In this chapter, the authors question what role colonial history plays in the interpretation of m... more In this chapter, the authors question what role colonial history plays in the interpretation of modern or contemporary treaties when there is ambiguity. Using an account of funding negotiations with the Carcross/Tagish First Nation (CTFN) under the Yukon Self-Government Agreement the authors and that the specificity of contemporary treaties is not in and of itself able to rectify relations marked by colonialism. Instead, the role of courts in defining treaty terms and judging conformity remains essential to implementation. Consequently, those using law to make rights, right relations, or obligations certain under contemporary treaties eventually face the same questions as those under historic treaties: what interpretive tools will the courts use to determine the political rights and obligations of treaty parties?
[First paragraph]: "There is a move afoot in Canada towards the privatization of Indigenous ... more [First paragraph]: "There is a move afoot in Canada towards the privatization of Indigenous lands. This move is striking, given the centrality of lands to Indigenous laws and legal orders, as well as to overall economic and social flourishing. But what is privatization? While widely used across many discourses, what is meant by privatization varies. Privatization is often defined as “the transfer of an ongoing business or service from government control and ownership to the private sector.” However, there is no bright line between what is public and what is private, especially when concerning Indigenous peoples and their lands. For our purposes and to set the stage for the chapters that follow, privatization is used here to capture the replacement of services on Indigenous lands and ownership of those lands by governments with individuals or organizations owned and controlled by individuals."
The United Nations Commission on the Limits of the Continental Shelf is expected to play an essen... more The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to seabed resources in the Arctic Ocean. In this article, the authors look to the effect of scientific discourse on Commission authority. The authors argue that in addition to the conferral of its authority by the United Nations Convention on the Law of the Sea, the Commission draws its authority in the Arctic from the way its regulatory frameworks, aimed at containing or closing off disputes about jurisdiction and sovereign rights, correlate with discursive practices used by transnational networks to reach scientific agreement.
While colonial imposition of the Canadian legal order has undermined Indigenous law, creating gap... more While colonial imposition of the Canadian legal order has undermined Indigenous law, creating gaps and sometimes distortions, Indigenous peoples have taken up the challenge of rebuilding their laws, governance, and economies. Indigenous conceptions of land and property are central to this project. Creating Indigenous Property identifies how contemporary Indigenous conceptions of property are rooted in and informed by their societally specific norms, meanings, and ethics. Through detailed analysis, the authors illustrate that unexamined and unresolved contradictions between the historic and the present have created powerful competing versions of Indigenous law, legal authorities, and practices that reverberate through Indigenous communities. They have identified the contradictions and conflicts within Indigenous communities about relationships to land and non-human life forms, about responsibilities to one another, about environmental decisions, and about wealth distribution. Creatin...
[From Introduction]: "The decision of the Supreme Court of Canada in Tsilhqot’in Nation v Br... more [From Introduction]: "The decision of the Supreme Court of Canada in Tsilhqot’in Nation v British Columbia was a watershed in Canadian jurisprudence. It recognized the Aboriginal title of the Tshilhqot’in First Nation on the basis of territorial usage and it ensured that the financial benefits of land and resources will flow to the Tsilhqot’in (rather than the Crown or third parties). The Court recognized that title holders enjoy all of the “incidents” normally associated with fee simple ownership, and limited the Crown’s interest in Indigenous lands to a residual form of title (with no beneficial interests). As a result, the Court has forwarded a conception of title that highlights the financial benefits of Aboriginal rights for Aboriginal peoples."
[From Introduction]: "Over the course of the last thirty years, section 35(1) of the Constit... more [From Introduction]: "Over the course of the last thirty years, section 35(1) of the Constitution Act, 1982 has shifted governmental engagement with Aboriginal peoples from a matter of executive discretion to a matter of legal right. While there are differences over the scope, content, and protections of those rights, the jurisprudence has first and foremost clarified that disputes over competing uses can be settled in law. Nevertheless, if past jurisprudence has focused on the duty of the executive, the authors argue here that there has been little clarity surrounding the duty of administrative tribunals to adhere to the legal requirements of section 35(1) in regulating resource use. The Supreme Court of Canada has affirmed the authority of tribunals to administer Aboriginal rights and to evaluate the Crown’s duty to consult. Moreover, the courts are willing to treat tribunal proceedings as part of a larger framework for achieving consultation. Yet, even though courts have implicated tribunals in the task of ensuring that rights are respected, key decisions have seemingly released tribunals from the legal strictures of the jurisprudence on section 35(1). As a consequence, it is unclear whether tribunals can use their own methods of evaluation or whether they are required to assess consultation in accordance with the legal criteria established by the Supreme Court."
