Ghost Dancing with Colonialism

Decolonization and Indigenous Rights at the Supreme Court of Canada

By Grace Li Xiu Woo

SERIES: Law and Society

UBC Press

Some assume that Canada earned a place among postcolonial states in 1982 when it took charge of its Constitution. Yet despite the formal recognition accorded to Aboriginal and treaty rights at that time, Indigenous peoples continue to argue that they are still being colonized.

Grace Woo assesses this allegation using a binary model that distinguishes colonial from postcolonial legality. She argues that two legal paradigms governed the expansion of the British Empire, one based on popular consent, the other on conquest and the power to command. During the twentieth century, international law formally rejected the conquest model. However, despite the best intentions of lawyers and judges, the beliefs and practices of the colonial age continue to haunt Supreme Court of Canada rulings concerning Indigenous rights.

The binary analysis applied in Ghost Dancing with Colonialism casts explanatory light on ongoing tensions between Canada and Indigenous peoples, suggesting new ways to bridge the cultural divide and arrive at a truly postcolonial justice system.

This book will appeal not only to activists, lawyers, and the judiciary but also to scholars in law, Native studies, and postcolonial studies.

RELATED TOPICS: Canadian Politics, Indigenous Peoples and the Law, Indigenous Studies, Law, Political Science

This book has impressive scholarly depth, and in a systematic and challenging way makes a major contribution to understanding and assessing the Supreme Court’s decision-making with respect to Aboriginal peoples in the quarter century since Aboriginal and treaty rights have been formally recognized in Canada’s Constitution. Peter H. Russell, Professor Emeritus of Political Science at the University of Toronto and author of Recognizing Aboriginal Title

Grace Li Xiu Woo is a retired member of the Law Society of British Columbia. She has taught in the Program of Legal Studies for Native People at the University of Saskatchewan.

Introduction: Ghost Dancing and S. 35

Part 1: Paradigms and the British Empire

1 Anomalies

2 Conceptual Structures

3 Colonial and Postcolonial Legality

Part 2: Case Study: Indigenous Rights and Decolonization at the Supreme Court of Canada

4 Methodology

5 Internal Architecture of the Court’s Reasoning

6 Trends and Dance Tunes

7 Can the Court Become Postcolonial?

Appendix 1: Chronological List of Cases Studied

Appendix 2: Judicial Careers