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Law

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  • ItemUnknown
    Administrative Convenience or Deliberate Reform? The Impacts of the Colonial Judicial Legacy of the Pre-Colonial Justice System in South-Western Nigeria
    (2023-12-08) Adeyeye, Adewale Adekunle; Akande, Rabiat
    In pre-colonial times, the ethnic groups that independently existed in the territory now called Nigeria had organized systems of government. However, the sweeping force of nineteenth-century colonialism erased most of these pre-colonial governments’ institutions and replaced them with the British system. Notably, in South-Western Nigeria (Yorubaland), historical evidence revealed the existence of a constitutional monarchy with organized branches of government. Especially, the pre-colonial judicial branch/justice system of the Yoruba monarchy was radically altered by colonialism. Using the interdisciplinary methodology, this research answered questions related to the structures and procedures of the pre-colonial justice system in South-Western Nigeria and how it is indelibly impacted by colonialism. In its systematic, and expository narration, this research found an inseparable nexus between lawfare and force as instruments of colonial distortion of the pre-colonial justice system of South-Western Nigeria. Thus, this work augments an aspect of the almost neglected field of African/Nigerian legal history.
  • ItemOpen Access
    Canada’s Cultural Property Export Controls: An Analysis of the Colonial and Heritage Discourses that Animate the Cultural Property Export and Import Act
    (2023-12-08) Davis, Madeline Anne; Buchanan, Ruth M.
    This thesis critiques Canada’s Cultural Property Export and Import Act (CPEIA) and its framing as a legal instrument intended to protect and preserve Canada’s cultural heritage. It focuses on the export provisions of the Act and the related experts and administrative bodies who oversee disputes under those provisions. I argue that colonial and capitalist heritage and property discourses are the foundation that underpins the CPEIA and as a result, the legislation both expressly and implicitly privileges colonial and capitalist ideas about heritage and property ownership. The legislation, on its face and through the limited examples of available application, leaves little room for alternative ideas about the meaning of “heritage” and its association with culture. Relying on Laurajane Smith and Fiona Macmillan’s work on the Authorized Heritage Discourse, I provide an updated historical account of the CPEIA and Canada’s perceptions of cultural property as a settler state in light of new opportunities to engage with the application of the legislation following recent decision from the Federal Court of Appeal and the Canadian Cultural Property Export Review Board.
  • ItemUnknown
    Critically Evaluating the Role of the Judiciary in the Good Governance Paradigm: A Study of Pakistan
    (2014-06) Muhammad Azeem; Ruth M Buchanan
    In this dissertation, I critically evaluate the central role assigned to the judiciary in “the good governance” paradigm (as promoted by international institutions such as the World Bank), through a study of Pakistan. I argue that the paradigm’s focus on institutional arrangements/rearrangements, in order to produce a strong judiciary, judicial reforms, and to implement ‘the rule of law’, is problematic. I find, in contrast, and based on a detailed historical study of the different judicial regimes in the post-colonial era, that the judiciary is a part of the state, and has served to reproduce the state, in its democratic and military forms, as well as political and structural inequality in Pakistan. I document in detail how the judiciary increasingly gained autonomy in state power leading to result in what I term as a ‘judicial dictatorship’ by the 2000s. Through the thesis, I advance an alternative structural analysis of the state and institutional arrangements, using a class analysis and historical-contextual approach. My study argues that a strong (‘activist’) judiciary cannot be a substitute for a weak and inadequately representative legislature. The fallback position of the judiciary - in promoting a ‘rights’ discourse, or protection of minorities - is also an inadequate remedy for the lack of a deeper democracy in the society. My research in Pakistan contributes to the view that the role of the judiciary ultimately is to uphold political ends crafted elsewhere, rather than be seen as an agent to ‘cause’ political betterment. This study is based on most of the relevant case law in the post-colonial era, primary sources such as interviews, speeches, and judge’s monographs, as well as the available secondary material such as journal articles, books, and newspaper reports.
