In 2018, the Art Gallery of Ontario retitled a painting by Emily Carr which contained an offensive word. Controversy ensued, with some arguing that unsanctioned changes to a work’s title infringe upon artists’ moral and free speech rights. Others argued that such a change serves to whitewash legacies of racism and cultural genocide. In this paper, I show that these concerns are unfounded. The first concern is not supported by law or the history of our titling practices; and the (...) second concern misses the mark by ignoring the gallery’s substantial efforts to avoid just such an outcome. Picking up on a suggestion from Loretta Todd, I argue that we can use Aboriginal Title as a model for thinking about the harms perpetuated by cultural appropriation, and the practices we should adopt to mitigate them. (shrink)

According to the Supreme Court of Canada, Aboriginal title is a property right, albeit of a distinctive kind. Most significantly, the right is subject to an inherent limit: title lands cannot be used in a way that deprives present and future generations of the right to use the land. Aboriginal title is also encumbered by a restraint on alienation, and has its source in Aboriginal legal systems that predate and survive the assertion of Crown (...) sovereignty. In this paper, we argue that these features of Aboriginal title are not burdensome judicial innovations on a property right, but are instead the essential contours of a sovereign right. That is, the Court’s own description of Aboriginal title does not comport with sound theoretical understandings of a property right. Aboriginal title is much more akin to a right of sovereignty—the right to make laws about the use of a territory. Aboriginal title is the right of law-making jurisdiction over the title lands. The existing literature, while edging towards the view that Aboriginal title is a sovereign right, has lacked the unifying theoretical basis needed to decisively dispatch the Court’s property paradigm. In particular, all extant accounts find the inherent limit inexplicable. The account in this article theorizes and explains the inherent limit, as well as all of the sui generis elements of Aboriginal title, and shows their interconnectedness. Our view additionally answers a number of questions that the Court’s property paradigm does not, including: (1) what laws primarily govern title lands; (2) who has standing to question whether any particular use of title land violates the inherent limit; (3) what is the status of private land interests that overlap with Aboriginal title lands; and (4) how should the doctrine of Aboriginal title be updated in light of jurisprudential developments emphasizing that Indigenous peoples never ceded their sovereignty? (shrink)

Aboriginal Australians have traditionally enjoyed little protection from the law. The matter of land has been at the heart of white settler/Aboriginal relations since the nation was first founded. It is only recently that recognition has been given to the land rights of Australian indigenous people. This recognition was finally made at the property law level in 1992 through the High Court decision in Mabo v. Queensland (n. 2) ([1992] 175 CLR 1). The 1993 High Court decision in (...) The Wik Peoples v. Queensland ([1996] 71 ALJR 173) reinforced that recognition. It did so through the principle that pastoral lessees' and native title holders' rights might co‐exist except that, in the event of any inconsistency, the pastoralists' rights were to prevail, provided pastoral activity was being pursued. The most recent legal change is the parliamentary revision of the Native Title Act so that the Wik co‐existence principle was put to rest, mainly through permitting the State governments to upgrade pastoral holdings to a form of freehold, thus immunising them from native title claims, and minimising the payment of compensation. In this paper we argue that the country must consider what has been lost in this about‐turn from the recognition of native title to land in Mabo. We argue that the nation must consider the emphases in the Mabo judgments upon the significance of international law and the need for the common law not to be locked into a racist past. From that point, we contend for the need to recognise not only native title to land but what lies beyond that: indigenous political and human rights. (shrink)

John Kinsella is an important literary witness to the acknowledgement of native title in Australia, and Indigenous rights more generally. His writings also bear witness to continuing forces of resistance to those rights in Australian society. This paper traces Kinsella’s engagement with the Mabo case, the 1992 legal decision that recognised native title as part of Australian law, and rejected the fiction that Australia was terra nullius at the time of British colonisation. Focusing on “Graphology: Canto 5” and (...) other texts, it argues that Kinsella presents a sustained reflection on the implications and the limits of this decision, in law and in wider cultural understandings and practices, through poetic allusions, paratexts and personal commentary. His writing since the mid-1990s reveals an acute awareness of how imported concepts of property and law are concealed within Western poetic traditions such as pastoral. To counter the effects of this ideology, Kinsella interpolates and appropriates terms from the discourse of property law, juxtaposing them against other ways of understanding and living in the land. In several collections, but especially in Jam Tree Gully, he seeks to develop an ethically reflective account of ownership of land taken from others, critiquing the dominant idea of property and articulating an alternative way of living in the land based on co-existence. The rights of the dispossessed traditional owners are central to a new mode of “writing the land.”. (shrink)

Firstly I would like to acknowledge the Traditional Owners whose land we are meeting on today. I acknowledge that I stand before you on the shoulders of Indigenous Peoples globally, past and present that have been marginalised, had their knowledge exploited, and generally had their inherent native title rights ripped off for the financial and health benefit of others.

