Friday, 23 March 2012

Indigenous Origins

As I am working on research for an article on indigenous rights, I am struck yet again by how much indigenous peoples have impacted upon and shaped modern legal doctrine. This is not to say that the law has taken on board an indigenous point of view in law, or even indigenous forms of law (with at least one notable exception , the Family Group Conference of the Maori peoples) but that law has struggled to get to grips with the existence of indigenous peoples. The struggle that law had (and has) is evident in a great many areas of law today.

Take international law. It is almost axiomatic amongst scholars on indigenous issues and international law scholars to note that modern international law began with the legal doctrines developed to deal with the question of indigenous peoples in the New World when European powers wanted to assert land claims. (see for example an article by Antony Anghie ).

Or take English common law on company law. Who began trading in the New World? What ventures were there? Trading companies—not a company in the modern sense of the word in law perhaps—but again from the interaction of trading companies, European powers and indigenous peoples came the growth of modern company law. (see for example my favourite book on Company Law--"Critical Company Law".) Or land law—what tortuous legal doctrines were created to deal with land title issues that would work out in favour of the European powers? At the moment I am reading about the Proclamation of 1763 made by King George III, prowling through Blackstone's Commentaries on English law, defeasibility and inalienability doctrines in land rights—all in pursuit of research on a paper on modern day indigenous rights.

It is safe to say that up until very recent times these doctrines did not in general work in favour of indigenous peoples. Hopefully that tide has turned. But in learning about law—how many people know about the origins of legal doctrines that make up modern day law with indigenous peoples as the catalyst?

Now—the Family Group Conference ( see generally for example this book)This is a practice that is now widely used in child welfare in the US, New Zealand and elsewhere. It is adapted from a Maori practice of not only consulting with, but giving decision making powers to the family. In modern child welfare practice, it is used to involve family members in making decisions on placement for a child that might need to be temporarily removed from a parent, and working to use family resources to help the child and parent. It goes beyond consultation. Consultation does not give any powers to make decisions.

At the moment, the Office of High Commissioner on Human Rights, in the UN Human Rights structure, has opened up a “consultation on indigenous peoples' participation in the UN.” It looks to see if among other things processes used to accredit non-governmental organisations can be used to approve the participation of indigenous groups at the UN.

Indigenous peoples might argue they have more in common with states ( sovereignty claims among them) than with NGOs, which have limited international legal personality. This move seems to cabin off indigenous groups as less state like and into a separate and not at all equal status to states in the international community. Cynically, this might be read as a response to limit the effects of the international legal personality provisions of the UN Declaration on the Rights of Indigenous Peoples. Perhaps it is not right to pre-judge the consultation exercise, but in my mind, red flags are raised about what effects this could have on the place and effectiveness of indigenous groups and peoples in the international legal community.

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