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Full-Text Articles in Law
Ktunaxa Nation V. British Columbia: A Historical And Critical Analysis Of Canadian Aboriginal Law, Jennifer Mendoza
Ktunaxa Nation V. British Columbia: A Historical And Critical Analysis Of Canadian Aboriginal Law, Jennifer Mendoza
Washington International Law Journal
Aboriginal law is a developing and emerging area of the law in Canada. In fact, Aboriginal rights were not constitutionally protected until the ratification of the Canadian Constitution in 1982. What followed was a series of precedent-setting cases that clarified what “rights” meant under Section 35 of the Constitution, how Aboriginal title and rights could be established, and what duty the federal government had to the First Nations when trying to infringe on those rights. In 2017, the Canadian Supreme Court heard Ktunaxa Nation v. British Columbia, which was the first case to interpret Aboriginal rights under Section 2(a) religious …
Conceptualizing Indigenous Historical Justice Toward A Mutual Recognition With State In Taiwan, Awi Mona
Conceptualizing Indigenous Historical Justice Toward A Mutual Recognition With State In Taiwan, Awi Mona
Washington International Law Journal
Transitional justice has received considerable attention in recent years in Taiwan. Despite all this attention, transitional justice is an issue that remains incomplete without addressing justice for indigenous peoples. This paper aims to focus on the essential characteristics of indigenous justice against the successive alien regimes. Though the fact that the national apology to indigenous peoples may have broken new ground in the government’s relationship with indigenous peoples, the common understanding of transitional justice has caused significant bitterness and frustration for indigenous peoples. Until the core significance of indigenous justice is essentially resolved, the existing uncertainty about reconciliation with indigenous …
A Comparative Analysis: Legal And Historical Analysis Of Protecting Indigenous Cultural Rights Involving Land Disputes In Japan, New Zealand, And Hawai'i, Zachary Browning
A Comparative Analysis: Legal And Historical Analysis Of Protecting Indigenous Cultural Rights Involving Land Disputes In Japan, New Zealand, And Hawai'i, Zachary Browning
Washington International Law Journal
This article explores how courts in developed market economies address the tension between recognizing the rights of indigenous groups and addressing questions of land development that supposedly benefit the majority populations. Using a comparative approach, the article identifies three jurisdictions in the Pacific Rim with indigenous populations: (1) the State of Hawai‘i in the United States, (2) Japan, and (3) New Zealand and analyzes how land use courts and administrative bodies have addressed the thorny question pursuing development while fulfilling their obligations to indigenous populations. While the State of Hawai‘i has explicit state constitutional protections, Japan and New Zealand each …
Undrip And The Intervention: Indigenous Self-Determination, Participation, And Racial Discrimination In The Northern Territory Of Australia, Anna Cowan
Washington International Law Journal
The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) by the General Assembly in 2007 was a landmark achievement in the development of indigenous rights under international law, particularly through its unequivocal recognition of indigenous peoples’ right to self-determination. That same year, Australia launched a comprehensive Intervention into Aboriginal communities in the Northern Territory, which purported to safeguard important human rights but was heavily criticized for its discriminatory and non-consultative approach. This article explores the meaning of self-determination under international law, now that the long debate over whether indigenous peoples are “peoples” has finally been …
Protecting The Spiritual Beliefs Of Indigenous Peoples—Australian Case Studies, Michael Blakeney
Protecting The Spiritual Beliefs Of Indigenous Peoples—Australian Case Studies, Michael Blakeney
Washington International Law Journal
This article examines the extent to which the spiritual beliefs of Aboriginal and Torres Strait Islander Peoples are protected under current Australian law. The first significant recognition by the High Court of Australia of the legal rights of indigenous peoples was in relation to native title over real property. As those peoples define their status and society by reference to their relationship with the land, this article considers the ultimately unsuccessful attempt to protect their spiritual beliefs as an incident of native title law. It reviews a line of intellectual property cases which have been a more fruitful source of …
Introduction, Jonathan A. Franklin
Introduction, Jonathan A. Franklin
Washington International Law Journal
The four articles in this issue all contribute to the dialogue surrounding the intersection of indigenous people’s rights within international law and domestic actions that conflict with those rights. While the UNDRIP and other international law instruments are explicit about how states should act towards indigenous populations, in many cases these international instruments conflict with domestic law. There are several reasons for this discrepancy, including states’ self-interest, paternalism, and lack of resources needed to address both national concerns and the rights of indigenous peoples.
