Rising global attack on Indigenous: Desperate Defense, with Litigation & Lawsuit

The other day, as many Black Australia communities, was/is being evicted from traditional lands in Australia, with many saying the eviction is for the Australia government, to grab resources, I saw a cartoon.

The cartoon was about an indigenous people, standing in front of a Australian judge, and the judge said, if you agree to give up your resource rights, and other rights, then the judge will recognize, the land is traditionally owned by the indigenous.

So why did the judge said that.

Perhaps it is because the United Nations, with UNDRIP Article 26, stated that “Indigenous people have the right to own, use, develop and control the lands, peoperties and resources which they have traditionally owned or occupied.”

So what are the alternative, to like Black Australia.

I am quite new to the indigenous issue, just got interested in the issue, for about 6 months. When I first got interested, I started with Native Americans, then start looking into Canada’s First people. Then I notice a trend, with Native American and First People of Canada, being tribes were beefing up their legal expertise. Then came two to three articles, saying this and that tribe, is known as having the best legal department, in, i.e. Canada and America.

Then I started to look into the Amazon Area and Russia, & saw many indigenous were being hit with legal constraints, i.e. Russia, placing indigenous into “Foreign Agent Category” and confiscating indigenous land. Then in Amazon, lots and lots of activities, mostly, illegal, against indigenous.

Thinking about indigenous and legal issues, what came to my mind is “International Litigation” & Class Action Lawsuit.” The following 1) is from the Wikipedia on International Litigation and 2) is from the Wikipedia on Class Action Lawsuit.

1) From the Wikipedia on International Litigation:

International litigation (sometimes called “transnational litigation”) is the practice of litigation in connection with disputes among businesses or individuals residing or based in different countries.

The main difference between international litigation and domestic litigation is that, in the former, certain issues are more likely to be of significance — such as personal jurisdiction, service of process, evidence from abroad, and enforcement of judgments.

Jurisdiction

Although there are differences among the jurisdictional statutes of many American states, they all are subject to the due process requirements imposed by the Constitution of the United States.[1] As a result, most American lawyers who are familiar with general principles of jurisdiction in one or more states of the US are able to guide their clients through jurisdictional issues in connection with disputes among litigants from different states.

The situation is different with respect to jurisdictional principles in the international context. The first difference concerns Long arm jurisdiction,

(Long-arm jurisdiction refers to the ability of local courts to exercise jurisdiction over foreign (“foreign” meaning out of jurisdiction, whether a state, province, or nation)defendants, whether on a statutory basis or through a court’s inherent jurisdiction (depending on the jurisdiction). This jurisdiction permits a court to hear a case against adefendant and enter a binding judgment against a defendant residing outside the jurisdiction concerned. Generally, the authority of a court to exercise long-arm jurisdiction must be based upon some action of the defendant which subjects him or her to the jurisdiction of the court.)

which is the statutory grant of jurisdiction to local courts over out-of-state defendants. A long-arm statute authorizes a court in a state to exercise jurisdiction over an out-of-state defendant. Without a long arm statute, the courts in a state might not have personal jurisdiction over an out-of-state defendant. A state’s authorization to exercise jurisdiction is limited by the federal Constitution. The use of a long arm statute is usually considered constitutional where the defendant has certain minimum contacts with the forum state and there has been reasonable notice of the action against that defendant.

Second, many countries take the view that American concepts of long-arm jurisdiction are too broad, and courts of such countries will not recognize judgments from American courts based on the exercise of American long-arm jurisdiction.

Looking at the issue from the non-American perspective, courts in some countries exercise jurisdiction based upon principles that American courts would consider unfair and repugnant to American law.

For example, in some countries, such as England and Israel, a court may exercise jurisdiction over a defendant that is considered to be a “necessary or proper” party in a case against a local defendant.[2] It is not clear that such a jurisdictional basis would be upheld by American courts when the non-US judgment-creditor seeks to enforce in the United States.

In every lawsuit, the plaintiff must effect service of process upon the defendant(s). In the international context, the issue of service of process is more complex.

In the United States, service of process is routinely carried out by private lawyers or their agents. In contrast, many other countries consider the activity of serving process in a judicial proceeding to be one appropriate only for the government or an arm of the government.

As a result of differing approaches to the issue of service of process, several nations signed the Hague Service Convention (1965)

(The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, more commonly called the Hague Service Convention, is a multilateral treaty which was adopted in The Hague, The Netherlands, on 15 November 1965 by member states of the Hague Conference on Private International Law. The treaty allows for service of process of legal documents from one state to another without the use of consular and diplomatic channels. The treaty supersedes the 1905 Civil Procedure Convention, which had previously dealt with the issue of international service of process.)

under which each member nation is required to establish a Central Authority to receive, review, and execute requests from foreign courts for carrying out service of process.

Most countries that are signatories to the Hague Service Convention will accept requests for service that are signed by the lawyer for the plaintiff (claimant). Two exceptions are the UK and Israel.