In this paper, I argue that the Hindmarsh and Wik cases stand as crucial case studies that evidence the ongoing production of terra nullius within contemporary Australian contexts. They bring into focus the critical importance the signifiers of property, capitalist ‘productivity’ and legality within the settler-colonial state. Alongside notions of ‘civility,’ discourses surrounding ‘economic productivity’ and ‘equality before the law’ are consistently mobilised in these cases to assert white sovereignty. In contradistinction to the discourses that construct Indigenous people’s relation to (...) land as a singular and affective ‘affinity,’ media, political and legal texts script white Australian land uses such as farming and mining as ‘productive’ and necessary for economic prosperity. They are posited with ‘monetary’ output and juridical standing in order to produce the narrative that the continent was lawfully ‘settled’ by ‘illustrious’ white Australians. Moreover, these signifiers ramify within colonial law. Following these cases, the state amended the Aboriginal and Torres Straight Islander Heritage Protection Act 1984 and the Native Title Act 1993 respectively. They ensured the material construction of the Hindmarsh Island Bridge and the revocation of specific Indigenous land rights in order to sustain the settler-colonial state’s claims to sovereignty. (shrink)

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 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. (shrink)

The West has created categories of property, including intellectual property, which divides peoples and things according to the same colonizing discourses of possessive individualism that historically disentitled and disenfranchised Native peoples in North America. These categories are often presented as one or both of neutral and natural, and often racialized. The commodification and removal of land from people’s social relations which inform Western valuations of cultural value and human beings living in communities represents only one particular, partial way of categorizing (...) the world. Legal and cultural manifestations of authorship, culture, and property are contingent upon Enlightenment and Romantic notions built upon a colonial foundation. I will argue that the law rips apart what First Nations peoples view as integrally and relationally joined, but traditional Western understandings of culture, identity, and property are provoked, challenged, and undermined by the concept of Aboriginal Title in a fashion that is both necessary and long overdue. (shrink)

In this paper the author focuses on Australian land management and in particular on the environmental management issues that could have been prompted by the High Court recognition in 1996 (in Wik Peoples v. The State of Queensland) that native title to land and pastoral leaseholdings can co‐exist. Drawing on themes of self‐determination and co‐existence, the paper looks at more specific topics such as aboriginal title to land—what has been called land rights or native title in (...) Australia—and some implications of that for land, sea and resource management. Central to this analysis are competing theories of Aboriginal land management and links between Aboriginal traditional knowledge and conservation of species. These are illustrated through the marine mammal, the dugong. The Australian debates lead to the Canadian debates and then to Scandinavia and the role of the Sami people in protection and management of the Arctic region. Issues of indigenous self determination inevitably provide an overall theme to these discussions. As a matter of global concern, the paper asks, but does not decide, whether indigenous peoples may manage fragile eco‐systems more effectively than outsiders. It maintains that what is important in this context is a broader question. This concerns how culturally inclusive land and resource management can emerge from recognition of indigenous land and human rights and how comparative developments can provide crucial cross‐jurisdictional information for future developments and opportunities in the interests of environmental conservation. (shrink)

Can you describe your research area and where Brisbane sits in relation to your native title research? My main research area is the region surrounding Brisbane, the capital city of the State of Queensland. I particularly concentrate on the region within about 100 kilometres of the city, but at times I document individuals that may have come from 200 or 300 kilometres away, if these people had some sort of connection to Aboriginal families that lived closer to Brisbane.

This chapter contains section titled: Harm, Offence, and Profound Offence Examples of Offensive Cultural Appropriation The Problem and the Key to its Solution Social Value and Offensive Art Freedom of Expression The Sacred and the Offensive Time and Place Restrictions Toleration of Offensive Art Reasonable and Unreasonable Offence.

