TE PIRINGA FACULTY OF LAW
LAWS555-14C 2014 Comparative Indigenous Rights Law
Outline
1.
Identification of Paper
Paper: LAWS555-14C
This paper carries 30 points
2.
Staffing
Dr Robert Joseph
(Convenor)
Phone: 838 4466 ext 8796
Room: Law G.13
email: rjoseph@waikato.ac.nz
Availability: Tuesday 11.00-12.00.
Professor Brad Morse
Phone: 838 4466 ext 4169
Room: Law G.61 Dean’s Office
Email: bmorse@waikato.ac.nz
Available by appointment
3.
Description and Structure of Paper
(a) Description of the paper in University Calendar (can be obtained from Erika)
This paper will comparatively examine the construction and development of the relationship
expressed in law and politics between Indigenous Peoples and the nation-states of Canada,
Australia, New Zealand and the United States of America (the CANZUS states). We will explore the
following topics in each CANZUS country: History and Demography, the Discovery Doctrine and
Aboriginal Title, Land Holdings, the Separation of Powers Issues, Indigenous Tribal Jurisdiction,
Treaty Making, Economic Development; and specific selected contemporary topics of concern to
various Indigenous Peoples such as self-governance and jurisdiction, land rights through Treaties
and other modern agreements, international law and Indigenous Peoples, and perhaps water
rights.
(b) Structure of the Paper
This is a semester C paper. The teaching component comprises 24 contact hours for 30 points.
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Lecture and stream timetable and rooms
The lecture hours are: Thursday 12.00 (sharp) - 2.00 in J.1.10 beginning on 6 February 2014.
Students should attend lectures and be seated by 11.50 so that they are well prepared for the
interactive video conference lectures. There may be scope for discussion time after the lectures
depending on demand. In addition, the lectures will be recorded and made available on Moodle
for those students unable to attend before the regular start of A semester. The internet link for
recorded lectures is http://elearn.waikato.ac.nz under LAWS555-14C.
4.
Learning outcomes
To engage students in a critical and contextual exploration of:
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the nature of Indigenous Peoples’ experiences of colonisation in the CANZUS states;
the origins, development and ongoing nature of colonial relationships between Indigenous
Peoples and domestic law;
the laws, procedures and institutions of domestic law that specifically address Indigenous
Peoples’ concerns;
the development and implementation of Law concerning Indigenous Peoples
internationally and domestically specifically in the CANZUS states; and
selected contemporary topics through the development of independent research.
To enable students to:
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develop an understanding and empathy for Indigenous Peoples’ experiences and
aspirations in the CANZUS states;
explicitly identify and engage with their own socially-constructed paradigms;
consider the effects of their own socially-constructed paradigms upon their capacity for
understanding and empathy for Indigenous Peoples’ experiences and aspirations;
explore their own relationships with Indigenous Peoples and their concerns; and
express their own thoughts in relation to the issues and concerns of Indigenous Peoples
and Domestic Law.
5.
Workload
Students should expect to spend 300 hours in total on this paper. In addition to lecture
attendance, significant time will need to be spent on background and complementary reading.
Students should allow for periods of more-focused research time in the preparation of
assignments.
6.
Required and Recommended Reading
All law students are required to purchase, for use in all law papers, a copy of McLay, Murray &
Orpin, New Zealand Law Style Guide, 2nd edition, Thomson Reuters (2011). This is available from
Bennetts, at an approximate price of $37 incl GST.
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Weekly reading material will be made available on the course site on Moodle
(http://elearn.waikato.ac.nz). Further material may be provided on the University of Waikato’s
online learning system. Any such material is provided on the following terms:
University of Waikato owns the intellectual property rights, including copyright, in and to this site,
or has acquired the necessary licenses to display the material on the site. As a student of the Te
Piringa Faculty of Law, you are granted a limited license to use (access, display or print a single
copy) the material from the papers in which you are enrolled for the purposes of participating in
the paper only, provided the information is not modified. Materials may not under any
circumstances be copied, stored, distributed or provided in any form or method whatsoever to
any third party. Any other use of the material is prohibited. None of the material may be
otherwise reproduced, reformatted, republished or re-disseminated in any manner or form
without the prior written consent of University of Waikato. To obtain such consent, please
contact the Te Piringa Faculty of Law.
Independent research and reading is expected at a graduate level. Additional reference material that
may be useful (not an exhaustive list) includes:
1. Aikio, P and Scheinin M (eds) Operationalizing the Right of Indigenous Peoples to SelfDetermination (Finland: Institute for Human Rights, 2000).