  • ItemOpen Access
    Unfortunate But Ordinary: A Study of Federal Court Approaches to Stays of Removal
    (2023-08-04) Joundi, Talia; Rehaag, Sean
    Interlocutory decisions issued on stay of removal motions by the Federal Court of Canada remain under-studied. A leading reason for the limited research is that stay orders were not published or publicly accessible five years ago. Since then, changes to the Court’s policies regarding publication have increased the number of accessible stay orders. The outcome of a denied stay motion may result in the immediate deportation of a foreign national from Canada. Given the high-stakes nature of these decisions, it is imperative to critically examine stay motion procedures, laws, and trends against established human rights norms. This study presents an overview of this final legal frontier followed by a multi-method inquiry to investigate Federal Court stays. The inquiry exposes an area of law that remains extremely limited and procedurally lacking, resulting in a legal process that stands in tension with human rights protections.
  • ItemOpen Access
    The International Patent Practice Narrative: Patent Agents, Epistemic Capture and the Patent Bargain
    (2023-08-04) Aoun, Wissam Joseph; Vaver, David
    This work explores the question of how professionalization of patent agency along with its accompanying discourse has affected the direction of international patent institutions and networks. Professionalization of patent agency is defined as the government regulation of who may provide patent agent services to the public through the form of professional licensing requirements. To the extent that professionalization of patent agency has created a unique discourse of patent agency, to what degree and in what respects has this discourse transformed global patent institutions? In particular, has this discourse created a form of ‘epistemic’ or ‘cultural’ capture that has the effect of delegitimizing other valid forms of discourse? Through the application of several methodologies, namely, historical analyses, doctrinal analyses and qualitative empirical work, this study attempts to create what epistemic capture theorists refer to as a capture story, which is a story of how cultural influences of a regulated industry – here, professional patent agents – come to dominate the regulatory discourse to the exclusion of other viable, competing conceptions of what constitutes the public interest. This work concludes that professionalization of agency within the patent system is interconnected with enablement as an organizing principle of the patent system as a social institution. Prior to professionalization, when agency was democratized throughout the patent system, so too was democratized enablement a guiding principle of the patent system. The formation of a unique, legitimized professional patent agent epistemic community has resulted in diminishing the democratization of enablement across the patent system as a social institution. This work discusses several of the practical and normative implications of the diminishing value of democratized enablement. Finally, this work concludes with a discussion of the future prospects of agency within the patent system.
  • ItemOpen Access
    The Practitioner King - A Study of Legal Education and Practice in Pakistan
    (2023-08-04) Zaidi, Summaiya; Girard, Philip
    This dissertation is a study of legal education and practice in Pakistan and investigates the rise of the legal practitioner through a socio-historical examination. It seeks to determine the extent to which legal education in Pakistan is bound by colonial norms of practice through a genealogy of the legal practitioner in South Asia where the practitioner emerges as a dominant actor in the legal field. This dissertation argues that the fields of legal education and practice cannot be studied separately because the two are intimately connected for three main reasons: firstly, the law degree serves as an entry requirement to legal practice, secondly, practitioners are preferred as faculty to teach law at universities and law colleges, and thirdly, the Pakistan Bar Council shares regulation of legal education with the Higher Education Commission. The curriculum for the LLB degree is decided by the Bar and Commission and has historically been pulled towards a practice-focus, which is reflected in the 2018 reforms. The methodology adopted draws from the three disciplines of law, history and sociology. Archival sources at the British Library in London, UK, the Library of Congress in Washington DC, US, and the Sindh Archives in Karachi, Pakistan, provide the historical frame upon which this work based (1800 – 1947). Legal method allows for a detailed study of the Supreme Court cases on legal education and statutory context (1998-2018). Focus groups and interviews with key members in the reform process help inform the current context in Pakistan and the Bourdieusian theoretical framing on fields and habitus serves as the glue that brings these seemingly separate components together. During and following Independence in 1947, the fields of practice and politics have also been interconnected through the gains made by the practitioner in the national political field. These gains have continued in Pakistan where the practitioner has emerged as a King in the twenty-first century in the fields of education, practice, and politics. This study aims to fill the gap in the existing literature in the area in Pakistan and can help guide the reforms in the area.
