Dissertations / Theses on the topic 'Indigenous law'
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Kingsbury, Benedict. "Indigenous peoples in international law." Thesis, University of Oxford, 1990. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.334165.
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Morris, Christine. "A Dialogical Encounter with an Indigenous Jurisprudence." Thesis, Griffith University, 2007. http://hdl.handle.net/10072/367386.
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This thesis is a logos — the beginning of a new paradigm in legal theory. Its objective is to begin a new line of intellectual inquiry. It is meant to open up a new theoretical framework within which different Indigenous peoples can explore and consider their legal regimes. Thus this thesis is an attempt to offer the reader a ‘dialogical encounter with an Indigenous jurisprudence’. Hence I carry out this act of legal reclamation by redefining jurisprudentia through my Yugumbeh language and determining its meaning through the concepts of talngai and gawarima. Thus it becomes a Talngai-gawarima jurisprudence. This Talngai-gawarima jurisprudence will bring the reader into a dialogical encounter with a reading of the law of Corpus Australis — that law is conceptualised as Land is the Law.
This definition gives shape to the jurisprudential framework that orders the chapters — a shape that is not just abstract but physical and metaphysical; a shape that is circular and concentric at the same time, and so allows for the triadic layering of meaning to each reading. I have constructed this visual representation as follows: the outer circle is the cosmology, so that the human never forgets that they are inside a universe — a universe that has a law. This law is found in the second circle, which on one hand resembles the ancient Greek law of physis, but on the other hand is a law based on relationship and so is titled in this thesis as the Law of Relationship. This is a relationship that orders the placing of the individual in the innermost circle and patterns their rights and responsibilities into the Land.
The jurisprudential texts which inform the theoretical framework of this thesis are found in the works of three Senior Law Men: SLM Bill Neidjie, SLM David Mowaljarlai and SLM Wandjuk Marika, who have turned to the literate tradition to bring to our attention the urgent message that the Djang (primordial energy) is out of balance and the rebalancing of that Djang is up to the individual through their lawful behaviour, a behaviour which patterns them back into land. The source of the imbalance, I argue, was the sublimation of Women’s law and their ceremonial access to the Land.
To test this hypothesis, I carried out a reading of three contemporary narratives (Whale Rider, Thunderheart and Plains of Promise) which address issues relating to Indigenous peoples and their law. In each of the jurisprudential readings, I demonstrate how Indigenous peoples and their laws are actualised. At the end of each chapter, I also reiterate the importance of the reintegration of women’s law and ceremony if the gift of law which the Senior Law Men are offering is to be recognised by other laws. This thesis, therefore, is a new story of law about an ancient knowing, a knowing which calls to the present to re-balance behaviour and understanding of Land if we are to survive. This call is to Indigenous peoples and is about the importance of understanding their law as Land is the Law.Thesis (PhD Doctorate)
Doctor of Philosophy (PhD)
Griffith Law School
Griffith Law School
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Magaisa, Alex Tawanda. "Knowledge protection in indigenous communities : the case of indigenous medical knowledge systems in Zimbabwe." Thesis, University of Warwick, 2004. http://wrap.warwick.ac.uk/2630/.
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This study examines the contentious issues relating to the exploitation of indigenous knowledge systems (IKS) within the context of the expanding regime of intellectual property law (IP law). The study focuses specifically on the area of indigenous medical knowledge (IMK) within the geographical context of Zimbabwe as a country case study. The study examines the centrality of knowledge in the global economy and using international political economic theory and practice, demonstrates why it is a key site of struggles between and among nations and various stakeholders. While it considers the narrow issue of the applicability or otherwise of IP law to IKS, this study takes the approach that it is necessary to understand the socio-historical developments that account for the peripheral status of IKS in relation to the dominant western knowledge systems (WKS). A key argument of this study is that the lack of legal protection of IKS is directly connected to their marginal status in social, intellectual, cultural and economic terms arising from the dominance of the predominantly WKS. It is argued that far from being a narrow legalistic debate, the matter of the protection of IKS is a wider socio-cultural, economic and political issue that centres on the power relations between and among people, corporations and states. Through a combination of theoretical and field investigations, the study seeks to explore the factors that account for the marginalisation of IKS generally and IMK systems in particular. The “struggle thesis” demonstrates that from an historical viewpoint knowledge systems are in a state of constant interaction and struggle resulting in problems. The key to resolving the problems is to acknowledge difference and accept the legitimacy and validity of different knowledge systems and to democratise the regime of knowledge protection both nationally and globally. It proposes that solutions lie in not only reconstructing the legal architecture but also in ensuring that the social, economic and political structures are reconstructed to safeguard and nurture the IKS. The study investigates the needs and expectations of the indigenous communities including their rationale for the protection of their knowledge systems. Finally, it also contributes to the development of indigenous research methodologies.
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Charters, Claire Winfield Ngamihi. "The legitimacy of indigenous peoples' norms under international law." Thesis, University of Cambridge, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.609841.
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Anderson, Jane Elizabeth Law Faculty of Law UNSW. "The production of indigenous knowledge in intellectual property law." Awarded by:University of New South Wales. School of Law, 2003. http://handle.unsw.edu.au/1959.4/20491.
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The thesis is an exploration of how indigenous knowledge has emerged as a subject within Australian intellectual property law. It uses the context of copyright law to illustrate this development. The work presents an analysis of the political, social and cultural intersections that influence legal possibilities and effect practical expectations of the law in this area. The dilemma of protecting indigenous knowledge resonates with tensions that characterise intellectual property as a whole. The metaphysical dimensions of intellectual property have always been insecure but these difficulties come to the fore with the identification of boundaries and markers that establish property in indigenous subject matter. While intellectual property law is always managing difference, the politics of law are more transparent when managing indigenous concerns. Rather than assume the naturalness of the category of indigenous knowledge within law, this work interrogates the politics of its construction precisely as a ???special??? category. Employing a multidisciplinary methodology, engaging theories of governmental rationality that draws upon the scholarship of Michel Foucault to appreciate strategies of managing and directing knowledge, the thesis considers how the politics of law is infused by cultural, political, bureaucratic and individual factors. Key elements in Australia that have pushed the law to consider expressions of indigenous knowledge in intellectual property can be located in changing political environments, governmental intervention through strategic reports, cultural sensitivity articulated in case law and innovative instances of individual agency. The intersection of these elements reveals a dynamic that exerts influence in the shape the law takes.
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Douglas, Heather Anne. "Legal narratives of indigenous existence : crime, law and history /." Connect to thesis, 2005. http://eprints.unimelb.edu.au/archive/00001751.
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Archer, Jennifer Lynne. "Transcending sovereignty : locating Indigenous peoples in transboundary water law." Thesis, University of British Columbia, 2012. http://hdl.handle.net/2429/40366.
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All people rely upon water for life. Indigenous peoples are especially vulnerable to water conflicts and yet lack recognition in international water law. This thesis adopts Critical Race Theory to examine the intersection between transboundary water law, the doctrine of sovereignty and the international law of Indigenous peoples. The methodology adopted in this thesis includes: (i) a deconstruction of the UN Watercourse Convention and the doctrine of sovereignty; (ii) a review of Indigenous perspectives on sovereignty; and (iii) a proposal for the reconstruction of transboundary water law in a manner that recognizes the internationally affirmed rights of Indigenous peoples.
A deconstruction of the UN Watercourse Convention and related discourse reveals that state-centric approaches to transboundary water law fail to recognize Indigenous peoples’ international rights or the pivotal role that Indigenous peoples’ traditional knowledge might play in transcending conflict. Case examples are provided (Columbia River and Tsangpo-Brahmaputra River) that illustrate the vulnerability of Indigenous peoples in the face of state development agreements. The inequities that exist in international water law are rooted in the historical doctrine of sovereignty which has evolved to subordinate Indigenous peoples’ interests to state interests.
Indigenous perspectives regarding sovereignty provide a counter-point to the dominant legal discourse and weave an alternate narrative that challenges the myth of objectivity and neutrality that surrounds the doctrine of sovereignty and international law generally. Once we recognize that sovereignty is a social construct, we can recognize our collective ability to reconstruct international laws in a manner that transcends the sovereign discourse and recognizes the rights of Indigenous peoples. Endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is indicative of states’ commitment to recognize Indigenous peoples’ rights throughout the international legal system.
This thesis concludes by offering a proposal for reconstructing transboundary water law through a return to ethics and coalition building. Future reform should be directed towards (a) articulating an international water ethic with the critical engagement of Indigenous peoples; and (b) ensuring that river basin organizations are established on every transboundary river in a manner consistent with this shared international water ethic.
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au, K. Trees@murdoch edu, and Kathryn A. Trees. "Narrative and co-existence : mediating between indigenous and non-indigenous stories." Murdoch University, 1998. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20070125.94722.
