Editors
22 Pac. Rim L. & Pol'y J. 237

March 2013

Jonathan A. Franklin
22 Pac. Rim L. & Pol'y J. 239

March 2013

Anna Cowan
22 Pac. Rim L. & Pol'y J. 247

March 2013

Abstract: The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) by the General Assembly in 2007 was a landmark achievement in the development of indigenous rights under international law, particularly through its unequivocal recognition of indigenous peoples’ right to self-determination. That same year, Australia launched a comprehensive Intervention into Aboriginal communities in the Northern Territory, which purported to safeguard important human rights but was heavily criticized for its discriminatory and non-consultative approach. This article explores the meaning of self-determination under international law, now that the long debate over whether indigenous peoples are “peoples” has finally been resolved. It then uses the result of that analysis as the basis for a critique of Australia’s methodology in the Intervention. The article argues that self-determination entails the right of a people to control their own affairs through freedom from discrimination and meaningful participation in decision-making, and that the scope of self-determination must be the same for indigenous peoples as for ‘all peoples’ under international law. When assessed against these criteria, it is clear that Australia’s Intervention methodology fell well short of the requirements of empowerment inherent in these established and evolving international human rights standards. As Australia moves beyond the Intervention towards Stronger Futures it is imperative that the mistakes of an approach based on discrimination and a failure to foster genuine participation by Aboriginal peoples are not continued. The lessons of the Intervention are relevant for other states beyond Australia as the international community moves to implement the standards in UNDRIP. 

Jacinta Ruru
22 Pac. Rim L. & Pol'y J. 311

March 2013

Abstract: Water is important to all peoples, including indigenous peoples. In recent years, the government in Aotearoa, New Zealand has utilized various cultural redress-type legal mechanisms to recognize and revive the importance of water to the Maori people’s identity, health, and wellbeing. These mechanisms create revolutionary modern opportunities for Maori to participate in the decision-making of how specific waters are used and protected. In particular, the negotiated agreements for the Te Arawa Lakes, and the Waikato, Waipa, and Whanganui rivers are studied in this article as prominent examples of how the government has agreed to, for example, co-management regimes. With the government working with Maori to resolve water claims, why–in 2012–have the government and many Maori come head-to-head about Maori rights to water, to the extent that urgent proceedings in the Waitangi Tribunal and now the High Court have been called? Part of the explanation lies in the government’s tactics for reconciliation, which focus on cultural redress solutions that concentrate on management opportunities. To date, the Government has refused to address possible Maori commercial and proprietary redress for water even though it is something that many Maori want resolved. This 2012 clash has starkly illustrated that despite the creation of several notable cultural redress water settlements, real reconciliation in a decolonized context will remain elusive until fair, complete, and holistic restitution for water grievances is offered across all redress spectrums, including cultural, commercial, and proprietary. 

Elizabeth Salmón G.
22 Pac. Rim L. & Pol'y J. 353

March 2013

Abstract: Despite the fact that Peru ratified ILO Convention 169 on December 2, 1993 and was therefore bound by those dispositions, it adopted public policies without consulting indigenous people. This lack of dialogue led to social conflict over the management of natural resources. In June 2009, a violent episode of social unrest emerged in the provinces of Bagua and Utcubamba during the government of Alan García after the entry into force of the United States-Peru Trade Promotion Agreement (“PTPA”). Indigenous people believed that PTPA aimed to sacrifice rainforest conservation for oil and mining exploitation. In this context, indigenous people grew frustrated and blocked a major highway. Such acts of violence resulted in deaths and injuries. Subsequently during the administration of Ollanta Humala, legal and administrative measures of free, prior, and informed consultation were adopted to change the historic exclusion of indigenous peoples. However, one year after the law was enacted there remain acts of violence and protest regarding free, prior, and informed consultation. This article focuses on the reformatory effects of the law and the symbolism it generates for indigenous peoples, as well as the unintended consequences of the law’s boundaries. 

Michael Blakeney
22 Pac. Rim L. & Pol'y J. 391

March 2013

Abstract: This article examines the extent to which the spiritual beliefs of Aboriginal and Torres Strait Islander Peoples are protected under current Australian law. The first significant recognition by the High Court of Australia of the legal rights of indigenous peoples was in relation to native title over real property. As those peoples define their status and society by reference to their relationship with the land, this article considers the ultimately unsuccessful attempt to protect their spiritual beliefs as an incident of native title law. It reviews a line of intellectual property cases which have been a more fruitful source of protection, as well as the possibilities of the protection of the spiritual beliefs of indigenous peoples under racial vilification laws. With changes to the Australian Constitution to recognize the particular rights of Aboriginal and Torres Strait Islander Peoples currently under consideration, the article concludes with the speculation that specific Federal legislation could achieve the protection of their spiritual beliefs. 

Johanna L. Gusman
22 Pac. Rim L. & Pol'y J. 429

March 2013

Abstract: The feminization of displacement refers to the phenomenon in which women represent an increasingly disproportionate percentage of displaced populations worldwide. The objective of this comment is to raise awareness of this growing problem and recommend that policymakers craft legal responses to better address this reality, using Ecuador as an example. Specifically, this comment outlines how a gender-focused approach to local integration in Ecuador can rectify a refugee policy that never once mentions gender and is silent on the most pressing issues facing refugee women and girls in the area: sexual and gender-based violence. Through the proposal put forth in this comment, it is hoped that increased attention to the feminization of displacement and the plight of women in general can be recognized and as a result, properly incorporated into the refugee policies that affect them.

Samuel H. Shaddox
22 Pac. Rim L. & Pol'y J. 469

March 2013

Abstract: Investors and the Chinese government tout the March 2010 authorization of the Foreign Invested Partnership as an exciting new method for foreign investment in China. However, this comment argues that the Foreign Invested Partnership is not likely to become a vibrant short or long-term platform for foreign direct investment. The historical trends of China’s three other vehicles for foreign direct investment from 1979 to the present provide two key conclusions. First, foreign investors will not utilize Foreign Invested Partnerships until they receive detailed implementing regulations from China’s central government. Second, support or restrictions from the Chinese government can drive or inhibit use of an investment vehicle. China’s Foreign Invested Partnership lacks detailed regulations, and is also not likely to receive them in the future because of increased involvement with local authorities. Additionally, it is not likely to receive support from the Chinese government because of lingering suspicions of the partnership enterprise and an ongoing political transition. Because foreign investors will shy away from this unpredictability, the Foreign Invested Partnership is not likely to be widely utilized in the short or long term. The author recommends that Foreign Invested Partnership proponents overcome these hurdles by pushing for detailed, favorable regulations for equity investment-focused Foreign Invested Partnerships.