Rights Of Aboriginal Peoples Research Articles

Reimagining Kinship Systems and Networks:

Aboriginal people in Australia continue to endure the ongoing effects of 250 years of colonisation. However, the social and ontological basis of their Kinship Systems and networks highlights their resilience and resistance against western hierarchies and ideologies. Kinship Systems and networks represent the relationships between culture and nature and do not distinguish between the human and non-human world. The basis of the Kinship Systems and networks extends seamlessly beyond the human into the Ancestral and spiritual realms. As part of the creation process, Land was created first, followed by people and then languages belonging to the Land. Languages are living entities, connecting people with their Country, Ancestors and culture while transmitting intergenerational knowledges within and across thousands of generations. It is impossible to separate one from the other. These entities coexist through and beyond notions of space and time. This inseparable relationship between Land, language, and the rights of Aboriginal People forms the cornerstone of their activism. For example, Aboriginal activists in the Black Lives Matter movement in Australia fight for racial [human] rights and environmental justice consistent with their symbiotic relationship. Drawing on interviews carried out in early 2023 with Aboriginal activists engaged in the revival of languages and Land rights, this paper will examine how the relationships between sustainability, care for Country and language are articulated in and through Kinship systems and networks. It will explain the deep reciprocity, identified by activists, focusing on environmental care and sustainability of Country, language revival and social justice efforts.

РОЛЬ ОБЩЕСТВЕННЫХ ОРГАНИЗАЦИЙ В ЗАЩИТЕ ПРАВ КОРЕННЫХ МАЛОЧИСЛЕННЫХ НАРОДОВ СЕВЕРА (ПО МАТЕРИАЛАМ ЭКСПЕРТНОГО ОПРОСА В ХМАО – ЮГРЕ)

The article is devoted to the study of the state of institutional support for the rights of the indigenous peoples of the North. The industrial development of Siberian territories creates a threat of destruction of traditional forms of economic management. This makes this problem actual. The empirical material is the results of an expert survey conducted on the territory of the Khanty-Mansiysk Autonomous Okrug – Yugra. It is concluded that a regula- tory and legal framework has been created in the region to ensure the interests of indigenous peoples. However, it only creates an opportunity to protect their interests. This opportunity can be fully realized through the activities of political institutions. Today, public organizations of the indigenous peoples themselves are effectively working. They enjoy the trust of the indigenous population and protect not only the rights of Aboriginal people to traditional forms of farming, but also their socio-economic interests in general. However, the capabilities of these organizations are rather limited. For example, small indigenous peoples, due to their small number, do not have the opportunity to conduct “their” deputies to representative bodies of power. At the same time, the role of other actors – political organizations, mass media, ombudsmen – is insignificant. Expanding the range of political institutions involved in protecting the rights of the indigenous peoples of the North is the main condition for the successful solution of this task.

Aligning Energy Development with the Interests of Aboriginal Peoples in Canada

Canada’s economic future is dependent upon energy and natural resource development, and has therefore become inextricably linked to the rights and interests of Canada’s Aboriginal peoples. These rights and interests include the desire to continue with their traditional ways of livelihood, to protect their many cultures and the environment, the need to foster healthy and thriving communities, and the opportunity to participate in and benefit from development on their traditional lands. In Canada, the rights of Aboriginal people are constitutionally protected. However, despite considerable advancements in domestic law on consultation and accommodation, growing unrest and dissatisfaction among Canada’s Aboriginal peoples prevails.Significant progress in international human rights law and international norms lend support to Indigenous aspirations and are creating pressure on energy and natural resource developers to embrace change and move beyond the consultation requirements under domestic law to obtaining the consent of Aboriginal communities to development on their traditional lands. This article posits that the willingness of Aboriginal communities to constructively engage with industry and consent to natural resource and energy development on their traditional lands can be facilitated by aligning the interests of the affected Aboriginal communities with those of project proponents through the proactive creation of thoughtful and innovative commercial relationships. These relationships can be structured to create value for the proponent while providing meaningful economic participation for the affected Aboriginal community by utilizing a combination of passive resource revenues, employment and procurement opportunities and direct equity participation in the development.