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Ths thesis demonstrates how theory and praxis may be integrated within a
postcolonial, or more specifically, anticolonial frame. It argues for the necessity of
telling, listening and responding to personal narratives as a catalyst for
understanding the construction of identities and their relationship to place. Tlus is
acheved through a theorisation of narrative and a critique of postcolonialism.
Three 'sites' of contestation are visited to provide this critique: the "Patterns of
Life: The Story of the Aboriginal People of Western Australia" exhibition at the
Perth Museum; a comparison of Western Australian legislation that governed the
lives of Aboriginal people from 1848 to the present and, the life story of Alice
Nannup; and, an analysis of the Australian Institute Judicial Association's
"Aboriginal Culture: Law and Change" seminar for magistrates. Most
importantly, this work foregrounds strategies for negotiating a just basis for coexistence
between indigenous and non-indigenous Australians.
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Makmillen, Shurli. "Land, law and language : rhetorics of Indigenous rights and title." Thesis, University of British Columbia, 2010. http://hdl.handle.net/2429/26370.
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For good or ill, settler Indigenous relations in settler colonies around the world are being framed by longer and more complex texts. This renders the study of language more important than ever, especially as the frameworks and perspectives of Aboriginal people are increasingly given their due; it also raises the question about other strategies for resistance and redress, such as the role of the arts, politics, culture and media. This thesis explores these issues with respect to assumptions and debates about language and meaning, about language and culture, and about legal and literary language in a selection of genres in which natives and newcomers in British Columbia and Aotearoa/New Zealand mediate their claims about land, about government, and about what counts as legitimate knowledge. No longer is it correct to enforce paradigms of Western justice, nor to essentialize or exoticize Indigenous cultural production. But what is taking their place and how do particular rhetorics of language and of difference structure these legal and literary genres in this particular "contact zone"?
That language is used in ways to serve situations is fundamental to rhetorical genre theory; that subsequent interpretations of this language use may serve subsequent often quite different situations is also of interest, and part of the action of genre. As a hermeneutical concept, genre can mediate between discourse and sentence levels of analysis in ways that keep audience effects in mind. But in the case of these genres both speakers and audiences can be polarized, dispersing intentions, uptakes, and effects. Theories of rhetoric and genre, which are my conceptual foundation, need amendment to account for this. Generating a more nuanced account of genre helps me develop a category of genres called contact genres: those genres in which rhetorical situations may be profoundly differently construed and yet they maintain their stability in order to address and dissolve colonialism’s culture.
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Fernández, Ruiz José Manuel. "Indigenous peoples and immigrants : the multicultural challenge of criminal law." Thesis, University of Glasgow, 2018. http://theses.gla.ac.uk/9107/.
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This thesis is the conclusion of doctoral research that pursued to examine whether indigenous peoples’ demands for access to their cultural practices can be accommodated within criminal law. In a globalised context in which states become increasingly multicultural this question raises fear of social fragmentation and the anxiety for achieving unity. Certainly, Rwanda and Kosovo evidence that claims to access culturally diverse practices may lead to war or even genocide. The context of the thesis is a more benign form of response to these claims: accommodation. While accommodation in general has received great attention from scholars (Kymlicka 1989, Gutmann et al 1994, Tully 1995), within criminal law the only focus has been cultural defences (Renteln 2004, Kymlicka et al 2014). However, little research has been conducted to understand the broader implications of this phenomenon for both the accommodated and the accommodating. The research aims to shed light on these broader implications of accommodation by exploring it within criminal law. Certainly, the simplicity and individualised nature of cultural defence conceals what is at stake for both the accommodated and the accommodating. Specifically, it conceals how criminal law cannot be responsive to the claims of minorities because it seeks to maintain the practices of the constitutional order of which criminal law is part. The result is that the claims of indigenous peoples cannot be accommodated. In order to uncover these implications, the research employs social holism (Pettit 1998) to develop a broader understanding of criminal law as a socio-cultural practice, which enables an adequate description and assessment of the diversity of claims to recognition that minorities make to the state of which they are part. In broadening the view the claims of minorities become linked to their position within the constitutional order (Tully 1995), and then the question arises as to whether minorities have been unjustly excluded or included (Lindahl 2013) in that order, which may lead to recognise a new plurality of responses that the state and its criminal law should provide to them. By broadening the understanding of criminal law it is enabled an adequate framework for the assessment of the phenomenon of accommodation. Certainly, this is necessary for claims to access diverse cultural and social practices to be met with justice, for the state’s responses need to be sensitive to the diversity of claims put forward by minorities, without overlooking that the state as well need to access its particular social and cultural practices.
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Üelgen, Ozlem. "The labour exploitation of indigenous peoples : the interface between labour law and human rights law." Thesis, University of Nottingham, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.299579.
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Munarriz, Gerardo J. "Indigenous peoples and international human rights law : mining, multinational corporations and the struggles of indigenous peoples in Peru." Thesis, University of British Columbia, 2017. http://hdl.handle.net/2429/62915.
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This thesis examines and questions the role of international human rights law and international economic law in relation to the increasing encroachment and dispossession of Indigenous lands and territories by multinational corporations (MNCs) in the extractive industry. It also aims to explore the role of a national state’s legal framework and policies not only in validating, authorizing and embedding this process, but also in authorizing a growing and pervasive trend of persecution and criminalization of Indigenous communities who challenge and resist MNCs’ operations. The examination of the relationship between national and international law provides a terrain to grasp how international economic law and international human rights law have become part of evolving regulatory architectures of global governance aiming to validate and embed global capital accumulation.
Focusing on Peru, this thesis argues that law, particularly international economic law and the legal framework developed in Peru since the 1990s, has played a prominent role in facilitating and embedding multinational corporate investment in the extractive industry, and in weakening the rights of Indigenous and peasant communities to control their land, water and resources. Peru’s legal framework and policies on extractive industries have not only validated the expansion of MNCs operations and dispossession of Indigenous lands, but have also validated a growing trend of persecution and criminalisation of Indigenous communities. While international economic law constitutes, enables and protects MNCs, international human rights law and corporate social responsibility mechanisms are linked to and help to extend the expansion and deepening of global capital accumulation by means of laws and regulations designed to facilitate and remove barriers to the power and mobility of MNCs.
Notwithstanding legal and socio-economic barriers, Indigenous communities have mobilized against and resisted MNCs operations. A comparison of three conflicts involving corporate actors and local communities reveals the existence of intense social mobilization and resistance of Indigenous and peasant communities to defend their land rights, their environment and livelihood, their participation in the decision making process and fair distribution of economic benefits.Law, Peter A. Allard School of
Graduate
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Napoleón, Val. "Thinking about Indigenous Legal Orders." Derecho & Sociedad, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/118803.
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Rethinking Indigenous legal traditions is fundamentally about rebuilding citizenship. The theory underlying this paper is that it is possible to develop a flexible, overall legal framework that Indigenous peoples might use to express and describe their legal orders and laws, so that they can be applied to present-day problems. This framework must be able to, first, reflect the legal orders and laws of decentralized (i.e., non-state) Indigenous peoples, and second, allow for the diverse way that each society’s culture is reflected in their legal orders and laws. In turn, this framework will allow each society to draw on a deeper understanding of how their own legal traditions might be used to resolve contemporary conflicts, complex social injustices, and human rights violations.The Canadian state is not going away and the past cannot be undone. This means that Indigenous peoples must figure out how to reconcile former decentralized legal orders and law with a centralized state and legal system. Any process of reconciliation must include political deliberation on the part of an informed and involved Indigenous citizenry. We have to answer the question, «Who are we beyond colonialism?»Repensar las tradiciones legales indígenas es fundamental para la reconstrucción del concepto de ciudadanía. La teoría subrayada en este ensayo es que sí es posible desarrollar un flexible marco legal general que los pueblos indígenas deberían usar para expresar y describir sus órdenes legales y derechos, tal es así que pueden ser aplicados a los problemas actuales. Este marco debe ser capaz, primero, de plasmar los ordenamientos legales y los derechos siguiendo la forma descentralizada (esto es, no-estatal) de los pueblos indígenas; y segundo, permitir que las diversas formas de la cultura de cada sociedad sean reflejadas en sus ordenamientos jurídicos y derechos. Este marco permitirá, a su vez, que cada sociedad haga uso de un entendimiento profundo sobre cómo sus tradiciones legales deberían ser usadas para resolver conflictos contemporáneos, injusticias sociales complejas y la violación de derechos humanos.El Estado canadiense no se está debilitando y el pasado tampoco está descartado. Esto significa que los pueblos indígenas deben analizar cómo reconciliar sus antiguos ordenamientos legales y derechos descentralizados con el Estado y el sistema legal centralizados. Cualquiera fuera el proceso de reconciliación debe incluir una deliberación política sobre la ciudadanía indígena informada y comprometida. Tenemos que responder ala pregunta: «¿Quiénes somos nosotros más allá del colonialismo?».
