self-determination

The Integration of Customary Law into the Australian Legal System

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The theme of my address this morning emphasizes the important role that Indigenous people have, to take charge of our own destinies. The maintenance and integration of Aboriginal customary law is an essential part of this.

It cannot be repeated often enough that a legal system must reflect the people it serves if it is to gain their confidence. And Indigenous Australians want greater confidence in the legal system...

Native Nations
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Calma, Tom. The Integration of Customary Law into the Australian Legal System. National Indigenous Legal Conference. New South Wales Bar Association. Sydney, Australia. 2006. Speech. (https://www.humanrights.gov.au/news/speeches/integration-customary-law-a..., accessed August 14, 2015)

Indigenous Peoples’ Good Governance, Human Rights and Self-Determination in the Second Decade of the New Millennium – A Māori Perspective

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Māori Law Review
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This brief paper addresses the nexus between good governance, human rights and Indigenous peoples’ self-determination particularly from Articles 3-6 and 46 of the 2007 UN Declaration on the Rights of Indigenous Peoples. The paper is placed within a Māori good governance context with some broader discussion of the Pacific.

Native Nations
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Joseph, Robert. "Indigenous Peoples’ Good Governance, Human Rights and Self-Determination in the Second Decade of the New Millennium — A Māori Perspective." MāoriLaw Review. December 2014. Article. (http://maorilawreview.co.nz/2014/12/indigenous-peoples-good-governance-h..., accessed July 25, 2023)

Development of a Kaupapa Maori Governance Model from a Literature Review and Key Informant Interviews

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Kaupapa Māori sets the theoretical framework within which ideas and research about governance were explored. This review incorporated both indigenous and non-indigenous governance literature. This set the scene for interviews with six key informants with Māori who are knowledgeable about implementing Kaupapa Māori governance within Māori and Iwi (tribal) organisations. A Kaupapa Māori governance model for Te Puāwai Tapu was then developed.

Governance is written about and theorised within global, national, and local; societal and institutational contexts. There is a tendency to confuse governance with government and to use the two terms interchangeably when government is being discussed (Plumptre & Graham, 1999). However, government is an institution and governance is a process. There are many definitions of governance but fundamentally it is about influence, decision-making and accountability. Louise Frechette (1999), Deputy-Secretary-General of the United Nations, gives the following useful perspective: ‘Governance is the process through which… institutions, businesses and citizens’ groups articulate their interest, exercise their rights and obligations and mediate their differences’.

The role of self-determination is essential to the development of good governance models for indigenous peoples. Self-determination provides indigenous peoples with the opportunity to contemplate the appropriate mix of traditional and contemporary elements. For example, Alfred Taiaiake (1999) argues that the election of Board members should be foregone in favour of traditional decision-making processes. In this contemplation, the Nunavat example demonstrates the importance of the voice of the people. As Reinharz (1988, p.15) argues, ‘…if you want to hear it, you have to go to hear it, in their space, in a safe space…’. Through consultation, governance models can be established to take people into the future, to help heal the past, and to reconnect governing processes with indigenous values, beliefs and aspirations.

Indeed, it might be speculated that the new horizons for ‘western’ models of good governance lie in Indigenous knowledge and practice. This is perhaps best summarised in the following statement from Bradley Young (2002), of the Student Council of the University of Alberta:

The motivation for Aboriginal ‘self-government is (equally) simple: self preservation … Aboriginal governance is the fulfillment of many prophecies which many elders from many different nations share. ...Aboriginal People, will increasingly vacate the old dysfunctional colonial institutions in sway now, replacing them with renewed indigenous governance systems which will revolutionize and save the tired, increasingly ignored, and decaying 'modern' western democratic models of government, as well as their own people(s) from oblivion.

The model of Kaupapa Māori governance proposed in this project is a combination of Kaupapa Māori principles and critical practice Issues identified in the literature review and from key informant interviews. A three-part model reflects the categories of governance essential to a Kaupapa Māori way of being.

