Jl. Perintis Kemerdekaan KM.10 Tamalanrea Makassar. 90245. Indonesia
The main purpose of this scientific paper is to know in which extent the State of Indonesia as a sovereign country, able to provide legalprotection against indigenouspeoples in coastal areas and smallislands in the utilization of its territory. During this time, the State's concern in establishing maritime is still pulling out, due to renewal and development in various sectors still tend to be centralized, centered on the land and urban areas. This makes the coastal areas and smallislands vulnerable to various obstacles and challenges, including in accommodating the interests of indigenouspeoples who are acknowledged to exist in the Basic Agrarian Law. Meanwhile, the existing legislation concerning the use of coastal areas and smallislands is more oriented to the exploitation regardless of the sustainability of natural resources. In this case, the existence of indigenouspeoples of coastal areas and small island islands play an important role in the management of marine areas throughout Indonesia. The feature of the traditional lives and the behavioral patterns of indigenouspeoples that respect nature and the sea which can help its management to be better, maintain ecological balance and sustainable principles. In fact, there are still many indigenouspeoples in the coastal areas and smallislands that form a legal alliance, far from accessibility. The establishment of various regulations governing the utilization and management of coastal areas and smallislands, as well as the limited reference and information of indigenouspeoples on the subject, is feared to cause problems and irregularities in the implementation. Therefore, in this matter it is necessary to have further regulation as supervision and control measures. The regulation is expected to engage indigenouspeoples in a participatory manner in order to be able to produce inclusive legal products, hence the birth of regulation is no longer tend to overlap or be understood as a paradoxical rule.
Abstract. Law no. 27 of 2007 on Management of Coastal Areas and SmallIslands has the basis of consideration dimension of economic prosperity. The Act obtained Judicial Review to the Constitutional Court due to the rights of Coastal Waters Concession (HP-3). This article examines how the existence of indigenous and tribal peoples who have the right to be protected by the state constitution and how the legal analysis of the Judicial Review of the Act is reviewed. This research was conducted by a normative juridical method. The results show that indigenous and tribal peoples have not fully existed in the regulation and legal politics of Indonesia, particularly in the management of coastal areas and smallislands. Judicial Review conducted to the Constitutional Court through Decision No. 3/ PUU-VIII / 2010 states that in certain articles in Law No. 27 of 2007 on the Management of Coastal Areas and SmallIslands is contrary to the state constitution and has no binding power, which relates to Coastal Waters Rights which tend to be more liberal/capitalist because it can only be utilized by the owner of capital.
sometimes they do the development of shrimp processing industry without paying attention to the interests of local communities or indigenouspeoples, in two locations in this study.
According to the theory of state welfare law, one of the duties of the state or government and local government is as the organizer of the public interest. This general interest becomes very widespread, the possibility of violating the interests of the people by the state or regional apparatus also becomes very widespread. In carrying out the task, the state administration requires independence, namely independence to be able to act on its own initiative, especially in resolving the critical issues that arise where the regulation does not yet exist. Because of the wide function of the government and local government in the context of the modern legal state or state welfare law, it is of course the broader role of administrative law in it, as well as in the affairs of the formation of Provincial RTRW of Maluku Province which aims to welfare maluku community in the field of territorial arrangement especially coastal and smallislands.
Based on the above discussion, the model of legalprotection for the Indigenous Herbs of Madura through Geographical Indication can be done through the registration of geographical indication application towards the Ministry of Law and Human Rights of the East Java Provincial Government or by the institution or association or the organization of the Indigenous Herbs of Madura entrepreneurs whose membership covers the four districts in Madura. The registration of geographical indication is submitted about the types of the Indigenous Herbs of Madura. In the event that the Geographical Indication Certificate has been obtained, the holder of the geographical indication rights shall be authorized to grant a utilization permit to a local entrepreneur in Madura or to a non-local entrepreneur in Madura or to a foreign entrepreneur. The grant of such utilization permit ought to be coupled by the requirement of not violating the provisions of laws and regulations, not harming the interests of the local community in Madura, and can ensure the reputation, quality and characteristics of the Indigenous Herbs of Madura. In terms of the utilization permit of the Indigenous Herbs of Madura given to other than local entrepreneur in Madura or to foreign company, it must be coupled with the consent of the local society in Madura (prior informed consent) and also must be enclosed with the benefit sharing agreement for the local society in Madura.
