Placing Indigenous Rights to Self-Determination in an Ecological Context

In this paper the author focuses on Australian land management and in particular on the environmental management issues that could have been prompted by the High Court recognition in 1996 (in Wik Peoples v. The State of Queensland ) that native title to land and pastoral leaseholdings can co-exist. Drawing on themes of self-determination and co-existence, the paper looks at more specific topics such as aboriginal title to land—what has been called land rights or native title in Australia—and some implications of that for land, sea and resource management. Central to this analysis are competing theories of Aboriginal land management and links between Aboriginal traditional knowledge and conservation of species. These are illustrated through the marine mammal, the dugong. The Australian debates lead to the Canadian debates and then to Scandinavia and the role of the Sami people in protection and management of the Arctic region. Issues of indigenous self determination inevitably provide an overall theme to these discussions. As a matter of global concern, the paper asks, but does not decide, whether indigenous peoples may manage fragile eco-systems more effectively than outsiders. It maintains that what is important in this context is a broader question. This concerns how culturally inclusive land and resource management can emerge from recognition of indigenous land and human rights and how comparative developments can provide crucial cross-jurisdictional information for future developments and opportunities in the interests of environmental conservation.     

Indigenous rights discourse in Australia

The ability of Australia's indigenous people to create their own cultural identity and social reality is shaped profoundly by the Australian legal system in various ways. The 1992Mabo decision of the Australian High Court ‘created’ a right to land tenure for Australia's indigenous people. This ‘right’ has been further explicated by federal legislation in the post-Mabo era, in and around law. This essay analyzes the 1992Mabo decision in the context of governmental, judicial and wider social responses to indigenous issues. At several sites, it examines ‘indigenous rights’ discourse to illustrate the shifting meaning of ‘rights’ in legal currency in the indigenous debate. The essay suggests that the ‘rights’ discourse of legal liberalism has not yet provided meaningful plurality in the recognition of indigenous rights.     

The Evolution of International Indigenous Rights in the Inter-American Human Rights System

Indigenous communities in the Western hemisphere are increasinglyrelying on international law and international fora for enforcementof their human rights. When there are no domestic laws thatrecognise indigenous rights, or such laws exist but there isno political will to enforce them, indigenous peoples in theAmericas may turn to the Inter-American human rights system.Consequently, the Inter-American Court of Human Rights and theInter-American Commission on Human Rights have developed a progressivecase law in this area. In 2005 and 2006, the Inter-AmericanCourt decided seminal indigenous ancestral land rights casesand a political rights case. This article analyses these casesand the previous jurisprudence and decisions on indigenous rightsin the Inter-American system.     

WORKING TOGETHER

Family Court of Australia has employed four Aboriginal Family Consultants within the Family Court Mediation Service in Darwin and Alice Springs. The consultants were selected from local indigenous people and assist indigenous families who are often in heated dispute over children following family breakdown and separation. The program ultimately seeks to promote access to justice for Aboriginal and Torres Stvait Islander people in the jurisdiction of family law. The program seeks to achieve this by assisting indigenous people to access and utilize the dispute resolution services provided by the Family Court. Family consultants work closely with court mediators in responding to the needs and issues of indigenous families in dispute. The article describes the model of intervention adopted and highlights the benefits of the program with reference to case studies.     

The Sovereign Event in a Nation's Law

This article interrogates the relationship between the sovereign event and a legal decision that purports to place sovereignty beyond law. It argues that sovereignty cannot be regarded as unitary, and elaborates the process of iterability by which the sovereign event is split from the outset. This dynamic is examined through an interrogation of the non-justiciability of sovereignty in Mabo v. Queensland (No. 2)(1992). Along with the unitary conception of sovereignty, Mabo (No. 2) deployed an absolute measure for community in the form of the ‘skeletal principle’ of the doctrine of tenure. The paper argues that a conception of the political that affirms the One sovereign source of community and law instead of the original dis-position of law, nation and community repeats the original violence, and will, at best, run aground on the righteous (mis)recognition of the ‘appropriate savage’. It concludes with an indicative rethinking of community through the thought of Jean-Luc Nancy. This revised version was published online in July 2006 with corrections to the Cover Date.     

At the Court of the Strange God

This article revisits the decision of the Australian High Court in Mabo (No. 2)for the purpose of determining what, in the legal thought displayed in the judgments, makes the category of sovereignty exclusive of the sovereignty of aboriginal peoples. Having regard to the téchnē of legal thought, it locates this exclusion in the substitution of nation for property relations of class, sex and race and, more specifically to sovereignty as a category of a still colonial law, in denial of the partiality of the standpoint of legal thought. This article proposes the need in Australia to attend to, thoughtfully, a fantastic and reconciliatory moment in the idea of sovereignty. This revised version was published online in July 2006 with corrections to the Cover Date.     

