Indigenous Peoples, Consent and Rights: Troubling Subjects [1° ed.] 0367344629, 9780367344627

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Indigenous Peoples, Consent and Rights

Analyzing how Indigenous Peoples come to be identifiable as bearers of human rights, this book considers how individuals and communities claim the right of free, prior and informed consent (FPIC) as Indigenous peoples. The basic notion of FPIC is that states should seek Indigenous peoples’ consent before taking actions that will have an impact on them, their territories or their livelihoods. FPIC is an important development for Indigenous peoples, their advocates and supporters because one might assume that, where states recognize it, Indigenous peoples will have the ability to control how non-Indigenous laws and actions will affect them. But who exactly are the Indigenous peoples that are the subjects of this discourse? This book argues that the subject status of Indigenous peoples emerged out of international law in the late 1970s and early 1980s. Then, through a series of case studies, it considers how self-identifying Indigenous peoples, scholars, UN institutions and non-government organizations (NGOs) dispersed that subject-status and associated rights discourse through international and national legal contexts. It shows that those who claim international human rights as Indigenous peoples performatively become identifiable subjects of international law – but further demonstrates that this does not, however, provide them with control over, or emancipation from, a state-based legal system. Maintaining that the discourse on Indigenous peoples and international law itself needs to be theoretically and critically re-appraised, this book problematizes the subject-status of those who claim Indigenous peoples’ rights and the role of scholars, institutions, NGOs and others in producing that subjectstatus. Squarely addressing the limitations of international human rights law, it nevertheless goes on to provide a conceptual framework for rethinking the promise and power of Indigenous peoples’ rights. Original and sophisticated, the book will appeal to scholars, activists and lawyers involved with indigenous rights, as well as those with more general interests in the operation of international law. Stephen Young works in the Faculty of Law at the University of Otago.

Indigenous Peoples and the Law

Series Editors Dr Mark A. Harris, University of British Columbia, Canada Professor Denise Ferreira da Silva, University of British Columbia, Canada Dr Claire Charters, University of Auckland, New Zealand Dr Glen Coulthard, University of British Columbia, Canada

For information about the series and details of previous and forthcoming titles, see https://www.routledge.com/law/series/INDPPL

Indigenous Peoples, Consent and Rights

Troubling Subjects

Stephen Young

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 Stephen Young The right of Stephen Young to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-34462-7 (hbk) ISBN: 978-0-429-33077-3 (ebk) Typeset in Galliard by Taylor & Francis Books

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Contents

Acknowledgements List of abbreviations Introduction

viii x 1

1

Troubling subjects

20

2

The emergence and naturalization of Indigenous peoples in international legal discourse

43

3

Defining performances: The problems and promise of FPIC

78

4

FPIC as national legislation: The Philippines, the B’laan and the Tampakan Mine

104

FPIC as international human rights law: Australia, the Wangan and Jagalingou, and the Carmichael Mine

130

FPIC as regional human rights law: The Inter-American Court of Human Rights and Indigenous peoples

157

7

The legal performativity of FPIC

186

8

Insurrectionary ends?

211

Bibliography Index

222 258

5 6

Acknowledgements

This book started as a PhD, which I completed at the University of New South Wales (UNSW) in Sydney, Australia. That PhD was entitled The Legal Performativity of Indigenous Peoples Free, Prior and Informed Consent. Much of that PhD has been transformed into this book, but with amendments. Consequently, although I present this as my own work, I am indebted to so many others both in terms of form and content. First, I am grateful to my PhD supervisors, Fleur Johns and Ben Golder. They employed patient and gentle guidance as well as making challenging and thought provoking criticisms, always, seemingly, at the most appropriate times. Their writings and words have been a constant source of inspiration. And their willingness to read, meet, discuss my work and entertain difficult and challenging subject-matter has tremendously aided this work. I could not have done this project or enjoyed it so thoroughly without their guidance, expertise and willingness to read the law a bit differently. My panel members, Kathy Bowrey, Lucas Lixinski and Daniel Joyce have also provided invaluable guidance, commentary and support. I am also grateful to Margaret Stephenson and David Brereton, under whom I began my PhD studies at the University of Queensland (UQ). My understanding of Australian native title law and the transnational mining sector is due, in large part, to them. The academic institutions that I have been lucky enough to be affiliated with, UNSW and UQ, and now the University of Otago, have provided wonderful research resources and library staff who have helped to track down texts. With generous support from those institutions, I have attended and presented at conferences and workshops in Wellington, Adelaide, Sydney, Melbourne, Canberra and Auckland. Fellow PhD candidates at UNSW and UQ have been friends, as well as constant sources of inspiration, support, dialogue and critique. Their constant support and their indefatigable willingness to commiserate is invaluable. I incredibly grateful to my parents, Mike and Kris, who have always been supportive of my ambitions. And, of course, I would be hopelessly adrift without Tiffany.

Acknowledgements

ix

And, lastly, I am deeply indebted to those people who have resisted subjection to states institutions, as they continue to fight against subjugation and unfair treatment. This book reproduces published material. Chapter 5 reproduces material published as Stephen M Young, ‘The Material Costs of Claiming International Human Rights: Australia, Adani and the Wangan and Jagalingou’ (2019) 20(1) Melbourne Journal of International Law (forthcoming).

List of abbreviations

ACHPR ATSIC CBD CERD CPP-NPA ECOSOC EMRIP FPIC FTAA ICCPR ICCs ICCs/IPs ICERD ICESCR ICME IFC IITC ILO ILUA IPRA KAMP

MMSD NCIP NGO NNTT NTA OAS OASDRIP

African Court on Human and Peoples’ Rights Aboriginal and Torres Strait Islander Commission Convention on Biological Diversity Committee for the Elimination of Racial Discrimination Communist Party of the Philippines-New People’s Army Economic and Social Council Expert Mechanism on the Rights of Indigenous Peoples Free, prior and informed consent Financial and Technical Assistance Agreement International Covenant on Civil and Political Rights Indigenous Cultural Communities Indigenous Cultural Communities/Indigenous Peoples International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Council on Metals and the Environment International Finance Corporation International Indian Treaty Council International Labour Organization Indigenous Land Use Agreement Indigenous Peoples Rights Act Kalipunan ng mga Katutubong Mamamayan ng Pilipinas (National Alliance of Indigenous Peoples Organizations in the Philippines) Mining Minerals and Sustainable Development National Commission on Indigenous Peoples Non-Government Organization National Native Title Tribunal Native Title Act Organization of American States American Declaration on the Rights of Indigenous Peoples

List of abbreviations

PA PFII RNTC RTN SMI UK UN UNDP UNDRIP US W&J WBG WCIP WGDD WGIP

xi

Principal Agreement Permanent Forum on Indigenous Issues Registered Native Title Claimant Right to Negotiate Sagittarius Mines Inc United Kingdom United Nations UN Development Programme United Nations Declaration on the Rights of Indigenous Peoples United States Wangan and Jagalingou World Bank Group World Council of Indigenous Peoples Working Group on the Draft Declaration Working Group on Indigenous Populations

Introduction

Introduction The recognition of Indigenous peoples’ rights, particularly the rights of free, prior and informed consent (FPIC) and self-determination, in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was momentous and generated considerable excitement.1 That is because UNDRIP recognized, in one instrument, Indigenous peoples’ struggle for international personality as well as their demands for FPIC and self-determination.2 The basic notion of FPIC is that states should seek Indigenous peoples’ consent before taking actions that will have an impact on them, their territories or their livelihoods.3 FPIC is an exciting development for Indigenous peoples and their advocates/supporters because one might assume that, where states recognize it, Indigenous peoples will have the ability to control how non-Indigenous laws and actions will affect them. For many, the normative and institutional importance of FPIC only truly emerges when it is connected to self-determination: FPIC should provide Indigenous peoples with the ability to choose how non-indigenous decisions will affect them as well as the ability to make choices about how to internally govern, develop and otherwise live.4 As paradigmatic of this excitement and these developments, one commentator has claimed that Indigenous peoples’ rights are evidence that 1 United Nations Declaration on the Rights of Indigenous Peoples, UN GAOR, 61st sess, 107th mtg, UN Doc A/61/L.67 (13 September 2007) (UNDRIP). Earlier international instruments recognize FPIC or self-determination, but not both as applied to Indigenous peoples. 2 See, eg, Kristen A Carpenter and Angela R Riley, ‘Indigenous Peoples and the Jurisgenerative Moment in Human Rights’ (2014) 102 California Law Review 173; Gale Courey Toensing, ‘Declaration Adoption Marks the End of the First Step’, Indian Country Today (21 September 2007), . 3 Adrienne McKeehan and Theresa Buppert, ‘Free, Prior and Informed Consent: Empowering Communities for People-Focused Conservation’ (2014) 35(3) Harvard International Review 48, 49–50. 4 See, eg, Cathal Doyle and Jérémie Gilbert, ‘Indigenous Peoples and Globalization: From “Development Aggression” to “Self-Determined Development”’ (2008–09) 7 European Yearbook of Minority Issues 219, 238–61.

2

Introduction

‘international law, although once an instrument of colonialism, has developed and continues to develop, however grudgingly or imperfectly, to support indigenous peoples’ demands’.5 Proponents of this discourse suggest that those who can claim FPIC and have self-determination will or should be able to control their futures, and, perhaps, to become emancipated from colonial manifestations of international law. That is an attractive picture, but a troubling one. It is troubling particularly because it does not trouble or problematize the subject of that discourse. Who are the Indigenous peoples who are the subjects of that discourse? It is widely accepted that there is no official legal definition of ‘Indigenous peoples’ and, furthermore, that self-identification is a principal component in understanding who are Indigenous peoples.6 And yet scholars routinely ask and attempt to delineate or define, ‘Who are Indigenous peoples?’7 That question is like asking, ‘What is FPIC?’ or ‘What are rights?’ Although it is common to ask these questions, it is a style of inquiry that upholds the subjects of Indigenous peoples’ rights and the rights themselves as untroubled, pre-existing natural objects to be identified and defined for legal purposes.8 It treats all Indigenous peoples as having de facto, natural subject-status, which pre-exists the law in a way that is beneficial and unproblematic. This book troubles that picture and style of analysis. To do so, it asks questions such as, ‘What is done with FPIC?’, ‘How is FPIC performed?’ and ‘How does one become a subject who claims FPIC?’ These questions suggest, first, that there are different uses and invocations of FPIC. As we will see, scholars, non-government organizations (NGOs), advocates, non-state actors and others discuss and disseminate it in their arguments for human rights protections – they are using FPIC and doing things with it for a presupposed subject. There are also those people who claim it as an international human right. Those questions also suggest that for the purposes of claiming international human rights, Indigenous peoples are de jure rather than de facto subjects. Given that this book considers these uses of Indigenous peoples’ rights, particularly FPIC, it argues that the subject-status of Indigenous peoples emerged from 5 S James Anaya, Indigenous Peoples in International Law (Oxford University Press, 2nd ed, 2004) 4, 291. 6 Megan Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law 439, 442–4. 7 See, eg, Jeff J Corntassel, ‘Who Is Indigenous? “Peoplehood” and Ethnonationalist Approaches to Rearticulating Indigenous Identity’ (2003) 9(1) Nationalism and Ethnic Politics 75–100; also Benedict Kingsbury, ‘“Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy’ (1998) 92(3) American Journal of International Law 414–57; etc. 8 Chris Tennant, ‘Indigenous Peoples, International Institutions, and the International Legal Literature from 1945–1993’ (1994) 16 Human Rights Quarterly 1, 4–5; Colin Perrin, ‘Approaching Anxiety: The insistence of the postcolonial in the declaration on the rights of indigenous peoples’ (1995) 6(1) Law and Critique 55; cf Chris Thornhill et al, ‘Legal Pluralism? Indigenous rights as legal constructs’ (2018) 68(3) University of Toronto Law Journal 440–93.

Introduction

3

international legal discourse in the late 1970s and early 1980s. Then, through a series of case studies, it considers how self-identifying Indigenous peoples, scholars, United Nations (UN) institutions and NGOs spread the subject-status and rights discourse through regional and national legal contexts. Although this work is about Indigenous peoples’ human rights, I narrow the inquiry to examine the uses of FPIC – a particularly important human right of Indigenous peoples – to consideration how discourse produces ontologies of subjects and objects, which discourse participants treat as pre-existing, natural subjects. Especially as related to self-determination, FPIC is worth studying because it has been used as a central claim in opposition to large natural resource development projects, which is what the case studies examine. Those case studies show that those who claim international human rights as Indigenous peoples become and transform themselves into identifiable subjects of international law, which does not provide them with control or emancipation from a state-based legal system. Furthermore, some scholars, institutions and others position themselves as authorial jurists or authorities who exercise sovereignty over their subjects – Indigenous peoples and their rights – who then become objects of legal discourse. In doing so, those scholars seek to support the agency of rights claimants for the purposes of claiming FPIC and selfdetermination. However, in doing so, they paradoxically risk subjecting all tribal individuals and communities to international law without their consent or having determined for themselves to be so subjected. Although FPIC and self-determination have been claimed and asserted, scholars, NGOs and others may negate and undermine the self-determination and ability to consent of the communities they are seeking to help by producing those communities as subjects who have the ability to claim FPIC and self-determination as rights. To briefly get a sense of what is at stake and how this occurs, consider what happens when one asks ‘What is FPIC?’ That question treats FPIC as though it is a pre-existing object, which then presupposes styles of legal analysis and disciplinary practices that shape and influence the subjects who are supposed to claim FPIC without having to acknowledge the subjectivity. If we want to know ‘what’ FPIC is, then we need to look at its source. UNDRIP contains FPIC in articles 10, 11, 19, 28, 29 and 32. As an example, article 32(2) declares: States shall consult and cooperate in good faith with the indigenous peoples concerned … in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories or other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.9 The UN Permanent Forum on Indigenous Issues (PFII) defined FPIC’s constitutive elements as follows:

9 UNDRIP (n 1) art 32(2).

4

  

Introduction

Free should imply no coercion, intimidation or manipulation. Prior should imply that consent has been sought sufficiently in advance of any authorization or commencement of activities and that respect is shown for time requirements of indigenous consultation/consensus processes Informed should imply that information is provided that covers (at least) the following aspects: a b c d e

f

g 

The nature, size, pace, reversibility and scope of any proposed project and/or activity; The reason(s) for or purpose(s) of the project or activity; The duration of the above; The locality of areas that will be affected; A preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit-sharing in a context that respects the precautionary principle; Personnel likely to be involved in the execution of the proposed project (including indigenous peoples, private sector staff, research institutions, government employees and others); Procedures that the project may entail.

Consent.10

The basic notion of FPIC is that states should seek Indigenous peoples’ consent before taking actions that will have an impact on them, their territories or their livelihoods.11 As so recognized, it is exciting – it seems that Indigenous peoples will have the ability to control how non-Indigenous laws and actions will affect them where states recognize that right. Already one can see that asking ‘What is FPIC?’ presupposes that it is a thing or object that Indigenous peoples possess, even though it is the discourse of international human rights from which both the subjectivity of Indigenous peoples and their rights emerge so that others can discuss rights (and subjects) as though they are objects. And if we assume that FPIC is a thing that is already possessed by Indigenous peoples, then our concerns are focused on identifying, clarifying and fixing issues with FPIC’s legal status and definition – particularly as recognized in UNDRIP – because there are problems with its status and definition.

10 Permanent Forum on Indigenous Issues, Report on the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples, UN Doc E/C.19/2005/3 (17 February 2005) para 46. It should be noted that this report treats ‘consent’ as needing no elaboration, despite it being the most controversial and contentious aspect. 11 McKeehan and Buppert (n 3); Fawn Sharpe and Matthew Randazzo V, ‘In shadow of #MeToo: The coming reckoning on consent and climate change’, Crosscut (30 April 2019) .

Introduction

5

The UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) has done precisely that. It conducted a two-year study on Indigenous peoples’ participation in decision-making processes and FPIC. It noted that ‘[a]lthough a relatively new concept internationally, free, prior and informed consent is one of the most important principles, as a right, that indigenous peoples believe can further protect their right to participation’.12 This one sentence suggests that FPIC is a right for a further right to participation and is also a most important principle. From a doctrinal legal perspective, it could be a right, a right that must be claimed in order to claim another right to participate, or a principle that animates rights claims. Furthermore, EMRIP’s phrasing suggests that even if ‘Indigenous peoples believe’ that FPIC can protect their interests, perhaps other people do not. EMRIP is also clear that FPIC ‘needs to be understood in the context of indigenous peoples’ right to self-determination because it is an integral element of that right’.13 This shows that even in sophisticated UN bodies specifically designed to promote and protect Indigenous peoples’ rights, the definition of FPIC is not clearly articulated or understandable as a legal concept. That is why Robert Coulter, executive director of the US-based Indian Law Resource Center, claims that FPIC is little more than a ‘noun with redundant intensifiers. It is an expression of agreement or willingness that an act take place that would otherwise be a violation of a right’.14 The main problem that many scholars identify – and they are not wrong in doing so – is that even if UNDRIP or other instruments recognize that Indigenous peoples should have the ability to determine what states can and cannot do to them, states and non-indigenous industry actors hold interests that are generally misaligned with the full or promising legal recognition of FPIC. Not only are state and industry interests potentially misaligned with the recognition of FPIC, one scholar has recently cautioned that ‘[t]he emerging risk for indigenous peoples today is that FPIC becomes a corporate or state construct, one again divorced from self determination and sovereignty rights, thereby facilitating unfettered access to resources in indigenous territories’.15 As such, it appears pressing that FPIC is defined and advocated for in a way that allows Indigenous peoples to have the self-determination to control their futures.16 12 Human Rights Council, Final Report of the Study on Indigenous Peoples and the Right to Participate in Decision-Making: Report of the Expert Mechanism on the Right of Indigenous Peoples, UN DOC A/HRC/18/42 (17 August 2011) para 63. 13 Ibid, Annex para 20. 14 Robert Coulter, ‘Free, Prior, and Informed Consent: Not the Right It Is Made Out to Be,’ Indian Law Resource Center (31 October 2013) 1. 15 Cathal Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (Routledge, 2015) 17; Nathan Yaffe, ‘Indigenous Consent: A self-determination perspective’ (2018) 19(2) Melbourne Journal of International Law 703, 725–39. 16 Ibid, Doyle, 134–5; S James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/21/47 (6 July 2012) [49]; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR); International Covenant on

6

Introduction

This brief discussion reveals how quickly one can become engaged in dissecting, rearticulating and advocating for FPIC so that Indigenous peoples can use it to control what affects them without considering the subject-status of Indigenous peoples or how defining FPIC might influence that subject. If a scholar were to define it, would that mean that Indigenous peoples who are supposed to claim it cannot? Would the definition of FPIC impose a non-consensual understanding of what is consent and FPIC on those who are presumed to be Indigenous peoples? Kathy Bowrey is right to acknowledge that ‘what legal institutions are and how they function remain very much under-theorized in much of the literature about Indigenous peoples and the law’.17 Despite an abundance of literature on Indigenous peoples and international law, and partly as an effect of that literature’s disciplinary focus and its disciplinary effects, the untroubled nature of the subjectivity that claims FPIC remains undertheorized.18 That, in itself, is troubling, which means that it is dangerous, not that it is necessarily bad.19 This book takes Bowrey’s concern seriously. It argues that scholars, advocates and others who participate in international legal discourse have not analyzed how they use the discourse of international human rights law to produce the subjects who are supposed to claim FPIC.20 To explain how scholars and others have underestimated the effects of international legal discourse, I use a legal performative methodology to problematize or trouble the subject-status of those who claim Indigenous peoples’ rights and the role of scholars, institutions, NGOs and others in producing that subject-status. As more fully explained in Chapter 1, I borrow primarily from Judith Butler and Michel Foucault, as well as a few others, to theorize how the international legal discourses produced and produces rights and the subjects who are supposed to claim them. Although many self-identifying Indigenous peoples are well aware of human rights limitations and power disparities,21 this methodology enriches the analysis of power by squarely addressing the limitations of international human rights law as well as the ways in which scholars and

17

18 19 20 21

Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR); see Cindy Holder, ‘SelfDetermination as a Basic Human Right: the Draft UN Declaration on the Rights of Indigenous Peoples’ in Abigail Eisenberg and Jeff Spinner-Halev (eds), Minorities within Minorities: Equality, Rights and Diversity (Cambridge University Press, 2004) 294; Shin Imai, ‘Indigenous Self-Determination and the State’ in Benjamin J Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law (Hart, 2009) 285. Kathy Bowrey, ‘Law and Its Confinement: Reflections on Trevor Nickolls’ Brush with the Lore’ (2011) 20 Griffith Law Review 729, 730; Ian Brownlie, Treaties and Indigenous Peoples (Oxford University Press, 1992) 63. Ibid, Bowrey, 730. Michel Foucault, ‘On the Genealogy of Ethics’ in Paul Rabinow (ed), Foucault Reader (Pantheon Books, 1984) 343. See Michel Foucault, History of Sexuality: Vol 1 (Pantheon, 1978) 135–59. Megan Davis, ‘To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On’ (2012) 19 Australian International Law Journal 17, 37.

Introduction

7

others who use discourses of power and law produce intuitively appealing, alluring and yet problematic approaches to rights claiming. Although Butler addresses Indigenous peoples only in a limited context,22 her performative approach to gender assists in understanding the demands of the law placed on subjects.23 As articulated here, a performative method provides a means of theorizing, and hence viewing the performative enactment, or the subjectification, to international legal discourse as identifiable Indigenous peoples that occurs through invoking FPIC. We will see that in order to be identifiable as a representative of Indigenous peoples for the purposes of claiming FPIC, individuals and communities insert themselves, as others insert them, into international legal discourse, one that is produced and reproduced by scholars, advocates, self-identifying Indigenous peoples and others. This often occurs when rights claimants assert that they are traditional and essential Indigenous peoples. To do so does not mean separating oneself from the coercion of states, industry, NGOs or others. Rather, it requires constructing oneself as a subject of international legal discourse in dependence upon others, those coercive forces and disciplinary powers so that others can identify one as a bearer of human rights. This methodology evaluates how individuals and communities become subjects who bear those rights to reveal oppressive, agentic and potentially subversive uses of those rights. To be seen as bearing Indigenous peoples’ human rights is to performatively act in a way that is identifiable to international legal discourse participants. That does not mean it is false or fake, nor that it is only negative or oppressive. It does mean that becoming Indigenous peoples is not merely or solely an individual choice or decision. Performatively enacting a legal subjectivity is contingent upon others legitimating and confirming the applicability of international legal discourse to that situation. Accordingly, one must also consider how scholars, advocates and others – who might be called ‘elites’ or ‘experts’24 – use rights, as well as consider how those who claim human rights performatively enact subjectivities of Indigenous peoples within international legal discourse. Examining high profile situations involving FPIC and self-determination claims shows that rights claiming can be both oppressive and agentic at the same time, and, further, that the possibility of insurrectionary potential resides in Indigenous peoples claiming FPIC and self-determination. However, it is troubling that anyone 22 Butler’s later work on precarity and dispossession briefly mentions Indigenous peoples, primarily in the context of the Palestinian–Israeli conflict. See Judith Butler and Athena Athanasiou, Dispossession: The Performative in the Political (Polity Press, 2013) 10–37. 23 As I explain in Chapter 1, I am not re-presenting Butler’s or Foucault’s views of law. See generally Elena Loizidou, Judith Butler: Ethics, Law, Politics (Routledge, 2007) 87–128. 24 David Kennedy, A World of Struggle: How Power, Law and Expertise Shape Global Political Economy (Princeton University Press, 2016); Fleur Johns, Non-Legality in International Law: Unruly Law (Oxford University Press, 2013) 14–21.

