Indigenous legal knowledges and radical legal pluralism. The proof of aboriginal title centre for first nations governance. Aboriginal law must sit on top of whitemans law, because. The series was published as a book titled reflections on canadas past. If aboriginal title were not in fact sui generis, traditional. Kimberley pearlshell in aboriginal australia monograph series 4, northern territory museum of arts and. Mar 05, 2016 featuring contributions from renowned scholars, a companion to european union law and international law presents a comprehensive and authoritative collection of essays that addresses all of the most important topics on european union and international law. We might usefully view this as a species of ontological. Supreme court of canada bulletin february 2020 lexology. A companion to european union law and international law. Osgoode hall law school of york university osgoode digital.
Thus, common law precedents should serve as a basis from which to offer a comparative assessment of judicial treatment of aboriginal rights rather. New editions supplied on standing order subscription. Bastarache j noted that an aboriginal right cannot be characterised as a right to a particular resource because to do so would be to treat it as akin to a common law property right o attention must instead be paid to the significance of the resource to the community in question in order to grasp the importance of a resource, the court seeks. Justice bell for example noted that the position of aboriginal australians is sui generis at 74, while gordon j made reference to the deeper truth of mabo no 2 at 289 noting also that aboriginal australians occupy a unique or sui generis position such that they are not aliens at 334. Sui generis the reader wiki, reader view of wikipedia. Aboriginal title has undergone a significant transformation from the colonial era to the present day. In describing all aboriginal rights as sui generis, lambert j. Part of the constitutional law commons, and the indian and aboriginal law commons. Aboriginal title is thus a sui generis conceptone that does not fit int. Henderson takes an interpretative approach in presenting a vision of aboriginal rights from a first nations law and jurisprudence perspective, a perspective that may offer some resolution to the. Role of customary law under sui generis frameworks of.
The integrated circuit topography and plant breeders rights acts are sui generis pieces of legislation since they deal separately with specialized items that may not fall easily under established protective schemes like patents or s. But, it is weaker as a means of protecting property than the common law right of fee simple even though aboriginal title is protected in the constitution. It will keep an eye on the development of this sui generis area of australian law to see how the australian consumer law continues to be used to prevent counterfeit aboriginal art being sold, and the resultant cultural misappropriation from occurring. Sui generis legal knowledge and practice does not have to be about achieving a fixed or comprehensible end point a new body of law that represents aboriginal and non aboriginal legal orders but exists in the desire for an open ended relation between bodies of knowledge and relations between selves. The motto sui generis has been adopted by the akitsiraq law school because it is a sui generis aboriginal title in all of canadian aboriginal law institutes by dint of its title being inuktitut, the aboriginal language of the inuit in the far north of canada. The relationship between treaty interpretation and canadian sovereignty vii.
Traditional knowledge includes types of knowledge about traditional technologies of subsistence e. Younging, greg intellectual property rights, legislated protection, sui generis models and ethical access in the transformation of indigenous traditional knowledge. Aboriginal tenure in the constitution of canada thomson reuters. Scc affirms first nations can sue in quebec for alleged.
This book chapter is brought to you for free and open access by the faculty. The work analyses judicial reconciliation of aboriginal tenure through application of the constitution, expands on the sui generis principle, and offers a vision for the postcolonial legal regime. Native title is sui generis and cannot be readily compartmentalised within the common law. Sui generis is a latin phrase that means of itshishertheir own kind, in a class by itself. Aboriginal rights, reconciliation and respectful relations by dawnis minawaanigogiizhigok kennedy j. Canada in international law at 150 and beyond paper no. The high court described it as sui generis, which means unique. Often, the term figures in calls for a new multilateral treaty. Aboriginal title as a translated right held under english common law 156 aboriginal title as a sui generis right at common law 158 judicial adoption of the sui generis theory 159 modern canadian jurisprudence 165 the marshallbernard decision 166 principles.
Henderson takes an interpretative approach in presenting a vision of aboriginal rights from a first nations law and jurisprudence perspective, a perspective that may offer some resolution to the many intricate issues of interpretation and definition and shows how first nations jurisprudence strengthens the underlying unity of the sui generis. Aboriginal title as a translated right held under english common law 156 aboriginal title as a sui generis right at common law 158 judicial adoption of the sui generis theory 159 modern canadian jurisprudence 165 the marshallbernard decision 166 principles of recognition and reconciliation 168 xxvu. Characterizing aboriginal rights as sui generis reflects the. The motto sui generis has been adopted by the akitsiraq. Aboriginal title and alternative cartographies erasmus law. Integral to a distinctive culture, 1997 constitutional forum 29 38. The metamorphosis of aboriginal title by brian slattery. Characterizing aboriginal rights as sui generis reflects the acknowledgement that these rights derive their meaning and very existence from aboriginal legal and political sources along with the common law.
Sciences, 1994 p alford, to steal a book is an elegant offense. Mar, 2012 sui generis rights and the performance of obligations. In its examination of different aspects of and models for the recognition of indigenous legal orders, this book addresses important issues relating to legal pluralism. As a law text, this article is unique in the australian law landscape and accordingly may be described as sui generis. The cambridge handbook of international and comparative trademark law september 2020. The court used the concept of sui generis to distinguish aboriginal law. Aboriginal law and education the motto sui generis has been adopted by the akitsiraq law school because it is a sui generis aboriginal title in all of canadian aboriginal law institutes by dint of its title being inuktitut, the aboriginal language of the inuit in the far north of canada.
