Law Commons^™

Interpreting Undrip: Exploring The Relationship Between Fpic, Consultation, Consent, And Indigenous Legal Traditions, Jeffrey Warnock

Electronic Thesis and Dissertation Repository

This thesis addresses an interpretive question at the heart of the discourse surrounding the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); the meaning of the principle of Free, Prior, and Informed Consent (FPIC). It argues that interpreting and implementing UNDRIP and specifically the articles requiring FPIC needs to be done in a way that meaningfully engages with and incorporates the laws of Indigenous peoples (Indigenous Legal Traditions or ILTs). This thesis explores why it is essential to discuss UNDRIP through the lens of ILTs, explores the scholarship and major interpretive schools of thought regarding FPIC, and concludes …

What Is Cultural Misappropriation And Why Does It Matter? 03-31-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

An Anishinaabe Tradition: Anishinaabe Constitutions In Ontario, Leaelle N. Derynck

Electronic Thesis and Dissertation Repository

Constitutionalism is an Anishinaabe legal tradition. This thesis explores modern Anishinaabe constitutions in Ontario, as they connect to traditional constitutionalism while meeting the unique governing needs of contemporary Anishinaabe First Nations communities. I address the scholarly and legal context in which these constitutional documents have been produced and shed an empirical light on these understudied legal instruments. Two questions shape this thesis: 1) what are the defining characteristics of Anishinaabe constitutions in Ontario; and, 2) what is their function within Anishinaabe communities? To answer these questions, I review both ratified and draft Anishinaabe constitutional documents of member communities of the …

Conceptions Of Sovereignty, Paul Hansen

Master of Studies in Law Research Papers Repository

This paper explores conceptions of sovereignty held by Canada’s Indigenous and Western cultures. It seeks to determine what sovereignty entails and how the Crown- Indigenous relationship is affected by the judgments of Canada’s courts. The study makes no attempt to compare the relative merits of Indigenous and Western sovereignty conceptions. Similarly, it does not examine nor attempt to reconcile sovereignty-related tensions that may exist between the Crown and Indigenous peoples.

The research is framed by a two-part question: (1) What are the defining characteristics of Indigenous and Western conceptions of sovereignty; and (2) what impact do the sovereignty-related judgments of …

Prisoner, Prison And Situational Characteristics And Their Relationship With The Prevalence, Incidence And Type Of Prison Offending Recorded By A Sample Of Prisoners Within Western Australian Prisons, Catharine Phillips

Theses: Doctorates and Masters

The importance that researchers and prison administrators have placed on ensuring that the good governance, security and safety of prisons are maintained has generated a number of studies of prison offending. Previous studies have identified several prisoner, prison and situational characteristics as relevant in regard to their relationship with the prevalence, incidence and type of prison offences committed. However, no studies have been conducted in Australia, and therefore no studies have included Aboriginal prisoners in their prisoner samples. In addition, the differences in regard to legislation pertaining to prison offending between jurisdictions is also of importance when considering the generalisability …

Canada's Residential Schools And The Right To Integrity, Amy Anderson, Dallas K. Miller, Dwight Newman

Dalhousie Law Journal

Apart from characterizations of the residential schools system as imposing cultural genocide, it is possible to understand the system in terms of a legal wrong involving violations of family integrity. The 19th and early 20th centuries saw increasing state intervention in families generally so as to impose compulsory education. However, wrongs in this intervention were recognized, and international law developed toward a right of family integrity that led to changes in non-Indigenous contexts. Evidence from the TRC shows that Canada did not respond as quickly in the Indigenous context, thus permitting an identification of how the residential schools system violated …

Aboriginal Consultation In Canadian Water Negotiations:The Mackenzie Bilateral Water Management Agreements, Andrea Beck

