Implementing Bill C‐92: Strengthening Indigenous Jurisdiction and Community Resilience in Child Welfare

I am grateful for the financial contributions provided by the Canadian Indigenous of Health Research (CIHR), Institute of Indigenous Peoples Health and Gender and Health, with First Nations Health Authority, the Canadian Nurses Foundation, and the University of Victoria.

The article presents the authors’ ideas concerning the legal nature of land rights of indigenous small-numbered peoples in Russia. It should be noted that land rights of indigenous small-numbered peoples are part of their special constitutional legal personality, an essential element of their legal status. On the basis of international acts on the rights of indigenous peoples, the opportunity to give indigenous small-numbered peoples of Russia their traditional land to use on the grounds of ownership is assessed as non-promising. The article scrutinises the system of land rights of indigenous small-numbered peoples that is established in Russia. The authors point to the imperfection of the legislation in this area, which may lead to violation of the rights of indigenous small-numbered peoples. It should be noted that one of the most important state guarantees is the right of indigenous small-numbered peoples to free and indefinite use of lands.

Every State wants a condition in which the people have a prominent level of welfare and prosperity, because that condition can reflect how a state has been successful in carrying out its development. The existence of development that can lead to prominent level of welfare and prosperity, certainly, shows the success of a state in achieving the state's goals. But in practice it is often found that the people of a state do not have a prominent level of welfare and prosperity due to the unprotected rights of the people. The lack protection rights of the people are one form of social problems; which of course requires a very fast handling. Therefore, in general, every state tries, so that the protection rights of the people can be fulfilled. Similarly, for the state of Indonesia, the protection of communal customderived land rights (ulayat rights) of indigenous peoples is one of the tasks that must be fulfilled by the government. The effort is not easy; therefore, needs a thorough study to overcome the problem. The method used in this research is a normative juridical method. The results of the study, indicate the role of government in regulating the recognition forms of the rights of indigenous peoples, especially, communal custom-derived land rights of indigenous people. In addition, there are various substances of legislation that must be regulated in order to recognize communal custom-derived land rights of indigenous people such as how to recognize indigenous peoples, their recognition procedures, indigenous peoples' obligations, and dispute resolution mechanisms. Finally, regulation about recognition of indigenous peoples is expected to have an impact on the economic development of indigenous peoples itself.

International development efforts have increasingly recognized the importance of protecting traditional knowledge, especially in the context of indigenous communities. Traditional knowledge encompasses a broad range of information, practices, and beliefs that have been passed down through generations within a community, often related to areas such as medicine, agriculture, and the environment. However, the exploitation of traditional knowledge by outsiders has led to concerns about intellectual property rights and cultural appropriation. International efforts to protect traditional knowledge have included the creation of legal frameworks, such as the Nagoya Protocol, which aims to ensure that access to and use of traditional knowledge is based on prior informed consent and that benefits are shared fairly. Additionally, initiatives such as the United Nations Declaration on the Rights of Indigenous Peoples have emphasized the importance of recognizing and respecting the rights of indigenous peoples to their traditional knowledge and cultural heritage. Despite these efforts, challenges remain in effectively protecting traditional knowledge. The complexity of traditional knowledge and the diversity of indigenous communities means that a one- size-fits-all approach is not always effective. Additionally, the power imbalances between indigenous communities and external actors can make it difficult to ensure that traditional knowledge is used and shared in a manner that respects the rights and autonomy of the communities involved. Overall, protecting traditional knowledge is an important aspect of international development efforts, and requires ongoing engagement with indigenous communities to ensure that their rights and knowledge are respected and protected.