Political theorists have begun to re-examine claims by indigenous peoples to lands which were expropriated in the course of sixteenth-eighteenth century European expansionism. In Australia, these issues have captured public attention as they emerged in two central High Court cases: Mabo (1992) and Wik (1996), which recognize pre-existing common law rights of native title held by indigenous people prior to European contact and, in some cases, continue to be held to the present day. The theoretical significance of the two (...) Australian cases is examined and the links drawn out between the current debate about Aboriginal land rights in Australia and the wider philosophical debate about indigenous land rights, property rights, and indigenous justice as characterized by Jeremy Waldron and James Tully. Justice towards indigenous groups requires substantial acknowledgement and recognition of the values and institutions of the relevant indigenous group; yet, these values and institutions may not readily fall under the framework of existing state structures. Attempts to redress injustice towards indigenous groups which do not question the justice of existing state institutions will therefore prove to be inadequate responses to indigenous peoples' demands for substantive justice. (shrink)

It should be clear that Lyell's scientific contemporaries would hardly have agreed with Robert Munro's remark that Antiquity of Man created a full-fledged discipline. Only later historians have judged the work a synthesis; those closer to the discoveries and events saw it as a compilation — perhaps a “capital compilation,”95 but a compilation none the less. Its heterogeneity made it difficult to judge as a unity, and most reviewers, like Forbes, concentrated on the first part of Lyell's trilogy. The chapters (...) on glaciation were admired by Lyell's friends but had relatively little appeal to more general readers. His discussion of the species question hedged far too much to please those who accepted the cogency of Darwin's evidence and arguments. This last section of the book blatantly lacks originality or commitment and certainly has no claim to classical status in anthropology.We are left, then, with the first twelve chapters, for it was this portion that dictated the book's title and that amassed the available evidence favoring the antiquity of the human species. Did it do anything more than marshall the evidence that others had discovered? I think not. Lyell could write with style and verve. Principles of Geology is a remarkably readable book. But Antiquity is the work of a geologist, not of a systematic student of man. Despite its occasional touches of power, it never captures the freshness and immediacy of Lubbock's Pre-historic Times nor the theoretical brilliance of E. B. Tylor's Researches into the Early History of Mankind (1865).96 Antiquity utilizes little of the comparative method whereby Lyell's contemporaries used data from modern “savagery” to elaborate the possible social functions of the prehistoric remains being uncovered. It contains little social theory and has virtually no integrated framework. Even the first twelve chapters do not really hang together. As Hooker, commenting to Darwin on Lubbock's review, sadly wrote: “Lubbock in [the] N[atural] H[istory] Review, had in a note called attention to Lyell's ... ‘doing injustice’ to Prestwich & Falconer. I modified this expression ‘injustice’ in Lubbock's paper (which was friendly and apologetic). I am deeply sorry for it, but what can one do? I do think Lyell's first XII chapters a complete mess.”97 In another letter to Darwin, Hooker described this first portion of Antiquity as “confused and confusing.”98Part of the problem, of course, lay in the subject's novelty for Lyell and for most of his contemporaries. At a deeper level, however, I believe that the book accurately reflects Lyell's uncertainties about Darwin's work and its implications for man.99 Leonard Wilson's edition of Lyell's Scientific Journals provides a unique insight into Lyell's mind during the years just before he began to write Antiquity.100 Preoccupied with the human implications of evolutionary biology, Lyell was not clear how many of those implications were compatible with his deep convictions about the dignity of man's place in the cosmos. With a certain naiveté, Lyell complained in 1873 that many of his readers had failed to see the “natural connections” among the three portions of Antiquity.101 Connections could indeed be drawn between man's antiquity and his evolutionary origins; Lyell's private Scientific Journals movingly demonstrate that he was well aware of this fact. But he never fully made the connections in his published writings. Antiquity of Man is more appropriately seen as the last gasp of the heroic period in British geology than as the opening salvo in a new, post-Darwinian anthropological synthesis. Between the founding of the Geological Society of London in 1807 and the middle of the nineteenth century, geology was recognized as one of the most exciting and innovative scientific fields in Britain.102 Lyell himself had contributed much to that drama, and by the 1860's he was a public figure of venerable proportions. More then any other man he represented a geology that had extended the boundaries of process, time, and life. The fundamental achievements of Lyell and his colleagues had been assimilated into the wider Victorian consciousness, yet the earlier public debates about “genesis and geology” had left untouched in its essentials the concept of Man as a moral, responsible, created being.103Lyell never abandoned this view of his own species, and in 1863 it was a completely responsible creature which, under the weight of empirical evidence, Lyell admitted had lived on earth far longer than had previously been thought. Certainly this more generous allowance for human existence was constitutive to what Burrow calls the evolutionary social theory of midcentury Britain.104 Unlike Lyell, the younger representatives of this anthropology quietly accepted both man's antiquity and his aboriginal animality. Herbert Spencer's Principles of Psychology (1855), as well as the other volumes of his grand Synthetic Philosophy, presented as part of the cosmic process the development of human from prehuman beings.105 Tylor's discussion of what in his Researches (1865) he called the “gesture-language” presupposed the gradual and de novo origin of language in early human populations.106 Lubbock's young and polished mind was untroubled by the human implications of Darwin's work, and he cast his Prehistoric Times into such a perfect mold that it and its companionpiece (On the Origin of Civilization, 1870) went through seven editions each between 1865 and World War I, with their original theoretical structures intact. In a way that Lyell could not grasp, Lubbock was intrigued by questions concerning the origins of moral and religious beliefs and did not flinch at the thought of an amoral, atheistic creature as an ancestor.107 Indeed, as the German naturalist Carl Vogt pointed out in his Lectures on Man, translated into English the year after Antiquity, both Darwin's theories and the primitive flint knives of the Stone Age bore witness to a time beyond that imaginable from the condition of the lowest present-day “savage”:From such a low condition [little better than anthropomorphous apes], compared to which that of the so-called savages of the old and new world is a refined civilisation, has the human species gradually extricated itself, in a bitter struggle for existence, which it was well able to maintain, by being gifted with a larger amount of brain and intelligence than that possessed by the surrounding animal world.108The easy integration of biological and social themes was perhaps the distinguishing hallmark of Victorian anthropology of the 1850's and 1860's. After his fashion, Lyell got both themes into Antiquity, but he carefully separated them with a seven-chapter wall of glacial ice. Lyell's anthropology was not that of a thoroughgoing evolutionist like Lubbock, Tylor, or Spencer. For Lyell prehistoric man was not a product of biological evolution. Rude and superstitious he may have been, but he possessed ritual and a belief in a future state, and thus deserved “the epithet of ‘noble,’ which Dryden gave to what he seems to have pictured to himself as the primitive condition of our race: as Nature first made man/when wild in woods the noble savage ran.”109As a systematic argument, Lyell's book was at best a significant failure. As a popularization, it was a success — largely because of the personal stature of its author and the particular moment of its appearance. It helped establish the fact of man's antiquity with a wider Victorian audience, in itself no mean achievement. But Lyell was unable to exploit the fuller implications of his material in the service of a secular science of man. Ironically, he exploited only his colleagues' discoveries. Though the aging Lyell, with failing eyesight but unfailing mental powers, can still be seen as a man of considerable importance, his Antiquity belongs to the carefully circumscribed world of British geology rather than to the less disciplined world of Victorian anthropology. (shrink)

