ANTH 436 Lecture Notes - Lecture 4: Sui Generis, English Property Law, Aboriginal Title
23 May 2018
School
Department
Course
Professor
2/1/2018
opening remarks and reminders
• as an opening note, a lot of the differences between Borrows and Slattery have to do with the
fact that Borrows is Indigenous (Anishinabek)
o reminder to be aware of the author’s positionality
• individual essays due March 15th
o begin thinking about topics – which group/community you want to focus on, what angle
you want to take (email the professor to approve of topic/general direction of your
paper)
Slattery reading:
• “(3) They should draw inspiration from fundamental principles of international law and justice,
principles that are truly universal, and not grounded simply in rules that European imperial
powers formulated to suit their own convenience, such as the supposed ‘principle of
discovery.’69” (p 284)
• universal international law
o exclusive right to lands prior to contact
• international title → domestic title (Aboriginal, Indian, Native title)
o how to Indigenous nations recognize international law?
• Principles of recognition v. of reconciliation
• Customary, translation (English property law, the risk of being lost in translation), sui generis
• How do we recognize/work within 2 functioning legal systems?
• Is sui generis the only vehicle to recognize both legal systems?
o Best way to understand what has happened
o Aboriginal title only exists in relation to/in conflict with another legal/cultural system
• 1980s, customary law as an exception to the “one size fits all” governance
o so an Elder’s Council can be the band council
o accommodating within the parameters of federal government
▪ federal government is the founding/final choice
• sui generis necessarily implies diversity
o different interactions with the federal government
o but there’s a desire by the state for a common ground – this feathers the potential for
effective sui generis rule
o accommodating “local, unique” aspects of some groups, but still insisting on the idea
that their ontology is universal
● what is international law and justice
○ UNDRIP
○ is international law effective?
○ who decides what is a universal policy?
■ question of sovereign prerogative -- trying to get signatory states by consensus
to agree to certain standards (UNDRIP), coaxing collectivity towards a more civic
society
■ what can we agree to? how much agreement do we really have?
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Question of sovereign prerogative -- trying to get signatory states by consensus to agree to certain standards (undrip), coaxing collectivity towards a more civic society. Shared normativity as a never ending production -- it is a process done through continuing conversation the us-canada border. Both countries were reluctant to sign on to undrip. E. g. recognition of haudenosaunee sovereignty on both sides of the border. But the the reality is that sovereignty is cautionarily recognized differently on both sides of the border. Deal between european sovereigns about first come first serve basis of discovery international law 350 years ago = agreeing to some rules to avoid war indigenous governments came into the picture as needed (french and indian. War) there"s really nothing consistent about british law, nor its interaction with various other sets of laws. Understanding something as wrong, not on the basis of how many people you can get to agree with you, but because it is wrong.