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Slakov, Karen. "Where is the Indigenous law in state based transitional justice processes?" Thesis, University of British Columbia, 2017. http://hdl.handle.net/2429/61471.
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This paper discusses the impact of state engagement with Indigenous legal orders through transitional justice mechanisms such as the Canadian Truth and Reconciliation Commission. My aim is to contribute to an understanding of the potential implications of the power imbalances caused by settler colonialism on interactions between state and Indigenous legal systems. This thesis builds on the Fanonian theorization of culture under settler colonialism by extending his analysis to Indigenous legal systems impacted by settler colonialism. In the case of the Canadian Truth and Reconciliation Commission, the inclusion of Indigenous legal traditions in the Commission’s work has failed to create space for Indigenous law as a set of viable alternatives to state law. Instead, longstanding settler depictions of Indigenous law as static and primitive are reinforced and the dominant position of state law in relation to Indigenous law is reinscribed in the collective settler imagination. Rather than create space for an Indigenous legal resurgence that would strengthen the legal authority of Indigenous law, the Commission’s engagement with Indigenous law ultimately served to affirm the supremacy of state law over Indigenous law and erase those aspects of Indigenous law that might prove threatening to the established settler colonial state.Arts, Faculty of
Political Science, Department of
Graduate
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Venne, Sharon Helen. "Our elders understand our rights, evolving international law regarding indigenous peoples." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1997. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp04/mq21232.pdf.
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Lassonde, Marie-Claire. "The protection of indigenous medicinal knowledge in international intellectual property law /." Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=78220.
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For 20 years, and more intensively during the last decade, indigenous knowledge has challenged the regime of intellectual property. If this field of law has been, in the past, challenged by new technology, it is now, with the problematic of indigenous medicinal knowledge, put to the test by "old invention". The present thesis examines the status of indigenous medicinal knowledge in international intellectual property law. Thus, we will proceed to the study of the main international conventions and the common regime of intellectual property law in order to determine the treatment accorded to medicinal indigenous knowledge within the actual system. The role that intellectual property could play in the future will also be examined.
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Bojosi, Kealeboga N. "International law, colonialism and the concept of indigenous peoples in Africa." Thesis, University of Oxford, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.571607.
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This thesis draws on the conventional narrative that the concept of indigenous peoples developed within the context of the colonial encounter and that the norms that developed within that context aimed at regulating the relations between colonial settlers and the indigenous peoples. However, the thesis argues that international law, guided by colonial imperatives, developed parallel principles and norms to regulate relations between colonial settlers and the natives in different contexts. In territories marked unsuitable for permanent and extensive European settlement, trusteeship and eventual decolonisation were prescribed. Whilst the international law rhetoric of trusteeship putatively applied to all indigenous peoples, in reality the indigenous peoples in territories marked suitable for permanent European settlement were decidedly excluded from the practical implementation of this doctrine, from the West Africa Berlin Conference through to the Trusteeship Council of the UN. This would receive international juridical imprimatur through the so-called saltwater thesis. This exclusion became the conceptual pivot of the emergent international indigenous peoples' movement aimed at rectifying the obvious anomaly of the selective decolonisation process. The thesis further argues that the contemporary norms of international law on indigenous peoples developed within this context to regulate specific socio-economic, political and historical contexts. Furthermore, it contends that the perceived indigenous peoples' problematique in Africa is partly a broader post-colonial manifestation of the manner in which international law sought to manage the colonial encounter in Africa through the creation of pseudo-European political, economic and social institutions and policies that presently exist. The thesis deconstructs the conceptual basis for the application of the concept of indigenous peoples in post-colonial Africa and argues that a less controversial approach is to focus on the norms within the African Charter on Human Peoples' Rights and general international law that do not depend on the flawed conceptual assumptions of indigenous peoples.
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Abidin, Handa Satyanugraha. "REDD-plus and the protection of indigenous peoples under international law." Thesis, University of Edinburgh, 2014. http://hdl.handle.net/1842/25863.
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The United Nations Framework Convention on Climate Change (UNFCCC) regime has been developing a voluntary climate change mitigation mechanism that is called ‘Reducing Emissions from Deforestation and Forest Degradation in Developing Countries; and the Role of Conservation/Conservation of Forest Carbon Stocks, Sustainable Management of Forests, and Enhancement of Forest Carbon Stocks in Developing Countries’ (REDD-plus). One of the most important aspects of the implementation of REDD-plus activities is that the activities should not violate the rights of indigenous peoples that live within and near the forest areas. This research has identified at least three main approaches that can be used by indigenous peoples to protect their rights in the context of REDD-plus. The first approach is the UNFCCC approach that uses the UNFCCC regime to protect indigenous peoples in the context of REDD-plus. The second approach is the human rights approach; it uses human rights treaties and their bodies, the regional commissions and courts on human rights, as well as the UN bodies and special rapporteur that are pertinent to indigenous peoples’ issues to protect indigenous peoples in the context of REDD-plus. The third approach is the financial approach that uses the United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation (UN-REDD Programme) and the World Bank’s Forest Carbon Partnership Facility (FCPF) to protect indigenous peoples in the context of REDD-plus. In order to increase the protection of indigenous peoples in REDD-plus, a coherent approach needs to be created and enhanced through cooperation and coordination by the parties that are directly or indirectly involved with the three respective approaches listed above. It should be noted that the available protection for indigenous peoples in the context of REDD-plus are currently insufficient to quickly address cases where the rights of indigenous peoples have been violated in REDD-plus activities. In order to address this insufficiency, as well as to achieve a coherent approach to protecting indigenous peoples in the context of REDD-plus, the research recommends the establishment of a REDD-Plus Committee supported by a REDD-Plus Panel to develop and increase the protection of indigenous peoples in REDD-plus, should REDD-plus is placed outside the Clean Development Mechanism (CDM). On the other hand, if REDD-plus is placed under the CDM then the research recommends the establishment of a Committee on REDD-Plus under the CDM and a Panel on the CDM. The existence of the pertinent committee and panel can be expected to bring benefits in the context of REDD-plus as well as in wider contexts, such as climate change, human rights, and international law through its contribution to reduce the risks of the negative effects of the fragmentation of international law.
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Afadameh-Adeyemi, Ashimizo. "Indigenous peoples and the right to culture : an international law analysis." Master's thesis, University of Cape Town, 2009. http://hdl.handle.net/11427/4502.
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Includes bibliographical references.In the post or neo-colonial era, the question of fair and equitable treatment of indigenous peoples remains a subject of international political and legal discourse. Efforts have been made to study ways of promoting and protecting indigenous rights and to develop international norms for the protection of these rights. These efforts have sprung forth a plethora of questions; these questions include 'who qualifies as indigenous peoples?' and 'what rights do they enjoy under international law.' This thesis takes a cursory look at the conceptual underpinnings of indigenous peoples and specifically evaluates their right to culture in the parlance of international law.
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Petersson, Jess. "Status and Trends Associated with Indigenous Communities Inland Water and the Development of Relevant International Law." The University of Waikato, 2008. http://hdl.handle.net/10289/2512.
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This thesis is written at a time when the world faces many challenges. Gross violation of human rights persists, discrimination against and alienation of marginalized groups continues, the gulf between rich and poor yawns ever wider, and the rapid degradation of the environment continues to gain momentum. One area upon which environmental degradation impacts most crucially is water. In terms of vulnerability and scarcity as a commodity, water has come to be called by some 'the new oil'. Already, water has influenced political strategies and been the cause of wars. The aim of this thesis has been, firstly, to identify the status and trends in inland water ecosystems and their immediate dependents, with particular reference to indigenous communities living close to the water source, and hence more directly affected. If the destruction of inland water ecosystems is allowed to continue unchecked, it will inevitably have disastrous universal consequences. The thesis also discusses the protection of indigenous knowledge and innovations, provided by intellectual property and other instruments, and attempts to analyse developments in international law, which have relevance for indigenous peoples in connection with the conservation, management and sustainable use of inland water systems.
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Ng, Mei Lin, and n/a. "In Search of the 'Golden Thread': Common Law Interactions With Indigenous Law in Canada, Australia and New Zealand." Griffith University. Griffith Law School, 2006. http://www4.gu.edu.au:8080/adt-root/public/adt-QGU20070314.163150.
