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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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Frías, José. "Understanding indigenous rights : the case of indigenous peoples in Venezuela." Thesis, McGill University, 2001. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=31158.
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On December 15, 1999, the people of Venezuela approved a new Constitution, which is the first Venezuelan constitution to entrench the rights of indigenous peoples. The purpose of this thesis is to analyze the different theoretical issues raised by the problem of rights for indigenous peoples. It is argued that indigenous rights are collective rights based on the value of cultural membership. This implies both an investigation of the value of cultural membership and of the criticisms that the multicultural perspective has offered against that point of view.Indigenous peoples have the moral right to preserve their cultures and traditions. It is submitted that indigenous peoples have a double moral standing to claim differential treatment based on cultural membership, because they constitute cultural minorities and they were conquered and did not lend their free acceptance to the new regime imposed upon them. Therefore, they constitute a national minority, with moral standing to claim self-government and cultural rights.
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Mainville, Robert. "Compensation in cases of infringement to aboriginal and treaty rights." Thesis, McGill University, 1999. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=30317.
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This paper discusses the legal principles which are relevant in determining the appropriate level of compensation for infringements to aboriginal and treaty rights. This issue has been left open by the Supreme Court of Canada in the seminal case of Delgamuukw. The nature of aboriginal and treaty rights as well as the fiduciary relationship and duties of the Crown are briefly described. The basic constitutional context in which these rights evolve is also discussed, including the federal common law of aboriginal rights and the constitutional position of these rights in Canada. Having set the general context, the paper then reviews the legal principles governing the infringement of aboriginal and treaty rights, including the requirement for just compensation. Reviews of the legal principles applicable to compensation in cases of expropriation and of the experience in the United States in regards to compensation in cases of the taking of aboriginal lands are also carried out. Six basic legal principles relevant for determining appropriate compensation in cases of infringement to aboriginal and treaty rights are then suggested, justified and explained. (Abstract shortened by UMI.)
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Dorsett, Shaunnagh Law Faculty of Law UNSW. "Thinking jurisdictionally: a genealogy of native title." Awarded by:University of New South Wales. School of Law, 2005. http://handle.unsw.edu.au/1959.4/23963.
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In Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1, the majority of the High Court held that ???native title??? had survived the acquisition of sovereignty over the Australian continent and is ???recognised??? by the common law. However, all the judgments failed to articulate clearly either the nature of native title as a legal form, and the relationship of that legal form to the common law, or what is meant by ???recognition???. Twelve years later the High Court has still not provided a satisfactory understanding of any of these matters. The central problem investigated by this thesis is the nature of that relationship and of the legal interest of native title. It is contended that this relationship can be understood and ordered as a matter of jurisdiction. This thesis seeks to recuperate a substantive concept of jurisdiction, and specifically of a particular jurisdiction, that of the common law, and to demonstrate how the interest of native title results from the jurisdictional relationship between common law and indigenous law. Part I is a genealogy of native title, drawn out through a history of ideas about common law jurisdiction. It is an account of the legal practice of jurisdiction, through a conceptual elaboration of a particular jurisdiction: the common law. This part traces the history of the common law from its origins in a pluralistic, fragmented, jurisdictional landscape, to its current position as the ???law of the land???. It considers the traditional mechanisms and techniques through which the common law has ordered its relationships with other jurisdictions, and how it has appropriated matters traditionally within the purview of other jurisdictions, accommodating them within the common law as ???custom???. The thesis demonstrates that the same gestures and practices can be seen in modern native title decisions, and contends that the ordering which underpins both native title, and the Australian legal system, is jurisdictional. Part II examines the practice of jurisdiction through an examination of three technologies of jurisdiction, all of which contributed to the construction of the legal entity of native title as an act of jurisdiction: mapping, accommodation and categorisation.
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Rousselle, Serge. "La diversité culturelle et le droit constitutionnel canadien au regard du développement durable des cultures minoritaires /." Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=102241.
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Within the framework of international trade liberalization which has given rise to considerable thought about the fundamental contribution of cultural diversity to sustainable development, we explore the upholding of the educational rights of recognized linguistic minorities and of the aboriginal and treaty rights of First Nations under the Constitution Act, 1982. We examine these rights in the light of relevant judgments of the Supreme Court of Canada in order to confirm our initial hypothesis that the highest court in the land can show governments here and abroad the steps to take to ensure that the cultural rights specific to some communities and the citizenship common to the population as a whole can coexist in a free and democratic nation.Our analysis shows that, while relying on the historical, equality and cultural-based justification of the existence of these rights, the Court favours an approach centred on three fundamental principles: the duty of the State to act equitably in the "best interest" of cultural minorities through a flexible approach to the interpretation of established rights; a fair participation in the management of and access to resources by minority groups; and finally, the fostering of social cohesion in order for unity in diversity to be maintained through a reconciliation of existing rights which must be achieved, first and foremost, by political discussion aimed at finding durable solutions.
From a cultural sustainable development perspective, the specific cultural rights of minority groups must thus favour a common citizenship within a context of respect for cultural diversity, while still being compatible with and promoting the values of a liberal democracy.
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Turner, Dale A. (Dale Antony) 1960. ""This is not a peace pipe" : towards an understanding of aboriginal sovereignty." Thesis, McGill University, 1997. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=35637.
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This dissertation attempts to show that Aboriginal peoples' ways of thinking have not been recognized by early colonial European political thinkers. I begin with an examination of Kymlicka's political theory of minority rights and show that, although Kymlicka is a strong advocate of the right of Aboriginal self-government in Canada, he fails to consider Aboriginal ways of thinking within his own political system. From an Aboriginal perspective this is not surprising. However, I claim that Kymlicka opens the conceptual space for the inclusion of Aboriginal voices. The notion of "incorporation" means that Aboriginal peoples became included in the Canadian state and in this process their Aboriginal sovereignty was extinguished. Aboriginal peoples question the legitimacy of such a claim. A consequence of the Canadian government unilaterally asserting its sovereignty over Aboriginal peoples is that Aboriginal ways of thinking are not recognized as valuable within the legal and political discourse of sovereignty. In chapters two through five, respectively, I examine the Valladolid debate of 1550 between the Spanish monk Bartolome de Las Casas and Juan Sepulveda, The Great Law of Peace of the Iroquois Confederacy, Thomas Hobbes's distinction between the state of nature and a civil society, and Alexis de Tocqueville's account of democracy in America. Each of the examples, except for The Great Law of Peace, generate a philosophical dialogue that includes judgments about Aboriginal peoples. However, none of these European thinkers considers the possibility that Aboriginal voices could play a valuable role in shaping their political thought. To show the value of an Aboriginal exemplar of political thinking I consider the Iroquois Great Law of Peace. The Iroquois view of political sovereignty respects the diversity of voices found within a political relationship. This was put into practice and enforced in early colonial northeast America until the power dynamic shifted betwe
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SIMON, MICHAEL PAUL PATRICK. "INDIGENOUS PEOPLES IN DEVELOPED FRAGMENT SOCIETIES: A COMPARATIVE ANALYSIS OF INTERNAL COLONIALISM IN THE UNITED STATES, CANADA AND NORTHERN IRELAND." Diss., The University of Arizona, 1986. http://hdl.handle.net/10150/183996.
