This thesis questions why young female and aboriginal plaintiffs consistently receive lower damage awards for loss of future earning capacity than young white male plaintiffs. I argue that due to the social construction of law, and specifically tort law, the dividing line between public and private law should be challenged. The effect of tort is partially "public" in nature due to the broad impact tort has on valuing the potential of individual plaintiffs. When damages for female and aboriginal plaintiffs are assessed on a reduced scale due to gender and race, a message is sent that the potential of these plaintiffs, and the potential of the groups to which they belong, is somehow less. Due to the "public" impacts of damages quantification, principles of equality derived from the Canadian Charter of Rights and Freedoms should be considered in the quantification process. I argue further, that the current practice of damages quantification has been the result of the court's over-reliance on "formalist" notions of tort law which has insulated the area from the social context of law. In addition, I suggest that the acceptance by courts of economic evidence, which is often reflective of discriminatory norms in the labour market and our society generally, has had the effect of de-valuing certain members of Canadian society; in particular women and aboriginal plaintiffs. I demonstrate this analysis through an examination of cases dealing with young, catastrophically injured, female and aboriginal plaintiffs. Finally, I suggest that, though an imperfect solution, currently the only equitable method of quantifying damages for loss of future earning capacity is to adopt white male earning tables for all young plaintiffs with no demonstrated earning history.

This thesis examines recent doctrinal developments regarding the aboriginal and treaty rights which are recognised and affirmed in s.35(l) of the Constitution Act, 1982. Specifically, it explores how the meaning of such rights is being constituted by diverse relations of power operating within specific 'cites' of struggle. Chapter I is a brief introduction to recent transformations in the legal discourse of the Supreme Court and an overview of the methodologies being employed in this thesis. In this regard, the author undertakes an interdisciplinary approach to discourse analysis. Chapter II draws upon the writings of Michel Foucault to make the argument for the analytical framework being utilised; namely, the study of 'law' within a 'sovereign- discipline- government' society. Chapter III examines the relationship between the productive power of the disciplines and the legal discourse constituting the content of aboriginal rights; the purpose being to explore to what extent law 'operates as a norm' within this area. Additionally, it provides a lead into the discussion of 'government' by outlining the rationality underpinning the test for the justified governmental infringement of aboriginal and treaty rights. Chapter IV, examines the relationship between the regulatory power of 'government' and the legal discourse around current treaty negotiations. Specifically, it explores the inter-dependency between rationalities of self-government and the governmental technologies associated with 'advanced' liberalism. In doing so, it focuses on an emerging treaty from British Columbia to assess the extent to which law is being used as 'a tactic of government'. Chapter V, examines the relationship between the deductive power of 'sovereignty' and the legal discourse constituting the content of Aboriginal title. It argues that recent developments require the Court to deal with the issue of legal pluralism. And to do so, in a way that lays a more successful foundation in law for the legitimate reconciling of the pre-existence of First Nations societies and the sovereignty of the Crown. Chapter VI provides some concluding comments about the insights gained from the proceeding analysis. In doing so, it offers a brief discussion of how the proceeding specific analysis may relate to some recent work in post-colonial studies.

This thesis examines the Safe Third Country Agreement between Canada and the United States from the perspective of Canada's obligations vis-a-vis asylum seekers under the Canadian Charter of Rights and Freedoms. The Safe Third Country Agreement requires asylum seekers to lodge their refugee claims in the first country of arrival, as between Canada and the United States. Asylum seekers on the United States side of the border who are seeking to enter Canada for the purpose of claiming refugee status will be deflected to the United States to lodge their claims there. By deflecting asylum seekers in this manner, Canada effectively conscripts the United States to carry out its obligations under the Charter to furnish procedural and substantive protections to asylum seekers. This thesis examines certain features of the United States asylum system to which asylum seekers deflected under the Safe Third Country Agreement would be subjected, in order to determine whether, according to relevant Charter jurisprudence, deflection constitutes a deprivation of security of the person under section 7 of the Charter and whether such deprivation can be justified under section 1.

Recent feminist criticism has resulted in remarkable changes to the interpretation of the refugee definition. Case law, academic commentaries and gender guidelines now recognize that women may constitute a particular social group under the definition of refugee. However, only those who belong to certain subgroups of women are usually granted asylum because being a woman only is considered too broad to comprise a particular social group. Such restrictive interpretation is theoretically and practically problematic, and it is the primary cause for the inconsistency in the interpretation of the definition of a particular social group and refugee determination in gender-based claims. Through an analysis of recent gender-based cases before the Canadian courts and the Immigration and Refugee Board, this paper argues that this inconsistency will be avoided when categorization of women does not require female claimants to prove characteristics other than their gender. Female refugees who are persecuted for being women do not need to provide additional reasons for their suffering, and this broad categorization of women should be consistently applied in Canada.