8

Introduction

presupposes that there are subjects called ‘Indigenous peoples’ who possess objects called ‘human rights’ that pre-exist international legal discourse on Indigenous peoples and human rights. In short, the legal performative method provides a conceptual framework for rethinking the promise and power of Indigenous peoples’ rights, and by extension human rights law. This has consequences in terms of language and terminology, but it also has effects that are not obvious to me or anyone else. The first consequence is a terminological issue, which begins to highlight the extent and depth of these troubles. We colloquially deploy the term ‘Indigenous peoples’ as a blanket term to refer to all tribal, native, Aboriginal, First Nations, nomadic, American Indian, historically land-connected subsistence farmers, or other peoples.25 But, for the purposes of claiming human rights, Indigenous peoples are and must be subjects of international legal discourse. The term ‘Indigenous peoples’ can be – and often is – deployed in a lay sense, as a naturalized signifier, which is a term of a ‘universalizing and neutralizing rhetoric’ of law.26 However, this legal performative methodology evaluates how international legal discourse ‘hides’ that Indigenous peoples are its subjects, because legal discourse conceals its own effects so that its subjects appear natural. Butler writes: Juridical power inevitably ‘produces’ what it claims merely to represent; hence, politics must be concerned with this dual function of power: the juridical and the productive. In effect, the law produces and then conceals the notion of ‘a subject before the law’ in order to invoke that discursive formation as a naturalized foundational premise that subsequently legitimates that law’s own regulatory hegemony.27 The legal performative method applied here is concerned with dual functions of power: how legal discourse produces and then conceals the notion of the subject. And for the purposes of claiming human rights, the signifier ‘Indigenous peoples’ is an international legal subject that has not broken – and necessarily cannot break – with international legal discourse. That does not foreclose the possibility that the term ‘Indigenous peoples’ has social utility or disciplinary effect in other discourses. It does mean if the subjectivity were to fully break from international legal discourse, then whatever human rights were claimed would not be identifiable, intelligible or legible to others as human rights claims. There is no term other than ‘Indigenous peoples’ to signify all those peoples without somehow also 25 Ronald Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (University of California Press, 2003) 3. 26 Peter Fitzpatrick, ‘Juris-fiction: Literature and the Law of the Law’ (2004) 35(1–2) ARIEL 215, 225. 27 Judith Butler, Gender Trouble (Routledge, 2nd ed, 1999) 5.

Introduction

9

referencing their international legal subjectivity and therein reinforcing international law.28 And this is the problem: how then can anyone now refer to all those peoples before they were Indigenous peoples and without presupposing that, today, they all want to be subjects of international law? How can we refer to those ‘abject beings, those who are not yet “subjects” but form the constitutive outside to the domain of the subject’?29 Commonly deployed terms are problematic for understanding how rights claims, such as FPIC, are made, because, in order to claim FPIC as a right, claimants must be identifiable and intelligible as Indigenous peoples. And to be identifiable as a ‘claimant’ presupposes the ability to make a claim, which signifies the claimant as already a representative of Indigenous peoples. This circularity demonstrates how power precedes and produces subjects which then conceals that production by limiting what can be discussed intelligibly.30 An effect is that the ability to claim FPIC is dependent on others recognizing the claimant as representing Indigenous peoples – the struggle to be identifiable as an international legal subject becomes, in fact, part of the struggle in claiming FPIC.31 Because it is impossible to discuss those who seek to claim FPIC without presupposing that they are already Indigenous peoples, this work refers to those who may not yet be identified as Indigenous peoples as ‘autochthonous communities’, but only where there is not a more appropriate localized term. Admittedly, the term ‘autochthonous communities’ is inadequate because there is no adequate term.32 It is inadequate because this book excavates international 28 There is a history and genealogy of the term ‘Indigenous’ which is unexplored here. See Tennant (n 8) 4–5; Robert A Williams Jr, Savage Anxieties: The Invention of Western Civilization (Palgrave Macmillan, 2012); see also Steven T Newcomb, ‘Domination in Relation to Indigenous (“Dominated”) Peoples in International Law’ in Irene Watson (ed), Indigenous peoples as Subjects of International Law (Routledge, 2017) 18–37; Steven T Newcomb, ‘The UN Declaration on the Rights of Indigenous Peoples and the Paradigm of Domination’ (2011) 20 (3) Griffith Law Review 578. For a discussion of culture as it relates to Indigenous peoples and international law, see Karen Engle, The Elusive Promise of Indigenous Development (Duke University Press, 2010); Kathleen Birrell, Indigeneity: Before and Beyond the Law (Routledge, 2016) 7–11. 29 Judith Butler, Bodies That Matter: On the Discursive Limits of ‘Sex’ (Routledge, 1993) 3. 30 Judith Butler, Psychic Life of Power: Theories in Subjection (Stanford University Press, 1997) 13. 31 Judith Butler, Notes Towards a Performative Theory of Assembly (Harvard University Press, 2015) 40–1. 32 I realize that the most salient term for referring to these peoples in the various and multifarious contexts is ‘Indigenous peoples’. I am troubling and problematizing how ‘Indigenous peoples’, as a presumptively universal signifier, applies to all those peoples. There is, however, no sufficient term for discussing them without discussing them as ‘Indigenous peoples’. It has been suggested that I discuss them as indigenous peoples (without capitalizing the ‘I’ in ‘Indigenous’), as many authors do. This is a capital idea because indigenous peoples seek to capitalize upon the international legal subjectstatus as Indigenous peoples – which clearly and definitively shows, as it says, the

10

Introduction

legal discourse about Indigenous peoples which delimits that which is utterable, identifiable and true from that which is not.33 To believe that I or anyone else can speak in a way that is devoid of legal significations is impossible. Accordingly, I use the term ‘autochthonous communities’ for its blocky-ness and unnaturalness even though it is a hastily hewn stand-in for those who are otherwise colloquially known as ‘Indigenous peoples’. The purpose in doing so is to reveal how the signifier ‘Indigenous peoples’ has become, or has the potential to become, universal and why that should be problematized and troubled as potentially furthering and transforming colonial technologies. The point is not that these terms should be de-tethered or broken from international legal discourse, but that perhaps there may be opportunities to reimagine the powers that FPIC and other Indigenous peoples’ rights are supposed to create as unconstrained from (international) legal models, state-based and rights-based processes. Before leaping to that, this book analyses the ways in which international legal discourse spreads and becomes appealing, constructs and produces, and then conceals those acts – dual functions of power as exhibited by international legal discourse. Another consequence of this method involves acknowledging that discussing FPIC as a legal object, or claiming it as a right, is a complex linguistic activity that is inherently political, social and relational.34 Importantly, and because rights claiming (much like discussing or writing about rights) is a complex linguistic and relational activity, there is no way of knowing how others will react, and the claim will not end a controversy or provide the claimant with control.35 Accordingly, one overestimates what FPIC is capable of delivering if one believes – as some scholars do – that Indigenous peoples can claim FPIC to trump state actors or end the political controversy, and thus attain control. Likewise, one underestimates the demands placed on FPIC claimants, where one presupposes that Indigenous peoples are natural subjects who pre-exist international legal discourse. At this time, it is sufficient to acknowledge that the belief that the FPIC claims made by Indigenous peoples can end political controversy relies upon styles of analysis that are partial pictures of power. I call such partial pictures of power ‘legal difference between ‘i’ and ‘I’. The problem is that there is no ‘indigenous peoples’ without ‘Indigenous peoples’: the lay sense is inherently tethered to the legal-technical sense. As such, the deployment of the lower-case ‘i’, as in ‘indigenous peoples’, risks further naturalizing the international legal subjectivity of Indigenous peoples. If I applied it here, it would risk, further, potential signification of all other under one universal term, which may be the effect of a civilizing mission or colonizing project from which those peoples may seek to be emancipated. Additionally, the difference between indigenous and Indigenous is difficult to read. For these reasons, I use the term ‘autochthonous communities’. 33 See Michel Foucault, Archaeology of Knowledge & The Discourse on Language (A M Sheridan Smith trans, Pantheon Books, 1972) 3–40, 107–117. 34 Karen Zivi, Making Rights Claims: A Practice of Democratic Citizenship (Oxford University Press, 2012) 9; Kathryn McNeilly, Human Rights and Radical Social Transformation: Futurity, Alterity, Power (Routledge, 2017) 35–9. 35 Ibid, Zivi, 26–7, 46–51, 117; ibid, McNeilly, 7.

Introduction

11

models’, which is further explained in Chapter 1. That chapter explains that a disciplinary effect of legal discourse is that scholars tend to adopt partial pictures of power called legal models, which allow them to treat FPIC or Indigenous rights as standalone objects of legal inquiry that inure to pre-existing natural subjects. Adopting legal models conceals that the subjects who are supposed to claim those rights are also produced, constituted and influenced by that discourse. A third consequence of a performative methodology is that terms, even legal terms and rights claims, cannot be fixed – as in ‘mended’ or ‘corrected’, as well as ‘stabilized’ or ‘settled’ – especially if those terms are useful for creating controversies.36 This matters because, to various degrees, scholars who deploy legal models are, in numerous ways, attempting to ‘fix’ the status and definition of FPIC so that Indigenous peoples can use FPIC to determine and have control over their own forms of living. But FPIC’s problems cannot be fixed by linguistic legal parsing. Furthermore, some attempts to fix FPIC engage in historically anachronistic uses of terms such as ‘Indigenous peoples’, ‘self-determination’ and ‘FPIC’.37 The focus on fixing FPIC elides how scholars insert themselves within discourse to engage in productive and formative aspects of a discipline.38 They do not merely use language – they self-discipline, as they are socially disciplined, to be heard and identified as speakers of international legal discourse. Undoubtedly, many if not all scholars are aware that they are engaging in a debate (if not discourse) and are attempting to create better uses of law for Indigenous peoples. The problem is that scholars who attempt to fix FPIC perform as though they are sovereign-masters of language who can dominate controversy, disambiguate ambiguity, and master all potential significations so that a term can be stabilized to work for Indigenous peoples as Indigenous peoples desire. To the extent that any scholar is successful in fixing FPIC – which I maintain is performatively impossible – they would negate the possibility that FPIC claimants can assert or engender their own versions of self-determination. If a scholar wishes to uphold 36 Ibid, Zivi, 18–20, 36–42; Judith Butler, Excitable Speech: A Politics of the Performative (Routledge, 1997) 14; generally ibid, McNeilly, 7. 37 There is an on-going debate surrounding the use of anachronisms in international legal histories. For an overview, see Justin Desautels-Stein, ‘International legal structuralism – a primer’ (2016) 8(2) International Theory 201. For an account that questions how to provide an historical account without presuming the history’s existence, see Matt Craven, ‘Theorizing the Turn to History in International Law’ in Anne Orford and Florian Hoffmann (eds), Oxford Handbook of the Theory of International Law (Oxford, 2016) doi: 10.1093/law/9780198701958.003.0002. 38 Moyn argues that a structural analysis of law as a discourse falls short of capturing the multiple phenomenological issues that arise from the more overtly political aspects involved in legislating, international legal and professorial settings. Samuel Moyn, ‘Legal Theory among the Ruins’ in Justin Desautels-Stein and Christopher Tomlins (eds), Searching for Contemporary Legal Thought (Cambridge University Press, 2017) 105–6; cf Thomas Skouteris, The Notion of Progress in International Law Discourse (TMC Asser Press, 2010); Justin Desautels-Stein, The Jurisprudence of Style (Cambridge University Press, 2018).

12

Introduction

Indigenous peoples as self-determining sovereigns, then the scholar cannot act as a sovereign who fixes or determines anything about that term for those self-determining sovereign peoples, or, otherwise, if a scholar were successful in fixing a definition, the scholar would vest themselves with the sovereign authority over Indigenous peoples’ rights.39 If one were to succeed in fixing FPIC so that it could be used by all Indigenous peoples, it would be entirely consistent with the structures of a Western imperialistic project in subjecting all Indigenous peoples to the scholar’s law.40 Acknowledging that claiming and writing of rights has risks must mean that a work such as this one also creates risks and troubles. To write as a legal scholar is to present a method and view, a spatiality and temporality, by selecting and deselecting, arranging and forming the content into a narrative form that others can verify as sufficiently reproducing legal scholarship. Furthermore, if I am successful, then I, as a legal scholar appear to disappear. This privileged positionality is dangerous, especially because I am not an Indigenous person. I am sympathetic to those who seek to challenge the status quo, develop counter-hegemonic projects, and search for novel lines of flight from existing forms of subjugation. And to be theoretically consistent, my intentions are irrelevant to how others interpret and structure what I write. In critiquing Western feminists’ analysis of the postcolonial woman, Chandra Mohanty reminds us that ‘the explanatory potential of particular analytic strategies employed by such writing, and … their political effect in the context of the hegemony of Western scholarship’ will be ‘beyond the immediate … disciplinary audience’.41 I agree, and, as argued here, the full effects of my writing are perceptible neither to me nor to anyone else. In fact, as I argue, whether one claims Indigenous peoples’ rights or writes about them in furtherance of, or in opposition to, international legal discourse, the full effects cannot be known. Indigenous rights, subjects and peoples are dangerous precisely because no one has full control over how the terminology was used in the past, how rights are currently claimed or how rights will be used in the future. And that is why the discourse about Indigenous rights is troubled; the subjectivity of Indigenous peoples, which no one can control, has not been widely troubled as something potentially dangerous for those who are supposed to claim those rights.42 39 Gayatri Chakravorty Spivak, ‘Can the Subaltern Speak?’ in Cary Nelson and Lawrence Grossberg (eds), Marxism and the Interpretation of Culture (University of Illinois Press, 1988) 271–9. 40 See Jennifer L Beard, The Political Economy of Desire: International Law, Development and the Nation State (Routledge, 2007) 27. 41 Chandra Mohanty, ‘Under Western Eyes: Feminist Scholarship and Colonial Discourses’ (1984) 12(3) Boundary 333, 336 (emphasis in originals). 42 But there is some discussion, see n 8; Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (University of Otago Press, 1999) 36; Marjo Lindroth and Heidi Sinevaara-Niskanen, Global Politics and Its Violent Care for Indigeneity: Sequels to Colonialism (Palgrave Macmillan, 2018); Marjo Lindroth, ‘Indigenous Rights as Tactics of Neoliberal Governance: Practices of Expertise in the United Nations’ (2014) 23(3) Social and Legal Studies 341, 347–8.

Introduction

13

To write as a legal scholar about Indigenous peoples’ rights might suggest that I uphold myself as an ‘authorial jurist’ of the type that Matthew Craven identifies as one who ‘claims to exercise sovereignty over the literary patterning of the past of international law, [but] is itself a subject inserted within an (historical and) intellectual context’.43 As an author writing in and about a legal discipline from a performative perspective, I am theoretically committed to denying the possibility that I have full sovereignty over the current or past instantiations of international law. I (partially) control what I write, but both the terms and forms I deploy are older and are bound up with the mechanizations of power in ways that I cannot fully perceive. Research is a hierarchical exercise. It is also a ‘dirty’ exercise.44 And writing a book on rights, especially human rights, and definitely on Indigenous peoples’ human rights, is a confluence of privileges. For this reason, this book attempts to critically appraise and trouble: the historic conditions that both ‘produce’ the field of professional expertise that enables international lawyers to imagine themselves as interlocutors within a specifiable discourse and practice, and which also serve to delimit the boundaries of what it is possible to say or think in that context.45 This work assesses the role and effects of scholars, experts and others in constructing their subject-objects within legal discourse, rather than uphold the positionality of the professional or authorial jurist. And I am fully aware that doing so potentially undercuts what I say because of who I am, what I do and how I am identified. To the extent this is troubling – and it is – the problem is that I am neither the sovereign nor the disciplinary guard of legal discourse. There is no value-neutral or apolitical researcher positionality46 – and to the extent that the object of examination involves an inquiry into the structuring of the subject – it might appear that analyzing the structuring of the subject overlooks the subject’s agentic actions, voices and self-identity. In part, to speak and write about subject formation treats the subject as the object of the sentence. To the extent that I do so, it is in order to show that having a voice – particularly, to have a voice as Indigenous peoples – is to insert and create a self within a structured discourse and to speak the terms of discourse.47 I appreciate that many who write of and claim Indigenous rights are also making epistemic claims requesting and necessitating a re-ordering of the world, legality and its application. Those are incredibly important projects and they must contend with and overcome the attenuating processes and demands that arrive when others identify a speaker as using terms from a discipline. For a listener to hear and understand rights claims 43 44 45 46 47

Craven (n 37) 12 (parenthesis in original, added brackets). Smith (n 42) 1. Craven (n 37) 12. Mohanty (n 41) 333–58. Foucault (n 20) 62.

14

Introduction

without having epistemic access to the intentionality of the claimant, the audience members (whoever they are) rely on pre-established discourse and their own disciplines to structure the speaker and the speaker’s meaning. And this work is a work primarily about legal discipline. It borrows from critical approaches to law, rights and human rights,48 and it shares many commonalities with other disciplines. For instance, (international) law and anthropology have complex disciplinary interrelationships, especially in constructing ‘native’, ‘indian’ and ‘indigenous’ as adjectives, which is not the focus of this work.49 Because my legal performative methodology borrows heavily from social and critical theory, it appears similar to the work of anthropologists who study Aboriginal and Indigenous peoples’ engagement with legal regimes,50 as well as human rights.51 Like Ronald Niezen, I identify the International Labour Organization’s interests in indigenous workers in the 1950s and then the movements towards and within the UN in the 1970s and 1980s as contributing to the emergence of Indigenous peoples, which was followed by a process of naturalizing that subject-status.52 However, this work differs by focusing on Indigenous peoples as legal subjects. It excavates a form of subjection, or how free acts towards liberation and emancipation may become or double as tools of subjugation. I attempt to do so by uncovering the effects and traps of power that those who claim FPIC find themselves within, articulate the contingency of these forms of power, and gesture towards the possibility of insurrectionary action with those forms. This position is contrary to Adam Kuper’s, who wrote that Indigenous rights initiatives are ‘[p]olicies based on false analysis [that] distract attention from real local issues’.53 The subjectivity of Indigenous peoples is historically contingent and of recent provenance in international law, but it can be employed to draw attention to (and create) ‘real local issues’. In response to Kuper, Alan Barnard wrote that ‘[t]o reject “Indigenous peoples” as an anthropological concept is not the same thing as rejecting 48 See, eg, Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford, 2000); Wendy Brown, ‘“The Most We Can Hope For …”: Human Rights and the Politics of Fatalism’ (2004) 103(2–3) South Atlantic Quarterly 451; Ben Golder, Foucault and the Politics of Rights (Stanford University Press, 2015). 49 Kaius Tuori, ‘American Legal Realism and Anthropology’ (2017) 42(3) Law & Social Inquiry 804; Sally Engle Merry, ‘Anthropology and International Law’ (2006) 35 Annual Review of Anthropology 99. 50 See, eg, Elizabeth Povinelli, Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism (Duke University Press, 2002); Dorothy L Hodgson, Being Maasai, Becoming Indigenous: Postcolonial Politics in a Neoliberal World (Indiana University Press, 2011). 51 Sally Engle Merry, ‘Legal Vernacularization and the Ka Ho’okolokolonui Kanaka Maoli, The People’s International Tribunal, Hawai’I 1993’ (1996) 19(1) POLAR 67; Peggy Levitt and Sally Merry, ‘Vernacularization on the ground: Local uses of global women’s rights in Peru, China, India and the United States’ (2009) 4 Global Networks 9. 52 Ronald Niezen, Public Justice and the Anthropology of Law (Cambridge University Press, 2010) 116–120. 53 Adam Kuper, ‘The Return of the Native’ (2003) 44(3) Current Anthropology 389, 395.

Introduction

15

it as a legal concept, or rejecting it as a useful tool for political persuasion’.54 I could not agree more. As maintained throughout this book, the productive and formative aspects of international law and human rights are in need of further articulation and greater appreciation. By combining critical approaches to human rights with research on performativity and law,55 this work is concerned with subjects and the subjectstatus of Indigenous peoples in international legal discourse. To that degree, it relates to emerging scholarship on this topic. Christopher Thornhill et al have recently argued that ‘the legal subjectivity of Indigenous rights claimants is profoundly transfigured’ through claiming rights.56 This book argues something similar, but from a very different methodology. This performative methodology orients the emergence of the subject-status in international legal discourse, rather than within a ‘global legal system’, and theorizes the mechanisms of those transformations.57 There might be good reasons to orient or tie legal subjectivities to a ‘global’ framework: perhaps, to connect it with political science or international relations, neoliberalism or transnational flows of capital.58 Those are projects worth pursuing, but the scope of this work is more concerned with international legal discourse and discipline, which overlaps with, works alongside and borrows from non-legal disciplines to make sense of law. However, I do not employ a legal performative method to then orient international legal discourse within other ongoing discourses to explain, approve or question its normative significance. Accordingly, this work cannot address all on-going debates in international legal discourse on Indigenous peoples, such as individual vs collective rights and actions or a right of culture vs a right of self-determination. I mention aspects of those debates as they relate to how FPIC and self-determination are used, but I do not specifically outline or advocate for a particular approach to those issues.

54 Alan Barnard, ‘Kalahari Revisionism, Vienna and the “Indigenous peoples” debate’ (2006) 14(1) Social Anthropology 1, 7. 55 See, eg, McNeilly (n 34); Jarret Zigon, ‘Maintaining the “Truth”: Performativity, Human Rights, and the Limitations on Politics’ (2014) 17(3) Theory & Event 1; Awol Allol, Law and Resistance: Toward a Performative Epistemology of the Political Trial (Routledge, 2018); Zivi (n 34); Julie Stone Peters, ‘Legal Performance Good and Bad’ (2008) Law, Culture and the Humanities 179; Sara Ramshaw, ‘The Paradox of Performative Immediacy: Law, Music, Improvisation’ (2016) 12(1) Law, Culture and the Humanities 6–16; Claudius Messner, ‘“Living” Law: Performative, Not Discursive’ (2012) 25 International Journal of Semiotics and Law 537–52; Ritu Birla, ‘Performativity between Logos and Nomos: Law, Temporality and the “Non-Economic Analysis of Power”’ (2012) 21(2) Columbia Journal of Gender and Law 90– 113; Martha Merrill Umphrey, ‘Law in Drag: Trials and Legal Performativity’ (2012) 21(1) Columbia Journal of Gender and Law 114–29. 56 Thornhill et al (n 8) 446. 57 See also, Stephen M Young, ‘The Material Costs of Claiming International Human Rights: Australia, Adani and the Wanagn and Jagalingou’ (2019) 20(1) Melbourne Journal of International Law (forthcoming). 58 Lindroth and Sinevaara-Niskanen (n 42).