  • ItemUnknown
    Remedies in Canadian Parental Alienation Cases: Turning to Tort Law for Support
    (2023-08-04) Martin, Zechariah Weicker; Drummond, Susan
    This thesis provides an avenue to remedy some of the harms associated with parental alienation for rejected parents – an issue that is inadequately addressed by Canadian family law cases. One of the major functions of the legal system is to allow injured parties the opportunity to seek recourse. This thesis questions whether the prevailing approach to parental alienation is capable of providing justice to rejected parents. Family law centres on the best interests of children, a vulnerable group whose needs should be prioritized and protected. Parental alienation disputes destroy meaningful relationships between children and capable parents, but family law focuses on the best interests of children to the exclusion of all other interests, including a rejected parent’s interest in justice. This thesis questions whether, given the harm done to rejected parents, that exclusion can be justified in cases of parental alienation.
  • ItemUnknown
    The Use of Arguments about Myths and Stereotypes to Appeal Sexual Assault Convictions in Canada
    (2023-03-28) Quinn, Ryan Andrew; Dufraimont, Lisa
    Canadian defence counsel have recently begun appealing sexual assault convictions by arguing that a trial judge applied myths and stereotypes (M&S) against the accused. This phenomenon is surprising because this country’s focus on M&S in sexual assault law has almost exclusively concerned improper assumptions that operate against the complainant and the Crown and risk producing perverse acquittals. This thesis reviews this new defence strategy with reference to three decades of appellate case law and scholarship. It advances definitions of M&S as well as principles for understanding the evidentiary effects of their recognition as such, and it categorizes various defence attempts to invoke M&S in conviction appeals, concluding that some have more merit than others. Emerging from this analysis is a more consistent, coherent role for the M&S doctrine in sexual assault law – one which should assist the Canadian bench, bar and academy in distinguishing legitimate M&S arguments from strained ones.
  • ItemOpen Access
    The Elusive Pursuit of Justice: Sexual Assault Survivors' Speak About Redress in the Aftermath of Violence
    (2023-03-28) Burnett, Tamera Ashley Margaret; Lawrence, Sonia
    The struggle of survivors to obtain justice after they have been sexually assaulted has been a much discussed topic in recent years. Significant attention and resources are being directed towards this issue, making academic research particularly valuable at this time. However, instead of asking how legal processes can theoretically be made better, as is the case in most of the literature on this topic, my focus has been on asking why survivors want to engage in a legal process at all. What do they get from reporting their assaults and does what the legal system offers them respond to what survivors are looking for from justice? This project starts this conversation by asking survivors what they think justice should be in the aftermath of a sexual assault. Using feminist standpoint epistemology and grounded theory, I interviewed sixteen survivors and seven lawyers to explore what justice means for survivors in the aftermath of an assault. From the data, I identified four major themes including: harms and healing, accountability, punishment, and restorative justice. I found that survivors were not satisfied with the justice they could obtain under criminal law. They stated that it was difficult, financially and emotionally, to engage in criminal proceedings that were unlikely to resolve in a way that made them feel as if justice was done. While other forms of legal justice are also available, survivors often found these to be inaccessible as well, or they were unaware of the existence of these alternative options. The survivors I spoke with imagined an expansive ideal of justice. To most of the women I interviewed with, justice involved the prevention of future violence, something they did not think the legal system was currently equipped to deal with. They were curious, though conflicted, about restorative models, but appreciated their focus on attempting to reform offender behaviour. They also stressed the importance of being supported in their attempts to recover from sexual assault, highlighting that financial compensation was crucial for any survivor to heal.
  • ItemOpen Access
    Tokenized Finance and Monetary Law: The Evolving Role of the Central Bank in the Age of Digital Currency
    (2023-03-28) Olowookere, Odunayo Emmanuel; Puri, Poonam
    This thesis attempts to examine the motivations of the central bank and the state in the adoption of a sovereign-backed Central Bank Digital Currency (CBDC). We sought to answer the question- of what central bank roles will be most affected by the adoption of a sovereign-backed digital currency. Since any motivations for the adoption of this new form of currency are sure to reflect in its eventual design, we argue that without the intervention of the law at this crucial design stage, any such currency is very likely to be unfavorable to the money users. We justify this by investigating the role played by the law in guiding the evolutionary trajectory of the central bank and monetary affairs generally. Our investigation revealed that money and the law evolved alongside economic development and the inherent complexities in trade and exchange.
