Feminism and Gender Equality among Orang Asli Women: Implications for Customs and Laws

Creating Legal Space for Animal-Indigenous Relationships

In Canada and Norway we are witnessing commensurable processes of social-structural change largely directed towards improving the conditions for indigenous peoples within these nation states. There are parallels in time, scope and objective between the processes affecting the Sámi in Norway and the Nisga´a in northern British Columbia, Canada. In each case Aboriginal customary law, or customary rights, is a significant element both in legal and cultural terms when it comes to attaining and establishing legitimacy for stated claims.The primary thesis for this inquiry is that customary law is part of culture, not just a matter of jurisprudence. It is suggested that customary law discourse, a topical feature in the continuous process regarding indigenous rights in Canada and Norway, achieves two ends. It offers legitimate strength in the attempt to establish a state of legal pluralism, where state law and indigenous customary law can both play a role in reaching court decisions, and it maintains and develops a significant body of knowledge.For the Sámi in Norway the period 1979–80 was a phase of confrontation between them and the state government over a hydro-power development, the Alta case. The legal case ended in the Norwegian Supreme Court with the conclusion that the Sámi were unable to prevent construction of the dam, but the court recognized that preconditions of international law could be relevant, and could even overrule state law. The protest actions eventually led to negotiations with the state authorities. These resulted in the second stage, a Sámi Rights Commission appointed by the Ministry of Justice, to investigate all relevant aspects of the issue of Sámi rights. Thirdly, a new research project on Sámi customs and Sámi legal perceptions has been carried out independently of the commission since 1996.The Nisga´a Final Agreement was completed in 1998, following a long political struggle for recognition of their aboriginal title and of their right to self-determination. Phase I of this involved confrontation through a law suit asserting the Nisga´a Nation’s tribal ownership over the entire watershed of the Nass/Lisims. The Supreme Court verdict in this case in 1973 is considered to be a moral victory, mainly for the Nisga´a but also for First Nations in Canada at large. It triggered a change in federal policy vis-à-vis aboriginal people in Canada, the former assimilationist policy being replaced by a new policy emphasizing land claims settlement regarding all non-treaty Indians. In Phase II, to make the complicated body of traditional knowledge comprehensible for the other negotiation parties, the Nisga´a conducted a Land Use and Occupancy Study. The Nisga´a Final Agreement, the main feature of Phase III, is a formal treaty emanating from the negotiation process. In future Nisga´a self-determination will be governed and influenced by their own Constitution. Through their newly acquired autonomy the Nisga´a are able to give effect to their own characteristic justice to a fairly large extent whenever appropriate.There are marked similarities in the current customary law discourse of the Nisga´a and the Sámi, although they also differ on some issues.Both are establishing or likely to establish courts of their own, and common to the two nations is customary law as a foundation on which such a justice system is built.

The Colour of Copyright

ABSTRACTThere are legal and moral imperatives to protect biological resources and the ‘traditional knowledge’ associated with them. These imperatives derive from complex legal geographies: international law (such as the Convention on Biological Diversity and the Nagoya Protocol), State and federal laws, Indigenous customary law, codes of ethics and research protocols. This paper reports on a ‘patent landscape’ analysis of patents that refer to Australian plant species for which there is Indigenous Australian knowledge. We have identified several patents of potential new biopiracy concern. The paper highlights the way in which actors can gain private property monopolies over biological resources and associated traditional knowledge, even though there are overlapping sovereign rights and Indigenous rights claims. Regulatory gaps need to be closed nationally to fully govern the diverse human–plant bio-geographies in Australia. Further, Indigenous laws and governance have largely been ignored by these actors. We suggest that the introduction of ‘disclosure of origin’ requirements in patent applications, sui generis Indigenous knowledge protections, the development of biocultural protocols, and a more nationally consistent system for ‘access and benefit-sharing’ are required to ensure more ‘fair and equitable’ use of plants and Indigenous knowledge in/from Australia, and to ensure the recognition of Indigenous rights to knowledge.

