scholarly journals A comparative discussion of indigenous rights under constitutional law

2015 ◽  
Vol 51 (1) ◽  
pp. 169
Author(s):  
Aitor Esteban
Keyword(s):  
Ethnic Minorities ◽  
Indigenous Peoples ◽  
Constitutional Law ◽  
Indigenous Rights ◽  
Cultural Issues ◽  
Native Title ◽  
Terra Nullius

Summary: From terra nullius to Native Title. Scheduled tribes. Reserved participation. Final agreements. Legislation without consent. Rights only exist on paper. Corporations or nations? Cultural issues. Indigenous peoples versus ethnic minorities. The end of marginalisation?.

Excluded Uses: Indigenous Rights to Water

2020 ◽  
Author(s):  
Barbara Cosens
Keyword(s):  
Water Resource ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Nation State ◽  
European Contact ◽  
Terra Nullius ◽  
European Settlement ◽  
Nation States ◽  
Definition Of ◽  
The Right

Indigenous rights to water follow diverse trajectories across the globe. In Asia and Africa even the concept of indigeneity is questioned and peoples with ancient histories connected to place are defined by ethnicity as opposed to sovereign or place-based rights, although many seek to change that. In South America indigenous voices are rising. In the parts of the globe colonized by European settlement, the definition of these rights has been in a continual state of transition as social norms evolve and indigenous capacity to assert rights grow. From the point of European contact, these rights have been contested. They have evolved primarily through judicial rulings by the highest court in the relevant nation-state. For those nation-states that do address whether indigenous rights to land and water exist, the approach has ranged from the 18th- and 19th-century doctrines of terra nullius (the land (and resources) belonged to no one) to a recognized right of “use and occupancy” that could be usurped under the doctrine of “discovery” by the conquering power. In the 20th and 21st centuries the evolution of the recognition of indigenous rights remains uneven, reflecting the values, judicial doctrine, and degree to which the contested water resource is already developed in the relevant nation-state. Thus, indigenous rights to water range from the recognition of cultural and spiritual rights that would have been in existence at the time of European contact, to inclusion of subsistence rights, rights sufficient for economic development, rights for homeland purposes, and rights as guardian for a water resource. At the forefront in this process of recognition is the right of indigenous peoples as sovereign to control, allocate, develop and protect their own water resources. This aspirational goal is reflected in the effort to create a common global understanding of the rights of indigenous peoples through declaration and definition of the right of self-determination articulated in the UN Declaration on the Rights of Indigenous Peoples.

Part Two Rights, 8 The Rights of Indigenous Peoples

2017 ◽  
Author(s):  
Espinosa Manuel José Cepeda ◽  
Landau David
Keyword(s):  
Latin America ◽  
Indigenous Peoples ◽  
Constitutional Law ◽  
Justice System ◽  
Indigenous Rights ◽  
Indigenous Communities ◽  
Case Law ◽  
Constitutional Court ◽  
Cultural Autonomy ◽  
The Right

The Colombian Constitution of 1991 sets up an extensive set of indigenous rights, in order to protect the cultural autonomy of groups that have historically been repressed throughout most of Latin America. This chapter reviews the case law of the Colombian Constitutional Court on that topic. It considers the interpretation of provisions giving indigenous communities autonomy in their justice system and other internal affairs. Applying these provisions, the Court has allowed non-traditional punishments such as whipping, so long as they did not fall afoul of fundamental precepts of international or constitutional law. This chapter also includes a review of the Court’s extensive jurisprudence on the right of indigenous communities to prior consultation before economic or governmental projects are undertaken on their lands.

The Definition of Indigenous Peoples and its Applicability in China

2015 ◽  
Vol 22 (2) ◽  
pp. 232-258 ◽  
Author(s):  
Linzhu Wang
Keyword(s):  
International Law ◽  
Ethnic Groups ◽  
Ethnic Minorities ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
International Norms ◽  
Chinese Government ◽  
Indigenous Status ◽  
Historical Continuity ◽  
Definition Of

This article considers the applicability of the concept of indigenous peoples in China, in accordance with the definitions developed in international law. It examines different approaches to define indigenous peoples in international law, and explores how those definitions may relate to Chinese ethnic groups. In particular, the article looks at possibilities for Chinese minorities to claim indigenous status, based on the standards of ‘the priority of settlement’ and ‘distinctiveness arising from historical continuity and attachment to a specific land’. It argues that the uncertainty of the definition, the complexity of the ethnic situation, and the reluctance of the Chinese Government make the application of indigenous rights in China unclear at the present. The Chinese minority/indigenous argument, to a certain extent, depends on the elaboration of international norms on indigenous rights, as well as the clarification of Chinese terms in relation to ethnic minorities.

scholarly journals Indigenous Rights and Trade Obligations: How Does CUSMA’s Indigenous General Exception Apply to Canada?