16

Introduction

The performative methodology used throughout this book also shares similarities with Benedict Kingsbury’s constructivist, functional approach to defining Indigenous peoples.59 However, a performative method maintains that individuals and communities are not Indigenous peoples for the purposes of claiming human rights before performatively subjecting themselves within international legal discourse.60 In a recently edited book entitled Indigenous Peoples as Subjects of International Law, Steven Newcomb argues that there are metaphorical patterns of domination in the terminology of Indigenous peoples and international law that equates being ‘indigenous’ with being ‘dominated’ by states.61 In the same book, Irene Watson argues that her people’s laws still exist and ‘have always been here’.62 The concern is this: if scholars, advocates and others who advocate on behalf of Indigenous rights are subjecting autochthonous communities to international law, international legal discourse and the ‘domination’ of states, they may reproduce legal discourse, its mechanisms, hierarchies, colonial narratives and cultural conformities that erase those peoples’ laws and forms of life.63 To fully explain my methodological commitments, Chapter 1 presents and further articulates legal performativity as an intervention in international legal discourse. Those who are primarily interested in case studies about how Indigenous peoples claim FPIC could skip ahead to Chapter 4. Even though I acknowledge that theory and method can be as difficult as it is abstruse, this methodology is crucial for understanding the major conceptual impacts that are developed in Chapter 7. Where Chapter 1 establishes the legal performative methodology, Chapter 2 rereads how Indigenous peoples and their rights emerged from international legal discourse. After providing an account of that emergence, it then considers how 59 60 61 62

Kingsbury (n 7). Young (n 57). Newcomb ‘Domination’ (n 28) 18–37. Irene Watson, ‘First Nations, Indigenous Peoples: Our Laws Have Always Been Here’ in Irene Watson (ed), Indigenous Peoples as Subjects of International Law (Routledge, 2017) 96–119. 63 See Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge, 2015) 12–20. I use the terms ‘forms of living’ and ‘forms of life’ interchangeably to signify a ‘common’ or ‘shared existence of human beings in its constitutive and ethical relation’. Matías Leandro Saidel, ‘Form(s)-of-Life. Agamben’s Reading of Wittgenstein and the Potential Uses of a Notion’ (2014) 37(1) Trans/ Form/Acao 163, 164. Ludwig Wittgenstein uses ‘form of life’ in Philosophical Investigations (Blackwell, 1986) sections 19, 23, 241; also Giorgio Agamben, Infancy and History: The Destruction of Experience (Liz Herson trans, Verso, 1993) 10; Giorgio Agamben, Potentialities: Collected Essays in Philosophy (Daniel Heller-Roazen trans, Stanford University Press, 1999) 77. Foucault and Butler often write about ‘forms of X’ whether X is forms of subjectivity, identify politics, love, gender, development, linguistic injury, invidious speech, mastery or control, social power, capital and symbolic domination, fatalism, political parody and satire, agency and resistance, morality, psychology, and so on. Here, I do not explore the relations between Foucault and Agamben and Butler. See Verena Erlenbusch, ‘The Place of Sovereignty: Mapping Power with Agamben, Butler, and Foucault’ (2013) 14(1) Critical Horizons 44.

Introduction

17

scholars and others cite and re-cite the terms of the discourse and how it impacts the subjectivity of Indigenous peoples. When self-identifying Indigenous peoples assert rights and argue for other institutional actors to recognize them and their rights, the inquiry into ‘power loses its appearance of priority’.64 It then appears that the rights claimed are the subjects’ own effects, rather than the powers that preceded and produced the subjects. The disciplinary power of law then elides the formative and constitutive force of law, which provides the appearance of a natural subject as it solidifies the seeming importance of legal models, its hierarchies and mechanisms. Chapter 3 then considers how scholars view FPIC, the major debates that surround FPIC, and how scholars attempt to address issues that arise in those debates. Most scholars adopt and deploy legal models and, hence, the major hurdles to implementing FPIC are either FPIC’s definitional vagueness or its status as ‘soft-law’. After discussing those issues in more detail, Chapter 3 devotes considerable space to appraising Cathal Doyle’s approach to Indigenous peoples’ FPIC and self-determination.65 By treating Indigenous peoples as natural subjects with natural rights, he maintains that Indigenous peoples may use FPIC as a trump for control or to otherwise bring controversies to an end.66 From a legal performative perspective, scholars who advocate for Indigenous peoples’ rights to uphold their sovereignty and self-determination perpetuate and reproduce legal models and legal discipline while consolidating all autochthonous communities as subjects of international law.67 A risk is that some scholars performatively construct autochthonous communities in ways that negate their aspirations or worldviews by upholding them as Indigenous peoples for the purposes of expressing Indigenous peoples’ FPIC and self-determination. Furthermore, in naturalizing and consolidating all Indigenous peoples under international legal discourse, the discourse works to naturalize international law and its effects. The book then provides a series of case studies, which are a means for collecting data about how FPIC has been implemented (or not) at various times in various places. Each chapter focuses on a different jurisdiction in order to examine how Indigenous peoples claim FPIC, and others use FPIC, to oppose natural resource development. Chapter 4 examines how Indigenous peoples claim FPIC within a nation that has legislated its adoption. The Philippines has the longest-standing national legal standard for FPIC, having adopted the Indigenous Rights Protection Act in 1997, which provided claimants with a right of FPIC, as well as the ability to title their ancestral territories as they determine.68 The case study examines the B’laan 64 65 66 67 68

Butler (n 30) 13. Doyle (n 15). Doyle (n 15) 172, 186–8. See, eg, Birrell (n 28) 4. An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous People, Creating a National Commission of Indigenous People, Establishing Implementing Mechanisms, Appropriating Funds Therefore, and for other purposes (Philippines) Republic Act No 8371.

18

Introduction

peoples’ opposition to the attempted development of the Tampakan Gold-Copper Project, located on the southernmost Philippine island of Mindanao. Chapter 5 examines how Indigenous peoples claim FPIC as international human rights law where state laws have not adopted FPIC. This case study focuses on the Wangan and Jagalingou Family Council’s opposition to Adani’s highly publicized attempt to develop the Carmichael Coal Mine in central Queensland, in Australia.69 Chapter 6 examines how a regional human rights court, the Inter-American Court of Human Rights, requires states to comply with FPIC. It evaluates a series of cases promulgated by the Court involving Indigenous peoples’ participation, which was expanded to include FPIC.70 Because those chapters focus on different jurisdictions, the case studies are slightly uneven. The first two are historical and contextual, while the third primarily considers the jurisprudence of a regional human rights court. This unevenness is, in my view, important. The differences demonstrate that claiming FPIC relies upon international legal discourse in attempts to conscript and reform state powers. While each case study could focus on the interrelations between local, state and international, it is the interrelation between the case studies that produces the greater conceptual insights. The use of FPIC in one case study generates problems and potentially looks to the following case study as providing a type of relief or remedy – together, they stage a cycle of legal forms. In other words, the relief granted by the Inter-American Court of Human Rights requires states to adopt a legal arrangement that is like that in the Philippines. The failings of the Philippines’ legislation suggests a form of more flexible action, which is like that in Australia. The failings of the flexible actions in Australia require relief such as that granted by the Inter-American Court of Human Rights. This suggests that problems with FPIC are not found in its status or definition. Rather, problems arise from Indigenous peoples being subjects of power who do not have the control over their lives that FPIC supposedly promises. Chapter 7 then explains how the cycle of legal forms is representative of disciplinary ‘attractions, these evasions, these circular incitements’ these ‘perpetual spirals of power and pleasure’,71 that arise from and, indeed, are produced by international legal discourse. That chapter evaluates the performativity of FPIC claims in the case studies in order to appraise how scholars and others overestimate what FPIC can do and underestimate what it demands. Those who deploy legal 69 See, eg, Anna Krien, ‘The Long Goodbye: Coal, Coral and Australia’s Climate Deadlock’ (2017) 66 Quarterly Essays 1, 37–8. 70 Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua (Merits, Reparations, and Costs), (Inter-American Court of Human Rights Series C No 79, 31 August 2001); Case of the Saramaka People v Suriname (Preliminary Objections, Merits, Reparations, and Costs) (Inter-American Court of Human Rights, Series C No 172, 28 November 2007); Case of the Kaliña and Lokono Peoples v Suriname (Merits, Reparations and Costs) (Inter-American Court of Human Rights, Ser C, No 309, 25 November 2015). 71 Foucault (n 20) 45 (original emphasis).

Introduction

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models treat FPIC as though it provides autochthonous communities with the ability to control their futures, but claiming FPIC or self-determination requires free and willing subjection to laws that claimants do not control. Hence, claiming FPIC can create and draw attention to controversy, but it does not determine how others will react to those claims and thus those claims will not end the controversies.72 Autochthonous communities can use human rights as a source of power, but only by becoming subjects of power who enact indefinite and permanent sites of contestation.73 While Chapter 7 examines some of the problems arising from the uses of FPIC, Chapter 8 then theorizes the possibility of insurrectionary potential that arises from FPIC claims. The emergence of Indigenous peoples and their rights in international law involved immense struggles, strategic planning, negotiations and compromises. That emergence is, to date, as exceptional as it is unparalleled – it involves institutions and subjectivities that have no exact complementary international legal form. It is deserving of appreciation as well as critique. As such, this book examines how those who invoke FPIC can use it to express their agency, resist development projects, and draw attention to political controversies. But, as argued here, for one to express agency through the law is also to become identifiable as a legal subject who has, whether one intends to or not, already professed obedience to the powers that one conscripts.

72 Zivi (n 34) 9, 26–7, 46–51, 117. 73 McNeilly (n 34) ch 4; Butler, (n 29) 221–2.

Chapter 1

Troubling subjects

Style and method This chapter explains the terminology and methodology of legal performativity that is used throughout this book. The notion of legal performativity that is articulated here borrows from numerous theorists, but principally from Judith Butler and Michel Foucault. Their theories about subject construction aid in explaining how it is that autochthonous communities performatively enact as Indigenous peoples to claim human rights, how that involves inscribing legal discipline on oneself and one’s community, why that is troubling, and why it is problematic that legal scholars – who are themselves disciplined and involved in the reproduction of legal discourse and its subjects – have difficulties seeing that. My explications of Michel Foucault’s and Judith Butler’s theories are not thorough, comprehensive or comparative analyses of their work or their views on law, legality or juridical power.1 Rather, the first section of this chapter focuses on Foucault’s notion of discourse and power to understand legal models, their limitations, and the other powers at work upon Indigenous peoples as subjects of international legal discourse. The second section then uses Butler’s theories of performativity to explain the performative enactment of Indigenous peoples’ subjectivities to claim FPIC. I read Foucault and Butler together, and alongside others who articulate performative approaches to legality,2 to describe the subject1 There is an on-going debate about Foucault’s theorization of discipline and what that means for both sovereignty and law. See Ben Golder and Peter Fitzpatrick, Foucault’s Law (Routledge, 2009) ch 1, 13, 36–9; Victor Tadros, ‘Between Governance and Discipline: the Law and Michel Foucault’ (1998) 18(1) Oxford Journal of Legal Studies 75, 79–82; Alan Hunt and Gary Wickham, Foucault and Law (Pluto Press, 1994); Carol Smart, Feminism and the Power of Law (Taylor & Francis, 1989) 13–4. To understand Butler’s approach to law, sovereignty, Foucault and Agamben, see Elena Loizidou, Judith Butler: Ethics, Law, Politics (Routledge, 2007) ch 4; Verena Erlenbusch, ‘The Place of Sovereignty: Mapping Power with Agamben, Butler, and Foucault’ (2013) 14(1) Critical Horizons 44, 52–6. 2 For example, Kathryn McNeilly, Human Rights and Radical Social Transformation: Futurity, Alterity, Power (Routledge, 2017); Karen Zivi, Making Rights Claims: A Practice of Democratic Citizenship (Oxford University Press, 2012).

Troubling subjects

21

forming powers of discourse and discipline and the continuous re-citational slippage of terms, rights and subjects through citational-chains.

Foucault’s frameworks This section borrows from Foucault’s theories to articulate several features about international legal discourse and Indigenous peoples. When scholars or theorists employ legal models and ask questions such as ‘What is FPIC?’, there is a tendency to ignore other modes of power, all of which are overlapping in legal discourse. In doing so they can treat FPIC’s status and definitional issues, much like Indigenous peoples’ self-determination and, generally, rights, as potentially fixable with theoretical or technical legal wordsmithing. That also tends to involve upholding Indigenous peoples as untroubled, pre-legal natural subjects, rather than subjects formed and produced according to the discourses that legal scholars and others produce. English-language scholars generally view Foucault’s work in three periods:3 the archaeological,4 the genealogical,5 and the ‘history of subjectivity’ or the ‘ethical phase’.6 In the archaeological era, Foucault excavates or unearths the dimensions and limits of discourse.7 For Foucault, true statements within a discourse function to delimit what is possible to say, write or think, because it is those ‘practices that systematically form the objects of which they speak’.8 A ‘discourse’ is a formal, institutionally produced and historically contingent body of knowledge tethered to the notion of ‘discipline’. Discipline is both a body of knowledge that is advanced as a scholarly discipline (such as science, medicine or psychiatry) and, as further articulated in the genealogical period, institutions of social control on bodies (such as schools, hospitals or prisons). Given the dual senses of discipline, an archaeological project traces how the discipline was formed as it excavates the limits of discursively produced knowledge. Analyzing a discourse strives to reveal ‘the limits of enunciability’, which Golder explains as ‘what can be said by whom, and of

3 See, eg, Ben Golder, Foucault and the Politics of Rights (Stanford University Press, 2015) 37. 4 Michel Foucault, Birth of the Clinic (Taylor & Francis, 2003), Michel Foucault, The Order of Things (Pantheon Books, 1970); Michel Foucault, Archaeology of Knowledge & The Discourse on Language (A M Sheridan Smith trans, Pantheon Books, 1972). 5 Michel Foucault, Discipline and Punish (Vintage, 2nd ed, 1991); Michel Foucault, History of Sexuality: Vol 1 (Pantheon, 1978); Michel Foucault, Society Must be Defended (Picador, 2003). 6 Béatrice Han, Foucault’s Critical Project: Between the Transcendental and the Historical (Stanford University Press, 2010) xiii; Golder (n 3) 37. This era contains Michel Foucault, Security, Territory, Population (Palgrave Macmillan, 2007); Michel Foucault, The Birth of Biopolitics (Palgrave Macmillan, 2008); Michel Foucault, The Hermeneutics of the Subject (Palgrave Macmillan, 2005). 7 Foucault, Archaeology (n 4). 8 Foucault, Archaeology (n 4) 136.

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what, and when it will qualify as proper knowledge’.9 To understand the rules of discursive knowledge production, one must consider historical events.10 From an archaeological perspective, whether statements appear obvious or unobvious, reasonable or unreasonable, true or false is an effect of a discourse that delimits what are known as facts of the world. International legal discourse on Indigenous peoples likewise delimits what appears obvious and true from what appears unobvious and false. One can claim, as some do, that ‘Indigenous peoples have been entitled to a right of self-determination since time immemorial’.11 That statement might appear as a fact of the world rather than a claim of legal significance.12 When that occurs, if someone states there were no Indigenous peoples before the 1980s, it may appear patently false or mad because it cuts across and opposes naturalization, universalization and normalization – in sum, the epistemological discipline – of contemporary international legal discourse. However, we have statements to that effect. In 1991, S James Anaya wrote, ‘[w]ithin the last several years … [t]he conceptual category of indigenous peoples or populations has emerged within the human rights organs of international organizations and other venues of international discourse’.13 That Indigenous peoples have rights that have existed since time immemorial and that they emerged from organs of international legal organizations is seemingly irreconcilable. However, Foucault’s theorizations help to make sense of those claims by orienting these assertions within international legal discourse as historical events at particular times. Indigenous peoples are entitled to self-determination since time immemorial because international legal discourse produces these facts as true and then conceals its constructive role. And yet, because Indigenous peoples emerged out of engagement with international legal discourse, it would seem to make intuitive sense to theorize and understand Indigenous peoples, their self-determination and FPIC through legal models of power as though law reflects something previously and naturally true. This intuition is, however, ‘misleading’ – it is led to a presupposed epistemology by the object of inquiry as a disciplinary effect of legal discourse. Connecting 9 Golder (n 3) 39, citing Eric Paras, Foucault 2.0: Beyond Power and Knowledge (Other Press, 2006) 174 n 3, citing Michel Foucault ‘Letter to D. Defert’. The concept of enunciation is important for Foucault. See Foucault, Archaeology (n 4) 71–6, 88–105. 10 See generally Fleur Johns, Richard Joyce and Sundhya Pahuja (eds), Events: The Force of International Law (Routledge, 2011) 3–8. 11 Erica-Irene A Daes, ‘The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing, 2011) 37. 12 But see Shaunnagh Dorsett, ‘“Since Time Immemorial”: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry’ (2002) 38 Melbourne University Law Review 32. 13 S James Anaya ‘Indigenous Rights Norms in Contemporary International Law’ (1991) 8 Arizona Journal of International and Comparative Law 1, 4; Chris Tennant, ‘Indigenous Peoples, International Institutions, and the International Legal Literature from 1945–1993’ (1994) 16 Human Rights Quarterly 1, 4–5.

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discourse and discipline to the modalities of power that Foucault articulated in his genealogical period is important here. In Foucault’s genealogical period, he articulates several modes of power: absolutist, sovereign-juridical, disciplinary, biopolitical among others.14 My investigation here is primarily concerned with the interrelation between discourse and disciplinary powers, which is later connected to subjection, and how that differs from legal models of power.15 For Foucault, a sovereign-juridical power involves ‘an essentially negative power, presupposing on the one hand a sovereign whose role is to forbid and on the other a subject who must somehow effectively say yes to this prohibition’.16 Under that model of power – one that is assumed to be essentially a negative and oppressive power – the individual would appear ‘as a sort of elementary nucleus, a primitive atom, a multiple and inert material on which power comes to fashion or against which it happens to strike, and in so doing subdues or crushes individuals’.17 Foucault very clearly argues that this view of the individual depends upon a misconceived and partial view of powers that operate today.18 As Ben Golder and Peter Fitzpatrick explain, for Foucault, ‘a juridico-discursive conception of power elides the crucial point that power is in fact not negative and repressive but rather productive, or formative. Power does not operate on a pre-given object but in fact functions to produce that very object’.19 If one focuses on negative and repressive powers, there is a tendency to insufficiently credit the productive or formative aspects of power at work in a dual function of power. A form of power that is negative and repressive as well as positive and formative is disciplinary power. Instead of operating as a topdown power wielded by a sovereign or a judge, disciplinary power circulates between people as they form and construct relationships in multiple contexts.20 Disciplinary power is not: the brute fact of the domination of the one over the many, or of one group over another, but the multiple forms of domination that can be exercised in 14 See n 5. 15 To see how an analysis of absolutist power and Indigenous peoples’ rights might be applied, see Aileen Moreton-Robinson, ‘Virtuous Racial States: The Possessive Logic of Patriarchal White Sovereignty and the United Nations Declaration on the Rights of Indigenous Peoples’ (2011) 20(3) Griffith Law Review 641, 644–45. 16 Michel Foucault, ‘Power and Strategies’ in Michel Foucault, Power/Knowledge: Selected Interview and Other Writings, 1972–1977 (Colin Gordon ed, Pantheon, 1980) 140. 17 Foucault, Society Must Be Defended (n 5) 30. 18 Michel Foucault, ‘Two Lectures’ in Michel Foucault, Power/Knowledge: Selected Interview and Other Writings, 1972–1977 (Colin Gordon ed, Pantheon, 1980) 96; Michel Foucault, ‘Truth and Power’ in Michel Foucault, Power/Knowledge: Selected Interview and Other Writings, 1972–1977 (Colin Gordon ed, Pantheon, 1980) 119. 19 Golder and Fitzpatrick (n 1) 15. 20 Foucault, Discipline and Punish (n 5) 146.

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society; so not the king in his central position, but subjects in their reciprocal relations; not sovereignty in its one edifice, but the multiple subjugations that take place and function within the social body.21 As mentioned above, discourses involve disciplines, those bodies of knowledge that delimit that which is knowable, utterable and identifiable from that which is not. The mechanisms of discipline regulate bodies where disciplinary power is exhibited, produced and reproduced. For example, in hospitals, schools or prisons, discourses of knowledge discipline and structure its subjects as patients, students or inmates.22 In explaining disciplinary power, Foucault famously employs the notion of the ‘Panopticon’ – the architectural layout of a prison where the guards reside within a central tower and maintain surveillance over all inmates – which does far more than structure the building. Rather, it ‘designates a comprehensive principle’ about a technology of power involving surveillance and control that works on the body and into the souls of the inmates.23 Foucault describes disciplinary power as ‘centered on the body as a machine: its docility, the optimization of its capabilities … its integration into systems of efficient and economic controls’.24 But given that no singular individual controls disciplinary powers, he queries whether ‘things would be much better if the inmates seized control of the Panopticon and occupied the tower, rather than the guards’.25 While there is a tendency to think of law as that which is controlled by the sovereign, that is an overly simplified conception of both law and power, one that tends to ignore discourse and discipline.26 With regard to law, because legal scholars are disciplined by legal discourse, they tend to adopt and deploy ‘legal models’. The term ‘legal model’ represents those scholarly projects that principally attempt to flesh out, clarify or generate terms for Indigenous rights, as though fixing legal terminology can provide Indigenous peoples with negative and oppressive powers, as rights, that others must obey. Scholars employ legal model in different ways. Some models are based on positive law, others on natural law.27 Others appreciate that law may produce favorable or dangerous situations.28 The main problem is that many scholars focus on and are attentive to a partial and impoverished picture of power at work within legal discourse and their own productive and of role in legal discipline. As Foucault notes, ‘[p]ower is much more Foucault, Society Must Be Defended (n 5) 27. Foucault, Society Must Be Defended (n 5) 241. Michel Foucault, Foucault Live (Semiotext(e), 1996) 227. Foucault, History (n 5) 139. Foucault, Foucault Live (n 23) 240. See n 1. Cf Patrick Macklem, The Sovereignty of Human Rights (Oxford University Press, 2015); Cathal Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (Routledge, 2015). 28 Kristen A Carpenter and Angela R Riley, ‘Indigenous Peoples and the Jurisgenerative Moment in Human Rights’ (2014) 102 California Law Review 173, 233.

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complicated, much more dense and diffuse than a set of laws or a state apparatus’.29 Hence, this book considers how legal discourse involves powers that are denser and more diffuse than a set of laws.

