A Decolonizing Medieval Studies?

2020 ◽  
Vol 58 (2) ◽  
pp. 50-63
Author(s):  
Helen Young
Keyword(s):  
Anglo Saxon ◽  
Legal Doctrine ◽  
Medieval Studies ◽  
Colonial State ◽  
High Court ◽  
Indigenous Law ◽  
Terra Nullius ◽  
Decolonizing Methodologies ◽  
Indigenous Land Rights ◽  
Indigenous Land

Abstract This article considers how medievalism, particularly in its academic form of medieval studies, might contribute to decolonization through exploration of how the Western “cultural archive” (Smith, Decolonizing Methodologies) draws on the teleological temporality embedded in the idea of the “medieval” to rationalize “white possessive logics” (Moreton-Robinson, White Possessive). It explores medievalisms in legal, mainstream, and academic contexts that focus on Indigenous land rights and law in the Australian settler-colonial state. It examines the High Court of Australia’s ruling in Mabo and Others v. Queensland (2) (1992), a landmark case that challenged the legal doctrine of terra nullius, on which claims to British sovereignty were founded, and on comparisons of Anglo-Saxon and Indigenous law in the post-Mabo era.

Terra Nullius? Temporal Legal Pluralism in an Australian Colony

2019 ◽  
Vol 29 (4) ◽  
pp. 463-485
Author(s):  
Shane Chalmers
Keyword(s):  
South Australia ◽  
Land Rights ◽  
Legal Pluralism ◽  
Temporal Dimension ◽  
Common View ◽  
Terra Nullius ◽  
Australian Colonial ◽  
The Status ◽  
Indigenous Land Rights ◽  
Indigenous Land

There remains a puzzle as to the status of Indigenous land rights in Australian colonial law. The common view is that the laws of the British colonies, and subsequently of the federated state, did not recognise Indigenous land rights until late in the 20th century. Against this, a smaller body of scholarship argues that recognition had already occurred much earlier, the clearest instance being in the colony of South Australia in the 1830s and 1840s. The result is an apparent duplicity in the colonial law, whereby Indigenous land rights appear to have been both recognised and denied. The article shows a tendency in the scholarly literature to resolve this duplicity in absolute terms, based on positivist analysis of law. In contrast, by taking a critical legal pluralist approach, the article shows how different and even contradictory manifestations of the same law subsisted simultaneously through time. This both sheds new light on the question of the recognition of Indigenous land rights in Australian colonial law, and contributes theoretically to ‘critical legal pluralism’ by developing its temporal dimension.

Seeking Redress in the Courts: Indigenous Land Rights and Judicial Decisions in Malaysia

2010 ◽  
Vol 45 (4) ◽  
pp. 825-875 ◽  
Author(s):  
S. ROBERT AIKEN ◽  
COLIN H. LEIGH
Keyword(s):  
Common Law ◽  
Land Rights ◽  
Federal Court ◽  
State Governments ◽  
High Court ◽  
Native Title ◽  
Development Policies ◽  
Indigenous Land Rights ◽  
Number Of Individuals ◽  
Indigenous Land

AbstractMalaysia's indigenous peoples continue to suffer numerous grievous injustices, including appropriation of their ancestral lands and socio-economic deprivation. In large part because their voices of resistance to development policies have gone unheard by the authorities, a growing number of individuals and communities have taken their grievances to the nation's courts. In particular, they have pleaded for judicial intervention to address alleged breaches of statutory land and other rights by governments and their contractors, and for recognition of native title at common law. In the landmark 1996Adongcase, the High Court ruled that Malaysian jurisprudence recognizes native title, thus bringing Malaysia into line with a number of other countries that share an English-derived legal system. The concept has been upheld in subsequent High Court, Court of Appeal, and Federal Court judgments. In spite of the rulings in favour of indigenous parties, the federal government, along with certain of the state governments, has continued to adopt an adversarial approach to indigenous land issues. An encouraging development is the reported willingness of governments in Perak and Selangor to tackle indigenous land rights issues through mediation rather than litigation. This paper summarizes seven court cases concerning alleged breaches of statutory rights and four cases dealing with native title at common law; it also looks at certain issues arising from the cases, as well as the responses of communities and governments to the various court judgments.

