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Autonomous aboriginal criminal justice and the Charter of RightsJohnston, William Wayne 05 1900 (has links)
The imminent recognition of an inherent Aboriginal right to selfgovernment
signals the beginning of the reversal of a colonization process
which threatened the cultural survival of a people. The Report of the Aboriginal
Justice Inquiry of Manitoba , hereinafter referred to as the Inquiry, advocates an
autonomous Aboriginal criminal justice system as a significant component of
this cultural revitalization. This Aboriginal criminal justice system would differ
markedly from the conventional system in giving priority to collective rights over
conflicting individual rights. The Inquiry rejects the Charter as alien to Aboriginal
values and advocates a “tailor-made” Aboriginal charter that would incorporate
“only those fundamental freedoms and civil liberties that do not violate the
beliefs and paramount collective rights of the Aboriginal peoples.”
The conventional justice system’s paramount concern for individual
rights is premised on the potential of punishment. The Inquiry’s starkly
contrasting paramount emphasis on collective rights is premised on an
Aboriginal view of justice which this thesis refers to as the “harmony ethos”:
The underlying philosophy in Aboriginal societies in
dealing with crime was the resolution of disputes, the
healing of wounds and the restoration of social
harmony… Atonement and restoration of harmony
were the goals - not punishment.
The tension between individual and collective rights apparent in the
proposal of the Inquiry is the specific focus of this thesis. The colonization
process may justify a separate Aboriginal justice system. However, the harmony
ethos premise, while appropriate to the mediation-reconciliation communitarian
model of justice advocated by the Inquiry, blinds the Inquiry to the additional,
and crucially different, adjudicative-rights imperatives of the contemporary
Aboriginal society.
Actually existing Indianism reveals conflict-generating fault lines in the
harmony premise which challenge the sufficiency of the Inquiry’s group-based justice paradigm and indicate a need and desire for an adjudication justice
component and concomitant Charter values.
This adjudication hiatus in the Inquiry position is a reflection of a similar
void in historical Aboriginal justice which challenges the asserted rationale of
cultural survival for the paramountcy of collective rights in the contemporary
Aboriginal justice system. This historical adjudication hiatus does not preclude
a separate Aboriginal justice system, but favours the inclusion of Charter values
to strengthen an adjudication cultural foundation which is frail relative to its
reconciliation-mediation strength.
This thesis is a modest attempt to address the interface between two
systems; one mature, but in need of change, the other, fledging and in need of
assistance. The Charter provides a ready and flexible framework to join the
Aboriginal community both to the larger society and to the unlanded Aboriginal
diaspora by principled standards of justice. These fundamental indicia of
fairness, recognized by all civilized self-governing units, constitute no significant
threat to the cultural survival of the Aboriginal mediation justice heritage, while
buttressing its inherent adjudication frailty.
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The need fo a principled framework to effectively negotiate and implement the aboriginal right to self-government in Canada /Lavoie, Manon, 1975- January 2002 (has links)
The aim of this thesis is to reveal the need for a principled framework that would establish an effective implementation of the aboriginal peoples' right to self-government in Canada. In recent decades, many agreements instituting the right to self-government of First Nations have been concluded between the federal and provincial governments and aboriginal peoples. It then becomes important to evaluate the attempts of the two existing orders of government and the courts of Canada as regards the right to self-government and assess the potential usefulness of the two's efforts at defining and implementing the right. Firstly, the importance and legitimacy of the right to self-government is recognized through its beginnings in the human right norm of self-determination in international law to the establishment of the right in Canadian domestic law. Secondly, an evaluation of the principal attempts, on behalf of the governments and the courts, to give meaning and scope to the aboriginal right to self-government, which culminate in the conclusion of modern agreements, reveals their many inefficiencies and the need for a workable and concrete alternative. Lastly, the main lacunae of the negotiation process, the main process by which the right is concluded and implemented, and the use of the courts to determine the scope and protection of the right to self-government, are revealed. An analysis of European initiatives to entrench the right to self-government, mainly the European Charter of Self-Government and its established set of principles that guide the creation of self-government agreements, are also used in order to propose a viable option for the establishment of a principled framework for the aboriginal right to self-government in Canada.
