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Articles 1 - 30 of 182
Full-Text Articles in Law
Denial Of Justice: The Latest Indigenous Land Disputes Before The European Court Of Human Rights And The Need For An Expansive Interpretation Of Protocol 1, Giovanna E. Gismondi
Denial Of Justice: The Latest Indigenous Land Disputes Before The European Court Of Human Rights And The Need For An Expansive Interpretation Of Protocol 1, Giovanna E. Gismondi
Giovanna E. Gismondi
In its three latest decisions on indigenous land rights, the European Court of Human Rights (ECtHR) has afforded scant protection to indigenous peoples. Through an analysis of each case in terms of substantive and procedural law, this Article evaluates the challenges indigenous peoples face when pursuing their claims before the Court. I argue that the European Court's narrow interpretation of the "right to peaceful enjoyment of possessions" codified in Protocol 1 (Article 1) of the European Convention on Human Rights (ECHR) has failed to consider the importance of collective lands in securing the cultural survival of indigenous peoples, their economic …
Traditional Knowledge Rights And Wrongs, Sean Pager
Traditional Knowledge Rights And Wrongs, Sean Pager
Sean Pager
SourceURL:file://localhost/Users/sean/Documents/Folklore%20TK/Unpacking%20ABSTRACT.doc
Traditional Knowledge Rights and Wrongs
Sean A. Pager, Michigan State University
ABSTRACT
Should the intangible heritage of indigenous people be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation …
The Constitutional Dimensions Of Aboriginal Title, Brian Slattery
The Constitutional Dimensions Of Aboriginal Title, Brian Slattery
Brian Slattery
As the Supreme Court reaffirms in Tsilhqot’in Nation v. British Columbia (2014), Aboriginal title is a sui generis right which cannot be described in traditional property terms. This paper argues that the explanation for this fact is that Aboriginal title is not a concept of private law. It is a concept of public law. It does not deal with the rights of private entities but with the rights and powers of constitutional entities that form part of the Canadian federation. If we look for analogies to Aboriginal title, we find a close parallel in Provincial title – the rights held …
Traditional Knowledge Rights And Wrongs, Sean Pager
Traditional Knowledge Rights And Wrongs, Sean Pager
Sean Pager
Should the intangible heritage of indigenous cultures be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation between the two draft treaties based on subject matter. Just as copyright and …
The Treaty Of Waitangi In New Zealand's Law And Constitution In 2015, Matthew S. R. Palmer Qc
The Treaty Of Waitangi In New Zealand's Law And Constitution In 2015, Matthew S. R. Palmer Qc
The Hon Justice Matthew Palmer
This lecture addresses issues concerning the place of the Treaty of Waitangi, including: implications of the Waitangi Tribunal's conclusions on sovereignty; the rationale behind historical Treaty settlements; and the future role of the Waitangi Tribunal.
Searching For Sakitawak: Place And People In Northern Saskatchewan's Ile-A La Crosse, Signa A. K. Daum Shanks
Searching For Sakitawak: Place And People In Northern Saskatchewan's Ile-A La Crosse, Signa A. K. Daum Shanks
Signa A. K. Daum Shanks
This presentation is a history of a small community, Île-à-la-Crosse, located in an area now part of Saskatchewan, Canada. With an historic reputation for cooperation and enviable trading circumstances, its residents traditionally have determined that protection of the community ensured the best opportunities for the advancement and security of individuals. As a result of this belief, residents reinforced their own understandings of sustainability as a means to ensure personal success. The community’s fame for hosting such a set of norms grew, particularly from the eighteenth to the twentieth century, and outsiders often visited to improve their own efforts as a …
Forfeiting Federalism: The Faustian Pact With Big Tobacco, Ryan Dreveskracht
Forfeiting Federalism: The Faustian Pact With Big Tobacco, Ryan Dreveskracht
Ryan Dreveskracht
This article discusses the effects of the largest legal settlement in United States history: the so-called Master Settlement Agreement, or “MSA.” Part I discusses the settlement generally, and its intended effect on the U.S. tobacco market. Parts II through IV discuss the unintended consequences of the settlement. Specifically, Part II considers how states got into their current disarray, and how a perceived state windfall of billions of dollars ended up putting states on what by all accounts now appears to be very real risk of insolvency. Part III examines how the major tobacco companies are using the states’ dire financial …
The Breach Of The Common Law Trust Relationship Between The United States And African Americans - A Substantive Right To Reparations, Ayesha B. Hardaway
The Breach Of The Common Law Trust Relationship Between The United States And African Americans - A Substantive Right To Reparations, Ayesha B. Hardaway
Ayesha B. Hardaway
Domination and elaborate control of Africans in colonial America, and later the United States, were exerted to provide the requisite framework for the economically profitable Trans-Atlantic slave trade. Proponents of slavery characterized the aims of slavery in pseudo-paternalistic terms to “train” and “civilize[e] the untutored savage.”Even after the formal end of slavery, the U.S. and local governments continued to exercise its domination and elaborate control by enforcing a national system of racial segregation and discrimination. That system of government-sanctioned laws was so pervasive and commonly accepted that it has been personified as “Jim Crow.” As a result, racial hierarchy is …
The Status And Effect In New Zealand Law Of The Declaration On The Rights Of Indigenous Peoples, Matthew S. R. Palmer Qc
The Status And Effect In New Zealand Law Of The Declaration On The Rights Of Indigenous Peoples, Matthew S. R. Palmer Qc
The Hon Justice Matthew Palmer
This paper outlines the ways in which the Declaration on the Rights of Indigenous Peoples is reflected in, and affects, New Zealand domestic law.