The disciplinary effects of legal models and its subjects Legal models are partial pictures of power in the sense that they uphold rights claiming as essentially invoking negative and oppressive powers that others must obey, as though right claimants invoke a ‘negative liberty’ that protects them from the abusive overstretch of states, as ‘tool-kit against oppression’.30 To simplify for explanatory purposes: one could believe that successfully articulating FPIC or Indigenous peoples’ self-determination will subject non-indigenous actors, such as states or industry to Indigenous peoples’ rights so that Indigenous peoples can control some aspects of their lives. Under such views, Indigenous peoples either effectively claim rights to control their lives and fight against oppression, or they are dominated by power when those rights are improperly recognized. This style of analysis tends to ignore that to be identifiable as Indigenous peoples for the purposes of claiming rights is a de jure rather than a de facto signifier. And it is understandable why many scholars and others treat Indigenous peoples as de facto, pre-existing natural subjects – they are disciplined to reproduce that legal discourse. As I argue in Chapter 2, the institution and subjectivity of Indigenous peoples emerged from international legal discourse in the 1980s.31 After that emergence, the discourse changed as self-identifying Indigenous peoples asserted their subjectivity and rights. With those changes, scholars and others could assert that Indigenous peoples took advantage of a changing international system to have their demands recognized, and therefore may wield some constative degree of sovereignty.32 That is an agentic narrative, which tends not to recognize that those asserting rights as Indigenous peoples undergo changes to be so identifiable. The alteration in the ways of writing and speaking, the changes to discourse, produced the view that Indigenous peoples are pre-legal natural subjects who asserted their demands, which international legal actors recognized. One could 29 Foucault, Foucault Live (n 23) 235. There is debate on Foucault’s use of ‘juridical’ power, and how it is separate from law or legal power. See n 1. 30 Michael Ignatieff, ‘Human Rights as Politics, Human Rights as Idolatry’ (Tanner Lectures on Human Values, Princeton University, 4–7 April 2000) 323; cf Wendy Brown, ‘“The Most We Can Hope For…”: Human Rights and the Politics of Fatalism’ (2004) (103)2/3 South Atlantic Quarterly 451. 31 See, eg, Anaya (n 13) 4. 32 Siegfried Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’ (2008) 41 Vanderbilt Journal of Transnational Law 1141–76; see S James Anaya and Sergio Puig, ‘Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples’ (2017) 67(4) University of Toronto Law Journal 435. This book does not theorize sovereignty and its relation to law. See Loizidou (n 1) ch 4.

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then write that Indigenous peoples assert ancient or natural rights that pre-exist positivist theories of international law,33 which are a-historical and anachronistic approaches to their subjects.34 One might then have the belief that legalized rights delineate what is permissible from what is forbidden, which is to believe that when Indigenous peoples claim FPIC they can deploy a negative and oppressive power with correlative duties and obligations from which derogation is impossible. The task, then, for legal scholars and advocates is to clarify those rights and produce that knowledge so that claiming Indigenous rights provide Indigenous peoples with the power to control impacts, override state policies, or trump state-sanctioned utilitarian calculations to bring political controversy to an end. This leads to debates about whether FPIC is a ‘veto’, the meaning of ‘self-determination’, and so on, which are re-read in Chapter 3. Attempts to fix those rights uphold the importance of legal models as it reproduces legal models. Under legal models, where pre-existing Indigenous peoples take advantage of reduced barriers and human rights to assert their demands, scholars produce the view that Indigenous peoples control and command power through rights that can civilize or progress states. On the other hand, when one realizes that international legal discourse precedes and produces Indigenous peoples as subjects, then the power that Indigenous peoples claim is not the same power that preceded and produced them. Those who become identifiable Indigenous peoples through rights claiming transform themselves by demonstrating that they are civilized according to state-approved international legal standards for purposes of legal contestations. Butler clarifies that: Power not only acts on a subject but, in a transitive sense, enacts the subject into being. As a condition, power precedes the subject. Power loses its appearance of priority, however, when it is wielded by the subject, a situation that gives rise to the reverse perspective that power is the effect of the subject, and that power is what the subject effects.35 Where inquiries into power lose priority, particularly when the productive and formative aspects of disciplinary powers are insufficiency acknowledged, legal models are upheld for producing attractive views of rights, which has the effect of re-producing other features as well. When power loses its appearance of priority those who deploy legal models present as obvious some features of FPIC’s definition or UNDRIP’s status, while ignoring or occluding most issues involving subjectivity. That is to say, when gazes are fixed on the legal object, the rights in question, scholars worry about the implementation or operationalization of those rights.36 Debates thus arise over the definition 33 Doyle (n 27), cf Anaya (n 13) 4; Tennant (n 13) 4–5. 34 Foucault, Archaeology (n 4) 126–31. 35 Judith Butler, Psychic Life of Power: Theories in Subjection (Stanford University Press, 1997) 13. 36 See Federico Lenzerini, ‘Implementation of the UNDRIP around the world: Achievements and future perspectives. The outcome of the work of the ILA

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and status of FPIC – and indeed the substance or content of rights generally – whether it is or will become customary international law,37 or whether it establishes a political or moral basis that binds or determines Indigenous peoples’ legal right to participate.38 Although there is some skepticism, optimistic scholars articulate how FPIC could or should work so that states have duties to Indigenous peoples and Indigenous peoples have control over some aspects of their lives. The problem is that putatively fixing FPIC’s definition and status does not resolve the underlying power structures, disparities, mechanisms or hierarchies. Instead, those who deploy legal models performatively re-invest and re-entrench partial pictures of power for the purposes of contemporary legal discourse. For example, where FPIC is not binding law, some see it as politically and morally determining or binding law, which places politics and morality in the service of legal projects. Furthermore, many maintain that the Indigenous rights recognized or grounded in international law should override state interests. This view maintains that international law is somehow above or controlling of state law, which supports and reconstructs a hierarchical view of law. A consequence is that scholars, institutions and others involved in those types of projects might be involved in subjectifying individuals and communities, who might have otherwise successfully avoided using tools of state power or avoided subjection to the state, to international legal discourse. Or perhaps scholars and others are simply encouraging individuals and communities to subjectify themselves. Regardless, to be identifiable as Indigenous peoples requires claimants to deploy rights adeptly, which is a Committee on the Implementation of the Rights of Indigenous Peoples’ (2019) 23 (1–2) International Journal of Human Rights 51, 51–62. 37 See also S James Anaya and Robert A Williams Jr, ‘The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources Under the Inter-American Rights System’ (2001) 14 Harvard Human Rights Journal 33; Jo M Pasqualucci, ‘International Indigenous Land Rights: A Critique of the Inter-American Jurisprudence of the Inter-American Court of Human Rights in Light of the United Nations Declaration on the Right of Indigenous Peoples’ (2009) 27 Wisconsin International Law Journal 51; Penelope Simons and Lynda Collins, ‘Participatory Rights in the Ontario Mining Sector: An International Human Rights Perspective’ (2010) 6(2) McGill International Journal of Sustainable Development Law & Policy 177; Stefaan Smis, Dorothee Cambou and Genny Ngende, ‘The Question of Land Grab in Africa and the Indigenous Peoples’ Right to Traditional Lands, Territories and Resources’ (2012–13) 35 Loyola of Los Angeles International and Comparative Law Review 518; Enzamaria Tramontana, ‘The Contribution of the Inter-American Human Rights Bodies to Evolving International Law on Indigenous Rights over Land and Natural Resources’ (2010) 17 International Journal on Minority and Group Rights 241. 38 Rodolfo Stavenhagen, ‘Making the Declaration on the Rights of Indigenous Peoples Work: The Challenge Ahead’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing, 2011) 151; Megan Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law 439; Yogeswaran Subramaniam, ‘Rights Denied: Orang Asli and Rights to Participate in Decision-Making in Peninsular Malaysia’ (2011) 19 Waikato Law Review 44.

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mode of legal contestation that states have approved,39 to recruit state-sanctioned powers for their protection. Not only do autochthonous communities become subjects of international legal discourse, but they also become identifiable subjects of state legal discourse. When Indigenous peoples are subjects of state legal discourse, there is not only an unequal meeting of laws and powers: autochthonous communities who become Indigenous peoples performatively demonstrate their shift from opposition to the state to their willing subjection to law, its hierarchies and previously established discourses.40 That may, in turn, blunt forms of resistance and displace other, hitherto, unidentifiable legal and political projects.41 Failure to recognize that Indigenous peoples are subjects of international legal discourse for the purposes of claiming human rights produces the view that Indigenous peoples are pre-legal natural subjects and, as international legal subjects, are formally equal sovereigns. While potentially beneficial, scholars who uphold Indigenous peoples as formally equal sovereigns and fail to appreciate that Indigenous peoples are subjects of international and state legal discourse reproduce a dynamic of difference, the mechanism that is central to the civilizing or colonial mission.42 One could argue that Indigenous peoples’ participation in developing these rights provides them with a means for showing that they are civilized humans, peoples or subjects who are due equal dignity, protection before the law, recognition and a more livable life – all of which could be positive. But where Indigenous peoples are treated as pre-legal natural subjects, scholars fail to see that to be identifiable as Indigenous peoples for the purposes of claiming FPIC requires autochthonous communities to transform and insert themselves into legal discourses that pre-regulate and saturate the forms of ‘individual’, ‘peoples’, ‘humans’, ‘citizens’ and ‘Indigenous peoples’. Additionally, the argument that Indigenous peoples participated in developing Indigenous rights, when Indigenous peoples and Indigenous rights emerged co-extensively and performatively in articulating those rights for

39 H Patrick Glenn, ‘The Three Ironies of the UN Declaration on the Rights of Indigenous Peoples’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 176–7. 40 Charles R Hale, ‘Neoliberal Multiculturalism: The Remaking of Cultural Rights and Racial Dominance in Central America’ (2005) 28 Political and Legal Anthropology Review 10, 20. 41 See David Kennedy, Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press, 2004) 99–100; Todd May, ‘Foucault’s Conception of Freedom’ in Dianna Taylor (ed), Michel Foucault: Key Concepts (Routledge, 2011) 77; Judith Butler, Bodies That Matter: On the Discursive Limits of ‘Sex’ (Routledge, 1993) 3. 42 See Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2003) 38; see also Marcell Burns, ‘The “Natural” Law of Nations: Society and the Exclusion of First Nations as Subjects of International Law’ in Irene Watson (ed), Indigenous Peoples as Subjects of International Law (Routledge, 2017) 38–53.

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Indigenous peoples, could re-entrench the notion that the subjects (Indigenous peoples) pre-exist the rights (objects). Acknowledging that discourse preceded and produced Indigenous peoples’ subjectivities allows those who would later be identifiable as Indigenous peoples to play roles in constructing that subjectivity and the rights claimed by them. There is no denying that the ancestors of those known today as First Nations, American Indian, Aboriginal and other peoples acted with agency and intentionality since before contact with Europeans or colonists, and were also involved in constructing the subjectivity of Indigenous peoples and Indigenous rights. While the signifier ‘Indigenous peoples’ is of recent provenance, which may have dangerous legal or political consequences, it is neither a ‘false analysis’ nor one that ‘distract[s] attention from real local issues’.43 The subjectivity of Indigenous peoples is historically contingent, but, as lodged in a truth-producing discourse, it can produce agency and draw attention to ‘real local issues’. For the purposes of claiming rights, ‘Indigenous peoples’ is a legal subjectivity,44 which does not foreclose the possibility of its iterability or social utility in other contexts. Becoming subjects of international legal discourse might immensely improve some autochthonous communities, their struggles or attempts to enact livable and non-precarious lives.45 The concern is that discussing Indigenous peoples as natural subjects elide the ways in which discourse structures and disciplines its subjects, as they structure themselves to be identifiable as drawing attention to and creating local issues.

Peoples and populations, subjects and objects In his later work, Foucault explores the relation between the subject and truth by theorizing how subjects use power and ethics to act with freedom by relating to itself.46 Before initiating that inquiry, Foucault articulated the concept ‘governmentality’, a portmanteau47 that represents the link between governing (technologies of government, or rule over others) and mentality (technologies of the self, or rule over self).48 Scholars have viewed rights and human rights as an ‘aspect of governmentality’,49 which has been expanded to examine the role of experts in 43 Cf Adam Kuper, ‘The Return of the Native’ (2003) 44(3) Current Anthropology 389, 395. 44 Alan Barnard, ‘Kalahari Revisionism, Vienna and the “Indigenous peoples” debate’ (2006) 14(1) Social Anthropology 1, 7. 45 See Judith Butler, Undoing Gender (Routledge, 2004) 31, 36–7. 46 Michel Foucault, ‘Technologies of the Self’ in Luther H Martin, Huck Gutman and Patrick H Hutton (eds), Technologies of the Self: A Seminar with Michel Foucault (Tavistock, 1988) 19; Thomas Lemke, ‘Foucault, Governmentality and Critique’ (2002) 14(3) Rethinking Marxism 49, 52. 47 Foucault, Security, Territory, Population (n 6) 161. 48 Foucault (n 46) 18–19. 49 Brown (n 30) 459.

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governing50 and as well as expert roles in articulating Indigenous rights.51 This work connects interests in experts and expertise to the formation and production of subjects, truth, freedom and rights. To describe the formation of governmentality, Foucault wrote: we need to see things not in terms of the replacement of a society of sovereignty by a disciplinary society and the subsequent replacement of a disciplinary society by a society of government; in reality one has a triangle, sovereignty-discipline-government, which has as its primary target the population and as its essential mechanism the apparatuses of security.52 There are two notable aspects to draw from this quote. First, this triangulation of sovereignty-discipline-government reveals a layering of powers rather than an expulsion or replacement of powers.53 Accordingly, law remains a layer, but not the only layer, of power.54 To the degree that some Indigenous peoples seek to use law to facilitate recognition of their sovereignty, it will come along with other forms of power, including discipline, governmentality and biopolitics – a notion of power tied to populations. Second, it is important to emphasize ‘population’ because the term ‘Indigenous populations’ was the legal precursor to ‘Indigenous peoples’, which has ramifications for understanding FPIC claims. In articulating disciplinary power, Foucault treated it as one of ‘two poles of development linked together by a whole intermediary cluster of relations’.55 The second pole, he explained: focused on the species body, the body imbued with the mechanics of life and serving as the basis of the biological processes: propagation, births and mortality, the level of health, life expectancy and longevity…. Their supervision was effected through an entire series of interventions and regulatory controls: a biopolitics of the population.56 As such, one avenue of analysis could be to investigate the institutions of Indigenous peoples within international legal discourse through biopolitical and 50 Bal Sokhi-Bulley, ‘Government(ality) by Experts: Human Rights as Governance’ (2011) 22 Law and Critique 251; Fleur Johns, Non-legality in International Law: Unruly Law (Cambridge University Press, 2013) 14–21; 193–95. 51 Marjo Lindroth, ‘Indigenous Rights as Tactics of Neoliberal Governance: Practices of Expertise in the United Nations’ (2014) 23(3) Social & Legal Studies 341. 52 Michel Foucault, ‘Governmentality’, in Graham Burchell, Colin Gordon and Peter Miller (eds), The Foucault Effect: Studies in Governmentality (University of Chicago Press, 1991) 102 (emphasis added). 53 Golder and Fitzpatrick (n 1) 13. 54 See Foucault, Security, Territory, Population (n 6) 96–102; Erlenbusch (n 1) 56–62. 55 Foucault, History (n 5) 139. 56 Foucault, History (n 5) 139 (emphasis in original).

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governmental reading.57 However, this project primarily focuses on the other ‘pole’, discipline, to theorize the uses of Indigenous peoples’ human rights. Focusing on discipline and the relation to subjection in international legal discourse also requires engaging in an analysis that is not solely found in the governmental institutions involved in management of Indigenous populations. Marcelo Hoffman explains that Foucault’s conception of biopolitics and ‘populations’ was incomplete: A stark limitation to [biopolitics] arose from its reference to a population as a mere object … This rendering of population posed a major, if unstated, problem because it implied that biopolitics fell radically short of the acute sense of the self-direction of behaviour that distinguished Foucault’s thinking about power in general and disciplinary power in particular. He rectified this problem by treating population as a subject-object of what he began to call security techniques correlative to liberal governmentality. Foucault established an opposition between the concept of population implied by these techniques and the more familiar concept of the people as a collective subject.58 Where biopolitical regulation focused on the regulation of a population – an object – through normalization and management, the ability of regulated populations to deploy instances of power led Foucault to examine the concept of ‘people’. International legal discourse on Indigenous peoples demonstrates a similar shift from populations to people, which, I argue, requires interrogation of the production and formation of subject-status. As explained in Chapter 2, before the emergence of Indigenous peoples in international legal discourse, international law regulated, managed and attempted to normalize Indigenous populations as subject-objects of international law in the 1950s.59 International legal discourse sought to normalize Indigenous populations by integrating and assimilating them into the population of states. In time, members of Indigenous populations deployed technologies of self in international legal discourse to become Indigenous peoples, which exhibits a different relation between those subjects and those powers. Those subjects did not break from or undermine the powers of international legal discourse. Instead, they demonstrated their free and willing subjection to international legal discourse, and re-affirmed it as a true discourse by becoming peoples of it. They enacted a transformation of the self, a subjectification within international legal discourse.

57 Marjo Lindroth and Heidi Sinevaara-Niskanen, Global Politics and Its Violent Care for Indigeneity: Sequels to Colonialism (Palgrave Macmillan, 2018). 58 Marcelo Hoffman, Foucault and Power: The Influence of Political Engagement on Theories of Power (Bloomsbury, 2014) 93–4 (original emphasis). 59 International Labour Organization, Convention (No 107) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957, 328 UNTS 247 (entered into force 2 June 1959).

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Milchman and Rosenberg explain that subjectification is a subject’s ability to objectify itself in a true discourse leading to a renunciation of the self.60 It differs from the term Foucault develops in the third period, ‘subjectivation’ – a subject’s ability to subjectify itself in a true discourse arising ‘from the subject’s own practices of freedom, from a choice’.61 The case studies, presented in Chapters 4 through 6, will examine how Indigenous peoples engage in subjectification and subjectivation. On my account, it is subjectification when autochthonous communities renounce their self – or objectify themselves as ‘true’ and ‘essential’ representatives of a collective will – so that others can identify them as Indigenous peoples for the purposes of claiming FPIC. Indigenous peoples engage in subjectivation when they articulate the truths of the international legal discourse and make that truth their own.62 So, when Indigenous peoples assert a right of self-determination since time immemorial, it may be their own truth, but it is also pre-constructed by international legal discourse, which is why and how others understand the assertion. Here, we see how seemingly irreconcilable claims, mentioned above, are perfectly understandable assertions within and of international legal discourse. As much as subject forms are active and agentic, Mark Kelly cautions that subjective ‘constitution is not possible in practice without being constituted as a passive subject’.63 When international legal subjects identifiable as Indigenous peoples claim FPIC, they are not fully free, self-expressing sovereigns who have control; they are also regulated, passive subjects of international legal discourse. Those who claim FPIC deploy a technology of self to become Indigenous peoples, which involves a renunciation of a previous self, to deploy rights claims as a technology of government to suggest that others should alter their conduct. These transformations depend on understanding power and freedom as involving domination and oppression as well as construction and expression. For Foucault, ‘freedom’ is not necessarily a common, colloquial, naturalized or metaphysical notion, as though one is only free where they are not under power.64 Foucault writes, ‘[p]ower is exercised only over free subjects, and only insofar as they are free’.65 Under this view, power and freedom are complexly intertwined: ‘freedom may well appear as the condition for the exercise of power (at the same time its precondition, since freedom must exist for power to be exerted, and also its permanent support, since without the possibility of recalcitrance, power would be 60 Alan Milchman and Alan Rosenberg, ‘The Aesthetic and Ascetic Dimension of an Ethic of Self-Fashioning: Nietzsche and Foucault’ (2007) 2 Parrhesia 55–6. 61 Ibid, Milchman and Rosenberg, 56; also, Michel Foucault, ‘About the Beginnings of the Hermeneutics of the Self: Two Lectures at Dartmouth’ (1993) 21(2) Political Theory 198, 203. 62 Foucault, Hermeneutics of the Subject (n 6) 319. Asceticism is the construction, not a removal, of the self. 63 Mark G E Kelly, The Political Philosophy of Michel Foucault (Taylor & Francis, 2008) 88. 64 May (n 41) 74–5. 65 Michel Foucault, ‘The Subject and Power’ (1982) 8(4) Critical Inquiry 777, 790.

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equivalent to physical determination)’.66 Todd May explains that subjection does not limit our liberty, but, rather, transforms us by making us ‘oriented towards particular kinds of behaviour’ and ‘it makes us think of ourselves in certain kinds of ways’.67 Subjection disciplines us to think that our subject-status is freedom. Legal subjection disciplines us not only to think of power primarily through legal models, but also that the assertion of rights leads to greater freedoms by becoming more disciplined. These processes are not necessarily bad. Nor are they necessarily good. They are dangerous and, hence, in need of problematization or troubling. Under this view, a right of consent or FPIC is troubling because subjecting, constructing and disciplining oneself to assert a right of consent is to suggest that others should alter their conduct. The ability of Indigenous populations and other peoples to transform themselves into Indigenous peoples does not make them into sovereigns who define or control the terms of their membership in the discourse or their own self-determination. It may lead autochthonous communities, who might otherwise self-identify by more localized names, to think of, discipline and normalize themselves as Indigenous peoples. It might lead them to believe that asserting FPIC can create control. But those who enact this relational subjectivity as Indigenous peoples cannot claim FPIC and remain or become distinct from others. Claiming FPIC requires relationships between Indigenous peoples as individuals who work within their communities, among inter-Indigenous peoples, non-state actors and NGOs, as well as states and industry. Each relation involves disciplinary powers that support formative and constitutive self-expression and self-determination, as well as powers that regulate and subjugate. Autochthonous communities exhibit freedom by transforming and producing themselves into Indigenous peoples and then exhibit freedom when they claim FPIC as subjects supported by others, against those who appear oppositional. One becomes a subject in relation to and with the support of others by virtue of those others identifying a subject’s ability to consent. But this subjective form is not static. Butler’s work further aids in explaining how subjectivities and rights claims change over time.