2. Anaya, J Indigenous Peoples in International Law (Oxford: Oxford University Press, 2004).
3. Anaya, J, International Human Rights and Indigenous Peoples (Aspen Publishers, Wolters
Kluwer Law and Business, 2009)
4. Anaya, J, International Human Rights: Problems of Law, Policy, and Practice (5th ed. 2011) (coauthor, with Hurst Hannum & Dinah L. Shelton).
5. Anaya, J, ‘Divergent Discourses about International Law, Indigenous Peoples, and Rights
Over Lands and Natural Resources: Towards a Realist Trend’ in Colo. J. Int'l Envtl. L. & Pol'y
(Vol. 16., No. 2) at 237 -258.
6. Armitage, A, Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New
Zealand (UBC Press, 1995).
7. Battiste, M (ed) Reclaiming Indigenous Voice and Vision (UBC Press, Vancouver, 2000).
8. Dodson, M ‘Linking International Standards with Contemporary Concerns of Aboriginal
and Torres Strait Islander Peoples’ in Pritchard, S (ed), Indigenous Peoples, the United
Nations and Human Rights (Zed Books, 1998) at 18-29.
9. Feiring, B, (Ed) Indigenous Peoples Rights to Lands, Territories and Resources (International
Land Coalition, Rome, 2013).
10. First Peoples’ Worldwide Report, Indigenous Peoples’ Risk Report for the Extractive
Industry (US), (First Peoples’ Worldwide Report, USA, 2013).
11. Harvard Project on American Indian Economic Development (Eds.), The State of the Native
Nations: Conditions Under U.S Policies of Self-Determination (Harvard Project on American
Indian Economic Development, Oxford University Press, New York, 2008).
12. Havemann, P (ed) Indigenous Peoples’ Rights in Australia, Canada & New Zealand (Auckland:
Oxford University Press, 1999).
13. Keal, P European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of
International Society (Cambridge: Cambridge University Press, 2003).
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14. Lâm, M At the Edge of the State: Indigenous Peoples and Self-Determination (New York:
Transnational Publishers, Inc., 2000).
15. Lenzerini, F (Ed.) Reparations for Indigenous Peoples: International and Comparative
Perspectives. (Oxford University Press Inc, Oxford, 2009).
16. Morse, B, Aboriginal Peoples and the Law (Carleton University Press, Ottawa, 1989).
17. Parrish, A ‘Changing Territoriality, Fading Sovereignty, and the Development of Indigenous
Rights’ in Am. Indian L. Rev. (2006-2007) 291.
18. Perry, R, From Time Immemorial: Indigenous Peoples and State Systems (University of
Texas Press, Austin, 1996).
19. Qureshi, J, State of the World’s Minorities and Indigenous Peoples 2013 Events for 2012
(Minority Rights Group International, London 2013).
20. van de Fliert, L (ed) Indigenous Peoples and International Organisations (Great Britain:
Spokesman, 1994).
21. Wiessner, S ‘Rights and Status of Indigenous Peoples’ in Harvard Human Rights Journal
(Vol. 12, Spring 1999).
22. Williams, R., The American Indian in Western Legal Thought: The Discourses of Conquest
(Oxford University Press, 1990)
23. Williams, R., Linking Arms Together: American Indian Treaty Visions of Law and Peace,
1600-1800 (Oxford University Press, 1997).
24. Williams, R., Like a Loaded Weapon: The Rehnquist Court, Indian Rights and the Legal
History of Racism in America (University of Minnesota Press, 2005).
25. Wilmer, F, The Indigenous Voice in World Politics Since Time Immemorial (Sage
Publications, London, 1993).
26. Xanthaki, A, Indigenous rights and United Nations Standards: Self-determination, Culture
and Land (Cambridge University Press, 2007)
There is a lot of material available on the internet, including many publications by Indigenous groups
and academics as well as documents of international organisations and State Governments.
Guidance is available from the Law Library staff on internet sites and finding resources. In addition,
the Law Library has gathered very useful websites together concerning Indigenous Peoples located
at: http://www.waikato.ac.nz/library/resources/law/s_indig.shtml.
7.
Online support
Online support for this paper is provided via Moodle.
8.
Assessment
a)
Requirements for assessed work
School procedures for the presentation of course work are set out in the Te Piringa Faculty of Law
Undergraduate Handbook which is available from http://www.waikato.ac.nz/law/undergraduate.
See also paragraph 12 on referencing guidelines and plagiarism.
