The canadian legal system recognizes aboriginal title as a sui generis, or unique. The series will be published as a book entitled reflections on. It suggests that those principles are worthy of consideration, at least as minimal reference points, in the development of the sui generis principles applicable to the formation of treaties. The authors trace the development of the use of the term sui generis to describe aboriginal legal rights, noting that this is not in fact a recent phenomenon. The town and country planning use classes order categorises uses of land and buildings. The metamorphosis of aboriginal title osgoode digital commons. They explain the doctrine as a balance between common law and aboriginal conceptions, acting as an aid to the development of the common law in a manner which accommodates cultural. The motto sui generis has been adopted by the akitsiraq law school because it is a sui generis aboriginal title in all of canadian aboriginal law institutes by dint of its title being inuktitut, the. Under indigenous customary law, the nature of such rules is related more to communal usufructuary rights than a formal sense of ownership.
Henderson takes an interpretative approach in presenting a vision of aboriginal rights from a first nations law and jurisprudence perspective, a perspective that may offer some resolution to the many intricate issues of interpretation and definition and shows how first nations jurisprudence strengthens the underlying unity of the sui generis. The unique relationship of the crown and aboriginal peoples renders the use of such reference points more, not less, imperative in the treaty context. Aboriginal law and education the motto sui generis has been adopted by the akitsiraq law school because it is a sui generis aboriginal title in all of canadian aboriginal law institutes by dint of its title being inuktitut, the aboriginal language of the inuit in the far north of canada. In colonial times, aboriginal title was governed by principles of recognition based on ancient relations between the crown and indigenous american peoples. The metamorphosis of aboriginal title osgoode hall law. Role of customary law under sui generis frameworks of. The metamorphosis of aboriginal title by brian slattery. The canadian legal system recognizes aboriginal title as a sui generis, or unique collective right to the use of and jurisdiction over a groups ancestral territories. With the passage of time, this historical right has evolved into a generative right. The work analyzes judicial reconciliation of aboriginal tenure through application of the constitution, expands on the sui generis principle, and offers a vision for the postcolonial legal regime. Project muse culture and competitive resource regulation. Sui generis definition is constituting a class alone. Biography kirsten anker teaches property, legal theory and aboriginal lawindigenous legal traditions, with research.
Sui generis definition of sui generis by merriamwebster. Canada in international law at 150 and beyond paper no. Aboriginal lands duties of the crown sui generis fiduciary duty. The relationship between treaty interpretation and canadian sovereignty. The text distinguishes bailment from other types of legal obligation that may arise in circumstances similar to those triggering a. A sui generis case or a sui generis authority means that the decision in the case may not be precedent setting and limited to the specific facts of the case. The privy council and both the superior courts of canada and australia have. The fact that aboriginal title and aboriginal or treaty rights are sui generis in nature does not preclude them from being found to be real rights for the purposes of private international law. As a law text, this article is unique in the australian law landscape and accordingly may be described as sui generis.
Sui generis is a latin phrase that means of itshishertheir own kind, in a class by itself. Sui generis laws for the protection of indigenous expressions of culture 7 97 reponsibilities. Aboriginal title has undergone a significant transformation from the colonial era to the present day. It created a unique and novel property interest, which resembles an equitable. New editions supplied on standing order subscription. In this article, the terms yolngu customary law and ngarra law are used interchangeably, and the term polygamy is used to describe polygyny. Pdf the authors trace the development of the use of the term sui generis to describe aboriginal legal rights, noting that this is not in fact a. Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary. Sui generis is a latin term which means of its own kindgenus.
Sui generis laws for the protection of indigenous expressions of culture and traditional knowledge the struggle over these designs is nothing less than the struggle over cultural meaning. Introduction to the ngarra law of arnhem land charles. Ackerman, biotechnology, indigenous peoples, and intellectual property rights, congressional research service, library of congress, washington dc, 1993. Sui generis is a nicely packaged way of stating the obviousthe courts are defining aboriginal title and aboriginal rights on a casebycase basis. Customary law under sui generis framework market sectors. Indigenous peoples and intellectual property rights. Vienna convention on the law of treaties, 23 may 1969, u. This right is not granted from an external source but is. Aboriginal title refers to the inherent aboriginal right to land or a territory. Reliance on the sui generis concept in this manner devalues aboriginal rights and. Thus, common law precedents should serve as a basis from which to offer a comparative assessment of judicial treatment of aboriginal rights rather. While the supreme court of canada has declared the relationship between the crown and aboriginal peoples in canada to be of a sui generis naturea term first used in guerin meaning in their own. Sui generis use class in planning designing buildings wiki share your construction industry knowledge.
The relationship between treaty interpretation and canadian sovereignty vii. This article maintains that the sui generis basis for aboriginal rights has limited tangible improvements to aboriginal quality of life, while commentators have also pointed to a number of difficulties with the justifications offered for sui generis rights. However, these novel forms are usually taken as alternative means of proving a set. In law it may be an exception such as a right or power that is created individually and specifically, in its own category.
The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept. Aboriginal rights, including the subcategory of aboriginal title, are sui generis in nature. Supreme court of canada bulletin february 2020 lexology. Developments may not be used for purposes that are not within the use class for which they received planning permission.
Sui generis use class in planning designing buildings wiki. This distinctive or sui generis body of law is known as the. Bentonbanai, the mishomis book hayward, wisc indian country. I then consider the practical implications of recognizing aboriginal title today and argue that we need to distinguish between historical rightsand generative rights. Law school because it is a sui generis aboriginal title in all of canadian aboriginal law institutes by. Aboriginal religion, law and the constitution, in law and religious pluralism in canada richard moon, ed. Against a sui generis system of intellectual property for. Associate professor 3690 peel street room 304 montreal quebec canada h3a 1w9 5143988147 office email image by lysanne larose. A book, movie, television series, or other artistic creation is called sui generis when it does not fit into standard genre boundaries.
The general concepts of the law of bailment including the sui generis nature of a bailment, the bailees reverse onus of proof, and the bailees overarching duty of safekeeping are discussed at length. Indigenous knowledge and culture in australia the case for sui generis legislation 747 negotiations,9 like other member nations. It looks at how the supreme court of canada has located and structured sui generis aboriginal orders, the concepts of sui generis citizenship, treaty federalism, and constitutional supremacy as. Aboriginal rights are connected to traditional territory, and form part of a sui generis aboriginal knowledge system which transcends common law notions of property and possession. Indigenous rights, however, may be considered sui generis because they are based in the customs and traditions of the peoples concerned, rather than an established corpus of positive law.
With the passage of time, this historical right has evolved into a generative right, governed by principles of reconciliation. This paper investigates how the classical westphalian model of the state has set, and continues to set, the boundaries of aboriginal treaty interpretation. Aboriginal title as a property right 59 land and cannot compete on an equal footing with other proprietary interests. Aboriginal title as a constitutionally protected property. Indigenous peoples see their identity as depending on the survival of their art. Sui generis is also used in aboriginal education to describe the work of aboriginal people to define and create contemporary aboriginal education as a thing of its own kind. A full discussion of bioprospecting and indigenous peoples is outside the scope of this paper, but see for example josephine axt, m. The wipo draft articles on the protection of tk and tces and a number of national sui generis laws and the conventional ip law set out several possible roles for customary law which have already been developed or applied in practice. The fundamental legal basis or source of law for indigenous peoples and local.
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