The proposal to create a Northern Corridor that would allow for cross-country, multi-modal infrastructure development is an ambitious vision (Sulzenko and Fellows 2016; Standing Senate Committee 2017). This proposed infrastructure corridor would incorporate multiple uses, from pipelines to railways, roads, telecommunications, electricity infrastructure and more. Its geographic scale stretches continuously from coastal B.C. across Canada to the Atlantic coast, with spurs running northward to the Arctic Ocean through the Northwest Territories, Nunavut and via Manitoba to Hudson’s Bay. A critical foundation for its successful development will be the ability to appreciate and incorporate the rights of Indigenous peoples affected by the project (Wright 2020; Newman 2022). The goal of this research paper is to outline the law of Indigenous peoples’ land ownership rights, including proven and asserted title, Crown-Indigenous treaty relations and obligations and Indigenous land claims agreements, and to consider the implications for a large-scale infrastructure project like the Northern Corridor.1 The focus is on the legaland regulatory aspects of Indigenous peoples’ land rights within the non-Indigenous Canadian legal system.2 The research paper uses standard legal methods to assess the land ownership rights of Indigenous peoples, drawing on relevant constitutional and statutory provisions, leading cases and secondary literature. The paper proceeds with a brief overview of these distinct types of Indigenous land rights, then provides a more detailed account of the legal content of s. 35 constitutional Aboriginal title, historic and modern treaty rights. This includes discussion of government’s legal duty of consultation and accommodation, and the requirements for constitutionally justified limitation of these rights. Indigenous land ownership rights in reserve lands are also discussed. A series of case studies more fully illustrates the implications of these varied Indigenous land rights for a project like the Northern Corridor. Finally, the paper turns to the dynamic nature of Indigenous rights and the potential influence of the UNDRIP. The implications of Indigenous peoples’ land rights for the proposed Northern Corridor are extensive. While many of the legal obligations fall on the Crown, as represented by provincial, territorial and federal governments, industry proponents must also play a role. Project proponents engage directly with Indigenous land-rights holders and are crucial to the exchange of information, mitigation of project impacts and creation of benefits for Indigenous communities. Successful development of the Northern Corridor infrastructure project requires a partnered approach with affected Indigenous rights- holding communities. Portions of the proposed corridor traverse the traditional territories of Indigenous peoples over which Aboriginal title is claimed. Where Indigenous claimants demonstrate sufficient, exclusive use and occupation of the land prior to Crown claims of sovereignty, title will be established. The legal test for recognizing title is one that reflects both the common law and Aboriginal perspectives, and is sensitive to context. The geographic scope for successful Aboriginal title claims that overlap with the Northern Corridor is significant. Where Indigenous peoples hold title to the land, they are collectively entitled to exclusively enjoy the benefits of that land, and to decide on its uses. Governments or third parties seeking access to the land require consent from the title holders. In the period before title is established, governments authorizing projects like the Northern Corridor, that could negatively impact Aboriginal title, must consult with Indigenous peoples and, when appropriate, accommodate their interests. This is required to maintain the Honour of the Crown. While the legal duty falls on government, project proponents working directly with Indigenous peoples are an important part of the consultation and accommodation process. Governments do retain a legal ability to justifiably limit Aboriginal title. They can pursue projects in the public interest that are consistent with s. 35’s reconciliation purpose, if they meet the requirements of their unique obligations to and relationship with Aboriginal people (the fiduciary duty and Honour of the Crown). This means satisfying the procedural duty to consult and accommodate Aboriginal title holders, pursuing only limits on title that do not damage their long-term relationship with the land, as well as meeting a recently outlined requirement for proportionality. Proportionality means that limits on Aboriginal title must be necessary to achieve the public purpose and must be as minimal as possible, and that the overall public benefit must not be outweighed by negative impacts on title holders. Projects that go forward with participation and consent of Indigenous title holders will meet these requirements. There is also potential for the Northern Corridor to cross reserve lands. Where these remain subject to the Indian Act, one of the relevant statutory mechanisms for access must be used. These require consent from the band and federal government. For bands that have transitioned to management of their reserves under the First National Land Management Act (FNLMA), only consent of the band as set out in its Land Code is required. The Northern Corridor also crosses lands over which Indigenous people hold land rights under the historic “Numbered Treaties.” While the treaties appear to include formal surrenders of Aboriginal title (an interpretation that is contested), continued rights of use over traditional territories are critical elements of these constitutionally binding agreements. Although governments can “take up” surrendered lands for development, this right is subject to a duty to consult Indigenous parties and accommodate impacts on their treaty rights. Governments can justifiably infringe historic treaty rights. This can be done when a permissible objective is pursued in a way that meets government’s fiduciary duty and upholds the Honour of the Crown. The specific requirements can vary, but generally the test is more restrictive when non-commercial treaty rights are at stake and requires some form of priority to be given to these Aboriginal rights. The requirement for justification is triggered when treaty rights are infringed — when a group is deprived of a meaningful ability to exercise its treaty rights within its traditional territory. Recent developments suggest this threshold should be assessed looking to cumulative impacts and that a process for monitoring and addressing these is part of justified limits on these historic treaty rights. Finally, the Northern Corridor also intersects with lands covered by modern treaties. These agreements provide detailed guidance about the specific rights Indigenous parties enjoy, processes for consultation and co-management of the treaty lands as well as interactions between jurisdictional decisions under the treaty and by other levels of government. Courts have outlined a distinctive approach to the modern treaties that recognize their sophistication and the efforts to negotiate these modern governance frameworks to advance reconciliation. Courts would pay close attention to the relevant treaty terms and processes in any dispute over development of the Northern Corridor. Relatively minimal supervision of the modern treaty relationships should be expected from the courts, although the Honour of the Crown and the obligations it places on governments still apply. It is unclear whether justified infringements of modern treaty rights are possible, and whether a stricter constitutional standard would be required. Case studies of recent infrastructure and resource development projects show that while much of the law is clear, outstanding issues remain, and the practical application of the law can be challenging. The sufficiency of consultation can be in doubt on complex projects involving multiple Indigenous communities. Basic issues such as who to consult can emerge when there is overlap between traditional and Indian Act governance structures and both reserves and other land rights are involved. The applicability of Indigenous laws to traditional territories under claims of Aboriginal title and interactions between Indigenous law and jurisdiction and non-Indigenous law and government authority can also be unclear. Many modern projects proceed with the consent and participation of Indigenous peoples, for example, through benefit agreements. These agreements, because of their link to the underlying Aboriginal rights, can engage the Honour of the Crown and the duty to consult if subsequent developments negatively affect benefits under the agreements. In practice, meeting the legal obligations triggered by Indigenous land rights requires direct, good faith engagement with affected Indigenous communities. The best-case scenario is partnered development that proceeds with the consent of Indigenous rights holders. Current case law suggests that projects like the Northern Corridor might go ahead without full consensus, since there is no “veto” implicit in s. 35(1) Aboriginal rights. However, legal requirements for justified infringements, if possible, still require adequate consultation and accommodation of the rights of Indigenous peoples, and support only necessary, minimal limits on their rights. Overall benefits must outweigh negative impacts on Indigenous communities, and their ability to benefit directly from projects or be compensated for harms is generally part of justifying limits on their rights. On the ground, project proponents will be deeply involved in the relationship-building and engagement that is needed to support consensual development, or will meet the high bar for constitutional justification. Determining whether governments’ legal obligations ultimately have been met is done at a detailed, fact-specific level — not in the abstract. There are no leading cases that support constitutional justification of hypothetical, indeterminate public uses such as the proposed Northern Corridor. The law of Indigenous rights is constantly evolving. Over the lifespan of a project like the Northern Corridor, change would be certain. Canadian approval of the UNDRIP and recent federal and provincial legislation committing to bring Canadian law into compliance are important signals of future development. The UNDRIP embraces a model of Indigenous rights grounded in self-determination and its standard of “free, prior, informed consent” appears to reflect the ability of Indigenous peoples to make their own decisions about projects that impact their rights. The legal implications of the UNDRIP for s. 35 and Indigenous land rights in Canada remain to be seen. As with modern treaties and the FNLMA, it represents a resurgence in Indigenous peoples’ rights to play a direct role in governing their traditional lands and bringing their own laws to bear on developments that impact their lands and rights. Co-management and shared governance frameworks that integrate Indigenous rights holders will likely be key to successful future project development. For a proposal like the Northern Corridor, further study is required to fully appreciate the implications of these nascent developments and consider how they should be reflected in the project proposal.

