This study examines the basis of contractual liability in indigenous law. It concludes that contractual liability arises only from real contracts where one party has performed fully or partially in terms of an agreement. Attention is given to both the nature and concept of indigenous contracts to ascertain the function of contracts in indigenous societies in order to bring a holistic perspective to the topic. It is demonstrated that the settlement of disputes arising out of indigenous contracts is primarily focused on the reconciliation of people and the consequent maintenance of harmony within the community. The foremost concern in indigenous law of contract is with human justice rather than with strict legal justice, and expression is thereby given to prevailing community values. / Indigenous Law / LL.M.

This study was undertaken to establish whether rights of personality are known in indigenous law. Since indigenous law differs not only between tribes but is also affected by the degree of exposure to Western values, a micro-study has been done in a semi-rural environment in the Kingdom of Swaziland to establish to what extent own value systems have been influenced or altered when Western legal concepts are utilised. The information, obtained by interviewing a panel of experts, was compared with the available literature. During the process of gathering information, the aims of the research were not only to describe how the legal principles function, but also to take note of those socio-cultural processes which function outside of the law. Rights of personality were studied against a background of the culture and way of life of the peoples concerned. The importance of culture has been acknowledged in the Constitution of the Republic of South Africa, wherein the recognition and application of indigenous law generally rests on a constitutionally protected right to culture. Whilst the identifiable rights of personality may generally be classified according to specialised legal systems, the separation of rights to good name and to dignity may be inappropriate in the indigenous sphere. Dignity in indigenous legal systems is to be viewed as a comprehensive right of personality, into which should be subsumed the right to good name and reputation in the community. It is such dignity, embracing the ubuntu quality of humanness that is protected as a comprehensive indigenous right of personality. Although the indigenous law of personality is showing some signs of adapting to new developments, there is also proof that the established legal principles and human values are being retained. However, these changes are unique and are neither typically traditional nor Western. The indigenous law of personality, operating in a changing social environment, has to retain its flexibility and adaptability in order to remain ”living” law for the peoples concerned. / Jurisprudence / LL.D.

The available sources on the dependency action in South Africa do not mention the presence or absence of traditional values. This study was prompted by a simple curiosity to discover the traditional legal values of the dependency action for loss of support. Accordingly, the study critically examines the action of dependants for loss of support and other related losses in South Africa, Botswana and Lesotho from an African perspective. It then compares this to its application in Australia, a country that is known for its recognition and inclusion of indigenous Australian customary law. The study recommends that traditional values should be preserved in the records of the legal system, as it might stimulate a discussion, which could lead to the culmination of a single dependency action tailored to fit the whole nation and all its different cultures and religions. / Private Law

Ending colonialism requires the revitalization of not only indigenous systems of law, but also the indigenous legalities of which they form part. This means that Canada’s unique form of liberal constitutionalism cannot serve as the constitutional framework within which indigenous law is revitalized. Rather, we shall have to advert to the fact that indigenous law was and is generated by unique indigenous legal processes and institutions, which find their authorization in unique indigenous constitutional orders, which are in turn legitimated by indigenous peoples’ unique and varied creation stories. Through the gifts of diverse Anishinaabe writers and orators, and through work with my circle of elders, with aadizookaanan, in community, and on the land, I present one view of Anishinaabe legality. I give special emphasis to its earth-centric ‘rooted’ form of constitutionalism, which is characterized by mutual aid and its correlate structure, kinship. In the second half, I examine the problem of colonial violence in contemporary indigenous-settler relationships. I identify two principles necessary for indigenous-settler reconciliation and I consider how commonly proposed models of indigenous-settler relationship fare against them. I conclude that one vision of treaty, treaty mutualism—which is a form of rooted constitutionalism—is non-violent to indigenous peoples, settler peoples and to the earth. Finally, I consider counter-arguments on themes of fundamentalism, power, and misreading. / Graduate