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The purpose of this dissertation was to compare British policy towards Ireland/Northern Ireland and United States and Canadian Indian policies. Despite apparent differences, it was hypothesized that closer examination would reveal significant similarities. A conceptual framework was provided by the utilization of Hartzian fragment theory and the theory of internal colonialism. Eighteen research questions and a series of questions concerned with the applicability of the theoretical constructs were tested using largely historical data and statistical indices of social and economic development. The research demonstrated that Gaelic-Irish and North American Indian societies came under pressure from, and were ultimately subjugated by colonizing fragments marked by their high level of ideological cohesiveness. In the Irish case the decisive moment was the Ulster fragmentation of the seventeenth century which set in juxtaposition a defiant, uncompromising, zealously Protestant, "Planter" community and an equally defiant, recalcitrant, native Gaelic-Catholic population. In the United States traditional Indian society was confronted by a largely British-derived, single-fragment regime which was characterized by a profound sense of mission and an Indian policy rooted in its liberal ideology. In Canada the clash between two competing settler fragments led to the victory of the British over the French, and the pursuit of Indian policies based on many of the same premises that underlay United States policies. The indigenous populations in each of the cases under consideration suffered enormous loss of land, physical and cultural destruction, racial discrimination, economic exploitation and were stripped of their political independence. They responded through collective violence, by the formation of cultural revitalization movements, and by intense domestic and international lobbying. They continue to exist today as internal colonies of the developed fragment states within which they are subsumed.
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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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Vetter, Henning. "International and selected national law on bioprospecting and the protection of traditional knowledge." Thesis, University of the Western Cape, 2006. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_1427_1183465033.
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This thesis discussed the subjects of bioprospecting and the protection of traditional knowledge. At first the international approach to the subjects was elaborately discussed. The focus was on the respective provisions of the United Nations Convention on Biological Diversity and the related Bonn Guidelines, stressing the matter of access to genetic resources and the fair and equitable sharing of benefits arising from their utilization. Enclosed in this discussion was the examination of different legislatory approaches to tackle the subject with an emphasis on national intellectual property rights laws and the role and potential merit of national registers of and databases for specific traditional knowledge. The way national legislators have implemented the concerned obligations of the convention, and their peculiarities as for example the restriction of scope of law to indigenous biological resources, was exemplified with the respective Bolivian, South African as well as Indian laws.
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Hugh, Brian Ashwell. "Traditional leadership in South Africa: a critical evaluation of the constitutional recognition of customary law and traditional leadership." Thesis, University of the Western Cape, 2004. http://etd.uwc.ac.za/index.php?module=etd&.
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The main objectives of this study were to identify the role that customary law and traditional leadership can play, without compromising their current positions or future recognition through legislation, in creating a better life for their constituents. The study analysed diverse issues such as legislative reform, the future role and functions of traditional leaders, training needs of traditional leaders, and the impact of a possible lack of commitment by national and provincial government on the training of traditional leaders to fulfill their functions within the ambit of the Constitution.
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Lavoie, Manon 1975. "The need fo a principled framework to effectively negotiate and implement the aboriginal right to self-government in Canada /." Thesis, McGill University, 2002. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=78221.
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The aim of this thesis is to reveal the need for a principled framework that would establish an effective implementation of the aboriginal peoples' right to self-government in Canada. In recent decades, many agreements instituting the right to self-government of First Nations have been concluded between the federal and provincial governments and aboriginal peoples. It then becomes important to evaluate the attempts of the two existing orders of government and the courts of Canada as regards the right to self-government and assess the potential usefulness of the two's efforts at defining and implementing the right. Firstly, the importance and legitimacy of the right to self-government is recognized through its beginnings in the human right norm of self-determination in international law to the establishment of the right in Canadian domestic law. Secondly, an evaluation of the principal attempts, on behalf of the governments and the courts, to give meaning and scope to the aboriginal right to self-government, which culminate in the conclusion of modern agreements, reveals their many inefficiencies and the need for a workable and concrete alternative. Lastly, the main lacunae of the negotiation process, the main process by which the right is concluded and implemented, and the use of the courts to determine the scope and protection of the right to self-government, are revealed. An analysis of European initiatives to entrench the right to self-government, mainly the European Charter of Self-Government and its established set of principles that guide the creation of self-government agreements, are also used in order to propose a viable option for the establishment of a principled framework for the aboriginal right to self-government in Canada.
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Fuentes, Carlos Iván. "Redefining Canadian Aboriginal title : a critique towards an Inter-American doctrine of indigenous right to land." Thesis, McGill University, 2006. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=101816.
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Is it possible to redefine Aboriginal title? This study intends to answer this question through the construction of an integral doctrine of aboriginal title based on a detailed analysis of its criticisms. The author uses international law to show a possible way to redefine this part of Canadian law. After a careful review of the most important aspects of aboriginal land in international law, the author chooses the law of the InterAmerican Court of Human Rights as its framework. Using the decisions of this Court he produces an internationalized redefinition of Aboriginal title.
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Kamau, Virginia Njeri. "Achieving sustainable development and indigenous rights in Africa : tensions and prospects." Diss., University of Pretoria, 2007. http://hdl.handle.net/2263/5451.
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The key research question explored in this study is: can a state attain its national
economic development objectives and at the same time advance the rights of indigenous groups? Examines the tensions and prospects of the coexistence of both the rights of indigenous peoples in Africa and sustainable development with reference
to selected case studies and approaches adopted by World Bank (WB) and United
Nations Development Programme (UNDP).The broad objectives of the study are:
(a) To examine the link between indigenous peoples’ rights and sustainable
development, (b) To explore the manner in which the international legal framework and African human rights system responds to the problem of indigenous in development, (c) To analyse key case studies of indigenous rights and development in Kenya,
Botswana, and South Africa and explore emerging approaches by the WB and
UNDP, (d) To make proposals on mechanisms for mediating indigenous peoples’ rights
and national development aspirations.Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2007.
A Dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Angelo Matusse of the Faculty of Law, Universidade Eduardo Mondlane, Mozambique.
http://www.chr.up.ac.za/
Centre for Human Rights
LLM
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Souza, Júnior Ângelo Aparecido de. "A Convenção nº 169 da Organização Internacional do Trabalho sobre direitos indígenas e sua (in)aplicabilidade no território brasileiro." Universidade Federal de São Carlos, 2016. https://repositorio.ufscar.br/handle/ufscar/8525.
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The Brazilian Federal Constitution of 1988 brought great changes concerning the treatment of indigenous peoples, especially the principle of alterity, reflecting on the right for the indigenous people to be different, as well as the issues on indigenous lands, which have some of very own institutes, diverse from Brazilian Civilian Law. However, it has not always been this way. Brazil has been through many legislation evolutions until we reached the current moment, when the integrationist idea relating the indigenous people to the local society has lost its power and has now disappeared, after the 1988 Constitution. We started with the investigation of the existence or not of an indigenous estate inside the Brazilian territory before the European colonization that justifies the primary rights to the lands that they traditionally occupy, provided by our Federal Constitution. To corroborate the need for a better protection to the indigenous people, we studied the International Conventions, which were held around this subject, especially the ones edited by the International Labour Organization (ILO), which asks for a detailed analysis on the organization and its juridical capacity of International Law to be part of a treaty. Therefore, considering the referred International Conventions endorsed by Brazil, we could observe the concern in the International scenery about the indigenous people. Notwithstanding the endorsement by Brazil, it is necessary to analyze the process of internalization of these, considering the dualist and unitary tendencies; the status of these conventions when they get to Brazil; and the eventuality of some constitutional habit. We also searched in the infra-constitutional legislation, if it presents any irregular habit with the Federal Constitution and if they contribute to a better perception of the importance of the protection of the indigenous peoples as a mechanism of preservation of the social organization, customs, languages, beliefs and traditions of these peoples.