Intellectual property rights (IPRs) and the regimes of protection and enforcement surrounding them have often been the subject of debate, a debate fuelled in the past year by the increased emphasis on free-trade negotiations and multi-lateral treaties including the now-rejected AntiCounterfeiting Trade Agreement (ACTA) and its Goliath cousin, the Trans-Pacific Partnership Agreement (TPPA). The significant media coverage afforded to these treaties, however, risks thrusting certain perspectives of IPR protection and enforcement into the spotlight, while eclipsing alternative, but equally crucial voices that are perhaps in greater need of legitimate dialogue to safeguard their own collection of intangible rights. Caught in the vortex of inadequate recognition and ineffective protection, are the communal intellectual property rights of indigenous communities, centred on traditional knowledge (TK), traditional cultural expressions (TCE), expressions of folklore (EoF) and genetic resources (GR). The fundamental incompatibility between current IPR regimes and the rights of indigenous peoples stems largely from the lack of understanding of the driving forces that have led to the development of TK, TCEs, EoFs and GRs – that of the protection of whole indigenous cultures through the preservation of the traditional knowledge acquired by these communities as a whole. The issues are complex. Professor James Anaya’s 2014 keynote speech at the 26 Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore at WIPO highlighted the differences governing the intangible rights of indigenous peoples generally, and why these world views have so often been left out of the current mainframe of IPRs. Whereas, the majority view of IPRs tends to focus on the rights of the individual and their protection as such, indigenous cultures are inherently built over centuries and across generations on communal understandings and organic exchanges of knowledge, making it practically impossible to ascribe the ownership of a certain set of IPRs to one or a few individuals. As Professor Anaya articulates and the authors of this special issue of JIPLP varyingly contemplate, the similarities between the inadequacies of the protection of tangible rights of indigenous peoples (eg indigenous land rights) and that of their intangible rights protection (including IPRs) tend to stem from a common source – the failure to acknowledge the “inherent logic of indigenous peoples’ world views”. Perhaps the solutions lie not just in finding ways to include indigenous IPRs in current IPR regimes, but through the facilitation of an entire paradigm shift to capture the nuances of these issues both effectively and precisely. How, for instance, can indigenous IPRs be valued commercially, and how may adequate compensation models be developed in exchange for the commercial use of these rights? A key to increasing the recognition of the inherent value of indigenous IPRs within their traditional cultural settings may lie in developing methods to properly value this worth in tangible terms. What seems necessary is a model to adequately measure the significance of indigenous IPRs, starting at the source (the indigenous community), and finding ways of translating this value into benefit systems that can be returned to the communities from which the IPRs were sourced. Hence recognition is attributed to the crucial part these IPRs play within the cultures from which they are derived. The strength of intellectual property law lies in its ability to meet the demands of a frenetically changing world, thus affording it vast amounts of power in shaping the law of the future; but this brings with it the

11. First Nations Child and Family Services and Indigenous Knowledge as a Framework for Research, Policy, and Practice was published in Towards Positive Systems of Child and Family Welfare on page 269.

The paper is an overview of the participation of the northern indigenous peoples in the public management of the Arctic territories in Russia. Different forms of participation are described, and most attention is paid to the co-management of the governments and the indigenous peoples when their mutual aim is protecting the Arctic and its natural landscapes in the period of extensive industrial development. The principle objective of the paper is to analyze the international and national legal regulations and to show some effective legal mechanisms through which participation can be developed in Russia. The authors study definitions of participation, the main international principles of participation and give a deep analysis of the legislation of the Russian Federation, which provides the framework for indigenous participation. Much attention is paid to the legislation of the federative regions of Russia which are inhabited by the northern indigenous peoples. Mostly the authors study the example of the Yamalo-Nenets Autonomous Area, the Arctic area of Russia with the biggest gas reserves, inhabited by the Nenets. The first conclusion made in the paper is that the Arctic countries must not only prioritize the exploitation of rich Arctic resources, but also be aware that the Arctic is primarily the home and the area of the traditional lifestyle and occupations of the northern indigenous peoples who have lived there for a long time. The northern indigenous peoples are interested in cooperation with the governments according to their traditional values and knowledge; they want to be involved in the decision-making process and management of their territories and resources. The second conclusion is that a patchwork of federal laws regulating indigenous issues in Russia does not grant any special rights that let the northern indigenous peoples participate in the decision-making process concerning the lands and resources in the Arctic areas. The federal government mostly implements the concept of paternalism but not the concept of participation. The federative regions in their regulations provide considerably more opportunities for participation. However, the regions are quite restricted by the federal legislation. The regulations are fragmentary on both the federal and the regional levels, there is no system of public authorities providing for consultation, cooperation, agreements and other forms of indigenous participation. Moreover, in Russia there is very little experience in the realization of the participation of the Arctic territories and resources. The third, and most important, conclusion is that participation in the management of the Arctic territories should become a new element of the Russian Arctic policy. From this perspective it is necessary to ratify and sign two international documents – Indigenous and Tribal Peoples Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples – and to incorporate the basic principles of participation into the Russian federal legislation. Also it is vital to establish a specialized federal body on indigenous issues with a special focus on the northern indigenous peoples. Lastly, the legal and administrative capabilities of regions and local authorities should be increased, and the regional and local bodies should be vested with the power to involve indigenous peoples in the management of the northern territories.