An assignment template document including coversheet is available on the Law Student
Homepage http://www.waikato.ac.nz/law/student
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b)
Coursework: Final Examination Ratio: 100/0
c)
Assessment Components
Component
Percentage of overall mark
Assessment Component
1) Research Proposal
2) Research Literature Review
3) Presentation of Research Paper
4) Draft Research Paper
5) Research Paper
% of Total
5%
10%
20%
15%
50%
Due date
Due Date
24 March 2014
7 April 2014
1 and 8 May 2014
9 May 2014
16 June 2014
1) Research Proposal (5%): The proposal should identify the topic in the form of a question
and includes a thesis statement paragraph; a list of the core questions; an outline of the
major sections of the paper with a brief statement on the content of each section that
indicates its contribution to answering the question; and a brief annotated bibliography of
5-10 core books, articles or other sources. The proposal should be 3-5 pages in length. The
research proposal is not binding. Research work inevitably evolves.
2) Research Literature Review (10%): The literature review is to develop your research
proposal deeper. The purpose is to explore the relevant and current references regarding
your thesis. The literature review should be a minimum of 9-10 pages of references where
you list the full citation of the reference then summarise, analyse and comment on the
usefulness (or not) of the reference to your thesis. The literature review should include
primary sources (statutory and judicial materials and manuscripts (where relevant), and
secondary resources (books, reports, journal articles and useful websites). The literature
review should include at least 25 references including key sources for your particular topic.
3) Research Paper Draft (15%): The draft research paper is an opportunity for students to
develop a good draft of the research paper. The purpose of this component is to provide
students an opportunity for substantial detailed feedback on your ideas and paper so that
you can consider these in developing your final research paper. Students will receive
feedback on the draft paper in late May allowing enough time to incorporate the feedback
to improve your final research paper. The more prepared your draft research, the better
your final paper and overall mark at the end of the course.
4) Class Presentations (20%): Students will be required to make a 15 minute presentation on
their research paper in class including questions. The total time for each student
presentation is 20 minutes which limit will be strictly adhered to. All students are required
to include a power point presentation as part of the presentation. The presentation should
demonstrate that you have a good understanding of your research topic. It should include
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a brief outline of your thesis topic, some of the core questions and your key, research
findings to date – with a focus on the key findings.
5) Research Paper (50%): The research paper is the result of the finalized research indicated
in the proposal, literature review and further research. The research paper should be
between 8,000-10,000 words in length.
Past student assessments will be made available on Moodle to assist as a guide for the
type of framework and standard that is expected at a graduate level.
d)
Handing in, marking time and collection
All assignments must be submitted electronically through Moodle (http://elearn.waikato.ac.nz),
and include a coversheet. The coversheet template is provided on the Law Student Homepage
(http://www.waikato.ac.nz/law/student). See Te Piringa Faculty of Law Undergraduate
Handbook, available at http://www.waikato.ac.nz/law/undergraduate. Where practical, it is the
policy of Te Piringa Faculty of Law to return marked work to students within five weeks of
submission.
If you require assistance with Moodle, or encounter any problems, please contact the Help Desk.
You can send a message to Help Desk by using the instant message service in your paper (from
the participants list within the People block). Alternatively, you can email them directly at
help@waikato.ac.nz or call 838 4008.
e)
Measurement of Achievement
Achievement in examinations and tests will be measured primarily in terms of levels of
understanding and knowledge gained. Achievement in assignments will be measured also in
terms of fluency and accuracy of expression and referencing.
Major deficiencies in structure, style, grammar and spelling will result in lower marks.
f)
Management of assessment deadlines, process for requesting extensions and special
consideration, and for appeals
(i)
Extensions
Students are required to complete and submit all internal assessment by specified dates. The
meeting of deadlines is a mark of professionalism and its enforcement is essential for fairness to
all students taking the paper. Handing in course work on or before the due in date also facilitates
the timely return of marked work by academic staff. Students should meet requirements as to
time deadlines for course work, or make a request for an extension or special consideration in
appropriate circumstances (see Undergraduate Programmes Manual available from the School of
Law Undergraduate website http://www.waikato.ac.nz/law/undergraduate/). Failure to comply
with requirements as to the time deadlines for internal assessment without having successfully
applied either for an extension or special consideration with supporting evidence before the due
date will result in deduction of 2.5 marks for each day the work is late. Lateness of more than a
week may result in the work not being marked. No deadlines may be extended beyond two
weeks after the last teaching day of the semester(s) in which the paper is taught as final grades
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must go to the Board of Examiners at this time. Unless an extension in writing has been granted,
a lecturer may refuse to accept a piece of work which is submitted after the specified date, and
automatically award it no mark, or may lower the mark as a penalty for lateness.