A Constituição Federal de 1988 trouxe grandes mudanças no tocante ao tratamento dispensado aos povos indígenas, em especial o princípio da alteridade, consubstanciado no direito do indígena em ser diferente, bem como disciplinando a questão das terras indígenas, as quais podemos observar possuem alguns institutos próprios, diversos do Direito Civil. Entretanto, nem sempre foi assim, o Brasil passou por diversas evoluções legislativas até chegarmos nos dias atuais, pelo que a ideia integracionista em relação aos povos indígenas à sociedade local veio perdendo força com referidas evoluções, desaparecendo após o advento da Carta Magna de 1988. Buscou-se também, em um primeiro momento, o estudo acerca da existência ou não de um Estado Indígena no território brasileiro antes da colonização europeia a justificar os direitos originários sobre as terras que tradicionalmente ocupam, previsto em nossa Constituição Federal. A corroborar a necessidade de uma maior proteção aos povos indígenas, estudamos as Convenções Internacionais que tratam do assunto, em especial as editadas pela Organização Internacional do Trabalho (OIT), cabendo assim, uma análise pormenorizada de referida organização e sua capacidade jurídica de Direito Internacional para figurar como parte em um tratado. Assim, amparados em referidas Convenções Internacionais ratificadas pelo Brasil, observou-se a preocupação no cenário internacional para com os povos indígenas. Entretanto, não obstante a ratificação pelo Brasil de referidas convenções, cumpre aqui analisar o procedimento de internalização destas, analisando-se as correntes doutrinárias dualistas e monistas; o status de referidas convenções ao ingressarem no Brasil e, a eventualidade de algum vício de constitucionalidade. Buscou-se também auferir, dentro da legislação infraconstitucional, se esta apresenta algum vício com a atual Constituição Federal e, como referidas legislações podem, aliadas às Convenções Internacionais, contribuem para uma melhor percepção da importância na proteção aos povos indígenas como mecanismo de preservação da organização social, costumes, línguas, crenças e tradições destes povos.
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Mwebaza, Rose. "The right to public participation in environmental decision making a comparative study of the legal regimes for the participation of indigneous [sic] people in the conservation and management of protected areas in Australia and Uganda /." Phd thesis, Australia : Macquarie University, 2007. http://hdl.handle.net/1959.14/22980.
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"August 2006"Thesis (PhD) -- Macquarie University, Division of Law, 2007.
Bibliography: p. 343-364.
Abstract -- Candidate's certification -- Acknowledgements -- Acronyms -- Chapter one -- Chapter two: Linking public participation to environmental decision making and natural resources management -- Chapter three: The right to public participation -- Chapter four: Implementing the right to public participation in environmental decision making : the participation of indigenous peoples in the conservation and management of protected areas -- Chapter five: The legal and policy regime for the participation of indigenous peoples in the conservation and management of protected areas in Australia -- Chapter six: The legal and policy regime for the participation of indigenous peoples in the conservation and management of protected areas in Uganda -- Chapter seven: Implementing public participation in environmental decision making in Australia and Uganda : a comparative analysis -- Chapter eight: The right to public participation in enviromental decision making and natural resources management : summary and conclusions -- Bibliography.
In recognition of the importance of public participation as a basis for good governance and democracy, Mr Kofi Annan, Secretary General to the United Nations, has noted that: "Good governance demands the consent and participation of the governed and the full participation and lasting involvement of all citizens in the future of their nation. The will of the people must be the basis of governmental authority. That is the foundation of democracy. That is the foundation of good governance Good governance will give every citizen, young or old, man or woman, a real and lasting stake in the future of his or her society". The above quotation encapsulates the essence of what this thesis has set out to do; to examine the concept of public participation and its application in environmental governance within the context of the participation of indigenous peoples in the conservation and management of protected areas in Australia and Uganda. The concept of public participation is of such intrinsic importance that it has emerged as one of the fundamental principles underpinning environmental governance and therefore forms the basis for this study. -- Environmental governance, as a concept that captures the ideal of public participation, is basically about decisions and the manner in which they are made. It is about who has 'a seat at the table' during deliberations and how the interests of affected communities and ecosystems are represented. It is also about how decision makers are held responsible for the integrity of the process and for the results of their decisions. It relates to business people, property owners, farmers and consumers. Environmental governance is also about the management of actions relating to the environment and sustainable development. It includes individual choices and actions like participating in public hearings or joining local watchdog groups or, as consumers, choosing to purchase environmentally friendly products. -- The basic principles behind good governance and good environmental decision making have been accepted for more than a decade. The 178 nations that attended the Rio Summit in 1992 all endorsed these nvironmental governance principles when they signed the Rio Declaration on Environment and Development (Rio Declaration) - a charter of 27 principles meant to guide the world community towards sustainable development. The international community re-emphasised the importance of these principles at the World Summit on Sustainable Development in 2002. -- The right to public participation in nvironmental decision making and natural resources management is one of the 27 principles endorsed by the nations of the world and is embodied in the provisions of Principle 10 of the Rio Declaration.
Environmental decisions occur in many contexts. They range from personal choices like whether to walk or drive to work, how much firewood to burn, or whether to have another child. They encompass the business decisions that communities or corporations make about where to locate their facilities, how much to emphasise eco-friendly product design and how much land to preserve. They include national laws enacted to conserve the environment, to regulate pollution, manage public land or regulate trade. They take into account international commitments made to regulate trade in endangered species or limit acid rain or C02 emissions. -- Environmental decisions also involve a wide range of actors: individuals; local, state and national governments; community and tribal authorities such as indigenous peoples; civic organisations; interested groups; labour unions; national and transactional corporations; scientists; and international bodies such as the United Nations, the European Union, and the World Trade Organisation. -- Each of the actors have different interests, different levels of authority and different information, making their actions complex and frequently putting their decisions at odds with each other and with ecological processes that sustain the natural systems we depend on. -- Accordingly, this thesis aims to examine participation in environmental decision making in a way that demonstrates these complexities and interdependencies. It will explore the theoretical and conceptual basis for public participation and how it is incorporated into international and domestic environmental and natural resources law and policy. -- It will examine public participation in the context of the legal and policy framework for the conservation and management of protected areas and will use case studies involving the participation of indigeneous peoples in Australia and Uganda to provide the basis for a comparative analysis. -- The thesis will also faces on a comparative analysis of the effectiveness and meaningfulness of the process for public participation in environmental decision making in Australia and Uganda. There is extensive literature on the purposes to which participation may be put; the stages in the project cycle at which it should be employed; the level and power with regard to the decision making process which should be afforded to the participants; the methods which may be appropriate under the different circumstances, as well as detailed descriptions of methods; approaches and forms or typologies of public participation; and the benefits and problems of such participation.
However, there is not much significant literature that examines and analyses the meaningfulness and effectiveness of the contextual processes of such participation. This is despite the widespread belief in the importance and value of public participation, particularly by local and indigenous communities, even in the face of disillusionment caused by deceit, manipulation and tokenism. Accordingly, the thesis will use case studies to demonstrate the meaningfulness and effectiveness or otherwise of public participation in environmental decision making in protected area management. -- Increasingly, the terminology of sustainable development is more appropriate to describe contemporary policy objectives in this area, with an emphasis on promoting local livelihood and poverty alleviation within the constraints of ecosystem management. However, the domestic legal frameworks, and institutional development, in Australia and Uganda tend to reflect earlier concepts of environmental and natural resources management (referred to as environmental management in this thesis). There are some significant differences between a North (developed) nation and a South (developing) nation, in terms of the emphasis on economic objectives, political stability, resources and legal and administrative capacity. The thesis intends to explore these differences for the comparative analysis and to draw on them to highlight the complexities and interdependencies of public participation by indigenous peoples in environmental decision making, natural resources and protected area management.
Mode of access: World Wide Web.
