Indigenous Peoples Flashcards
(8 cards)
B: Self-determination (IP)
Definition: freedom to pursue economic, political and cultural development without external influence
UN Working Group on Indigenous Peoples in 1994
- direct and accessible avenue, substantial and valuable say in the legal processes
Article 1 of ICCPR and ICESCR (1966) and UNDRIP (2007)
ICH: East Timor in Portugal v Australia (1995)
- one of the most essential principles
Canada: partial sacrifice of sovereignty
Nunavut Land Claims Agreement 1999
- autonomous control, socioeconomic development
- Nunavut Planning Commission drafting new land-use agreement
- “protect more land and indigenous rights” - Nunatsiaq News 2021
COVID: Indigenous Services Act 2019: improve indigenous peoples’ access to health care services
- Self-determination: articulating and enforcing rules on who can enter communities
- Indigenous Services Canada (National organisation) worked with indigenous leaders to review vaccine plans, stockpile supplies, increase communication with First Nation peoples
- $1 billion, “Canada Healthy Communities Initiative”
C: Land Rights of Indigenous People
Brazil 2021: Bill PL 490/2007 end indigenous peoples right to be consulted on the use of their lands
- government potentially unrestricted access to natural resources traditionally owned by IP
- Brazilian Federal Constitution and article 26 of the UNDRIP
“Brazil’s indigenous rights hinge on one tribe’s legal battle” - Xokleng tribe, Aljazeera, 2021
- Ruling will affect hundreds of indigenous land claims
- a defeat in court for the Xokleng tribe could set a precedent for the dramatic rollback of Indigenous rights, which far-right president Bolsonaro advocates for
- state sovereignty allows them to ignore these international documents - acting in the interests of the government and not the rights of IP
Mabo v Queensland (1992) HCA and Native Title Act 1993 - overturn the doctrine of terra nullius and recognise indigenous land rights
Kemppi v Adani (2019) FCA - ruled in favour of mining company trying to build a mine on indigenous land, restricting access to their ancestral homeland and impacting their customs, laws and spiritual beliefs
Queensland gov extinguished 1,385 hectares of native title over indigenous land
- no public announcement - free prior and informed consent
- forcibly removed by police, traditional ceremonies
“Indigenous people no longer have the right to say no” - The Conversation, 2019
D: Cultural Rights of Indigenous People
Ainu Culture Promotion Act 1997
- did not legally recognise the Ainu people
- limited to promotion of language and cultural assets (dance, music, handicrafts)
Ainu Policy Promotion Act 2019
- legally recognised for the first time
- obligates the government to facilitate understanding of Ainu culture
aligning with the principles of UNDRIP
- 1 billion yen
- no native title, land or hunting rights
2020 Girjas case in Sweden
- granted exclusive access to issue hunting and fishing rights in their management area without state approval
- over a decade of campaigning and legal cases
- article 26 of UNDRIP: indigenous people have the right to manage their traditional land
- article 8.1 of the Indigenous and Tribal Peoples Convention 1989
- despite Sweden not having ratified it, the Supreme Court still cited it in their ratio decidendi, as it outlines the need to consider the customs and rights of indigenous peoples when applying national rules
E: Healthcare
Native Americans, America:
Historically have been subject to poorer health and less access to health care services
- more likely to get obesity, AIDS or diabetes
- for funding to match that of federal prisoners, funding would have to double (National Congress of Native Americans analysis, 2019)
Indian Health Services: works to try and improve healthcare conditions for native Americans
- only 1 in 3 are ensured to benefit from the scheme
- “Native Americans: a crisis in health equity” - (American Bar, 2019)
- severely underfunded –> lacks amenities to provide basic aid
COVID: Coronavirus Aid, Relief and Economic Security Act (CARES Act) 2020: provides 2 trillion US dollars to businesses, agencies and organisations affected by the pandemic
- 8 billion for native tribes
- Yellen v Confederation of the Chehalis Reservation 2021: Supreme Court ruled Alaska Native corporations were entitled to the fund
BRAZIL COVID:
Over 81,000 deaths, 54,000 indigenous peoples infected
- “Brazil’s Bolsonaro charged with crimes against humanity for his coronavirus neglect” - National Public Radio, 2020
- Complaints made to the ICC for responding to the outbreak with “contempt, neglect and denial”
August 2020: Supreme Federal Court recognised the government’s “failure to deal with the effects of the pandemic on indigenous communities” - THe Lancet, 2020
- gained an injunction ordering the government to better protect the health of indigenous peoples (sanitary barriers, covid plan, indigenous health care sub-system)
- met with inaction
F: Recognition of Indigenous Languages
Article 31 and 34 of the UNDRIP: right of indigenous peoples to protect, maintain and grow their cultural expressions