2021 ◽  
pp. 1-47
Author(s):  
J. ANTHONY VANDUZER ◽  
MELANIE MALLET
Keyword(s):  
Indigenous Peoples ◽  
Free Trade Agreement ◽  
Dispute Settlement ◽  
Indigenous Rights ◽  
Trade Agreement ◽  
Legal Obligations ◽  
United States Mexico ◽  
Trade And Investment ◽  
Ongoing Concern ◽  
Party State

Abstract Canadian commitments under trade and investment treaties have been an ongoing concern for Indigenous peoples. The Canada-United States-Mexico Agreement (CUSMA) is the first Canadian treaty to include a general exception for measures that a party state “deems necessary to fulfill its legal obligations to [I]ndigenous peoples.” This exception is likely to afford Canada broad, but not unlimited, discretion to determine what its legal obligations to Indigenous peoples require. There is a residual risk that Canada’s reliance on the exception could be challenged through the CUSMA dispute settlement process. A CUSMA panel would not have the expertise necessary to decide inevitably complex questions related to what Canada’s legal obligations to Indigenous peoples require. While state-to-state cases under the North American Free Trade Agreement have been rare, a CUSMA panel adjudication regarding the Indigenous general exception risks damaging consequences for Canada’s relationship with Indigenous peoples.

Mobilising Free, Prior and Informed Consent (fpic) from Below: A Typology of Indigenous Peoples’ Agency

2020 ◽  
Vol 27 (2) ◽  
pp. 291-313 ◽  
Author(s):  
Almut Schilling-Vacaflor ◽  
Riccarda Flemmer
Keyword(s):  
Informed Consent ◽  
Indigenous Peoples ◽  
Latin American ◽  
Indigenous Rights ◽  
Legal Interpretation ◽  
Resource Governance ◽  
Natural Resource Governance ◽  
Indigenous Participation ◽  
Latin American Countries ◽  
Public Decision

Based on rich empirical data from Bolivia, Colombia, and Peru – the three Latin American countries where the implementation of prior consultation processes is most advanced – we present a typology of indigenous peoples’ agency surrounding prior consultation processes and the principle of free, prior and informed consent (fpic). The typology distinguishes between indigenous actors (1) mobilising for a strong legal interpretation of fpic, (2) mobilising for meaningful and influential fpic processes, (3) mobilising against prior consultation processes, and (4) blockading prior consultation processes for discussing broader grievances. We identify the most prominent indigenous strategies related to those four types, based on emblematic cases. Finally, we critically discuss the inherent shortcomings of the consultation approach as a model for indigenous participation in public decision-making and discuss the broader implications of our findings with regard to indigenous rights and natural resource governance.

Realising Ainu indigenous rights: a commentary on Hiroshi Maruyama's ‘Japan's post-war Ainu policy. Why the Japanese Government has not recognised Ainu indigenous rights?’

Polar Record ◽  
2013 ◽  
Vol 50 (2) ◽  
pp. 209-211 ◽  
Author(s):  
Naohiro Nakamura
Keyword(s):  
United Nations ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Japanese Government ◽  
The United Nations ◽  
The Government ◽  
Post War ◽  
Legal Frameworks ◽  
United Nations Declaration

ABSTRACTThis commentary reviews Maruyama's article ‘Japan's post-war Ainu policy: why the Japanese Government has not recognised Ainu indigenous rights?’ (Maruyama 2013a), published in this journal. Maruyama criticises the government for its reluctance to enact a new Ainu law to guarantee indigenous rights, even after Japan's ratification of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). However, in actuality, the government is searching for the foundation of new Ainu policies in the existing legal frameworks and trying to guarantee some elements of indigenous rights. Japan's case suggests the possibility of realising indigenous rights without the enactment of a specific law.

Protecting the Empire's Humanity

2021 ◽  
Author(s):  
Zoë Laidlaw
Keyword(s):  
Nineteenth Century ◽  
New Zealand ◽  
Indigenous Peoples ◽  
Settler Colonialism ◽  
South Australia ◽  
Indigenous Rights ◽  
British Colonialism

Rooted in the extraordinary archive of Quaker physician and humanitarian activist, Dr Thomas Hodgkin, this book explores the efforts of the Aborigines' Protection Society to expose Britain's hypocrisy and imperial crimes in the mid-nineteenth century. Hodgkin's correspondents stretched from Liberia to Lesotho, New Zealand to Texas, Jamaica to Ontario, and Bombay to South Australia; they included scientists, philanthropists, missionaries, systematic colonizers, politicians and indigenous peoples themselves. Debating the best way to protect and advance indigenous rights in an era of burgeoning settler colonialism, they looked back to the lessons and limitations of anti-slavery, lamented the imperial government's disavowal of responsibility for settler colonies, and laid out elaborate (and patronizing) plans for indigenous 'civilization'. Protecting the Empire's Humanity reminds us of the complexity, contradictions and capacious nature of British colonialism and metropolitan 'humanitarianism', illuminating the broad canvas of empire through a distinctive set of British and Indigenous campaigners.

scholarly journals Indigenous Rights and Multilevel Governance: Learning From the Northwest Territories Water Stewardship Strategy

2018 ◽  
Vol 9 (2) ◽  
Author(s):  
Alex Latta
Keyword(s):  
Natural Resources ◽  
Northwest Territories ◽  
Indigenous Peoples ◽  
Water Policy ◽  
Indigenous Rights ◽  
The State ◽  
Multilevel Governance ◽  
Resource Governance ◽  
Effective Collaboration ◽  
Over Time