377 p
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Truffin, Barbara. "Représentations et pratiques du "Droit" en Amazonie équatorienne: la garantie constitutionnelle des droits des peuples indigènes en contexte." Doctoral thesis, Universite Libre de Bruxelles, 2004. http://hdl.handle.net/2013/ULB-DIPOT:oai:dipot.ulb.ac.be:2013/211099.
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Msomi, Zuziwe Nokwanda. "The protection of indigenous knowledge within the current intellectual property rights regime: a critical assessment focusing upon the Masakhane Pelargonium case." Thesis, Rhodes University, 2013. http://hdl.handle.net/10962/d1007744.
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The use of indigenous knowledge (IK) and indigenous bio-resources by pharmaceutical and herbal industries has led to concerns about the need to protect IK in order to prevent biopiracy and the misappropriation of indigenous knowledge and resources. While some commentators believe that intellectual property rights (IPR) law can effectively protect IK, others are more sceptical. In order to contribute to the growing debate on this issue, this study uses the relatively new and as yet largely critically unanalysed Masakhane Pelargonium case to address the question of whether or not IPR law can be used to effectively protect IK. It is argued here that discussion about the protection of IK is a matter that must be located within broader discussions about North-South relations and the continued struggle for economic and political freedom by indigenous people and their states. The Masakhane case suggests that IPR law in its current form cannot provide sufficient protection of IK on its own. Incompatibilities between IPR law and IK necessitate that certain factors, most important of which are land, organised representation, and what are referred as 'confidence and network resources', be present in order for IPR law to be used with any degree of success. The study also reveals various factors that undermine the possibility of using IPR law to protect IK. In particular, the study highlights the way in which local political tensions can undermine the ability of communities to effectively use IPR law to protect their knowledge. The thesis concludes with several recommendations that will enable indigenous communities and their states to benefit more substantially from the commercialisation of their bio-resources and associated IK.
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Ombella, John S. "Benefit sharing from traditional knowledge and intellectual property rights in Africa: "an analysis of international regulations"." Thesis, University of the Western Cape, 2007. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_8927_1213866323.
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This thesis was written in the contemplation of the idea that, it is only through protection of the traditional knowledge in African local societies where these societies can rip the benefit of its commercialization and non-commercialization. It was thus centered on the emphasis that, while the African countries are still insisting on the need to have amendments done to the TRIPS Agreement, they should also establish regulations in their domestic laws to protect traditional knowledge from being pirated. This emphasis was mainly raised at this time due to the wide spread of bio-piracy in African local societies by the Western Multinational Pharmaceutical Corporations.
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Calliou, Brian. "Losing the game, wildlife conservation and the regulation of First Nations hunting in Alberta, 1880-1930." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2000. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp01/MQ60048.pdf.
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Paiement, Jason Jacques. "The tiger and the turbine : indigenous rights and resource management in the Naso territory of Panama." Thesis, McGill University, 2007. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=102840.
Full textAbstract:
Anthropologists have long recognized the central role of social systems in enhancing environmental sustainability, but few have attempted to accurately assess the conditions under which traditional social institutions can equitably and effectively manage access to natural resources for the purposes of their use and conservation. By failing to look closely at how resource management practices are shaped both by local-level cultural institutions and the political and economic forces of government policies and markets, anthropologists have compounded the confusion surrounding the functions and capacities of traditional resource management institutions.This dissertation examines the connections between institutional and economic incentives and resource use and management decisions among the Naso indigenous people in Bocas del Toro, Panama. The study incorporates insights from development anthropology, common property systems and political ecology to develop a multi-sited approach that uses multiple research methods. A detailed household survey (n=54 or 18% of Naso households located within the eight villages surveyed in 2004) was used to obtain socio-demographic data and to establish patterns of land tenure and resource use. Preliminary and follow-up interviews were also conducted with community leaders, government officials and representatives of various national and international organizations with a stake in the conservation and/or development of the Naso region.
As a group, the Naso were found to use both indigenous and imported technologies to manage a wide range of natural resources towards ensuring the economic, cultural and ecological viability of their communities. However, recent legislation intended to recognize Naso land rights and a hydroelectric project nearing construction on Naso lands have sought to modify the formal rules and organizations that have traditionally served to order local resource tenure and management practices. This thesis analyses the guidelines and criteria invoked by the various stakeholders involved with these projects in order to assess the equity of the distribution of their social and environmental impacts. It highlights the need to become more sceptical and sophisticated when assessing the objectives and justifications provided by the academics, government agencies, local authorities and private companies involved in the conservation and development of indigenous peoples' territorial resources.
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Amollo, Rebecca. "A critical reflection on the African Women's Protocol as a means to combat HIV/AIDS among women in Africa." Thesis, University of the Western Cape, 2006. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_3083_1190369553.
Full textAbstract:
It is within the context of the persistent feminisation of the HIV and AIDS pandemic that this study, based on the normative provisions of the African Women's Protocol, focused on gender, sex and sexuality in the context of HIV and AIDS. The regime of the African Women's Protocol embodies a framework that can be utilised to combat HIV/AIDS amongst women in Africa by addressing some of the most important issues that need to be tackled if women are to live through this epidemic.
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Dorough, Darlene (Dalee) Sambo. "The status and rights of indigenous peoples in international law : the quest for equality." Thesis, 2002. http://hdl.handle.net/2429/13470.
Full textAbstract:
My thesis is that Indigenous peoples, as distinct people, are entitled to the full
affirmation and explicit recognition of the right to self-determination in the context of the
draft U N Declaration on the Rights of Indigenous Peoples and in international law
generally. The international community, and in particular, the nation-state members of
the United Nations must uphold their legally binding international obligations in this
regard.
My methodology has been to utilize the human rights framework and approach, as
well as rights discourse to advance this thesis. In addition, I am relying upon my direct
participation in this important standard setting process, as well as the writings of various
publicists.
The right of peoples to self-determination is considered by numerous international
authorities to be jus cogens or a peremptory norm. Similarly, the prohibition of racial
discrimination is considered by numerous authorities to be a peremptory norm.
Throughout the draft Declaration debate, a number of states have proposed
wording that would dramatically alter the scope and content of the right to selfdetermination,
thereby limiting, qualifying or modifying this right in the context of
indigenous peoples.
Any state proposals to qualify, limit or modify the right of indigenous peoples to
self-determination would be racially discriminatory. If Article 3 of the draft Declaration
were to be altered - even to include the same or similar notions as might currently exist
under international law - it would invite interpretations to be applied to indigenous
peoples' right to self-determination that are different from those of other peoples. It
might also have the effect of wrongfully freezing the interpretation of this indigenous
human right, in such a manner as to prevent or otherwise stifle its natural evolution under
international law.
If there is no equality of application of the rule of law in the context of
international law and states succeed in introducing discriminatory double standards in
connection to indigenous peoples and their fundamental right to self-determination, then
the failure of the human rights framework, the United Nations system and nation-states
themselves will seriously erode the very concepts of democracy, human rights and the
rule of law.
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Aylwin, José Antonio. "Indigenous peoples’ rights in Chile and Canada : a comparative study." Thesis, 1999. http://hdl.handle.net/2429/9390.
Full textAbstract:
This thesis analyses the past and present realities of the rights of Indigenous peoples in
Chile and Canada from a comparative perspective.
In Chapter I, the author explains the international human rights and Indigenous peoples'
law that provide the theoretical framework behind this study. The political and territorial rights that
different international forums have acknowledged to these peoples in recent years are identified.
The methodology used in the elaboration of this study, which includes the analysis of documentary
data, the case study and the interview methods, is explained. The author describes the objective of
this study, characterizing it as applied social research aimed at providing information that can be
useful for the transformation process in which the peoples that are subject of this study are
involved.