Born Native, Raised White: The Divide Between Federal And Tribal Jurisdiction With Extra-Tribal Native American Adoption, Christina Lewis
Born Native, Raised White: The Divide Between Federal And Tribal Jurisdiction With Extra-Tribal Native American Adoption, Christina Lewis
Christina Lewis
No abstract provided.
Creating Space For Reservation Growth, Ezra Rosser
Creating Space For Reservation Growth, Ezra Rosser
Ezra Rosser
This brief article is a review of Robert J. Miller, Reservation "Capitalism": Economic Development in Indian Country (2012). It highlights some of the significant points Miller makes in his book and concludes that the book is a "must read" for those interested in reservation economic development.
Self-Determination, Subordination, And Semantics: Rhetorical And Real-World Conflicts Over The Human Rights Of Indigenous Women, Sam Grey
Sam Grey
Indigenous women have long been engaged in unambiguous advocacy for a human rights-based approach to gender injustice in their communities and nations. Indigenous nations, for their part, have repeatedly and passionately posited collective human rights as necessary for the protection of cultural distinction. These projects should be reconcilable – but this reconciliation requires the political will to critically engage with historical and contemporary colonialism, and to address the internalization of patriarchy and sexism in Indigenous societies today. With such a will in place, it becomes possible to operationalize a single Indigenous ‘self-determination’ project grounded in human rights, one that sees …
Born Native, Raised White: The Divide Between Federal And Tribal Jurisdiction With Extra-Tribal Native American Adoption, Christina Lewis
Born Native, Raised White: The Divide Between Federal And Tribal Jurisdiction With Extra-Tribal Native American Adoption, Christina Lewis
Christina Lewis
No abstract provided.
The Aboriginal Constitution, Brian Slattery
The Aboriginal Constitution, Brian Slattery
Brian Slattery
In a remarkable series of cases over the past decade, from Haida Nation to Manitoba Métis Federation, the Supreme Court of Canada has thrown a strong light on three basic elements of Aboriginal law: the honour of the Crown, the Royal Proclamation of 1763, and Aboriginal Treaties. This paper argues that these form the framework of the Aboriginal Constitution, which parallels the Federal Pact between the Provinces in the Constitution Act, 1867. Indeed, the Aboriginal Constitution provides the Constitution of Canada with its most ancient and enduring roots.
Enforcing Tribal And State Court Civil Judgments In California, Jeremy Freedman
Enforcing Tribal And State Court Civil Judgments In California, Jeremy Freedman
Jeremy Freedman
The purpose of this Note is to bring to light the growing need for a reciprocal approach to cross-jurisdictional enforcement of civil money judgments between California State and Indian tribal courts. In analyzing the issues with enforcement of civil judgments, this Note provides a practical solution that balances comity, sovereign immunity and the need to develop reciprocal solutions to problems created by two societies closely tied to each other. In order to resolve the growing issues affecting state and tribal courts, it is necessary to require reciprocity for enforcement of civil judgments.
