Dorsett on Metropolitan Theorizing: Legal Frameworks, Protectorates, and Models for Maori Governance, 1837-1838

Shaunnagh Dorsett, University of Technology Sydney, Faculty of Law, has published Metropolitan Theorising: Legal Frameworks, Protectorates and Models for Maori Governance 1837-1838 at 3 Law & History 1 (2016). Here is the abstract.

This article considers the little-known 1838 proposal by Robert Torrens for the establishment of a native government in New Zealand. In so doing, it joins recent literature which seeks to move away from doctrinal or juridical legal history through an exploration of the ways in which legal concepts were used in the first part of the nineteenth century by colonial actors as tools, deployed for political advantage, rather than in strict reliance on them as a particular legal form. In so doing, however, this article also contends that although legal concepts were often malleable and could be, and were, deployed in this way, those who relied on them were also bound by Imperial constitutional principles which, while often broad and ambiguous, nevertheless acted as limits on the deployment of these concepts.

Download the article from SSRN at the link. 

Bakht and Collins on Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada

Natasha Bakht and Lynda Margaret Collins, both of the University of Ottawa, Common Law Section, have published The Earth is Our Mother: Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada as Ottawa Faculty of Law Working Paper No. 2016-24. Here is the abstract.

For centuries, the Canadian state engaged in systematic religious persecution of Aboriginal peoples through legal prohibitions, coercive residential schooling and the dispossession and destruction of sacred sites. Though the Canadian government has abandoned the criminalization of Aboriginal religious practices, and is beginning to come to grips with the devastating legacy of residential schools, it continues to permit the destruction and desecration of Aboriginal sacred sites. Sacred sites play a crucial role in most Aboriginal cosmologies and communities; they are as necessary to Aboriginal religions as human-made places of worship are to other religious traditions. The ongoing case of Ktunaxa Nation v BC represents the first opportunity for the Supreme Court of Canada to consider whether the destruction of an Aboriginal sacred site constitutes a violation of freedom of religion under section 2(a) of the Charter. Building on the ground-breaking work of John Borrows and others, we will argue that Aboriginal spiritual traditions have a home in this provision and merit a level of protection equal to that enjoyed by other faith groups in Canada. In general, section 2(a) will be infringed by non-trivial state (or state-sponsored) interference with an Aboriginal sacred site. Moreover, the approval of commercial or industrial development on an Aboriginal sacred site without consent and compensation will generally be unjustifiable under section 1.

Download the article from SSRN at the link.

van Rijswijk on the "Abused Aboriginal Child" In the Australian Legal Imaginary

Honni van Rijswijk, University of Technology Sydney, Faculty of Law, is publishing Towards a Literary Jurisprudence of Harm: Re-Writing the Aboriginal Child in Law's Imaginary of Violence in the Canadian Journal of Women and the Law. Here is the abstract.

The figure of the “abused Aboriginal child” haunts the Australian legal imaginary in ways that are both poignant and dangerous. This article examines the role this figure has played in assertions of Australian law’s violent jurisdictions, in the past and in the present. I examine the narratives that support law’s claims to authority and jurisdiction over Aboriginal communities, arguing that practices of representation — narrative, figuration, and what we might more widely think of as “law’s imaginary” — need to be interrogated and challenged, as an important means of intervening in law’s violent jurisdictions. We need to engage in what I term here a “literary jurisprudence,” in order to intervene in law’s claims to authority and jurisdiction that are based on narratives of purported harm to the Aboriginal child. “Haunting” is used to think through the significance of the legal imagination in two ways: the ways in which narratives in legal and state archives affect culture and politics; and also the role of law’s own imaginary and the ways in which its figures and narratives affect judicial outcomes, perhaps in ways that function beyond logic. To say that law is haunted by the figure of the abused Aboriginal child is to point to the affective, political, legal, and imaginative afterlife of narratives and figurations that are part of law, and which are not ended with each case or legislative regime but which, unresolved, are always living on. By way of an example of these practices, I provide a reading of harm in the novels of Alexis Wright, a leading Australian novelist, which I argue together provide an exemplary text that counters state law’s representational practices and claims. What is needed to resist the use of the child figure as the occasion for further violence, I argue, and what this reading provides, can be described as a “counter-imaginary” to law’s. This counter-imaginary re-writes law’s narratives and figures, connects that which law has separated, and makes visible that which law has occluded. In particular, each of Wright’s three novels Plains of Promise (1997), Carpentaria (2006), and The Swan Book (2013) is concerned with the relation of harm to questions of Aboriginal authority. Together, all three of Wright’s novels provide a developed counter-imaginary to law’s continuing assertions of authority over Aboriginal people based on the figure of the “abused Aboriginal child,” from the early twentieth century to the present.