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The thesis explores the interactions of the common law with indigenous law in three jurisdictions: Australia, New Zealand and Canada. Case law involving family, criminal and land law is examined in detail, to establish how the common law has interacted with indigenous law. Two aspects of common law interactions are explored: judicial approaches to the recognition of indigenous law; and, judicial perceptions about the relationship between the common law and indigenous law. Courts faced with indigenous law have taken one of three approaches to recognising it. These are respectively referred to in the thesis as the non-recognition approach, the accommodation approach and the recognition approach. With regard to judicial perceptions about the relationship between the common law and indigenous law, the case law reveals seven different perceptions. They are: no relationship; mere acknowledgement; separate but capable of recognition; adjustment; assimilation/domination; assimilation/search for partnership; and absorption. Where a relationship is acknowledged, although perceptions may vary, essentially they can be placed in one of three categories. Courts may regard the relationship as one between two separate bodies of law, with points of intersection. They may regard it as one of convergence, perhaps even partial integration, between separate legal traditions. Finally, they may regard indigenous law as having been absorbed into the dominant legal system. Courts with this latter perception regard indigenous law as analogous to English local customs. Having identified more than one approach to the recognition of indigenous law, consideration is given to the circumstances in which the approaches are used, exploring differences arising out of the subject area in question and the jurisdiction in which the case is considered. The thesis also demonstrates that some correlation exists between the judicial approach to recognition of indigenous law and judicial perceptions about the relationship of the common law with indigenous law, though this correlation cannot be demonstrated in all cases. Lastly, the capacity of the common law to recognise changes to indigenous law is considered, where the case law reveals that both the judicial approach to recognition of indigenous law, and judicial perceptions about the relationship between the common law and indigenous law have a bearing on the capacity of the courts to recognise change. The thesis demonstrates that both the judicial approach to recognition of indigenous law and judicial perceptions about the relationship between the common law and indigenous law affect common law interactions with indigenous law.
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Ng, Mei Lin. "In Search of the 'Golden Thread': Common Law Interactions With Indigenous Law in Canada, Australia and New Zealand." Thesis, Griffith University, 2006. http://hdl.handle.net/10072/367204.
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The thesis explores the interactions of the common law with indigenous law in three jurisdictions: Australia, New Zealand and Canada. Case law involving family, criminal and land law is examined in detail, to establish how the common law has interacted with indigenous law. Two aspects of common law interactions are explored: judicial approaches to the recognition of indigenous law; and, judicial perceptions about the relationship between the common law and indigenous law. Courts faced with indigenous law have taken one of three approaches to recognising it. These are respectively referred to in the thesis as the non-recognition approach, the accommodation approach and the recognition approach. With regard to judicial perceptions about the relationship between the common law and indigenous law, the case law reveals seven different perceptions. They are: no relationship; mere acknowledgement; separate but capable of recognition; adjustment; assimilation/domination; assimilation/search for partnership; and absorption. Where a relationship is acknowledged, although perceptions may vary, essentially they can be placed in one of three categories. Courts may regard the relationship as one between two separate bodies of law, with points of intersection. They may regard it as one of convergence, perhaps even partial integration, between separate legal traditions. Finally, they may regard indigenous law as having been absorbed into the dominant legal system. Courts with this latter perception regard indigenous law as analogous to English local customs. Having identified more than one approach to the recognition of indigenous law, consideration is given to the circumstances in which the approaches are used, exploring differences arising out of the subject area in question and the jurisdiction in which the case is considered. The thesis also demonstrates that some correlation exists between the judicial approach to recognition of indigenous law and judicial perceptions about the relationship of the common law with indigenous law, though this correlation cannot be demonstrated in all cases. Lastly, the capacity of the common law to recognise changes to indigenous law is considered, where the case law reveals that both the judicial approach to recognition of indigenous law, and judicial perceptions about the relationship between the common law and indigenous law have a bearing on the capacity of the courts to recognise change. The thesis demonstrates that both the judicial approach to recognition of indigenous law and judicial perceptions about the relationship between the common law and indigenous law affect common law interactions with indigenous law.Thesis (PhD Doctorate)
Doctor of Philosophy (PhD)
Griffith Law School
Arts, Education and Law
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Fan, Rebecca C. "Governing indigenous knowledge? : a study of international law, policy, and human rights." Thesis, University of Essex, 2015. http://repository.essex.ac.uk/16538/.
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The story of indigenous peoples’ knowledge systems, also known as indigenous knowledge (hereafter IK), is a complex one tangled with different and sometimes conflicting interests, values, and interpretations from a variety of disciplines, or specialized fields. A number of international treaty and trade agreements that want to ‘harness’ IK also turned it into an object of global governance, as this PhD study argues. This study also argues that the well-being of IK has gradually emerged as a global agenda for sustainable development and intergenerational justice, which constitute the defining characteristics of contemporary discourse of heritage. Consequently, IK issues and debates have become more versatile and multifaceted with a widening scope and mounting stakes. This is a sociological and legal study of knowledge that analyses the epistemological struggle resulting from different understandings of the nature and purpose of IK, which has causal relationship with the inadequacies of the governing regimes documented in this study. This study argues that such struggle and inadequacy form the core problem for IK governance. Furthermore, this study takes a novel approach guided by indigenous peoples’ epistemology, which represents ties between ecology, landscape, and people in a web of connections, to argue that IK is a cross-cutting subject and a form of emplaced knowledge. Hence it is not simply a property issue or debate as most literature tends to focus on. This study further argues that what constitutes the cornerstone of IK claims by indigenous peoples is essentially biocultural diversity that nurtured and sustained IK as well as IK-holder communities as distinct peoples. Through an interdisciplinary approach of synergy and synthesis, this study developed a number of original ideas and frameworks to analyse this complex story of IK. By doing so, this study shows how IK is a challenging subject that is inevitably political; it is also tangled with inherently heterogenetic and incoherent regimes of governance, from intellectual property and trade to environmental governance and development to natural and cultural heritage and human rights. This study takes these regimes as sites of inquiry in the tradition of critical theory to further unpack and problematize the development imperative and the private-property-based system exercised by these regimes. Finally, this study concludes that IK governance can make or break vulnerable groups like indigenous peoples to a point of prosperity or deeper poverty and extinction. Therefore, it requires particular care with an integrated approach. This study aims to fill an important gap in the literature with recommendations for future policy and research.
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Hudson, Michael. "The rights of indigenous populations in national and international law : a Canadian perspective." Thesis, McGill University, 1985. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=63181.
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Dhillon, Rajwinder Kaur. "Colonial legal institutions and their impact upon indigenous practices in Bengal, 1860-1914." Thesis, University of Edinburgh, 2012. http://hdl.handle.net/1842/7928.
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This thesis examines the impact of colonial legal institutions planted by the British administration upon the working of local indigenous practices in Bengal from 1860 to 1914. The aim of the thesis is two-fold. Firstly, the aim is to highlight the constraints and limitations faced by institutions that were reorganised following the assumption of Crown control in 1858. Secondly, the purpose is to illustrate the ways in which these limitations allowed the native population to mould, and manipulate, state institutions according to local needs and expectations. By examining these issues the aim is to highlight the tenuous relationship between western methods and indigenous practices, at times complementing each other and at other times proving to be incompatible. Through an examination of the system of criminal administration, the thesis seeks to highlight the complexities of the interaction between the local populace and colonial law. Rather than representing rigid categories which highlighted the difference between coloniser and colonised, the system of criminal administration was often the site where boundaries would often become blurred. As the thesis will aim to demonstrate through specific scenarios and cases described both in private memoirs and official records, it was a site which would be shaped by a number of influences- from clashing interests and changing alliances amongst local groups to the conflicting objectives of the colonial rulers themselves. In the process individual agencies were asserted that confound simplistic characterisations of the impact of colonialism in this important region within the British Indian empire.
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Batt, Fiona. "A critique of the status of ancient indigenous human remains in international law." Thesis, University of Bristol, 2015. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.687442.
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This thesis set out to understand the continued retention and delay in the return of ancient indigenous human remains by museums through an overall examination of the status of ancient indigenous human remains in international law. This thesis focuses on the status of indigenous human remains from a legal perspective critiquing property, cultural property, cultural heritage, intellectual property, Traditional Knowledge (TK) and a human rights approach. This thesis argues that there are three potential explanations for the delay or non-return evident in disputes. This thesis has offered up three possible solutions in a response to the explanations. The explanations are, (i) Ancient indigenous human remains are viewed as property by museums therefore they see themselves as the owners however indigenous peoples see themselves as custodians of their ancestors' human remains; (ii) There is a lack of a clear legal status in international law in relation to ancient indigenous human remains due to their sui generis nature; (iii) Furthermore there is a lack of human rights sensitisation in relation to claims for the return of ancient indigenous human remains. The solutions are, (i) Drawing on Honoré's theory and the metaphor of the bundle of sticks this thesis substitutes the traditional bundle of sticks in the property bundle for an indigenous perspective of the sticks which illuminates the true value of ancient indigenous human remains to indigenous peoples; (ii) After an analysis of the fragmented nature of international law in this area a useful jurisprudential and instrument Toolkit emerges; (iii) Adopting a human rights based approach recognises the necessary implementation of repatriation mechanisms. The approach sensitises the associated claims which run parallel with claims for ancient indigenous human remains. Furthermore a human rights based approach recognises that the cultural property and intellectual property terms in the United Nations Declaration on the Rights of Indigenous Peoples can be interpreted with reference to the indigenous context of the Declaration.