This study seeks to improve the understanding of Indigenous Enterprise Development (IED) efforts undertaken on communal Indigenous land in the Northern Territory of Australia. Success in enterprise may support the achievement of a range of social, political and economic objectives for Indigenous peoples. The thesis offers a contribution to knowledge and literature on IED by bringing understanding to the meaning of success for Indigenous enterprise, identifying those factors that contribute to its success as well as presenting the barriers that prevent it. This study is the most recent rigorous scholarly work of IED on Indigenous land in the Northern Territory. The focus of this research is on Indigenous commercial enterprise development at a communal and individual level. Indigenous enterprise development is said to be different from other forms of enterprise development because of the legal rights of Indigenous peoples and because of particular cultural attributes, such as different perceptions of property rights in the Indigenous context and an emphasis on values like collectivism and sharing. These differences are found to shape notions of success and approaches to development. The research reviews literature in the international and domestic context on Indigenous economic development and Indigenous entrepreneurship. It also draws from internal and external documents of relevant institutions and news sources. These sources and findings are then built upon with fifty six in-depth, face-to-face interviews of selected participants who are experts or opinion leaders on IED in the region. These participants represented a variety of interest groups such as the government, academia, the Indigenous community and businesses from both Indigenous and non-Indigenous cultures in the Northern Territory. This study used a qualitative research approach for data collection and analysis. The researcher utilized a qualitative data analysis method, including the reporting of field notes, preparation of field notes into transcripts, coding of data, display of data, the development of conclusions, and creation of a report. This study identified five categories of barriers to successful enterprise development on Indigenous land in the Northern Territory. These barriers are: high levels of conflict and mistrust, socio-cultural norms and values that can work against success, a lack of human capital, a poor institutional framework and economic and structural factors. There were four categories of factors found that support the development of successful Indigenous enterprise: developing business acumen, integrating culture within the enterprise, separating business from community politics and greater independence from government. While definitions of success varied across the region there were common objectives for Indigenous enterprise, such as eliminating welfare dependency and maintaining a link to land. Ultimately, success for Indigenous enterprise was deemed to be business survival, but in ways that are congruent with each Indigenous community?s values. The findings in this research emphasize that certain cultural attributes may act to constrain successful enterprise development, but can be integrated into an enterprise through changes in enterprise structure, or practice, to support successful economic outcomes. The research also emphasizes the importance of institutional settings on human capital and successful enterprise development in the region. This study?s findings can potentially guide and inform further research in this field. The research develops a number of policy recommendations which offer potential support to policymakers in addressing the important social problem of Indigenous disadvantage through enterprise development initiatives. / This study seeks to improve the understanding of Indigenous Enterprise Development (IED) efforts undertaken on communal Indigenous land in the Northern Territory of Australia. Success in enterprise may support the achievement of a range of social, political and economic objectives for Indigenous peoples. The thesis offers a contribution to knowledge and literature on IED by bringing understanding to the meaning of success for Indigenous enterprise, identifying those factors that contribute to its success as well as presenting the barriers that prevent it. This study is the most recent rigorous scholarly work of IED on Indigenous land in the Northern Territory. / Thesis (PhD)--University of South Australia, 2008

This study seeks to improve the understanding of Indigenous Enterprise Development (IED) efforts undertaken on communal Indigenous land in the Northern Territory of Australia. Success in enterprise may support the achievement of a range of social, political and economic objectives for Indigenous peoples. The thesis offers a contribution to knowledge and literature on IED by bringing understanding to the meaning of success for Indigenous enterprise, identifying those factors that contribute to its success as well as presenting the barriers that prevent it. This study is the most recent rigorous scholarly work of IED on Indigenous land in the Northern Territory. The focus of this research is on Indigenous commercial enterprise development at a communal and individual level. Indigenous enterprise development is said to be different from other forms of enterprise development because of the legal rights of Indigenous peoples and because of particular cultural attributes, such as different perceptions of property rights in the Indigenous context and an emphasis on values like collectivism and sharing. These differences are found to shape notions of success and approaches to development. The research reviews literature in the international and domestic context on Indigenous economic development and Indigenous entrepreneurship. It also draws from internal and external documents of relevant institutions and news sources. These sources and findings are then built upon with fifty six in-depth, face-to-face interviews of selected participants who are experts or opinion leaders on IED in the region. These participants represented a variety of interest groups such as the government, academia, the Indigenous community and businesses from both Indigenous and non-Indigenous cultures in the Northern Territory. This study used a qualitative research approach for data collection and analysis. The researcher utilized a qualitative data analysis method, including the reporting of field notes, preparation of field notes into transcripts, coding of data, display of data, the development of conclusions, and creation of a report. This study identified five categories of barriers to successful enterprise development on Indigenous land in the Northern Territory. These barriers are: high levels of conflict and mistrust, socio-cultural norms and values that can work against success, a lack of human capital, a poor institutional framework and economic and structural factors. There were four categories of factors found that support the development of successful Indigenous enterprise: developing business acumen, integrating culture within the enterprise, separating business from community politics and greater independence from government. While definitions of success varied across the region there were common objectives for Indigenous enterprise, such as eliminating welfare dependency and maintaining a link to land. Ultimately, success for Indigenous enterprise was deemed to be business survival, but in ways that are congruent with each Indigenous community?s values. The findings in this research emphasize that certain cultural attributes may act to constrain successful enterprise development, but can be integrated into an enterprise through changes in enterprise structure, or practice, to support successful economic outcomes. The research also emphasizes the importance of institutional settings on human capital and successful enterprise development in the region. This study?s findings can potentially guide and inform further research in this field. The research develops a number of policy recommendations which offer potential support to policymakers in addressing the important social problem of Indigenous disadvantage through enterprise development initiatives. / This study seeks to improve the understanding of Indigenous Enterprise Development (IED) efforts undertaken on communal Indigenous land in the Northern Territory of Australia. Success in enterprise may support the achievement of a range of social, political and economic objectives for Indigenous peoples. The thesis offers a contribution to knowledge and literature on IED by bringing understanding to the meaning of success for Indigenous enterprise, identifying those factors that contribute to its success as well as presenting the barriers that prevent it. This study is the most recent rigorous scholarly work of IED on Indigenous land in the Northern Territory. / Thesis (PhD)--University of South Australia, 2008