In Chapters II and III, the author analyses the rights of Indigenous peoples in Chile and
Canada respectively from pre-contact until today. The central aspects of their pre-contact cultures
and organizations are described. The author also describes main characteristics of the relationships
that were established with Indigenous peoples by the Spanish in Chile and by the French and the
English in Canada, and later by the states in the two contexts. Special importance is given to those
changes recently introduced in the Indigenous-state relationship in both contexts, focusing on their
implications for these peoples' rights.
In Chapter IV, the author attempts to expand upon the past and present situation of the
Indigenous peoples who live in what is now Canada and Chile by including a case study related to
each context: the Pehuenche people of the Alto Bio Bio in Chile and the Nisga'a people of the Nass
Valley in Canada.
In the last Chapter of this thesis (V) the author concludes that, notwithstanding the changes
introduced in recent years in the relationship between Indigenous peoples and the Chilean and
Canadian states, many and significant problems still impede their ability to enjoy the rights they
claim. The author acknowledges, nevertheless, that Indigenous peoples in Canada, through
different means, including negotiation and litigation, have achieved a much broader recognition of
their political and territorial rights today than have the Indigenous peoples in Chile. The legal,
political, cultural and economic factors that explain these differences are also highlighted in this
final Chapter.
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NYHAN, Emma. "Indigeneity, law and terrain : the Bedouin citizens of Israel." Doctoral thesis, 2018. http://hdl.handle.net/1814/53684.
Full textAbstract:
Defence date: 25 April 2018Examining Board: Professor Nehal Bhuta, European University Institute (Supervisor); Professor Sally Engle Merry, New York University; Professor Tobias Kelly, University of Edinburgh; Professor Claire Kilpatrick, European University Institute
This study constitutes a socio-legal inquiry into the practice of international human rights law. Specifically, the study unpacks the ways in which the concept and category of indigenous peoples is made active and given effect among the Bedouin in the Negev desert in Israel, since before the turn of the new millennium. Drawing contextualized insights from Bedouin localities, the case studies demonstrate the various layers of intermediaries and actors involved and the processes by which the Bedouin have appropriated the international concept and category to make it into a Bedouin vernacular. Grounded in law and society and legal anthropology, this research deploys socio-legal and historical analyses and is supported by rich empirical fieldwork, including extensive interviews and ethnographic observation. In the process of reconstructing how the international concept and category of indigenous peoples came to be invoked in this particular context, this research sheds critical light on how local and global discourses and understandings of internationally-defined status and rights interact and produce tensions, hybridities, and new subjectivities as well as legal and political dynamics at the domestic and international level.
Chapter 4 'The concept and category of indigenous peoples : theoretical and contextualized accounts' of the PhD thesis draws upon an earlier version published as chapter 'International law in transit : the concept of 'indigenous peoples' and its transitions in international, national and local realms : the example of the Bedouin in the Negev' (2016) in the book 'International law and... : select Proceedings of the European Society of International Law'
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Toovey, Karilyn. "Decolonizing or recolonizing : indigenous peoples and the law in Canada." 2005. http://hdl.handle.net/1828/744.
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McCue, Lorna June. "Treaty-making from an indigenous perspective : a ned’u’ten-canadian treaty model." Thesis, 1998. http://hdl.handle.net/2429/8320.
Full textAbstract:
This thesis argues that the Ned'u'ten, an indigenous people, have the right to decolonize
and self-determine their political and legal status at the international level. The Ned'u'ten are
currently negotiating a new relationship with Canada and are considering various treaty models
to achieve this goal. This thesis advocates principles for a peace treaty model that accomplishes
both Ned'u'ten decolonization and self-determination.
The first chapter of this thesis demonstrates that indigenous perspectives in legal culture
are diverse and not homogeneous. My Ned'u'ten perspective on treaty-making contributes to
these perspectives.
The second chapter challenges the legitimacy of the Canadian state, over Ned'u'ten
subjects and territories. This is accomplished through the rejection of dispossession doctrines that
Canada has used to justify colonial and oppressive practices against the Ned'u'ten.
Decolonization principles are prescribed in this chapter.
The third chapter takes a historical view of the right to self-determination and shows how
state practice, indigenous peoples' participation, and international scholars have attempted to
articulate the scope and content of this right in the contemporary context of indigenous self-determination.
A Ned'u'ten self-determination framework is proposed based on indigenous
formulations of the right to self-determination. Self-determination principles are also prescribed
in this chapter.
The final chapter compares two cases where indigenous peoples in Canada are attempting
to create a new relationship with the state: the James Bay Cree and "First Nations" in the British
Columbia Treaty Commission Process. This comparison will show that the degree of
participation that indigenous peoples have in implementing their rights to self-determination, will
determine the parameters of any new relationship that indigenous peoples create with the state.
Negotiating principles are prescribed for a Ned'u'ten-Canada relationship as well as a peace
treaty process to accomplish this goal.
It is my thesis that the Ned'u'ten and Canada can achieve a peaceful and balanced
relationship through the peace treaty model I propose.
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Walkem, Ardith Alison. "Bringing water to the land : re-cognize-ing indigenous oral traditions and the laws embodied within them." Thesis, 2000. http://hdl.handle.net/2429/16800.
Full textAbstract:
This is a study of whether, in the introduction of Indigenous oral traditions as
evidence in court, they are being in the complex cultural interplay that occurs in courts, and
whether, given the central role of oral traditions in Indigenous cultures, the nature of
Indigenous Peoples are being transformed in the process when their rights are adjudicated
before the courts. Chapter 2 discusses the ways that the Supreme Court of Canada has
defined s. 3 5 Aboriginal Title, Rights and Treaty Rights (as unlimited or lawless and
therefore a danger to general public interests; assimilated into Canadian sovereignty;
removing the source of these rights from the land in their legal definition; and, removing
Indigenous laws from their definition). Chapter 3 examines the role that history has played
in the legal interpretation of oral traditions, and argues that a primarily historical
consideration obscures the alive, legal, and dynamic elements of oral traditions. Chapter 4
discusses the ways in which a methodology of suspicion has operated to reduce and diminish
Indigenous oral traditions when they are introduced as evidence in court (rating them as
faulty, light weight historic evidence while obscuring their legal content) through a survey of
cases that have considered oral traditions at the trial level. Chapter 5 explores the
devaluation of the Indigenous laws contained in oral traditions through an acceptance of the
common sense assumption that Canadian conservation and safety laws are both rational and
necessary. Chapter 6 argues that recognition (or denial) of Indigenous laws is politically
contingent, and that despite limited legal recognition (in cases such as Delgamuukw v. B.C.
and R. v. Van der Peef), these laws have yet to flow back onto the land, and are yet to be
invigorated in Canadian law. There remains a lack of recognition of the legal content of oral
traditions, and Indigenous jurisprudences risk being subsumed and transformed when they
are introduced as evidence in Canadian courts.Law, Peter A. Allard School of
Graduate
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Connolly, Anthony J. "Conceptual incommensurability and the judicial understanding of indigenous action." Phd thesis, 2006. http://hdl.handle.net/1885/150950.
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Edo, Juli. "Claiming our ancestors' land : an ethnohistorical study of Seng-oi land rights in Perak, Malaysia." Phd thesis, 1998. http://hdl.handle.net/1885/144678.
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McGregor, Cara. "From theory to practice : the Canadian courts and the adjudication of (post-modern) identities." Thesis, 2004. http://hdl.handle.net/2429/15766.
Full textAbstract:
In this work, I introduce the concept of identity, outline its importance, and argue in
favour of a post-modem conception of identity, underpinned by the principles of
contestation, anti-essentialism and hybridity. This notion of identity, which is supported
by both theoretical and case evidence, is in tension with the practices of the courts, which
are often asked to make determinations that impact identities. The court's conventions
and practices privilege a modernist notion of identity; given these restrictions, how are
post-modern identities, such as the Metis, to be recognized? Using the case ofK v.