scholarly journals African Indigenous Land Rights in a Private Ownership Paradigm

2017 ◽  
Vol 14 (7) ◽  
pp. 44
Author(s):  
Elmien Du Plessis
Keyword(s):  
Land Tenure ◽  
Social Order ◽  
Land Rights ◽  
Analytical Framework ◽  
Community Members ◽  
Indigenous Law ◽  
The Commons ◽  
Indigenous Land Rights ◽  
Definition Of ◽  
Indigenous Land

It is often stated that indigenous law confers no property rights in land. Okoth-Ogenda reconceptualised indigenous land rights by debunking the myth that indigenous land rights systems are necessarily "communal" in nature, that "ownership" is collective and that the community as an entity makes collective decisions about the access and use of land.[1] He offers a different understanding of indigenous land rights systems by looking at the social order of communities that create "reciprocal rights and obligations that this binds together, and vests power in the community members over land". To determine who will be granted access to or exercise control over land and the resources, one needs to look at these rights and obligations and the performances that arise from them. This will leave only two distinct questions: who may have access to the land (and what type of access)[2] and who may control and manage the land resources on behalf of those who have access to it?[3] There is a link with this reconceptualisation and the discourse of the commons. Ostrom's classification of goods leads to a definition of the commons (or common pool of resources) as "a class of resources for which exclusion is difficult and joint use involves subtractablity".[4] The questions this article wishes to answer are: would it firstly be possible to classify the indigenous land rights system as a commons, and secondly would it provide a useful analytical framework in which to solve the problem of securing land tenure in South Africa?[1]      Okoth-Ogendo "Nature of Land Rights" 100.[2]      See Ben Cousin's comments and examples in Cousins "Characterising 'Communal' Tenure" 122.[3]      Okoth-Ogendo "Nature of Land Rights" 100.[4]      Feeny et al 1990 Human Ecology 4.

Wild Articulations

2017 ◽  
Author(s):  
Timothy Neale
Keyword(s):  
Market Integration ◽  
Interdisciplinary Approach ◽  
Terra Nullius ◽  
The Past ◽  
The North ◽  
Indigenous Policy ◽  
Indigenous Lands ◽  
Cape York ◽  
Indigenous Land Rights ◽  
Indigenous Land

This book examines issues of environmentalism and indigeneity in Northern Australia through the controversy surrounding the Wild Rivers Act 2005 (Qld). Like much of the north, one terrain of the Act – the massive Cape York Peninsula – has long been constructed as a ‘wild’ space, whether as terra nullius, a zone of legal exception or a biodiverse wilderness region in need of conservation. The past two decades, however, have seen two major changes in the political and social composition of the region, the first being the legal recognition of geographically extensive Indigenous land rights and the creation of a corporate infrastructure to govern them. The second is that the peninsula has been the centre of national debates regarding the market integration and social normalisation of Indigenous people, becoming the locale for intensive reform of some ‘Indigenous’ policy. Ironically, the Queensland government’s own attempts to ‘settle’ land use through the Actbrought out the tensions within the region’s present political formation. This book takes an interdisciplinary approach to the examination of how and why the controversy occurred and what it indicates about present imaginaries of the governance and potentiality of Indigenous lands and waters. It shows that historically embedded forms of ‘wildness’ continue to shape debates about Northern Australia’s future, debates in which economic and social development are often confused and conceptualised as beneficent transformations. Ultimately, Wild Articulations contends that close consideration of this event provides insights into the future dilemmas of development and conservation in remote Australia.

