The people of the Tsilhqot’in Nation have, and continue to, govern their lands according to dechen ts'edilhtan, the laws of their ancestors. Through their history, their control over their lands and waters have faced opposition from outside forces which include neighbouring nations and settler governments into the colonial present. Over time, their laws have remained strong and deeply internalized, and yet have been exercised to maintain their contested control up to the present. One profound moment when Tsilhqot’in laws became apparent to outsiders was when laws relating to access to the nen (Tsilhqot’in land) effectively proved the Tsilhqot’in Nation’s claim of Aboriginal title over a portion of their territory at Canadian law in 2014. This dissertation provides a deep analysis of dechen ts'edilhtan as it applies specifically to use of and access to surface water in the Tsilhqot’in nen. The purpose is two-fold. First, to continue the ongoing work of understanding and articulating Tsilhqot’in law. Second, to facilitate the identification of possible methods through which ancestral laws may engage Canadian legal and political systems for the benefit of Tsilhqot’in people, and indeed, all Canadians. / Graduate / 2023-01-17

Magister Legum - LLM / Globalisation has enabled the different countries of the world to be connected to each other irrespective of geographical constraints or time zones. Such connectivity has resulted in more than just an economic exchange, but also a cultural exchange in most instances.1 Due to the advancement of globalisation a new manner of life has commenced, one which has both positive changes and challenges. Globalisation has led and continues to increase the economic growth of countries and in so doing, the poverty levels of various countries has reduced.2 Despite the reduction of poverty levels, it is proposed that globalisation poses a challenge in the culmination of cultural homogeneity.3 In our rapidly developing world, there is a flow of ideas, capital, commodities, knowledge, information and beliefs.

The thesis explores the interactions of the common law with indigenous law in three jurisdictions: Australia, New Zealand and Canada. Case law involving family, criminal and land law is examined in detail, to establish how the common law has interacted with indigenous law. Two aspects of common law interactions are explored: judicial approaches to the recognition of indigenous law; and, judicial perceptions about the relationship between the common law and indigenous law. Courts faced with indigenous law have taken one of three approaches to recognising it. These are respectively referred to in the thesis as the non-recognition approach, the accommodation approach and the recognition approach. With regard to judicial perceptions about the relationship between the common law and indigenous law, the case law reveals seven different perceptions. They are: no relationship; mere acknowledgement; separate but capable of recognition; adjustment; assimilation/domination; assimilation/search for partnership; and absorption. Where a relationship is acknowledged, although perceptions may vary, essentially they can be placed in one of three categories. Courts may regard the relationship as one between two separate bodies of law, with points of intersection. They may regard it as one of convergence, perhaps even partial integration, between separate legal traditions. Finally, they may regard indigenous law as having been absorbed into the dominant legal system. Courts with this latter perception regard indigenous law as analogous to English local customs. Having identified more than one approach to the recognition of indigenous law, consideration is given to the circumstances in which the approaches are used, exploring differences arising out of the subject area in question and the jurisdiction in which the case is considered. The thesis also demonstrates that some correlation exists between the judicial approach to recognition of indigenous law and judicial perceptions about the relationship of the common law with indigenous law, though this correlation cannot be demonstrated in all cases. Lastly, the capacity of the common law to recognise changes to indigenous law is considered, where the case law reveals that both the judicial approach to recognition of indigenous law, and judicial perceptions about the relationship between the common law and indigenous law have a bearing on the capacity of the courts to recognise change. The thesis demonstrates that both the judicial approach to recognition of indigenous law and judicial perceptions about the relationship between the common law and indigenous law affect common law interactions with indigenous law.

This dissertation will demonstrate that, by considering Treaty One (1871) from the perspective of the Anishinabe, especially Anishinabe laws or Anishinabe inaakonigwein and normative expectations, one can obtain a better understanding of why there is a discrepancy in interpretations of the treaty. The research draws on practices of treaty making prior to Treaty One and shows that the parties relied extensively on Anishinabe protocols and procedural laws in the context of the Treaty One negotiations. In addition, kinship relationships, the obligations derived from them, and a sense of the sacred obligations involved in treaty-making, informed the agreement that was made between the parties. In particular, the kinship between a mother and child was invoked by the parties; the Crown negotiators relying on it primarily to secure good terms with the Anishinabe and the Anishinabe advocating for a commitment to ensuring a good life while respecting and preserving their autonomy. The exploration of the historical records of the negotiations and the oral history surrounding the treaty help draw out the differing and sometimes competing understandings of the treaty, many of which continue to this day, and in particular in relation to the effect of the treaty agreement on legal relationships to land. They help illuminate questions regarding the interpretation of the Treaty, including what would be necessary in order to implement it in accordance with its signatories’ understandings. / Graduate / 0398, 0740