The Duty to Consult & the Elusive Crown: An Inquiry into Confusion, Conflation and the Diminished Presence of the Crown in Appellate Court Jurisprudence after Rio Tinto

The project of reconciliation, heralded by the inclusion of section 35 in the Constitution Act, 1982, has made important strides as Canadian courts have expanded and elaborated the rights of Aboriginal peoples and the duties of the Crown. One of the key contributions to the s. 35 jurisprudence came with the Supreme Court of Canada’s development of the duty to consult in Haida in 2004. Haida was subsequently reaffirmed and expanded in the 2010 decision, Rio Tinto. However, since 2010, as First Nations groups continue to assert their rights, both superior and appellate courts have faced novel and uncontemplated invocations of the duty. The outcome of numerous appellate level decisions has seen both confusion and conflation of the Supreme Court’s jurisprudence in Haida and Rio Tinto. This has resulted in competing, and contradictory developments of the case law that jointly and paradoxically have the effect of diminishing the Crown’s duty to engage in consultation altogether. This paper principally examines two appellate level decisions, Neskonlith at the BC Court of Appeal, and Clyde River at the Federal Court of Appeal, in order to expose emerging problems in the duty to consult jurisprudence and to highlight the problem of the Crown’s withdrawal from what is, at its core, a quintessentially political process.

Empowering art: reconfiguring narratives of trauma and hope in the Australian national imaginary

Aboriginal art has been the source of much contention between art curators, gallery owners, art critics and Aboriginal artists themselves. Early aesthetic debates about whether so-called traditional works should be considered ethnographic or artistic have led, at times, to conflicts over the rights of Aboriginal people to have their works exhibited according to the criteria applied to other kinds of Western artworks. This article explores how the dilemmas of troubled ethno-histories are critically embodied and reconfigured in texture and colour. It considers the problems that silenced histories pose for those responsible for their display to the public. As Aboriginal images often conceal troubled intercultural encounters it asks how artworks can be used to provide a counter-polemic to national rhetoric as artists seek to reshape and improve intergenerational futures. This text is published as a counterpart to the contribution to Disturbing Pasts from the artist Heather Kamarra Shearer.

Aboriginal Environmental Rights in Tort

While environmental rights have largely been situate within the public law realms of statute and constitutional provisions, tort constitutes an important complementary tool for protecting environmental entitlements. Aboriginal peoples face system barriers to accessing the protections provided by tort law, in particular the law of nuisance and trespass. This Article argues for an application of tort law that is sensitive to the formal and substantive equality rights of Aboriginal peoples in the area of environmental protection.

Restitución, repatriación y normativa ética y legal en el manejo de restos humanos aborígenes en Argentina

This paper analyzes previous and current practices in handling human remains from aboriginal communities. The cases of three Argentinian museums are analyzed which adopted different practices throughout history: Natural Sciences Museum of La Plata, the Ambrosetti Museum, the Llullaillaco mummies, along with ethical and legal norms. The ultimate goal of the work is to draw attention to topics such as restitution, repatriation and the recognition of the rights of aboriginal peoples.

Is forest certification delivering on First Nation issues? The effectiveness of the FSC standard in advancing First Nations' rights in the boreal forests of Ontario and Quebec, Canada

Forest certification has become a key driver in efforts towards sustainable forest management. Certification processes include commitments to respect the rights of Aboriginal peoples. However, there has been little investigation into the relationship between certification and Aboriginal rights. This paper examines the effectiveness of certification in addressing a range of First Nation concerns, taking the example of FSC's National Boreal Standard, applied in the provinces of Quebec and Ontario, Canada. This is done through documentary analysis of audit reports for all public land certificates in this region, with particular attention paid to ‘conditions’ (required changes) issued as part of the audit process. Results indicate that 86% of FSC certifications led to at least one condition relating to First Nations' rights, but that most were deemed minor. The two most common issues flagged by conditions were: agreement for the management plan and the evaluation and protection of First Nations' resources and sites. Analysis of subsequent reports revealed that all conditions were resolved within the allotted time period. A qualitative analysis of conditions revealed a tendency for auditors to accept partial conformance when evaluating compliance. We conclude that FSC certification is pushing forest managers to make progress on a wide variety of fronts, but through a lens of ‘continual improvement’ rather than strict conformance with the standard.