<em>Orang Asli, the Indigenous minority of Peninsular Malaysia, continue to face formidable challenges in realizing their rights as distinct Indigenous peoples despite being ascribed a measure of constitutional and statutory protection. With reference the 2007 United Nations Declaration on the Rights of Indigenous People and various international definitions of ‘Indigenous peoples’, this paper examines the impact of the term ‘Orang Asli’ on the Orang Asli struggle for the recognition of their rights as Indigenous Peoples. The term ‘Orang Asli’, an officially-constructed term to describe heterogeneous groups of people considered to be ‘aboriginal’, has since gained acceptance by the people categorized as such and has been used to advocate their rights as Indigenous peoples with relative success. However, the term carries legal implications which continue to place Orang Asli ethnicity and identity under the protection and equally, the control of the state. The extensive legal powers possessed by the state are arguably inconsistent of international norms on Indigenos rights and can additionally function as a tool to deny Orang Asli their attendant rights as Indigenous peoples. More importantly, the continued existence of these powers potentially functions to reinforce existing domestic challenges that Orang Asli face in finding their rightful place as distinct Indigenous peoples in the light of: (1) competing notions of Indigeneity vis-à-vis ethnic Malays; (2) historical discrimination against Orang Asli that continues to persist; and (3) Indigenous rights being construed as a possible hindrance to national economic prosperity. A possible starting point for the reconciliation of these matters may be to legally clarify the term ‘Orang Asli’ in a manner that sustains and respects the Orang Asli community as distinct Indigenous peoples while not threatening the existing special constitutional position afforded to ethnic Malays.</em>