In this chapter, the authors question what role colonial history plays in the interpretation of m... more In this chapter, the authors question what role colonial history plays in the interpretation of modern or contemporary treaties when there is ambiguity. Using an account of funding negotiations with the Carcross/Tagish First Nation (CTFN) under the Yukon Self-Government Agreement the authors and that the specificity of contemporary treaties is not in and of itself able to rectify relations marked by colonialism. Instead, the role of courts in defining treaty terms and judging conformity remains essential to implementation. Consequently, those using law to make rights, right relations, or obligations certain under contemporary treaties eventually face the same questions as those under historic treaties: what interpretive tools will the courts use to determine the political rights and obligations of treaty parties?
Dans le présent article, les autrices examinent l’absence des femmes autochtones dans les régimes... more Dans le présent article, les autrices examinent l’absence des femmes autochtones dans les régimes de gestion participative des ressources naturelles au Canada. Les autrices considèrent la pertinence juridique et politique des récits autochtones comme une source de savoir et comme une méthode pour traiter de l’actuelle absence de participation des femmes autochtones. La gestion participative est l’instrument règlementaire dominant sur lequel s’appuient les gouvernements provinciaux et territoriaux pour gérer les ressources naturelles de concert avec les peuples autochtones. Cependant, les recherches féministes autochtones ont soulevé de sérieuses questions sur l’exclusion des femmes autochtones de la gestion publique et privée, les paramètres de leur exclusion et les conditions de rectification de cette situation. Les autrices se fondent sur les recherches féministes autochtones et sur la gestion de l’eau pour dégager trois principes d’utilisation du récit à des fins participatives :...
This paper argues that participatory governance initiatives like co-management can be made effect... more This paper argues that participatory governance initiatives like co-management can be made effective through agency rulemaking. Using the Mackenzie Valley Environmental Impact Review Board as a case study, this paper affirms that it is possible for marginalized stakeholders to participate in co-management and alter decision-making. By using its formal authority to generate rules that reflect community perspectives, this board contextualized environmental assessment in community-based perspectives. The study of participation presented here illustrates: 1) that a high level of agency support for community participation in rule-making can lead to rules which reflect community perspectives; and 2) that agency implementation of community perspectives has led to the increased use of stakeholder collaboration through private agreement. Nonetheless, the paper also addresses limitations on the ability to translate social needs into privately negotiated agreements where negotiations depart fr...
The article discusses implementation of Russia's international obligations in fisheries manag... more The article discusses implementation of Russia's international obligations in fisheries management, nuclear safety and air pollution control. Empirical evidence is taken from the country's northwestern region. A main theoretical question is to what extent the observed level of compliance with international agreements can be explained by the nature of the problem and agreements at hand, and by the implementation activities of public authorities and target groups. The implementation performance in the case of fisheries management can be explained mainly by both positive and negative elements in public authorities' implementation efforts. In air pollution control, the nature of the commitments, i.e. the very limited need for behavioral changes, is the main explanation for implementation performance. The picture is a bit more complex in the case of nuclear safety where all the factors reviewed have had a moderate or considerable effect on implementation performance. Notably,...
Recent frustration with the scope and pace of environmental legislative reform in the United Stat... more Recent frustration with the scope and pace of environmental legislative reform in the United States has prompted suggestions that the federal government incorporate parliamentary methods, like those used in Canada, to decrease the number and scale of veto points and more readily pass environmental protections. This Article argues that the United States should be extremely cautious about adopting such reforms. While the Canadian approach to legislating in this field may be more certain and efficient than that of the United States, that approach can just as easily be used to diminish environmental protections as to enhance them. Advocacy for such reforms assumes that the central characteristics of environmental legislation in the United States—specific legislative commands, limits on executive power, and agency accountability—are a product of cultural norms resulting from political distrust and will therefore remain stable influences in legislative drafting. The authors argue that it ...