Dalhousie Law Journal

Due to constitutional protection of Aboriginal water rights, the Canadian government has a duty to consult Aboriginal peoples in water-related decision making. In 2015, Alberta and the Northwest Territories signed an agreement for managing their shared waters in the Mackenzie River Basin. In light of Canada's record, observers have praised the preceding negotiation process as pathbreaking due to its high level of Aboriginal involvement. To evaluate such claims, this paper analyzes Aboriginal consultations in the 2011-2015 NWT-Alberta transboundary water negotiation. The comparative case study reaches the following conclusions. In their bilateral water negotiation, the two jurisdictions differed markedly in terns …

The Inhospitable Court, Elaine Craig

Articles, Book Chapters, & Popular Press

Who speaks and with what authority, who is believed, what evidence is introduced, and how it is presented, is informed not only by the substantive law and the rules of evidence but also by the rituals of the trial. It is from this legal process as a whole that a judge or jury determines the (legal) ‘truth’ about a woman’s allegation of rape. A sexual assault complainant’s capacity to be believed in court, to share in the production of meaning about an incidence of what she alleges was unwanted sexual contact, requires her to play a part in certain rituals …

The Failure Of The Canadian Human Rights Regime To Provide Remedies For Indigenous Peoples: Enough Time Has Passed, Jeffery Gordon Hewitt

LLM Theses

In 2008, Canada amended the Canadian Human Rights Act to remove s.67, which in essence precluded Indigenous Peoples from bringing complaints as against Canada and Band governments. Since the amendment took effect in 2010, a multi-fold increase has occurred in the number of complaints filed with the Human Rights Commission of Canada from dozens to hundreds. The first such significant complaint to be heard by the Canadian Human Rights Tribunal was filed by the First Nation Child and Family Caring Society along with the Assembly of First Nations (the Complaint). The Complaint alleges Canada's funding with respect to First Nation …

A Tale Of Two Countries' Engagement With The Fair Cross Section Right: Aboriginal Underrepresentation On Ontario Juries And The Boston Marathon Bomber's Jury Wheel Challenge, Marie Comiskey

Chicago-Kent Law Review

In both Canada and the United States, the constitutional right to a jury trial includes the right to select a jury from a representative cross-section of the jury-eligible population. This article compares and contrasts how this right has been interpreted in the two countries through the lens of recent controversies. In Part I, the article examines how the Supreme Court of Canada and the United States Supreme Court have defined the representative cross-section component of the right to a jury trial in the two respective countries. In Part II, the article focuses on the crisis of Aboriginal underrepresentation on coroner …

Submission To The Senate Community Affairs References Committee Inquiry Into Violence, Abuse And Neglect Against People With Disability In Institutional And Residential Settings, Including The Gender And Age Related Dimensions, And The Particular Situation Of Aboriginal And Torres Strait Islander People With Disability, And Culturally And Linguistically Diverse People With Disability (26 June), Linda Roslyn Steele

Faculty of Law, Humanities and the Arts - Papers (Archive)

This submission is made to the Senate Community Affairs References Committee’s (‘Senate Committee’) inquiry into violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability (‘the Senate Inquiry’).

It's Like Going To A Cemetery And Lighting A Candle: Aboriginal Australians, Sorry Business And Social Media, Bronwyn Carlson, Ryan Frazer

Faculty of Law, Humanities and the Arts - Papers (Archive)

Death and funeral practices are a constant presence in many Aboriginal Australians’ lives— research in some communities found they are eight times more likely to have attended a funeral in the previous 2 years than non- Aboriginal people. This can be explained by two major factors: inordinately high rates of Aboriginal mortality and cultural practices around death (broadly referred to as Sorry Business). Research in other contexts has found traditions once reserved solely for face- to- face interactions are now also taking place online on social media. This paper draws from interviews conducted with Aboriginal social media users from New …

Mediating Tragedy: Facebook, Aboriginal Peoples And Suicide, Bronwyn Carlson, Terri Farrelly, Ryan Frazer, Fiona Borthwick

Faculty of Law, Humanities and the Arts - Papers (Archive)