Download the article from SSRN at the link.

Gulick on Literature, Law, and Rhetorical Performance in the Anticolonial Atlantic

Anne W. Gulick, Professor of English, University of South Carolina, has published Literature, Law, and Rhetorical Performance in the Anticolonial Atlantic (The Ohio State University Press, 2016). Here is a description of the book's contents from the publisher's website.

The era of national liberation and decolonization may have come and gone, but postcolonialism remains a largely elusive ideal in the early twenty-first century. In Literature, Law, and Rhetorical Performance in the Anticolonial Atlantic, Anne W. Gulick uncovers a dynamic literary history of African and Caribbean critical engagements with First World law. This transatlantic archive attests to the continuing vitality of anticolonialism as a model for intellectual inquiry and political performance. Gulick argues that experimentation with declarative forms is a vital rhetorical strategy in the anticolonial Atlantic—one through which writers have asked: Who gets to “write” the law, and under what circumstances? Responses to this question take shape across the black Atlantic from Haiti to South Africa, in texts ranging from Haiti’s Declaration of Independence and work by C. L. R. James to South Africa’s Freedom Charter, Aimé Césaire’s poem Notebook of a Return to the Native Land, and Ngűgĩ wa Thiong'o’s A Grain of Wheat. These texts constitute a robust transatlantic tradition of challenging colonial and imperial authority through rhetorical performance. Drawing on the cosmopolitan aspirations and emancipatory energies of the political declaration, this tradition aims to radically reinvent the possibilities for law and political belonging in the postcolonial future.

A Novel of Cree Poetics, Love, and Heritage

Law professor Tracey Lindberg (University of Ottawa, Common Law section) has published her first novel, Birdie, a book that explores the relationships between Cree heritage and law, with HarperCollins Canada.  Read Emily Keeler's discussion of the work here in the National Post.


Tip of the beret to Kate Sutherland (Twitter).

"Oral History" and "Oral Tradition" In Court

Lorraine Weir, University of British Columbia, has published 'Oral Tradition' as Legal Fiction: The Challenge of Dechen Ts'Edilhtan in Tsilhqot'In Nation v. British Columbia in the International Journal for the Semiotics of Law (2015). Here is the abstract.

Often understood as synonymous with “oral history” in Indigenous title and rights cases in Canada, “oral tradition” as theorized by Jan Vansina is complexly imbricated in the European genealogy of “scientific history” and the archival science of Diplomatics with roots in the development of property law and memory from the time of Justinian. Focusing on "Tsilhqot’in Nation v. British Columbia", which resulted in the first declaration of Aboriginal title in Canada, this paper will discuss Tsilhqot’in law (Dechen Ts’edilhtan) in the context of the court’s deployment of Vansina’s theory and its genealogy, and conclude that “oral tradition” functions as a legal fiction enabling the court to remain in the familiar archive of its own historiography while claiming to listen to the Elders.

The full text of the article is not available from SSRN.

Indigenous Peoples and the History of Land Rights

Kaius Tuori, Network for European Studies, has published The Theory and Practice of Indigenous Dispossession in the Late Nineteenth Century: The Saami in the Far North of Europe and the Legal History of Colonialism as Helsinki Legal Studies Research Paper No. 34. Here is the abstract.