Any lawyer who ignores the international aspects of service of process when suing a non-US defendant might find that the resulting judgment cannot be enforced where the defendants’ assets are available.

Under the Federal Rules of Civil Procedure, a lawyer licensed in one federal district may execute a subpoena to obtain documents or testimony from a witness located in a (distant) federal district.[3]

In contrast to the domestic situation, when a party to an international dispute needs to obtain evidence located in a foreign country, that party will usually need to make a request of the local court for it (the court) to issue a Letter of Request pursuant to the Hague Evidence Convention.

(The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters — more commonly referred to as theHague Evidence Convention, is a multilateral treaty which was drafted under the auspices of the Hague Conference on Private International Law. The treaty was negotiated in 1967 and 1968 and signed in The Hague on 18 March 1970. It entered into force in 1972. It allows transmission of letters of request (letters rogatory) from one signatory state (where the evidence is sought) to another signatory state (where the evidence is located) without recourse to consular and diplomatic channels.[2] Inside the US, obtaining evidence under the Evidence Convention can be compared to “comity”.[3] The Hague Evidence Convention was not the first convention to address the transmission of evidence from one state to another. The 1905 Civil Procedure Convention — also signed in The Hague — contained provisions dealing with the transmission of evidence. However, that earlier convention did not command wide support and was only ratified by 22 countries. The United States initiated the negotiations that led to the creation of the Hague Evidence Convention. However, insofar as requests to United States courts are concerned, parties may also use the simpler discovery provision codified at 28 U.S.C. § 1782 (see Section 1782 Discovery).

Between states of the European Union, the Hague Evidence Convention has largely been supplanted by Council Regulation (EC) No. 1206/2001 on Cooperation Between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters.)

Under the HEC, each member state is required to designate a Central Authority to receive, review, and carry out incoming requests to obtain evidence from persons (or other entities) located in the receiving country.

Litigants before non-US tribunals may request the assistance of American courts to obtain evidence, through Section 1782 Discovery. The use of Section 1782 has increased in recent years.

2) From the Wikipedia on Class Action Lawsuit:

A class action, class suit, or representative action is where a group (a class) sues another party. It is pleonastic to refer to a class action as a “class action suit”. Collective lawsuits originated in the United States and are still predominantly a U.S. phenomenon. But in several European countries with civil law, contrary to Anglo-American common law, changes have been made in recent years to allow consumer organizations to bring claims on behalf of consumers.

In the United States federal courts, class actions are governed by Federal Rules of Civil Procedure Rule 23 and 28 U.S.C.A. § 1332(d).[1]

Class actions may be brought in federal court if the claim arises under federal law or if the claim falls under 28 USCA § 1332(d). Under § 1332(d) (2) the federal district courts have original jurisdiction over any civil action where the amount in controversy exceeds $5,000,000 and

  • any member of a class of plaintiffs is a citizen of a State different from any defendant; or
  • any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or
  • any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.[2]

Nationwide plaintiff classes are possible, but such suits must have a commonality of issues across state lines. This may be difficult if the civil law in the various states lack significant commonalities. Large class actions brought in federal court frequently are consolidated for pre-trial purposes through the device of multidistrict litigation (MDL).[3] It is also possible to bring class actions under state law, and in some cases the court may extend its jurisdiction to all the members of the class, including out of state (or even internationally) as the key element is the jurisdiction that the court has over the defendant.

Typically, federal courts are thought to be more favorable for defendants, and state courts more favorable for plaintiffs. Many class actions are filed initially in state court. The defendant will frequently try to remove the case to federal court. The Class Action Fairness Act of 2005[4] increases defendants’ ability to remove state cases to federal court by giving federal courts original jurisdiction for all class actions with damages exceeding $5,000,000 exclusive of interest and costs.[5] It should be noted, however, that the Class Action Fairness Act contains carve-outs for “inter alia”, shareholder class actions covered by the Private Securities Litigation Reform Act of 1995 and those concerning internal corporate governance issues (the latter typically being brought as shareholder derivative actions in the state courts of Delaware, the state of incorporation of most large corporations).[6]

The procedure for filing a class action is to file suit with one or several named plaintiffs on behalf of a proposed class. The proposed class must consist of a group of individuals or business entities that have suffered a common injury or injuries. Typically these cases result from an action on the part of a business or a particular product defect or policy that applied to all proposed class members in a typical manner. After the complaint is filed, the plaintiff must file a motion to have the class certified. In some cases class certification may require discovery in order to determine its size and if the proposed class meets the standard for class certification.

Upon the motion to certify the class, the defendants may object to whether the issues are appropriately handled as a class action, to whether the named plaintiffs are sufficiently representative of the class, and to their relationship with the law firm or firms handling the case. The court will also examine the ability of the firm to prosecute the claim for the plaintiffs and their resources for dealing with class actions.

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