Powley, / explore the possibilities and openings for a post-modern concept of identity to
be realized in the courts. While there are conflicts and restrictions, judges, courts and the
law demonstrate sufficient flexibility to allow for post-modern principles to be realized. I
conclude by arguing that the courts should go further in developing a post-modern
conception of identity in their work, and explore the issues and implications of doing so. I
also reflect on the broader question this work presents, namely the role of the law and the
possibilities for change therein.Arts, Faculty of
Political Science, Department of
Graduate
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Sharma, Parnesh. "Aboriginal fishing rights, Sparrow, the law and social transformation : a case study of the Supreme Court of Canada decision in R. v. Sparrow." Thesis, 1996. http://hdl.handle.net/2429/4659.
Full textAbstract:
Aboriginal rights, and aboriginal fishing rights in particular, are topics which elicit a
variety of responses ranging from the positive to hostile. In British Columbia, fish is big
business and it is the fourth largest industry in the province. The stakes are high and the
positions of the various user groups and stakeholders are clearly demarcated. The fight over fish
has pitted aboriginal groups against other aboriginal groups as well as against the federal
government and its department of fisheries and oceans - however, the fight becomes vicious,
underhanded, and mean spirited when the aboriginal groups are matched against the commercial
industry.
In an attempt to even the odds the aboriginal peoples have turned to the courts for
recognition and protection of what they view as inherent rights - that is a right to fish arising out
of the very nature of being an aboriginal person. Up until the Supreme Court of Canada decision
in R. v. Sparrow aboriginal rights had been virtually ignored by both the courts and the state.
However Sparrow changed all that and significantly altered the fight over fish. And that fight
has become a virtual no-holds barred battle.
The Sparrow decision remains to this day one of the most important Supreme Court
decisions pertaining to aboriginal rights. This thesis is a case study of Sparrow - it will examine
the decision from a perspective of whether subordinate or disadvantaged groups are able to use
the law to advance their causes of social progress and equality. The thesis examines the status and nature of aboriginal fishing rights before and after the
Sparrow decision. The thesis will examine whether the principles of the decision have been
upheld or followed by the courts and the government of Canada. Data will consist of interviews
with representatives of the key players in the fishing industry, namely, the Musqueam Indian
Band, the Department of Fisheries and Oceans, and the commercial industry.
In brief, the findings of my research do not bode well for the aboriginal peoples - the
principles of the Sparrow decision have not been followed by the government of Canada and
aboriginal fishing rights remain subject to arbitrary control. The thesis will examine why and
how this happened.
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BESSA, DA COSTA ANTUNES RODRIGUES Adriana Aparecida. "Traditional local communities in international law." Doctoral thesis, 2013. http://hdl.handle.net/1814/30897.
Full textAbstract:
Defence date: 13 December 2013.Examining Board: Professor Francesco Francioni, European University Institute (Supervisor); Professor Martin Scheinin, European University Institute; Professor Peter Hilpold, Universität Innsbruck; Professor Federico Lenzerini, Università di Siena.
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
One of the most important innovations of the 1992 Rio Summit was the consolidation of a synergetic approach between human rights and environmental conservation and the introduction of traditional local communities as new subjects of rights in international law. By proclaiming traditional local communities - together with indigenous peoples - as 'custodians of biodiversity', the documents adopted during the meeting called upon States to protect their cultures and lifestyles by, inter alia, enhancing their rights to lands and natural resources. Such developments have reverberated in other branches of public international law. In the realm of cultural heritage law, for instance, post-1992 instruments started to account to the interconnection between communities' culture and nature preservation, culminating in the introduction of the concept of 'cultural landscapes' in the UNESCO-World Heritage Convention and the recognition of communities' biodiversity-related knowledge and practices as a manifestation of (intangible) cultural heritage and cultural diversity. In the realm of human rights law, however, a schism is observed. While the relation culture-nature has played a fundamental role in the development of the rights of indigenous peoples, serving as key argument in the articulation of their rights to lands and natural resources, the same has not happened in the case of traditional local communities. In this light, this thesis discusses the neglect of human rights law and inquires as to possible legal avenues to address tenurial rights of traditional local communities. Its ultimate objective is to investigate whether and to what extent recent normative developments in environmental and cultural heritage law, as well as to discuss the jurisprudential advancements on the rights of indigenous peoples, so as to whether they might inform international human rights bodies and tribunals in the adjudication of cases involving traditional local communities' access to and use of lands and natural resources.
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Adcock, Fleur. "The United Nations special procedures and Indigenous peoples : a regulatory analysis." Phd thesis, 2014. http://hdl.handle.net/1885/155949.
Full textAbstract:
The adoption of the United Nations Declaration on the Rights of Indigenous Peoples in 2007 has shifted the attention of Indigenous rights scholars from norm elaboration to norm implementation. Yet, the influence of the United Nations Human Rights Council's special procedures in actualising Indigenous rights norm implementation remains under-researched. I investigate how the non-coercive and resource-poor special procedures regulate - or influence - state behaviour towards Indigenous peoples. I depart from the existing international law corpus by drawing on regulatory literature. Contrary to rationalist theories, I find that the apparently weak international mechanism of the special procedures regulates state behaviour towards Indigenous peoples imperfectly but appreciably. However, I argue that ritualism is states' dominant response: states outwardly agree with the special procedures' recommendations while inwardly developing techniques to avoid them. I conclude that the special procedures mechanism is capable of exerting enhanced influence over state behaviour towards Indigenous peoples and propose strategies to that end. The findings are based on case studies regarding the special procedures' influence in Aotearoa New Zealand and the Republic of Guatemala. The special procedures mechanism enjoys a broad mandate to advance the realisation of international Indigenous rights norms. In fulfilling this mandate the special procedures experts leverage a mixed dialogic tool-set; principally engaging techniques of shaming, in addition to dialogue-building and capacity-building. The experts' influence on state behaviour towards Indigenous peoples is perceptible in Aotearoa New Zealand and the Republic of Guatemala. But each state engages in ritualism both to disguise its inward resistance to recommendations regarding 'hard' rights to self-determination and land and its failure to fully commit to recommendations concerning the 'soft' cultural right to education. A complex collection of factors explain the experts' imperfect influence: key actors are not engaged, the core principles underlying states' responses to the experts' recommendations are not contested and important regulatory mechanisms are under-exploited. The analysis indicates that, by harnessing dialogic 'webs of influence', comparatively weak actors like the special procedures can influence powerful actors, such as states. It also reveals that, to counter states' rights ritualism, the special procedures should simultaneously shame and praise states, fostering continuous improvement in observing Indigenous rights.
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Moodley, Renelle Lindy. "Maritime liens : a critical analysis of the protection that South Africa's bioprospecting legislation affords indigenous communities, in the context of the country's international obligations and with particular regard to implementation changes." Thesis, 2013. http://hdl.handle.net/10413/10959.
Full textAbstract:
Indigenous communities have developed a wealth of knowledge, which plays a crucial role in providing leads for the use of genetic resources and bioprospecting. However, such knowledge is under increasing threat due to the misappropriation of the biological resources and associated traditional knowledge of indigenous communities, through both bioprospecting, as well as the inappropriate exercise of intellectual property rights.
The internationally agreed Convention on Biological Diversity (CBD) attempts to provide a bulwark against biopiracy and although it assists indigenous communities to regain some control, the CBD has proven inadequate in the protection of the traditional knowledge of indigenous communities. The subsequent Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol) attempts to address some of these limitations but unfortunately has its own shortcomings, as it was largely concluded on the basis of a compromise between developed and developing countries.