Public Law 280 and principles of comity create …
Evaluating Oral Histories: The Evidentiary Standard In Cases Involving The Repatriation Of Pre-Historic Human Remains, Sylvia St. Clair
Evaluating Oral Histories: The Evidentiary Standard In Cases Involving The Repatriation Of Pre-Historic Human Remains, Sylvia St. Clair
Sylvia B. St. Clair
Ms. St. Clair explores the use of oral histories to prove cultural affiliation and examines how the laws of evidence must be adapted in order to accommodate this type of evidence. In cases involving the repatriation of Native American human remains, proving cultural affiliation becomes especially problematic when traditional evidence is scarce and tribal claimants rely on oral histories to prove affiliation. This type of evidence is subject to heavy skepticism, consistently challenged by science and technological advances, and examination of the court’s treatment of cases over the last decade has left confusion on the applicable standard. In face of …
Pirates Of The Australian Election, Matthew Rimmer
Pirates Of The Australian Election, Matthew Rimmer
Matthew Rimmer
“Pirate parties” have proliferated across Europe and North America in the past decade, championing issues such as intellectual property (IP), freedom of speech, and the protection of privacy and anonymity.This year, the movement hit Australian shores: The Pirate Party Australia was officially registered by the Australian Electoral Commission in January 2013. (You can read its principles and platform here.)“More than ever before, there is a necessity in Australia for a party that holds empowerment, participation, free culture and openness as its central tenets”, Pirate Party founder Rodney Serkowski said in a press release announcing the group’s successful registration. Their first …
South Dakota: Making Dollars And Sense Of Indian Child Removal, Rachael Whitaker
South Dakota: Making Dollars And Sense Of Indian Child Removal, Rachael Whitaker
Rachael Whitaker
South Dakota- Making Dollars and Sense of Indian Child Removal By: Rachael Whitaker In 2004, a South Dakota Governor’s Commission report adamantly denied claims that the state’s Department of Social Services (DSS) is “harvesting Indian children as a cash crop” and “runs nothing more than a state sponsored kidnapping program.” National Public Radio (NPR) broke a story in 2011, claiming South Dakota removed Indian children for profit. Since NPR’s report, the state has remained tight-lipped, advocates have threatened litigation, and Congress has asked for answers. South Dakota has a small population and economy, and it receives almost half of its …
What Place Does The Treaty Have In New Zealand's Constitutional Arrangements?, Matthew S.R. Palmer
What Place Does The Treaty Have In New Zealand's Constitutional Arrangements?, Matthew S.R. Palmer
The Hon Justice Matthew Palmer
In this address Matthew Palmer makes suggestions about how the Treaty of Waitangi should be reflected in New Zealand's constitutional arrangements.
The Ambition And Transformative Potential Of Progressive Property, Ezra Rosser
The Ambition And Transformative Potential Of Progressive Property, Ezra Rosser
Ezra Rosser
The emerging progressive property school celebrates and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and nonowners have with property and with each other. Despite these ambitions, progressive property scholarship has so far largely confined itself to questions of exclusion and access. This Essay argues that such an emphasis glosses over race-related acquisition and distribution problems that pervade American history and property law. The modest structural changes supported by progressive property scholars fail to account for …
The Promise And Perils Of Renewable Energy On Tribal Lands, Sara C. Bronin
The Promise And Perils Of Renewable Energy On Tribal Lands, Sara C. Bronin
Sara C. Bronin
In theory, the ninety-five million acres of tribal lands in the United States are perfect sites for the renewable energy infrastructure that could help to meet the energy needs of not just tribes, but the rest of the nation. They often have plentiful sunlight, wind, and open space, resources that are important prerequisites for renewable energy production. They are not necessarily governed by the land use or environmental regulations that sometimes inhibit energy projects in more densely populated areas. At the same time, on-site renewable energy may provide direct economic benefits for tribes, including “green jobs,” infrastructure improvements, and production …
Land Into Trust: An Inquiry Into Law, Policy, And History, Frank Pommersheim
Land Into Trust: An Inquiry Into Law, Policy, And History, Frank Pommersheim
Frank Pommersheim
No abstract provided.