There has been a growing momentum toward a greater recognition and explicit use of Indigenous laws in the past several years. According to the Truth and Reconciliation Commission’s final report, the revitalization and recognition of Indigenous laws are essential to reconciliation in Canada. How, then, do we go about doing this? In this article, we introduce one method, which we believe has great potential for working respectfully and productively with Indigenous laws today. We engage with Indigenous legal traditions by carefully and consciously applying adapted common law tools, such as legal analysis and synthesis, to existing and often publicly available Indigenous resources: stories, narratives, and oral histories. By bringing common pedagogical approaches from many Indigenous legal traditions together with standard common law legal education, we hope to help people learn Indigenous laws from an internal point of view. We share experiences that reveal that this method holds great potential as a pedagogical bridge “into” respectful engagement with Indigenous laws and legal thought, within and across Indigenous, academic, and professional communities. In conclusion, we argue that, while this method is a useful tool, it is not intended to supplant existing learning and teaching methods, but rather to supplement them. In practice, we have seen that this method can be complementary to learning deeply through other means. There are many methods to engage with Indigenous laws, and there needs to be critical reflection and conversations about them all.

This article examines the use of literary genre in Supreme Court of Canada (SCC) decisions on Indigenous land rights (Aboriginal title) and in Métis playwright Marie Clements’ 2003 play Burning Vision. I argue that legal decisions on Indigenous rights in Canada take on the features of specific literary genres, and that the genre of these decisions changes over time in response to broader sociopolitical shifts. In response to Section 35(1) of the 1982 Constitution Act, Aboriginal title decisions took on the structural features of comedy, a genre in which reconciliation is facilitated by the disclosure of previously hidden family relationships. This can be seen in Delgamuukw v. British Columbia (1997), a decision wherein the SCC reconciles the uneasy coexistence of two legal systems (Indigenous and common law) within the same national space by making these systems members of the same legal family. Clements’ play critiques this form of genealogical reconciliation by demonstrating how Indigenous law is forced to join the “family” of settler-colonial common law, and by exposing the violence that is elided through such processes of genealogical reconciliation. This article contributes to critical conversations about the relationship between law and genre and about the legal recognition of Indigenous rights.