The Struggle For Laws Of Free, Prior, And Informed Consultation In Peru: Lessons And Ambiguities In The Recognition Of Indigenous Peoples, Elizabeth Salmón G.
The Struggle For Laws Of Free, Prior, And Informed Consultation In Peru: Lessons And Ambiguities In The Recognition Of Indigenous Peoples, Elizabeth Salmón G.
Washington International Law Journal
Despite the fact that Peru ratified ILO Convention 169 on December 2, 1993 and was therefore bound by those dispositions, it adopted public policies without consulting indigenous people. This lack of dialogue led to social conflict over the management of natural resources. In June 2009, a violent episode of social unrest emerged in the provinces of Bagua and Utcubamba during the government of Alan García after the entry into force of the United States-Peru Trade Promotion Agreement (“PTPA”). Indigenous people believed that PTPA aimed to sacrifice rainforest conservation for oil and mining exploitation. In this context, indigenous people grew frustrated …
Indigenous Restitution In Settling Water Claims: The Developing Cultural And Commercial Redress Opportunities In Aotearoa, New Zealand, Jacinta Ruru
Washington International Law Journal
Water is important to all peoples, including indigenous peoples. In recent years, the government in Aotearoa, New Zealand has utilized various cultural redress-type legal mechanisms to recognize and revive the importance of water to the Maori people’s identity, health, and wellbeing. These mechanisms create revolutionary modern opportunities for Maori to participate in the decision-making of how specific waters are used and protected. In particular, the negotiated agreements for the Te Arawa Lakes, and the Waikato, Waipa, and Whanganui rivers are studied in this article as prominent examples of how the government has agreed to, for example, co-management regimes. With the …
Addressing The Overrepresentation Of The Maori In New Zealand's Criminal Justice System At The Sentencing Stage: How Australia Can Provide A Model For Change, Joanna Hess
Washington International Law Journal
New Zealand’s 2002 Sentencing Act provides several ways a sentencing court may take an offender’s cultural or ethnic background into account. Given the disproportionate rate of recidivism among New Zealand’s indigenous Maori offenders and international and domestic concerns regarding this problem, the Act’s provisions offer one method for addressing and mitigating this issue. However, these sentencing provisions remain largely unknown or underused. This comment argues that in order to tackle these concerns, left unaddressed by the current Sentencing Act, New Zealand should restructure its sentencing provisions to follow the legislative model that is developing in Australian states, particularly the model …
Disproportionate Disenfranchisement Of Aboriginal Prisoners: A Conflict Of Law That Australia Should Address, Megan A. Winder
Disproportionate Disenfranchisement Of Aboriginal Prisoners: A Conflict Of Law That Australia Should Address, Megan A. Winder
Washington International Law Journal
In 2006, Australia’s Parliament banned all prisoners from voting. A year later, Vickie Lee Roach, a female prisoner of Aboriginal descent, challenged the blanket ban promulgated in the 2006 amendment to the Commonwealth Electoral Act of 1918 (“Electoral Act”). Vickie won, but in a limited way. The High Court found an implied right to vote in the Australian Constitution, but held that Parliament could limit such voting, as it did in the Electoral and Referendum Amendment of 2004 (“E & R Amendment”), disenfranchising any prisoner serving three or more years in jail. This Comment argues that the E & R …
Fee Simple Estate And Footholds In Fishing: The Australian High Court's Formalistic Interpretation Of The Aboriginal Land Rights Act, Heather Ahlstrom Coldwell
Fee Simple Estate And Footholds In Fishing: The Australian High Court's Formalistic Interpretation Of The Aboriginal Land Rights Act, Heather Ahlstrom Coldwell
Washington International Law Journal
The coast of the Northern Territory in Australia boasts some of the world’s best fishing and hosts a lucrative commercial fishing industry. The Northern Territory is also home to over 50,000 Aboriginal people who rely on these waters for their subsistence and livelihood. However, the Aboriginal population is effectively barred from participating in the commercial fishing industry by Territory regulations and economic disadvantage. In July 2008, ten years of litigation over access to coastal waters adjoining Aboriginal land in the Northern Territory culminated with the High Court’s decision in Northern Territory of Australia v. Arnhem Land Aboriginal Trust. The …