Butler’s forms Butler’s work on performativity borrows from Foucault’s notions of power and subjectivity, but also departs from Foucault’s in several ways.68 Unlike Foucault, 66 Ibid, Foucault, 790. 67 May (n 41) 76. 68 See, eg, Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1993) 2–3, 97–106; cf Foucault (n 46) 18. Butler weaves these technologies together by combining Althusserian interpellation and ideological reproduction, Derridian semiotics and Foucaultian power, along with Lacanian/Freudian psychoanalysis. In the second edition of Gender Trouble, Butler explains that her ‘point was not to “apply” poststructuralism to feminism, but to subject those theories to a specifically feminist reformulation’: Judith Butler, Gender Trouble (Routledge, 2nd ed,

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Butler draws upon speech-act theory, the power of signs and language to articulate the construction of the subject,69 which allows for the possibility of insurrectionary potential within the forms of power one finds oneself within.70 Butler theorizes that a subject-status, like an utterance, must be iterated and re-iterated through time.71 And, in so doing, Butler articulates how the iterability of that status within a citational-chain makes a subject identifiable while engendering insurrectionary potential. Performatives are, as Butler explains, ‘speech acts that, in saying do what they say, and do it in the moment of that saying’.72 Analytic philosopher of language, J L Austin first articulated the concept of performative utterances.73 Austin argued that performative utterances do things in the world, and produce a ‘force’ when uttered in a ceremonial ritual.74 For example, if a judge announces a guilty verdict and has followed the correct jurisdictional procedures, then the judge’s announcement has the force of law and makes the defendant guilty. We might then think that when Indigenous peoples claim FPIC or withhold their consent, it can have a performative force like that of a judge reading or announcing a verdict. But rights claims do not have the force of a judge’s verdict. Claiming rights, even human rights that are recognized in international law, asks others to assess the merits of that claim in the attempts to enlist or reform state powers.75 Jacques Derrida interrogated the nature of Austin’s ceremonial rituals, the context of an utterance that gives it ‘force’.76 For Derrida, a performative has force because it is re-iterable and re-citable in new contexts: it must have within it ‘a force that breaks with its context’.77 Butler explains that ‘the force of the performative is derived precisely from its decontextualization, from its break with a prior context and its capacity to assume new contexts’.78 Largely following Derrida, while simultaneously departing from both him and Foucault, Butler refers to those ritualized decontextualized contexts,

69

70 71

72 73 74 75 76 77 78

1999) ii–viii. Loizidou highlights the Hegelian aspects of Butler’s work to focus on life and politics. Loizidou (n 1) 3–7. Jeffrey T Nealon, ‘Between Emergence and Possibility: Foucault, Derrida and Judith Butler on Performative Identity’ (1996) 40(3) Philosophy Today 430, 432–5; Loizidou (n 1) 26–42; McNeilly (n 2) 36–9. Butler (n 41) 244–6 nn 7–8. Foucault is very concerned with how concepts are transformed through history. Butler, however, directly theorizes utterances as they happen in time and through time. Butler (n 41) 244–6 nn 8–10. Judith Butler, Excitable Speech: A Politics of the Performative (Routledge, 1997) 3. JL Austin, How to do Things with Words (Oxford University Press, 1962). For an overview, see Loizidou (n 1) 26–42. Austin (n 73) 19–20. Zigon, ‘Maintaining the “Truth”: Performativity, Human Rights, and the Limitations on Politics’ (2014) 17(3) Theory & Event 1, 5–6. Jacques Derrida, Limited Inc (Northwestern University Press, 1988) 13–19. Ibid, Derrida, 9. Butler (n 72) 147.

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what Derrida sees as a performative’s iterability, as ‘scripts’ that are performed as bodily acts.79

Performative utterances, performative subjectivities Butler theorizes gender performativity, in part, by analyzing the utterances made about bodies. For instance, speakers initiate bodies into a gender discourse at or before birth through utterances.80 At some point, a doctor or nurse may announce, ‘It’s a girl!’, which is performative.81 The ‘it’ becomes ‘girl-ed’ by the utterance of a gender performative which renders it visible, intelligible and identifiable as a girl. The utterance is not a natural fact of the body (some Kantian noumena, a fact that sits outside phenomenon and social construction). Rather, it is a forcible ‘citation of a norm, one whose complex historicity is indissociable from relations of discipline, regulation, punishment’.82 In essence, Butler transposes Foucaultian notions of discipline and the subjectification of ‘scientific’ discourses to gender discourse. Butler explains that when Foucault wrote about punishing criminals: the strategy has been not to enforce a repression of desires, but to compel their bodies to signify the prohibitive law as their very essence, style, and necessity. That law is not literally internalized, but incorporated, with the consequence that bodies are produced which signify that law on and through the body.83 Regarding gender, for one to be and remain identifiable requires the continual and constant performance according to the form of a gendered utterance, as a ‘girl’, which the performer incorporates upon their body as they perform their gender.84 79 Butler writes of inscription, (self-)ascription, description, circumscription. She explicates Pierre Bourdieu’s and Derrida’s interest in Austin’s concept of speech-acts. Butler (n 72) 51, 141–51. Even though Butler mixes Derridian iterability with Foucaultian subject formation and Lacanian psychoanalytics, she is not willing to treat linguistic utterances as epiphenomenal of the relation between the social and the linguistic. Rather, the linguistic and social cannot be separated from the discourse, which enables for one to account for the constituent force of a linguistic ‘expropriability’ (the iterability of the utterance in un-‘authorised’ context): at 157–9. 80 Butler (n 41) xi. For a discussion on the differences between Gender Trouble and Bodies That Matter, see Amy Allen, ‘Power Trouble: Performativity as Critical Theory’ (1998) 5(4) Constellations 456. 81 Butler (n 41) 231–2. 82 Butler (n 41) 210. The ‘forms’ are incorporeal forces that work upon the body. Following Foucault, for whom sex has become discourse, Butler explains gender is not based on sex – an enculturated discourse – and is an effect of a disciplinary regime. See Butler, Gender Trouble: Feminism and the Subversion of Identity (n 68) 6–34; see also Elizabeth Povinelli, Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism (Duke University Press, 2002) 55. 83 Butler, Gender Trouble: Feminism and the Subversion of Identity (n 68) 135. 84 Butler (n 72) 51; Butler, Gender Trouble (2nd ed) (n 68) xiv.

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Butler’s theorization of gender performativity provides the opportunity to rethink FPIC through a performative analysis, which involves deploying a set of terms that are not fully constrained by legal models and those models’ presumptive naturalized subject: Indigenous peoples.85 Under a performative theory, those who initially expressed and claimed that they were Indigenous peoples enacted performative utterances. They claimed that they were Indigenous peoples and in performing the claim, they became identifiable to international legal discourse participants as Indigenous peoples.86 They became identifiable by staging a ritualized context within the organs of the UN that was supported by the UN, NGOs and others, in order to give their utterances performative effect. As those performatives were re-cited and re-iterated in changing international legal contexts, the performative form of that subjectivity also changed. Where Butler writes of scripts as bodily acts, I call these ritualized contexts ‘forms’.87 Performances are identifiable to others when a performance re-iterates a ‘form’ previously established in a discourse. A single person or individual does not ‘write’ or ‘construct’ this form. A performance is only performative if it re-cites those performances previously established, which constructs a citational-chain of the form that provides the performative force. When subjectification is performed, the body qua subject must perform according to previously identifiable forms and must fit within a citational-chain through re-citing the form of that subject-status. Of course, the form of the performance also breaks with previous uses. Butler is adamant on this point: No act of speech can fully control or determine the rhetorical effects of the body which speaks. It is scandalous as well because the bodily action of speech is not predictable in any mechanical way. That the speech act is a bodily act does not mean that the body is fully present in its speech.88 The necessity of re-iteration or re-citation of performances through time allows for the possibility of slippage and re-signification, which Butler styles as ‘doing gender differently’.89 When autochthonous community representatives came together in the UN and performatively enacted Indigenous peoples, they did not simply declare ‘we are Indigenous peoples’. Given sufficient repetitions, their declarations become 85 Judith Butler, ‘Sexual Consent: Some Thoughts on Psychoanalysis and Law’ (2011) 21(2) Columbia Journal of Gender and Law 405, 421. 86 See Catherine J Iorns, ‘The Draft Declaration on the Rights of Indigenous Peoples’ (1993) 1(1) Murdoch University Electronic Journal of Law n 1. 87 I use the term ‘form’ because of its centrality to per-form-ance, trans-form, form-ation, in-form, re-form, con-form, uni-form, form-ed, form-al and forms of life. Also, Foucault and Butler often speak in terms of ‘forms’. See Foucault, History (n 5) 44; Foucault, Hermeneutics of the Subject (n 6) 2; Butler (n 41) 3. 88 Butler (n 72) 155. 89 Judith Butler, ‘Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory’ (1988) 40(4) Theatre Journal 519, 520.

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performative: in declaring that they were Indigenous peoples, they simultaneously adopted Charters, Declarations and the other (quasi-)legal instruments so that international legal discourse participants could identify them as Indigenous peoples. And it did not happen all at once. It started in the 1970s. In the 1980s, international legal commentators and actors identified those repetitions, and, following this, repetitions continued as others began to validate that Indigenous peoples acted with a collective will (even if each of those individuals and communities has diverse and multiple views, desires and aspirations). Subsequently, those who wish to be identifiable as Indigenous peoples must also perform per that form, recite that citational-chain, but in new and yet identifiable ways. The consequence is that if some peoples want to claim FPIC, it is not simply enough to make a statement of self-identity as Indigenous peoples or make the utterance ‘we have FPIC’. For a claim to have a performative effect, others must identify that performance per the form of Indigenous peoples,90 which determines nothing about whether that FPIC claim ‘wins’ or whether the claimants have control. However, and because re-iteration involves slippage, there must be the possibility of ‘doing’ Indigenous peoples and claiming human rights differently. Each repetition involves some slippage, which invariably alters the subjectivity of Indigenous peoples. As such, there is, somewhere and somehow, the possibility that the subject-status of Indigenous peoples and Indigenous rights are re-cited in insurrectionary manners – in other words, to (momentarily) destabilize rather than reproduce or support extant legal hierarchies, mechanism and supposed universalities. The scope of this work does not include interrogating or examining the internal workings of autochthonous communities, those who self-identify according to their practices and forms of life.91 It seems that to be an autochthonous community member is to be a being – a form of life that is constituted and disciplined according to them or their law(s).92 Given my theoretical commitments, I surmise that all identity, including those of autochthonous communities, is performative.93 In a gender context, for a man to remain identifiable as a man, he must perform a form of life that men are expected or understood to do, which is not static. The 90 Macklem (n 27) 158. 91 Butler cautions that her approach to gender performativity is not strictly analogous to considerations of race, but then compares her theory to ‘Homi Bhabha’s work on the mimetic splitting of the postcolonial: Butler, Gender Trouble (2nd ed) (n 68) xvi, 192 n 11. 92 See Kim TallBear, Native American DNA (University of Minnesota Press, 2013) (arguing that having ‘Native American DNA’ as determined by a genetic analysis does not make one Native American); Christine Black, The Land Is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence (Routledge, 2011); but see, Povinelli (n 82) 254–68; Audra Simpson, Mohawk Interruptus: Political Life across the Borders of Settler States (Duke University Press, 2014). 93 There are numerous writings that demonstrate the necessity of performing a form of life. See Leanne Simpson, Dancing on Our Turtle’s Back: Stories of Nishnaabeg ReCreation Resurgence and a New Emergence (Arbeiter, 2011); Taiaiake Alfred, Peace, Power Righteousness: An Indigenous Manifesto (Oxford University Press, 1999).

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form changes over time as societal understandings and performative practices of ‘man’ change. Likewise, to remain identifiable to others as ‘Aboriginal’, ‘Indian’, or ‘First Nations’, one must live in a form and perform as one’s community performs so that one can be identified by others – often by reference to what members of that community say and do – as a member of the community. Each utterance of a term (whether gendered, autochthonous, legal or scholarly) is a performative ‘inserted in a citational-chain, and that means that the temporal conditions for making the speech act precede and exceed the momentary occasion of its enunciation’.94 Through performances of citational-chains, one discovers one’s self-identity, which is not purely self-constructed or self-controlled. Nor is this discovery a singular or necessarily deliberate act. Instead, to give an account of oneself to another requires self-(re)construction with reference to whoever asks, including to those who have lived before, and is necessarily dependent on accounts of which one has no direct, empirical knowledge.95 The citational-chain that one invokes in one’s performance is a form that provides the performance with its performative force. This citational-chain is constantly changing, shifting and slipping as others re-cite it in different, changing and inherently unstable contexts.96 This inability to ‘fix’ the form (or ritualized context) is what confounds many legal models of FPIC, which treat Indigenous peoples, as well as FPIC, as essential or potentially static forms. The same inability to ‘fix’ a form, to correct and stabilize it, aids in explaining how legal models, Indigenous peoples, and FPIC are re-cited in new and novel contexts, which may not be positive, as well as how this allows for the possibility of insurrectionary potential. In order for autochthonous communities to claim FPIC, they must perform as Indigenous peoples by lodging a performance of self (a technology of self) within a (pre)formed citational-chain as Indigenous peoples. The citational-chain of Indigenous peoples may appear related to or predicated upon autochthonous communities’ performances in the same way that gender appears to be related to sex.97 However, the citational-chain of Indigenous peoples is relatively recent, having originated in international legal discourse that produces and constitutes the effects that it names.98 And autochthonous communities may internally (as opposed to externally) identify to other members of the community in ways that do not depend on any contact or association with statist or international legal systems. When autochthonous communities perform within the citational-chain of Indigenous peoples by claiming FPIC, these are acts of governmentality. As we will see in Chapters 4 and 5, the B’laan and the Wangan and Jagalingou Family Council shape themselves, with the help of others, into traditional and essential 94 Judith Butler, Notes Towards a Performative Theory of Assembly (Harvard University Press, 2015) 176. 95 Judith Butler, ‘Giving an Account of Oneself’ (2001) 31(4) Diacritics 22, 26–7. 96 Derrida (n 76) 9. 97 See Butler, Gender Trouble: Feminism and the Subversion of Identity (n 68) 6–34; Foucault, History (n 5) 133–59. 98 Foucault, Archaeology (n 4) 35–40; Tennant (n 13) 4–5.

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Indigenous peoples by deploying forms of individual domination,99 technologies of self. Chapter 6 shows how the Inter-American Court of Human Rights and its legal actors claim the traditional-ness of the petitioners by shaping those who submit them into Indigenous peoples in order to have legal standing. In each, Indigenous peoples’ traditionalism and essentialism, and their standing as guardians of the environment, allow them the ability to invoke a technology of government and to claim human rights. The performative enactments as Indigenous peoples depends on audience members who validate, shape and support it. Enacting the subjectivity of Indigenous peoples is a form of life that is different from the autochthonous communities’ form of life, which may only require selfidentification and reciprocal identification among members of the autochthonous community. In Foucaultian terminology, becoming Indigenous peoples is a renunciation of self.100 In Butlerian terminology, becoming Indigenous peoples is abjection of the previous self.101 Where the Indigenous caucuses in the UN initiated the performatively enacted form of Indigenous peoples, autochthonous communities then need to perform the Indigenous peoples’ form to become identifiable and intelligible. Indigenous peoples’ status as such is dependent on traditionalism and essentialism, as well as greater identification, validation and legitimation from international society actors. Likewise, Indigenous rights are dependent on others to validate, which, as oriented with the ceremonial ritual of human rights claims, attempts to enlist state powers. One might assume that the process of becoming identifiable or intelligible is more complicated for Indigenous peoples because, unlike gender/sex, Indigenous peoples’ identity is tied to land or territory and is somehow less ‘engendered’. However, the struggle for Indigenous peoples is just as acutely societal as it is for gender. As an example, Jeff Corntassel recounts an interaction between Mohawk and state delegates at the World People’s Conference on Climate Change in Bolivia: ‘They asked us, “So you’re from that region of the world, are you still connected to nature? Is your community and your people still in tuned with the natural world?”’ Hemlock said, ‘We had to honestly tell them, not really, to a degree but not really. So they asked us “What makes you Indigenous?”’

99 Spivak has argued that disparate groups of individuals or cultures can ‘strategically essentialize’ their identities to represent themselves, which she later repudiates: Gayatri Chakravorty Spivak, ‘Subaltern Studies: Deconstructing Historiography’ in Donna Landry and Gerald Maclean (eds), The Spivak Reader (Routledge, 2006) 203–36; see also, Karen Engle, The Elusive Promise of Indigenous Development (Duke University Press, 2010) 276–8; Butler (n 95); Butler (n 94) 51–2; Michel Foucault, ‘Self-Portraits’ in Michel Foucault, Politics Philosophy Culture: Interviews and Other Writings, 1977–1984 (Lawrence Kritzman (ed), Taylor & Francis, 1990) 32–3, 38. 100 Milchman and Rosenberg (n 60) 55–6. 101 Butler (n 41) 3.

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Hemlock said that they explained where Kahnawake was situated … He stated that … we too are struggling to try to maintain our identity and live in a sustainable way. … ‘Again we had to say, we’re doing our best in a lot of areas, but as a community we really have to ask ourselves that question of what are we doing?’102 Corntassel describes a struggle – and the questions that arise – to become or remain identifiable to others as living in the form of Indigenous peoples. The delegates did not, and likely could not, question whether they were Mohawk. They could query whether they were Indigenous peoples by questioning their traditional or cultural connection to the land – their being ‘in tune’ with the natural world. And the individuals struggled to justify how they and the community were identifiable to other international actors as Indigenous peoples. It is possible that in the moment of confrontation, the Mohawk individuals re-cited and reiterated the form of Indigenous peoples to educate the delegates that they were both Mohawk and Indigenous peoples and that those traditions and forms are dynamic, shifting and not as essentialized as others believe.103 But doing so also risks becoming unidentifiable, illegible. Legal performativity does not suggest that anyone merely engages in theatre, as though it is a purely voluntaristic notion.104 One cannot simply become or choose to be ‘Indigenous peoples’, just as one cannot put on a new gender. Even if gender or other identities are socially constructed and contingent, that does not mean that it is arbitrary, unconstrained or amenable to acts of will.105 Butler says: [I cannot] get up in the morning, look in my closet, and decide which gender I want to be today … [M]y whole point was that the very formation of subjects, the very formation of persons, presupposes gender in a certain way – that gender is not to be chosen and that ‘performativity’ is not a radical choice and it’s not voluntarism…. Performativity has to do with repetition, very often the 102 Jeff Corntassel, ‘Re-Envisioning Resurgence: Indigenous Pathways to Decolonization and Sustainable Self-Determination’ (2012) 1(1) Decolonization: Indigeneity, Education & Society 86, 87. 103 Corntassel asserts that: ‘Being Indigenous today means struggling to reclaim and regenerate one’s relational, place-based existence by challenging the ongoing, destructive forces of colonization’: ibid at 88. He defines ‘colonialism’ as ‘best conceptualized as an irresistible outcome of a multigenerational and multifaceted process of forced dispossession and attempted acculturation – a disconnection from land, culture, and community – that has resulted in political chaos and social discord in First Nations communities and the collective dependency of First Nations upon the state’: at 88, citing Alfred Taiaiake, ‘Colonialism and State Dependence’ (2009) 5 Journal of Aboriginal Health 42, 52. 104 See Butler (n 41); Allen (n 80); Moya Lloyd, ‘Performativity, Parody, Politics’ (1999) 16(2) Theory, Culture & Society 195, 199–204. 105 See generally, Susan Marks, ‘False Contingency’ (2009) 62(1) Current Legal Problems 1.

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repetition of oppressive and painful gender norms … This is not freedom, but a question of how to work the trap that one is inevitably in.106 The ‘trap that one is inevitably in’ – the disciplinary aspects that arise from reciting a subjective form – is comprised of those potentially injurious words, the forms within which people perform, so that they can remain identifiable to someone else. Those forms are not donned or removed like articles of clothing. Someone cannot voluntarily decide that they want to be identifiable as representative of Indigenous peoples. The forms must pre-exist the desire. As societally constructed, the forms work upon and structure the body, so that someone can be identifiable to others as ‘woman’, ‘man’, ‘queer’, ‘straight’, ‘native’, ‘Aboriginal’ or even ‘Indigenous people’. To be and to remain identifiable according to a form requires the repetitive performance within those forms, which can be expressive, edifying and agentic, as well as oppressive, injurious and painful. Importantly, to perform as Indigenous peoples, to become a subject so formed, is itself an exclusionary practice. While one produces oneself as Indigenous peoples, one simultaneously reproduces a domain of abject beings, ‘those who are not yet “subjects” but who form the constitutive outside to the domain of the subject’.107 I have called this abject domain ‘autochthonous communities’. The production of an abject domain is connected to my concern that claiming human rights displaces alternative forms of legal and political projects.108 It is important, on this account, that legal performativity reveals recitations that occur at the level of both subjectivities and rights claims. When scholars deploy legal models, they tend to focus on the form of the rights rather than the forms of the subject. When scholars deploy legal models to fix rights, they do not necessarily acknowledge that their attempts to fix those rights are, themselves, understandable because their utterances are within citational-chains of legal discourse, which are uncontrollable and unpredictable and will be used in the future to unknown effects.109 Because identifiable Indigenous peoples have previously demonstrated, in claiming rights, that they are willing subjects of law who attempt to marshal state powers for their protection, they also become identifiable state subjects who rely on state powers to protect them from what is unknown and uncontrollable, which in some cases is state powers. That is potentially problematic because in many cases, I believe, it welcomes, seeks and attempts to conscript protections of that from which autochthonous communities want protection. Asserting rights provides claimants with a platform for registering disapproval of state actions, but it does not provide them with control. 106 Liz Kotz, ‘The Body You Want: Liz Kotz Interviews Judith Butler’ Artforum (November 1992) 83–84; generally Allen (n 80). 107 Butler (n 41) 3. 108 On displacement, see Kennedy (n 41); Brown (n 30) 453; but see Paul O’Connell, ‘Human Rights: Contesting the Displacement Thesis’ (2018) 69(1) Northern Ireland Legal Quarterly 19–35. 109 See McNeilly (n 2); Glenn (n 39) 176–7.

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Towards emergence This chapter has outlined the legal performative methodology that this book uses. A legal performative analysis of the uses of FPIC considers what scholars and others do with human rights, as well as how those who claim rights construct themselves as Indigenous peoples within international legal discourse for the purposes of claiming human rights. Although this chapter began to articulate how and when Indigenous peoples emerged from international legal discourse, Chapter 2 applies this method to historicize the emergence of Indigenous peoples in international law. It examines how Indigenous peoples emerged from international legal discourse by asserting and constructing a subjectivity within it. We will see that those who became Indigenous peoples renounced their previously constructed selves and, furthermore, how international legal discourse changed when they started to claim and assert rights. It would no longer appear that Indigenous peoples are subjects who emerged from international legal discourse and assert the powers of that discourse. International legal discourse changed and concealed that emergence, so that it appeared that Indigenous peoples are asserting their own powers, even as they remain subject to discourse that changes in ways controlled by no one.