Kenya like many other countries offers asylum to refugees in fulfillment of the provisions of the 1951 UN Refugee Convention as well as the 1969 OAU Refugee Convention. The country, with the assistance of UNHCR, confers refugee status on refugees who meet the qualifications stated by the two treaties as well as the Refugee Act 2006. Rwandan refugees make up part of the refugee community in Kenya. Though refugee status was created to enhance refugee protection in countries of asylum, it was never intended to last a lifetime. The United Nations envisioned an end to refugee status when the reasons for flight as well as persecution no longer continued to exist. The cessation clause marks the end of refugee status and thus facilitates re-establishment in the country of origin. This study endeavours to explore the impact that the cessation clause will have on Rwandan refugees residing in Kenya specifically based on the widespread concern about the human rights situation in Rwanda. There is accordingly a need to explore the nature of the cessation clause, the reasons for its creation and further the qualifications entailed in its application. After understanding what the cessation clause is, there is the need to understand the genesis of Rwandan refugees. This will enhance the understanding of why Rwandan refugees continue to reside in Kenya even after the end of the Rwandan conflict. The study will then expound on the reasons for and against invocation of a cessation clause to provide an analysis of whether the country is indeed safe for return. To enhance this analysis, the study will provide a comparative study with Liberia and Angola, which recently implemented cessation clauses. Through this comparative assessment, the study will seek to ascertain the viability of the concerns raised in reference to Rwanda and further speculate on the outcome of the cessation clause pertaining to the concerns raised. This study will therefore be able to advise on whether the cessation clause applies to Rwandan refugees and thereafter offer recommendations as to whether implementation in the Rwandan context is feasible. It will also endeavor to provide an analysis of whether there is a need to amend the invocation procedure with regard to cessation clauses in general. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.

There have been a number of labour disputes in the agricultural sector in the past year. Domestic workers’ wages and working conditions have also been under the spotlight. This study aims to determine whether or not the concept of decent work is adequately protected in South Africa’s current legislation; the implementation of such legislation and whether or not, as a member of the United Nations, South Africa’s legislation is in line with the international standards set by the International Labour Organization (ILO). The study examines previous labour legislation in order to establish the extent of the protection offered to employees, particularly domestic and farm workers. It provides recommendations in respect of the current legislation based on the ILO standards, particularly the Labour Inspection Convention No. 81 of 1947, Convention No. 184 Concerning Safety and Health in Agriculture, 2001 and Convention No. 189 and Recommendation No. 201 Concerning decent work for domestic workers, 2011. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.

The subject-matter of this thesis is the rule, previously contained in section 18(4)(d) of the Child Care Act 74 of 1983, in terms of which a mother could surrender her child born out of wedlock for adoption without the consent of its father. This section was struck down as unconstitutional by the Constitutional Court in Fraser v Children's Court, Pretoria North and others 1997 (2) SA 261 (CC), on the grounds that it violated an unmarried father’s constitutional rights to equality and non-discrimination. In the light of this judgment, this thesis seeks to articulate the constitutional parameters within which section 18(4)(d) must be amended. The requirements of Fraser are identified and discussed. Regard is also had to other constitutional rights upon which Fraser might have been decided; in particular, an unmarried father’s right to procedural fairness, and his child’s right to family or parental care. Case law from the United States, Canada, Ireland and the European Court of Human Rights is also discussed. The end product of this examination is an exposition of the various constitutional rights which vest in the father of a child born out of wedlock. A separate exposition is given of the distinct rights which vest in all children in the adoption process. The latter set of rights is drawn both from the Constitution of the Republic of South Africa Act 96 of 1996, and the United Nations Convention on the Rights of the Child. The thesis then proceeds to examine the Adoption Matters Amendment Act 56 of 1998, which was enacted in response to Fraser. The consent and notice provisions of adoption statutes in the United States, Canada, Australia, Ireland and England are also examined, and compared to the provisions of the Adoption Matters Amendment Act. The object, here, is two-fold: first, to consider the practical value of this Act; and second, to consider whether it satisfies the constitutional requirements identified earlier in this thesis. The thesis concludes with suggestions for the improvement of this Act.

