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Rights to land, fragmentation and fairness: the problem of transnational legal governance for indigenous groups

Rights to land, fragmentation and fairness: the problem of transnational legal governance for indigenous groups

Bhatt, Kinnari I. (2016) Rights to land, fragmentation and fairness: the problem of transnational legal governance for indigenous groups. PhD thesis, University of Greenwich.

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Abstract

This thesis identifies what legal rights to land exist for persons claiming a special socio-economic, cultural and communal relationship to land. Through empirical case studies and legal examples, it identifies and evaluates land rights and related remedies through the theoretical lens of transnational law. This theoretical approach investigates modern law-making in contexts that challenge state sovereignty to include actors, norms and processes in ‘globalised’ contexts as part of the investigation. Rights are discussed through a legal framework placing ‘Indigenous’ actors (regardless of whether they enjoy formal legal protection) at the analytical core and includes norms (state and non-state, contract and policy norms) on land rights. Evidence of Indigenous rights is identified in transnational legal contexts of common law aboriginal Title, international human rights law on ‘displacement’, ‘rights to abode’, private contractual arrangements, financial policy resettlement ‘standards’ and definitions of ‘Indigenous’ in law and policy. Land rights might include a legally binding, independent and fundamental ownership right or collateral rights supporting the development of such right into a legally binding norm. Canada and Australia are key jurisdictions from which legal evidence is collected. Further evidence is drawn from countries typically un-associated with Indigenous persons, including Mongolia and the Chagos Islands to compare application of law and policy on land rights in disparate jurisdictions thus ascertaining any uneven application of the law in plural social contexts. To understand any disparity in the availability of rights and remedies, each chapter suggests evidence of legal, economic and political ‘transnational governance processes’ within judicial interpretation and development project spaces that resonate with colonial agricultural arguments and ultimately, compromise availability and effectiveness of land rights. Concluding suggestions explore what special measures might advance protection for Indigenous actors thus contributing to legal and development goal narratives on a ‘thick’ international rule of law and global fairness.

Item Type: Thesis (PhD)
Uncontrolled Keywords: International law; indigenous land rights; transnational governance; Aboriginal rights; collateral rights;
Subjects: H Social Sciences > HD Industries. Land use. Labor
K Law > K Law (General)
Faculty / Department / Research Group: Faculty of Architecture, Computing & Humanities
Faculty of Architecture, Computing & Humanities > Department of Law
Last Modified: 11 Apr 2019 11:06
Selected for GREAT 2016: None
Selected for GREAT 2017: None
Selected for GREAT 2018: None
Selected for GREAT 2019: None
URI: http://gala.gre.ac.uk/id/eprint/23534

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