Indigenous Planning: From Forced Assimilation to Self-determination

2021 ◽  
pp. 088541222110266
Author(s):  
Michael Hibbard
Keyword(s):  
Indigenous Peoples ◽  
Settler Colonialism ◽  
Land Rights ◽  
Self Determination ◽  
Indigenous Cultures ◽  
Indigenous Planning ◽  
Indigenous Land Rights ◽  
Indigenous Land

Interest in Indigenous planning has blossomed in recent years, particularly as it relates to the Indigenous response to settler colonialism. Driven by land and resource hunger, settler states strove to extinguish Indigenous land rights and ultimately to destroy Indigenous cultures. However, Indigenous peoples have persisted. This article draws on the literature to examine the resistance of Indigenous peoples to settler colonialism, their resilience, and the resurgence of Indigenous planning as a vehicle for Indigenous peoples to determine their own fate and to enact their own conceptions of self-determination and self-governance.

Justice and Indigenous Land Rights

Inquiry ◽  
1998 ◽  
Vol 41 (2) ◽  
pp. 187-205 ◽  
Author(s):  
Susan Dodds
Keyword(s):  
Land Rights ◽  
Indigenous Land Rights ◽  
Indigenous Land

The Influence of Judicial Uncertainty on Executive Support for Negotiation in Canadian Land Claims Policy

2009 ◽  
Vol 42 (2) ◽  
pp. 417-442 ◽  
Author(s):  
Christa Scholtz
Keyword(s):  
Time Series ◽  
Research Agenda ◽  
Judicial Politics ◽  
Federal Budget ◽  
Land Rights ◽  
Land Claims ◽  
Indigenous Groups ◽  
Indigenous Land Rights ◽  
Indigenous Land ◽  
Judicial Uncertainty

Abstract. Governments and Indigenous groups bargain under the shadow of the law, and this paper pushes the judicial politics research agenda by examining empirically whether flickers in law's shadow systematically affect the implementation of the Canadian government's negotiation choice in the Indigenous land rights context. Through interviews and a time series analysis of Canada's specific claims policy, I find that judicial uncertainty increases the federal government's propensity to accept specific claims for negotiation. However, there is evidence that Indigenous protest action during the Oka crisis and Elijah Harper's role in scuttling the Meech Lake constitutional accord, more than other factors, greatly impacted the federal budget allocated towards negotiation.Résumé. Les négociations entre les gouvernements et les groupes autochtones se déroulent sous les auspices de la loi, et le présent document examine le programme de recherche sur les politiques légales afin de déterminer de façon empirique si certaines imprécisions dans la loi influent sur les options retenues par le gouvernement du Canada en ce qui concerne les droits sur les terres autochtones. Une analyse statistique de la politique de revendication en vigueur au Canada ainsi qu'un certain nombre d'entrevues m'ont permis de constater l'existence d'un flou juridique qui amène le gouvernement fédéral à accepter d'examiner certaines revendications spécifiques à la table des négociations. Il semble toutefois que certains incidents particuliers, comme les gestes de protestation posés par les autochtones lors de la crise d'Oka, ou le rôle joué par Elijah Harper dans l'échec de l'Accord constitutionnel du lac Meech, aient eu une incidence marquée sur l'importance des sommes allouées par le gouvernement fédéral à ces négociations.

scholarly journals Law, land, development and narrative: a case-study from the South Pacific

2010 ◽  
Vol 6 (1) ◽  
pp. 1-21 ◽  
Author(s):  
Sue Farran
Keyword(s):  
Land Tenure ◽  
Land Development ◽  
Primary Source ◽  
South Pacific ◽  
Land Rights ◽  
Small Island ◽  
The South ◽  
Indigenous Land Rights ◽  
Indigenous Land

This article explores a primary source of legal studies, case-law, as a form of narrative in the context of indigenous land rights, and considers how this narrative negotiates pre-colonial land claims in a post-colonial context. Its case-study is the South Pacific island country of Vanuatu, a small-island, least-developed, nation-state, where laws introduced under Anglo–French colonial administration are still retained and sit uneasily alongside the customary forms of land tenure which govern ninety percent of all land in the islands. The article looks at the traditional and changing role of narrative presented as evidence by claimants and their witnesses against a context of rapid social and economic change, and asks whether the metamorphosis of narrative signals the future survival or imminent demise of customary indigenous land rights and what that might mean for these island people faced by the pressures of development.

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