Then newly elected Labor Prime Minister, Kevin Rudd, made a historic statement of “Sorry” for past injustices to Australian Indigenous peoples at the opening of the 2008 federal parliament. In the long-standing absence of a constitutional ‘foundational principle’ to shape positive federal initiatives in this context, there has been speculation that the emphatic Sorry Statement may presage formal constitutional recognition. The debate is long overdue in a nation that only overturned the legal fiction of terra nullius and recognised native (...) class='Hi'>title to lan with the High Court’s decision in Mabo in 1992. This article explores the implications of the Sorry Statement in the context of reparations for the generations removed from their families under assimilation policies (known since the Bringing Them Home Inquiry as the Stolen Generations). We draw out the utility of recent human rights statutes—such as the Human Rights Act 2004 (ACT)—as a mechanism for facilitating justice, including compensation for past wrongs. Our primary concern here is whether existing legal processes in Australia hold further capacity to provide reparation for Australian Indigenous peoples or whether their potential in that regard is already exhausted. We compare common law and statutory developments in other international jurisdictions, such as Canada, as an indication of what can be achieved by the law to facilitate better legal, economic and social outcomes for Indigenous peoples. The year 2008 also saw Canadian Prime Minister Stephen Harper express his apology to residential school victims in the Canadian Parliament, providing thematic and symbolic echoes across these two former colonies, which, despite remaining under the British monarchy, both forge their own path into the future, while confronting their own unique colonial past. We suggest that the momentum provided by the recent public apology and statement of “Sorry” by the newly elected Australian Prime Minister must not be lost. This symbolic utterance as a first act of the 2008 parliamentary year stood in stark contrast to the long-standing recalcitrance of the former Prime Minister John Howard on the matter of a formal apology. Rather than a return to a law enforcement-inspired “three strikes and you’re out” approach, Australia stands poised for an overdue constitutional and human rights-inspired “three ‘sorries’ and you’re in”. (shrink)

