We acknowledge that we live and work on unceded Indigenous territories and we thank the Musqueam, Squamish and Tsleil-Waututh Nations for their hospitality.
In this book, Grace Li Xiu Woo, a retired member of the BC Bar, steps away from a standard case law analysis and instead analyzes Supreme Court decisions related to Aboriginal and treaty rights based on certain indicia of what she deems colonial and post-colonial legality (104). She wisely stresses that her purpose is not an authoritative analysis, but rather to “introduce an analytical methodology that might facilitate discussion” (102). In an area so fraught with misunderstanding, misinformation, and deeply conflicting values, such discussion is sorely needed. So too is the calm, measured and knowledgeable tone Woo takes throughout.
Woo marshals a formidable number of carefully researched and disparate resources to set up her analysis, including Kuhn’s scientific theory of paradigm change, an interesting historic review of Anglo-colonial law, snippets of international law, Canadian constitutional law, the backgrounds of Supreme Court Judges, and several examples of lived Indigenous experiences within Canada. The analysis itself becomes repetitious fairly fast and doesn’t cover a lot of new ground. Nevertheless, the take-away points are important ones. There is a deep democratic deficit in both past and present Canadian legislation affecting Aboriginal peoples, and legal decision-makers are even less representative. Canadian court decisions continue to ignore both Aboriginal social orders and the fact that Canada’s existence as a nation -- and the courts’ own authority-- are rooted in the historic denial and destruction of those social orders. There is a clear cognitive struggle afoot to reconcile the constitutional aspirations of equality and recognition of Aboriginal and treaty rights with a history and present reality that do not match this post-colonial self-perception.
Most importantly, and here Woo does a nice job of bringing these to light in a matter-a-fact manner, there are consequences of all this in the lives of real people. For example, Woo describes the aftermath of the Mitchell v. MNR decision regarding the administration of a border crossing in the Mohawk community of Akwesasne. She lists several incidents that demonstrate that the decision did not result in certainty or peaceful resolution for the community, but rather left the problems unresolved, generating more “court cases, stress and life-threatening violence” (176). This lived reality is just one of many others where the Canadian justice system, regardless of intent, appears to have effects counter to Aboriginal peoples’ basic human needs, including for safety and social order. The challenge this poses to the very rule of law in Canada shouldn’t be underestimated.
I was curious as to the practical solutions Woo might suggest, and was a bit disappointed to see the final chapter didn’t go far beyond the typical academic suggestions of acknowledging Indigenous sovereignty, re-examining fundamental assumptions and underlying premises, and recognizing a multiplicity of possibilities for social order. To be sure; but more is needed to navigate the “untenable position” the court finds itself in at this point in history (228). The reality on the ground today is too pressing to indulge in endless intellectual deconstruction and too complicated for recognition of sovereignty to be simply done or regarded as a panacea. We are all in need of concrete, constructive ways forward. Still, for legal practitioners and decision makers who are unfamiliar with Aboriginal realities and perspectives, Woo’s book should provide food for thought, and could also be a good starting point for productive, respectful discussion about colonialism and Aboriginal and treaty rights in Canada. As the current Idle No More movement demonstrates, such a discussion, and constructive ways forward, are long overdue, and will become increasingly pressing for all Canadians.
Ghost Dancing with Colonialism: Decolonization and Indigenous Rights at the Supreme Court of Canada
By Grace Li Xiu Woo
Vancouver: UBC Press, 2012. 360 pp, $34.95 paper
BC Studies, no. 178, Summer 2013.