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O'Toole, Darren. "Taking Métis Indigenous Rights Seriously: 'Indian' Title in s. 31 of the Manitoba Act, 1870." Thèse, Université d'Ottawa / University of Ottawa, 2012. http://hdl.handle.net/10393/23779.
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In Sparrow, the Supreme Court of Canada stated that ss. 35(1) is “a solemn commitment that must be given meaningful content” the objective of which is to ensure that Aboriginal rights “are taken seriously.” Despite such a clear directive from the highest court, in Manitoba Métis Federation v. Canada [2007], MacInnes J. of the Queen’s Bench of Manitoba seemed incapable of taking seriously the Aboriginal title of the Métis under s. 31 of the Manitoba Act, 1870, and in no way thought of its explicit recognition as ‘a solemn commitment that must be given meaningful content’. For his part, if Scott C.J. of the Manitoba Court of Appeal was able to find a ‘cognizable Aboriginal interest’ in the expression ‘Indian title’, and thereby recognize to some extent Métis Aboriginal rights, he seemed incapable of conceiving such interests as title. This thesis is basically an attempt to ‘take seriously’ the common law Aboriginal title of the Métis. In order to do so, it first looks at the treatment of the concept of Indian title and the Royal Proclamation, 1763, in the lower courts throughout the infamous St. Catharine’s Milling and Lumber case. Subsequently, the existing common law doctrines of inherent Métis rights, those of the derivative rights doctrine, the empty box doctrine and the distinct Aboriginal people doctrine are all found to be inadequate to the task of providing cogency to the ‘constitutional imperative’ that was evoked in Powley. A fourth doctrine is therefore proposed, that of a Métis Autochthonous or Indigenous rights doctrine. In light of this, it is argued that the recognition of the ‘Indian’ title in s. 31 was not a mere ‘political expediency’ but is rooted in the underlying constitutional principle of the protection of minorities. Furthermore, insofar as the ‘Indian’ title of the Métis is taken seriously, it can be seen as having been extinguished through the federal power over ‘lands reserved for Indians’ under ss. 91(24). The legal implication is that they were, in the logic of the times, basically enfranchised ‘Indians’. Finally, by applying the grid established in Sioui for determining the existence of a ‘treaty’, it is argued that s. 31 is a ‘treaty’ or land claims settlement within the meaning of s. 35.
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Aho, Alison. "Criminal Justice in Northern and Remote Communities: Redressing the Substantive Inadequacies in Achieving Long-Term Justice for Indigenous Youth." Thesis, Université d'Ottawa / University of Ottawa, 2019. http://hdl.handle.net/10393/38665.
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In spite of legislative, judicial, and governmental initiatives, Indigenous youth continue to face over-representation in the Canadian criminal justice system. While the Government of Canada appears to be closer than ever to accepting wide scale self-governance of Indigenous peoples, there are a number of obstacles within the proposed solutions that will continue to prevent Indigenous youth from achieving sentencing equity. This thesis asks the question, to what extent can the Youth Criminal Justice Act and supporting regulations be reformed in order to effectively “rehabilitate and reintegrate” Indigenous youth and serve the Government of Canada mandate of “reconciliation;” or, considering the colonialist underpinning of Canadian legislation, to what extent do Indigenous youth require alternative solutions to establish equitable justice? In answering this question, this thesis engages the theoretical framework of Critical Race Theory to examine existing legislation, jurisprudence, programs, and institutions geared towards creating sentencing equity for Indigenous youth in Canada, ultimately proposing recommendations for a more fair criminal justice system.
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Barker, Gordon S. "John Marshall and Native Rights: The Law of Nations and Scottish Enlightenment Influence." W&M ScholarWorks, 2003. https://scholarworks.wm.edu/etd/1539626418.
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Gwarinda, T. A. "The Impact of the common law and legislation on African indigenous laws of marriage in Zimbabwe and South Africa." Thesis, University of Fort Hare, 2013. http://hdl.handle.net/10353/1421.
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The study sought to examine the development of customary law, primarily focusing on the extent to which the true African marriage has been preserved by its incorporation in, and regulation by legislation and the constitutions of Zimbabwe and South Africa. Today, colonial legislation has either been repealed or revised. However, evidence persists suggesting the inclusion of western principles within frameworks governing African marriages such as the Customary Marriages Act and the Recognition of Customary Marriages Act of post-independence Zimbabwe and South Africa respectively. To understand the true purpose of custom, the study initially investigates the classical customary law position drawing deeper insights into the main features of the African marriage. From an African perspective, the research revealed whether legislation satisfactorily dealt with aspects such as registration of customary marriages, determination of minority and capacity to marry, payment of bride wealth, grounds for divorce, proprietary consequences of marriage during and after termination of marriage by death or divorce and women’s rights to communal land tenure and immovable property among others. Apart from legislation it became imperative to determine the role of constitutionalism and human rights law in the regulation and preservation of custom. A comparative study was motivated not only because Zimbabwe and South Africa share a border but also because migration between the two countries in the past decade due to various socio-economic forces has led to inter-marriages and cultural diversity. In addition, historically, both jurisdictions have Roman-Dutch law as the basis for the formation of their legal systems. The methodology remained largely a qualitative type research based on documentary analysis. Several findings emerged among which was the fact that, women in traditional African marriages had property rights contrary to popular belief however they continue to be most disadvantaged when it comes to having real rights in ownership of communal land. The African marriage generally sought to preserve marriage more than its western counterpart, the civil marriage. Legislation was the main vehicle for attaching customary law to western principles of law thus losing its intended purpose. Other findings were that polygamy and widow inheritance are prevalent and continue to face condemnation in today’s society; constitutionalism and international human rights law do not readily find acceptance among traditionalists; bride wealth payments persist among rural and urban folk alike and continue to symbolise a marriage between respective parties and their families; and spouses omit to register customary marriages mainly because bride wealth payments adequately legitimise their unions. Initiation ceremonies persist among some ethnic groups particularly the South African Xhosa who have adhered to circumcision for boys as determining their capacity to marry. The study concludes by making recommendations that could assist in harmonising customary law and common law. These include educational initiatives; advocacy and advice giving; regulation of unregistered customary marriages; improving access to justice; eradication of child marriages; improving the status of rural women; and constitutional reform. It is hoped that these recommendations will bridge the gap between customary law and western law as we endeavour to determine the future of the African marriage in a contemporary traditional context.
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Vaca, Daza Jhanisse. "HUMAN RIGHTS VIOLATIONS TO INDIGENOUS PEOPLE IN COMPETITIVE AUTHORITARIAN REGIMES IN SOUTH AMERICA." Kent State University Honors College / OhioLINK, 2016. http://rave.ohiolink.edu/etdc/view?acc_num=ksuhonors1464432307.
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Imai, Shin, and Sally Kang. "Financial Risk and Indigenous Consent." Derecho & Sociedad, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/119054.
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In this article, the authors describe how the International Financial Corporation of the World Bank, and the 77 global financial institutions that have signed on to the Equator Principles, have come to the conclusion that social conflict with indigenous communities needs to be resolved through the application of free, prior, informed and consent. While the requirement to obtain consent of an indigenous people would appear to make it more difficult for extractive industry projects to proceed, theories of dispute resolution developed by the Harvard Negotiation Project suggest that where consent is obtained, it is more likely thatc onflicts will be reduced.
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Martins, Casagrande Melissa. "Breaking the circular argument: the rights of indigenous and other socio-ethnic distinct peoples in Brazil." Thesis, McGill University, 2011. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=96916.
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This thesis argues that the current interpretation of constitutionally recognized rights of indigenous and other socio-ethnic distinct peoples in Brazil is entrenched in a circular argument logical fallacy. The argument consists in the denial by the State of the full enjoyment of constitutionally recognized rights of indigenous peoples, and to some extent, other socio-ethnic distinct peoples, by maintaining that these peoples lack agency to exercise such rights. The circularity of the argument resides in the fact that this perceived lack of agency is often the result of State practice. The perpetuation of the circular argument within decision-making processes of all branches of government is described and their connection to patterns of exclusion promoted by the State is established. A pluralist constitutional reinterpretation perspective is presented as a potential contribution to break the circular argument.Cette thèse propose que l'interprétation actuelle des droits constitutionnellement reconnus aux peuples autochtones et d'autres peuples socio-ethniquement différenciés au Brésil est consolidé par un faux raisonnement classifié ici comme un argument circulaire. L'argument repose sur la négation, par l'État, de la pleine jouissance des droits constitutionnellement garanties aux peuples autochtones et, dans une certaine mesure, d'autres peuples socio-ethniquement différenciés, sur l'affirmation que ces peuples ne possèdent pas l'autonomie cognitive pour exercer ces droits. La circularité de l'argument réside dans le fait que cette apparente absence d'autonomie cognitive est souvent le résultat des actions de l'État. La perpétuation de l'argument circulaire dans les processus de prise de décisions des trois pouvoirs gouvernementaux est décrite et sa connexion avec les modes d'exclusion promues par l'État est mise en évidence. Une perspective de réinterprétation constitutionnelle pluraliste est alors proposée comme une contribution potentielle à la rupture de l'argument circulaire.