Indigenous governments in Canada are increasingly authorized to adopt laws that convert communall... more Indigenous governments in Canada are increasingly authorized to adopt laws that convert communally held lands to individual fee simple. They will convert title to fee simple in order to obtain the economic benefits commonly associated with private ownership and its securitization. However, Indigenous peoples are also likely to experience rapid social change that may necessitate the adaptation of law to local context. Governments expect to address social dislocation by exercising legislative and regulatory authority over lands, which continue irrespective of ownership. Seeking to examine the reliability of this argument, I analyze whether the legislative reforms of the Nisga'a Nation, one of the first to define its Aboriginal title as an estate in fee simple, are sufficient to address social changes likely to arise from titling.Based on the authority obtained by the Nisga'a in the Nisga'a Final Agreement and already established in Nisga'a statutes, I argue that social...
The United Nations Commission on the Limits of the Continental Shelf is expected to play an essen... more The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to sea bed resources in the Arctic Ocean. Positivist theories of international law generally source Arctic state compliance to the binding effect of Article 76 of the UN Convention on the Law of the Sea. However, positivist explanations fail to answer why the Arctic states, which are authorized to establish their own limits, would accept the sovereignty costs associated with the Commission’s legal and scientific interpretations. In order to better understand how the Commission regulates compliance, the authors look to the effect of scientific discourse on compliance and argue that the effect has been to encourage Arctic States to submit to Commission authority, as it generates the possibility that states can convince the Commission that scientific consensus has been reached. The effect for states that would otherwise be cautious ab...
The United Nations Commission on the Limits of the Continental Shelf is expected to play an essen... more The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to seabed resources in the Arctic Ocean. In this article, the authors look to the effect of scientific discourse on Commission authority. The authors argue that in addition to the conferral of its authority by the United Nations Convention on the Law of the Sea, the Commission draws its authority in the Arctic from the way its regulatory frameworks, aimed at containing or closing off disputes about jurisdiction and sovereign rights, correlate with discursive practices used by transnational networks to reach scientific agreement.
In this chapter, the authors question what role colonial history plays in the interpretation of m... more In this chapter, the authors question what role colonial history plays in the interpretation of modern or contemporary treaties when there is ambiguity. Using an account of funding negotiations with the Carcross/Tagish First Nation (CTFN) under the Yukon Self-Government Agreement the authors and that the specificity of contemporary treaties is not in and of itself able to rectify relations marked by colonialism. Instead, the role of courts in defining treaty terms and judging conformity remains essential to implementation. Consequently, those using law to make rights, right relations, or obligations certain under contemporary treaties eventually face the same questions as those under historic treaties: what interpretive tools will the courts use to determine the political rights and obligations of treaty parties?
[First paragraph]: "There is a move afoot in Canada towards the privatization of Indigenous ... more [First paragraph]: "There is a move afoot in Canada towards the privatization of Indigenous lands. This move is striking, given the centrality of lands to Indigenous laws and legal orders, as well as to overall economic and social flourishing. But what is privatization? While widely used across many discourses, what is meant by privatization varies. Privatization is often defined as “the transfer of an ongoing business or service from government control and ownership to the private sector.” However, there is no bright line between what is public and what is private, especially when concerning Indigenous peoples and their lands. For our purposes and to set the stage for the chapters that follow, privatization is used here to capture the replacement of services on Indigenous lands and ownership of those lands by governments with individuals or organizations owned and controlled by individuals."
The United Nations Commission on the Limits of the Continental Shelf is expected to play an essen... more The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to seabed resources in the Arctic Ocean. In this article, the authors look to the effect of scientific discourse on Commission authority. The authors argue that in addition to the conferral of its authority by the United Nations Convention on the Law of the Sea, the Commission draws its authority in the Arctic from the way its regulatory frameworks, aimed at containing or closing off disputes about jurisdiction and sovereign rights, correlate with discursive practices used by transnational networks to reach scientific agreement.
While colonial imposition of the Canadian legal order has undermined Indigenous law, creating gap... more While colonial imposition of the Canadian legal order has undermined Indigenous law, creating gaps and sometimes distortions, Indigenous peoples have taken up the challenge of rebuilding their laws, governance, and economies. Indigenous conceptions of land and property are central to this project. Creating Indigenous Property identifies how contemporary Indigenous conceptions of property are rooted in and informed by their societally specific norms, meanings, and ethics. Through detailed analysis, the authors illustrate that unexamined and unresolved contradictions between the historic and the present have created powerful competing versions of Indigenous law, legal authorities, and practices that reverberate through Indigenous communities. They have identified the contradictions and conflicts within Indigenous communities about relationships to land and non-human life forms, about responsibilities to one another, about environmental decisions, and about wealth distribution. Creatin...