Entitled Against None: How The Wrongly Decided Croker Island Case Perpetuates Aboriginal Dispossession, Siiri Aileen Wilson
Entitled Against None: How The Wrongly Decided Croker Island Case Perpetuates Aboriginal Dispossession, Siiri Aileen Wilson
Washington International Law Journal
Australia’s 1992 landmark case of Mabo v. The State of Queensland [No. 2] revoked the concept of terra nullius and for the first time since European colonization of the continent allowed indigenous Australians to obtain legal ownership of their traditional lands. The following year this groundbreaking decision became statutory law with the enactment of the Native Title Act (NTA) of 1993. The case law and the statutory act both failed, however, to adequately address the question of Aboriginal claims to sea properties. For many Australian Aboriginal groups, ownership of traditional lands does not abruptly end at a shoreline but extends …
Australia's Northern Territory National Emergency Response Act: Addressing Indigenous And Non-Indigenous Inequities At The Expense Of International Human Rights?, Jenna Gruenstein
Australia's Northern Territory National Emergency Response Act: Addressing Indigenous And Non-Indigenous Inequities At The Expense Of International Human Rights?, Jenna Gruenstein
Washington International Law Journal
In 2007, Australia passed the Northern Territory National Emergency Response Act (“NT Emergency Response Act”), ostensibly reacting to a recent report detailing exceedingly high levels of sexual abuse of Aboriginal children. This Comment argues that the NT Emergency Response Act likely violates Australia’s obligations under the United Nations’ (“U.N.”) International Convention on the Elimination of All Forms of Racial Discrimination (“Racial Discrimination Convention”). The NT Emergency Response Act provides an opportunity for the Racial Discrimination Convention’s enforcement body, the Committee on the Elimination of Racial Discrimination (“CERD”), to extend its application of the specialized guidelines for indigenous peoples beyond the …
Australia's "New Arrangements In Indigenous Affairs": A New Approach Or A New Paternalism?, Joshua M. Piper
Australia's "New Arrangements In Indigenous Affairs": A New Approach Or A New Paternalism?, Joshua M. Piper
Washington International Law Journal
The Aboriginal and Torres Strait Islander Commission (“ATSIC”) opened its doors in 1990 with the main objectives of advising the Australian Commonwealth Government (“Government”) on Indigenous policy and providing services for Indigenous communities and individuals. Fifteen years later, with Indigenous living standards still well behind other Australians, the Government deemed ATSIC a failure and abruptly gutted and abolished the Commission. At the same time, the government transitioned to its New Arrangements in Indigenous Affairs program (“New Arrangements”). The New Arrangements are based on two fundamental ideas: better coordination between governments and agencies; and, most important, engaging and empowering Indigenous communities …
Using International Law More Effectively To Secure And Advance Indigenous Peoples' Rights: Towards Enforcement In U.S. And Australian Domestic Courts, John D. Smelcer
Using International Law More Effectively To Secure And Advance Indigenous Peoples' Rights: Towards Enforcement In U.S. And Australian Domestic Courts, John D. Smelcer
Washington International Law Journal
Over the past three decades, indigenous peoples have effected a remarkable redefinition of their status and rights under international law, giving rise to an emerging distinct customary international law of indigenous peoples’ rights. Though that process is ongoing, the next critical step is enforcing these congealing rights “at home” in the domestic courts of indigenous peoples’ surrounding nations. Australia and the United States provide the most difficult and most revealing contexts in which to explore the possibilities and limitations of this necessary next step. The direct enforcement of the emerging customary international law of indigenous peoples’ rights is not yet …
Forsaking The Forests For The Trees: Forestry Law In Papua New Guinea Inhibits Indigenous Customary Ownership, Alyssa A. Vegter
Forsaking The Forests For The Trees: Forestry Law In Papua New Guinea Inhibits Indigenous Customary Ownership, Alyssa A. Vegter