Some Australian Aboriginal communities experience suicide rates that are among the highest in the world. They are also, however, avid social media users—approximately 20 percent higher than the national average. This article presents some preliminary findings from a current national study, funded by the Australian Research Council, titled Aboriginal identity and community online: a sociological exploration of Aboriginal peoples’ use of online social media. The purpose of the study is to gain insights into how Aboriginal people utilise and interact on social media, and how these technologies can assist with suicide prevention strategies. It found that Aboriginal people are engaging …

Stemming The Tide Of Aboriginal Incarceration, Miriam Kelly, Hilde Tubex

The University of Notre Dame Australia Law Review

Western Australia’s prison population has the highest rate of Aboriginal over-representation in Australia. Research on the criminogenic effect of imprisonment suggests that the use of imprisonment as a deterrent to future offending is not empirically supported and that imprisonment may in fact contribute to further offending. Consequently, this article explores theoretical debates surrounding penality as a way to inform alternative crime control strategies to imprisonment. It will be argued that any strategy to reduce Aboriginal imprisonment rates could benefit from a perspective that views Aboriginal imprisonment as a manifestation of Aboriginal resistance to settler colonial dominance.

Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss

Publications

This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …

Are Canadian First Nations Casinos Truly ‘A Sure Thing’? Appraising First Nations Casino In Ontario, Saskatchewan, And Alberta, 2006-2010, Yale D. Belanger Dr.

UNLV Gaming Research & Review Journal

To date a dearth of data has made it difficult to evaluate the success of First Nations casinos in Canada. This paper remedies the situation by presenting a three-province overview (Ontario, Saskatchewan and Alberta) of existing First Nations gaming models. The goal is to highlight the exigencies of each provincial gaming model and to develop a better understanding of what works best for First Nations leaders interested in expanding current operations, and for those seeking entry into the gaming market.

The Allocation Of Burdens In Litigation Between First Nations And The Crown, Michael Wilfred Posluns

LLM Theses

No abstract provided.

Person(S) Of Interest And Missing Women: Legal Abandonment In The Downtown Eastside, Elaine Craig

Articles, Book Chapters, & Popular Press

Women are disappearing. Sixty-nine of them disappeared from the Downtown Eastside of Vancouver between 1997 and 2002. Northern communities in British Columbia believe that more than 40 women have gone missing from the Highway of Tears in the past thirty years. The endangered do not come from every walk of life. Most of these women are Aboriginal. Many of them are poor. To be more precise then, poor women and Aboriginal women are disappearing. Aboriginal women in particular are the targets of an irrefutable epidemic of violence in Canada today. Robert Pickton is thought to have murdered almost 50 of …

Are They Like Us, Yet? Some Thoughts On Why Religious Freedom Remains Elusive For Aboriginals In North America, Marc V. Fonda

Marc V. Fonda Ph.D.

It is well-documented that European culture differs from that of Aboriginal culture. Perhaps one of the most striking differences is in the relationships and attitudes each group has towards land. For Europeans the land is a commemorative gift of the creator there to be exploited for economic benefit; for Aboriginal peoples, the land is also a gift but one that a continuing extension of the creator’s immanence in which all things are related to one another. The one is an economic relation, the other a spiritual relation that denotes family. When two very different cultural systems encounter one another, there …

Taos Pueblo Indian Water Rights Settlement Agreement, Taos Pueblo, New Mexico, United States, Taos Valley Acequia Assn & Its 54 Member Acequias, Town Of Taos, El Prado Water & Sanitation District, 12 Taos Area Mutual Domestic Water Consumers’ Assns.