Context, Equality, and Aboriginal Compensation Claims

ABSTRACT: Jeremy Waldron argues that the historical ownership rights of Aboriginal peoples can be superseded, yet acknowledges that programs of historically grounded compensation are justifiable in the absence of widespread redistribution. This article argues that existing states lack social justice programs of the requisite kind, and that they will continue to do so in the foreseeable future. Moreover, even the best-designed programs will be far more ambiguous than Waldron encourages us to recognize, given the unavoidability of inheritance-based inequalities. The article argues that philosophers should pay special attention to political context when evaluating the claims of socially vulnerable populations such as Aboriginal peoples.

Reconciliation and transformation in practice: Aboriginal judicial appointments to the Supreme Court

On 19 April 2004, Prime Minister Paul Martin signalled Canada’s willingness to embark on a new collaborative relationship with Canada’s aboriginal peoples. At the Canada-Aboriginal Peoples Roundtable, he stated, ‘‘We will ensure a full seat at the table as we have ensured today to aboriginal communities and leaders. No longer will we in Ottawa develop policies first and discuss them with you later. This principle of collaboration will be the cornerstone of our new partnership.’’ The former prime minister’s statement has been interpreted as an opportunity to begin a process of reconciliation between aboriginal and nonaboriginal peoples. As aptly noted by Assembly of First Nations Grand Chief Phil Fontaine, all efforts at reconciliation will require transformative change, which in turn will entail a multifaceted approach to achieve both procedural and substantive reform. This includes the manner in which Canada addresses the constitutional rights of aboriginal peoples, as well as the content of existing laws and policies. As the scope of aboriginal and treaty rights broadens and the depth of the judicially imposed consultation requirement becomes more apparent, we must begin to critically assess the impact such political and legal developments might have on the appointment process to the court of last resort. Transformative change can and should entail accommodation of aboriginal legal traditions within Canada’s pluralistic state. In this article, we will discuss how the appointment of aboriginal justices is one means by which indigenous legal traditions can be accommodated within Canada’s juridical framework. This premise will be justified from both philosophical and legal bases.

How Much Diversity in Our Schools?

CANADIANS tend to see our country as demonstrating the possibilities of a society with high cultural diversity and low conflict. (1) We are officially a bilingual country, with guarantees of education for religious and language minorities, as well as the rights of Aboriginal people, embedded in our constitution. Since 1971, multiculturalism has been an established element of Canadian national policy alongside bilingualism. We are a country built on immigration from many parts of the world; Canada accepts about 250,000 immigrants and refugees per year, which is close to 1% of the population, among the highest rates in the world. The vast majority of Canada's immigrants today come from eastern and southern Asia. Many do not speak English or French as a first language. As a result, Canada's large cities are highly diverse. Toronto is nearly 50% foreign-born, while most other urban centers also have substantial immigrant and nonwhite populations. In recognition of these realities, Canada's public school system already embodies quite a bit of diversity and choice, even though the issue has not sparked the same sort of passionate debate as in the U.S. or a number of other countries. Consider some of the educational choices already available to Canadian families: * All provinces have a system of independently governed Francophone schools to meet the requirements for minority-language education in the Canadian constitution; in Quebec the situation is reversed, with a system of Anglophone schools established for the same purpose. * All provinces provide French immersion programs for non-Francophone students who wish to be educated in French. * Alberta, Saskatchewan, and Ontario fund Catholic schools as part of their public systems, again as part of the constitutional arrangements under which they entered the Canadian confederation. * Many provinces provide substantial public funding to independent or private schools, typically at about 50% of the level of funding for public schools. * Most First Nations control their own education systems. * The three northern territories all recognize and support Aboriginal languages in their schools. In Nunavut, most primary teaching is carried on in Inuktitut, the Inuit language still spoken by almost all residents of the territory. * Within their public systems, most provinces support a variety of other alternative programs. Examples include Aboriginal-focus schools, black-focus programs, single-sex programs, religious schools within the public system, bilingual and heritage language schools or programs, multigraded programs, International Baccalaureate programs, and others. For the most part, this approach has worked reasonably well. Canadians feel we have done well compared with the challenges in European countries that suddenly face large numbers of foreign students; think Ireland, Norway, Spain, Sweden, or Switzerland (yes, Switzerland, now 20% foreign-born), not to mention the well-known disputes over immigration in Germany, France, or the Netherlands. But there are definite signs of strain in Canada, too. Recent immigrants--those who have come in the last decade--are not faring as well as did earlier immigrants. (2) Their incomes are lower, and they are having more difficulty getting established, even though they are generally well educated in their home countries and Canada has experienced prosperity and declining unemployment for quite a few years. Canada has continued to struggle over recognition of the educational and labor-market credentials of immigrants, and many immigrants find themselves unable to use professional credentials from their countries of origin. There are worries that many second-generation Canadians feel alienated from Canadian society and continue to experience unacceptable levels of discrimination, especially with regard to employment. Meanwhile, Canada's nearly one million Aboriginal people--who are, of course, not immigrants--continue to lag significantly behind national averages in such areas as longevity, health, and education. …