  • ItemOpen Access
    Regulating the Corporation from Within and Without: Corporate Governance and Workers’ Interests
    (2022-12-14) Sukdeo, Vanisha Hemwatie; Puri, Poonam
    This dissertation critically explores how the increased legal regulation and governance of corporations can be used to help improve the interests of workers in global supply chains. Chapter one outlines the introduction and provides background information. Chapter two is the literature review. Chapter three examines the expansion of fiduciary duties and changes to corporate governance, including Benefit Corporations, and how expanded fiduciary duties can be used to increase the interests1 of workers. Chapter four contains a case study of the Rana Plaza disaster to demonstrate how governance models can be used to help increase working conditions in Bangladesh and other parts of the Global South. Chapter five is a case study of the Hudson’s Bay Company and three different versions of its code of conduct. Chapter six concludes.
  • ItemOpen Access
    The old people are the song, and we are their echo: resurgence of w̱ sáneć law and legal theory
    (2022-12-14) Clifford, Robert Justin; Boisselle, Andree
    This dissertation attends to pressing questions of strategy and tactics in relation to Indigenous law revitalization in the context of the climate crisis. Grounded in my own W̱SÁNEĆ legal order, I provide an accounting of the context in which the resurgence of W̱SÁNEĆ law is occurring, and clarity regarding what we hope to accomplish with the revitalization of W̱SÁNEĆ (and more broadly, Indigenous) law, both locally and in response to global climate crisis. Doing so prompts questioning of the very foundations of Canadian constitutionalism, and indeed, our most basic ideologies and conceptualizations of our place and relationships within the world. From a position that our theory and methodology of Indigenous law revitalization, and our diagnosis and approaches to the climate crisis must be intricately entwined and mutually reflective, the dissertation sets out to argue that nothing short of a fundamental reimagining of our relationships within the world, and thus the social, legal, political, and economic structures those relational understandings condition, is required. Approaching such encompassing questions requires the creation of conversations across fields such as Indigenous law, critical Indigenous studies, and political ecology. Guided by W̱SÁNEĆ law and the responsibilities and obligations it entails, how might we navigate ongoing dynamics of settler colonialism and climate crisis? While some form of “decolonized” relationship with Canada seems necessary but insufficient within the context of a global climate crisis, what would actually be required to meaningfully respond and reimagine healthy relationships between all beings? Will forms of state-delegated authority, such as co-management agreements, or forms of “green capitalism”, such as market measures or carbon offsets for Indigenous-led conservation, ever suffice to address our longstanding, and yet continually unfolding, predicaments of settler colonialism and climate crisis? As I argue for a more foundational re-imagining of our relationships and place within the world, my analysis also reveals that we are not left groundless in this re-imagining as we can draw upon the wisdom and practices housed within our respective Indigenous traditions.
  • ItemOpen Access
    Safety Valves: A Band-Aid Solution to the Ills of Mandatory Minimums?
    (2022-12-14) Sayed, Venus; Berger, Benjamin L.
    This work examines the Supreme Court of Canada’s statutory safety valve proposal in the case of R. v. Lloyd as a solution to the problems presented by mandatory minimum sentences. The thesis develops a safety valve matrix which allows various valves to be plotted along broad-narrow and high-low discretion matrices. Following a review of the development of exemptions in Canadian jurisprudence, the paper then takes a comparative approach of analysis to look at three similarly placed jurisdictions – Australia, the United States and the United Kingdom. By examining the statutory safety valves in use in these jurisdictions, this work concludes that a broad, high-discretion safety valve may be most effective in the Canadian context.
  • ItemOpen Access
    Hartazgo: Understanding how #YoTeCreo emerged in Venezuela
    (2022-12-14) Muskus Toro, Maria Corina; Matthews, Heidi
    This thesis explores how digital feminist activism sparked, using as a case study #YoTeCreo movement in Venezuela. Using the FemMesh to connect feminists knowledges, nodes and entanglements together with a transnationalized intersectionality, I discuss how this digital activism occurred locally. As this topic is novel and this thesis is exploratory, I combine the theoretical framework mentioned before together with feminist qualitative methodology by interviewing the leaders of #YoTeCreo and answer my research question. I concluded that the spark of #YoTeCreo in Venezuela is a combination of different factors and it is not a transplantation of the #MeToo movement from North to South. Even though the #MeToo was a reference to #YoTeCreo, the cross-border movements of ideas, persons, and places; the role of media and entertainment; the role of migrant women; the feeling of hartazgo, a sense of empathy, and sorority were important and entangled factors linked to the spark of this movement.