Law's Indigenous Ethics examines the revitalization of Indigenous peoples' relationship to their own laws and, in so doing, attempts to enrich Canadian constitutional law more generally. Organized around the seven Anishinaabe grandmother and grandfather teachings of love, truth, bravery, humility, wisdom, honesty, and respect, this book explores ethics in relation to Aboriginal issues including title, treaties, legal education, and residential schools. With characteristic depth and sensitivity, John Borrows brings insights drawn from philosophy, law, and political science to bear (...) on some of the most pressing issues that arise in contemplating the interaction between Canadian state law and Indigenous legal traditions. In the course of a wide-ranging but accessible inquiry, he discusses such topics as Indigenous agency, self-determination, legal pluralism, and power. In its use of Anishinaabe stories and methodologies drawn from the emerging field of Indigenous studies, Law's Indigenous Ethics makes a significant contribution to scholarly debate and is an essential resource for readers seeking a deeper understanding of Indigenous rights, societies, and cultures. (shrink)

This chapter contains sections titled: Introduction Tradition and Modernity: Culture, Works and Others Record Collection and Salvage Paradigms Preserving Indigenous ‘Music’: Rights and Responsibilities The Harms of Appropriation Information Society Rights‐Based Arguments for Restitution and Limited Properties Repatriation and Recollection Conclusion Acknowledgments References.

This chapter contains sections titled: Legal Interventions First Nations Remains as Protected by First Nations Heritage and Jurisprudence Search for Professor Ermine's ‘Ethical Lodge’ Conclusion References.

This chapter contains sections titled: Note.

The right of Australian Indigenous groups to own traditional lands has been a contentious issue in the recent history of Australia. Indeed, Aborigines and Torres Strait Islanders did not consider themselves as full citizens in the country they had inhabited for millennia until the late 1960s, and then only after a long campaign and a national referendum (1967) in favour of changes to the Australian Constitution to remove restrictions on the services available to Indigenous Australians. The concept of terra nullius, (...) misapplied to Australia, was strong in the popular imagination among the descendants of settlers or recent migrants and was not definitively put to rest until the Mabo decision (1992), which also established a firm precedent for the recognition of native title.This path to equality was fraught and made lengthy by the fact that the worldviews of the Indigenous Australians (i.e. Aborigines and Torres Strait Islanders) and the European (mainly British and Irish) settlers were so different, at least at a superficial level, this being the level at which prejudice is typically manifested. One area where this fact is particularly evident is in the area of the conceptualisation of property and especially the notion of land “ownership” and “use”.In this paper, we will focus on these terms, examining the linguistic evidence of some of the Australian languages spoken traditionally by Indigenous Australians as one means (the only one in many cases) of gaining an insight into their worldview, comparing it with that underlying the English language.We will show that the conceptualisations manifested in the two languages are contrasting but not irreconcilable, and indeed the ability of both groups of speakers (or their descendants in the case of many endangered Australian languages) to reach agreement and come to develop an understanding of the other’s perspective is reason for celebration for all Australians. (shrink)

Encountering Aborigines: A Case Study: Anthropology and the Australian Aboriginal details the concerns in contemporary anthropological research of aboriginal Australians.

Prior to European influence, predation by Native Americans was the major factor limiting the numbers and distribution of ungulates in the Intermountain West. This hypothesis is based on analyses of (1) the efficiency of Native American predation, including cooperative hunting, use of dogs, food storage, use of nonungulate foods, and hunting methods; (2) optimal-foraging studies; (3) tribal territory boundary zones as prey reservoirs; (4) species ratios, and sex and age of aboriginal ungulate kills; (5) impact of European diseases on (...) aboriginal populations; and (6) synergism between aboriginal and carnivore predation. Native Americans had no effective conservation practices, and the manner in which they harvested ungulates was the exact opposite of any predicted conservation strategy. Native Americans acted in ways that maximized their individual fitness regardless of the impact on the environment. For humans, conservation is seldom an evolutionarily stable strategy. By limiting ungulate numbers and purposefully modifying the vegetation with fire, Native Americans structured entire plant and animal communities. Because ecosystems with native peoples are entirely different than those lacking aboriginal populations, a “hands-off” or “natural regulation” approach by today’s land managers will not duplicate the ecological conditions under which those ecosystems developed. The modern concept of wilderness as areas without human influence is a myth. North America was not a “wilderness” waiting to be discovered, instead it was home to tens of millions of aboriginal peoples before European-introduced diseases decimated their numbers. (shrink)

In this article I critique Charles Kay’s aboriginal overkill hypothesis, which states that Native Americans numbered 100 million or more in precolumbian North America, extensively humanized the landscape, and suppressed wildlife numbers, thus allowing wildlife browse to proliferate. By examining Kay’s source use and pertinent information, I find that he makes four kinds of significant mistakes: exaggerations, failure to provide necessary data, errors of omission, and errors of logic. Through examples I illustrate that Kay’s errors compromise his hypothesis. Kay (...) uses Yellowstone National Park as his primary example of such a humanized area; in contrast, I suggest it is a relatively pristine area. (shrink)