Indigenous environmental justice (IEJ) is distinct from the broader EJ field, which has been found to exhibit certain limitations when applied to Indigenous contexts. Indigenous scholars have observed, for example, that EJ scholarship generally does not consider Indigenous sovereignty, laws, and governance. Attempts to ensure the relevance and applicability of EJ to Indigenous contexts and realities have resulted in what can be thought of as an “Indigenizing” of the EJ scholarship. Recent scholarship thus recognizes that Indigenous peoples occupy a unique position in terms of historical, political, and legal context, and that this requires specific recognition of their goals and aspirations, such as those outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UN General Assembly [UNGA] 2007). Achieving IEJ will require more than simply incorporating Indigenous perspectives into existing EJ theoretical and methodological frameworks, as valuable as these are for diagnosing injustice. IEJ offers a theoretical and analytical framework that goes beyond “Indigenizing” and “decolonizing” existing EJ scholarship and extends to frameworks informed by Indigenous intellectual traditions, knowledge systems, and laws. Indigenous nations and societies are diverse and no single IEJ framework will serve all contexts and situations. There are, however, commonalities among suggested frameworks as evidenced through various international environmental declarations prepared by Indigenous peoples over the past three decades that convey key concepts relating to IEJ. First, Indigenous knowledge systems should be utilized as a theoretical framework for analysis. In this frame, justice applies to all “relatives” in Creation, not just people. EJ is not just about rights to a safe environment, but it includes the duties and responsibilities of people to all beings and, conversely, their responsibilities to people. IEJ is regarded as a question of balance and harmony, of reciprocity and respect, among all beings in Creation; not just between humans, but among all “relatives,” as LaDuke 1999 and Kanngieser and Todd 2020 show. Second, Indigenous legal traditions should form the basis for achieving justice. Scholars have noted how Western legal systems continue to fail Indigenous peoples and the environment. In this sense, grounding conceptions of justice and injustice in Indigenous intellectual and legal traditions opens up possibilities for achieving justice. Finally, IEJ must acknowledge the historical and ongoing role colonialism has played in perpetuating injustices.

Articles 27 and 34 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognise Indigenous Peoples’ laws. Art. 34 gives Indigenous Peoples the right to maintain their juridical systems or customs in accordance with international human rights standards. Although the UNDRIP is soft law, its core is arguably customary law and, therefore, a binding source of law. For States with Indigenous People, such as Norway, the UNDRIP is of paramount importance, from a legal, political, and not least moral perspective. This paper discusses norm hierarchies and tensions that are created in the meeting between the Indigenous customary law of the Sámi and statutory domestic Norwegian law. The introduction of customary, commonly unwritten, Indigenous rules into the judicial portfolio of a State creates an obvious challenge: what is their legal status? Can Indigenous law set aside domestic statutory norms? Some might argue that due to historical wrong, Indigenous law should always take precedence when domestic law conflicts with it. While Norwegian domestic law acknowledges the precedence of certain core human rights treaties over domestic laws, the same is not valid for Indigenous rights. How then should Indigenous custom be dealt with before a court of law, and how do the different legal systems relate to each other? This paper is foremost based on theoretical, to a lesser degree also on empirical material. It discusses on a general level the relationship between different legal systems within the same State and, on a specific level, the dealing of the Norwegian courts with Sámi Indigenous laws and customs.

Gender Justice and Legal Pluralities: Latin American and African Perspectives, Rachel Sieder and John McNeish 1. Gender, Human rights and legal pluralities: experiences from Southern and Eastern Africa, Anne Hellum 2. Indigenous women fight for justice: Gender rights and legal pluralism in Mexico, Maria Teresa Sierra 3. The gender of law: politics, memory and agency in Mozambican community courts, Bjorn Enge Bertelsen 4. Sexual Violence and gendered subjectivities: indigenous women's search for justice in Guatemala, Rachel Sieder 5. Between sharia and CEDAW in Sudan: Islamist women negotiating gender equity, Liv Tonnessen 6. Indigenous rights and violent state construction: the struggle of Triqui women in Oaxaca, Natalia De Marinis 7. Opening the Pandora's Box: human rights, customary law, and the communal liberal self in Tanzania, Natalie J.Bourdon 8. An Accumulated Rage: legal pluralism and gender justice in Bolivia, John-Andrew McNeish andAna Cecilia Arteaga Bohrt

