Indigenous struggles for land rights in Canada, Japan and Mexico : Delgamuukw, Nibutani Dam and Zirahuén
University of British Columbia
Doctor of Philosophy - PhD
This dissertation is an interpretive case study of the claims and decisions of three legal cases that were brought to the courts by Indigenous peoples with respect to their constitutional rights. The first is the Delgamuukw case in Canada; the second is the Nibutani Dam case in Japan; and the third is the Zirahuén case in Mexico. Even though, in these three cases, the courts seem to be sympathetic to the pleadings of the Indigenous plaintiffs, they all dismissed, rejected, or left their claims unresolved on procedural grounds. The focus of the study are the procedural standards used by the courts for the review of the plaintiffs’ claims in the three cases and focuses on four themes: 1) the paucity of suitable causes of action to challenge the interventions of the state and third parties by Indigenous communities; 2) the difficulties of proof; 3) the inadequacy of remedies corresponding to the rights established in national and international laws; and 4) legal language and uncertainty regarding the content and reach of the rights of Indigenous peoples in the three jurisdictions. The study also looks at the rationality behind such standards and the courts’ concerns with fairness, coherence and autonomy. This study indicates that the Indigenous plaintiffs’ constitutional claims were extremely difficult to frame within the causes of action available for them. The actions were extremely difficult to use either because there were no causes of action to protect their rights at a proper moment, the causes of action disregarded crucial characteristics of the legal and material realities of the communities, or the causes of action lacked corresponding remedies. These difficulties suggest that there was a redundant tension between the notion of sovereignty that courts used in their decisions and the rights of Indigenous peoples. The analysis also suggests that the plaintiffs’ constitutional rights are conditional to an issue of constitutional power that needs to be resolved.
Attribution-NonCommercial-NoDerivatives 4.0 International
Law, Faculty of