Zooarchaeological evidence has often been called on to help researchers determine prehistoric relative abundances of elk (Cervus elaphus) in the Greater Yellowstone ecosystem. Some interpret that evidence as indicating elk were abundant; others interpret it as indicating elk were rare. Wildlife biologist Charles Kay argues that prehistoric faunal remains recovered from archaeological sites support his contention that aboriginal hunters depleted elk populations throughout the Intermountain West, including the Yellowstone area. To support his contention Kay cites differences between modern and (...) prehistoric relative abundances of artiodactyls, age and sex demographics of ungulates in the prehistoric record indicating selective predation of prime-age females, and a high degree of fragmentation of artiodactyl bones indicating humans were under nutritional stress. Kay’s data on taxonomic abundances are time and space averaged and thus mask much variation in elk abundances. When these data are not lumped they suggest that elk were at some times, in some places, as abundant as they are today. Data on the age-sex demography of artiodactyl prey are ambiguous or contradict Kay’s predictions. Bone fragmentation data are variously nonexistent or ambiguous. The zooarchaeological implications of Kay’s aboriginal overkill hypothesis have not yet undergone rigorous testing. (shrink)

Dynamic Consent is both a model and a specific web-based tool that enables clear, granular communication and recording of participant consent choices over time. The DC model enables individuals to know and to decide how personal research information is being used and provides a way in which to exercise legal rights provided in privacy and data protection law. The DC tool is flexible and responsive, enabling legal and ethical requirements in research data sharing to be met and for online health (...) information to be maintained. DC has been used in rare diseases and genomics, to enable people to control and express their preferences regarding their own data. However, DC has never been explored in relationship to historical collections of bioscientific and genetic heritage or to contexts involving Aboriginal and Torres Strait Islander people.In response to the growing interest by First Peoples throughout Australia in genetic and genomic research, and the increasing number of invitations from researchers to participate in community health and wellbeing projects, this article examines the legal and ethical attributes and challenges of DC in these contexts. It also explores opportunities for including First Peoples' cultural perspectives, governance, and leadership as a method for defining DC on cultural terms that engage best practice research and data analysis as well as respect for meaningful and longitudinal individual and family participation. (shrink)

Contemporary bioethics recognizes the importance of the culture in shaping ethical issues, yet in practice, a process for ethical analysis and decision making is rarely adjusted to the culture and ethnicity of involved parties. This is of a particular concern in a health care system that is caring for a growing Aboriginal population. We raise the possibility of constructing a bioethics grounded in traditional Aboriginal knowledge. As an example of an element of traditional knowledge that contains strong ethical (...) guidance, we present the story of the Gifts of the Seven Grandfathers. We note a resemblance of this Ojibway teaching to virtue ethics in European traditions, but we suggest that there are also important differences in how these two traditions are currently presented. We hope that further engagement with a variety of indigenous moral teachings and traditions could improve health care involving Aboriginal patients and communities, and enrich the discipline of bioethics. (shrink)

Democratic deliberation is credited with a variety of virtues, including its possible usefulness in resolving, or at least ameliorating, inter‐cultural conflicts. This paper questions this claim. First, it overlooks that the facts and principles involved in these conflicts generally prove contestable and that such contestation is likely to be greater the less homogenous societies are. Second, it neglects that many, if not most, citizens have neither the time nor the inclination to acquire the conceptual and factual knowledge needed to try (...) and overcome these differences. As a result, the more inclusive and popular deliberation becomes, the less suitable it may be for overcoming cross cultural disagreements. Indeed, it has the potential to exacerbate rather than narrow the differences between majorities and minorities. These conclusions are drawn from an empirical review of a Canadian debate about aboriginal rights that followed a controversial Supreme Court of Canada decision and comparing the character of deliberation in three contexts: the legal community, the print media and legislative bodies. (shrink)

Prior to European influence, predation by Native Americans was the major factor limiting the numbers and distribution of ungulates in the Intermountain West. This hypothesis is based on analyses of (1) the efficiency of Native American predation, including cooperative hunting, use of dogs, food storage, use of nonungulate foods, and hunting methods; (2) optimal-foraging studies; (3) tribal territory boundary zones as prey reservoirs; (4) species ratios, and sex and age of aboriginal ungulate kills; (5) impact of European diseases on (...) aboriginal populations; and (6) synergism between aboriginal and carnivore predation. Native Americans had no effective conservation practices, and the manner in which they harvested ungulates was the exact opposite of any predicted conservation strategy. Native Americans acted in ways that maximized their individual fitness regardless of the impact on the environment. For humans, conservation is seldom an evolutionarily stable strategy. By limiting ungulate numbers and purposefully modifying the vegetation with fire, Native Americans structured entire plant and animal communities. Because ecosystems with native peoples are entirely different than those lacking aboriginal populations, a “hands-off” or “natural regulation” approach by today’s land managers will not duplicate the ecological conditions under which those ecosystems developed. The modern concept of wilderness as areas without human influence is a myth. North America was not a “wilderness” waiting to be discovered, instead it was home to tens of millions of aboriginal peoples before European-introduced diseases decimated their numbers. (shrink)