Native Nations
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Penehira, Mera, Fiona Cram & Kataraina Pipi, Katoa Ltd. Development of a Kaupapa Māori Governance Model from a Literature Review and Key Informant Interviews. Prepared by Katoa Ltd for Te Puawai Tapu, Wellington. New Zealand. 2003. Paper. (http://www.katoa.net.nz/past-projects/kaupapa-maori-governance, accessed May 26, 2015)

Valuing Tradition: Governance, Cultural Match, and the BC Treaty Process

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Self-governance negotiations are an integral part of British Columbia’s modern day treaty process. At some treaty tables, impasses have resulted from differences on how to include traditional First Nations governance within treaty. Although some First Nations are determined to pursue traditional structures, inflexible negotiation mandates and fundamentally different understandings of good governance have been barriers to achieving this end. Emphasizing the value of culturally matched governance as integral to effective governance and genuine self-determination, this capstone uses a literature review, case studies, and stakeholder interviews to analyse why some First Nations place a priority on traditional governance and what the benefits of these structures are. The capstone analyzes obstacles preventing inclusion of these traditional structures in treaty and identifies opportunities for alleviating the barriers to their adoption. Policy options are identified and evaluated based on a multiple-criteria analysis, and a recommendation is made on next steps for addressing this policy issue.

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Hoffman, Kaitlin S. Valuing Tradition: Governance, Cultural Match, and the BC Treaty Process. School of Public Policy. Simon Fraser University. Burnaby, British Columbia. Canada. April 10, 2014. Master's Thesis. (http://summit.sfu.ca/item/14012, accessed May 23, 2014) 

On Improving Tribal-Corporate Relations In The Mining Sector: A White Paper on Strategies for Both Sides of the Table

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Mining everywhere is inherently controversial. By its very nature, it poses hard economic, environmental, and social tradeoffs. Depending on the nature of the resource and its location, to greater or lesser degrees, the mining process necessarily disturbs environments, alters landscapes, and changes communities. On the other hand, the products that mining can yield, from aluminum to zinc, are valuable because they are useful in meeting peoples’ material needs. It goes without saying that the result of these tradeoffs is often strident conflict in the public and political arenas.

Mining that affects indigenous communities–because they own or govern targeted minerals or because they are culturally, economically and/or environmentally affected by the development of targeted minerals–is especially controversial. Indigenous people have borne a long history of exploitation of their resources without their consent and to their detriment. But times are changing. At least in the Lower 48 United States, tribes increasingly have the legal and institutional capacity to assert rights of local self-government that can make or break a mining project. It is fair to say that, in today’s environment, the tribe that wants to block minerals development on at least its own reservation, if not across its entire traditional territories, most likely can. By the same token, the tribe that wants to develop its mineral resources is hard to stop...

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Harvard Project on American Indian Economic Development. On ImprovIng TrIbal-Corporate Relations In The Mining Sector: A White Paper on Strategies for Both Sides of the Table. Harvard Project on American Indian Economic Development. John F. Kennedy School of Government. Harvard University. Cambridge, Massachusetts. April 2014. Paper. (http://hpaied.org/sites/default/files/documents/miningrelations.pdf, accessed May 26, 2016)

In Defense of Tribal Sovereign Immunity: A Pragmatic Look at the Doctrine as a Tool for Strengthening Tribal Courts

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Although the doctrine of tribal sovereign immunity was recently upheld by the Supreme Court in Michigan v. Bay Mills Indian Community, its existence continues to be attacked as antiquated and leading to unfair results. While most defenses of tribal sovereign immunity focus on how the doctrine is a necessary part of sovereignty or how the doctrine is necessary for financial reasons, the more pragmatic benefits of tribal sovereign immunity have remained largely overlooked. Any desire to take tribal self-determination seriously and to allow Native nations to produce their own robust and capable governing systems means re-examining the role tribal sovereign immunity plays in such efforts.

This article conducts such a re-examination. First, it takes note of the extensive research indicating that strong tribal courts are generally necessary for healthy and resilient Native nations. Second, it looks at the six components that comprise strong tribal courts: (1) accountability; (2) capacity; (3) funding; (4) independence; (5) jurisdiction; and (6) legitimacy. Finally, it argues that the strategic use of tribal sovereign immunity has positive effects on all six components of strong tribal court systems. In essence, tribal sovereign immunity is a valuable tool that Native nations can use to strengthen their own courts, institutions, and nations themselves.

