The Crown in a Multicultural Age: The Changing Epistemology of (Post)colonial Sovereignty

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 discourse of the Crown coexists, in the text of Canadian courts, with discursive practices 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.