During the last forty years, the Aboriginal peoples of the Americas, of the British Commonwealth, and of other countries colonized by Europeans over the last five hundred years have demanded that their forms of property and government be recognized in international law and in the constitutional law of their countries. This broad movement of 250 million Aboriginal people has involved court cases, parliamentary politics, constitutional amendments, the United Nations, the International Court of Justice, the development of an international (...) law of Aboriginal peoples, and countless nonviolent and violent actions in defense of Aboriginal systems of property and cultures. The Aboriginal peoples of New Zealand, Canada, and the United States have been at the forefront of the movement, and it is in these countries that the greatest legal recognition has been achieved. (shrink)

The second edition of Aboriginal and Torres Strait Islander Education: An Introduction for the Teaching Profession prepares students for the unique environment they will face when teaching Aboriginal and Torres Strait Islander students at early childhood, primary and secondary levels. This book enables future teachers to understand Aboriginal and Torres Strait Islander education within a social, cultural and historical context and uses compelling stories and practical strategies to empower both student and teacher. Updated with the Australian Curriculum (...) in mind, this is a unique textbook written by highly regarded Aboriginal and Torres Strait Islander academics. Each chapter opens with a powerful anecdote from the author, connecting the classroom to real-world issues. This updated edition has also been expanded to include information on fostering the unique talents of Aboriginal and Torres Strait Islander children and young people and allows the reader to reflect on classroom practices throughout. (shrink)

It is noteworthy that much of recent liberal scholarship aimed at empowering aboriginal peoples, and supporting their land rights, has often unwittingly embraced the conservative Lockean‐Nozickian tradition rather than the tradition of left‐leaning thinkers. Many of the supporters of aboriginal land rights tend to view property rights as contingently determined historical entitlements which are established independently of the state’s authority, thereby creating structures which morally bind the authority of the state. This, in fact, also represents the view of (...) the conservative supporters of untrammelled capitalism. Secondly, there is often little discussion of the bundle of rights which are derived from these acts of original acquisition. This may lead one to the assumption that these supporters of aboriginal land rights agree with the conservative view that all the recognised components of modern liberal ownership, from the right to use, to the right to income, are acquired in the initial events associated with historical entitlement. It is my argument in this paper that basing aboriginal land claims solely on customary historical entitlement results in too close an alignment with a conservative ideology which has been used to support unrestrained capitalism. (shrink)

McGovern, Kevin This article explores statements from the National Health and Medical Research Council (NHMRC) about health research involving Aboriginal and Torres Strait Islander peoples.

Jones, Kate Aboriginal people who live with the effects of extreme poverty face high barriers to a quality of life that other Australians enjoy. Aboriginal people have poor health that is directly linked to unmet housing needs, absent or structurally impaired kitchen, bathroom and laundry facilities, malnutrition, unemployment, and poor education retention.

During the last forty years, the Aboriginal peoples of the Americas, of the British Commonwealth, and of other countries colonized by Europeans over the last five hundred years have demanded that their forms of property and government be recognized in international law and in the constitutional law of their countries. This broad movement of 250 million Aboriginal people has involved court cases, parliamentary politics, constitutional amendments, the United Nations, the International Court of Justice, the development of an international (...) law of Aboriginal peoples, and countless nonviolent and violent actions in defense of Aboriginal systems of property and cultures. The Aboriginal peoples of New Zealand, Canada, and the United States have been at the forefront of the movement, and it is in these countries that the greatest legal recognition has been achieved. (shrink)

Pilcher, Carmel Review(s) of: Aboriginal church paintings: Reflecting on our faith, by Eugene Stockton Editor with Terence O'Donnell (Lawson: Blue Mountain Education and Research Trust Publishers, 2010), pp.45, $20.00.

