Despite Canada’s engagement to change its relations with the First Nations, notably through the institution of the Truth and Reconciliation Commission, the government still denies Aboriginal sovereignty and auto-determination in the land defined as Canadian territory. Ghost Dancing with Colonialism and Storied Communities aim to address this urgent question: Can the Court, as well as the process of reconciliation itself, become postcolonial?
Grace Li Xiu Woo starts from the contradictions between the enshrinement of postcolonial principles and their difficult application in the current practices of the Supreme Court of Canada. She develops a chart analysis in which she attributes a score to the Court’s judgments, based on their colonial or postcolonial legal practices. Drawing on Thomas Kuhn’s paradigm theory, Woo explains the ambivalence between the rupture from and the continuity of colonial structures of domination by the slow pace of paradigm changes, which are embodied and embedded processes. For instance, the judges’ intention to follow postcolonial legality can be undermined by their personal inexperience with intercultural relations, by the law’s self-referentiality, and by structural impediments against working on a more equal footing with their Aboriginal peers.
Woo’s contribution is twofold. On the one hand, she argues that such changes need to be carefully worked out within the institution. Her description of existing postcolonial practices and postcolonial historical precedents in the English legal system (through the Magna Carta, the Oath of Allegiance, or the Coronation Oath), as well as in the democratization movement, intends to show the Court’s possible choices in practising postcolonial law in accordance with its own internal logic. On the other hand, she acknowledges the limitations faced by the Court when trying to change the nature of the relations between the government and First Nations. Recognizing this failure, she concludes that the required paradigm change cannot come from within the structures of the law alone: it must also be a political choice that would bring into practice the principles already recognized by the Canadian government.
Storied Communities highlights the political and healing power of narratives found on the margins of the legal system. The challenge for what the authors call a “politics of narrative” is to re-examine local stories within Indigenous and immigrant communities in order to “generate new narratives upon which to build an Indigenous political future and within which to articulate an Indigenous conception of post-colonial justice.” Thus, Storied Communities acknowledges the law’s failure, not because it dismisses its role in our communities, but because it advocates a more comprehensive view of postcolonial justice and reconciliation—one that cannot be defined only in terms of settler language and rhetoric.
Storied Communities reveals a particular link between colonialism, law, and identity construction. Brenna Bhandar criticizes the political rhetoric surrounding sovereignty claims, which, she contends, no longer correspond to the multiple layers of power diffracted through our understanding of the land. Moreover, this rhetoric presupposes an a priori sovereign subject, based on liberal democratic principles, that paradoxically undermines the elaboration of a political subjectivity. Bhandar goes further, arguing that the limitation of postcolonial criticism to the issue of Aboriginal rights versus Canadian law and legal structures leads to a juridicalization— the increasing tendency to go to court to solve problems—and a juridification—the imposition of a single model of legal identities on all subjects—that depoliticizes the effort to articulate postcolonial justice or reconciliation.
Kim Anderson explains the specific violence against Indigenous women as an effect of both colonialism and the imposition of a European masculine subjectivity rooted in capitalism. She argues that the re-appropriation of the elders’ narratives could contribute to ending the violence inflicted on women and on the land. Likewise, Johnny Mack contends that, by re-appropriating their stories, Aboriginal people could “occupy a non-imperialized subject position.”
Storied Communities contributes to the field of reconstruction of a decolonized subjectivity for a postcolonial present and future, where Indigenous communities can reconstitute a sense of community and participate in legal discussions from their own position and historical notions of justice. In order for postcolonial reconciliation to happen, acknowledgement of the failure or limitations of Canadian law may well be needed; but also, as the authors of Storied Communities argue, it requires an engagement with what Boaventura de Sousa Santos calls post-abyssal thinking—that is, seriously taking into account local stories and cultural translation, in order to ground postcolonial practices of justice within the Court and within broader definitions of community.