  • ItemOpen Access
    Law and Indigenous Religion: Theorizing a Complex Relationship
    (2022-12-14) Lewis, Kristen Elizabeth; Berger, Benjamin L.
    This thesis asks what preconditions are necessary to think the relation between law and Indigenous religion without marginalizing perspectives, such as those germane to Indigenous religion, that fall outside law’s frame (often figured, erroneously, as ‘objective’ and ‘neutral’). The research grounds itself in the only Supreme Court of Canada case that, to date, has involved Indigenous religious freedoms and s. 2(a) of the Canadian Charter of Rights and Freedoms (Ktunaxa Nation v British Columbia 2017 SCC) and in the very few lower court decisions that have followed in its not-unproblematic wake. Inspired by several currents of both Indigenous thought and non-Indigenous critical-theoretical work, I advance an approach that imagines law and the stories it tells as deeply entangled, inevitably, with land. Applying this framework to the context of Canadian constitutional law’s encounters with Indigenous religion, I argue that for law to understand what is at stake in Indigenous religious freedoms claims, it must transcend its habit of seeing the world in ways that perpetuate a division between objects and beliefs. Law might thereby open to the perspective, prevalent across Indigenous worldviews, that selves and world are not as separable as Canadian constitutional law’s current religious freedoms framework suggests.
  • ItemOpen Access
    A Critical Approach to the Regulation of a Public Corporation's Purchase of Its Own Shares on the Open Market: Lessons from The Transatlantic Comparison
    (2022-12-14) Cohaz, Alper; Williams, Cynthia A.
    Open market repurchases (OMRs)—by far the most common form of share repurchases—have reached record levels following the dramatic increase in number since the adoption of the safe harbor rule in the US. This dramatic increase has been largely attributed to purported benefits of OMRs that matter especially within the Anglo-American economic and corporate model. However, these benefits fail to fully explain such increase. This failure suggests that illegitimate purposes, which could easily be concealed beneath purported benefits, might have also contributed to the increase in the number of OMRs and resulted in their excessive use. This suggestion is supported by the ineffectiveness of the safe harbor rule applicable to OMRs in the US that paves the way for the exploitation of OMRs by corporate actors having inside or superior information. On the other hand, any and all share repurchases used to be strictly regulated in the EU. However, some EU Member States and later the EU itself relaxed legal capital rules including the rule on share repurchases and adopted a safe harbor rule on OMRs that is essentially similar to that in the US. This substantial legal convergence has also been followed by an increase in the number of OMRs in the EU. Notwithstanding that the increase in the EU has been more rapid than that in the US, the number of OMRs in the EU has been much lower than in the US. The less frequent use of OMRs supports the claim that corporations substantially persist in the Continental European model. In this model, the purported benefits of OMRs have been less significant and the potential of abuse of OMRs have been less probable than in the US. Such persistence has also been partly reflected on the OMR regulation in the EU that prescribes a less ineffective framework than that in the US through a few but crucial regulatory technical differences. Hence, this dissertation compares and contrasts rules and practices relating to OMRs on both sides of the Atlantic and comes up with a series of regulatory proposals to maintain the purported benefits while curbing the number and eliminating the potential drawbacks arising from the abuse of OMRs, particularly in the US but also in the EU and elsewhere. These proposals include two main easy-to-implement regulatory policy proposals, namely the enhancement of current disclosure requirements and the increase of oversight mechanism on OMRs, and a number of complementary proposals that include recommendations for various market actors to reduce the excessive use of OMRs.
  • ItemOpen Access
    Understanding the Failure of Police Reform in Nigeria: A Case for Legal History Through Literature
    (2022-12-07) Oni, Olaoluwa Folasade; Berger, Benjamin L.
    On the 21st of October 2020, the world woke to images and video clips of the bloodied, broken bodies of Nigerians shared across social and traditional media. The night before, young Nigerians protesting police brutality were met with a government-sanctioned, combined police and military onslaught; Nigerias decades-long struggle with police dysfunction was brought to a head with the massacre of its citizens at the Lekki toll gate on the evening of October 20, 2020. This work problematizes the cycle of attempts at, and ultimate failure of, police reform in Nigeria. I argue that the colonial nature of policing is retained in attempts to reform the Nigerian police force. so reform efforts continue to produce a colonial and ultimately flawed institution. To address this problem, I offer a non-colonial vision of policing that draws from pre-colonial Igbo societies and recommend literary narratives as a critical source for this pre-colonial history.