Chapter 2

The emergence and naturalization of Indigenous peoples in international legal discourse

Introduction The history of state and international legal treatment of autochthonous communities, who would become ‘Indigenous peoples’, is not kind. To be sure, international and state laws have marginalized, dispossessed and made autochthonous communities precarious as targeted objects of genocidal policies, forceful relocation and land grabs. In the 1980s, Indigenous peoples emerged from international legal discourse as they began drafting a Declaration of rights, which would eventually lead to the UN General Assembly’s endorsement of UNDRIP in 2007.1 This chapter focuses on the development of Indigenous peoples and FPIC in relation to UNDRIP, other international instruments, and jurisprudential bodies. It is not a comprehensive account of all developments. Instead, it highlights historical events, as expressed in instruments and elsewhere to reveal how those regulated as Indigenous populations became Indigenous peoples through their subjectification within international legal discourse. There is significant literature on Indigenous peoples and human rights,2 as well as conflicting or mutually interlocking literature on the development of human rights in international law. Scholars have expressed interests in human rights beginning in the 1940s given the creation of the Universal Declaration of Human Rights (UDHR) in 1948.3 Steven Jensen has recently argued that the 1960s were 1 United Nations Declaration on the Rights of Indigenous Peoples, UN GAOR, 61st sess, 107th mtg, UN Doc A/61/L.67 (13 September 2007) (UNDRIP). 2 See, eg, Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, 2002); S James Anaya, Indigenous Peoples in International Law (Oxford University Press, 2nd ed, 2004); Alexandra Xanthaki, Indigenous Rights and United Nations Standards (Cambridge University Press, 2007); Cathal Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (Routledge, 2015); Mauro Barelli, Seeking Justice in International Law: The Significance and Implications of the UN Declaration of the UN Declaration on the Rights of Indigenous Peoples (Routledge, 2016); Mattias Ahrén, Indigenous Peoples’ Status in the International Legal System (Oxford University Press, 2016). 3 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) (UDHR). See Christopher N J Roberts, The Contentious History of the International Bill of Human Rights (Cambridge University Press, 2015).

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formative for human rights, as Third World states targeted them as a platform to advance decolonization.4 Somewhat less recently, the 1970s was proposed as the decade where the human rights discourse gained global traction.5 The approach adopted here focuses primarily on the emergence of Indigenous peoples’ rights as Indigenous peoples themselves emerged from international legal discourse in the 1970s and 1980s.6 To be sure, courts and legal actors occasionally used the terms ‘indigenous peoples’ before the 1970s and 1980s.7 Prior deployment of the terms ‘indigenous peoples’, especially in legal or anthropological discourses, might appear to undermine the argument presented here, that Indigenous peoples emerged from international legal discourse and were naturalized in and by that discourse. But the salient aspect of this argument is that the term ‘Indigenous peoples’ – as understood and used today – is imbricated with, as it emerged from, international legal discourse and must be for the purpose of claiming human rights, which occurred sometime in the late 1970s and early 1980s.8 It is the result of members of Indigenous populations engaging with and becoming subjects of international law by reaffirming international legal discourse as a true discourse in the 1970s and 1980s. For human rights purposes today, the term ‘Indigenous peoples’ signifies a subjectivity of international legal discourse, even if it often masquerades as a signifier for pre-existing natural subjects. This chapter troubles the emergence of Indigenous peoples and their rights claims from international legal discourse.9 Today, the signifier ‘Indigenous peoples’ is widely applied in a lay sense that appears to shed any relation to international legal ordering.10 A colloquial or naturalized way of speaking about ‘Indigenous peoples’ may appear innocuous, but it is not. That way of speaking and writing – of furthering discourse – pays insufficient attention to and may distract from the truth-producing, constitutive and formative dimensions of international legal discourse, particularly regarding the subjects of discourse. It also perpetuates legal models, mechanisms and hierarchies that may consolidate all 4 Steven Jensen, The Making of International Human Rights: The 1960s, Decolonization and the Reconstruction of Global Values (Cambridge University Press, 2016). 5 Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge University Press, 2010). 6 See, eg, Courtney Jung, The Moral Force of Indigenous Politics: Critical Liberalism and the Zapatistas (Cambridge University Press, 2008) 147–9. 7 See, eg, Re Southern Rhodesia [1919] AC 211, 234; International Labour Organization, Indigenous Peoples: Living and Working Conditions of Aboriginal Populations in Independent Countries (International Labour Office, 1953). 8 See, S James Anaya ‘Indigenous Rights Norms in Contemporary International Law’ (1991) 8 Arizona Journal of International and Comparative Law 1, 4; Chris Tennant, ‘Indigenous Peoples, International Institutions, and the International Legal Literature from 1945–1993’ (1994) 16 Human Rights Quarterly 1, 4–5. 9 Anaya (n 8) 4. 10 Ronald Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (University of California Press, 2003) 3.

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autochthonous communities as Indigenous peoples within state-building projects by marshalling state power to regulate Indigenous peoples. As such, this chapter evaluates how ‘the law produces and then conceals the notion of “a subject before the law” in order to invoke that discursive formation as a naturalized foundational premise that subsequently legitimates that law’s own regulatory hegemony’.11 It re-considers how self-determination, Indigenous peoples and FPIC were re-cited through international legal discourse as legal scholars deployed legal models. It begins by considering the background of international legal discourse, which regulated Indigenous populations. It then examines the subjectification of Indigenous peoples within international legal discourse and the dispersion of Indigenous rights as the international legal arena underwent a massive geopolitical shift toward a democratic re-iteration of self-determination and human rights in the early 1990s. The analysis then interrogates the naturalization of Indigenous peoples and their rights as the discourse was re-cited by a range of actors who influenced international legal discourse.12 It concludes by noting the adoption of UNDRIP and FPIC within a host of voluntary initiatives and other softer-legal instruments.

1950–1960: the background of international legal discourse The legal post-World War II landscape codified terms that enabled the production and emergence of Indigenous peoples as subjects of international legal discourse. It welcomed the legal codification of the terms ‘self-determination’, ‘Indigenous populations’ and human rights. As initially codified in international legal discourse, self-determination was tied to decolonization purposes,13 and Indigenous 11 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1993) 2. 12 Claire Charters, ‘Multi-Sourced Equivalent Norms and the Legitimacy of Indigenous Peoples’ Rights under International Law’ in Tomer Broude and Yuval Shany (eds), Multi-Sourced Equivalent Norms in International Law (Hart, 2011) 298–99, 303–19; see also S James Anaya, ‘The Emergence of Customary International Law Concerning the Rights of Indigenous Peoples’ (2005) 12 Law & Anthropology 127, 127–29. 13 Karen Knop, Diversity and Self-Determination in International Law (Cambridge University Press, 2002) 3. There have been multiple examinations of the literature on self-determination, see, eg, Nathaniel Berman, ‘Sovereignty in Abeyance: Self-Determination and International Law’ (1988) 7 Wisconsin Journal of International Law 51; James Crawford, ‘The General Assembly, the International Court and Self-Determination’ in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice (Cambridge, 1996) 585–605. For a small sample on self-determination and Indigenous peoples, see S James Anaya, ‘The Rights of Indigenous Peoples to SelfDetermination in the Post-Declaration Era’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 184; Alexandra Xanthaki, ‘The Right to Self-Determination: Meaning and Scope’ in Nazila Ghanea and Alexandra Xanthaki (eds), Minorities, Peoples and Self-Determination (Martinus Nijhoff, 2005) 15–34; Catherine J Iorns, ‘Indigenous Peoples and Self

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populations were to be assimilated.14 Accordingly, this section focuses on decolonization and assimilation as, initially, distinct areas of international legal concern that became increasingly interrelated with human rights. One thing is clear about the post-World War II international legal landscape: self-determination did not apply to Indigenous peoples. They did not exist in the 1950s and 1960s. The UN Charter put forth the language of self-determination in article 1 and Chapter IX.15 It did not uphold self-determination as a right to claim, but the Charter stated that ‘peoples’ – an undefined concept – had it.16 Elsewhere, the Charter proscribed decolonization processes for non-self-governing and trust territories.17 Both processes tied self-determination to decolonization, and indirectly employed the language of self-determination to non-self-governing and trust territories as ‘peoples’. Non-self-governing territories required ‘advancement’ or ‘development’ before they could be treated as nations.18 The ill-defined ‘non-self-governing territories’ led to ambiguities, but ‘Indigenous peoples’ was not a conceptual category that existed at that time. Subsequent resolutions identified non-self-governing territories as rightsdenying areas, but did not define who or what were ‘non-self-governing’ or ‘rightsdenying areas’, couched self-determination within a framework for international peace and stability, and laid conceptual ties between self-determination and human rights.19 But, as initially formulated, decolonization was conceptually distinct from human rights.20 Interests in self-determination varied according to geopolitical allegiances, which allowed the Belgian delegate to propose that communities who do not identify with the state have self-determination and the ability to self-govern within the member state.21 In response, the Soviet Union, the Afro-Asian blocs and the states of the Americas agreed on the salt-water or blue-water thesis to

14

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16 17 18 19

20 21

Determination: Challenging State Sovereignty’ (1992) 24 Case Western Reserve Journal of International Law 199. International Labour Organization, Convention (No 107) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957, International Labour Conference, 328 UNTS 247 (entered into force 2 June 1959) (‘Convention No 107’). Michla Pomerance, Self-Determination in Law and Practice (Martinus Nijhoff, 1982) 28, quoting Antonio Cassese, ‘The Helsinki Declaration and Self-Determination’ in Thomas Buergenthal (ed), Human Rights, International Law and the Helsinki Accord (Universe Books, 1977) 84. Charter of the United Nations art 1(2); W Ofuatey-Kodjoe, The Principle of SelfDetermination in International Law (Nellen, 1977) 15; Pomerance (n 15) 9. Charter of the United Nations chs XI and XII. See ibid, Ofuatey-Kodjoe, 107. Charter of the United Nations ch XI. Inclusion in the International Covenant or Covenants on Human Rights of an article relating to the right of peoples to self-determination, GA Res 545, UN GAOR, 6th comm, 375th mtg (5 February 1952); Resolution 637 (VII), The right of peoples and nations to self-determination, GA Res 637, UN GAOR, 7th sess, 403rd mtg (16 December 1952) s A(3). See Jensen (n 4) 10–11. Pomerance (n 15) 38–40; Ofuatey-Kodjoe (n 16) 108.

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define ‘non-self-governing territory’ as one that is separated from its colonizer by an ocean.22 The salt-water thesis sufficiently inflected self-determination so that decolonization would not apply to non-self-governing groups within states.23 The discursive influences of human rights and decolonization appeared after 1960. Regarding human rights, in 1948 the UN General Assembly adopted the UDHR. It did not contain any reference to minorities or ethnicities due to the influence of western democratic states.24 Similarly, a 1949 attempt by the UN to form a ‘study of the aboriginal populations and other under-developed social groups of the American continent’ was quashed due to strenuous objections from the United States.25 Parallel to the creation of the non-binding UDHR, the UN Economic and Social Council (ECOSOC) began drafting a binding international Covenant on human rights.26 It was also almost entirely unconcerned with minority rights. However, due to unresolvable geo-political contests over whether the Covenant would include or exclude economic, social and cultural rights,27 the General Assembly requested two Covenants.28 Those instruments would have effects in the 1960s and 1970s. Before that time and the emergence of Indigenous peoples, the International Labour Organization (ILO) focused on assimilating and integrating Indigenous populations into so-called ‘civilized’ society. In 1953, the ILO published a report, titled Indigenous Peoples: Living and Working Conditions of Aboriginal Populations in Independent Countries.29 The ILO’s subsequent Convention clarifies that its 1953 term ‘Indigenous Peoples’ does not signify collectivities that had self22 Pomerance (n 15) 41–2; El-Ayouty Yassin, The United Nations and Decolonization: The Role of Afro-Asia (Martinus Nijhoff, 1971) 52. 23 Ibid, Yassin, 51. 24 Patrick Thornberry, ‘Is There a Phoenix from the Ashes? – International Law and Minority Rights’ (1980) 15 Texas International Law Journal 421, 443, quoting Draft International Declaration of Human Rights, United Soviet Socialist Republic: Amendments to the Draft Declaration proposed by the Third committee (A/777), UN GOAR, Part I, Annexes, UN Doc A/784 (1948) art 3(2). 25 Resolution 275 (III), Study of the social problems of the aboriginal population and other under-developed social groups of the American continent, 11th Sess, 397th mtg, UN Doc E/SR (11 May 1949) at 191. 26 Aureliu Cristescu, The Right to Self-Determination Historical and Current Development on the Basis of United Nations Instruments – Study of the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc E/CN.4/sub.2/404/Rev.1 (United Nations, 1981) [28]. 27 Stephen James, Universal Human Rights Origins and Development (LFP Scholarly Publishing, 2007) 176–180; Paul Sieghart, International Law of Human Rights (Oxford University Press, 1983) 25. 28 Resolution 543 (VI), Preparation of two drafts international covenants on human rights (5 February 1952); Resolution 545 (VI), Inclusion in the international covenant or covenants on human rights of an article relating to the rights of peoples to self-determination (5 February 1952). 29 International Labour Organization (n 7).

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determination or where entitled to decolonization. In 1957, the ILO adopted Convention No 107, Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries.30 It sought to protect Indigenous workers and integrate them into civilized society by removing their ‘indigeneity’ so they could benefit from development.31 It did so by granting rights to Indigenous workers while interring those rights in qualifying language.32 For instance, it protected – to a limited degree – Indigenous individuals who lived within their cultural groups, but not the cultures of the groups.33 It affirmed that Indigenous populations could live collectively as distinct cultural groups, but only where and when this affirmation was compatible with issues of national concern.34 It requires the consent of affected Indigenous populations to forcibly remove them from their territories, but qualifies and subordinates those right to states’ national interests, such as security, economic development and health.35 Given these qualifications, Convention No 107 is an assimilationist and integrationist document.36 The regulation of Indigenous populations in Convention No 107 is similar to Foucault’s notions of disciplinary powers and biopolitics.37 Hoffman explains that ‘[i]f disciplinary power sought to train individual bodies to constitute them as docile and productive forces, biopolitics sought to regularize aleatory events within the population for the sake of defending its life and maximizing its forces’.38 Within international legal discourse, Indigenous populations were regulated to protect and train Indigenous individuals, and states could intervene 30 International Labour Organization (n 14) preamble. 31 Luis Rodríguez-Piñero, Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (1919–1989) (Oxford University Press, 2005) 129, 164, 167–72. 32 Victoria Tauli-Corpuz, Report of the Special Rapporteur of the Human Rights Council on the rights of indigenous peoples: Rights of indigenous peoples, including their economic, social and cultural rights in the post-2015 development framework, UN GAOR, 69th sess, UN Doc A/69/267 (6 August 2014) para 6. 33 Rebecca Tsosie, ‘Reconceptualizing Tribal Rights: Can Self-Determination be Actualized within the U.S. Constitutional Structure?’ (2011) 15(4) Lewis and Clark Law Review 923, 926–27. 34 Ibid, Tsosie, 926–7. 35 International Labour Organization (n 14) art 12(1); Tara Ward, ‘The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participation Rights within International Law’ (2011) 10(2) Northwestern Journal of International Human Rights 54, 59; Derek Inman, Stefaan Smis and Dorothee Cambou, ‘We Will Remain Idle No More: The Shortcomings of Canada’s Duty to Consult Indigenous Peoples’ (2013) 5 Goettingen Journal of International Law 251, 269. 36 Doyle (n 2) 76–7; see also Hurst Hannum, ‘New Developments in Indigenous Rights’ (1987–88) 28 Virginia Journal of International Law 649, 653; Athanasios Yupsanis, ‘The International Labour Organization and Its Contribution to the Protection of the Rights of Indigenous Peoples’ (2011) Canadian Yearbook of International Law 117, 121. 37 Michel Foucault, History of Sexuality: Vol 1 (Pantheon Books, 1978) 139. 38 Marcelo Hoffman, Foucault and Power: The Influence of Political Engagement on Theories of Power (Bloomsbury, 2014) 99 (emphasis in original).

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to make them productive and equal to other worker-citizens. Doing so would normalize, assimilate and integrate Indigenous individuals into the state population. Certainly, many of those regulated as Indigenous populations were selfgoverning communities, peoples or even nations, but Convention No 107 sought to subsume those collectivities to the state. The selves of those collectivities and their ability to self-determine was unidentifiable within international legal discourse. And the successful application of Convention No 107 would have assimilated and hence nullified any continued concern for Indigenous populations when Indigenous individuals were integrated within the body of state populations.39 In 1960, the UN General Assembly adopted the Declaration on the Granting of Independence to Colonial Territories and Peoples (‘Resolution 1514’) to end colonialism ‘in all its forms’.40 Despite this broad language, its inclusion of a territorial integrity clause, which asserted that any partial or total disruption of the territorial integrity of a nation-state was incompatible with the purposes and principles of the UN Charter, enabled colonialism in some forms.41 While it has inspired various interpretations,42 the prevailing view was that the ‘principle of territorial integrity prohibits secession, but only if the state complies with the principle of self-determination’.43 But because ‘[i]t is unclear exactly what compliance with the principle of self-determination requires’,44Resolution 1514’s inclusion of the territorial integrity clause shifts the site of contention from decolonization to selfdetermination. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) opened for signature in 1966 and would come into effect in 1976.45 Common article 1 asserts that ‘[a]ll peoples have the right of self-determination’.46 Neither Convention defined ‘peoples’ – but whoever they were, they had self-determination. Crucially, at the time of drafting, minorities did not.47 The only mention of 39 Rodríguez-Piñero (n 31) 211; Inman, Smis and Cambou (n 35) 269. 40 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514, UN GAOR, 15th sess, 947th mtg (14 December 1960) (‘Resolution 1514’); Jensen (n 4) 54–5. 41 Ibid, Resolution 1514, art 6; Resolution 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 25th sess, agenda item 85, UN Doc A/RES/25/2625 (24 October 1970) (‘Resolution 2625’). 42 Joshua Castellino, International Law and Self-Determination (Martinus Nijhoff Publishers, 2000) 26; cf Thornberry (n 2) 114. 43 Knop (n 13) 76. 44 Knop (n 13) 76. 45 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR). 46 Ibid, ICCPR and ICESCR, common art 1. 47 Castellino (n 42) 45–7.

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minority rights is in ICCPR article 27,48 which was purposefully worded to obscure who or what counts as minorities.49 To some degree, this explains why contemporary self-identifying Indigenous peoples deride the notion that they are ‘minorities’: minorities are subjects of state populations who do not have a right of self-determination.50 The 1970 Declaration on Friendly Relations recited Resolution 1514’s language that ‘[t]he subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights’,51 which exhibits ties to human rights. According to Karen Knop, these documents – and indeed international legal discourse – led to the establishment of various interpretations of ‘peoples’ and ‘multiple narratives of colonial peoples’.52 And as the processes of decolonizing Africa and Asia wound down in the 1960s,53 the right of self-determination for peoples of nonself-governing territories – what it entails, and who had it – became controversial. In the 1960s and 1970s, non-self-governing peoples had a right of self-determination, although it was unclear which ‘peoples’ or ‘self’ had it and what self-determination meant within which states. Minorities of state populations had some human rights but, as non-peoples, did not have self-determination. Convention No 107 regulated Indigenous populations and sought to assimilate them into the state. That is the international legal discourse from which Indigenous peoples emerged.

1970–1988: from Indigenous populations to Indigenous peoples Before the 1970s, autochthonous communities were agitating and fomenting opposition to state-based integration, assimilation or termination policies that mirrored Convention No 107.54 Autochthonous communities deployed differing 48 ICCPR (n 45) art 27; Ominayak and the Lubicon Lake Band v Canada, UN Doc A/ 45/40, Vol II, App A (1990); Xanthaki (n 13) 17. For a broader interpretation, see Benedict Kingsbury, ‘Claims by Non-State Groups in International Law’ (1992) 25 Cornell International Law Journal 481. 49 Thornberry (n 24) 448; cf Catherine J Iorns-Magallanes, ‘International Human Rights and Their Impact on Domestic Law on Indigenous Peoples’ Rights in Australia, Canada and New Zealand’ in P Havemann (ed), Indigenous Peoples’ Rights in Australia, Canada and New Zealand (Oxford University Press, 1999) 238. 50 See eg Michele Langfield, ‘“Indigenous Peoples Are Not Multicultural Minorities”: Cultural Diversity, Heritage and Indigenous Human Rights in Australia’ in Michele Langfield, William Logan and Mairead Nic Craith (eds), Cultural Diversity, Heritage and Human Rights: Intersections in Theory and Practice (Routledge, 2010) 135–52; Joshua Castellino and Jérémie Gilbert, ‘Self Determination, Indigenous Peoples and Minorities’ (2003) 3 Macquarie Law Journal 155, 164–70. 51 Resolution 1514 (n 40) art 1; Resolution 2625 (n 41). 52 Knop (n 13) 64–5. 53 The UN Trusteeship Council was disbanded after Palau achieved independence in 1994. But see Resolution 65/119, Third International Decade for the Eradication of Colonialism, 65th sess, agenda item 59, UN Doc A/RES/65/119 (20 January 2011). 54 See eg Glen Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (University of Minnesota Press, 2015) 4, referencing Department of

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political discourses, including, their own, black power, civil rights, Marxist and peasant movements as they influenced and learned from each other.55 Some notable events include: the Mohawk declaration of sovereignty over a bridge between Canada and the United Sates in 1969;56 the American Indian Movement’s re-occupation of Wounded Knee in 1973;57 the Aboriginal Tent Embassy outside the Australian Parliament beginning in 1972;58 the Maori reoccupation of Bastion Point;59 and many others throughout Latin American and elsewhere.60 As autochthonous communities learned from each other, and politically mobilized, they formed national and pan-national movements. Whether in the global North or South, each formation suggested that states have obligations to protect autochthonous communities from the state. Given their healthy distrust of the state, these newly formed organizations sought to cultivate international legal protections.61 In 1974, leaders of tribal nations in the United States held a conference and formed the International Indian Treaty Council (IITC).62 It adopted the

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Indian Affairs and Northern Development, Statement of the Government of Canada on Indian Policy (Ottawa, 1969); Dale Turner, This Is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (University of Toronto Press, 2006) 19–37; also generally Edward Charles Valandra, Not Without Our Consent: Lakota Resistance to Termination, 1950–59 (University of Illinois Press, 2006). I am not suggesting this is when resistance began as many were always and continuously resisting state powers. See, eg, Vine Deloria Jr, Behind the Trail of Broken Treaties: An Indian Declaration of Independence (University of Texas Press, 1991) ch 1. You Are on Indian Land (Directed by Mort Ransen, National Film Board of Canada, 1969). Paul Cheat Smith and Robert Allen Warrior, Like A Hurricane: The Indian Movement from Alcatraz to Wounded Knee (The New Press, 1996) 160–1; Steven Curry, Indigenous Sovereignty and the Democratic Project (Routledge, 2004) 14–5. Gary Foley, ‘A Short History of the Australian Indigenous resistance 1950–1990’ in Allison Cadzow and John Maynard (eds), Nelson Aboriginal Studies (Cangage Learning, 2011) 114–22. Andrew Robb, ‘Bastion Point: A desperate struggle and a dream fulfilled’, E-Tangata (online 3 June 2018) . Miranda Johnson, The Land is Our History: Indigeneity, Law and the Settler State (Oxford University Press, 2016); Karen Engle, The Elusive Promise of Indigenous Development (Duke University Press, 2010) 30–5, 48–66; Alcida Rita Ramos, ‘The Hyperreal Indian’ (1994) 14(2) Critique of Anthropology 153, 156–7. Indigenous individuals made earlier bids to international organizations. See, eg, Niezen (n 10) 2–3; Thornberry (n 2) 82; Siegfried Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’ (2008) 41 Vanderbilt Journal of Transnational Law 1141, 1152; Ward Churchill, ‘A Travesty of a Mockery of a Sham: Colonialism as “Self-Determination” in the UN Declaration on the Rights of Indigenous Peoples’ (2011) 20(3) Griffith Law Review 526, 530–2. Ibid, Wiessner, 1152–3; Douglas E Sanders, ‘The Legacy of Deskaheh: Indigenous Peoples as International Actors’ in Cynthia Price Cohen (ed), Human Rights of Indigenous Peoples (Transnational Publishers, 1998) 73, 75–7.