This thesis attempts to illuminate and problematize the marriage of capitalism and colonialism that results in the widespread appropriation of Indigenous expressions of culture, and in particular, totem poles. This project complicates our understanding of totem poles as they have been presented in the marketplace and restores some of the intricate legal meaning to these incredible works. First, I examine Canadian intellectual property law and colonial policies of cultural erasure like the potlatch ban. Next, I explore the use of rights discourse, or legalism, as a potential route for solutions to this issue. I then conduct case studies of three totem poles. I examine one totem pole as a commodity, one functioning as a piece of art and someone's livelihood, and one as part of a Tlingit legal tradition. This last totem, as a materially appropriated object, provides an opportunity to explore the treatment of totem poles in proper context and also functions as a suggested solution to Indigenous art appropriation more broadly. My intervention on this last totem reframes these issues in a non-Western legal cannon to attempt to address these difficult legal questions. My examination of these three totems serves to destabilize our understanding of totem poles sold in the marketplace, and to broaden our understanding of totems as manifestations of Indigenous laws. / Graduate

This dissertation is shaped by a concern with how the doctrine of Aboriginal and treaty rights in Canada can develop to meaningfully recognize Indigenous self-determination. A number of inherited concepts (e.g. law, sovereignty, state, jurisdiction, and territory) have constrained legal and political imaginations and supported a legal apparatus that confines Indigenous peoples to a subordinate place in the constitutional order. Drawing on scholarship on common law Aboriginal rights, legal pluralism, legal geography, legal history, and political theory, this work develops a novel legal and theoretical critique by historicizing the concepts courts have relied on in mediating Crown-Indigenous relations and demonstrating that the retrospective application of these concepts, which supports the subordination of Indigenous peoples in the present day, is empirically suspect. Using Canada’s Maritime provinces as an example, this is accomplished by describing in detail the legal pluralism that characterized the 17th and 18th centuries in the region, particularly how social and legal spaces were constituted by a plurality of legal and normative orders. By analyzing the territorial reach and subject matters of eight distinct legal systems that were operative in the region during this period, this work demonstrates that absolute jurisdiction through fixed territorial boundaries has never been an accurate way to describe Crown, or later state, authority in the region. Rather, the region’s legal spaces were constituted by a plurality of overlapping, entangled, and hybrid legalities that structured territorial jurisdiction in discrete and unique ways. This challenges Aboriginal rights doctrine that too often relies on unstated presuppositions about the effect of Crown assertions of sovereignty in retroactively applying conceptions of territorial jurisdiction that are tailored to meet the requirements of the contemporary nation-state and have the effect of minimizing Indigenous claims and supporting the unilateral authority of the state. The final chapter applies this legal-historical analysis to the present-day through an analysis of recent treaty fishing rights disputes in Mi’kma’ki/Nova Scotia. / Graduate

In this dissertation, I explore how, in Canada, Indigenous people’s relationships with culturally-significant plant species are an expression of Aboriginal rights, and I ask how these rights can be affirmed and exercised using a form of intersocietal law within and between First Nations and state governments. I examine how my own and others’ ethnobotanical and ethnoecological research can help to decolonize the Crown legal systems that limit Indigenous peoples in regenerating their relationships with native plant species and the ecosystems within which they are situated. In order to explore how Indigenous people’s relationships with native plant species can be expressed in law, my dissertation is grounded in a case study, developed and carried out in collaboration with the T’Sou-ke Nation, members of which have lived on southern Vancouver Island since time immemorial as part of the Straits Salish language group. Using the T’Sou-ke case study as an example, I explain how this evidence of knowledge and use of plants helps to root contemporary First Nations’ rights throughout their territories, which is essential to establishing the basis of land and resource rights that have legal force to be claimed today.I indicate current challenges faced by T’Sou-ke Nation in exercising plant-associated rights throughout their territory and outline how the current legal test for proving Aboriginal rights is problematic. The T’Sou-ke have an abundance of rich evidence of their use of 100 native plant species and of Indigenous laws and governance associated with the same. I contend that the obvious and long-standing Indigenous management of these plant species and various ecosystems on southern Vancouver Island supports a very significant claim of legal rights and I believe that my research is broadly applicable to other First Nations in BC and beyond. The T’Sou-ke Nation, historically and today, are norm creating, generating and interpreting people as reflected in their distinct social organization adapted and adjusted by their members through many changing social and ecological variables over centuries. The re-examination of the values, rules, protocols, customs and practices associated with markers of Indigenous plant use throughout Straits Salish landscapes, specifically with the assistance of Indigenous knowledge holders, as well as ethnohistorical, ethnobotanical, and traditional ecological knowledge, re-frames how evidence of land use and occupancy is presented, and, ultimately, how we might all govern these resources together. For the T’Sou-ke, laws around plants are not limited to certain traditional practices, or to specific sites or places; law also rests in species and in the long-term relationships that people have with culturally important plant species. As such, the normative ordering of T’Sou-ke laws relating to their plant use and management must be judged on T’Sou-ke terms, not by Canadian legal terms. My hope is that this research contributes to the larger discussion of acknowledging Indigenous peoples’ distinct and culturally relative rights and principles with respect to native plants, while strengthening and growing the ties that bind all British Columbians together. / Graduate / 2023-09-07