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Compensation in cases of infringement to aboriginal and treaty rightsMainville, Robert. January 1999 (has links)
This paper discusses the legal principles which are relevant in determining the appropriate level of compensation for infringements to aboriginal and treaty rights. This issue has been left open by the Supreme Court of Canada in the seminal case of Delgamuukw. The nature of aboriginal and treaty rights as well as the fiduciary relationship and duties of the Crown are briefly described. The basic constitutional context in which these rights evolve is also discussed, including the federal common law of aboriginal rights and the constitutional position of these rights in Canada. Having set the general context, the paper then reviews the legal principles governing the infringement of aboriginal and treaty rights, including the requirement for just compensation. Reviews of the legal principles applicable to compensation in cases of expropriation and of the experience in the United States in regards to compensation in cases of the taking of aboriginal lands are also carried out. Six basic legal principles relevant for determining appropriate compensation in cases of infringement to aboriginal and treaty rights are then suggested, justified and explained. (Abstract shortened by UMI.)
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The right of the HIV/AIDS patient to treatmentHoffmann, Toinette January 2001 (has links)
The objective of this treatise is to establish whether a right to social security exists in South Africa, which would entitle HIV positive persons in South Africa citizens to medical care. A study was made of various articles in journals and on the Internet to determine the South African government's policy on a right to social security and to providing medical treatment. It was found that South Africa lacks an integrated, holistic approach to social security and does not guarantee the right to social security, merely the right to have access to social security. The same was found with the right to medical care. Although there seems to be a general right to medical care which extends to and includes HIV-positive patients, the state merely guarantees the right to apply for medical treatment but does not guarantee the granting thereof. It is submitted that the Department of Health's refusal to implement a vertical transmission prevention programme and the failure to offer treatment as an alternative, for whatever reason, is "penny wise and pound foolish". In the long run more money is spent dealing with pediatric AIDS. It was further found that although the government attempted to lay a groundwork with the formulation and acceptance of the national AIDS plan, the successful implementation thereof is seriously hindered due to the lack of inter- and intra-departmental collaboration, essential health services and funding.
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Fiduciary duties of company directors with specific regard to corporate opportunitiesHavenga, Michele Kyra 06 1900 (has links)
South African company law is currently the object of comprehensive review. One o f the areas under
scrutiny is that of corporate governance. Control over management is vital in the interests of the
company itself, its shareholders and its creditors. Effective accountability should be balanced
against the need to allow those who manage a certain measure of freedom and discretion in the
exercise of their function.
Company directors are subject to various duties. This thesis concentrates on their fiduciary
obligation. It is suggested that this sui generis obligation is owed to the company as a separate
entity. Interests of other groups may sometimes merit con sideration.
Against the background o f a com parative investigation, a "corporate opportunity" is
defined as any property or economic opportunity to which the com pany has a claim. South African
law protects a company’s claim to an opportunity if it is in the company’s line of business and if
the company has justifiably been relying upon the director(s) to acquire it or to assist in its
acquisition for the company. The application of established fiduciary principles suffice to resolve
corporate opportunity matters. Essentially the application o f these rules amount to a
determination whether the director has complied with his fundamental duty to act in the company’s
best interests. There seems to be no need for a separate doctrine of corporate opportunities.'
A director should only be absolved from liability on account of the company’s inability to pursue
an opportunity or its rejection by the company if there was no real conflict of interest. The
appropriation of corporate opportunities should not be ratifiable, both because the ratification
constitutes a fraud on the minority, and because the decision to ratify cannot be regarded as being
in the interests of the company.
The relationship between the appropriation of corporate opportunities, misuse
of confidential information and competition is investigated. These aspects fre quently overlap,
but should be distinguished because their bases, and accordingly their appropriate remedies, may
differ.
