The Crown in a Multicultural Age: The Changing Epistemology of (Post)colonial Sovereignty
| Published date | 01 March 2012 |
| Author | Mariana Valverde |
| Date | 01 March 2012 |
| DOI | 10.1177/0964663911418719 |
| Subject Matter | Articles |
Article
The Crown in a
Multicultural Age:
The Changing
Epistemology of
(Post)colonial
Sovereignty
Mariana Valverde
University of Toronto, Canada
Abstract
In Canada as in other (post)colonial settings, courts have been facing the challenging
task of redefining both substantive aboriginal legal rights and evidentiary rules that
now look ethnocentric. Recent litigation has shown that while rights claims made by
indigenous collectives are difficult to make and sustain in court, the newly revived
doctrine of the Crown’s inherent ‘honour’ can work for aboriginal peoples precisely
because the Crown’s honour is, as it were, self-acting. But the neo-medieval dis-
course of the Crown coexists, in the text of Canadian courts, with discursive prac-
tices that enact a contemporary, pluralistic, socially aware form of judicial
anthropology. These two wholly conflicting representations of the Canadian state
live happily side by side in current Canadian judicial discourse. This easy eclecticism
stands in marked contrast to the difficulties and embarrassments experienced by
aboriginal leaders testifying before judges. The close judicial scrutiny of aboriginal
claims contrasts with the tolerance of major epistemological contradictions in the
state’s discourses about itself.
Keywords
aboriginal rights, Crown, ‘duty to consult’, monarchy, multiculturalism
Corresponding author:
Mariana Valverde, University of Toronto, 14 Queen’s Park Crescent West, Toronto, M5S 3K9, Canada
Email: m.valverde@utoronto.ca
Social & Legal Studies
21(1) 3–21
ªThe Author(s) 2012
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DOI: 10.1177/0964663911418719
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Introduction
In recent years, the aboriginal rights movement has prompted many critical analyses of
the nuts and bolts of the legal system, in Canada as in other (post)colonial jurisdictions.
John Borrows, an innovative legal scholar whose work is highly regarded in the US and
Australia as well as in Canada, has long argued that aboriginal legal traditions ought not
to be cabined and treated as relevant only in adjudicating cases involving aboriginal
individuals or groups, but should be considered instead as general sources of Canadian
law. Canada is already legally pluralist, he argues, since civil law prevails in Quebec
while the common law prevails in the rest of the country: it is thus well placed to lead
the way, internationally, in becoming profoundly ‘multi-juridical’ (Borrows, 2010:
270). This would mean rethinking the foundations of the legal system, a far more radical
project than making special provisions for aboriginal legal institutions such as the ‘tribal
courts’ that exist in the United States.
Similar calls for a collective rethinking of the country’s legal foundations have been
made in other arenas, from the Royal Commission on Aboriginal Peoples (1991–96) to
the writings of senior Canadian (non-aboriginal) political scientists, such as Peter Russell
and James Tully (Russell, 2005; Tully, 1995). Tully’s efforts in this area are particularly
noteworthy, in part because of his stature as an internationally recognized political
theorist. His Seeley Lectures, delivered at Cambridge in 1994, and published under the
title of Strange Multiplicities: Constitutionalism in an Age of Diversity (1995), can be
regarded as a crucial turning point. Described by Tully as a series of reflections on the
famous sculpture The Spirit of Haida Gwaii (by renowned West Coast Haida artist Bill
Reid), these lectures amount to a critical overview of the history of English and common
law constitutionalism from an explicitly anti-imperialist perspective.
In these discussions, the question of how various knowledges circulate and are
evaluated and used in legal contexts has been addressed repeatedly. Some of this work
critically examines the rules governing the admissibility of aboriginal knowledges (e.g.
Daly, 2005). Analysts have also trained the critical gaze on white legal knowledges of
whiteness, such as the Lockean view, influential in the colonial era and beyond, that
hunting and gathering does not amount to really utilizing and thus possessing the land
(see e.g. Tomlins, 2011: Chapters 3 and 4). By focusing more on the rules of the legal
knowledge games than on content, this article will explore some issues that have thus
far not received attention in these extensive and important transnational debates.
The article begins by explaining the doctrine that Canadian governments’ ‘duty to
consult’ aboriginal peoples (mainly in regard to development and resource extraction
issues) is based on the Crown’s inherent honour. This will be followed by a consideration
of recent changes in evidentiary rules applying to aboriginal knowledges in non-written
formats. The difficulties experienced by aboriginal elders testifying in court will be
contrasted to the great ease with which Canadian courts switch from rational-modern
formats to mystical formats in discussing and adjudicating what ‘the Crown’ (i.e. the
state) owes aboriginal peoples. The central irony identified in this article is that while
aboriginal people and their lawyers have continued to experience evidentiary difficulties
even after the Supreme Court declared that courts ought to not to automatically privilege
written language cultures, government lawyers and non-aboriginal judges are able to
4Social & Legal Studies 21(1)
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