It focuses on how indigenous intellectual property and traditional knowledge should best be ethically, legislatively and legally treated in the public domain and in other public usageand what. Integral to a distinctive culture, 8 constitutional forum 2938 winter 1997. However, once english law came to australia, that law still had to make a policy decision about how aboriginal interests in land were to be treated. Mar 31, 2021 sui generis mental and vital forces were still widely accepted, but an extensive philosophical debate about the significance of the conservation of energy led to a widespread recognition that any such forces would need to be law governed and thus amenable to scientific investigation. The sui generis character of aboriginal title means that its content is neither a facsimile of fee simple ownership in the common law, nor simply reflective of forms of ownership under indigenous legal orders, but must be understood by reference to both perspectives. Rotman the authors trace the development of the use of the term sui generis to describe aboriginal legal rights, noting that this is not in fact a recent phenomenon. The relationship between treaty interpretation and canadian sovereignty this paper investigates how the classical westphalian model of the state has set, and continues to set, the boundaries of aboriginal treaty interpretation.
In colonial times, aboriginal title was governed by principles of recognition based on ancient relations between the crown and indigenous american peoples. It looks at how the supreme court of canada has located and structured sui generis aboriginal orders, the concepts of sui generis citizenship, treaty federalism, and constitutional supremacy as. Sui generis project gutenberg selfpublishing ebooks. The series will be published as a book entitled reflections on canadas past, present and future in international law reflexions sur le passe, le present et lavenir du canada en droit international in spring 2018. Expressions and intellectual property law in the asiapacific region kluwer law international, 2009 341 k akerman and j stanton, riji and jakoli. Sui generis or independent geographical indications. It focuses on how indigenous intellectual property and traditional knowledge should best be ethically, legislatively and legally treated in the public domain and in other public usage and what. Aboriginal law since delgamuukw aurora, ont canada law book.
This distinctive or sui generis body of law is known as the. Research director, native law centre of canada, college of law, university of. With the passage of time, this historical right has evolved into a generative right, governed by principles of reconciliation. Sui generis is a nicely packaged way of stating the obviousthe courts are defining aboriginal title and aboriginal rights on a casebycase basis. Legal pluralism may overlap with both sui generis laws and aboriginal selfgovernment, in the sense of opening up normative canadian intellectual property law to accommodate forms of law that are more suitable to serving the needs of cultures that wish to protect their respective traditional knowledge and cultural property. A 1998 study by the australian government indicated that the australian aboriginal arts and craft industry had an estimated retail sales figure of aud. Aboriginal tenure in the constitution of canada thomson. They explain the doctrine as a balance between common law and aboriginal. The privy council 14 and both the superior courts of canada and australia have recognised the sui generis nature of aboriginal rights.
Aboriginal title is thus a sui generis conceptone that does not fit into. A book, movie, television series, or other artistic creation is called sui generis when it does not fit into standard genre boun. It will be of interest to a wide audience including lawyers and legal academics, teachers, students, policy makers, and members of aboriginal communities. Aboriginal rights, reconciliation and respectful relations. Intellectual property rights, legislated protection, sui. Pdf the story in aboriginal law and aboriginal law in the. Much of the book is a blueprint for the epistemological, ideological and correlative legal shifts that are necessary in order to effect such a reconciliation. Others believe that an intellectual property approach may work, but will require more radical and novel forms of intellectual property law sui generis rights. Introduction to the ngarra law of arnhem land charles.
Sui generis aboriginal rights witiiln the common law. The top court ruled that the innus suit is properly characterized as a nonclassical mixed action that involves a request for court recognition of a sui generis right a declaration of aboriginal title and a personal aspect the performance of various obligations related to failures to respect that right damages in delict and neighbourhood disturbances. O olichan books, 1992 1 at supra note 6 at 156, the. The nature of aboriginal title osgoode digital commons york. Sui generis laws for the protection of lndigenous expressions of culture 7 89 knowledge and artworks. The doctrine of terra nullius provides that a sovereign state can acquire uninhabited land as a new territory, a radical title, through conquest, cession or occupation. The sui generis claim is not prevalent in international law, but it arises often enough to make it a familiar legal concept, certainly not sui generis. Others believe that the intellectual property system uses concepts and terms that are incompatible with traditional cultural concepts, and favors the commercialization of their. United states ofamerica the practice of the british government in american colonies was to enter into treaties with the aboriginal peoples for their. In the veyy early days, the explanation of the disregard of abo1iginal claims and the resulting dispossession and. Since both mining companies are headquartered in montreal, quebec courts have jurisdiction over the personal and the sui generis aspects of the claim pursuant to art.
In this article, the terms yolngu customary law and ngarra law are used interchangeably, and the term polygamy is used to describe polygyny. It is significant that these sacred symbols were made public, because as the high court decision in mabo said, aboriginal proprietary rights in land, that is native title, comes from within aboriginal law, not common law. Bastarache j noted that an aboriginal right cannot be characterised as a right to a particular resource because to do so would be to treat it as akin to a common law property right o attention must instead be paid to the significance of the resource to the community in question in order to grasp the importance of a resource, the court. In the context of canadian aboriginal law, sui generis is a legal term describing the relationship between the government the crown and the. Reconciliation becomes the means through which a meaningful recognition of aboriginal law ought to take place. Aboriginal rights are connected to traditional territory, and form part of a sui generis aboriginal knowledge system which transcends common law notions of property and possession. Pdf the authors trace the development of the use of the term sui generis to describe aboriginal legal rights, noting that this is not in fact a. The recognition of aboriginal rights as sui generis is unique in its basis on a. A governance framework for indigenous ecological knowledge. A sui generis right is a unique one, which it is impossible to fit into any recognized category. Traditional knowledge, indigenous knowledge and local knowledge generally refer to knowledge systems embedded in the cultural traditions of regional, indigenous, or local communities.
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