[From Introduction]: "The decision of the Supreme Court of Canada in Tsilhqot’in Nation v Br... more [From Introduction]: "The decision of the Supreme Court of Canada in Tsilhqot’in Nation v British Columbia was a watershed in Canadian jurisprudence. It recognized the Aboriginal title of the Tshilhqot’in First Nation on the basis of territorial usage and it ensured that the financial benefits of land and resources will flow to the Tsilhqot’in (rather than the Crown or third parties). The Court recognized that title holders enjoy all of the “incidents” normally associated with fee simple ownership, and limited the Crown’s interest in Indigenous lands to a residual form of title (with no beneficial interests). As a result, the Court has forwarded a conception of title that highlights the financial benefits of Aboriginal rights for Aboriginal peoples."
[From Introduction]: "Over the course of the last thirty years, section 35(1) of the Constit... more [From Introduction]: "Over the course of the last thirty years, section 35(1) of the Constitution Act, 1982 has shifted governmental engagement with Aboriginal peoples from a matter of executive discretion to a matter of legal right. While there are differences over the scope, content, and protections of those rights, the jurisprudence has first and foremost clarified that disputes over competing uses can be settled in law. Nevertheless, if past jurisprudence has focused on the duty of the executive, the authors argue here that there has been little clarity surrounding the duty of administrative tribunals to adhere to the legal requirements of section 35(1) in regulating resource use. The Supreme Court of Canada has affirmed the authority of tribunals to administer Aboriginal rights and to evaluate the Crown’s duty to consult. Moreover, the courts are willing to treat tribunal proceedings as part of a larger framework for achieving consultation. Yet, even though courts have implicated tribunals in the task of ensuring that rights are respected, key decisions have seemingly released tribunals from the legal strictures of the jurisprudence on section 35(1). As a consequence, it is unclear whether tribunals can use their own methods of evaluation or whether they are required to assess consultation in accordance with the legal criteria established by the Supreme Court."
In this chapter, the authors question what role colonial history plays in the interpretation of m... more In this chapter, the authors question what role colonial history plays in the interpretation of modern or contemporary treaties when there is ambiguity. Using an account of funding negotiations with the Carcross/Tagish First Nation (CTFN) under the Yukon Self-Government Agreement the authors and that the specificity of contemporary treaties is not in and of itself able to rectify relations marked by colonialism. Instead, the role of courts in defining treaty terms and judging conformity remains essential to implementation. Consequently, those using law to make rights, right relations, or obligations certain under contemporary treaties eventually face the same questions as those under historic treaties: what interpretive tools will the courts use to determine the political rights and obligations of treaty parties?
Dans le présent article, les autrices examinent l’absence des femmes autochtones dans les régimes... more Dans le présent article, les autrices examinent l’absence des femmes autochtones dans les régimes de gestion participative des ressources naturelles au Canada. Les autrices considèrent la pertinence juridique et politique des récits autochtones comme une source de savoir et comme une méthode pour traiter de l’actuelle absence de participation des femmes autochtones. La gestion participative est l’instrument règlementaire dominant sur lequel s’appuient les gouvernements provinciaux et territoriaux pour gérer les ressources naturelles de concert avec les peuples autochtones. Cependant, les recherches féministes autochtones ont soulevé de sérieuses questions sur l’exclusion des femmes autochtones de la gestion publique et privée, les paramètres de leur exclusion et les conditions de rectification de cette situation. Les autrices se fondent sur les recherches féministes autochtones et sur la gestion de l’eau pour dégager trois principes d’utilisation du récit à des fins participatives :...
This paper argues that participatory governance initiatives like co-management can be made effect... more This paper argues that participatory governance initiatives like co-management can be made effective through agency rulemaking. Using the Mackenzie Valley Environmental Impact Review Board as a case study, this paper affirms that it is possible for marginalized stakeholders to participate in co-management and alter decision-making. By using its formal authority to generate rules that reflect community perspectives, this board contextualized environmental assessment in community-based perspectives. The study of participation presented here illustrates: 1) that a high level of agency support for community participation in rule-making can lead to rules which reflect community perspectives; and 2) that agency implementation of community perspectives has led to the increased use of stakeholder collaboration through private agreement. Nonetheless, the paper also addresses limitations on the ability to translate social needs into privately negotiated agreements where negotiations depart fr...