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Lussier, Danielle. "Law with Heart and Beadwork: Decolonizing Legal Education, Developing Indigenous Legal Pedagogy, and Healing Community." Thesis, Université d'Ottawa / University of Ottawa, 2021. http://hdl.handle.net/10393/42012.
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Employing decolonized, Indigenous research methods, the author considers Métis Beadwork Practice through the analytical lens of Therapeutic Jurisprudence and establishes the practice as a holistic Indigenous Legal Pedagogy for knowledge creation and mobilization in legal education.
The author agrees with Drs. Friedland and Napoleon who suggest that a significant challenge in and to Indigenous legal research is that such research occupies a space of “deep absence,” with the starting line moved back as a consequence of colonialism. Building on the work of Dr. Shawn Wilson, the author espouses an Indigenous Research Paradigm which requires a prioritization of the relationship to the ideas and making space for non-linear logic systems and Indigenous ways of knowing in scholarly research. In her work, the author prioritizes synthesis over deconstruction on the belief that deconstructing relationships to ideas for the purpose of analyzing them would have the effect of damaging the cognitive and emotional relationships developed through the research ceremony.
While the work embodies the four essential elements of autoethnography, the author argues that the work of Indigenous scholars speaking in their own voices is sui generis in nature. She argues that Indigenous scholars who employ storytelling and other culturally-relevant knowledge mobilization practices are engaging a distinct Indigenous Research Method.
This work ultimately progresses in a non-linear fashion and incorporates extra-intellectual knowledge including poetry, music, and photography. The use of multiple fonts and other formatting devices including right justification are used to underline shifts in voice and perspective throughout the work. These pedagogical choices valourize the ways of knowing of Indigenous women and honour the author’s Métis worldview, including her understanding that all things are interrelated. The author examines, and ultimately eschews, notions of neutral objectivity in research as colonial constructs that undermine Indigenous Knowledge Systems and contribute to the ongoing colonization of Indigenous peoples in post-secondary education.
Following an introduction to the legal and social history of Forced Assimilative Education of Indigenous Peoples in Canada, the author reviews recent research into ongoing colonialism, racism, and ethno-stress experienced by Indigenous Learners in post-secondary education. The
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author subsequently explores the specific concern of the subjugation and erasure of Indigenous women’s knowledge in academia. She conducts a review of existing literature in the sphere of Feminist Legal Theory, examining and ultimately rejecting intersectionality and conceptualizations of sisterhood as possible remedies to discrimination faced by Indigenous women legal scholars. She argues that the lived experience of Indigenous women is situated not at an intersection, but rather in the centre of a colonialism collision. As a consequence, the author argues that existing Feminist Legal Theory does not create adequate space for Indigenous difference, experiences, or worldviews.
Offering insight into legal education, legal ethics, and professionalization processes, the author also explores questions of lived experience of Indigenous lawyers beyond the legal academy. She argues that learning the language of law is but the first element in a complex professionalization process that engages structures of patriarchal hierarchy in addition to the other forces, including colonialism and racism, that shape the legal profession. She further argues that, for Indigenous peoples, learning to speak the linear, official language of legal education represents a collision of even more complex systems of dominance, with the regulated approach to learning and problem-solving standing in direct opposition to Indigenous ways of knowing. Consequently, Indigenous law Learners frequently experience an intellectual rupture when engaging in the professional assimilation process.
The author offers an overview of Calls to Action 27, 28, 42, and 50 of the Truth and Reconciliation Commission of Canada and an introductory environmental scan of ongoing efforts to decolonize and indigenize law schools including land-based learning and the development of Indigenous Course Requirements (ICRs). The author subsequently considers the process of decolonizing the legal academy through the analytical lenses of Therapeutic Jurisprudence and Therapeutic Jurisprudence+. She ultimately positions the act of decolonizing legal education as an act grounded in decolonial love with the potential for healing individuals and communities struggling with ongoing colonialism and racism in the academy.
Building on the work of the late Professor Patricia Monture-Angus and contemporary Indigenous legal scholars including Drs. Tracey Lindberg, Darcy Lindberg, Val Napoleon, and John Burrows, the author considers possibilities for reimaging legal education through the development and use of Indigenous Legal Pedagogies. The author argues that Beadwork Practice holds a distinctive language of possibility as an Indigenous Legal Pedagogical practice as a result of deeply entrenched links between beads and law. The author explores the social and legal history of beads as a tool for legal knowledge production and mobilization in the context of wampum belts and beyond, including the use of Métis beadwork as a mnemonic device to facilitate intergenerational knowledge transfer of stories and songs that carry law. Further, she examines colonial law and policy that served to undermine the legal value of beads, and canvases emerging trends in the revitalization of community beadwork practice. Finally, the author positions Beadwork Practice as a holistic Indigenous Legal Pedagogy to support not only the revitalization of Indigenous Legal Orders and the development of cross-cultural competency as required under Calls to Action 27 and 28, but also therapeutic objectives of individual and community healing.
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Meyer, Adri. "A critical analysis of the legal framework regulating indigenous and community conserved areas in Namibia." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15163.
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Protected areas, formally established by governments, are one the key methods of preventing natural resource degradation by excluding humans from accessing certain sensitive areas, or by regulating the activities within these areas. Protected areas are viewed as essential for conserving the biodiversity on which the human race depends. However, the "fine and fences" preservationist approach to conservation has proved ineffective and it has been determined that often degradation occurs due to a lack of synchronisation between communities and their environments. This has led to the development and adoption of the community-based natural resource management (CBNRM) approach to conservation. The main principle of CBNRM is that traditional knowledge be applied and user-rights be legally devolved to indigenous communities in order to sustainably manage and conserve natural resources. Indigenous and community conserved areas (ICCAs) can be viewed as a tool to promote CBNRM. Communities voluntarily establish ICCAs and if the ICCA is recognised in legislation, they are then awarded a bundle of rights to manage and use resources while simultaneously implementing conservation activities. Certain key prerequisites are required in legislation and policy to promote effective and equitable ICCAs, including rights to land tenure, management and access, use and benefits to natural resources on communal land. Namibia has adopted a novel approach to CBNRM by the establishment of three types of ICCAs – conservancies, community forests and wildlife concessions. Different bundles of rights are awarded to communities who establish these ICCAs. Namibia has various policies and acts influencing the awarding of rights. These include the constitutional rights and freedoms, the amended Nature Conservation Ordinance, the Communal Lands Reform Act, the Traditional Authorities Act, the Forest Act and a variety of policies. Conservancies and community forests have benefit-sharing plans in place and cash revenues and non-economic benefits are shared equitably amongst members, therefore empowering the community as a whole. Communities adjacent to or within protected areas, to which concessions are granted, are able to enjoy access to resources within the protected area. One major shortcoming of Namibia's CBNRM legislation is the lack of secure land tenure in terms of property rights awarded to ICCAs. Without property rights, conservancies are not able to exclude outsiders from the communal state-owned land on which they are situated which leads to open access issues and lack of incentive to implement efforts to conserve natural resources. Although issues are still present, the Namibian legislature contains the basics of a successful national CBNRM movement.
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Kram, Noa. "Clashes over recognition| The struggle of indigenous Bedouins for land ownership rights under Israeli law." Thesis, California Institute of Integral Studies, 2013. http://pqdtopen.proquest.com/#viewpdf?dispub=3560747.
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This dissertation examines indigenous Arab Bedouin legal struggles for land ownership in the Negev area in Israel. Since the establishment of the State of Israel, the question of land ownership has been central to relations between Negev Bedouins and the state. The courts have rejected Bedouin claims for land ownership, declaring Negev lands as belonging to the state.
This study examined the historical Bedouin connection to land in the Negev, with emphasis on the evolution of customary practices of land ownership from the second half of the 19th century until the second half of the 20th century. The validity of Bedouin law in present Bedouin society is considered, as well as the meanings of land for Bedouin land claimants. In addition, clashes between Negev Bedouin law and Israeli law are considered in defining land ownership rights in the Israeli court.
Located in the discipline of anthropology, the theoretical frames for this study are indigenous people studies and postcolonial theories. The methodologies are participatory research and ethnography. Data sources included interviews with 15 Bedouin land claimants and 3 former Israeli officials, 9 visits to Bedouin villages, observations of 5 academic events regarding the land dispute, and primary documents from various state archives. In addition, a case study was conducted of one litigated land dispute between Bedouin land claimants and Israeli authorities.