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Declaration of Continuing Independence, which articulated an international commitment to a unified legal and political struggle and charged the United States with legal violations.63 In 1975, the Canadian National Indian Brotherhood hosted a conference for representatives of Indian nations, at which they adopted a Charter that reformulated it as the World Council of Indigenous Peoples (WCIP).64 Encouraged by these developments, the Nordic Sami Council adopted a Declaration and upheld itself as ‘Indigenous people’ rather than an ethnic minority of the state.65 As indicative of who ‘Indigenous peoples’ were in the WCIP, Douglas Sanders explained: A definition of ‘indigenous people’ was developed for the purpose of delegate status at the proposed conference: The term indigenous people refers to people living in countries which have a population composed of differing ethnic or racial groups who are descendants of the earliest populations living in the area and who do not as a group control the national government of the countries within which they live … It did not focus on indigenous minorities, but on indigenous populations who do not control their political destinies.66 The WCIP deployed ‘Indigenous peoples’ in its titular identification to signify the representative members of ‘indigenous populations who do not control their political destinies’.67 That phrasing underscores the importance of discourse. Members of Indigenous populations may appreciate that, under international or state law, they are subject-objects of power, which those members may view as unjust or illegitimate.68 But members of a population are not ‘peoples’ within international legal discourse because they have not yet objectified themselves as subjects of it and, hence, verified that discourse as true to constitute the self.69 The consolidation of members of populations into a singular body, such as the WCIP, can signify that they act with a collective will as peoples in some discourses. However, they had not yet deployed a technology of self or subjectification to international legal discourse as such. The WCIP and the IITC self-formed and self-constituted as self-governing through legal instruments, a Charter and a Declaration, respectively. Those self63 International Indian Treaty Council, Declaration of Continuing Independence (Standing Rock Sioux Tribe Reservation, June 1974) . 64 Douglas E Sanders, ‘The Formation of the World Council on Indigenous Peoples’ (IWGIA, 1977) 14–8; Wiessner (n 61) 1152–3; Engle (n 60) 44–67; Churchill (n 61) 536 nn 53–4. 65 Henry Minde, ‘The Making of the International Movement of Indigenous Peoples’ (1996) 21(2) Scandinavian Journal of History 221, 237–8. 66 Sanders (n 64) 12. 67 Sanders (n 64) 12. 68 International Indian Treaty Council (n 63). 69 Michel Foucault, The Hermeneutics of the Subject (Palgrave Macmillan, 2005) 333.

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constituting acts display the formative capacity of law: it enables others to identify, speak and write about them – as done here – according to a collective and legal subject status. To self-identify according to a legal subject status does not mean that it is the ‘right’ or ‘proper’ legal subject status for international legal purposes. That is evidenced by what occurred after the WCIP and the IITC formed: both sought to participate in the UN only to find that they did not have the proper organizational status under UN protocol – as either states or NGOs – to participate.70 The inability to participate as they were reveals and remakes the exclusionary functions of the UN over international legal discourse.71 However, they could obtain consultative status by re-forming themselves into NGOs, which the IITC did in 1977 and the WCIP did in 1981.72 Their reformations into NGOs were renunciations – or, in Butlerian terminology, abjections – of their previously constructed legal self to subject themselves to international legal discourse by demonstrating their willingness to conform, normalize and inscribe discipline on their selves. By subjecting themselves as NGOs, they indicated that – even if they determined to do this for themselves – they did not fully determine or control their selves. As those events were occurring, UN forums had been investigating discrimination.73 The General Assembly adopted the Declaration on the Elimination of All Forms of Racial Discrimination in 1963 and a legally binding Convention of the same name in 1965.74 Following the creation of the International Covenants on Human Rights, racial discrimination became associated with human rights-based approaches.75 In 1971, the Sub-Commission on Prevention of Discrimination and 70 August Willemsen Diaz, ‘How Indigenous Peoples’ Rights Reached the UN’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 21. 71 See Judith Butler, Bodies That Matter: On the Discursive Limits of ‘Sex’ (Routledge, 1993) 3. 72 Churchill (n 61) 536–7 n 54. 73 See, eg, Study of Discrimination in the Matter of Religious Rights and Practices by Arcot Krishnawami Special Rapporteur of the Sub-Commission on Prevention and Discrimination and Protection of Minorities UN Doc E/CN.4/Sub/2/200/Rev.1, v (New York, 1960). 74 Declaration on the Elimination of All Forms of Racial Discrimination, UN GAOR, 18th session, agenda item 43, UN Doc A/RES/18/1904 (20 November 1963); International Convention on the Elimination of All Forms of Racial Discrimination, GA Res 2106, Annex 20, UN GAOR Supp (No 14) UN Doc A/6014 (1966). 75 Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran UN Doc A/CONF/32/41 (22 April to 13 May 1968) at 3; Resolution 2785 (XXVI), International Year for Action to Combat Racism and Racial Discrimination, 2001st plen mtg (6 December 1971); Resolution 2919 (XXVII), Decade for Action to Combat Racism and Racial Discrimination, 2085th mtg (15 November 1972) (SubCommission on Prevention of Discrimination and Protection of Minorities formulating a draft program); Resolution 3057 (XXVIII), Decade for Action to Combat Racism and Racial Discrimination, 2163rd mtg (2 November 1973).

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Protection of Minorities commenced a decade-long study on the particular type of discrimination experienced by Indigenous populations, which is known as the Martínez Cobo Report.76 Those authors gathered data as autochthonous communities were organizing and agitating. In the 1970s and 1980s, NGOs began publicizing abuses and discriminatory acts perpetrated against autochthonous communities within international legal arenas.77 They searched for binding international law to invoke against the states and discovered that Convention No 107 was the only binding law, that it failed to protect autochthonous communities as distinct peoples with unique forms of life, and that its language was incongruous with the language of the International Covenants on Human Rights. Although the International Covenants had not been drafted with any concerns for Indigenous populations, the multiple and various narratives arising from flexible and contrasting definitions enabled re-citation of the Covenants’ protections for autochthonous communities, as long as they could be identified as ‘peoples’.78 The growing influence of Indigenous groups and NGOs led to the first NGO Conference on Discrimination against Indigenous Populations in the Americas at the UN headquarters in 1977.79 Conference delegates created and circulated the Draft Declaration of Principles for the Defense of Indigenous Nations and Peoples of the Western Hemisphere (‘1977 NGO Draft Declaration’).80 In 1976, the International Covenants on Human Rights entered into force, which supported the link between ‘peoples’ and self-determination.81 Between 1978 and 1981, two UN Conferences called for the recognition of Indigenous peoples and their rights.82 Then, in 1982 and 1983, portions of the Martínez Cobo Report 76 José R Martínez Cobo, Study of the Problem of Discrimination against Indigenous Populations (United Nations, 1987); Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities – Study of the Problem of Discrimination Against Indigenous Populations, UN Doc E/CN.3/Sub.2/1983/21/ Add.9 (30 September 1983); Diaz (n 70) 23–4. 77 Andrew Erueti, ‘The International Labour Organization and the Internationalisation of the Concept of Indigenous Peoples’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 105; Rodríguez-Piñero (n 31) 249–50, 249 n 151; see also Tauli-Corpuz (n 32) [7]. 78 Cf Jensen (n 4). 79 See Rodolfo Stavenhagen, The Emergence of Indigenous Peoples (Springer, 2013) 3–42; Engle (n 60) chs 1 and 2; Bice Maiguashca, ‘The Role of Ideas in a Changing World Order: The International Indigenous Movement, 1975–1990’, CERLAC Occasional Paper (June 1994) 23–4; Victoria Tauli-Corpuz, Chairperson of the United Nations Permanent Forum on Indigenous Issues, ‘Address to V World Congress of the FinnoUgric Peoples, Khanty-Mansiysk’ (28 June to 1 July 2008) 2. 80 Robert T Coulter, ‘Commentary on the UN Draft Declaration on the Rights of Indigenous Peoples’ (1994) 18(1) Cultural Survival . 81 ICCPR and ICESCR (n 45) common art 1. 82 Russell Barsh, ‘Indigenous Peoples: An Emerging Object of International Law’ (1986) 80 American Journal of International Law 369, 371–2.

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were released. The report re-formed Indigenous populations as ‘Indigenous peoples’, which reflects this important shift in terminology that linked the regulated subject-object to ‘peoples’ who have self-determination.83 It did not define ‘Indigenous peoples’, but it affirmed self-determination as ‘the basic precondition for the enjoyment … of their fundamental rights and the determination for their own future’, which would not include a right of secession.84 Through these various repetitions, members of Indigenous populations submitted and subjected themselves to international legal discourse and became Indigenous peoples, a self-identifying subjectivity that consciously deploys self-determining technologies of self as a collective will for governing purposes. Amidst these events, in 1982 the Sub-Commission on the Promotion and Protection of Human Rights created the Working Group on Indigenous Populations (WGIP).85 In 1984, the WCIP (not the WGIP) adopted a Declaration of Principles (‘1984 Declaration’), which restated the connection between ‘Indigenous peoples’ and ‘self-determination’ and included several articles on free and informed consent.86 Some commentators view the WCIP’s 1984 Declaration, along with the 1977 NGO Draft Declaration, as the core of the ‘Indigenous counter-hegemonic project’.87 While potentially counter-hegemonic, it was principally a bid for inclusion within the UN by constructing the self as a willing subject of international legal discourse.88 Due to mounting pressure and this novel international subjectivity, in 1985, the WGIP began drafting a Declaration on the rights of Indigenous peoples.89 Twenty-two years later, the UN General Assembly endorsed the UNDRIP, an amended re-iteration of the WGIP’s 1993 Draft Declaration. While it is accurate to say that the subjects who claim Indigenous rights pre-exist the UN General Assembly’s endorsement of UNDRIP, the subjects and the objects of power emerged from international legal discourse simultaneously. At first, Indigenous peoples were viewed as ‘objects’ of international law.90 Then, as an example of changing legal discourse, in 1991, James Anaya wrote: Within the last several years, concern for groups identified as indigenous has assumed a prominent place on the international human rights agenda. The conceptual category of indigenous peoples or populations has emerged within 83 José R Martínez Cobo, Study of the Problem of Discrimination Against Indigenous Populations Vol 5: Conclusions, Proposals and Recommendations (United Nations, 1987), originally distributed as E/CN.4/Sub.2/1983/21/Add.8. 84 Ibid, Cobo, [263]–[273], [580]–[581] (emphasis added). 85 Economic and Social Council, Resolution 1982/34 (7 May 1982). 86 Ratified by the IV General Assembly of the World Council on Indigenous Peoples, Panama, 23–30 September 1984, arts 2, 10, 13. 87 Maiguashca (n 79) 30. 88 See, eg, H Patrick Glenn, ‘The Three Ironies of the UN Declaration on the Rights of Indigenous Peoples’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 162, 176–7. 89 Diaz (n 70) 25–27; Economic and Social Council (n 86). 90 Barsh (n 82).

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the human rights organs of international organizations and other venues of international discourse.91 Even then, Anaya, a discerning international jurist, exhibited uncertainty about whether the Indigenous are ‘peoples’ or ‘populations’. But by 1993 the WGIP approved a Draft Declaration and Indigenous peoples firmly rejected identification as ‘Indigenous populations’. Catherine Iorns wrote: [T]he official name of the Working Group is the Working Group on Indigenous Populations. However, the use of ‘populations’ is offensive to indigenous peoples, who consider themselves more than simply ad hoc collections of individuals. Moreover, the UN’s use of ‘populations’ is for political reasons associated with the non-recognition of the international legal right to self-determination for indigenous peoples.92 Utterances like this are performative enactments of a subjectivity. No longer ‘ad hoc collections of individuals’ regulated as Indigenous populations,93 Indigenous peoples asserted their subject-status by objectifying themselves in international legal discourse. They combined ‘Indigenous populations’ with ‘peoples’ to become Indigenous peoples: those who act with a collective will and self-determination.94 They declared, uttered and wrote as Indigenous peoples, and in doing so performatively enacted Indigenous peoples.95 Being people or peoples, as opposed to a population, is not a guarantee of freedom from domination or oppressive forms of power. Being identifiable as peoples may not be a significant challenge to the powers of international legal discourse or extant disciplinary mechanisms. It does, however, change how those who are identifiable as Indigenous peoples relate to and inscribe those powers on their selves. As subjects of international legal discourse, Indigenous peoples influence international law, but do not fully control it. As we will see, after the emergence of Indigenous peoples, international legal discourse would naturalize Indigenous peoples and inflect expressions of their rights, which discursively influence how Indigenous peoples are identified.

1989–1995: law, development and democratization Asserting rights has consequences beyond any intended effect because the powers that Indigenous peoples effect in claiming rights is not the same power that 91 Anaya (n 8) 4. 92 Catherine J Iorns, ‘The Draft Declaration on the Rights of Indigenous Peoples’ (1993) 1(1) Murdoch University Electronic Journal of Law n 1. 93 Cf Sanders (n 64) 12. 94 See Churchill (n 61) 528 n 9. 95 This does not foreclose the possibility that ‘Indigenous peoples’ is used elsewhere for non-international legal purposes.

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precedes and produces their subject status.96 Recall that power is formative and productive of the subject as well as whatever appears to be the subject’s ‘own’ power.97 An effect is that when self-identifying Indigenous peoples assert rights ‘the subject eclipses the conditions of its own emergence’.98 When Indigenous peoples assert rights, those assertions conceal that the claimant is a subject of international legal discourse and the rights appear to be the same power that gave rise to that subject. Self-identifying Indigenous peoples, and others who speak of human rights, use legal discourse that provides the view that Indigenous peoples are natural and pre-legal subjects, even though it was legal discourse that produced Indigenous peoples as subjects.99 This naturalization occurred as the entire discourse underwent democratization, which is evidenced by the actions of various international legal institutions and forums, including the World Bank, the Earth Summit, the ILO and the WGIP. One major success of Indigenous peoples was their influence on development, beginning in the 1980s.100 Indigenous peoples successfully influenced development policies through a range of institutions. The two primary international institutional arenas are examined here are the World Bank and the Earth Summit.101 In 1981, the World Bank Group (WBG) noted that ‘tribal peoples are more likely to be harmed than helped by development projects’,102 and, hence, implemented guidelines to protect them.103 A 1987 review of that policy asserted that ‘there are several dangers that development projects will not only fail to satisfy the manifest needs of indigenous peoples, but may also be initiated and developed at their expense’.104 Notably, the WBG had adopted the term ‘Indigenous peoples’. However, ‘sustained criticism of WBG projects by 96 Judith Butler, Psychic Life of Power: Theories in Subjection (Stanford University Press, 1997) 12. 97 Ibid, Butler, 14; Ben Golder and Peter Fitzpatrick, Foucault’s Law (Routledge, 2009) 15. 98 Ibid, Butler, 14. 99 Ibid, Butler, 13. 100 See Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton University Press, 1995) 21–101; Sundhya Pahuja, Decolonizing International Law (Cambridge University Press, 2011). 101 Asbjørn Eide, ‘The Indigenous Peoples, the Working Group on Indigenous Populations and the Adoption of the UN Declaration on the Rights of Indigenous Peoples’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 36. 102 World Bank Group, ‘Tribal Peoples in Bank-Financed Projects’ (Operational Manual Statement, February 1982); Stefania Errico, ‘The World Bank and Indigenous People: The Operational Policy on Indigenous Peoples between Indigenous Peoples’ Right to FPIC’ (2006) 13 International Journal on Minority and Group Rights 367, 368. 103 Ibid, Errico, 368. 104 World Bank Group Office of Environmental and Scientific Affairs, A Five-Year Implementation Review of OMS 2.34 (1982–1986) (June 1987) cited in ibid, Errico, 368–9.

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indigenous peoples, NGOs and others, led the WBG to revise and update [its policies], concluding in 1991’.105 That policy employed broader criteria to identify Indigenous peoples and required their informed participation, but drew criticism for not recognizing their consent.106 Likewise, the International Finance Corporation (IFC), which provides debt and equity financing to the private sector, adopted similar policies.107 The WBG and the IFC were both initially interested in ‘protecting’ Indigenous peoples, but, after 2000, they would be influential in inspiring industry-based voluntary initiatives that embraced FPIC by mixing sustainable development, human rights and Indigenous peoples.108 But they were not the only institutions interested in development. In 1992, the UN hosted the Conference on Environment and Development, colloquially called the Earth Summit. Indigenous peoples involved in the WGIP (and elsewhere) made a concerted effort to attend, seeking recognition from states and NGOs while exchanging information and expertise.109 At this conference, they ‘succeeded to shift the role of Indigenous peoples from the objects of protection to subjects of co-operation’ for development.110 They did so by asserting themselves and their rights, which conveyed that they were natural subjects who use their own power rather than being objects to protect or subjects of the legal discourse.111 And, importantly, Indigenous peoples at the Earth Summit re-signified themselves as protectors of nature and sustainable development. The Earth Summit codified reflected those developments in several 105 See Andrew Gray, ‘Development Policy, Development Protest: The World Bank, Indigenous Peoples and NGOs’ in Jonathan A Fox and L David Brown (eds), The Struggle for Accountability: The World Bank, NGOs, and Grassroots Movements (MIT Press, 1998) 267; Fergus Mackay, ‘The Draft World Bank Operational Policy 4.10 on Indigenous Peoples: Progress or More of the Same?’ (2005) 22(1) Arizona Journal of International and Comparative Law 65, 66 (internal citation omitted). 106 Corinne Lewis and Carl Söderbergh, ‘The World Bank’s new Environmental and Social Framework: some progress but many gaps regarding the rights of indigenous peoples’ (2019) 23(1–2) International Journal of Human Rights 63, 64. 107 Lisa J Laplante and Suzanne A Spears, ‘Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive Sector’ (2008) 11 Yale Human Rights and Development Law Journal 69, 79–80; see generally Shalanda H Baker, ‘Why the IFC’s Free, Prior and Informed Consent Policy Does Not Matter (Yet) to Indigenous Communities Affected by Development Projects’ (2012) 30 Wisconsin International Law Journal 668–705. 108 Ibid, Baker, 674–5; Charles R Hale, ‘Neoliberal Multiculturalism: The Remaking of Cultural Rights and Racial Dominance in Central America’ (2005) 28 Political and Legal Anthropology Review 10, 16; Stephen M Young, ‘The Sioux’s Suits: Global Law and the Dakota Access Pipeline’ (2017) 6(1) American Indian Law Journal 173, 229–32. 109 Erica-Irene A Daes, ‘The Participation of Indigenous Peoples in the United Nations System’s Political Institutions’ (Speech delivered at the Castan Centre for Human Rights at Monash University, 27 May 2004). 110 Leena Heinämäki et al, Actualizing Sámi Rights: International Comparative Research (Prime Minister’s Office, Finland, 2017) 227. 111 Butler (n 97) 13.

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instruments, as it presided over the creation of two Conventions and three guidelines aimed at altering the prevailing approach to development.112 One of those Conventions, the Convention on Biological Diversity (CBD) – one of only two Convention that includes an FPIC provision – requires obtaining FPIC for commercial uses of their traditional knowledge.113 Each of the guidelines – Agenda 21, the Rio Declaration on Environment and Development and the Statement of Forest Principles – sought to promote and achieve sustainable development in legally non-binding ways, which conceptually bound Indigenous peoples to environmental conservation through sustainable development.114 There, Indigenous peoples were identified as playing ‘a vital role in environmental management and development because of their knowledge and traditional practice’.115 The view that Indigenous peoples should be protected because they are protectors of the land and sustainable users of resources was cultivated by Indigenous peoples as a means of agentic expression against development. Although originally tied to their traditional territories and connection to the land, the Earth Summit and its instruments resignified the subjectivity of Indigenous peoples as a matter of living sustainably and in harmony with nature.116 These changes markedly reformulate the relationality of Indigenous peoples to development. Convention No 107 sought to assimilate Indigenous populations within the state through economic development, as did many states. By the 1990s, Indigenous peoples were becoming viewed as part of nature, who sustainably develop and manage lands. Indigenous peoples targeted development, asserted their rights to manage it and, therein, inscribed sustainable development into their subjectivity. Although 112 The two Conventions were the UN Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994) and the Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 69 (entered into force 29 December 1993) (CBD). 113 Ibid, CBD, art 8(j); see Laurel A Firestone, ‘You Say Yes, I Say No; Defining Community Prior Informed Consent under the Convention on Biological Diversity’ (2003–04) 16 Georgetown International Environmental Law Review 171, 172, 176; Mauro Barelli, ‘Free, Prior and Informed Consent in the Aftermath of the UNDRIP: Developments and Challenges Ahead’ (2012) 16(1) International Journal of Human Rights 1, 4; Clavero (n 130) 47. 114 Agenda 21: Programme of Action for Sustainable Development, UN GAOR, 46th sess, Agenda Item 21, UN Doc A/CONF.151/26 (Vol I) (1992) ch 26; Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3–14 June 1992), UN Doc A/CONF.151/26 (Vol I) (12 August 1992), Annex I: Rio Declaration on Environment and Development, principle 22 (‘Rio Declaration’), Annex II: Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests. 115 Ibid, Rio Declaration, Principle 22. 116 See, eg, Cathal Doyle, ‘Indigenous Peoples and the Millennium Development Goals – “Sacrificial Lambs” or Equal Beneficiaries?’ (2009) 13(1) International Journal of Human Rights 44, 52.