This study seeks to improve the understanding of Indigenous Enterprise Development (IED) efforts undertaken on communal Indigenous land in the Northern Territory of Australia. Success in enterprise may support the achievement of a range of social, political and economic objectives for Indigenous peoples. The thesis offers a contribution to knowledge and literature on IED by bringing understanding to the meaning of success for Indigenous enterprise, identifying those factors that contribute to its success as well as presenting the barriers that prevent it. This study is the most recent rigorous scholarly work of IED on Indigenous land in the Northern Territory. The focus of this research is on Indigenous commercial enterprise development at a communal and individual level. Indigenous enterprise development is said to be different from other forms of enterprise development because of the legal rights of Indigenous peoples and because of particular cultural attributes, such as different perceptions of property rights in the Indigenous context and an emphasis on values like collectivism and sharing. These differences are found to shape notions of success and approaches to development. The research reviews literature in the international and domestic context on Indigenous economic development and Indigenous entrepreneurship. It also draws from internal and external documents of relevant institutions and news sources. These sources and findings are then built upon with fifty six in-depth, face-to-face interviews of selected participants who are experts or opinion leaders on IED in the region. These participants represented a variety of interest groups such as the government, academia, the Indigenous community and businesses from both Indigenous and non-Indigenous cultures in the Northern Territory. This study used a qualitative research approach for data collection and analysis. The researcher utilized a qualitative data analysis method, including the reporting of field notes, preparation of field notes into transcripts, coding of data, display of data, the development of conclusions, and creation of a report. This study identified five categories of barriers to successful enterprise development on Indigenous land in the Northern Territory. These barriers are: high levels of conflict and mistrust, socio-cultural norms and values that can work against success, a lack of human capital, a poor institutional framework and economic and structural factors. There were four categories of factors found that support the development of successful Indigenous enterprise: developing business acumen, integrating culture within the enterprise, separating business from community politics and greater independence from government. While definitions of success varied across the region there were common objectives for Indigenous enterprise, such as eliminating welfare dependency and maintaining a link to land. Ultimately, success for Indigenous enterprise was deemed to be business survival, but in ways that are congruent with each Indigenous community?s values. The findings in this research emphasize that certain cultural attributes may act to constrain successful enterprise development, but can be integrated into an enterprise through changes in enterprise structure, or practice, to support successful economic outcomes. The research also emphasizes the importance of institutional settings on human capital and successful enterprise development in the region. This study?s findings can potentially guide and inform further research in this field. The research develops a number of policy recommendations which offer potential support to policymakers in addressing the important social problem of Indigenous disadvantage through enterprise development initiatives. / This study seeks to improve the understanding of Indigenous Enterprise Development (IED) efforts undertaken on communal Indigenous land in the Northern Territory of Australia. Success in enterprise may support the achievement of a range of social, political and economic objectives for Indigenous peoples. The thesis offers a contribution to knowledge and literature on IED by bringing understanding to the meaning of success for Indigenous enterprise, identifying those factors that contribute to its success as well as presenting the barriers that prevent it. This study is the most recent rigorous scholarly work of IED on Indigenous land in the Northern Territory. / Thesis (PhD)--University of South Australia, 2008