In contrast to the traditional representations of the Bedouins as "rootless nomads," the results of this study indicate a strong connection of Bedouin participants to land in the Negev. The findings suggest that Bedouin society in the Negev includes practices of land ownership, and that their customary land ownership is valid in present Bedouin society. The legal conflict reflects clashes between Israeli legal practices and Bedouin indigenous oral practices, and has also been shaped by the national conflict between Israel as a Jewish state and the Bedouins as part of the Arab Palestinian minority.
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Phillips, Jacqueline 1980. "Native title law as 'recognition space'? : an analysis of indigenous claimant engagement with law's demands." Thesis, McGill University, 2006. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=101825.
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This thesis engages in a critique of the concept of Australian native title law as a 'recognition space'. It doing so, it treats native title law as a form of identity politics, the courts a forum in which claims for the recognition of identity are made. An overview of multicultural theories of recognition exposes what is signified by the use of recognition discourse and situates this rhetoric in political and theoretical context. A critique of native title recognition discourse is then developed by reference to the insights of sociolegal scholarship, critical theory, critical anthropology and legal pluralism. These critiques suggest that legal recognition is affective and effective. This thesis highlights native title law's false assumptions as to cultural coherence and subject stasis by exploring law's demands and indigenous claimant engagement with these demands. In this analysis, law's constitutive effect is emphasized. However, a radical constructivist approach is eschewed, subject engagement explored and agency located in the limits of law's constitutive power. The effects of legal recognition discourse, its productive and enabling aspects, are considered best understood by reference to Butler's notion of provisional 'performativity'. Ultimately, claimant 'victories' of resistance and subversion are considered not insignificant, but are defined as temporary and symbolic by virtue of the structural context in which they occur.
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Tran, Tran. "Water is country, country is culture : the translation of Indigenous relationships to water into law." Thesis, University of Dundee, 2013. https://discovery.dundee.ac.uk/en/studentTheses/7ee5eb6e-9cd2-4ddb-a94f-0f1e160d5de7.
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This thesis is about how unique Indigenous conceptions of and relationships to water can be translated into law and subsequently recognised and protected. Water is Country and Country is culture. Water is not only an essential element of all life processes but also of the unique identities of the Canning Basin traditional owners; the Karajarri, Nyikina and Mangala, Ngurrara, and Tjurabalan people. Relationships to water reflect not only intimate knowledge of where water can be sourced, whether a water source is permanent or seasonal, and its interactions with the underlying groundwater, but are also the source of Indigenous rights and interests. ‘Ownership’ of land and waters is expressed as ‘belonging to Country,’ with specific duties and responsibilities to care for water sources. Senior law holders are responsible for the maintenance of specific water places, and the cultural relationships with the sentient beings that live within permanent water sources (or jilas). Custodianship of water and the authority to make decisions over water are built into social interactions between landscapes and people. As such these norms form the basis of the legal traditions of the Canning Basin groups, providing a normalising authority for judging water access and use. The modes of cultural validation within the Canning Basin are reflected in the language, laws and customs of the Karajarri, Nyikina and Mangala, Ngurrara, and Tjurabalan people. As such, it is the relationships, and the corresponding knowledge and interactions that sustain these relationships that create the rights of the Canning Basin traditional owners to water, and, as we will see, form the basis of their recognised native title rights and interests. In Australia, Indigenous forms of native title are legally recognised by a statutory process outlined in the Native Title Act 1993 (Cth) enacted after the original Mabo decision, in which the High Court held that Indigenous laws and customs continue to exist and would be recognised by Australia’s property law system. The Mabo decision has enabled the retrospective recognition of Indigenous laws and customs. Parallel to the emerging legal recognition of Indigenous relationships to Country has been the recognition of the urgency of climate change, water scarcity and ecological degradation, creating an opportunity for an alliance between Indigenous and non-indigenous interests in protecting water places. In particular, the slow decline of the Murray Darling has brought the need to reconsider existing water management practices into stark relief while also causing developers to focus on the undeveloped northern Basins in Australia. The way in which water development is negotiated reflects broader questions: how can the pre-sovereignty rights of Indigenous people to traditional waters be recognised and to what extent will the relationships between the Canning Basin traditional owners and their underground rivers find expression in current laws? These questions are often answered based on the interaction between water planning and allocation and native title as enacted under legislation. However, focus on the internal coherency of the law has often distracted scrutiny away from the origins of legal traditions and its role in the iterative relationship with culture and identity. Socially and culturally ascribed normative values underpin the ability of the law to accommodate Indigenous claims. Within marginal contexts, dominant and projected relationships to water will continue to prevent the self-determined development of Indigenous groups. The central question of this thesis is: how can Indigenous relationships to water be meaningfully translated into Australia’s water laws? This research question involves two objectives: to articulate, both conceptually and legally, Indigenous legal traditions for defining relationships to water, reflected through cultural values and practices that relate to water, and to assess how Indigenous rights and interests in water have been translated into judicial decisions, as well as policy and legislative initiatives in both Australia and comparative jurisdictions.
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Chacaltana, Cortez Sofía. "From inka tambos to colonial tambarrías: law, economy and the «licentious» Activities of indigenous women." Pontificia Universidad Católica del Perú, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/113346.
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Historical accounts of the Iberian incursion into the Andes indicate that Spaniards were amazed by the sophisticated roads and waystations (tambos) they encountered across Andean territory. During and after the Iberian conquest, indigenous and Spanish armies constantly burned tambos for strategic reasons, in order to slow the movement of enemy troops. Despite this practice, tambos were one of the few institutions that continued during the colonial period. The Spanish rapidly recognized that tambos were beneficial for their economy, specifically markets and mining exploitation that required the movement of people, things, and animals across the Andean region. Consequently, during the early colonial period, Iberians dictated laws promoting the smooth functioning of tambos as a way of regulating the practices occurring in them; transforming tambos into a new colonial institution. In this article, I call attention to the transformation of tambos from a pre-Hispanic to a colonial institution as well as the colonial desire to control indigenous behavior in the new Andean society. I specially focus on the colonial fixation over the bodies of indigenous women, illustrating some aspects of the ideology of power exerted over indigenous communities. Finally, I discuss the importance of archaeology to better understand the transformation of tambos from the pre-Hispanic to the colonial period.Cuando llegaron los españoles a los Andes, alabaron los caminos y tambos incaicos que encontraron mientras avanzaban a través del agreste territorio andino. A pesar de que durante y luego de la conquista española los tambos sufrieron un gran deterioro, fueron una de las pocas instituciones que continuaron funcionando durante la época colonial. Los hispanos se dieron cuenta rápidamente de que estos edificios eran de gran necesidad para su economía basada en el comercio y en la explotación minera, sistema que para funcionar requería del transporte de gente, objetos y animales. Por ello, pese a que los tambos estaban inmersos en un sistema económico mercantilista colonial, los españoles dispusieron de una serie de cédulas que promovían la reinstitucionalización de los tambos como en la época de «Guaynacapac». En este artículo, me sirvo de datos históricos que refieren a la legalización del funcionamiento de los tambos y a las prácticas ocurridas en ellos para observar las múltiples fricciones entre los hispanos e indígenas. Además, llamo la atención sobre un aspecto en particular: la obsesión española sobre el cuerpo de la mujer indígena, que devela la ideología de poder colonial. Al final del artículo, discuto la importancia de la arqueología para contribuir con un mejor entendimiento sobre la transformación de esta institución desde la época prehispánica hasta la colonial.
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Anker, Kirsten. "The unofficial law of native title indigenous rights, state recognition and legal pluralism in Australia /." Connect to full text, 2007. http://hdl.handle.net/2123/2294.
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Thesis (Ph. D.)--University of Sydney, 2007.Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy to the Faculty of Law, University of Sydney. Degree awarded 2007. Includes bibliographical references. Also available in print form.
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Richard, Gina Dawn. "Radical Cartographies: Relational Epistemologies and Principles for Successful Indigenous Cartographic Praxis." Diss., The University of Arizona, 2015. http://hdl.handle.net/10150/578886.