M.A. / Social Work is a multifaceted profession. One of the many tasks that a social worker must perform is to give evidence in a court of law as an expert witness. The Criminal Procedure Act, Act 51 of 1977, has been amended in respect of the child as witness. This Act now also makes provision for a social worker to act as intermediary to facilitate in criminal procedures where children, being exposed to substantial trauma and stress, are witnesses. The courts have started to implement this amendment and social workers are being requested to act as intermediaries in criminal proceedings. The social workers at the Child and Family Welfare Society Kempton Park, amongst others, were requested on several occasions to act as intermediaries without knowledge of the task to be performed. Due to a lack of knowledge and resources only the necessary report was submitted to the court requesting the appointment of an intermediary. Probation officers from the Department of Welfare were then requested to appear in court as intermediaries as they had the necessary knowledge and training. This research attempts to highlight what a social worker as intermediary, in criminal proceedings where children are witnesses, should do. The researcher had a preference to the qualitative methodology, as it appeals to the researcher's practical nature and the nature of the issue to be investigated as it is basic-explorative in nature. The legal position of the sexually abused child as witness in criminal proceedings is assessed in order to determine the consequences from several points of view. Criticism and obstacles in this regard and the procedures of operation, as included in the Report from the Law Commission with specific reference to the social worker as intermediary, are highlighted.

This thesis examines recent doctrinal developments regarding the aboriginal and treaty rights which are recognised and affirmed in s.35(l) of the Constitution Act, 1982. Specifically, it explores how the meaning of such rights is being constituted by diverse relations of power operating within specific 'cites' of struggle. Chapter I is a brief introduction to recent transformations in the legal discourse of the Supreme Court and an overview of the methodologies being employed in this thesis. In this regard, the author undertakes an interdisciplinary approach to discourse analysis. Chapter II draws upon the writings of Michel Foucault to make the argument for the analytical framework being utilised; namely, the study of 'law' within a 'sovereign- discipline- government' society. Chapter III examines the relationship between the productive power of the disciplines and the legal discourse constituting the content of aboriginal rights; the purpose being to explore to what extent law 'operates as a norm' within this area. Additionally, it provides a lead into the discussion of 'government' by outlining the rationality underpinning the test for the justified governmental infringement of aboriginal and treaty rights. Chapter IV, examines the relationship between the regulatory power of 'government' and the legal discourse around current treaty negotiations. Specifically, it explores the inter-dependency between rationalities of self-government and the governmental technologies associated with 'advanced' liberalism. In doing so, it focuses on an emerging treaty from British Columbia to assess the extent to which law is being used as 'a tactic of government'. Chapter V, examines the relationship between the deductive power of 'sovereignty' and the legal discourse constituting the content of Aboriginal title. It argues that recent developments require the Court to deal with the issue of legal pluralism. And to do so, in a way that lays a more successful foundation in law for the legitimate reconciling of the pre-existence of First Nations societies and the sovereignty of the Crown. Chapter VI provides some concluding comments about the insights gained from the proceeding analysis. In doing so, it offers a brief discussion of how the proceeding specific analysis may relate to some recent work in post-colonial studies. / Law, Peter A. Allard School of / Graduate

This thesis questions why young female and aboriginal plaintiffs consistently receive lower damage awards for loss of future earning capacity than young white male plaintiffs. I argue that due to the social construction of law, and specifically tort law, the dividing line between public and private law should be challenged. The effect of tort is partially "public" in nature due to the broad impact tort has on valuing the potential of individual plaintiffs. When damages for female and aboriginal plaintiffs are assessed on a reduced scale due to gender and race, a message is sent that the potential of these plaintiffs, and the potential of the groups to which they belong, is somehow less. Due to the "public" impacts of damages quantification, principles of equality derived from the Canadian Charter of Rights and Freedoms should be considered in the quantification process. I argue further, that the current practice of damages quantification has been the result of the court's over-reliance on "formalist" notions of tort law which has insulated the area from the social context of law. In addition, I suggest that the acceptance by courts of economic evidence, which is often reflective of discriminatory norms in the labour market and our society generally, has had the effect of de-valuing certain members of Canadian society; in particular women and aboriginal plaintiffs. I demonstrate this analysis through an examination of cases dealing with young, catastrophically injured, female and aboriginal plaintiffs. Finally, I suggest that, though an imperfect solution, currently the only equitable method of quantifying damages for loss of future earning capacity is to adopt white male earning tables for all young plaintiffs with no demonstrated earning history. / Law, Peter A. Allard School of / Graduate