Aboriginal Law & Indigenous Laws

This book examines the human rights of Indigenous peoples and communities under current international law. Setting out a historical overview of the legal treatment of indigenous peoples from the colonial period to the present, the authors analyse frameworks of institutions monitoring Indigenous human rights, theoretical issues relating to these, access to justice and reparations, and special considerations afforded to specific Indigenous communities.

This book surveys how indigenous peoples have emerged as international legal subjects and possessors of both sovereign and private rights over territories. The work analyses and presents the rights indigenous peoples and communities hold under the contemporary indigenous rights discourse, positing that the content and scope of such rights can largely be understood by properly knowing the meaning of only two concepts: namely ‘peoples’ and ‘equality’. The book’s articulation of the indigenous rights discourse focuses heavily on two areas of law. First, it looks at the issue of indigenous peoples’ potential status as international legal subjects and holders of peoples’ rights. Second, the book discusses the correct understanding of equality under contemporary international law and asserts that this right underpins a substantial number of the rights that make up the indigenous rights discourse.

With contributions from critical legal theory, international law, politics, philosophy and Indigenous history, this volume pursues a cross-disciplinary analysis of the international legal exclusion of Indigenous Peoples, and of its relationship to global injustice. Beyond the issue of Indigenous Peoples’ rights, however, this analysis is set within the broader context of sustainability; arguing that Indigenous laws, philosophy and knowledge are not only legally valid, but offer an essential approach to questions of ecological justice and the co-existence of all life on earth.

This book examines the indigenous literature and recent legal cases as a pretext for granting juristic personhood to enspirited sacred natural sites. The author draws on two decades of his research among Tibetans in Kham (southwest China), to provide a detailed case study. It is argued that juristic personhood is contingent upon the presence and agency of a resident numina and that recognition should be given to their role in spiritual governance over their jurisdiction. The book concludes by recommending that advocacy organisations help Indigenous people with test cases to secure standing for threatened sacred natural sites (SNS);and calls upon IUCN, UNESCO (MAB and WHS), ASEAN Heritage and EuroNatura to retrospectively re-designate their properties, reserves, parks and initiatives so that SNS and spiritual governance are fully recognised and embraced.

Laurelyn Whitt and Alan W. Clarke contend that, if certain events which occurred during the colonization of North America were to take place today, they could be prosecuted as genocide. The legal methodology that the authors develop to establish this draws upon the definition of genocide as presented in the United Nations Genocide Convention and enhanced by subsequent decisions in international legal fora. Focusing on early British colonization, the authors apply this methodology to two historical cases: that of the Beothuk Nation from 1500-1830, and of the Powhatan Tsenacommacah from 1607-77. North American Genocides concludes with a critique of the Conventional account of genocide, suggesting how it might evolve beyond its limitations to embrace the role of cultural destruction in undermining the viability of human groups.

Offering readers an engaging review of ongoing lawmaking, adoption and implementation processes from both a global and regional perspective, this book also investigates the important elements of Indigenous rights and economic issues, including trade, investment and economic growth.

The question of what rights might be afforded to Indigenous peoples has preoccupied the municipal legal systems of settler states since the earliest colonial encounters. As a result of sustained institutional initiatives, many national legal regimes and the international legal order accept that Indigenous peoples possess an extensive array of legal rights. This book offers the first sustained study of these rights and their reception within modern legal systems. Taking a three-part approach, it looks at the international aspects of Indigenous entitlements in marine spaces, explores specific country examples, and looks at some interdisciplinary themes of crucial importance to the question of the recognition of the rights of Indigenous peoples in marine settings.

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples in 2007 was heralded as the beginning of a new era for Indigenous Peoples' participation in global governance bodies. These rights are defined and agreed upon internationally, but must be enacted at regional, national, and local scales. Can the global movement to promote Indigenous Peoples' rights change the experience of communities at the local level? Or are the concepts that it mobilizes, around rights and political tools, essentially a discourse circulating internationally, relatively disconnected from practical situations? Are the categories and processes associated with Indigenous Peoples simply an extension of colonial categories and processes, or do they challenge existing norms and structures? This collection draws together the works of anthropologists, political scientists, and legal scholars to address such questions.

This book argues that the establishment and use of mechanisms and policies to enable a certain level of Indigenous peoples' participation in international governance has become a widespread practice, and perhaps even one that is accepted as law. In theory, the law of self-determination supports this move, and it is arguably emerging as a rule of customary international law. However, ultimately the achievement of the ideal of full and effective participation, in a manner that would fulfil Indigenous peoples' right to self-determination, remains deferred.

This volume explores the global effects of marginalizing Indigenous law. The essays in this book argue that European-based law has been used to force Indigenous peoples to assimilate, has politically disenfranchised Indigenous communities, and has destroyed traditional Indigenous social institutions. The research in this volume focuses on the resurgence of traditional law, tribal-state relations in the United States, laws that have impacted Native American women, laws that have failed to protect Indigenous sacred sites, the effect of international conventions on domestic laws, and the role of community justice organizations in operationalizing international law. With chapters focusing on the use and misuse of law as it pertains to Indigenous peoples in North America, Latin America, Canada, Australia, and New Zealand, this book offers a wide scope of global injustice.