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Indigenous cartography is based on a relational epistemology that works within a system where "place" and "ways of knowing" are intimately tied to Native communities' notions of kinship, oral tradition, and traditional ecological knowledge acquired over the millennia. It brings to life a place where mapping and geography cease to be simply Cartesian coordinates on a Euclidean plane and instead become storied landscapes. Indigenous cartography can be described as "radical" because it represents a departure from traditional Western ways of mapping and affirms an Indigenous political, economic and cultural sovereignty. As an intensely political act, Indigenous cartography can be an important tool used by Indigenous people to assert sovereignty in a bottom-up approach to land claims, in the management of cultural resources, and even to claim human remains for repatriation and reburial. If Indigenous groups wish to successfully utilize geospatial technologies as legal strategies, it will first require the development of the necessary infrastructure and training of Geographic Information Systems (GIS) specialists from within. In much the same way that colonial practices of the past worked to achieve hegemony through the making of political and cultural boundaries, Indigenous cartography can work to dismantle these same colonial boundaries. A theory and methodology of Indigenous cartographic praxis is in use among some First Nations in British Columbia. However no "best practices" yet exist for the Indigenous use-and-mapping discipline. Consequently in the United States, Indigenous mapping is still considered an emerging approach. Therefore, can American Indian political and cultural sovereignty be supported by the implementation of Indigenous geospatial technologies? This dissertation will examine the British Columbian model and distill principles that can be successfully implemented by U. S. Native American communities who wish to develop capacity for this emerging geospatial technology based on the success of the First Nations model.
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Toha, Kurnia. "The struggle over land rights : a study of indigenous property rights in Indonesia /." Thesis, Connect to this title online; UW restricted, 2007. http://hdl.handle.net/1773/9627.
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Craft, Aimee. "Breathing Life Into the Stone Fort Treaty." Thesis, Purich Publishing, 2011. http://hdl.handle.net/1828/4528.
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This dissertation will demonstrate that, by considering Treaty One (1871) from the perspective of the Anishinabe, especially Anishinabe laws or Anishinabe inaakonigwein and normative expectations, one can obtain a better understanding of why there is a discrepancy in interpretations of the treaty.
The research draws on practices of treaty making prior to Treaty One and shows that the parties relied extensively on Anishinabe protocols and procedural laws in the context of the Treaty One negotiations. In addition, kinship relationships, the obligations derived from them, and a sense of the sacred obligations involved in treaty-making, informed the agreement that was made between the parties. In particular, the kinship between a mother and child was invoked by the parties; the Crown negotiators relying on it primarily to secure good terms with the Anishinabe and the Anishinabe advocating for a commitment to ensuring a good life while respecting and preserving their autonomy.
The exploration of the historical records of the negotiations and the oral history surrounding the treaty help draw out the differing and sometimes competing understandings of the treaty, many of which continue to this day, and in particular in relation to the effect of the treaty agreement on legal relationships to land. They help illuminate questions regarding the interpretation of the Treaty, including what would be necessary in order to implement it in accordance with its signatories’ understandings.Graduate
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Bohigas, Ivar. "Indigenous peoples, protected areas and biodiversity conservation : a study of Australia´s obligations under international law." Thesis, Stockholms universitet, Juridiska institutionen, 2015. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-120750.
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Nguh, Augustin. "Implementing the basic international law principles relating to indigenous peoples’ rights: a case study of Cameroon." University of Western Cape, 2013. http://hdl.handle.net/11394/3912.
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Magister Legum - LLMIndigenous peoples constitute at least 5000 distinct peoples with a population of more than 370 million, living in 70 different countries. These peoples are typically subjected to a number of human rights violations (being excluded from decision-making processes and forced to assimilate into dominant groups, among others). The plight of these peoples has recently received worldwide attention. In 1989, the international community adopted the Convention on Indigenous and Tribal Peoples (Convention 169) to protect the rights of these peoples. In 2007 the UN adopted a Declaration on Indigenous peoples’ Rights. Attention is now focused on implementing indigenous peoples’ rights at the domestic level. Cameroon is not yet a party to Convention No.169 and so cannot be bound under the Convention to protect the rights of its indigenous peoples. Cameroon often denies any duty in this regard. However, Cameroon is party to core human rights instruments like the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, International Convention on the Elimination of all forms of Racial Discrimination and the African Charter on Human and Peoples Rights and Freedom. Cameroon also voted in favour of the adoption of the UN Declaration on Indigenous Peoples Rights. These international human rights instruments, with the exclusion of the Declaration, are not specifically dedicated to indigenous peoples’ rights. Given this situation, two questions arise: is Cameroon bound by any international legal obligation to protect the rights of its indigenous peoples; and if so, is Cameroon implementing the basic international law principles relating to indigenous peoples’ rights. Using an in-depth study and analysis of various international human rights treaties to which Cameroon is a party, this research will explore the grounds on which Cameroon, though not a party to Convention 169, can be held bound to protect the rights of its indigenous peoples (chapter 2). This research present the situation of the indigenous peoples in Cameroon and provide a brief overview of the legislative and policy measures taken by the government which in some way provide entry points for the protection of the rights of the indigenous people in Cameroon (chapter 3). A critical analysis of these measures highlights some areas of success but also work that remains to be done to ensure that the rights of Cameroon’s indigenous peoples are fully protected (chapter 4). The study concludes with a number of recommendations for further study and legal reform (chapter 5).
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Parkin, Stephanie. "The theft of culture and inauthentic art and craft: Australian consumer law and Indigenous intellectual property." Thesis, Queensland University of Technology, 2020. https://eprints.qut.edu.au/205870/2/Stephanie_Parkin_Thesis.pdf.
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This thesis addresses the 2017 Parliamentary Inquiry into the ‘growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia’. Inauthentic art and craft is Aboriginal ‘style’ souvenir products that are created without the involvement of an Aboriginal person. This thesis prioritises the evidence of Aboriginal and Torres Strait Islander people to the 2017 Inquiry, investigates intellectual property and consumer law and explores colonial influences and power dynamics that allow inauthentic art and craft to exist. This thesis answers the question: ‘How can the law protect Aboriginal cultural expression from exploitation?’
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Gwarinda, Tafira Albert. "Critical analysis of the impact of the common law on African indigenous law of inheritance a case study of post colonial legislation in Zimbabwe." Thesis, University of Fort Hare, 2009. http://hdl.handle.net/10353/161.
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The study looks at the main features of African indigenous law of succession and inheritance in Zimbabwe. It draws a distinction between the forms of inheritance practised between the two major ethnic groups, the Shona and the Ndebele. Whilst the research was mainly aimed at these two groups an investigation into inheritance practice by the South African Zulu and Xhosa counterparts was also made. An investigation into the impact of western influence on succession and inheritance was made taking a look at colonial legislation and case law, the general deduction being that it was a vehicle for attaching customary law to a western type law. After independence there was the issue of the impact of constitutionalism and international human rights law on succession in post colonial Zimbabwe. These were tools for change by bringing in notions of equality between men and women, issues that were highlighted in the cornerstone case of Magaya v Magaya, which was in turn discussed in the light of the Mthemu v Letsela and Bhe trilogy of cases in South Africa. In the final chapter there is a discussion of possibilities of reform and the future of customary law in Zimbabwe the highlight here being conducting proper legal research to ascertain the true purpose of custom.
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Anderson, Joshua Tyler Anderson. "The Bodies Belong to No One: Missing and Murdered Indigenous Men in Literature and Law, 1934-2010." The Ohio State University, 2018. http://rave.ohiolink.edu/etdc/view?acc_num=osu1531047437469823.
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Barnabas, Sylvanus. "The role of international law in determining land rights of indigenous peoples : the case study of Abuja Nigeria and a comparative analysis with Kenya." Thesis, Northumbria University, 2017. http://nrl.northumbria.ac.uk/32544/.
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In 1976, the Nigerian Government compulsorily acquired the ancestral lands of Abuja peoples of Nigeria without payment of compensation or resettlement. This is legitimised under Nigerian State laws. Indigenous peoples (IPs) suffer from injustices in relation to land globally. The purpose of this thesis is to find answers to the research questions emanating from this case study. One avenue explored herein in addressing dispossession of IPs’ lands in Africa, is through considering the relevance of international law on their rights. However, there is no universally agreed definition of IPs. In the determination of whether international law provides solutions to the challenges of protecting land rights of Abuja peoples, the existing description of IPs is challenged. The second avenue explored herein, is through a comparative approach to understanding how Kenya has resolved these challenges and how Nigeria should respond to similar challenges. The case study is used to illustrate the need for a viable relationship between State law, IPs’ customary law and international law. The choice of Nigeria is because the case study is in Nigeria. The choice of Kenya as a comparator is because like Nigeria, Kenya is Anglophone with a plural legal system and has recently embarked on law reforms in relation to customary land rights and the place of international law within its legal system. Drawing from theories of legal pluralism and post-colonialism, this doctrinal, case study and comparative enquiry, makes the following original contributions to knowledge. Firstly, the case study is used to argue that international law should expand its description of IPs to include collective of peoples with different cultures. Secondly, it draws from international child rights law to advance the argument that international law on IPs should present them more positively. Finally, the comparative analysis between Nigeria and Kenya on the above subjects has not been made by any known literature at the time of writing.
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McNeil, K. "Common law aboriginal title : The right of indigenous people to lands occupied by them at the time a territory is annexed to the Crown's dominions by settlement." Thesis, University of Oxford, 1987. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.234395.
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