The dispossession of indigenous peoples is one of the central issues of the postcolonial world. The purpose of this article is to explore the Saami dispossession in the nineteenth century in the far North of Europe through a comparative approach. By comparing the theory and practice of the Saami dispossession with examples from Oceania, North America and Africa, the article analyses the role of legal and anthropological doctrines in the process of dispossession. Linking the history of colonialism with the idea of progress inherent in Western historical thought, it follows the complex convergence and transfer of ideas of property and indigenous rights that still influence debates on indigenous land rights.

Download the paper from SSRN at the link.

The Royal Proclamation of 1763, the Canadian Constitution, and Aboriginal Rights

Mark Walters, Queen's University Faculty of Law, has published The Aboriginal Charter of Rights: The Royal Proclamation of 1763 and the Constitution of Canada as Queen's University Legal Research Paper No. 2015-003. Here is the abstract.

Since the nineteenth century, the Royal Proclamation of 1763 has been described as the “Charter” of rights for Aboriginal peoples in Canada. In 1982, the Proclamation was explicitly mentioned in the Canadian Charter of Rights and Freedoms. Yet the legal and constitutional status of the Proclamation remains something of a puzzle in Canadian law today. It is celebrated politically as a landmark instrument in the recognition of Aboriginal rights, and yet judges have read the Proclamation narrowly in terms of the rights it protects and the areas within Canada to which it applies. The author considers the evolving legal status of this historic document within Canadian constitutional law, concluding that as a source of positive law it is more or less a dead letter, but as a source of unwritten legal principle that continues to shape the Crown-Aboriginal relationship in Canada, the Proclamation is still very much alive over 250 years after it was issued. 

 Download the paper from SSRN at the link.

Telling Stories

Irene Watson, University of South Australia School of Law, has published First Nations Stories, Grandmother's Law: Too Many Stories Too (sic) Tell. Here is the abstract.

Where to begin? From the beginning, the sisters were running and running away from the man Ngurrunderi: they ran past our country at the edgy of the Coorong, the end of Tangane country, towards a placed called Thangul, the land of the Tanganekald. They are First Nations Peoples and to whom I belong. The sisters ran away from Ngurrunderi who was chasing his 'claimed women', his two wives.

Then Ngurrunderi came along to that same place and he was stopped by our ancestor Paramapari; Ngurrunderi and Paramapari fought right on the beach, where the Coorong lands end. Now this is a place where the old rocks come up out of the sea, the place where the grandmothers sit. Ngurrunderi fought Paramapari because he would not tell Ngurrunderi if he had seen the sisters and what direction they were heading in.

Download the paper from SSRN at the link.

Patriarchial Government and Aboriginal Peoples In Australian Law and Culture

Honni Van Rijswijk, University of Technology Sydney, Faculty of Law, is publishing Archiving the Northern Territory Intervention in Law, and in the Literary Counter-Imaginary in volume 40 of the Australian Feminist Law Journal (2014). Here is the abstract.

This article focuses on a figure archived in contemporary Australian law, a figure who is central to the state’s control of Aboriginal people. This figure, like her counterparts in earlier historical periods, is to be found in legislation and in case law, and in law’s supplementary genres, including welfare and indigenous policy, and Parliamentary second-reading speeches. This figure is the ‘abused Aboriginal child’, and she has been significant to the production of myths of the Australian nation-state, and to the rule of law. She is being used to justify the continued administration of Aboriginal communities, through simultaneously both the continuing suspension of the rule of law, and the violent instrumentalisation of law. This article examines the archive of the Northern Territory Intervention and subsequent Stronger Futures legislation, investigating the ways in which law’s violence masquerades as law’s care. I seek to explore the ways in which reading law as an archive opens up the possibility of a counter-archival practice that interrupts and disorients law’s claim to violent jurisdiction over Aboriginal people. The emphasis here is on reading law as archive — on taking up a position of readerly responsibility with respect to the practices of representation that constitute law’s archive, and on constructing counter-archival practices and imaginaries that resist and re-situate law’s authority. By way of example, I examine Alexis Wright’s most recent novel, The Swan Book (2013), which is read as an exemplary counter-archival text that interrupts law’s archival practices and claims.

Download the article from SSRN at the link.