Stephen Allen is another academic who does not believe that Articles of the Declaration are inherently customary international law merely from their presence in the text. Though he concedes that the Declaration’s provisions are substantially informed by international law, 142 Allen argues that participation in a standard‐setting exercise is not evidence of consent to be bound by the resultant instrument 143 and that it is wrong to assume that because the Declaration is consistent with general international law it thereby has direct legal effect. 144 Rather, it is important to look beyond the contents of instruments and to assess what it is that states actually intend to be bound by in order to determine what positive law is. 145 It is clear that neither states nor the Indigenous partakers intended to create or declare hard Indigenous rights through the Declaration. 146 Moreover, the assessment of whether practice is uniform and consistent over most states requires more than looking only at the most “enlightened” states. 147 However, Allen does not view the Declaration as without potential legal implications, but rather that the Declaration was developed as “a model for the legal regulation of indigenous issues at the municipal level”. 148 By endorsing the Declaration, states acknowledged the legitimacy of the rights therein, but left their legal status to be determined by states themselves. 149 In other words, the Declaration should be viewed as a normative source for the development of national laws and only then do the rights become legally enforceable. 150
His goal is to find out who the people were that lived in Costa Rica in Pre-Columbian times. He wants to answer the question of how the civilisations of the ancient Costa Ricans rose, flourished and eventually fell, and why that story is still a mystery. He does so by visiting several experts (characters) on several sites. They can tell him specifics about that site, the people that were there in the past and what that site was used for by those people. At every site he answers questions, but also gains new questions which lead him to the next expert on the next site. The movie ends with him visiting possible descendants from the ancient Costa Ricans. An IndigenousPeoples, where he speaks with the shaman and gains answers to the movies big question. According to this shaman the ancient civilisations fell because of the invading Spaniards and the diseases they brought with them. Jago, however, gives an alternate possible explanation. He says it is possible when communities grew, the once bountiful resources became more scarce, leading to conflict about the resources and causing downfall of those
5. Short Conclusions
A common denominator among the Nordic countries is an understanding that the duty to consult the Sami stems from obligations under international law and various treaties, which in turn leads to an elevated role for the Sami Parliaments as the rep- resentative bodies for all Sami. As we have seen above, in Canadian law, the State’s duty to consult Aboriginal right-bearing communities stems from a constitutional background and is built around the principle of the honour of the Crown. Never- theless, as Dwight Newman has said, the duty to consult in Canada does not exist in isolation, but is situated within the context of a larger set of international law norms which interact with domestic Canadian law concerning consultation with Aboriginal peoples. 88 Whether the concept of FCIP in the UNDRIP will evolve in Canadian case
Overall, the Inuit Tapiriit Kanatami II case reveals under many respects a lack of sensitivity of the EU judiciary towards advancing the rights of indigenouspeoples and favouring the observance and progressive development of international law in this field. As said above, particularly regrettable is the statement, in the Advocate General’s Opin- ion, that the UN Declaration does not codify general international law. This stance is not in line neither with the duty of sincere cooperation of member States, nor with the prin- ciple requiring the EU to bolster its founding values as stated in Art. 2 of the Treaty on European Union (TEU) on the international scene: “democracy, the rule of law, the uni- versality and indivisibility of human rights and fundamental freedoms, respect for hu- man dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law”. 40 Of course, currently EU values also