Threatened aboriginal cultures provide valuable criteria for fruitful criticism of the dominant Western cultural paradigm and perceptual model, which many take for granted as the inevitable path for humankind to follow. However, this Western model has proven itself to be imprecise and limiting. It obscures fundamental aspects of human nature, such as the mythical, religious dimension, and communication with the Cosmos. Modern technology, high-speed communication and mass media affect our ability to perceive reality and respond to it. Non-Western worldviews (...) could help us to regain meaningful communication with Nature and to learn new ways of perceiving our world. (shrink)

The confusion that persists over Aboriginal claim in North America calls for close examination. The paper begins by sorting out various versions of ‘ Aboriginal right’and some of the main factors that govern its use. Confusion is analysed as the result of conflating different frames of reference which determine different sets of expectations by Aboriginal and government representatives.To appreciate the significance of this conflation, it is helpful if not necessary to view the move to use the concept (...) ‘ Aboriginal right’as a strategic rather than a legally substantive one. Understanding the move in this way helps to explain why it is that definitions remain elusive. The effect of using the concept has indeed been to enable Aboriginals finally and effectively to table their claim. However, the strategy has its cost. Using the language of the courts places Aboriginal negotiators at a disadvantage, since that language is ineluctably tied to European social and legal sensibilities that militate against understanding Aboriginal claim.If, in the end, we understand that the move to use the language of the courts has been conciliatory, we can better recognise the nature of Aboriginal claim. We can begin to understand that it involves a complex web of responsibilities and commitments, most of which have either been forgotten or perverted to suit government agendas. We can begin to see that it has to do with restoring a relationship of mutual respect and protection. (shrink)

A criticism of some research involving Aboriginal people is that it is not equitable in its design or application, further disadvantaging the poor and marginalized. In Australia, much research has been done on Aboriginal people, but Aboriginal people themselves have benefited little, adding to distrust between Aboriginal and non-Aboriginal people over many years. Is it possible to take “scientific” research practices and transform them into research that can be done with a community rather than on (...) a community? How can research findings benefit Aboriginal people? This chapter shares our study of Aboriginal people’s stories of diabetes care. It is a collaborative story told by four Aboriginal Health Workers and two non-Aboriginal researchers which focuses on methodology rather than findings. We share aspects of our research which we propose values Aboriginal people and invites participation and reciprocity at design, data collection, and research translation stages. We discuss tensions which occur between the “scientific way” and the “culturally appropriate way” and describe how we resolved this. Imposing research designs and practices on Aboriginal people and communities without consideration that each community is unique has the potential to cause further harm and disempowerment. Valuing an Aboriginal way of knowing influenced all aspects of our study design and procedures. We would like to inspire others to challenge methodological norms to develop research methods with their community to allow the unique voice of their community to be heard and for this to facilitate pragmatic change leading to meaningful improvements in health. (shrink)

The belief held by Aboriginal people that their art is ultimately related to their identity, and to the continued existence of their culture, has made the protection of indigenous peoples' art a pressing matter in many postcolonial countries. The issue has prompted calls for stronger copyright legislation to protect Aboriginal art. Although this claim is not particular to Australian Aboriginal people, the Australian experience clearly illustrates this debate. In this work, Elizabeth Burns Coleman analyses art from an (...) Australian Aboriginal community to interpret Aboriginal claims about the relationship between their art, identity and culture, and how the art should be protected in law. Through her study of Yolngu art, Coleman finds Aboriginal claims to be substantially true. This is an issue equally relevant to North American debates about the appropriation of indigenous art, and the book additionally engages with this literature. (shrink)

Most research on aboriginal mind and mental health has sought to apply or confirm preexisting European-derived theories among aboriginal people. Culture has been underappreciate. An understanding of uniquely aboriginal models for mind and mental health might lead to more effective and robust interventions. To address this issue, a core group of elders from five separate regions of North America was developed to help determine how aboriginal people conceived of mind, self, and identity before European contact. The (...) process utilized for this study is iterative and involves discussions of teachings, traditional stories, and elder's comments on conclusions drawn. The elders endorsed a relational theory of mind in which mind exists between people as a product of the stories told and created within and by that relationship. Mind is distinguished from consciousness which is without language and exists within the individual as awareness. Language immediately results in an "out there" orientation in which two or more individuals generate stories about their experiences. The community is the basic unit of study for mind and mental health, and mental "illness" is not distinguished from physical "illness," but rather all are seen as a continuum of suffering and pain. What emerged from this research is that North American theories of mind are more closely related to Daoist and Shinto theories than to the logical positivism which drives most of North America's conventional psychology and psychiatry. Within European traditions, however, the philosophy of Mikhail Bakhtin with his emphasis on a dialogical self coupled with system theory comes closest to resembling North American aboriginal theories. This model explains why ceremony and ritual, community interventions, talking circles, and family therapy are more compatible with aboriginal thought than conventional North American biomedicine and psychology. (shrink)