States’ increasing recognition of Indigenous rights in the realm of natural resources has led to a variety of co-management arrangements and other forms of melded authority, evolving over time into increasingly complex governance relationships. This article takes up such relationships within the analytical frame of multilevel governance, seeking lessons from the experiences of Indigenous involvement in water policy in Canada’s Northwest Territories (NWT). It examines the way that effective collaboration in resource governance can emerge within the space of tension between evolving Indigenous rights regimes and the continued sovereignty of the state. At the same time, the analysis raises questions about whether multilevel governance can contribute to meaningful decolonization of relationships between settler states and Indigenous Peoples.

scholarly journals Strategi Pengakuan dan Perlindungan Hak-Hak Masyarakat (Hukum) Adat: Sebuah Pendekatan Sosio-Antropologis

2016 ◽  
Vol 2 (2) ◽  
pp. 133 ◽  
Author(s):  
R Yando Zakaria
Keyword(s):  
Indigenous People ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Local Communities ◽  
Local Regulation ◽  
Field Level

Abstract: Arizona (2015b) reported that in the last mid-2015, there were lots of local regulation products intended as instruments to recognize the rights of indigenous people. Eventhough 40% of these products contain arrangements of the area, lands and communal forests, in reality, total area that have been effectively possessed by local communities were insignificant. According to Arizona (2015a), this condition occurred because the advocacy agenda trapped by the complexity of the diversity of the subjects and objects of the indigenous rights to be recognized and protected. This article was not about to argue that conclusion. However, this paper believes that the trap of complexity and diversity of the subjects and objects of the recognition of indigenous rights was enabled by three factors. First, the stakeholders within those complexity of definition came from generic concepts; second, failed to approach subjects and objects of the rights as a socio-antrophology reality at field level; and third, this problem was worsen by the stakeholders that barely have a proven instrument in finding sociological-anthropological reality. This article aims to fill those gaps. Keywords : Strategy, Recognition, Indigenous Peoples, socio-anthropologicalIntisari: Arizona (2015b) melaporkan bahwa tengah tahun 2015 lalu ada banyak produk hukum daerah yang dimakudkan sebagai instrument hukum pengakuan hak-hak masyarakat adat. Namun, meski 40% produk hukum daerah itu berisi pengaturan tentang wilayah, tanah dan hutan adat, di tingkat lapangan, total luas yang telah benar-benar efektif dikuasi masyarakat adat relatif sangat sedikit. Menurut Arizona (2015a), hal itu terjadi, antara lain, agenda advokasi terjebak oleh kerumitan keragaman subyek dan obyek hak-hak adat yang akan diakui dan dilindungi. Tulisan ini tak hendak membantah kesimpulan itu. Namun, tulisan ini percaya bahwa jebakan kerumitan keragaman subyek dan obyek pengakuan hak-hak masyarakat adat itu dimungkinkan oleh tiga hal. Pertama, para-pihak terjebak dengan perdebatan definisi dari beberapa konsep yang memang bersifat generik; kedua, alpa mendekati subyek dan obyek hak itu sebagai realitas sosio-antropologis di tingkat lapangan; dan ketiga, masalah ini diperumit oleh para-pihak nyaris tidak memiliki instrument yang teruji dalam menemukan realitas sosiologis-antropologi dimaskud. Tulisan ini disusun untuk mengisi kekosongan-kekosongan itu. Kata Kunci: Strategi, Pengakuan, Masyarakat Hukum Adat, sosio-antropologis

scholarly journals Statistics for Community Governance: The Yawuru Indigenous Population Survey, Western Australia

2014 ◽  
Vol 5 (2) ◽  
Author(s):  
John Taylor ◽  
Bruce Doran ◽  
Maria Parriman ◽  
Eunice Yu
Keyword(s):  
Local Community ◽  
Indigenous Rights ◽  
Household Survey ◽  
Community Planning ◽  
Community Governance ◽  
Native Title ◽  
Support Mechanism ◽  
Secure Information ◽  
Background Events

This article presents a case study of an exercise in Aboriginal community governance in Australia. It sets out the background events that led the Yawuru Native Title Holders Aboriginal Corporation in the town of Broome on Australia’s northwest coast to secure information for its own needs as an act of self-determination and essential governance, and it presents some of the key findings from that exercise. As the Indigenous rights agenda shifts from the pursuit of restitution to the management and implementation of benefits, those with proprietary rights are finding it increasingly necessary to build internal capacity for post-native title governance and community planning, including in the area of information retrieval and application. As an incorporated land-holding group, the Yawuru people of Broome are amongst the first in Australia to move in this area of information gathering, certainly in terms of the degree of local control, participation, and conceptual thinking around the logistics and rationale for such an exercise. An innovative addition has been the incorporation of survey output data into a Geographic Information System to provide for spatial analysis and a decision support mechanism for local community planning. In launching and administering the "Knowing our Community" household survey in Broome, the Yawuru have set a precedent in the acquisition and application of demographic information for internal planning and community development in the post-native title determination era.

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