This dissertation will undertake a critical analysis of the provisions of the CBD and Nagoya Protocol, with a view to establishing the level of protection these instruments afford indigenous communities. It will be shown that notwithstanding the drawbacks of both the CBD and Nagoya Protocol, they nevertheless represent major achievements in the journey to protect the genetic resources and associated traditional knowledge of indigenous communities.
It is in this context that this dissertation will analyse South Africa’s Access and Benefit Sharing (ABS) regime in relation to the protection it affords indigenous communities and in the light of the implementation challenges that such legislation presents. A particular focus will be on whether South Africa’s ABS legislation complies with the country’s international obligations relating to the protection of indigenous communities and whether South Africa’s approach to the protection of the genetic resources and associated traditional knowledge of indigenous communities, in the context of bioprospecting, is adequate or whether there exists potential for its enhancement.Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.
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Anspach, Philip. "The basis of contractual liability in indigenous law." Diss., 2003. http://hdl.handle.net/10500/1765.
Full textAbstract:
This study examines the basis of contractual liability in indigenous law. It concludes that contractual liability arises only from real contracts where one party has performed fully or partially in terms of an agreement. Attention is given to both the nature and concept of indigenous contracts to ascertain the function of contracts in indigenous societies in order to bring a holistic perspective to the topic.
It is demonstrated that the settlement of disputes arising out of indigenous contracts is primarily focused on the reconciliation of people and the consequent maintenance of harmony within the community. The foremost concern in indigenous law of contract is with human justice rather than with strict legal justice, and expression is thereby given to prevailing community values.Indigenous Law
LL.M.
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Chartier, Mélanie. "The Crown’s duty to consult with First Nations." Thesis, 2001. http://hdl.handle.net/2429/11932.
Full textAbstract:
The Crown has fiduciary obligations to First Nations and must act in
consequence. One of this consequence is that the Crown has a duty to consult with
aboriginal peoples when it infringes aboriginal or treaty right. The thesis deals with the
principles related to the Crown's duty to consult with First Nations. I elaborate on
principles established by the courts and also on questions that remain unanswered to date.
Those questions include when, how and with whom the consultation should be done. I
also examine the situation in New Zealand, where the consultation process is a little more
advanced than here in Canada and compare the principles elaborated by New Zealand
courts with those existing in Canada. From the New Zealand experience, I suggest
consultation guidelines to be used in Canada by the Crown and its representatives.
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Strelein, Lisa Mary. "Indigenous self-determination claims and the common law in Australia." Phd thesis, 1998. http://hdl.handle.net/1885/109314.
Full textAbstract:
With the decision in Mabo v Queensland [No. 2] in 1992, the courts cemented their
role in the self-determination strategies of Indigenous peoples in Australia. More
than merely recognising a form of title to traditional lands, the tenor of the
judgements in Mabo's case respected Indigenous peoples and offered the protection
of the common law. However, the expectations of many Indigenous people for
change have not since been met. This thesis examines the usefulness of the courts
and the common law in particular for the self-determination claims of Indigenous
peoples. I examine the theoretical and institutional limitations on the courts that have
resulted in a doctrinal history which has generally excluded Indigenous peoples. I
also analyse the potential for the common law to accommodate self-determination
claims. I argue that the courts require familiar concepts upon which to base their
decisions. I identify the notion of equality of peoples as a proper foundation for the
courts to structure the relationship between Indigenous peoples and the state.
Equality of peoples has roots in the fundamental principles of the common law and
maintains the integrity of Indigenous peoples’ claims.
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Wall, Deborah R. "Development, governance and Indigenous people : foregrounding the LNG precinct case in the Kimberley." Thesis, 2015. http://handle.uws.edu.au:8081/1959.7/uws:33425.
Full textAbstract:
After four and a half years evaluating the viability of the establishment of the Browse LNG Precinct onshore at James Price Point in the Kimberley, Woodside and its Joint Venture Partners decided to abandon the project in April 2013. How Indigenous people in the Kimberley made their voices manifest in resource development discussions through their own internal governance system and through their interactions with the institutions of Government and transnational companies is the subject of my thesis. The Browse LNG Precinct proposal was contentious and caused deep divisions within family members, friends and employers in Broome. It became the site of a struggle for recognition of the many voices representing the competing interests of economic development, Aboriginal cultural heritage protection, and environmental conservation. My particular focus is the notion of development by Indigenous people and by the Western Australian government particularly when Traditional Law intersects with Australian mainstream law over land held in common. I examine how notions of development and related values were manifested in practice at mining sites that overlapped with Indigenous sacred sites at Noonkanbah, Argyle and James Price Point. I have found that essentially, the Indigenous people’s voices are represented through the recognition space of state institutional apparatus. The design and operation of legislative acts enabled a system of control over how Aboriginal interests are to be governed within the framework of Australia’s governance of mineral and natural resources. Co-existence between Aboriginal and Western cosmology constitutes dynamic processes and the interplay for mutual recognition. In practice, the dominant system of control filters the Indigenous voice by its translation within the institutional practices of the Australian state and legal system.
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Bulan, Ramy. "Native title in Sarawak, Malaysia : Kelabit land rights in transition." Phd thesis, 2005. http://hdl.handle.net/1885/150297.
Full text
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Anspach, Philip. "The indigenous rights of personality with particular reference to the Swazi in the kingdom of Swaziland." Thesis, 2004. http://hdl.handle.net/10500/1911.
Full textAbstract:
This study was undertaken to establish whether rights of personality are known in indigenous law. Since indigenous law differs not only between tribes but is also affected by the degree of exposure to Western values, a micro-study has been done in a semi-rural environment in the Kingdom of Swaziland to establish to what extent own value systems have been influenced or altered when Western legal concepts are utilised. The information, obtained by interviewing a panel of experts, was compared with the available literature. During the process of gathering information, the aims of the research were not only to describe how the legal principles function, but also to take note of those socio-cultural processes which function outside of the law.
Rights of personality were studied against a background of the culture and way of life of the peoples concerned. The importance of culture has been acknowledged in the Constitution of the Republic of South Africa, wherein the recognition and application of indigenous law generally rests on a constitutionally protected right to culture.
Whilst the identifiable rights of personality may generally be classified according to specialised legal systems, the separation of rights to good name and to dignity may be inappropriate in the indigenous sphere. Dignity in indigenous legal systems is to be viewed as a comprehensive right of personality, into which should be subsumed the right to good name and reputation in the community.
It is such dignity, embracing the ubuntu quality of humanness that is protected
as a comprehensive indigenous right of personality.
Although the indigenous law of personality is showing some signs of adapting to new developments, there is also proof that the established legal principles and human values are being retained. However, these changes are unique and are neither typically traditional nor Western. The indigenous law of personality, operating in a changing social environment, has to retain its flexibility and adaptability in order to remain ”living” law for the peoples concerned.Jurisprudence
LL.D.
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Bluesky, Kinwa Kaponicin. "Art as my kabeshinan of indigenous peoples." Thesis, 2006. http://hdl.handle.net/1828/2104.
Full textAbstract:
In my thesis, I argue that art is one way Indigenous peoples keep our laws alive in the world. The purpose of my thesis is to show the underlying connections between the role of the artist and the practice of art and the laws by which we seek to live. I draw on contemporary Indigenous art to illustrate some of those roles and responsibilities. As we share our art, our knowledge between Indigenous peoples, we are strengthening our peoples to resist the powerful effects of colonialism. At the same time we are communicating powerful law by building opportunities for future generations to live together in peace, friendship and respect.