The article discusses implementation of Russia's international obligations in fisheries manag... more The article discusses implementation of Russia's international obligations in fisheries management, nuclear safety and air pollution control. Empirical evidence is taken from the country's northwestern region. A main theoretical question is to what extent the observed level of compliance with international agreements can be explained by the nature of the problem and agreements at hand, and by the implementation activities of public authorities and target groups. The implementation performance in the case of fisheries management can be explained mainly by both positive and negative elements in public authorities' implementation efforts. In air pollution control, the nature of the commitments, i.e. the very limited need for behavioral changes, is the main explanation for implementation performance. The picture is a bit more complex in the case of nuclear safety where all the factors reviewed have had a moderate or considerable effect on implementation performance. Notably,...
Recent frustration with the scope and pace of environmental legislative reform in the United Stat... more Recent frustration with the scope and pace of environmental legislative reform in the United States has prompted suggestions that the federal government incorporate parliamentary methods, like those used in Canada, to decrease the number and scale of veto points and more readily pass environmental protections. This Article argues that the United States should be extremely cautious about adopting such reforms. While the Canadian approach to legislating in this field may be more certain and efficient than that of the United States, that approach can just as easily be used to diminish environmental protections as to enhance them. Advocacy for such reforms assumes that the central characteristics of environmental legislation in the United States—specific legislative commands, limits on executive power, and agency accountability—are a product of cultural norms resulting from political distrust and will therefore remain stable influences in legislative drafting. The authors argue that it ...
Indigenous governments in Canada are increasingly authorized to adopt laws that convert communall... more Indigenous governments in Canada are increasingly authorized to adopt laws that convert communally held lands to individual fee simple. They will convert title to fee simple in order to obtain the economic benefits commonly associated with private ownership and its securitization. However, Indigenous peoples are also likely to experience rapid social change that may necessitate the adaptation of law to local context. Governments expect to address social dislocation by exercising legislative and regulatory authority over lands, which continue irrespective of ownership. Seeking to examine the reliability of this argument, I analyze whether the legislative reforms of the Nisga'a Nation, one of the first to define its Aboriginal title as an estate in fee simple, are sufficient to address social changes likely to arise from titling.Based on the authority obtained by the Nisga'a in the Nisga'a Final Agreement and already established in Nisga'a statutes, I argue that social...
The United Nations Commission on the Limits of the Continental Shelf is expected to play an essen... more The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to sea bed resources in the Arctic Ocean. Positivist theories of international law generally source Arctic state compliance to the binding effect of Article 76 of the UN Convention on the Law of the Sea. However, positivist explanations fail to answer why the Arctic states, which are authorized to establish their own limits, would accept the sovereignty costs associated with the Commission’s legal and scientific interpretations. In order to better understand how the Commission regulates compliance, the authors look to the effect of scientific discourse on compliance and argue that the effect has been to encourage Arctic States to submit to Commission authority, as it generates the possibility that states can convince the Commission that scientific consensus has been reached. The effect for states that would otherwise be cautious ab...
The United Nations Commission on the Limits of the Continental Shelf is expected to play an essen... more The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to seabed resources in the Arctic Ocean. In this article, the authors look to the effect of scientific discourse on Commission authority. The authors argue that in addition to the conferral of its authority by the United Nations Convention on the Law of the Sea, the Commission draws its authority in the Arctic from the way its regulatory frameworks, aimed at containing or closing off disputes about jurisdiction and sovereign rights, correlate with discursive practices used by transnational networks to reach scientific agreement.
The authors question whether the Supreme Court of Canada has a grander agenda in its formulation ... more The authors question whether the Supreme Court of Canada has a grander agenda in its formulation of Aboriginal Title in Tsilhqoti'n Nation v. British Columbia than that of merely ensuring financial utility. While private ownership certainly does not reflect the territorial nature of Aboriginal title, it is pertinent to ask if the decision aims to satisfy more than the financial goals of private ownership. Is the Court in Tsilhqot’in attempting to indirectly politically empower Indigenous peoples as collectives by recognizing their private control over vast tracts of lands? The clarity of the court regarding the beneficial interest in Title land, the scope of territory to be included, the commonality of holding, and the right to decide on its uses are key themes that could indicate this intention. Taken together with its overall trend towards conceptualizing reconciliation through consultation that ensures compensation, these characteristics authorize titleholders to directly exclude non-consensual users and indirectly imposes a cost on government infringement so high as to be prohibitive or, at least, a serious disincentive to unilateral action by governments or industry proponents
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Papers by Sari Graben