The problem identified are: The Lost Legal Space of the Indigenous Communities.

Published: 2022-12-08
The problem identified are: The Lost Legal Space of the Indigenous Communities.
Type of paper:  Essay
Categories:  Psychology Research Medicine
Pages: 7
Wordcount: 1787 words
15 min read

According to the article, Borrows argues that this obstacle precludes the articulation and acceptance of Indigenous knowledge, which frustrates these peoples participation in the design of better human settlements. As a result, an important perspective about how humans are ultimately embedded in nature is lost. This loss is illustrated through a case study that examines a proposed development on Hay Island, lands where Indigenous peoples have a continuing interest. A decentered map of law, with attention other than on the courts, re-focuses scrutiny on how these informal, customary practices of law continue to operate simultaneously with the often more visible and formal institutions of law.

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As a result, these rules have inhibited the reception of Indigenous knowledge and thereby frustrated the design of sustainable settlements. Ironically, the denial of Indigenous participation has led to large loopholes that pose a danger to surrounding non-native communities. For example, in the United States, some Indian reserves have sited nuclear waste in their lands to produce greater revenues. This poses a threat to the surrounding state and local authorities, and there are few opportunities for these external communities to participate in tribal decisions. Therefore, nation-to-nation cooperation and harmonization Indian, federal, state, and provincial law may create incentives to deter activities within First Nations. For contrasting opinions of the appropriateness Indigenous, control over nuclear war CITATION Bor97 \l 1033 (Borrows).

Exclusion in Land use Planning

As Borrows argues, "environmental issues have not been satisfactorily addressed the design of the Hay Island project because of significant inequities parties' interactions. Many people at Neyaashinigmiing are that the non-native participants, in deciding project involvement, provided interpretations of law which direct political from the reserve. It is asserted that these interpretations, through informal legal reasoning, produced customary which excluded Neyaashinigmiing from the apparent planning exclusion seems to have raised serious issues representation, and conflict of interest CITATION Bor97 \l 1033 (Borrows).

. The Canadian law and the US has both inadvertently ignored and purposely undermined Indigenous institutions and ideas and, thus, weakened ancient connections to the environment.

Largely, Borrows' analysis of the article strongly agrees with the Crenshaw et al's description of a racial analysis to law. Crenshaw affirms that the critical racial theory emerged from a movement of the critical legal studies that argues, "Law is a social endeavor and that as such it will reflect and reproduce the cultural and political context within which it is undertaken." Also, Crenshaw argues the racial power is exercised ideologically and legally CITATION Cre19 \l 1033 (Crenshaw).

From the above arguments, it evident in Borrows' article that the Canadian and North American laws intentionally excluded the Indigenous Law as the Indigenous Planning Act. Similarly, Neyaashinigmiing from the apparent planning exclusion seems to have raised serious issues representation, and conflict of interest. The indigenous planning agencies are intentionally excluded from the development, disposition, and use of land in settlement and other uses. Besides, the North American settlements law CITATION Bor97 \l 1033 (Borrows). It evident that both the North American rules and the Canadian rules have collaborated to diminish the indigenous laws to extents of marginalization because of the relatively small number of the indigenous population. The Canadian law and the US have both inadvertently ignored and purposely undermined Indigenous institutions and ideas and, thus, weakened ancient connections to the environmentCITATION Tsi \l 1033 (Tsilhqot'in Nation v. British Columbia).

Section B

Ontario's Planning Act does not require and direct notice to, or participation from, the First legislative and policy framework produces institutions to minimize the existence of Indigenous communities. In this case, the local planning agencies appear never to have disclosed the proposed development to the reserve. The perceived lack of notice and involvement of the reserve is inappropriate from a planning and environmental perspective because Neyaashinigmiing would be the community most affected by the development." However, the depth of Indigenous exclusion appears to be even greater than issues of notice.

Secondly, according to the Chief and Council: 'there have been no formal negotiations with the Chippewas of Nawash Council concerning mainland access.' As such, the planning department report that went to County Council contained, in its view, a 'very serious misrepresentation.' The other planning report, submitted by the developer to the planning department, is also of concern to the Band. The developer's planning report indicates that both an individual on the reserve and the Council were prepared to agree to mainland access for the development.

The above problems do not fit into Posner's definition of economic problems; rather the above-identified problem matches Crenshaw et all critical race theory perfectly. The reason as to why the mentioned problems do not fit Posner's argument is because the legal regime governing environmental planning in the province of Ontario has not resulted from an economical perspective but rather from a political perspective. Similarly, as Barrow has highlighted, the above challenges resulted from racial discrimination and marginalization of the Indigenous societies.