Returning to the Past: The South Australian Colonisation Commission,the Colonial Office and Aboriginal Title

In the closing decades of the twentieth century many scholars sought to both address and redress the ways in which indigenous people's rights in land had been treated historically by colonisers in Anglophone settler societies. More recently, this work has been criticised by a new generation of legal historians who have sought to delineate more carefully the role that the law actually played in the treatment of aboriginal title in the past. In keeping with the latter approach, this article seeks to recover the manner in which the indigenous people's interests in land were treated in the British colony of South Australia at the time it was founded in the early-to-mid nineteenth century. It emphasises the manner in which the colonisers, the South Australian Colonisation Commission, rather than the British Colonial Office, deployed a range of legal arguments, especially in the context of political negotiations between these two parties. It concludes that the imperial government's treatment of indigenous interests in land was primarily determined by its perception of the relationships of power on the ground between the colonial state, the settlers and the Aboriginal people rather than by its application of any particular legal principle or norm.     

The Law and the Desert: Alternative Methods of Delivering Justice

This article considers the way in which the Federal Court of Australia has adapted to the native title jurisdiction. Here we see how common law approaches to law and procedure challenge, and are challenged by, the culture of indigenous peoples and customary law. It conveys the risk of cultural violence in a balancing of legal and cultural norms and shows how access to justice debates reach beyond debates about funding and advice into more fundamental issues about legal process and the nature of substantive law. The Court's approach to facilitating access to justice goes deeper than essential procedural changes. Its approach suggests a cultural change within the Court.     

Facial recognition technology,democracy and human rights

On 4 July 2023, the Third Section of the European Court of Human Rights (ECtHR) delivered the first judgment on the compatibility of facial recognition technology with human rights in Glukhin v. Russia. The case concerned the use of facial recognition technology (FRT) against Mr Glukhin following his solo demonstration in the Moscow underground. The Court unanimously found a violation of Article 8 (right to respect for private life) and Article 10 (freedom of expression) of the European Convention of Human Rights (ECHR). Regarding FRT, the Court concluded that the use of highly intrusive technology is incompatible with the ideals and values of a democratic society governed by the rule of law. This case note analyses the judgment and shows its relevance in the current regulatory debate on Artificial Intelligence (AI) systems in Europe. Notwithstanding the importance of this decision, we argue that the Court has left crucial questions unanswered.     

The People's Law versus Judge Judy Justice: Two Models of Law in American Reality-Based Courtroom TV

This essay examines the popular American daytime courtroom programs Judge Judy and People's Court and comparatively analyzes two distinct models of law and justice developed in these shows. Using the techniques of qualitative media analysis, I argue that Judge Judy represents a shift in the way popular culture imagines the role of law in the lives of ordinary people. This shift accords with neoliberal notions of governance and individual self-responsibility for protection against risk. Conversely, People's Court represents an older, liberal-legal model of law that emphasizes individual rights, public participation in the court process, and due process. By demonstrating the supersession of Judge Judy justice over that of People's Court , I argue that this shift in the way law is imagined in American popular culture signals wider shifts in American and indeed international attitudes toward the law in our everyday lives.     

Constitutional law

Recent decisions of New Zealand courts illustrate that domestic proceedings may not be effective to recognise indigenous property rights, nor to address grievances that stem from breaches of customary indigenous rights. One possibility for Māori to have their rights enforced is to consider using international law. Gains have been made in international law with regard to indigenous rights; one noteworthy decision is Mayagna (sumo) Awas-Tingni Community v The Republic of Nicaragua. In this case, a universal and generic property right was extended consistently with emerging indigenous rights to include an indigenous right to customary land tenure. This paper considers whether the International Covenant on Civil and Political Rights can carry a property right for indigenous peoples in New Zealand.     

Legal Typologies and Topologies: The Construction of Indigenous Alterity and Its Spatialization Within the Colombian Constitutional Court

This article examines the different legal articulations between indigenous typologies and topologies, that is, the relationship between someone classified as an indigenous subject, a grantee of minority rights, and the spatial arrangements such as reservations or ancestral territories considered necessary for indigenous “cultural survival.” I analyze how the jurisprudence of the Colombian Constitutional Court manifests and rests on the diverse combinations of these two factors. The typology/topology binary characterizes the manner in which these legal discourses portray indigeneity and culture. This binary also offers insight into a broad range of issues, including the access that indigenous peoples have to minority rights, the use of customary law, and the spatial delimitations that frame indigenous legal jurisdictions. Some of the complexities that arise from this binary are: the conceptualization of indigenous places as habitats, the idea of culture as a list of traits, and the concept of “degrees” of indigeneity that determine these peoples' access to minority rights.     