Native Nations
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Seelau, Ryan. "In Defense of Tribal Sovereign Immunity: A Pragmatic Look at the Doctrine as a Tool for Strengthening Tribal Courts." North Dakota Law Review. Vol. 90:121. 2014. Article. (https://commons.und.edu/cgi/viewcontent.cgi?article=1144&context=ndlr, accessed July 21, 2023)

Managing Land, Governing for the Future: Finding the Path Forward for Membertou

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This in-depth, interview-based study was commissioned by Membertou Chief and Council and the Membertou Governance Committee, and funded by the Atlantic Aboriginal Economic Development Integrated Research Program to investigate methods by which Membertou First Nation can further increase its decision-making power over economic development. Membertou has made significant economic strides but increasingly struggles against the limits of Canada's Indian Act, especially in terms of land management. Without a well-understood, reliable, and transactionally efficient land regime, the First Nation cannot achieve its community development goals. In fact, recent experiences with commercial and residential development have underscored the insufficiency of Indian Act protocols and the limits on "work-arounds" Membertou has used to avoid those protocols. A wholly new approach is needed.

Membertou's leadership has made the decision to participate in the Framework Agreement on First Nation Land Management as a means of opting out of the lands-relevant portions of the Indian Act. This project emerges from that decision and addresses the following questions: What more does the nation need to do at the level of band governance to implement the Framework Agreement? What institutional and legal infrastructure is needed to support First Nation-led land management? What might Membertou learn from other First Nations that are managing their own lands (under the Land Management Act or other arrangements such as self-governance agreements, treaty settlements, and comprehensive land claims)? What are the preferences of the Membertou community in terms of land management arrangements?

Native Nations
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Starks, Rachel. "Managing Land, Governing for the Future: Finding the Path Forward for Membertou." The Atlantic Aboriginal Economic Development Integrated Research Program. Dartmouth, Nova Scotia, Canada. September 2013. Case Study. (https://www.cbu.ca/wp-content/uploads/2019/08/FINAL-ManagingLandGoverningfortheFuture-FindingthePathForwardforMembertouMarch2014.pdf, accessed June 7, 2023)

Constitutions Fact Sheet

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The National Centre for First Nations Governance developed this quick reference for Native nations who are discussing constitutions and constitutional reform. 

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National Centre for First Nations Governance. "Constitutions Fact Sheet." National Centre for First Nations Governance. Ottawa, Ontario. Canada. 2013. Paper. (https://fngovernance.org/wp-content/uploads/2020/06/Constitutions_Fact_Sheet.pdf, accessed March 29, 2023)

First Nations Economic Development: The Meadow Lake Tribal Council

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A new approach to economic development is emerging among the First Nations in Canada. This approach emphasizes the creation of profitable businesses competing in the global economy. These businesses are expected to help First Nations achieve their broader objectives that include: (i) greater control of activities on their traditional lands, (ii) self-determination, and (iii) an end to dependency through economic self-sufficiency. Two key elements of the First Nations economic development strategy are: (i) capacity building through education, institution building and the acquisition of land and resources, and (ii) the formation of business alliances among First Nations and with non-First Nation companies. At the same time, and at least in part in response to these two elements of the First Nations' development strategy, a growing number of non-Aboriginal corporations are adopting business alliances with Aboriginal people as a part of their strategy for long-term corporate survival. The economic development activities of the nine First Nations of the Meadow Lake Tribal Council provide an excellent example of this approach to development 'in action '.

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Anderson, Robert B. and Robert M. Bone. "First Nations Economic Development: The Meadow Lake Tribal Council." The Journal of Aboriginal Economic Development. Volume I. No. I. 1999. Paper. (http://iportal.usask.ca/docs/Journal%20of%20Aboriginal%20Economic%20Deve..., accessed May 5, 2023)

Securing Our Futures

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NCAI is releasing a Securing Our Futures report in conjunction with the 2013 State of Indian Nations. This report shows areas where tribes are exercising their sovereignty right now, diversifying their revenue base, and bringing economic success to their nations and surrounding communities. The path to securing our future – from education to food security, climate change to workforce development – is illuminated by the proven success of tribal nations. While the circumstances of each tribal nation are unique, the promising practices contained in the report offer a way forward to secure tribal economies and sustain prosperity for future generations...

Native Nations
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National Congress of American Indians. "Securing Our Futures." National Congress of American Indians. Washington, D.C. February 2013. Report. (https://archive.ncai.org/Securing_Our_Futures_Final.pdf, accessed November 6, 2023)