However, there is a perspective that if critically looked at, may match Posner's argument. The primary message of Barrows' article in the utilization and disposition of land, particularly in the settlement sector. Thus, to some level, builders, contractors, and tender owners will need to subscribe for insurance cover; the projects will involve money, and transactions, which may later be used as evidence in the event of a case involving the client or the contractor. Thus, the above problems would be classified as a descriptive, which means that the decisions and reasoning of judges tend toward interpretive principles and rules of application that advance wealth maximization.

Basing the argument on Schmeiser v Canada, case, the Purposive construction of patent claims requires that they be interpreted in light of the whole of the disclosure, including the specifications, For instance, the abstract of the case was: Plant cells transformed using such genes and plants regenerated therefrom have been shown to exhibit a substantial degree of glyphosate resistance. The object of this invention was to provide a method of genetically transforming plant cells, which causes the cells and plants regenerated from that place to become resistant to glyphosate and the herbicidal CITATION Mon02 \l 1033 (Monsanto Canada Inc. v. Schmeiser).

According to the case, the defendant, Mr. Schmeiser was a conventional, non-organic farmer. For years, he had a practice of saving and developing his seed. The seed which is the subject of Monsanto's complaint can be traced to a 370-acre field while Monsanto Canada Inc sued Mr. Schmeiser for commercially reproducing (growing) their genetically modified seeds. However, according to the Jury decision, argued that " The purpose of s. 42 is to define the exclusive rights granted to the patent holder. These rights are the rights to full enjoyment of the monopoly granted by the patent. Therefore, what is prohibited is "any act that interferes with the full enjoyment of the monopoly granted to the patentee": H. G. Fox, The Canadian Law, and Practice Relating to Letters Patent for Inventions (4th ed. 1969), at p. 349;." CITATION Mon02 \l 1033 (Monsanto Canada Inc. v. Schmeiser).

According to Posner's argument, " "rules, procedures and case outcomes" that maximize social wealth By "wealth" Posner does not mean "cash" - what he means is the "sum of all goods and services, weighted by prices," CITATION Ric15 \l 1033 (Ponsner). It can be argued the although patent for plants and self-generating substance cannot be patent, Mr. Schmeiser may have contradicted Posner's argument. This had been indicated by the Judge's decision as shown below, "As a practical matter, inventors are normally deprived of the fruits of their invention and the full enjoyment of their monopoly when another person, without license or permission, uses the invention to further a business interest. Where the defendant's impugned activities furthered its commercial interests, we should, therefore, be particularly alert to the possibility that the defendant has committed an infringing use CITATION Mon02 \l 1033 (Monsanto Canada Inc. v. Schmeiser).

Section C Question 1

Posner's argument contains both a descriptive thesis (a thesis about what happens in the courts) and a normative or prescriptive thesis (a thesis about what should happen in the courts). These two theses are linked by an argument that purports to show that (a) what happens in the court is inevitable given their internal logic but that (b) we should be okay with this inevitability because what happens is a good thing and ought to be encouraged. The descriptive thesis is that the decisions and reasoning of judges tend toward interpretive principles and rules of application that advance wealth maximization. The prescriptive thesis is that developing and applying principles and applications that promote wealth maximization is what courts ought, ideally to do CITATION Ric15 \l 1033 (Ponsner).

Under the separation of powers doctrine, the role of the courts is to apply the law and not make the law. In practice, however, generally higher courts do make law. Courts engage in judicial lawmaking when they identify and fill a gap in the law, and when they refuse to apply precedent. Therefore, forms of judicial approaches (judicial philosophies) are created.

Posner suggests that there is an inherent economic structure in the common law that can be identified. The body of case law is effectively the market, and the market adjusts to create the most efficient outcome. That is, in Ponsner's view, the laws of negligence, for example, work to create the most efficient outcome for society and the parties. The criterion he uses to determine efficiency is "Pareto efficiency". This is achieved when a transaction makes a person better off without making any other person worse off.

The economic analysis of law in many cases begins with the concept of transaction costs. Transaction costs are the costs associated with any transaction including legal transactions. For example, they may include court costs, lawyer's fees, the time taken to finish the court case, etc.

On this view, what matters to the parties concerned is not just what their legal rights are, but also what their rights cost for them. Insurance can be seen as a form of loss spreading. All the insured people pay their premiums, and this fund is used to pay the cost of injury of, a particular person who was injured by the insured. It can be argued that insurance actually prevents deterrence because the person at fault does not pay for their wrong, but merely pays their premium. Insurance is either indemnity or non-indemnity. It has been argued by some that the fact (or assumption) of the availability of insurance allows judges or juries to set damages at a very high level CITATION Sau02 \l 1033 (Sauve v. Canada (Chief Electoral Officer)).

McLachlin C.J. and L'HeureuxDube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ on the 10th day of December of 2002, appealed to the court of appeal arguing against the Canada Elections Act. According to the Canada Elections...

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