, Ryszard, Paul de Guchteneire & Antoine Pécoud eds., Migration and Human Rights: The United Nations of Convention of Migrant Workers’ Rights (2009); Judy Fudge, The Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers, No. 11-15 Metropolis Working Paper Series (2011).Google Scholar

³⁴ See Guild, Elspeth, Security and Migration in the 21^st Century, ch. 8 (2009). In this vein, even as it expands and expedites the TFWP, the Government of Canada has also instituted specific, special protections and restrictions for potentially trafficked sex workers in the adult entertainment industry; see Human Resources and Skills Development Canada, Notice to Employers: Sex Trade-related Businesses, available online at: http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/communications/trade.shtml (last accessed: 18 November 2012).Google Scholar

³⁵ In Canada, these ‘low skill’ workers would fall under the national occupational classification (NOC) C & D as those with only secondary or lesser education. Recent changes have been announced to expand permanent immigration under the Federal Skilled Worker Program to include skilled trades under the points-system approach. More generally on this point of ‘the path not taken’, see Castles. See also Mark Thompson, Introduction, Symposium on Migrant Workers in Canada, Germany, New Zealand, the UK, & the US, 31(1) COMP. LAB. L. & POL. J. 3 (2009).Google Scholar

³⁶ See Bartley, Tim, Institutional Emergence in an Era of Globalization: The Rise of Transnational Private Regulation of Labor and Environmental Conditions, 113(2) Amer. J. OF Sociology 297-351 (2007); Kevin Kolben, Transnational Labor Regulation and the Limits of Governance, 12(2) Theo'l Inq. in L. 1-35 (2011); Cristina Rodríguez, Building Capacity for the Transnational Regulation of Migration, 110 Colum. L. Rev. Sidebar 1 (2010), available online at: http://www.columbialawreview.org/building-capacity-for-the-transnational-regulation-of-migration/; Jennifer Gordon, Transnational Labor Citizenship, 80(3) South. Cal. L. Rev. 503 (2007), advocating extending global labor solidarity through transnational unions for migrant workers; Jennifer Gordon, Towards Transnational Labor Citizenship: Restructuring Labor Migration to Reinforce Workers Rights, The Warren Institute Policy Paper (2009), available online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1348064 (last accessed: 18 November 2012); David Doorey, In Defense of Transnational Domestic Labor Law, 42 VAND. J. OF Trn'l L. 953-1009 (2010); Harry W. Arthurs, Making Bricks Without Straw: The Creation of a Transnational Labor Regime (June 30, 2012) Osgoode CLPE Research Paper No. 28/2012, available online at: http://ssrn.com/abstract=2139204; Cynthia Estlund, Enforcement of private transnational labor regulation: a new frontier in the anti-sweatshop movement? in Fabrizio Cafaggi, ed., ENFORCEMENT OF TRANSNATIONAL REGULATION: Ensuring Compliance in a Global World, 237-262 (2012).Google Scholar

³⁷ See Gordon, id., cf. Leah Vosko, supra note 2, at note 91, noting three limitations of transnational labor citizenship, namely its ‘closed shop’ approach, differential gendered impact, and only interim approach. See also Hog workers approve contract that aids foreign workers: deal with Maple Leaf Foods helps fast-track immigration status, Cbc.ca, Jan. 5, 2010, available online at: http://www.cbc.ca/news/canada/manitoba/story/2010/01/05/mb-foreign-workers-contract-maple-leaf-manitoba.html (last accessed: 18 November 2012). But cf. Fudge re BCLRB/HRT SELI case and difficulty obtaining equal employment rights, even for temporary workers who are unionized (with backdrop that most are not unionized, due to concentration in agriculture, domestic work, and hospitality & food service).Google Scholar

³⁸ See Bartley, , supra note 36, at 300-312; Kolben, supra note 36, at 410, 433 and following.Google Scholar

³⁹ See Rodriguez, , supra note 36, generally and at 11.Google Scholar

⁴⁰ See Scott, Cafaggi, Senden, supra note 14, preference for term ‘private’ rather than ‘nonstate’ “in the sense that key actors in such regimes include both civil society or non-governmental organizations (NGOs) and firms (both individually and in associations).Google Scholar

⁴¹ See Scott, Cafaggi, Senden, supra note 40, at 18-19; Rodriguez, supra note 36.Google Scholar

⁴² Bartley, , supra note 36, at 305, 328.Google Scholar

⁴³ Id. at 331-333.Google Scholar

⁴⁴ Id. at 335-337.Google Scholar

⁴⁵ Schiller, , supra note 2, at 42.Google Scholar

⁴⁶ Schiller, , supra note 2, at 65.Google Scholar

⁴⁷ work, For related, see Amar Bhatia, The South of the North: Building on Critical Approaches to International Law with Lessons from the Fourth World, 14 Oregon Rev. of Int'l L. 131 (2012) TWAIL Symposium.Google Scholar

⁴⁸ See e.g., note 24 above re commons. See for example, Peter Nyers, No One Is Illegal Between City and Nation, 4(2) Studies in Soc. Just. 127 (2010) .Google Scholar

⁴⁹ Hale, Robert, Coercion and Distribution in a Supposedly Non-Coercive State, 38 Pol. Sci. Qt'ly 470, 472-473 (1923).Google Scholar

⁵⁰ See Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) [British North America Act]; Immigration and Refugee Protection Act, S.C. 2001, c 27; Indian Act, RSC 1985, c 1-5.Google Scholar

⁵¹ See e.g. Borrows, John, Recovering Canada: The Resurgence of Indigenous Law (2002); John Borrows, Canada's Indigenous Constitution (2010); Bhatia, supra note 47.Google Scholar

⁵² This point is developed at length in my doctoral work. On the constrained delegation of membership criteria, see (among others): Pamela Palmater, Beyond Blood: Rethinking Indigenous Identity (2011).Google Scholar

⁵³ See e.g. Simpson, Leanne, Looking after Gdoo-naaganinaa: Precolonial Nishnaabeg Diplomatic and Treaty Relationships, 23 WICAZO SA REV. 29, 37 (2008), discussing the ‘Common Dish’ relationship between Nishnaabeg people and the Haudenosaunee Confederacy.Google Scholar

⁵⁴ Maracle, , supra note 14, at the 2:39 minute mark and following.Google Scholar

⁵⁵ Nyers, , supra note 48.Google Scholar