3 The six observers from Canada were Victor Adolph (Union of British Columbia Indian Chiefs), Forrest Walkem (Union of British Columbia Indian Chiefs), Dr. Ahab Spence (Manitoba Indian Brotherhood), Andrew Delisle (Indians of Quebec Association), Rev. Ernest Willie (Anglican Church of Canada), and Mrs. Jean Goodwill (Nēhiyaw; working with Canadian Secretary of State; daughter of John Tootoosis, a prominent Nēhiyaw political leader). Canadian observers came at their own expense, in some cases paying out of their own pockets. It appears that some participated in both formal and informal discussions to some degree, but their comments are generally not recorded in the transcripts. The seven observers from Guyana were the Honourable Philip Duncan, (from the Wapishiana tribe of the Rupununi, member of Parliament since 1964 at the age of 21, Parliamentary secretary for Amerindian Affairs for some time, now Regional Minister for Rupununi Region); Dick Laurentino (a Macushi village councillor from St. Ignatius Village); Theresa La Rose (an Arawak Catholic nun and welfare officer for Amerindian Affairs from the Moruca reserve); David Brooks, (Indigenous village captain or Touchaus, from Panima); Gertrude Fitzpatrick (Guyana's only female Touchaus, from Kwebanna in the North West District); Patrick Norton (Touchaus from River's View, and community development worked attached to the Ministry of Co-operatives and National Mobilization); and Eugene Stoby, (an Arawak Member of Parliament, also from the Moruca reserve). Guyanese government attendees included Dr. Ptolemy Reid (Deputy Prime Minister), and Miss Sheila King a Senior Liaison Officer and organizing secretary for the Council on the Affairs and Status of Women in Guyana. It seems there was some controversy over the meeting within the Guyanese
I. S PECIAL I NTERESTS , THE P UBLIC D OMAIN , AND I NDIGENOUS
Brown raises concern for the “public domain, which is squeezed on one side by the privatizing logic of the world’s corporations and on the other by native-rights activists promoting novel forms of collective copyright.” 7 He thus places the calls for intellectual property protection of indigenous cultures within the larger context of intellectual property law. Recent intellectual property law public debate and scholarship has indeed recognized that the public domain is threatened by the increasing reach of patent, copyright, trademark, trade secret, and related bodies of law. 8 Framed this way, calls for the use of intellectual property law to protect native cultures would appear to lead to new incursions on the threatened public domain. This has considerable resonance in a time of increasing public awareness of the privatization of abstractions. 9 Brown is right in suggesting that any proposals to increase the reach of intellectual property protection should consider the effect on freedom to transmit ideas, to innovate, and to express oneself. Framing the overall issue in this way, however, overlooks some key distinctions between special interests, the public domain, and indigenouspeoples’ claims to heritage protection.
The Nganasans have traditionally lived in the settlement of Volochanka, in Ust’-Avam of the settlement of urban type Dudinka and in
the settlement of Novaya of the rural settlement Khatanga. This ethnic group has always been characterized by a small number of people but negative dynamics denotes a change for the worse in the social-economic conditions of the Nganasans. It is connected with the problems in traditional occupations and trades. The reindeer breeding was lost in the 1980s. Professor K.B. Klokov considers that the reason for the decline of the reindeer breeding was a change of specialization of the gospromkhoz “Taimyrskiy” and the sovkhoz “Volochansky”, which started the shooting of wild reindeer for the needs of Noril’sk industrial region. The economic effect of the shooting lead to change of priorities, which resulted in insufficient financing of reindeer breeding and its disappearing. But the decline of reindeer-breeding took place 25 years ago and is of secondary influence on the current demographic processes. The most influential factor is hunting and fishing. Here, too, the Nganasans have problems, which the Commissioner repeatedly talked about at different public events (meetings, conferences) and wrote about in his annual reports. These problems are the result of the drawbacks in the policy of the governing institutions of Taimyr. These are the mistakes which were systematically pointed out by public figures and the specialists of the Scientific Research Institute of agriculture of the Far North, and also by the Commissioner. It is still worth repeating: the problem is in the inaccessibility of fishing and hunting areas for traditional occupations and lifestyle. For example, near the posyolok of Ust’-Avam practically all lands suitable for hunting and fishing have been given to LLC “PH Pyasino”, where there is only a handful of indigenous people.