This study examines the basis of contractual liability in indigenous law. It concludes that contractual liability arises only from real contracts where one party has performed fully or partially in terms of an agreement. Attention is given to both the nature and concept of indigenous contracts to ascertain the function of contracts in indigenous societies in order to bring a holistic perspective to the topic. It is demonstrated that the settlement of disputes arising out of indigenous contracts is primarily focused on the reconciliation of people and the consequent maintenance of harmony within the community. The foremost concern in indigenous law of contract is with human justice rather than with strict legal justice, and expression is thereby given to prevailing community values. / Indigenous Law / LL.M.

This study was undertaken to establish whether rights of personality are known in indigenous law. Since indigenous law differs not only between tribes but is also affected by the degree of exposure to Western values, a micro-study has been done in a semi-rural environment in the Kingdom of Swaziland to establish to what extent own value systems have been influenced or altered when Western legal concepts are utilised. The information, obtained by interviewing a panel of experts, was compared with the available literature. During the process of gathering information, the aims of the research were not only to describe how the legal principles function, but also to take note of those socio-cultural processes which function outside of the law. Rights of personality were studied against a background of the culture and way of life of the peoples concerned. The importance of culture has been acknowledged in the Constitution of the Republic of South Africa, wherein the recognition and application of indigenous law generally rests on a constitutionally protected right to culture. Whilst the identifiable rights of personality may generally be classified according to specialised legal systems, the separation of rights to good name and to dignity may be inappropriate in the indigenous sphere. Dignity in indigenous legal systems is to be viewed as a comprehensive right of personality, into which should be subsumed the right to good name and reputation in the community. It is such dignity, embracing the ubuntu quality of humanness that is protected as a comprehensive indigenous right of personality. Although the indigenous law of personality is showing some signs of adapting to new developments, there is also proof that the established legal principles and human values are being retained. However, these changes are unique and are neither typically traditional nor Western. The indigenous law of personality, operating in a changing social environment, has to retain its flexibility and adaptability in order to remain ”living” law for the peoples concerned. / Jurisprudence / LL.D.

Two prominent historians, David Cannadine and Brad Gregory, have recently contended that history is distorted by overemphasis on human difference and division across time and space. This problem has been acute in studies of Native-Newcomer relations, where exaggeration of Native pre-contact stability and post-contact change further emphasized Native-Newcomer difference. Although questioned in economic, social and political spheres, emphasis on cultural difference persists. To investigate the problem, this study examined the Algonquian wihtiko (windigo), an apparent exemplar of Native-Newcomer difference and division. With a focus on the James Bay Cree, this study first probed the wihtiko phenomenon’s Native origins and meanings. It then examined post-1635 Newcomer encounters with this phenomenon: from the bush to public opinion and law, especially between 1815 and 1914, and in post-1820 academia. Diverse archives, ethnographies, oral traditions, and academic texts were consulted. The cannibal wihtiko evolved from Algonquian attempts to understand and control rare but extreme mental and moral failures in famine contexts. It attained mythical proportions, but fears of wihtiko possession, transformation and violence remained real enough to provoke pre-emptive killings even of family members. Wihtiko beliefs also influenced Algonquian manifestations and interpretations of generic mental and moral failures. Consciously or not, others used it to scapegoat, manipulate, or kill. Newcomers threatened by moral and mental failures attributed to the wihtiko often took Algonquian beliefs and practices seriously, even espousing them. Yet Algonquian wihtiko behaviours, beliefs and practices sometimes presented Newcomers with another layer of questions about mental and moral incompetence. Collisions arose when they discounted, misconstrued or asserted control over Algonquian beliefs and practices. For post-colonial critics, this has raised a third layer of questions about intellectual and moral incompetence. Yet some critics have also misconstrued earlier attempts to understand and control the wihtiko, or attributed an apparent lack of scholarly consensus to Western cultural incompetence or inability to grasp the wihtiko. In contrast, this study of wihtiko phenomena reveals deeper commonalities and continuities. They are obscured by the complex evolution of Natives’ and Newcomers’ struggles to understand and control the wihtiko. Yet hidden in these very struggles and the wihtiko itself is a persistent shared conviction that reducing others to objects of power signals mental and moral failure. The wihtiko reveals cultural differences, changes and divisions, but exemplifies more fundamental commonalities and continuities.