by Grace Li Xiu Woo. Vancouver: UBC Press, 2011. 360pp. Cloth $85.00/$94.00 (US). ISBN: 978-0-7748-1887-2. Paperback $34.95/$37.95 (US). ISBN: 978-07748-1888-9.
Reviewed by Kate Puddister, Department of Political Science, McGill University. Email: kate.puddister [at] mail.mcgill.ca
In GHOST DANCING WITH COLONIALISM Grace Li Xiu Woo embarks on an ambitious task. Woo aims to categorize the jurisprudence of the Canadian Supreme Court through a binary analysis of colonialism versus decolonialism/postcolonialism. To achieve this, she takes her readers through a densely written examination of British imperialism and colonial history, a review of Kuhn’s theory of paradigms, an analysis of the social construction of categorization and prototypes, and a description of colonial/postcolonial paradigmatic models. All of this is completed to lay the groundwork for her analysis of Supreme Court judgments on the topic of aboriginal and treaty rights as defined by section 35(1) of the Constitution Act, 1982. While this foundational work, which comprises approximately half of the text, is at times a dense and challenging read, it leads readers to Woo’s significant scholarly contribution: the expert legal analysis of sixty-five indigenous rights cases. It is through this project that Woo ultimately attempts to answer the question: “Is the Supreme Court of Canada colonial or postcolonial?”
Before Woo presents her legal analysis and thrust of the book’s argument, she provides a historical review of British imperialism and Canadian colonialism. Essentially, she sets out to refute the misconception that Canada is without a colonialist past, a fallacy that even the learned members of the Supreme Court of Canada have perpetuated. To demonstrate this misconception, she outlines the many anomalies of the indigenous experience and the vestiges of imperialism that are still perpetuated by Canada. Indigenous political rights have been routinely denied or ignored throughout Canadian history, beginning with the fact that no indigenous nation took part in the negotiations that lead to Canadian Confederation in 1867. Although treaties signed between the Crown and indigenous groups describe a relationship that is based on distinct and separate sovereignties, indigenous peoples are assumed to be part of the Canadian polity. Additionally, while section 91(24) of the Constitution Act 1867 provides the Parliament of Canada jurisdiction over “Indians and lands belonging to Indians,” this provision is implemented in a legislature that routinely lacks any substantial indigenous voice and representation. Woo also finds that the granting of franchise to indigenous people is not evidence of inclusion of indigenous groups in Canadian society. Instead, it can be understood as an act of colonialism. The granting of franchise is a further imposition of Canadian [*64] citizenship on groups without their consent. These facts, among many other detailed examples provided by Woo, demonstrate that Canada not only has colonial past but also routinely exercises this brand of colonialism in present-day indigenous relations. Woo further explains that this relationship between indigenous people and Canada stands in opposition to the norms of international law that have progressed to reject the conquest model in favour of one based on popular consent.
Moving beyond this review of Canadian indigenous relations, Woo delineates between colonialism and postcolonialism. Colonialism is comprised of the imposition of an external normative system, with a coercive foundation (military, economic, or social) that serves to perpetuate an inequitable distribution of resources, and the denial of political representation/ voice. Postcolonialism is identified by the self-determination of laws, a process that is consensual, a distribution of power that is equitable, and a respect of minority rights and alternative opinions (pp.91-93). With these characteristics established, Woo creates a dichotomist framework for her legal analysis. She analyzes the Supreme Court’s record as a colonialist institution through several categories: judge, parties, issues, procedure, venue, evidence, concept of law, reasoning, values, and perspective. For example, a judge can be viewed as either an alien decision maker (colonial) or a peer decision maker (postcolonial). The decision can be founded on reasoning that is either declaratory (colonial) or principle explanation (postcolonial). The perspective of the Court’s action could be either ethno-/egocentric (colonial) or demonstrate respect/place for others (postcolonial). This framework is applied to all of the Court’s decisions concerning section 35(1) from 1982 to 2006, resulting in the analysis of 100 judgments for 65 different cases.
Woo’s case analysis demonstrates that for the most part, the Supreme Court of Canada is almost twice as likely to make decisions that are colonial in nature versus postcolonial decisions. Woo recognizes that the fact that the court is more likely to produce jurisprudence that is colonial in nature is not necessarily indicative of an ethnic bias of the justices. She concedes that the court is often limited by the institutional structure in which it must operate. The Supreme Court is also not a self-starting institution; it must wait for cases to be brought before it and is limited by the arguments presented by parties in the case. Additionally, Woo explains that the Court is further limited in the fact that it can only “play a small role in directing intercultural relations away from the colonial dynamic, and it was not designed for that purpose” (p.204). Indeed, Woo is correct in asserting that if Canada truly wishes to move away from the paradigm of colonialism towards decolonialism/postcolonialism, it requires an effort beyond simply the jurisprudence under section 35(1) if the Charter. Such an effort requires the work of many actors and the turning away from old processes and understandings of indigenous relations.
While GHOST DANCING WITH COLONIALISM deserves praise for directing attention to a topic that is often overlooked by scholars of law and politics, it is not without missteps. In terms of methodology, Woo acknowledges that [*65] her interpretations of the cases are subjective. Nor does she provide details on how she chooses to assign particular categories to her cases. In an appendix, she provides only a sample of case profiles, with the remaining of cases being made accessible through a website. It would have been beneficial for the reliability of the measures for Woo to provide further detail on how she categorized her cases, including, what, if any, textual analysis methods were used.
Additionally, following Woo’s detailed and thorough analysis of contemporary and historical relations between Canada and indigenous peoples, her assessment of the capacity of the Supreme Court to act in a manner that is postcolonial is arguably problematic. The Supreme Court of Canada was created by a simple act of Canadian Parliament – a similar process to the adoption of the Indian Act. When discussing the adoption of the Indian Act, Woo characterizes it as an inherently colonial document due to its lack of indigenous participation in its creation. Yet, the adoption of Supreme Court of Canada Act (and thus the creation of the Court) was also completed without the participation or input of indigenous groups. Taking her argument to its logical conclusion would preclude the Court from ever becoming postcolonial, if its existence was born out of a colonial process. One could argue that the existence of the Supreme Court of Canada and its legal jurisdiction is simply a further imposition of Canadian citizenship thrust upon indigenous groups without their explicit consent. Additionally, Woo explains at several points through the book that for many indigenous groups the adversarial nature of the Canadian court system is alien and does not align with their conception of justice. To be fair, Woo’s critique is cognizant of existing legal and political realities and attempts to work within their bounds. Her approach assesses the effects of an institution that has had very real and practical implications for the rights of indigenous groups, regardless of whether the groups actively choose to be under its jurisdiction. One wonders, however, what reforms Woo would suggest to the Supreme Court to make it more hospitable to postcolonial logic, aside from the appointment of indigenous justices.
GHOST DANCING WITH COLONIALISM: DECOLONIZATION AND INDIGENOUS RIGHTS AT THE SUPREME COURT OF CANADA is an ambitious and challenging read. It is densely written, populated with many references to indigenous cultural practices, historical episodes, and jurisprudence. While at times this makes for cumbersome reading, the sheer volume of material covered by Woo makes GHOST DANCING a significant contribution to Canadian legal scholarship.
Copyright 2014 by the Author, Kate Puddister.