Native American Water Rights Settlement Project

Taos Pueblo Indian Water Rights Settlement. Abeyta Water Rights Adjudication Settlement Agreement among the US, Taos Pueblo, NM, Taos Valley Acequia Assn & it s 55 Member Acequias, Town of Taos, El Prado Water & Sanitation District & 12 Taos Area Mutual Domestic Water Consumers’ Assns. (Dec. 12, 2012) (final signatures Dec. 21, 2012) The Settlement Agreement goals are to resolve the water right claims of the Taos Pueblo; protect the non-Pueblos irrigation uses; restore and protect Buffalo Pasture; and foster cooperation among Taos Valley residents regarding the allocation and use of water resources. The agreement addresses ground and surface …

Commonality Among Unique Indigenous Communities: An Introduction To Climate Change And Its Impacts On Indigenous Peoples, Randall S. Abate

Journal Publications

This special Issue of the Tulane Environmental Law Journal explores how climate change affects the rights of indigenous peoples. Climate change is a global environmental problem caused by greenhouse gas emissions. Indigenous peoples generally contribute very limited quantities of greenhouse gases to the global atmosphere. Although the causes of climate change are global, the adverse impacts of this problem are disproportionately burdening indigenous peoples.

In recognition of the growing global problem of climate change, legal strategies to address climate change through mitigation and adaptation have been undertaken. This Issue recognizes that indigenous peoples are particularly vulnerable to climate change, both …

Order Of Determination Of Water Rights For The Owyhee River And Its Tributaries, Including The Rights Of The Shoshone-Paiute Tribes Of The Duck Valley Reservation, Shoshone-Paiute Tribes Of The Duck Valley Indian Reservation, Nevada, United States

Native American Water Rights Settlement Project

Settlement Agreement: Agreement to Establish the Relative Water Rights of the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation and the Upstream Water Users, East Fork Owyhee River (2006) contained, at the 368th page, as Appendix B to In the Matter of the Determination of the Relative Rights in and to the Waters, Both Surface and Underground, Within the Drainage Area of the Owyhee River and its Tributaries Located within the East For Owyhee River Area, Elko County, NV, Order of Determination, From the Office of the State Engineer of Nevada, 2012. Parties: the Shoshone-Paiute Tribes of the Duck Valley …

Access To Justice For Aboriginal And Torres Strait Islander People, Elena Marchetti

Faculty of Law, Humanities and the Arts - Papers (Archive)

I would firstly like to pay respect to the traditional and original owners of this land the Mouheneenner people - to pay respect to those that have passed before us and to acknowledge today’s Tasmanian Aboriginal community who are the custodians of this land.

There is a preference these days for Aboriginal and Torres Strait Islander peoples to be referred to separately rather than under the umbrella term of ‘Indigenous’ and I will try and honour that preference as much as I can. However, in some circumstances I will be using the term ‘Indigenous’ because it better suits the content …

Engaging Aboriginal Art From The Idea Of Australia, Ian A. Mclean

Faculty of Law, Humanities and the Arts - Papers (Archive)

In writing the first national history of Australian art Bernard Smith was instrumental in inventing the idea of an Australian national culture. In this respect his histories should be understood in the context of a wider postcolonial – or at least post-empire – discourse that shaped the idea of Australia after the world wars. Galvanizing the many threads of this discourse was the idea of an independent nation state. What role did Aboriginal art have in this discourse? As a committed Marxist Smith had a great deal of sympathy for the downtrodden, including Aborigines. However the idea of the nation …

The Coroner's Recommendation: Fulfilling Its Potential? A Perspective From The Aboriginal Legal Service [Nsw/Act], Raymond Brazil

Faculty of Law, Humanities and the Arts - Papers (Archive)

Coroners Acts in New South Wales (‘NSW’) and the Australian Capital Territory (‘ACT’) confer on coroners jurisdiction to conduct inquests into certain kinds of death. As the outcome of a hearing, a coroner is tasked by their legislation to reach and record prescribed findings relating to the deceased, their death, and its manner and cause. These determinations enable that death to be registered under the relevant Birth, Deaths and Marriages legislation. If, though, this information can be established from preliminary investigations, a coroner has the discretion to dispense with an inquest hearing, unless the death investigated is of a category …