Washington International Law Journal
Illegal logging in the tropical forests of Papua New Guinea is one of the greatest threats to the forests and indigenous people of this island nation. Increasing pressure from the commercial logging industry, legislation that restrains customary ownership, and an unclear legal basis for this ownership subjects the indigenous people of Papua New Guinea to unscrupulous, unsustainable, and illegal logging practices. As a region central to the preservation of global ecological and cultural diversity, the devastating consequences of illegal logging in Papua New Guinea have become nationally and internationally significant. Customary ownership of the forests by the indigenous clans of …
Aboriginal Title And Extinguishment Not So "Clear And Plain": A Comparison Of The Current Maori And Haida Experiences, Jacqueline F. Pruner
Aboriginal Title And Extinguishment Not So "Clear And Plain": A Comparison Of The Current Maori And Haida Experiences, Jacqueline F. Pruner
Washington International Law Journal
As the end of the United Nations General Assembly's International Decade of the World's Indigenous Peoples (1995-2004) approaches, indigenous peoples worldwide are proactively seeking an unprecedented reclamation of aboriginal rights lost since European colonization. One of the most all-encompassing rights that is asserted by indigenous peoples is the right of "indigenous title," a legal term of art that is both difficult to define and challenging to recognize. Notwithstanding domestic opposition from their respective provincial or national legislatures, both the Haida of Canada and the Maori of New Zealand are currently pursuing recognition of this indigenous right through their respective judiciaries. …
Getting A Seat At The Table: Giving The Indigenous Peoples Of The Russian Far East Control Over Local Government, Stephen R. King
Getting A Seat At The Table: Giving The Indigenous Peoples Of The Russian Far East Control Over Local Government, Stephen R. King
Washington International Law Journal
The traditional homelands of the indigenous peoples of Siberia and the Russian Far East harbor vast wealth in the form of timber, minerals, oil, and gas. Throughout much of the 20th Century, the Soviet Union used forced relocation of native peoples, expropriation of native lands, and other harsh means to gain access to these resources. The native peoples received little or no compensation for the vast natural wealth that the Soviet government took from their lands, and the government often left the land so polluted that it could no longer support the native people's hunting and herding ways-of-life. The Russian …
Erosion Of The Indigenous Right To Negotiate In Australia: Proposed Amendments To The Native Title Act, Gretchen Freeman Cappio
Erosion Of The Indigenous Right To Negotiate In Australia: Proposed Amendments To The Native Title Act, Gretchen Freeman Cappio
Washington International Law Journal
The Australian government seeks to amend the Native Title Act, which presently gives indigenous Australians real property rights by virtue of their history living on the land. In their present form, the proposed amendments to the Native Title Act threaten indigenous representation regarding land disputes. The right to negotiate currently protected by the Act must be preserved, ensuring indigenous participation as well as consensual and procedural agreement. The government should not change its course: indigenous parties deserve the same rights today as were granted just five years ago. Government and indigenous leaders must work cooperatively to draft new amendments to …
Indigenous People: An American Perspective On The Case For Entrenchment Of Maori Rights In New Zealand Law, Jeanette Jameson
Indigenous People: An American Perspective On The Case For Entrenchment Of Maori Rights In New Zealand Law, Jeanette Jameson
Washington International Law Journal
The 1840 Treaty of Waitangi, signed by representatives of the British Crown and Maori Tribes, created a partnership that allowed colonization of New Zealand while protecting the Maori culture. The Treaty was declared a "nullity" in an 1877 court decision, and Maori rights under the Treaty have yet to be fully realized. Since the beginning of the 1970s, the New Zealand government has increasingly recognized the Maori culture. This Comment explores the history of the relationship between the Maori people and the New Zealand government. It analyzes current government policy on Maori issues. Fimally, it advocates for legislative entrenchment of …