'Competing narratives' versus 'interest based negotiations' and the bar of evidence (original) (raw)
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Queen's LJ
The elements of proof of title are themselves imbued with an ethnocentrism which serves to ignore Aboriginal systems of land ownership and property transfer. Furthermore, the common law and statutory rules of evidence are at odds with Aboriginal oral historical traditions. The result is the rejection of much of the evidence adduced by plaintiffs in support of title, as illustrated by the decision in Delgamuukw. Our courts, they argue, will be appropriate fora for the just resolution ofAboriginal title claims only when the ethnocentric bent of Canadian law is acknowledged, and then replaced by an approach to fact-finding which starts from a premise of equality.
1994
The elements of proof of title are themselves imbued with an ethnocentrism which serves to ignore Aboriginal systems of land ownership and property transfer. Furthermore, the common law and statutory rules of evidence are at odds with Aboriginal oral historical traditions. The result is the rejection of much of the evidence adduced by plaintiffs in support of title, as illustrated by the decision in Delgamuukw. Our courts, they argue, will be appropriate fora for the just resolution ofAboriginal title claims only when the ethnocentric bent of Canadian law is acknowledged, and then replaced by an approach to fact-finding which starts from a premise of equality.
Claim, culture and effect: Property relations and the native title process
The social effects of native title: Recognition, …, 2007
Since the advent of the Native Title Act 1993 (Cwlth)(NTA), Indigenous Australians have been able to make claims to their traditional lands. Patton (2000: 28) describes Aboriginal or native title as representing 'an attempt to translate indigenous peoples' spiritual and ...
Conduct of Laws: Native Title, Responsibility, and Some Limits of Jurisdictional Thinking
SSRN Electronic Journal, 2013
It is now twenty years since the High Court of Australia designated 'native title' as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2]. Common law jurisprudence, however, continues to struggle to create the appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It struggles, in short, to create an appropriate meeting place of laws. In light of recent attempts to amend the Native Title Act 1993 (Cth), it is timely, then, to return to the first question that is addressed in the meeting of laws in Australia, that of the authorisation of laws and the quality and conduct of the meeting place. Here the meeting of Australian common law and Indigenous law in Australia is tracked in terms of a brief history of common law jurisdictional practice, the jurisprudence of the conduct of lawful relations in and through s 223 of the Native Title Act, and official forms of responsibility for lawful relations.]
2007
Supervisory Committee Maureen Maloney, Q.C., Supervisor and Departmental Member (Dispute Resolution) Dr. Michael Prince, Outside Member (Studies in Policy and Practice) Dr. Avigail Eisenberg, Outside Member (Political Science) Legal decisions on Aboriginal rights and title and treaty negotiations with First Nations in British Columbia (BC) are inextricably linked. While much has been written on the impacts of a small number of such legal decisions, there has been very little research that critically examines how legal decisions on Aboriginal rights and title, in general, influence the way the parties to the BC treaty process conduct treaty negotiations. In-depth interviews with ten First Nations, provincial, and federal chief negotiators/advisers, together with British Columbia Treaty Commission (BCTC) commissioners and senior-level program staff, suggest that legal decisions on Aboriginal rights and title influence the conduct of treaty negotiations in an indirect and serpentine ma...
Deal? Or No Deal? Explaining Comprehensive Land Claims Negotiation Outcomes in Canada
In 1973, the Canadian government created the federal comprehensive land claims process to negotiate modern treaties with Aboriginal peoples in Canada. Despite 35 years of negotiations, many Aboriginal groups have failed to complete modern treaties. This dissertation explains why some Aboriginal groups have been able to complete modern treaties and why some have not. After examining four sets of negotiations in Newfoundland and Labrador and the Yukon Territory, I argue that scholars need to pay greater attention to the institutional framework governing treaty negotiations and to a number of factors relative to the Aboriginal groups. ii Acknowledgements I am grateful to many individuals and organizations for helping me with this dissertation. First, I would like to thank my supervisor, Graham White, as well as my committee members, Grace Skogstad, and Frances Abele who gave generously of their time and expertise. Indeed, one could not have asked for a better committee. In particular, Graham White was extremely helpful throughout my entire time at the University of Toronto and has my deepest respect for his efforts as a scholar, teacher, administrator and supervisor. Second, I would like to thank Peter Russell and Doug McArthur for serving as my internal and external examiners, respectively. Both gave careful readings of the dissertation, which I greatly appreciated. Third, Anthony Sayers, Don Smith, George Breckenridge, Michael Stein, Simone Chambers, and Tom Flanagan were all helpful at different stages of my PhD career.
Native Title and Agreement Making: Focusing on Outcomes for Indigenous Peoples
2003
From an Indigenous perspective the purpose of agreement making is to generate positive outcomes, that is positive effects on the material, cultural, social and political condition of Indigenous people. Yet since the introduction of the Native Title Act 1993 there has been little systematic focus in Australia on outcomes from agreement making or on how positive outcomes for Indigenous people can be maximised.