Academic journal article The Australian Feminist Law Journal

Re-Covering the Limits of Recognition: The Politics of Difference and Decolonisation in John Borrows' Recovering Canada: The Resurgence of Indigenous Law

Academic journal article The Australian Feminist Law Journal

Re-Covering the Limits of Recognition: The Politics of Difference and Decolonisation in John Borrows' Recovering Canada: The Resurgence of Indigenous Law

Article excerpt


For us, the ownership of the territory is a marriage of the Chief and the land. Each chief has an ancestor who encountered and acknowledged the life of the land. From such encounters come power. The land, the plants, the animals and the people all have spirit, they all must be shown respect. That is the basis of our law.1

I am not a prisoner of history. I should not seek there for the meaning of my destiny.

I should constantly remind myself that the real leap consists in introducing invention into existence.

In the world through which I travel, I am endlessly creating myself.

I am a part of Being to the degree that I go beyond it2

Let's face it. We're undone by each other. And if we're not, we're missing something.3

A 'revolutionary message in a reactionary time'?4 John Borrows' book Recovering Canada: The Resurgence of Indigenous Law, offers us something else- an intricate set of movements that traverse the space between the limits of contemporary political, legal and social structures and their very foundations. Borrows critiques the origins of the settler colonial state and its law, contemporary Aboriginal rights jurisprudence, and government policies that have left Aboriginal communities dispossessed and marginalized. He presents a passionate and nuanced critique of the failure of the recent political and legal recognition of Aboriginal rights to significantly change the lives of Aboriginal communities.5 In the best spirit of critique, Borrows also presents his audience with his vision of a new political and legal order in Canada, one which would not heed the call for increased Aboriginal representation in political, legal, and social institutions, but one that would incorporate Aboriginal law and legal knowledges into existing legal structures. The author attempts, to re-map the boundaries of citizenship to include other ways of being, other forms of governance, other ways of conceptualizing our relationships to land, reources, and each other.

John Borrows' book pushes the boundaries of several different and overlapping bodies of work. One is the existing work on Aboriginal rights in Canada; another is post-colonial literature that addresses issues of (cultural) identity, difference and rights; and third, the more specific literature on the concept of recognition. Borrows' book doesn't remain confined to one of these 'fields' of scholarly inquiry, but pushes the boundaries between them through innovative arguments and analyses.

The body of work on Aboriginal rights in Canada is of course very diverse in perspective, analysis and prescription. Aboriginal rights and legal scholarship necessarily encapsulates a wide range of disciplinary and topical threads. Some people have taken on the task of recovering histories of Aboriginal communities, with a view to re-shaping the dominant historiography of colonial settlement and attendant myths about the state of Aboriginal societies, cultural practices, laws, languages and bodies of knowledge. Other scholars have addressed the legislative and judicial dimensions of colonial settlement;6 the relationship between Aboriginal rights and the nation-state;7 and others, the extent of ongoing development of Aboriginal legal rights in Canadian jurisprudence.8

John Borrows' book is unique in that it addresses the history of colonial settlement, recognizes the myriad injustices levelled at Aboriginal societies, and also seeks to utilize Aboriginal law as a means of showing how the contemporary legacies of colonial settlement could be ameliorated.9 He holds the Supreme Court of Canada accountable for maintaining the fiction of the colonial assertion of sovereignty, and outlines several proposals for how law and 'the political' could be re-conceptualized and radically re-shaped so that Canada could move beyond the strictures of its predicament of being a putadvely post-colonial nation that still carries the hallmarks of injustice that are a direct or indirect result of colonialism. …

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