At the Intersection of Tangible and Intangible : Constructing a Framework for the Protection of Indigenous Sacred Sites in the Pursuit of Natural Resource Development Projects

While the issue of protecting Indigenous sacred sites in the pursuit of natural resource projects only came to public attention with the international press coverage of the Standing Rock Sioux’s Dakota Access Line Protest (DAPL) in North Dakota earlier in 2017, it has long been an issue of considerable concern for Indigenous peoples worldwide. This thesis considers the matter from three angles: legal anthropology/Indigenous theory, international law and comparative law. The twin perspectives of legal anthropology and Indigenous theory are employed as external disciplines in a check-and-balance exercise that aims to clarify the Indigenous conceptions of time, space and the sacred in the four jurisdictions under comparison –Canada, the United States, Australia and Aotearoa New Zealand– in a non-reductive, non-essentialized, non-romanticized manner. The objective of this exercise is to create a matrix against which juridical mechanisms and/or legal provisions for the protection of Indigenous sacred sites can be measured in the four jurisdictions studied, with the ultimate aim of crafting an improved, context-sensitive framework for the protection of Indigenous sacred sites in each such jurisdiction. Context-sensitive framework refers to a framework aligned with the country’s legal culture, Indigenous values, customs and identities found within the boundaries of that jurisdiction, and with such international norms as may potentially be pertinent in that state. This demands a multi-faceted, layered approach. The international law perspective is crucial due to three factors: first, the predominance of phenomena such as globalization, internationalization and glocalization in the modern world; second, the telecommunications revolution, which has meant that Indigenous peoples increasingly rally support for their causes on the international stage; and third, the high-profile conflict between State sovereignty and Indigenous self-determination that is ubiquitous on the world stage. The focus of this study is necessarily limited to the relationship between international and domestic law in each of the four jurisdictions. Since this is a thesis for a doctorate in law, there is comparative law at the heart of it. In each of the four jurisdictions a similar methodology is followed. In the first step, the most pertinent legal mechanisms for the protection of sacred sites are considered from up close. The second step is to test the effectiveness of such mechanisms with reference to a concrete case study in that jurisdiction. The case study contemplates the legal mechanism in question in its factual contexts with the aid of the matrix as in the first portion of the thesis. Then a process of analysis and synthesis follows, until finally, some conclusions are drawn for utilization in the construction of the final chapter’s proposed framework. The final chapter proposes both an ideal solution and some pragmatic proposals in the context of each jurisdiction. In sum, the thesis concludes that Aotearoa New Zealand’s legal approach provides an interesting basis for further development. It is deemed to be transposable into the other three jurisdictions not based on the fact that they share a common law heritage, but rather because of the compatibility of the methodology that was followed in developing the said mechanism in a manner that gives expression to Indigenous cultural values, customs and identity through the use of Western legal structures and concepts.

Keyphrases: American Indian law, Obligation de consulter, Aboriginal title, Native title, Cultural heritage protection, Duty to consult, Indigenous peoples, Legal personality, Natural resource development, Sacred site, UNDRIP