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Dr Mark Harris
Social Justice Institute, University of British Columbia

This paper explores emerging trends in the jurisprudence of settler-colonial nations in relation to Indigenous cultural rights and claims. The paper considers three cases dealing with this issue: the construction of a thirty-metre telescope on the Hawaiian island of Mauna Kea; the case of Ktunaxa Nation v. British Columbia (2014) that concerned the construction of a ski resort on a spiritually significant location and the Australian High Court decision of Northern Territory v Griffiths (dec’d) and Lorraine Jones (on behalf of the Ngaliwurru and Nungali Peoples & Anor) [2019] which upheld the right to compensation for cultural loss resulting from the extinguishment of native title rights. Drawing from the work of Pasternak, Coulthard and Nicholls the paper considers the way in which settler-colonial legal systems continue to frame the nature of culture and cultural rights in a manner that confirms or protects the flows of capital and the capacity of the nation to extinguish significant cultural sites. In a different vein the Griffiths decision can be seen as an example of how the nation can seek to recuperate its position by disavowing the violence of its colonial dispossession without disrupting the existing regimes of Austraian property law. In conclusion it is argued that the ways in which the law defines, reduces or extinguishes Indigenous claims to their cultural rights and heritage is yet another manifestation of what Patrick Wolfe termed the ‘logic of elimination’.

Dr Mark Harris is an Associate Professor in the Institute of Gender, Race, Sexuality and Social Justice. His research focuses on Indigenous rights in relation to cultural heritage, land claims, the stolen generations, intellectual property and criminal justice issues. He has worked as a lawyer giving advice on native title claims for the Wurundjeri, Gunai Kurnai, Manatunga and Gubbi Gubbi Indigenous communities in Australia and continues to provide advice to Indigenous groups on a range of issues. He has presented at international conferences around the world and has developed extensive collaborative links with other academics working with and for Indigenous communities in the USA, New Zealand, India, Africa and Brazil. As a representative of LatCrit, an NGO comprising legal academics working in the field of critical race theory and racism, he has participated in the United Nations Permanent Forum on Indigenous Issues. His recent research projects have included reviews of the operation of Koori (Aboriginal) courts in Victoria (a program that is not dissimilar to Toronto’s First Nations Gladue Courts), and the experience of Koori youth in the justice system. He also works in the field of postcolonial legal theory, which informed his manuscript titled Human Rights, the Rule of Law and Exploitation in the Postcolony: Blood Minerals that will be published by Routledge later this year. He is currently an editor, along with Professor Denise Ferreira da Silva (Institute of GRSSJ, UBC) and Dr Brenna Bhandar (SOAS, London) of the Routledge series, Law and the Postcolonial: Ethics, Politics and Economy.

 

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