A good example of the challenges that such a shift to renewable energy include is the attempt of Greece to become a leading country in the production and export of solar energy. In 2010, right in the peak of the debt crisis, an ambitious project by the name of “project Helios” aimed at building an enormous (800 MW) solar power plant in the exhausted lignite mine areas and export the energy to central Europe, mainly Germany. (Hellenic Ministry of Environment & Energy, 2011). The project had such visibility that was a part of the agenda of the top summit of the EU leaders in 2011. Unfortunately, the project was frozen as the costs of upgrading the grid capacity for the export was more than expected and none of the countries where the connection would pass through had the funds to upgrade their corresponding transfer networks. (Energypress.gr, 2013). Greece is a country with more than 6000 islands, with around 90 of them inhabited (2011 census, n.d.). Several of them are of a small scale (<3000 pop). These islands are facing plenty of challenges because of their rough natural landscape (rocky, windy, dry) as well as because of their isolation especially during the winter months when sea conditions can make islands inaccessible for days.
In order to fully comprehend the struggle of Amazonian indigenouspeoples against mono-cropping and genetically modified soy, one must first analyze a brief history of Brazil’s political structure and agriculture. Chapter VIII of the Brazilian Constitution guarantees that indigenouspeoples “shall have their social organization, customs, languages, creeds and traditions recognized, as well as their original rights to the lands they traditionally occupy, it being incumbent upon the Union to demarcate them, protect and ensure respect for all of their property.” 73 The Constitution goes on to afford “Indians” further protections, such as the right to the resources of their tradition lands and protections against exploitation of those lands by outsiders, exceptions only to be granted with indigenous consent by the National Congress. 74 Other protections include safety from forced removal and occupation, and standing to sue in their own defense. 75 Although on paper these rights seem even more protective than the American Constitution—which only mentions Native Americans for tax and commerce purposes—in practice this chapter of the Brazilian Constitution is largely ignored.
Palabras clave: Epistemologías; Feminismos; Aborígenes; Experiencias.
e categoy of experience is what articulates the diﬀerent epistemologies. Within feminists, it is consider as one that builds but it is constructed by the kwonledge of contextualized and sexed subjects. Linked to this conception are clariﬁed at ﬁrst some terms that will be used, such as decolonization issue and the reactions of the aborigines and the enslaved against the imperialist colonization, beacuse as Tuhieai Smith says, we cannot talk about scientiﬁc research and indigenous people without making an analysis of imperialism and colonial practices. With regard to epistemologies of indigenous people, fundamental points will be dealt witth in the Maori and Mapuche agendas. Finally, its relationship with feminism and the need for decolonization will be considered. Keywords: Epistemologies; Feminisms; Indigenous People; Experiences.
The first challenge to access to justice for IndigenousPeoples in Africa is simple recognition of indigenousness as a valid identifier for communities with unique histories and relationships to territories. The existence of IndigenousPeoples in Africa remains a contested notion. An unstudied, yet common, refrain is that all black Africans are Indigenous to Africa. Accordingly, the concept of Indigenousness loses any meaning because it includes every black African. Scholars have presented a more nuanced critique identifying the risk of using the notion of Indigenousness in the contexts of ethnically diverse and divided societies. As Felix Ndahinda, a Rwandan scholar, points out, the “[i]mplications of indigenous identification for other groups in multi-ethnic countries remains one feature of indigenous rights discourse in need of further clarification.” 4 Indeed, in regions where tribalism remains a major threat to peace and stability, the idea of Indigenousness can appear to feed such divisive notions.
XQGHUVWRRG ³DV DQ HFRQRPLF UHVRXUFH WR EH PDQDJHG HIILFLHQWO\ DQG SURILWDEO\´ LELG 1998, p. 13).