An Elegy For Greg Ham: Copyright Law, The Kookaburra Case, And Remix Culture, Matthew Rimmer
An Elegy For Greg Ham: Copyright Law, The Kookaburra Case, And Remix Culture, Matthew Rimmer
Matthew Rimmer
The ‘Kookaburra’ case was a tragic and controversial copyright dispute, highlighting the need for copyright law reform by the Australian Parliament. In the Kookaburra case, a copyright action was brought by Larrikin Records against Men at Work’s song ‘Down Under’, alleging copyright infringement of the ‘Kookaburra’ song composed by Marion Sinclair. The dispute raised a host of doctrinal matters. There was disquiet over the length of the copyright term. There were fierce contests as to the copyright ownership of the ‘Kookaburra’ song. The litigation raised questions about copyright infringement and substantiality – particularly in relation to musical works. The ‘Kookaburra’ …
23andme Inc.: Patent Law And Lifestyle Genetics, Matthew Rimmer
23andme Inc.: Patent Law And Lifestyle Genetics, Matthew Rimmer
Matthew Rimmer
The venture, 23andMe Inc., raises a host of issues in respect of patent law, policy, and practice in respect of lifestyle genetics and personalised medicine. The company observes: ‘We recognize that the availability of personal genetic information raises important issues at the nexus of ethics, law, and public policy’. 23andMe Inc. has tested the boundaries of patent law, with its patent applications, which cut across information technology, medicine, and biotechnology. The company’s research raises fundamental issues about patentability, especially in light of the litigation in Bilski v. Kappos, Mayo Collaborative Services v. Prometheus Laboratories Inc. and Association for Molecular Pathology …
Interstate Water Compact Version 3.0: Missouri River Basin Compact Drafters Should Consider An Inter-Sovereign Approach To Accommodate Federal And Tribal Interests In Water Resources, Jeffrey T. Matson
Jeffrey T Matson
In the aftermath of the historic 2011 Missouri River flood, Missouri River Basin (MRB) state representatives and governors criticize the U.S. Army Corps of Engineers (Corps) for operating the Missouri River Mainstem Reservoir System (System) in support of the multiple, often conflicting, purposes outlined in the Flood Control Act of 1944. These officials envision entering into an interstate compact to divest the Corps of some of its operational authority and to broaden their role in managing water resources. Similarly, MRB tribal leaders argue that the Corps fails to operate its System in a manner that respects the interrelated issues of …
A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Remix Culture, Matthew Rimmer
A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Remix Culture, Matthew Rimmer
Matthew Rimmer
RECOMMENDATIONSIn its issues paper, the Australian Law Reform Commission asks a number of inter-connected questions about transformative use, fair dealing, and fair use:Transformative useQuestion 14. How are copyright materials being used in transformative and collaborative ways—for example, in ‘sampling’, ‘remixes’ and ‘mashups’. For what purposes—for example, commercial purposes, in creating cultural works or as individual self-expression?Question 15. Should the use of copyright materials in transformative uses be more freely permitted? Should the Copyright Act 1968 (Cth) be amended to provide that transformative use does not constitute an infringement of copyright? If so, how should such an exception be framed?Question 16. …
A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: 3d Printing, Matthew Rimmer
A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: 3d Printing, Matthew Rimmer
Matthew Rimmer
RECOMMENDATIONSThe Australian Law Reform Commission poses a number of questions on the defence of fair use in Copyright and the Digital Economy.Question 52. Should the Copyright Act 1968 (Cth) be amended to include a broad, flexible exception? If so, how should this exception be framed? For example, should such an exception be based on ‘fairness’, ‘reasonableness’ or something else? Question 53. Should such a new exception replace all or some existing exceptions or should it be in addition to existing exceptions?The case study of 3D printing highlights how Australia would benefit from a defence of fair use.Recommendation 1 The narrow, …
A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Disability Rights, Matthew Rimmer Dr
A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Disability Rights, Matthew Rimmer Dr
Matthew Rimmer
RECOMMENDATIONS
Recommendation 1 The Australian Government should take legislative action to implement Article 30 (3) of the United Nations Convention on the Rights of Persons with Disabilities 2006, which provides that ‘States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials’. This will involve revising the Copyright Act 1968 (Cth) – and addressing any direct or indirect disability discrimination.
Recommendation 2 The Australian Law Reform Commission should consider revising the Copyright Act 1968 …
A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: International Law, Matthew Rimmer Dr
A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: International Law, Matthew Rimmer Dr
Matthew Rimmer
The Australian Law Reform Commission poses a question in respect of international law in the issues paper on Copyright and the Digital Economy.Question 1. The ALRC is interested in evidence of how Australia’s copyright law is affecting participation in the digital economy. For example, is there evidence about how copyright law: a. affects the ability of creators to earn a living, including through access to new revenue streams and new digital goods and services; b. affects the introduction of new or innovative business models; c. imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use …
A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Consumer Rights, Matthew Rimmer
A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Consumer Rights, Matthew Rimmer
Matthew Rimmer
RECOMMENDATIONSThe Australian Law Reform Commission poses a number of inter-related questions about copyright law, personal use, consumer rights, and cloud computing:Cloud computingQuestion 5. Is Australian copyright law impeding the development or delivery of cloud computing services?Question 6. Should exceptions in the Copyright Act 1968 (Cth) be amended, or new exceptions created, to account for new cloud computing services, and if so, how?Copying for private useQuestion 7. Should the copying of legally acquired copyright material, including broadcast material, for private and domestic use be more freely permitted?Question 8. The format shifting exceptions in the Copyright Act 1968 (Cth) allow users to …