Identifying Links Between Ecosystem Services And Aboriginal Well-Being And Livelihoods In North Australia: Applying The Millennium Ecosystem Assessment Framework, K K. Sangha, J.R.A Butler, Aurelie Delisle, Owen Stanley

Faculty of Law, Humanities and the Arts - Papers (Archive)

The livelihoods and well-being of Aboriginal and non-Aboriginal communities in remote and rural northern Australia are dependent upon the ecosystem services provided by tropical ecosystems. The well-being of all Australian citizens is measured by the Australia Bureau of Statistics (ABS) using socio-economic indicators. In this study we investigated the importance of non-market benefits derived from ecosystem services for Aboriginal well-being. Through a case study with the Mullunburra-Yidinji people in the Wet Tropics, Queensland, we applied the Millennium Ecosystem Assessment (MA) framework to identify the links between ecosystem services and the MA’s six constituents of human well-being. The study demonstrated that …

White Mountain Apache Tribe Water Rights Quantification Act Of 2010, United States 111th Congress

Native American Water Rights Settlement Project

Federal Legislation: Claims Settlement Act of 2010, TITLE III—White Mountain Apache Tribe Water Rights Quantification, PL111-291| 124 Stat 3064, 3073 (Dec. 8, 2010). Parties: White Mountain Apache Tribe, US, AZ. The Act ratifies, authorizes, and confirms the WMAT Water Rights Quantification settlement; authorizes the DOI Secretary to execute the and take all necessary action; to authorize appropriations; and, to permanently resolve certain damages and water rights in the general adjudication of the Gila River System and Little CO River System. The provides for: 1) environmental compliance; 2) tribal water rights; 3) CAP reallocation; 4) tribal leasing, distributing, exchanging or allocation …

A Reply To Professor Pothier's Review Of Power Without Law: The Supreme Court Of Canada, The Marshall Decisions And The Failure Of Judicial Activism, Alex M. Cameron

Dalhousie Law Journal

The Spring 2010 edition of the Dalhousie Law Journal contains an article by Professor Dianne Pothier, discussing my book, Power Without Law: The Supreme Court of Canada, The Marshall Decisions and the Failure of JudicialActivism. In the review, Professor Pothier strongly disagrees with the book's critique of the Supreme Court of Canada's majority decision in R. v. Marshall. In particular, she disagrees with the argument that the alleged treaty right of aboriginals to hunt, fish, gather and trade for necessaries, described in Justice Binnie's majority decision, is constitutionally flawed. Professor Pothier also suggests that the argument is the central thesis …

Risk And Resilience: Crime And Violence Prevention In Aboriginal Communities, Ross Homel, Robyn Lincoln, Bruce Herd

Robyn Lincoln

Developmental prevention involves the manipulation of multiple risk and protective factors early in developmental pathways that lead to offending, often at transition points between life phases. The emphasis is not just on individuals but also their social contexts. Risk and protective factors for crime and violence in Aboriginal communities include such standard factors as child abuse, school failure and supportive family environments, but additional factors arise from unique aspects of Aboriginal history, culture and social structure. This paper draws on existing literature, interviews with urban Aboriginal community workers, and data from the Sibling Study to delineate those interrelated risk factors …

Understanding The Progression Of Mi'kmaw Law, Jaime Battiste

Dalhousie Law Journal

Over the past 250 years, the recognition and implementation of the aboriginal and treaty rights of the Santi Mawio'mi of the Mi'kmaq has been a hard and bitter struggle for justice. Building on Mi'kmaw Aboriginal knowledge and legal traditions that inform their aboriginal and treaty rights, the Supreme Court of Canada has affirmed a Mi'kmaw right to hunt, fish, and gather in their traditional territory. The author focuses on the progression of Mi'kmaw law, drawing on the original teachings of the Mawio'mi embedded in Netukulimk and then shifting to the current legal strategy that creates a constitutional jurisgensis and a …