A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

Rhythms of Law: Aboriginal Jurisprudence and the Anthropocene

On 1 December 2019, over one hundred Aboriginal nations performed ancestral and creation dances in synchrony across the Australian continent. One of the communities that danced was the Anaiwan nation from the north-eastern region of New South Wales, Australia. Since 2014 I have been working with Anaiwan people in a collaborative activist research project, creating and maintaining an Aboriginal community garden on the fringes of my hometown of Armidale as a site for land reclamation and decolonising, multispecies research. The community garden is adjacent to the site of the old East Armidale Aboriginal Reserve, where over one hundred dispossessed Aboriginal people were forced to live on the municipal town garbage depot in the mid-twentieth century. This paper positions both the Nation Dance 2019 movement, and the Armidale Aboriginal Community Garden, as rhythmic events that activate Aboriginal Law and sovereignty that is held enduring in the land but that has been buried alive by the settler-colonial state. Focusing on the tensions between deep Indigenous ancestral temporality and colonial territoriality, I argue that the emergence of the Anthropocene reveals a dangerous dissonance between the rhythms of Aboriginal Law patterned through present-day Australian environments and the grid-based structures of colonial governance imposed upon them.

     

Adverse Possession and Article 1 of the European Convention

In the post-human rights era the question has arisen on several occasions as to whether the automatic and arbitrary termination of the registered owner’s title through the common law and statutory principles governing adverse possession of land is contrary to the Article 1, Protocol 1 of the European Convention. The matter fell to be decided in J.A. Pye (Oxford) Ltd v United Kingdom ([2005] 3 EGLR 1) where the European Court of Human Rights held that the automatic termination of a registered owners title after 12 years possession was indeed a violation of Article 1, Protocol 1. More recently, the decision of the European Court has been overturned by the Grand Chamber of the European Court of Human Rights where the Grand Chamber has held that a squatters’ right to another persons land are not disproportionate (J. A. Pye (Oxford) Ltd and Another v United Kingdom, The Times, October 1st 2007). This short article examines the decision of the Grand Chamber.

Are Domestic Violence Courts working for indigenous peoples?

It is well established that the disproportionate imprisonment rates for indigenous peoples surpass that of non‐indigenous peoples. What is troubling is the alarming statistic that indicates that the rate of apprehension, prosecution and recidivism of indigenous women surpasses that of not only non‐indigenous peoples but also male indigenous peoples. This article proposes a court setting for domestic violence that incorporates therapeutic jurisprudence as an appropriate vehicle for the recognition of an indigenous law system as the answer to this problem. The model proposed comprises two components; a specialized Domestic Violence Court underpinned by the doctrine of therapeutic jurisprudence and the implementation of an indigenous legal system such as tikanga Maori.     

“A Very Eden of the Innate Rights of Man”? A Marxist Look at the European Union Treaties and Case Law

In this paper I approach the European Union Treaties (Rome and Maastricht) and the European Court of Justice's jurisprudence from a Marxist standpoint. I argue that the treaties and case law of the European Union (EU) revolve around the rights of things (commodities), rather than of people. People primarily gain rights within the EU by demonstrating that they embody exchange value and are therefore personified commodities; people are not accorded rights merely for being human. In essence, the treaties and case law have enshrined Marx's notion of commodity fetishism, which Marx asserted to be a social mystification, into transparent law. Focusing on the grand scheme of the treaties' jurisdiction in this manner also illuminates the role of the court as it struggles to balance the demands of capital's self-valori-zation with fundamental human rights. I then consider the consequences of this balancing act for the EU integration process. I argue that this phenome'non as a whole also carries implications for EU civil society and for notions of legal equality among persons.     

An Improved Protection for the (Mentally Ill) Trans Parent: A Queer Reading of AP,Garçon and Nicot v France

The European Court of Human Rights has been deciding cases concerning LGBT rights since the early 1980s. Its case law on trans rights has changed drastically over time, imposing upon the states of the Council of Europe certain minimum standards regarding the legal recognition of gender identity. In its recent judgment of April 2017 the Court laid down a new rule to be adopted by domestic legislation; namely, that the legal recognition of gender transition cannot be made conditional upon pursuing medical or surgical procedures which have (or are likely to have) sterilising effects. This article analyses the judgment from a critical perspective grounded in queer theory, noting both the positive and the negative elements of the Court's decision.     

试论权利的逻辑构成的合理性

在我国法学界,关于权利的逻辑构成的研究是随着权利研究和权利实践的发展而发生和发展的.首先,概括了自己关于权利的逻辑构成的观点,即权利由主体、利益、行为和正当性四要件构成,继而指出这一观点合理性的基础并进行了论证.