12. Learning from International Comparisons of Child Protection, Family Service, and Community Caring Systems of Child and Family Welfare was published in Towards Positive Systems of Child and Family Welfare on page 289.

The article analyzes the institutional mechanism for protecting the rights of indigenous peoples at the international universal and regional levels, in particular within the United Nations, the African Union, the Organization of American States etc. It was established that in order to comprehensively protect and promote the rights of indigenous peoples, a number of bodies and specially authorized officials function within the UN structure (the UN Permanent Forum on Indigenous Issues, the Inter-Agency Support Group, the Expert Mechanism on the Rights of Indigenous Peoples, the Special Rapporteur on the Rights of Indigenous Peoples). It is emphasized that the activities of such bodies and special procedures are aimed at raising awareness of the rights of indigenous peoples, promoting integration and coordination of activities in this area, promoting the application of the UN Declaration on the Rights of Indigenous Peoples, preparing and publishing studies on the situation of indigenous peoples' rights, assisting Member States and/or indigenous peoples in developing legislation and policies related to the rights of indigenous peoples, identifying best practices and sharing them, etc. It was determined that within the American and African regions, an organizational and legal framework in this area has also been created, including: the Working Group on Indigenous Populations/Communities and Minorities in Africa and the Office of the Rapporteur on the Rights of Indigenous Peoples. It is emphasized that the mandate of the Working Group on Indigenous Populations/Communities and Minorities in Africa includes minority rights, given that the protection of the rights of non-dominant minorities is key to ensuring the exercise of rights on an equal footing as well as socio-economic development, national cohesion, peaceful coexistence and conflict prevention on the continent.

Human Rights of Indigenous Peoples in Africa within the Context of Indigenous Knowledge Systems and Sustainable Environmental Management

This chapter focuses on indigenous peoples, but will also seek to address the other significant minorities in contemporary New Zealand. The chapter proceeds as follows. Section 3.1 articulates the relevant history in order to understand the contemporary issues facing protection of indigenous and minority rights in the state. Section 3.2 identifies the groups that come within the purview of the definition of ‘minority and indigenous peoples’ and the range of needs these communities face. Section 3.3 portrays the range of ‘rights’ that currently exist in New Zealand law, drawing from the Constitution, special regimes as created through statutes, interpretation of case-law, and crucially the Treaty of Waitangi and its interpretation by the statutory body, the Waitangi Tribunal. Section 3.4 concentrates on the remedies available in New Zealand to tackle violations of the rights of indigenous peoples and minorities. It assesses the institutional framework for rights, and reassesses the remedies needed to arrive at a regime respectful of the rights of minorities and indigenous peoples. The concluding section offers a brief comment on the future protection of indigenous peoples and minorities in New Zealand.

The implementation of the nature conservation project in the Democratic Republic of Congo hascaused upheaval among indigenous communities in the wake of the decision to evict them from their landwithout compensation or indemnification.However, in addition to the proposed law on the protection and promotion of the rights ofindigenous peoples in the DRC, which is currently being drafted in parliament and which will have to bepromulgated by the President of the Republic, the Democratic Republic of Congo has ratified severalinternational legal instruments relating to human rights and, by extension, to the rights of indigenouspeoples, in which the Principle of Free, Prior and Informed Consent is expressed in various ways. Thisprinciple calls for the participation of indigenous peoples at two levels: at the level of decision-makingthat may affect their right to the environment, but also at the level of policy-making aimed at protectingthe environment, as local knowledge is indispensable. However, despite the existing legal order, theimplementation of this environmental justice of indigenous peoples seems to be ineffective. The greatestchallenge remains its implementation. Many agree that international human rights law is even better whenit comes to environmental protection. Some point out that environmental protection can be a condition forthe enjoyment of other human rights.In addition to the right to the environment, indigenous peoples have the right to enjoy theirterritories, lands and natural resources; but they also have the right to participate in environmentalprotection.The fact remains that legislative and judicial weaknesses remain major obstacles to theeffectiveness and efficiency of environmental justice for indigenous peoples, for whom legal and judicialreform remains a panacea. To this end, it would be more appropriate to accelerate the process ofpromulgating the law on the protection and promotion of the rights of indigenous peoples, in which theirstatus must be well defined. This will give them standing to sue in the future. The interdisciplinary natureof environmental law also requires the creation of chambers specialising in environmental law within theCongolese judicial system.