  • ItemOpen Access
    British Empire, Land Tenure and the Search for an Ideal Proprietor: 1868-1875
    (2022-08-08) Aulakh, Preetmohinder Singh; Girard, Philip V.
    Between 1868 and 1875, several land tenure laws (Punjab Tenancy Act of 1868; Landlord and Tenant (Ireland) Act of 1870; and Prince Edward Island Tenants Compensation Act, 1872 and Land Purchase Act, 1875) were enacted across the British Empire. These laws established some form of security of tenure for the actual cultivators of land by recognizing co-proprietorship of tenants and landlords and/or by transferring proprietorship from landlords to tenants. This study examines how proponents of the rights of cultivators overcame long-standing resistance to any encroachment of landlords property rights in these socio-politically diverse and geographically dispersed colonies. Comparative analyses of the historical land tenure arrangements in the three colonies and the contestations around the specific laws reveal two crucial mechanisms which facilitated the institutionalization of peasant-proprietorship. First, there was a fortuitous ideological alignment between important governing agents in the three colonies. Sympathy for the peasants of John Lawrence (Governor-General of India) and his followers in Punjab after the 1857 Rebellion, the desire of William Gladstone and his Liberal government to pacify Ireland in 1868 through a resolution of the centuries-old land question, and the singular focus of the Prince Edward Island legislature by the late 1860s to establish the rights of tenants and convert the leasehold to freehold tenures on the island, reinforced each other in promoting the rights of tenants. Second, these efforts were crucially augmented by the redirection of the debate about how far land tenures being considered across the Empire would impact the sanctity of English principles to one where these existing principles were deemed to be anomalous and thus not applicable to the colonies. The extrication of land tenure considerations in the colonies from the institutionalized practices in England allowed for inter-colony analogies and precedents to support the proprietary rights of the peasant cultivators. The use of inter-colony analogies not only overcame resistance from the influential aristocratic classes and their supporters across the Empire during the period of the current study but also became the normative tool in expanding peasant-proprietorship well into the twentieth century for successive British governments of all political stripes.
  • ItemOpen Access
    Accepting the Unacceptable: Trinity Western University, Religious Freedom, and the Meaning of Liberal Constitutionalism
    (2022-08-08) Boissonneault, Robert Stephen; Berger, Benjamin L.
    This thesis proposes an answer to the question of when, and under what conditions, a state operating within the framework of liberal constitutionalism may legitimately condition receipt of public benefits on the recipient's conformity with liberal values—a question that is implicitly asked, but never directly answered, by the decision of the Supreme Court of Canada in Law Society of British Columbia v Trinity Western University. How this question is answered has significant implications for the law of religious freedom in Canada. This thesis posits a conceptual distinction between two types of public benefit: public licences and public mandates. This distinction is animated by the principles of 1) tolerance and 2) respect for individual self-actualisation, which together form the core of liberal constitutionalism. This thesis argues that only access to public mandates may be made contingent on conformity with liberal values.
  • ItemOpen Access
    Transcending the Impasses: Towards an Indigenous Vision of Legality in Palestine
    (2022-08-08) Abujbara, Juman; Nadler, Jennifer
    This thesis attempts to demonstrate that the international legal impasse surrounding Palestine is animated by incommensurable visions of legality. It argues that in portraying the Palestinian struggle for liberation as a struggle for state sovereignty, international law subjects the indigenous worldview to a violent and perpetual erasure. The thesis employs Aaron Mills' theoretical framework to argue for an incommensurability between Palestine's indigenous conception of legality and the dominant conception of legality underlying international law. Further, the thesis offers a reading of Ghassan Kanafani's novel The Other Thing to explore the consequences and normative implications of an impasse characterized by incommensurability. The key finding is that cultural artefacts are important sites of the Palestinian legal memory and are capable of uncovering Palestine's silenced vision of legality. Finally, the paper concludes that acknowledging incommensurability paves a way towards a more holistic legal imagination that contains the seeds of transcending the impasse in indigenous Palestine.