Historically South African law has been dominated by Western law. Indigenous law and the jural postulates which underpin that law are insufficiently accommodated in the South African legal order. The Western component of the official legal system is regarded as institutionally and politically superior and is as such perceived to be the dominant system. In contrast indigenous law is regarded as a servient system. The monopolistic control of the legal order by the Western section of the population resulted in the creation of a legal order primarily suited to its own needs. The fact that few of the values of indigenous law are reflected in the official legal system and the fact that there is a measure of conflict and tension between the fundamental precepts of indigenous law and those of Western law, gave rise to a crisis of legitimacy of the official legal system in South Africa. This in turn lead to the emergence of unofficial alternative structures for the administration of justice. Indigenous law should receive full recognition and enjoy the same status as Western law. To accomplish this, legislative measures which entrench a distorted indigenous law, limit the application of indigenous law, or affect its status in the South African legal order, should be revoked. Even in a multicultural society such as that of South Africa, there is a common nucleus of core values that are shared by the whole society. But different cultures have different conceptions of these basic values and their role in legal, political and social ordering. The Bill of Rights should give due recognition to the postulates which underscore both Western and indigenous law. This should be done by providing that the values the Bill entrenches, must be interpreted in their proper cultural perspective where circumstances so demand. But this will be possible only if the level of knowledge of indigenous law and its fundamental precepts is drastically improved. / LL.D

Historically South African law has been dominated by Western law. Indigenous law and the jural postulates which underpin that law are insufficiently accommodated in the South African legal order. The Western component of the official legal system is regarded as institutionally and politically superior and is as such perceived to be the dominant system. In contrast indigenous law is regarded as a servient system. The monopolistic control of the legal order by the Western section of the population resulted in the creation of a legal order primarily suited to its own needs. The fact that few of the values of indigenous law are reflected in the official legal system and the fact that there is a measure of conflict and tension between the fundamental precepts of indigenous law and those of Western law, gave rise to a crisis of legitimacy of the official legal system in South Africa. This in turn lead to the emergence of unofficial alternative structures for the administration of justice. Indigenous law should receive full recognition and enjoy the same status as Western law. To accomplish this, legislative measures which entrench a distorted indigenous law, limit the application of indigenous law, or affect its status in the South African legal order, should be revoked. Even in a multicultural society such as that of South Africa, there is a common nucleus of core values that are shared by the whole society. But different cultures have different conceptions of these basic values and their role in legal, political and social ordering. The Bill of Rights should give due recognition to the postulates which underscore both Western and indigenous law. This should be done by providing that the values the Bill entrenches, must be interpreted in their proper cultural perspective where circumstances so demand. But this will be possible only if the level of knowledge of indigenous law and its fundamental precepts is drastically improved. / LL.D

Este trabalho analisa a política de incorporação dos povos e territórios amazônicos aos domínios portugueses, do início da colonização (1614) à promulgação do Diretório dos Índios (1757). A partir da constatação de que os autóctones estavam na base tanto dos projetos políticos quanto econômicos, verificam-se as variações da legislação indigenista, bem como os princípios fundamentais que a nortearam. Esta análise sugere uma revisão do debate acerca da relação entre domínio imperial e mercado de trabalho na formação do Brasil. / This study analyzes the incorporation of Amazonian indigenous peoples and their territories to the Portuguese imperial dominium, from the beginning of the colonization process (1614) until the promulgation of the Diretório dos Índios (1757). Considering the Native peoples integral role in the Portuguese political and economical policies, this study attempts to evaluate the variations of the legislation to the Amazon region, as well as its guiding principles. This analysis suggests a revision of the discussion about the relation between imperial dominium and labor market in the formation of Brazil.