Aboriginal Self-Determination in Canada : Protections Afforded by the Judiciary and Government

RésuméOn présume en général que les arrêts décisifs de la Cour suprême canadienne représentent une tendance vers une protection croissante des droits des Autochtones en droit canadien. Cet article prend la position inverse. En dépit des décisions judiciaires concernant des droits autochtones sous 35(1), les droits des peuples autochtones du Canada ne sont pas mieux protégés. Les juges ont plutôt développé différents tests juridiques qui ont freiné l'élargissement de droits autochtones. On découvre ainsi que la reconnaissance politique et gouvernementale des peuples autochtones et de leurs droits, incluant le droit à l'autodétermination, fut plus grande que celle par la Cour suprême du Canada, et ceci malgré le traitement destructeur des peuples autochtones par l'État canadien. Le gouvernement du Canada a été prêt à reconnaître leur droit inhérent à l'autodétermination. Ceci est dû au statut légal modifié de qui constitue un «peuple» en droit international et au rôle du gouvernement canadien en tant que signataire de plusieurs conventions et déclarations internationales, tout autant qu'à des déclarations politiques plus récentes et des développements dans les négociations territoriales et d'autonomie plus globales.

Inherent Rights of Aboriginal Peoples in Canada – Reflections of the Debate in National and International Law

Inherent Rights of Aboriginal Peoples in Canada – Reflections of the Debate in National and International Law

Réflexions sur le sens et la portée au Québec des articles 25, 35, et 37 de la Loi constitutionnelle de 1982

The rights of aboriginal peoples may vary from one part of the country to the other. This stems from the origin of Canada, its history, its Imperial and the Constitutional Statutes which have determined the territorial evolution of Canada. The terms of the Quebec Act seem to limit the hunting territories of the Indians to that part of Quebec which was not a part of the Colony in 1763. While a federal law extinguished all aboriginal rights in the territory covered by the James Bay agreements, the amendment of 16 March 1983 may have, for Quebec, important legal consequences in that these agreements may be held to be treaties.

A Culturally Correct Proposal to Privatize the British Columbia Salmon Fishery

Canada now faces two looming policy crises that have come to a head in British Columbia. The first is long-term depletion of Pacific salmon fishery by mobile commercial ocean fishermen racing to intercept salmon under rule of capture. The second is an unsettling series of native land claims resulting from Canadian Supreme Court case law recognizing and affirming the existing aboriginal and treaty rights of aboriginal peoples of Canada. This essay relies on economics of property rights to propose a privatization auction of salmon fishery while promoting Canadian commonwealth and respecting tribes' distinctive aboriginal culture.

