Nested Regulation in Law and Development: Identifying Sites of Indigenous Resistance and Reform

Despite a radical change in the contemporary regulation of Indigenous lands, comparative scholarship remains focused on state determined rights and their development by the judiciary. This focus is rooted in an assumption that rights recognition bestows protection on identified groups and their lands. However, the model has limited the ability of comparative law to engage with regulatory approaches to Indigenous land tenure – instead characterized by regulatory institutions that enable decision-makers to avoid encounters. This article corrects this anachronism by reframing comparative Indigenous law to better recognize how rights are embedded in nested regimes that legitimate rationalized decision-making. The concept of nested regimes, which has mostly been used internationally, is applied in the domestic context in order to clarify where regulatory authority overlaps and how decision-making on rights or its avoidance impacts other actors. Using several institutions – the judiciary, the executive, private industry, police, and Indigenous communities – the article illustrates how overlapping regimes attempt to avoid a rights based discourse and therefore complicate Indigenous strategies of resistance and reform. In doing so, this article presents the outlines of a larger project to develop methodologies that pay attention to the regulatory dimension of implementing constitutionally secured rights. This contributes to the growing interest in synthesizing law and development, comparative law and regulatory perspectives; disciplines which have remained intellectually isolated from each other until recently.