Applications for extension, on the form obtainable from the Law Reception, must be submitted to
the Chief Examiner or nominee. Students should not submit the extension form to the lecturer,
nor should students seek extensions from the lecturer via other forms of communication.
Extensions will be granted only on evidence of illness, family bereavement, or serious personal
accidents or circumstances. Please note that too many assignments due at the same time is NOT
an acceptable reason, neither are claims that computers and/or printers have crashed. Account
will be taken of the time in which the student has had to complete the internal assessment before
the supervening event occurred. It will be important to consider if the grant of the extension will
give the student in question an unfair advantage over other students. A maximum period of 14
days will be given as an extension unless there are exceptional circumstances. In determining
applications the Chief Examiner or nominee may consult with the Convenor or lecturer of the
relevant paper.
When the Chief Examiner or nominee has made a decision on the application for extension, the
nominated Administrative Assistant will advise the student of the decision by email. Following
this, the extension form will be given to the relevant lecturer who will retain it until after the
assignment is marked and returned to students. The form will then be placed on the student’s
file. It should be noted that if an extension of longer than 14 days is granted, the assignment will
not be automatically printed out and delivered to the lecturer, therefore the lecturer is
responsible for ensuring the assignment is printed. In appropriate cases, when a student’s
application for extension is declined the Chief Examiner or nominee will inform the student of the
process for applying for special consideration.
ii)
Special Consideration
The Assessment Regulations 2005 as set out in the University Calendar 2014 list in detail the
university-wide policies and procedures, which apply concerning missed examinations, impaired
performance or impaired preparation time for an examination, and missed or impaired course
work. Students are responsible for ensuring that they comply with these regulations. Application
forms for special consideration for internal assessment are available from the Resource Room.
iii)
Appeals (University Calendar 2014, Assessment Regulations 2005, Reg. 24)
A student may appeal against any decision taken under these regulations.
An appeal, comprising a written statement of the circumstances of the appeal, together with
supporting evidence if available, must be submitted by the student in writing to the Head of
Student & Academic Services not more than seven days after the date on which notification of the
relevant decision is received.
Appeals under this section are considered and decided by the Deputy Vice-Chancellor by
delegated authority of the Academic Programmes Committee.
A decision by the Deputy Vice-Chancellor is notified in writing, and is final.
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v) If you wish to submit your Internal Assessment in Mãori, you need to obtain an application
form from the Law Reception at least 14 days before the assessment is due.
9.
University Calendar Regulations and Policies
Your attention is drawn to the following regulations and policies, which are published in the
University Calendar 2014:
Assessment Regulations 2005
Student Discipline Regulations 2008
Computer Systems Regulations 2005
Policy on the Use of Māori for Assessment
Student Research Regulations 2008
Ethical Conduct in Human Research and Related Activities Regulations 2008.
10.
Nil.
Links to other papers
11.
Fees
Refer to http://calendar.waikato.ac.nz/admission/tableoffeesandcharges.html.
12.
(a)
(b)
(c)
Referencing guidelines and caution against plagiarism
Referencing must be in accordance with the New Zealand Law Style Guide.
All written work submitted for the purposes of assessment must be your own work.
Copying or paraphrasing all or part of another person’s work, be it published or
unpublished, without clear attribution, is plagiarism. Plagiarism is misconduct and is dealt
with under the disciplinary procedures of the University as outlined in the Student
Discipline Regulations 2008 in the University Calendar.
“Plagiarism means presenting as one’s own work the work of another, and includes the
copying or paraphrasing of another person’s work in an assessment item without
acknowledging it as the other person’s work through full and accurate referencing; it
applies to assessment presented through a written, spoken, electronic, broadcasting,
visual, performance or other medium.” See section 3, Assessment Regulations (2014
Calendar)
The Te Piringa Faculty of Law’s policy regarding plagiarism is contained in the Te Piringa
Faculty of Law Undergraduate Handbook and the Te Piringa Faculty of Law Undergraduate
Programmes Manual, available from http://www.waikato.ac.nz/law/undergraduate/.
13.
Health and safety
The Law School’s Health and Safety representative is Ms Alison Saunders who is in Room Law
G.44 at ext 4167.
14.
Class representation
See p 68 Te Piringa Faculty of Law Undergraduate Handbook available from
http://www.waikato.ac.nz/law/undergraduate/. Contact details for the Student Representation
Coordinator, Academic Services Division, are as follows: Jeanie Richards, Student Services, ext.