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Sankey, Jennifer. "Globalization, law and indigenous transnational activism: the possibilities and limitations of indigenous advocacy at the WTO." Thesis, 2006. http://hdl.handle.net/1828/2146.
Full textAbstract:
This thesis argues that globalization is creating increased need and opportunities for Indigenous rights advocacy/participation within emerging institutions of global governance and analyzes the possibilities and limitations of Indigenous advocacy at the WTO, drawing on the experiences of First Nations from the Interior of British Columbia.
It begins by examining how governance is shifting in the context of globalization, pointing to the emergence of an integrated global economy, the rise of supranational regulatory regimes such as the WTO, and the increased power and significance of non-state actors.within the global political-legal arena. It then analyzes how globalization is affecting Indigenous peoples and moreover, how Indigenous peoples have been responding to this through transnational advocacy efforts. The author argues that given the shifting nature of governance, and the growing significance of intergovernmental organizations (i.e. the WTO), it is prudent for Indigenous rights advocates to expand the parameters of their advocacy - to seek out non-traditional spaces at both local and global levels to assert Indigenous voices where they have traditionally been rendered absent.
Adopting Boaventura de Sousa Santos' subaltern cosmopolitan legality perspective, the author then turns to examine how First Nations from the Interior of BC have used a multiplicity of legal techniques and strategies across a "plural legal landscape" to simultaneously assert their Indigenous rights over their forest resources and to challenge the dominant neoliberaI conception of economy. The author examines the political and legal mobilization of BC Interior First Nations from local acts of resistance against BC government forest policies to global acts of resistance vis a vis the submission of amicus curiae briefs to the WTO in the Canada-United States Softwood Lumber Dispute. In analyzing this struggle the author illustrates how globalization has created the need and opportunity for BC First Nations to locate new directions of advocacy, and how they have reinvented law to fit their objectives and enable their access to traditionally "closed" political-legal arenas.
Upon conducting an examination of the BC Interior First Nations' experiences, the author then critically evaluates the possibilities and limitations of Indigenous advocacy at the WTO. The author finds that while amicus curiae submissions provide some possibility to strengthen Indigenous rights by raising awareness about the linkages between international trade and Indigenous rights within the international trade arena, there are significant limitations that must be considered in pursuing such advocacy. The author concludes with recommendations concerning how Indigenous rights advocacy may be approached in the context of shifting governance relations.
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Mavec, Dante. "The appropriate place of Indigenous sentencing courts in the Australian criminal justice system." Thesis, 2008. http://hdl.handle.net/1885/144125.
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Corbett, Lee School of Sociology & Anthropology UNSW. "Native title & constitutionalism: constructing the future of indigenous citizenship in Australia." 2007. http://handle.unsw.edu.au/1959.4/40710.
Full textAbstract:
This thesis argues that native title rights are fundamental to Indigenous citizenship in Australia. It does this by developing a normative conception of citizenship in connection with a model of constitutionalism. Here, citizenship is more than a legal status. It refers to the norms of individual rights coupled with democratic responsibility that are attached to the person in a liberal-democracy. Constitutionalism provides the framework for understanding the manner in which Australian society realizes these norms. This thesis focuses on a society attempting to grapple with issues of postcolonialism. A fundamental question faced in these societies is the legitimacy of group rights based in pre-colonization norms. This thesis argues that these rights can be legitimized when constitutionalism is understood as originating in the deliberations connecting civil society with the state; which deliberations reconcile individual rights with group rights in such a way as to resolve the issue of their competing claims to legitimacy. Civil society is the social space in which politico-legal norms collide with action. The argument constructed here is that native title is built on norms that have the potential (it is a counterfactual argument) to contribute to a postcolonial civil society. This is one in which colonizer and colonized coordinate their action in a mutual search for acceptable solutions to the question 'how do we live together?'. The optimistic analysis is tempered by a consideration of the development of native title law. The jurisprudence of the High Court after the Wik's Case has undermined the potential of native title to play a transformative role. It has undermined Indigenous Australians' place in civil society, and their status as equal individuals and responsible citizens. In seeking to explain this, the thesis turns from jurisprudence to political sociology, and argues that an alternative model of constitutionalism and civil society has supplanted the postcolonial; viz., the neoliberal.
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Mack, Johnny Camille. "Thickening totems and thinning imperialism." Thesis, 2009. http://hdl.handle.net/1828/2830.
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This thesis analyzes the relationship between the legal traditions of indigenous peoples and the Canadian State. I posit that the current relationship is aptly characterized as imperial. The imperial dynamics of this relationship perpetuate imbalances of power between the two traditions. This situation of power imbalance produces two effects that are of concern here. First, it enframes the development of indigenous legal traditions
within the liberal state, domesticating indigenous norms to accord with liberal norms.
Second, it disencumbers indigenous peoples ancestral territories from indigenous
authority that would inhibit Canadian and global market penetration. I rely on theoretical literature in the fields of legal pluralism and postcolonialism to develop this argument. A deep conception of legal pluralism allows us, as researchers, to think of state law as developed by a single legal tradition that co-exists with indigenous legal traditions.
Postcolonial theory aids us in analyzing the particular manner in which power works in
situations of colonialism and imperialism to privilege certain legal orders over others. I
suggest that indigenous life is not fully enclosed by imperialism, and that as indigenous peoples we should engage those non-imperial sites and practices deeply to thicken our capacity to live freely. I suggest indigenous practices of totemism represent one such site.
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Hannah, Mark. "Constituting marriage : Indigenous and inter-cultural marriage and power of 'protectors'." Phd thesis, 2005. http://hdl.handle.net/1885/150293.
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Kufakunesu, Patson. "The historical and contemporary sociolinguistic status of selected minority languages in civil courts of Zimbabwe." Thesis, 2017. http://hdl.handle.net/10500/23584.
Full textAbstract:
This study examines the historical and contemporary sociolinguistic status of three minority languages, namely Shangani, Kalanga and Tonga in Chiredzi, Plumtree and Binga respectively within the civil courts of Zimbabwe. This research problematizes the issue of language choice and usage in civil courtroom discourse by native speakers of the languages under study. The background to this research endeavor is the historical dominance of English, Shona and Ndebele in public institutions as media of communication even in areas where minority languages are dominant, a situation that has resulted in minority languages having a restricted functional space in public life. Respondents in this research included native speakers of the languages under study who have attended civil courtroom sessions either as accused persons or complainants, members of rural communities including community leaders, court interpreters stationed at Binga, Chiredzi and Plumtree magistrates‟ courts and members of the Judicial Services Commission (JSC). Data was also collected from minority language advocacy groups including Tonga Language and Cultural Committee (TOLACCO), Shangani Promotion Trust (SPAT) and Kalanga Language and Culture Development (KLCDA) using semi-structured interviews. In addition, participant observation of civil courtroom proceedings involving native speakers of Kalanga, Tonga and Shangani was done. Documentary analysis of colonial and postcolonial language policies in Zimbabwe was also done. Data was analyzed using Critical Discourse Analysis (CDA) and Ecology of Language theories. The findings for this research revealed that historically, language policy making in Zimbabwe has impacted negatively on the functional roles of Shangani, Tonga and Kalanga in civil courtroom communication because of the lack of implementation clauses in national constitutions. Furthermore, language attitudes that were analyzed in conjunction with a number of factors including age, demographics, naming of provinces, awareness of constitutional provisions on language and language-in-education policies were found to be key determinant factors influencing the sociolinguistic status of Kalanga, Tonga and Shangani in civil courtroom discourse. Court interpreting and initiatives by language advocacy groups also impacted on the sociolinguistic status of the languages under study in civil courtroom interaction.Linguistics and Modern Languages
D. Phil. (Language, Linguistics and Literature)