The adoption, on 18 December, 1979, of the Convention on the Elimination of All Forms of Discrimination Against Women marked a historic development in the struggle for gender equality. The Convention has subsequently been ratified by a record number of African states, forty-six in all. All these states are also parties to the African Charter on Human and Peoples’ Rights which, in Article 18 (3), confirms their commitment to women’s rights and gender equality. Yet only a few of these states have taken the necessary measures to implement this commitment in their respective municipal legal systems. Arguably, the major obstacle in the efforts to implement the principle of gender equality is the institution of patriarchy, which underlies African customary legal systems. However, Southern African countries have taken the lead in. addressing the institutionalized inequality to which African women are still subjected. Thus, the fairly recent constitutions of Lesotho, Malawi, Namibia and South Africa, for example, all contain bills of rights entrenching fundamental human rights, including the right to gender equality and nondiscrimination. In addition, the courts in some of these countries have also made pointed, though isolated, attempts to actualize the promise of gender equality through judicial interpretation by engaging and incorporating international human rights law into the interpretative process. In the process, these courts have had to address and resolve the vexed problem of reconciling the claims for gender equality, on the one hand, and the gender-discriminatory aspects of customary law and practices in these societies, on the other hand. This paper presents an account of the various efforts being made by some Southern African countries to implement the principle of gender equality. It is argued that the protection of gender equality in the constitutions or legislation of these countries will remain largely ineffective unless the constitutional and legislative intent is matched by real structural changes in power relations in these societies. This requires an interrogation of certain assumptions about power that the interests of patriarchy have presented and defended as time-honoured values. It also requires that where state action and legislation do not accord with the principle of equality, on which the human rights idea is predicated, such action and legislation must be reviewed or struck down.

Mexico is one of the world leaders in the move towards parity measures for women’s representation, through its constitutional requirement of equal gender representation in legislative candidacies. Mexico has also been on the frontlines of the trend to constitutionally recognize indigenous rights, including self-government. However, the link between the two movements remains controversial. On the one hand, electoral parity for women in state institutions has not translated into a significant increase in the representation of indigenous women. On the other, indigenous women have often been excluded from participating within indigenous forms of governance. Courts have been inconsistent in their interpretation of parity norms and participation rights. To address this challenge, indigenous women have appealed to gender equality, parity democracy, and international human rights, but also to context-specific goals, including the need to tackle violence against indigenous women as well as the grave poverty and vulnerability affecting indigenous peoples.

Recently, there has been an increasing awareness of Indigenous legal traditions. Spurred in part by the work of Indigenous and non-Indigenous academics researching in this field of law and the Final Report of the Truth and Reconciliation Commission, which speaks to the importance of recognizing, teaching, and operationalizing Indigenous legal traditions in many of their calls to action, such as Call to Action no. 27, 28, 42, and 50. As a result, Indigenous legal traditions are informing aspects of law school curricula and are being discussed and explored in professional legal training seminars. However, many questions remain as to the most appropriate manner in which to carry out this important work, lest it become yet another avenue of colonizing Indigenous peoples and their legal traditions. In this article, I hope to examine some of these issues with respect to Coast Salish laws and methodology—in particular, the legal tradition of the Hul'qumi'num Mustimuhw, the Island Hul'quminum' people of Vancouver Island, British Columbia. By exploring my own research journey, as a Hul'qumi'num Mustimuhw (“Hul'qumi'num person”), I demonstrate how methodology is the necessary starting point for any individual wishing to understand more fully how to engage in and with the Indigenous legal traditions. It provides an introduction to the worldview, legal institutions, skills and theories of Indigenous peoples, like the Island Hul'qumi'num People. Each legal tradition—Indigenous and non-Indigenous—is complex and must be learned and practised within its proper context over many life times to facilitate social order. One of the goals of the Truth and Reconciliation Commission is to bring about a greater recognition of Indigenous legal traditions and engage with Indigenous laws, according to their own research methodologies; it is one of the first steps forward.

This chapter draws on the scholarship of Indigenous legal theorists and practitioners to explore some of the Indigenous legal traditions that might be drawn on to advance just forms of legal pluralism in the settler societies of Australia, Canada, New Zealand, and the United States. It questions whether the methodologies and tools provided by the field of legal pluralism assist in the pursuit of these goals. It aims to show that Indigenous legal traditions emphasize the interrelatedness of people and of people and the natural world, and stress the need for balanced differentiation as a sustaining tension in legal orders. It argues that these could provide a much-needed corrective to the totalizing tendency of settler law and could usefully assist to curb its preoccupation with absoluteness and universality, but only if Indigenous legal traditions are given their due in the practice and study of law in settler societies.