Indigenous Peoples and the Law

This course examines the relationship between Indigenous Peoples and systems of national, regional and international law. Through in-depth examinination of specific contemporary examples students will grapple with legal issues associated with Indigenous Peoples rights as they relate to mining, land disputes, language, identity, health, and culture. Particular focus will be given to the rights of Inuit from Kalaallit Nunaat / Greenland, which Denmark has recognized as the only Indigenous Peoples within the Danish Realm.

The course also covers pluralist and Indigenous legal systems, as well as contemporary attempts to recognize Indigenous legal precepts in settler colonial systems of law, including rights of nature. Pluralist approaches within settler colonial domestic law will be drawn from Aotearoa New Zealand, Turtle Island / Canada and Australia. In addition, relevant case law from the Inter-American Court of Human Rights and the African Court of Human and Peoples Rights will contour discussions of relevant rights. Central to the course will be the specific rights of Indigenous Peoples elaborated in the negotiation and conclusion of the United Nations Declaration on the Rights of Indigenous Peoples as well as the Indigenous and Tribal Peoples Convention (ILO 169).

The course will draw upon comparative legal approaches, critical perspectives on international law including TWAIL (third world approaches to international law), post and decolonial legal studies, theories of legal pluralism, Indigenous legal studies, among others. The course will draw from a diversity of legal texts, highlighting especially Indigenous legal scholars.

Key questions and themes the course will cover include:

• What is the definition of “Indigenous Peoples” in law?
• What are “indigenous rights” and how are they enforced? Including how the UN Declaration on the Rights of Indigenous Peoples is operationalised and incorporated into domestic legal regimes.
• What is the notion of Free Prior and Informed Consent and how should it and does it manifest in business conduct?
• What are the strengths and weaknesses of the international human rights regime as it relates to Indigenous Peoples?
• How are non-Western and marginalized epistemologies gaining legal recognition? Including the incorporation of Indigenous legal precepts and rights into settler constitutional regimes, with specific case studies.
• What is legal pluralism and is any system of plurality compliant with the rule of law?
• How have rights of and to nature have been recognized in domestic legal regimes and to what effect?
• Contemporary interpretations of extant rights such as those which support the indigenous right to self-determination and the human right to a healthy environment
• Future legal directions