Effective control may benefit by a restatement of directors’ fiduciary duties in
the Companies Act. To this end certain amendments to the Act are recommended. / Mercantile Law / LLD
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Konkretisering van ouerlike gesagsbevoegdhede - met besondere verwysing na regte van toegang by buite-egtelike kinders en gesamentlike toesig en beheer oor kinders in 'n serie-huwelikVan Westing, Amanda 12 August 2015 (has links)
LL.M. / Please refer to full text to view abstract
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Autonomous aboriginal criminal justice and the Charter of RightsJohnston, William Wayne 05 1900 (has links)
The imminent recognition of an inherent Aboriginal right to selfgovernment
signals the beginning of the reversal of a colonization process
which threatened the cultural survival of a people. The Report of the Aboriginal
Justice Inquiry of Manitoba , hereinafter referred to as the Inquiry, advocates an
autonomous Aboriginal criminal justice system as a significant component of
this cultural revitalization. This Aboriginal criminal justice system would differ
markedly from the conventional system in giving priority to collective rights over
conflicting individual rights. The Inquiry rejects the Charter as alien to Aboriginal
values and advocates a “tailor-made” Aboriginal charter that would incorporate
“only those fundamental freedoms and civil liberties that do not violate the
beliefs and paramount collective rights of the Aboriginal peoples.”
The conventional justice system’s paramount concern for individual
rights is premised on the potential of punishment. The Inquiry’s starkly
contrasting paramount emphasis on collective rights is premised on an
Aboriginal view of justice which this thesis refers to as the “harmony ethos”:
The underlying philosophy in Aboriginal societies in
dealing with crime was the resolution of disputes, the
healing of wounds and the restoration of social
harmony… Atonement and restoration of harmony
were the goals - not punishment.
The tension between individual and collective rights apparent in the
proposal of the Inquiry is the specific focus of this thesis. The colonization
process may justify a separate Aboriginal justice system. However, the harmony
ethos premise, while appropriate to the mediation-reconciliation communitarian
model of justice advocated by the Inquiry, blinds the Inquiry to the additional,
and crucially different, adjudicative-rights imperatives of the contemporary
Aboriginal society.
Actually existing Indianism reveals conflict-generating fault lines in the
harmony premise which challenge the sufficiency of the Inquiry’s group-based justice paradigm and indicate a need and desire for an adjudication justice
component and concomitant Charter values.
This adjudication hiatus in the Inquiry position is a reflection of a similar
void in historical Aboriginal justice which challenges the asserted rationale of
cultural survival for the paramountcy of collective rights in the contemporary
Aboriginal justice system. This historical adjudication hiatus does not preclude
a separate Aboriginal justice system, but favours the inclusion of Charter values
to strengthen an adjudication cultural foundation which is frail relative to its
reconciliation-mediation strength.
This thesis is a modest attempt to address the interface between two
systems; one mature, but in need of change, the other, fledging and in need of
assistance. The Charter provides a ready and flexible framework to join the
Aboriginal community both to the larger society and to the unlanded Aboriginal
diaspora by principled standards of justice. These fundamental indicia of
fairness, recognized by all civilized self-governing units, constitute no significant
threat to the cultural survival of the Aboriginal mediation justice heritage, while
buttressing its inherent adjudication frailty. / Law, Peter A. Allard School of / Graduate
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When Patients Threaten to Kill: A Texas View of TarasoffMorgan, Minor Latham 08 1900 (has links)
A serious problem confronts the psychologist whose patient threatens, within the privacy of a therapy session, to inflict violent harm upon some third person. Therapists in Texas face a risk of unjust legal liability because of a lack of widely accepted, clearly and fully articulated standards. A questionnaire was submitted to Texas psychologists and Texas judges of mental illness courts. It involved a hypothetical case of a patient who threatened to kill his girlfriend. The hypothesis that no consensus exists at present among psychologists or judges appears to be supported by the data. Comparisons are made of the attitudes of psychologists and judges. Correlations between psychologist attitudes and certain demographic and practice variables are reported. The need for new legislation in Texas concerning legal liability of therapists for the violent behavior of patients is discussed. Proposed legislation for Texas is set out. Among its important features are (1) recognition that continued therapy is itself a protective strategy and (2) establishment of good faith as the standard by which the behavior of the therapist is to be judged.
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Compensation in cases of infringement to aboriginal and treaty rightsMainville, Robert. January 1999 (has links)
No description available.
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The need fo a principled framework to effectively negotiate and implement the aboriginal right to self-government in Canada /Lavoie, Manon, 1975- January 2002 (has links)
No description available.
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