Indigenous peoples are particularly vulnerable to the negative effects of climate change, as their livelihoods and ways of life depend heavily on natural resources impacted by climate variability and extremes. In addition, global climate governance and the implementation of climate projects often have damaging consequences on Indigenous peoples, including restricting their access to lands and resources. In this context, REDD+ as an international mechanism under the UNFCCC aimed at mitigating climate change through forest management, has raised concerns about its impact on the human rights of Indigenous peoples. To date, studies have shown that the implementation of REDD+ on a domestic level has had both negative and positive impacts in Indigenous peoples’ rights. Drawn from this tension, this article examines the relationship between the REDD+ mechanism and the rights of Indigenous peoples, focusing on its domestic operationalization in Chile.Chile, with a vast forest network in indigenous territories, offers valuable insights. The article highlights that REDD+ in Chile has allowed Indigenous peoples to incorporate their concerns into national forest governance and has facilitated project development in collaboration with Indigenous communities. These efforts have resulted in both financial and non-financial benefits for these communities. However, the analysis reveals that progress in promoting Indigenous peoples’ rights has been primarily in individual rights rather than their collective rights as peoples. While REDD+ in Chile has shown potential in promoting social and economic rights of Indigenous peoples, further attention is needed to address collective rights such as self-determination, land rights, and Free, Prior and Informed Consent (FPIC).

Indigenous Homeland Security: A Proposed United Nations Draft Declaration on the Rights of Indigenous Peoples and the International Law of First Contact

The cultures, languages and heritages of Indigenous peoples are threatened globally. If language loss is taken as an indicator of the loss of a people’s intangible cultural heritage (as embodied in their folklore, oral traditions and expressive arts), it has been predicted that the world will lose one-third of its remaining languages by the end of the twenty-first century. In this chapter, a review and an assessment are made of the Convention for the Safeguarding of the Intangible Cultural Heritage (ICHC) in terms of what its provisions contain that will help Indigenous peoples to gain a measure of protection for their intangible cultural heritage. This, under the Convention, includes their oral traditions, languages, performing arts, social practices, traditional knowledge and practices concerning nature and the universe, and traditional artisanship. Of particular importance is the extent to which Indigenous peoples themselves are empowered by the Convention to effectively protect and maintain their own intangible cultural heritage and to participate in the Convention’s processes. The relative strengths and weaknesses of the ICHC are also assessed against other standard-setting international instruments and processes that can be used to provide a measure of protection for the intangible cultural heritage of indigenous peoples, particularly in relation to their languages and traditional knowledge such as the United Nations Declaration on the Rights of Indigenous Peoples (adopted by the United Nations Human Rights Council in June 2006) and ILO Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries. Reference is also made to the relevance and effectiveness of the suite of intellectual property laws overseen by the World Intellectual Property Organization (WIPO) and particularly the deliberations of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore regarding the development of a sui generis law forthe protection of traditional knowledge. Other international environmental treaties and processes, such as the Convention on Biological Diversity, the International Treaty on Plant Genetic Resources for Food and Agriculture (the ‘Seed Treaty’) and the UN Convention to Combat Desertification, are also examined to provide a comparative perspective on what measures are currently being taken that can enable the maintenance and survival of aspects of the intangible cultural heritage of Indigenous peoples. Before reviewing the ICHC, and placing it within the context of other instruments, it will be useful to summarise its key features.