These rationales associated with the control and use of state forest reserves influenced Federico Albert, head of the Water and Forests section within the Ministry of Industry and Public Works in the early 1900s. Albert, of German origin and with formal WUDLQLQJLQIRUHVWU\VFLHQFHHVWDEOLVKHGWKHEDVLVIRUZKDWZRXOGEHFRPH&KLOH¶VQDWLRQDO forest policy throughout the twentieth century (Camus, 2003). According to Klubock, $OEHUW³was a pivotal figure in efforts both to regulate the destruction of the forests and to promote commercial forHVWU\´ S His regular trips to Europe to study advances in scientific forestry techniques led to their subsequent application to Chile in the early 1900s. 4 Following one particular trip to Europe, Albert returned to Chile resolute about the need to protect state forest reserves. The following statement reflects KLV YLVLRQ ³7R JHW DQ LGHD RI WKH LPSRUWDQFH RI RXU QDWLRQDO IRUHVWV LQ WKH WHUULWRULHV located south of Bío-Bío, we should operate under the forestry regime in all lands that are unfit or unsuitable for agriculture crops. It is therefore urgently needed that the state should establish reserves in forestlands under the jurisdiction of the Ministry of Colonization, Finance and the Interior´(Albert, 1911: 8). 5 $VVWDWHGE\.OXERFN³Albert linked the development of forest management to the reassertion of state control over the IURQWLHUDQGWKHHVWDEOLVKPHQWRIDVWDEOHVRFLDORUGHU´S The protection of
5.5 Institutional responsibility of parliaments In terms of parliamentary procedures, challenges of organizing consultation and outreach eﬀorts feature prominently in survey responses. In less developed countries, the lack of material resources available for parliamentarians interested in doing outreach work with minority/indigenous communities, some of which tend to reside in remote areas, was fre- quently reported. While parliaments in countries with higher levels of economic development do not face similar shortages of material resources, the respondents from these countries report that their parliaments have diﬃculties in ﬁnding time for organizing consultation and outreach eﬀorts. Parliamentary internal rules and procedures, across countries from diﬀerent regions and diﬀerent levels of development, also appear to only very rarely include special measures for the consideration and passage of minority/indigenous-related initiatives. Signiﬁcant progress has to be made in terms of awareness of minority/indigenous issues among parliamentarians and parliamentary staﬀ. The issue of inclusiveness of parliamentary staﬀ does not seem to receive signiﬁcant attention in the workings of legislatures either. Overall, survey responses sug- gest that parliaments as institutions can do more to learn about minority/indigenous groups and the issues they face, to reach out to these groups, and to extend some procedural accommodation of their participation in legislative process.
their habits. Even prostitution appeared and Maori women were usually paid by alcohol or tobacco. All these factors reducer Maori population by 25%. This led to creation of Treaty of Waitangi (see picture 5) in 1840 which was created by 45 Maori chiefs and British. This treaty promised that Maori can keep their land and they will be under the protection of Crown. Unfortunately not so long after it many of the parts and rules of the Treaty were broken which was probably caused by misunderstanding and there was even proved that there were differences between Maori and British version if the treaty. Maori recall to this treaty till now. The values of Maori and whites were and are different. Maori did not think the way Pakehas did, they were not that materialistic and held more on the traditions and spiritual values. There were also wars between Pakeha and Maori those times, usually the reason was land. From the modern history can be mentioned for example that during WWII Maori people were excluded from fighting but many of them went voluntary into the war. A big wave if urbanization came in the second half of 20 th century and also Maori protests against confiscation of their land and many organization supporting different Maori issues were founded. Since that Maori have been experiencing many problems described more specifically and in detail in practical part of this thesis but also their culture started to be supported more and there are efforts to maintain and revive the culture, language and traditions.
Native learners in both contexts express emotional and affective connec- tions to their native cultures and languages and often wish to establish strong links to their heritage, families and communities. An additional reason for in- cluding both Spanish speakers and Indigenous speakers in a similar category when it comes to language preservation efforts is that both groups, when asked about the importance of their language and their culture, express emotional and affective connections and reasons for maintaining them. They often choose to continue to learn their languages so that they can establish or maintain links to their heritage, families and communities. Luis Ruan (Personal communication, May 29, 2002), a California Chicano youth counselor, informed us of that his knowledge of Spanish allowed him to gain entry into his grandparents’ Indig- enous Purepecha bilingual community in a remote area of Michoacán, Mexico. Because of his Spanish, he was able to discover his Indigenous roots. He even began the formal study of Purepecha while in Mexico. A Chicana student, in an intermediate Spanish Composition for Native Speakers, reported how her newly acquired Spanish language skills led her to communicate with her monolingual grandfather in Mexico, allowing her to reconnect with her Indigenous cultural roots.