NEW ZEALAND: (good)
Maori Language Act 1987:
- Passed after the Waitangi Tribunal found the Maori language to be a “taonga” or treasure
- Recognised the Maori language as an official Indigenous language and created a right to use it in court proceedings
Maori Language Act 2016:
- Promote collaboration between the Crown and Maori people to support the revitalisation of the language
- Created a new independent statutory authority Te Matawai - provide leadership for Maori people and create and implement strategies to promote the language (increase number of people speaking it)
- 2 versions of the act creates - section 12 states if there are any discrepancies, the Maori version will prevail
Cavanagh v Cavanagh 2017 NZHC:
- High Court ruling enabled a 7-year-old to resume learning the Maori language after she was banned by a Family Court judge
AUSTRALIA: (decent)
Indigenous Languages Act 2017 (NSW):
- First legislation in Australia to recognise the significance of First Languages
- Seeks to promote, nurture and grow Aboriginal languages across NSW
- Indigenous Languages Trust to resource local language activists
- 5 Year Strategic Plan to guide investments and activities in language revival across NSW
National Government:
- Under the Aboriginal Languages and Arts grant program, the Federal government invests over 20 million annually to promote Aboriginal culture
- in 2019, 10 million of this was spent on preserving and celebrating Indigenous languages
LIMITED: does not have federal protection through legislation
G: Access to cultural sites
Article 11, 26 and 28 of the UNDRIP: right of indigenous peoples to preserve and grow their connection to their traditionally owned land
AUSTRALIA (bad):
Aboriginal Heritage Act 1972 (WA)
- Allows for companies to apply to the government to move, alter or destroy cultural sites without consultation with the traditional land owners
- “How our laws allow for the destruction of indigenous sacred sites” - ABC, 2020
- Federal Parliament inquiry 2020: found the law “outdated, unfit for purpose and in urgent need of replacement”
- From 2017-2021, the mining industry made 144 applications to the government to “impact” indigenous sites, with only 1 being rejected - SMH 2021
Aboriginal Cultural Heritage Bill 2020
- Would give Aboriginal stakeholders the right to appeal but minister still gets the final say
CANADA (bad):
Bill C-15: meant to enshrine and uphold the rights outlined in the UNDRIP
Coastal Gas Link Pipeline: plan is to build a 670 km through Inuit land, specifically the Wet’su’wet’en people
- UN Elimination of Racial Discrimiantion: issued a 2 page statement urging Canada to cancel the construction of the pipeline until it had gained the free, prior and informed consent of the Inuit people
Jan 2020 protests and Wet’su’wet’en hereditary chiefs issues formal requests to the UN to monitor the activity of the pipeline
Built more than 140 km in 2020 - Indigenous World Report
A: Non-legal responses
General:
Cultural Survival
- Raise awareness, Indigenous Rights Radio
- advocacy. media, funds indigenous projects (nearly 3 million)
Minority Rights Group International
Canada:
Pauktuutit
- works with national services such as Indigenous Services Canada
Inuit Circumpolar Council
Sweden:
Sami Council
Brazil:
Amazon Watch
Articulation of Indigenous Peoples Brazil
Australia: Reconciliation Australia - Awareness, Reconciliation Week Arts Law Centre of Australia - prominent NGO in protecting indigenous art e.g. "Fake Art Harms Culture" campaign
America:
Native American Rights Fund
L: Commercialisation of Indigenous art
World Intellectual Property Organisation
- Specialised UN agency that promotes the protection of intellectual property, set up under the WIPO Convention 1967
- Provides training for Indigenous people and communities e.g. Creative Heritage Project
AUSTRALIA (good)
Milpurrurru v Indofurn 1994FCA
- landmark case regarding the protection of indigenous intellectual property
ACCC v Birubri Art Pty Ltd 2019 FCA
- Birubi fined $2.3 million for misleading customers to believe they were buying genuine indigenous art
- “liable to cause harm and offence” to indigenous people
ABC 2020: 80% of the keepsakes/souvenirs supposedly representing indigenous art is fake
Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2020
- prohibit the supply in trade and commerce of an object with an indigenous cultural expression unless it is made in accordance with an arrangement with the relevant Indigenous person or community
2020 - the Australia Council for the Arts released the Protocol for using First Nations Cultural and Intellectual Property
- provides specific clauses for traditional art and cultural expression to ensure consent is acquired and royalties shared
Arts Law Centre of Australia:
- prominent NGO in promoting the protection of indigenous art
- “Fake Art Harms Culture” campaign
Navajo Nation v Urban Outfitters 2016 USDC
- Urban Outfitters misused the Navajo name - trademark infringement of the US Indian Arts and Crafts Act 1990
- Reached a confidential settlement which resolved all claims related to the case –> failed to set a precedent