Law in the Present Tense: Continuity and Tradition InnThe Yorta Yorta Aboriginal Community v Victoria

In the 12 years since native title was first recognised in Australia, 32 determinations, of a total of 49, have pronounced native title to be extinguished over at least part of the area claimed (as of 25 March 2004). This has been as a result of either government acts that are inconsistent with native title rights, or because the contemporary existence of traditional law could not be proved. The Yorta Yorta case, in many ways a test case for native title rights in south-eastern Australia, considered the second manner of extinguishment. This article critically assesses the Federal and High Court decisions,and argues that the courts have applied a notion of tradition and cultural continuity that is unnecessarily narrow, denying recognition of the rights of Aboriginal people who, in spite of colonisation, see their law as existing in the present tense.

The Forgotten Constitution: The Natural Resources Transfer Agreements and Indian Livelihood Rights, Ca. 1925-1933

This article forms Part I of a two part legal-historical analysis of the Natural Resources Transfer Agreement (NRTA), the processes and circumstances that gave rise to its enactment, and the subsequent implications historical and contemporary —for the livelihood rights of Aboriginal peoples. In this Part, the author critically examines historical evidence surrounding the agreements that the Prairie Provinces of Alberta, Manitoba, and Saskatchewan entered into with the Dominion government. In doing so, the author concludes that, to date, legal interpretations of the NRTA and the respective provincial agreements have been short-sighted and incomplete. As such, they are deeply troubling and represent a site for further critical legal analysis and judicial reconsideration.

Culture and the Judiciary: The Meaning of the Culture Concept as a Source of Aboriginal Rights in Canada

RésuméL'auteur examine la démarche canadienne à l'égard de la reconnaissance des droits des peuples autochtones. La discussion porte surtout sur les problèmes, autant conceptuels que juridiques, au centre du discours culturel de la Cour suprême du Canada. L'approche de la Cour envers la culture, la “spécificité culturelle” et les “droits culturels” ne concorde pas avec les conceptions anthropologiques ou historique contemporaines de la culture. En particulier, cette approche a tendance à “figer dans le temps” les droits culturels autochtones. Les idées culturelles de la Cour sont basées en partie sur les témoignages des experts (y compris des perspectives autochtones), sur les droits de l'homme et sur l'opinion publique, mais ils ont aussi des qualités qui leur sont propres. Ces dernières sont orientées vers les questions politiques entourant la souveraineté de la Couronne et les revendications d'autodétermination des peuples autochtones. Le discours culturel de la Cour est inséparable d'une opposition entre une politique libérale d'égalité et les droits et revendications spécifiques des peuples distincts.

Aboriginal land rights in Russia at the beginning of the twenty-first century

During the last decade, aboriginal peoples in Russia have sought to improve their legal rights, including their rights to their homelands and the resources of these lands. The Russian government initially responded to an aboriginal lobby by including discrete articles addressing aboriginal rights in a number of its laws, including those on forests, sub-surface resources, and protected areas. More comprehensive laws, specifically addressing aboriginal rights to land, were finally adopted at the turn of the twenty-first century, in 1999, 2000, and 2001. This article summarizes the rights of aboriginal peoples regarding land ownership/tenure, access to natural resources (renewable and sub-surface), and protection of ancestral lands, in the light of the new federal legislation. It also notes how the federal laws' provisions concur with international requirements for aboriginal land rights.

Tapping into Water Rights: An Exploration of Native Entitlement in the Treaty 8 Area of Northern Alberta

RésuméL'activité industrielle, l'agriculture intensive, la déviation de cours d'eau et le développement hydroélectrique ont, parmi d'autres activités, le potentiel d'avoir des conséquences directes et indirectes sur la durabilité physique et culturelle des communautés autochtones modernes. Toutefois, les droits relatifs à l'eau des peuples autochtones au Canada demeurent incertains. Cet article discute comment les collectivités dans la région du traité numéro 8 au Nord de l'Alberta possèdent des droits relatifs à l'eau, issus du traité et de laCommon Law, et, en quelques situations, ont possiblement reçu titre aux lits de cours d'eau navigables dans les réserves, implicitement. l'discute ensuite quelques conséquences indirectes de l'aménagement hydroélectrique sur l'économie traditionnelle et la manière par laquelle les collectivités peuvent empêcher ou participer dans de tels développements.