8221, email: student.reps@waikato.ac.nz.
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15.
Complaints procedures
The brochure Student Concerns and Complaints Policy provides details of the University’s process
for handling concerns and complaints and is available from Faculty and School Offices, The
Gateway and Student Services Division and is contained in the Calendar 2014. See also the
document Student Support Structure at Te Piringa Faculty of Law, available from the Resource
Room.
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C Semester Lecture Schedule
2014 Topic Schedule for Video-Conferenced Classes
Oklahoma, Saskatchewan, Queensland & Waikato - all with students - & Monash sporadically with
Melissa Castan
Start times –5.00 PM Oklahoma & Saskatoon; 12.00 noon in New Zealand; 10.00 AM in
Melbourne & 9.00 AM in Queensland
Week Commencing
Programme of lecture topics
3 February
First Contact: Laws of European Indigenous
Encounters
[Oklahoma, Saskatoon, Queensland, & Waikato –
it is Waitangi Day in NZ so no students at Waikato]
10 February
Introduction to Indigenous Rights in the United
States:
History
&
Demography,
Discovery
Doctrine/Aboriginal
Title/Land
Holding,
Separation of Powers Issues, Tribal Jurisdiction,
Treaty Making, Economic Development
[Oklahoma, Saskatoon, Queensland & Waikato]
17 February
Introduction to Indigenous Rights in Canada:
History
&
Demography,
Discovery
Doctrine/Aboriginal
Title/Land
Holding,
Separation of Powers Issues, Tribal Jurisdiction,
Treaty-Making, Economic Development
[Oklahoma, Saskatoon, Queensland, & Waikato]
24 February
Introduction to Indigenous Rights in Australia
History
&
Demography,
Discovery
Doctrine/Aboriginal
Title/Land
Holding,
Separation of Powers Issues
[Oklahoma, Saskatoon, Queensland & Waikato]
3 March
10
Introduction
to
Indigenous
Aotearoa/New Zealand:
Rights
in
History
&
Demography,
Discovery
Doctrine/Aboriginal
Title/Land
Holding,
sovereignty, settlement and subjugation, & Treaty
of Waitangi
[Oklahoma, Saskatoon, Queensland & Waikato]
Daylight Savings Time spring forward 1 hr 9
March for Oklahoma but no change elsewhere so
class time becomes 6PM in Okla 5 PM in SK, noon
in NZ; 10 AM in Melbourne 9 AM in Brisbane
10 March
Self-Governance and Jurisdiction:
Explore varying types of traditional and current
Indigenous governance systems in 4 countries and
the scope of their jurisdiction in relation to
federal/national
governments
&
re
state/provincial/local governmental jurisdiction
[Oklahoma, Saskatoon, Queensland & Waikato]
17 March
Land Rights through Treaties & other Modern
Agreements: 20th &21st Century aboriginal rights
and breach of treaty claims, negotiations of new
treaties & settlements for breach of existing
treaties, enforcement of treaties & agreements
[Saskatoon, Queensland, & Waikato – NO
Oklahoma as on BREAK]
24 March
International Law & Indigenous Peoples:
Overview of international law development from
contact, modern international law instruments
(ICCPR, ICESCR, CERD, ILO 169, UN Declaration
and others) international enforcement avenues
and special mechanisms – (with Evelyn Aswad as
Guest Speaker)
[Oklahoma, Saskatoon, Queensland & Waikato]
March 24
31 March
11
Research Proposal Due
Student Presentations (from North American
students)
[Oklahoma, Saskatoon, Queensland, & Waikato]
LAST CLASS QLD & SASK
Daylight Savings Time falls back 1 hr Melbourne
& NZ on 6 April 2013 – Oklahoma stay at its 6PM
start; no change in Qld (becomes same as
Melbourne) so NZ start at 11AM & Monash &
UQ at 9AM
7 April
Student Presentations (from Oklahoma students)
[Oklahoma & Waikato] start time moved for
Waikato students to 11.00am
April 7
Literature Review Due
14 April
Teaching Recess
18 April Good Friday
21 April
Teaching Recess
21, 22, 25 Easter Monday, Holiday, ANZAC
28 April
Student Presentations Waikato – Queensland TBC
5 May
Student Presentations Waikato – Queensland TBC
9 May
12 May
Draft Research Paper Due
Time to complete and polish your final research
paper
19 May
26 May
2 June (2 June Queen’s Birthday)
9 June
Study Week
16 June
16 June
23 June
Examinations
30 June
Teaching Recess
12
Final Research Paper Due
7 July
13
Teaching Recess/Enrolment