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Indigenous peoples have been successful in achieving this recognition, it is also controversial because not all Indigenous peoples use land sustainably and it contributes to essentialization and the ‘noble savage’ trope.117 When the UN became interested in Indigenous issues in the early 1980s, the ILO remained mostly unconcerned.118 However, it first sought to revise Convention No 107 and then decided create a new Convention after the WGIP began drafting a declaration on Indigenous rights.119 In 1989, the ILO adopted Convention No 169 amid controversy that it had not adequately consulted Indigenous peoples, sought to maintain control over a subject area that was beyond its stated purpose, and had not adopted substantive rights.120 Convention No 169 recognizes Indigenous peoples (not ‘populations’),121 their collective land or territory rights,122 and the right to the use of natural resources on their traditional lands,123 which are usufructuary rather than ownership rights. It requires FPIC when Indigenous peoples will undergo ‘necessary’ relocation,124 but enables states to subvert FPIC where the state’s laws provide Indigenous peoples with ‘effective representation’.125 The Convention also enshrines the state’s ownership of mineral or subsurface resources where the state has reserved them.126 Ratifying states agree to protect Indigenous peoples and their rights without having to recognize 117 See, eg, Ezra Rosser, ‘Ahistorical Indians and Reservation Resources’ (2010) 40 Environmental Law 437; Shu-Yuan Yang, ‘State Recognition or State Appropriation? Land Rights and Land Disputes among the Bugkalot/Illongot of Northern Luzon, Philippines’ (2012) 1(1) Southeast Asian Studies 7; Marjo Lindroth and Heidi Sinevaara-Niskanen, ‘At the Crossroads of Autonomy and Essentialism: Indigenous Peoples in International Environmental Politics’ (2013) 7 International Political Sociology 275, 281–7; Jeffrey Sissons, First Peoples. Indigenous Cultures and their Futures (Reaktion Books, 2005) 37–59. 118 Rodríguez-Piñero (n 31) 257–58, 290; cf Xanthaki (n 2) 80. 119 Rodríguez-Piñero (n 31) 272; Howard R Berman, ‘The International Labour Organization and Indigenous Peoples: Revision of ILO Convention No 107 at the 75th Session of the International Labour Conference, 1988’ (1988) 41 International Commission of Jurists 48, 49; 120 International Labour Organization, Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries, opened for signature 27 June 1989, 28 ILM 1382, 1650 UNTS 383 (entered into force 5 September 1991) art 1 (‘Convention No 169’); ibid, Berman, 56. 121 Ibid, International Labour Organization, art 1. 122 Ibid, International Labour Organization, art 13. 123 Ibid, International Labour Organization, art 15. 124 Ibid, International Labour Organization, art 16, 125 Ibid, International Labour Organization, art 16(2); Amy K Lehr and Gare A Smith, Implementing a Corporate Free, Prior and Informed Consent Policy, Benefits and Challenges (Foley Hoag, 2010) 6; Brant McGee, ‘The Community Referendum: Participatory Democracy and the Right to Free, Prior, and Informed Consent to Development’ (2008) 27(2) Berkeley Journal of International Law 570, 586. 126 Cathal Doyle and Jérémie Gilbert, ‘A New Dawn over the Land: Shedding Light on Collective Ownership and Consent’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 289, 302.

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their rights of self-determination,127 otherwise, as established in the drafting phase, governments would not agree.128 Given the instrument’s shortcomings, Bartolomé Clavero views Convention No 169 as emblematic of the ‘schizophrenic regime where international development agencies define for themselves the parameters within which they operate’.129 Nevertheless, scholars and advocates give it significant attention, because it is the only binding treaty on Indigenous peoples that is open for ratification.130 In part, they retrospectively identify Convention No 169 as part of a ‘prescriptive dialogue’, or an ‘evolving’ international law on Indigenous rights that indicates the crystallization of customary international norms.131 Adopting a view that it is part of an ‘evolution’ may be a practical or strategic move in a legal-political struggle, and it may be metaphorically deployed, but an ‘evolutionary’ account may also naturalize Indigenous peoples and their rights by eliding the productive, formative and disciplinary powers – particularly on the subjects – of legal discourse.132 After the early 1990s, Indigenous peoples would appear as natural subjects who assert their rights and their own self-determination, not as subjects who assert claims regulated by or tied to international legal discourse. International legal discourse would no longer appear to have preceded and produced Indigenous

127 Karen Engle, ‘On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights’ (2011) 22(1) European Journal of International Law 141, 156–7; Claire Charters, ‘Indigenous Peoples and International Law and Policy’ in Benjamin J. Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law (Hart, 2009) 161; cf Anaya (n 2) 58, 61. 128 Berman (n 120) 53. 129 Bartolomé Clavero, ‘The Indigenous Rights of Participation and International Development Policies’ (2005) 22 Arizona Journal of International and Comparative Law 41, 45; also César Rodríguez-Garavito, ‘Ethnicity.gov: Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields’ (2011) 18 Indiana Journal of Global Legal Studies 263, 284. 130 See, eg, Yupsanis (n 36); S J Rombouts, ‘The Evolution of Indigenous Peoples’ Consultation Rights under the ILO and UN Regimes’ (2017) 53 Stanford Journal of International Law 169; Philippe Hanna and Frank Vanclay, ‘Human rights, Indigenous Peoples and the Concept of Free, Prior and Informed Consent’ (2013) 31(2) Impact Assessment and Project Appraisal 146, 147. 131 Lillian Aponte Miranda, ‘The Hybrid State–Corporate Enterprise and Violations of Indigenous Land Rights: Theorizing Corporate Responsibility and Accountability under International Law’ (2007) 11 Lewis and Clark Law Review 135, 148–9, referencing Anaya (n 2) 61–2; cf John R Owen and Deanna Kemp, ‘Free Prior and Informed Consent, Social Complexity and the Mining Industry: Establishing a Knowledge Base’ (2014) 31 Resource Policy 91; Rombouts (n 131); Ward (n 35) 62– 6; Gaetano Pentassuglia, ‘Evolving Protection of Minority Groups: Global Challenges and the Role of International Jurisprudence’ (2009) 11 International Community Law Review 185. 132 Golder and Fitzpatrick (n 98) 15; for an ‘untimely’ approach to evolution, see Kathryn McNeilly, ‘Are Rights Out of Time? International Human Rights Law, Temporality and Radical Social Change’ (2018) Social & Legal Studies 1, 10–4.

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peoples.133 However, throughout the 1990s, international legal discourse would further inflect Indigenous peoples’ human rights as it underwent democratization. In 1993, the WGIP approved the Draft Declaration.134 It was the first UN instrument, albeit, in draft form, that recognized and connected collective rights, self-determination, and FPIC of Indigenous peoples.135 As a draft instrument for understanding Indigenous peoples’ rights, particularly self-determination, and the various views they held around this time,136 it demonstrates how self-determination was re-cited and reclaimed as a democratic concept, after 1993. It also reveals naturalization at work. Before 1993, some Indigenous leaders involved in the WGIP voiced concerns ‘about attempts to limit the concept of self-determination to the conduct of internal affairs … [because it] was not primarily a post-Second World War concept but had existed since time immemorial and was not dependent exclusively on international law for its understanding’.137 This statement exhibits keen awareness of potential limitations to the right of self-determination. It also exemplifies how international legal discourse constructs truth, while simultaneously hiding and concealing its constitutive role so as to provide the appearance of a natural subject. The key terms (such as ‘self-determination’ and ‘time immemorial’) depend on international legal discourse in order for others to understand them. And it is also possible to understand that statement’s explicit disavowal of the notion that those terms are exclusively predicated in international legal discourse. One can agree and affirm that these words signify some latent truth that international law stands in the way of apprehending. We might also hope or believe that these terms have broken from international legal contexts, and in that decontextualization have assumed new contextualization. But, if power is not simply wielded by natural subjects, because power precedes and produces the subject,138 we are afforded a view of how ‘the law desires to saturate the everyday discursive and imaginary frameworks of the subaltern with its own shamed and utopian visions’.139 This 133 Butler (n 97) 13. 134 Erica-Irene A Daes, ‘The Contribution of the Working Group on Indigenous Populations to the Genesis and Evolution of the UN Declaration on the Rights of Indigenous Peoples’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 48, 66–72; Report of the Working Group on Indigenous Populations on its eleventh session, Chairman/Rapporteur: Mrs Erica-Irene A Daes, UN Doc E/Cn.4/Sub/2/Ac/4/1993, Annex 1 (23 August 1993). 135 Wiessner (n 61) 1153; cf Richard Bartlett, ‘Review of M A Stephenson and Suri Ratnapala (eds), ‘Mabo: A Judicial Revolution’ (1993) 23 University of Western Australia Law Review 383–4. 136 Engle (n 128) 152–3. 137 Report of the Working Group on Indigenous Populations on its eleventh session (n 135) para 56; Daes (n 135) 69; Berman (n 13) 60. 138 Butler (n 97) 13. 139 Elizabeth A Povinelli, ‘The State of Shame: Australian Multiculturalism and the Crisis of Indigenous Citizenship’ (1998) 24(2) Critical Inquiry 575, 601; also Povinelli, The Cunning of Recognition (Duke University Press, 2002).

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demonstrates that when the subjectivity of Indigenous peoples is naturalized – and when Indigenous peoples assert rights claims – the focus shifts to understanding the definition of the asserted legal terminology so that prelegal subjects possess powers which have a negative and oppressive effect on others that they can use to control their lives. This process requires, as it upholds and reproduces, legal models. It also demonstrates, as mentioned in Chapter 1, how one can note the emergence of Indigenous peoples and that Indigenous peoples have self-determination since time-immemorial by locating those assertions as events within discourse. It is also worth examining what the 1993 Draft Declaration attempted to codify to establish how selfdetermination, and Indigenous peoples’ rights, would change throughout the 1990s. For Karen Engle, self-determination in the 1993 Draft Declaration reflects an interest in continuing the processes of decolonization,140 rather than a more liberalized or democratic conception of human rights. The best support for this reading is that the 1993 Draft Declaration did not contain a territorial integrity clause or anything about democracy. Perhaps, the 1993 Draft Declaration could have allowed for the disruption of state territories in ways human rights do not today – that is, maybe self-determination was not a right claimed vis-à-vis states that call forth state powers to protect the individual or the community through favorable action. But after 1993, Declaration drafts would include territorial integrity clauses, as well as terms orienting Indigenous rights within democratic practices of states. These developments are attributable to the democratization of international legal discourse so that self-determination was resignified without reference to ‘external’ self-determination or secession. This is demonstrated by the 1993 Vienna Declaration and Programme of Action, which affirmed the rights of all peoples – including Indigenous peoples – to self-determination, as well as the necessity of territorial integrity.141 It proclaimed self-determination, human rights and sustainable development as central to democracy,142 which orients human rights within a democratized international legal discourse.143 Given the resignification of self-determination away from decolonization, Engle argues that ‘indigenous rights advocates simultaneously softened their stance on self-determination and attempted to broaden the general, liberal model of human rights’.144 140 Engle (n 128) 152–3; cf Jensen (n 4) 275–80; also Daes (n 135) 69–7. Report of the Working Group on Indigenous Populations on its eleventh session (n 135) paras 57–62. 141 Vienna Declaration and Programme of Action, A/CONF.157/23 (25 June 1993) arts 2.3, 8, 20. 142 Ibid, Vienna Declaration, arts 27, 34, 66, 68, 74, 79–81. 143 Antonio Cassese, ‘The Approach of the Helsinki Declaration to Human Rights’ (1980) 13 Vanderbilt Journal of Transnational Law 275, 283; Antonio Cassese, SelfDetermination of Peoples: A Legal Reappraisal (Cambridge University Press, 1995); cf Churchill (n 61). 144 Engle (n 128) 152; cf Doyle (n 117) 51.

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As an example, in 1994, Robert Coulter wrote: The right of indigenous peoples to control matters affecting them – including the right of self-determination – is another of the great, over-arching principles of the [Draft] Declaration, which frequently repeats the principle of requiring free consent by indigenous peoples to decisions that affect them. A closely related theme is the call to democratize the relationship between indigenous peoples and state governments and to uphold democratic values through the rule of law. The longstanding relationship between indigenous peoples and states has been compared to colonial relationships of the sort that the UN has condemned. A democratic relationship requires equality and dignity for all, with the rightful power of government deriving from the consent of the people rather than the imposition of force.145 Coulter upholds the UN as an institution that condemned colonial relationships and re-cites self-determination as a democratic principle despite having legitimated internal colonization and not upholding self-determination as a democratic principle until 1993.146 In relying on the nebulous notion of ‘democracy’,147 he then asserts that greater democracy will allow ‘Indigenous peoples to control matters affecting them’, which focuses attention, as it seeks to uphold, legality and the ‘rule of law’ as the forces that should provide control.148 And when Coulter asserted that there had been a ‘longstanding relationship[s] between indigenous peoples and states’, he deploys contemporary signifiers retroactively and anachronistically, which contributes to the naturalization of the subject-status. It is difficult to discern whether attempts to ‘broaden’ the ‘liberal model of human rights’ succeeded when democratic actors were simultaneously reclaiming and imbuing international legal discourse with liberal democratic ideals. In 1995, Antonio Cassese re-asserted the influential view that self-determination is a liberal democratic right, a ‘continuing right of all peoples’.149 That might be ‘the rights of groups and individuals to make meaningful choices in matters of concern to them on an ongoing basis’.150 And if so, then state actors can agree in principal while limiting the practice of self-determination to the ability to participate in

145 Coulter (n 80). 146 The ICCPR and the ICESCR may be read as enshrining democratic principles, but importantly, common article 1 enshrines those economic, social and cultural rights that liberal democratic states were skeptical could be justiciable ‘rights’. 147 See Wendy Brown, ‘We Are All Democrats Now …’ (2010) 13(2) Theory & Event 1. 148 In another context, Ruth Buchanan and Sundhya Pahuja argue that ‘the concept of “the rule of law” … operates as a sustaining narrative both for nations and for the international system of multilateral institutions’: ‘Legal Imperialism: Empire’s Invisible Hand?’ in Paul A Passavant and Jodi Dean (eds), Empire’s New Clothes: Reading Hardt and Negri (Routledge, 2003) 74, 87–90. 149 See Cassese (n 144) 52–5, 357–8 n 47; also Thornberry (n 2) 89 n 3, 35–114. 150 Daes (n 135) 70, citing personal communication with Anaya.

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extant state-sanctioned political processes. For instance, in 1992, the Australian Government stated that: self-determination is not limited in time to the process of decolonization nor is it accomplished solely by a single act or exercise. Rather it entails the continuing right of all peoples and individuals within each state to participate fully in the political process by which they are governed.151 After the 1990s, so long as ‘self-determination’ is nebulously equated with democracy or democratization and state practices appear to uphold rights that afford the possibility of political participation, it would seem that decolonization processes are either negated or incorporated within individuals, communities or institutional actors who then attempt to broaden state practices or re-inscribe ‘democracy’ with their particular and contestable visions of justice.152 The processes of external self-determination and secession that states viewed as legitimate had mostly passed, and many Indigenous peoples may not view secession as desirable.153 Be that as it may, scholars shifted to parsing the legality, limits and confines of self-determination, perhaps in attempts to broaden it. And those who do so reproduce legal models while mostly ignoring productive, formative, disciplinary and other powers of the discourse on their subject(s). When the WGIP finalized its 1993 Draft Declaration, the Commission on Human Rights formed another Working Group to move the Declaration towards General Assembly endorsement.154 The initial problem was that the new Working Group could not be named the ‘Working Group on Indigenous Populations’ – Indigenous peoples rejected the nomenclature of populations. Neither could it be named ‘Working Group on Indigenous Peoples’, because the connection between ‘peoples’ and self-determination remained too contentious for states to accede.155 Hence, it was named the Working Group on the Draft Declaration (WGDD) and tasked with a mandate to revise and then seek approval of the instrument.156 151 Gundmundur Alfredsson, ‘The Right of Self-Determination and Indigenous Peoples’ in Christian Tomuschat (ed), Modern Law of Self-Determination (Kluwer Academic, 1993) 51. 152 See generally Helen Quane, ‘The UN Declaration on the Rights of Indigenous Peoples: New Directions for Self-Determination and Participatory Rights?’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 266–87 (discussing UNDRIP); cf Churchill (n 61) 546. 153 Daes (n 135) 70. 154 Economic and Social Council, Resolution 1995/32 Establishment of a working group of the Commission on Human Rights to elaborate a draft declaration in accordance with paragraph 5 of General Assembly resolution 49/214 (25 July 1995). 155 Luis Enrique Chávez, ‘The Declaration on the Rights of Indigenous Peoples Breaking the Impasse: The Middle Ground’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 97–8. 156 Ibid, Chávez, 97–8.

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Resolving the name did not ameliorate extenuating disciplinary mechanisms or exclusionary practices. The WGDD was under a different forum than the WGIP and it had different procedural rules, which excluded non-identifiable institutions, such as Indigenous peoples, from participating.157 Even after the protocols were relaxed to be inclusive, most Indigenous delegates walked out of the negotiations.158 Megan Davis explains that ‘indigenous observers staged a walk-out because of disagreement about the proposed work agenda and … the indigenous position to reject any amendment to the text’.159 This so-called ‘no change’ position sought to fix (as in ‘permanently settle’ or ‘stabilize’ rather than ‘repair’ or ‘mend’) the wording of the 1993 Draft Declaration to combat state interests in ‘improving’ the document.160 Indigenous delegates argued that any changes entailed ‘a risk of indigenous rights being formally derogated in international law through a weaker and watered down text’.161 Although some Indigenous organizations saw compromise as the best way forward,162 a deadlock persisted until 2004. The attempt to stabilize the meanings of rights in the 1993 Draft Declaration failed in two ways. First, and perhaps inevitably, Indigenous negotiators would eventually compromise. And second, as deadlock persisted, the uptake of human rights and FPIC by others, particularly by industry actors, significantly inflected how they were to be performed. Even though Indigenous peoples had become subjects of international legal discourse that could influence international legal discourse, others actors were able to influence and effect legal discourse as the entire discourse shifted in ways that influences how others understand its terms. ‘Governments and multilateral organizations started to take notice’ of FPIC and Indigenous peoples’ rights,163 which was an immense achievement – whose achievement is not so clear.

157 John B Henriksen, ‘The UN Declaration on the Rights of Indigenous Peoples: Some Key Issues and Events in the Process’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 79, 83; Andrea Carmen, ‘International Indian Treaty Council Report from the Battle Field – The Struggle for the Declaration’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 92. 158 Ibid, Henriksen, 79, 83; ibid, Carmen, 92. 159 Megan Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law 439, 450; cf Carmen (n 158) 89. 160 Chávez (n 156) 97. 161 Davis (n 160) 12. 162 Henriksen (n 158) 82. 163 Stavenhagen (n 79) 45.

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1995 and after: legal changes and changing discourse As Indigenous peoples asserted rights and as the subject-status appeared more naturalized, scholars and others focused attention on the objects of power they assert – the rights – to protect Indigenous peoples. As Indigenous peoples and NGOs asserted rights and urged industry actors to comply, UN bodies, international finance institutions and industry actors, such as the WBG and IFC, began adopting higher standards of compliance. Each of these institutions were not simply complying or bending to the demands of Indigenous peoples, even if they made changes because of those demands. They also shaped and influenced the discourse and, hence, the subjectivity of Indigenous peoples.164 For instance, in 1997, the Committee for the Elimination of Racial Discrimination (CERD), lent support to Indigenous peoples’ rights. CERD’s General Recommendation XXIII called ‘upon State parties to … [e]nsure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent’.165 It was the first UN body to recommend that states seek and protect Indigenous peoples’ FPIC. According to Thornberry, CERD’s approach ‘distinguishes between a general right of effective participation in public life, and a narrower issue of decisions directly affecting those indigenous groups’ for FPIC.166 CERD directed states to recognize equal rights for Indigenous peoples’ public participation and to recognize FPIC in order to protect their impacted rights. When compared with the 1993 Draft Declaration, CERD did not broaden Indigenous peoples’ rights. It narrowed those rights to make them more legalistically practicable within democratic states.167 At the same time, the UN Development Programme (UNDP) embraced a version of sustainable development – which mirrored the approaches adopted by the WBG and the IFC – in its Governance for Sustainable Human Development project.168 It is notable because the UNDP’s interest in sustainable human 164 Foucault (n 37) 139; Michel Foucault, ‘Technologies of the Self’ in Luther H Martin, Huck Gutman and Patrick H Hutton (eds), Technologies of the Self: A Seminar with Michel Foucault (Tavistock, 1988) 19. 165 Committee on the Elimination of Racial Discrimination, Report of the Committee on the Elimination of Racial Discrimination: Annex V – General Recommendation XXIII, UN Doc Supplement No 18 (A/52/18) (26 September 1997) para 4(d); Barelli (n 114) 6–7; Doyle (n 117) 51; Doyle and Gilbert (n 127) 297; Ward (n 35) 57. 166 Thornberry (n 2) 217. 167 Committee on the Elimination of Racial Discrimination, Decision 2(54) on Australia – Concluding Observations/Comments, UN Doc CERD/C/54/MISC.40/rev.2 (18 March 1999) 6. 168 UN Development Programme, Governance for Sustainable Human Development: A Policy Document (1997). The UNDP’s sustainable development notion was influenced by good governance and structural adjustment policies. A structural adjustments and good governance approach to development. See World Bank, Governance and Development (World Bank, 1992) 1. For commentary on the ‘governance paradigm’, see

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development significantly differed from the version of sustainable development articulated at the 1992 Earth Summit by Indigenous peoples. The UNDP was concerned with sustaining the development of humans, but it had not yet connected sustainable development with human rights. After 2000, sustainable development was more entangled with human rights, which led to debates over what human rights meant for and to sustainable development,169 and muddled any distinct definitional understandings of sustainable development. When bodies, such as CERD, advocated for states to adopt legal rights of FPIC and self-determination, and then those rights became connected to sustainable development, other international actors were able to influence international legal discourse leading to wider acceptance of softer, self-regulating standards. This occurred throughout the early 2000s, as a range of UN actors began advocating for Indigenous rights. In 2000, ECOSOC established the PFII.170 Shortly after that, the Commission on Human Rights established a Special Rapporteur on the Rights of Indigenous Peoples.171 Both articulated when states should seek FPIC.172 A 2004 workshop by the PFII asserted that:173  

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FPIC is an established feature of international human rights norms and development policies pertaining to indigenous peoples; There is need to have an internationally agreed definition or understanding of the principle or mechanism for implementation;

Rodríguez-Garavito (n 130) 272–3; cf Joshua P Rosenthal, ‘Politics, Culture, and Governance in Development of Prior Informed Consent in Indigenous Communities’ (2006) 47(1) Current Anthropology 119. See, eg, Emily Greenspan, ‘Getting to “No” in Mining and Community Consent’, Oxfam (24 November 2015) ; cf Aidan Davy, ‘ICMM Responds to Oxfam’s Blog on Indigenous Peoples and Mining’, ICMM (3 December 2015) . Resolution 2000/22, Establishment of a Permanent Forum on Indigenous Issues, UN Doc E/2000/22 (28 July 2000); see Marjo Lindroth, ‘Paradoxes of Power: Indigenous Peoples in the Permanent Forum’ (2011) 46(4) Cooperation and Conflict 543–62. Commission on Human Rights, Resolution 2001/57, Human Rights and indigenous issues (24 April 2001). Permanent Forum on Indigenous Issues, Report on the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples, UN Doc E/C.19/2005/3 (17 February 2005) para 46; S James Anaya, Report of the Special Rapporteur, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, UN Doc A/HRC/21/47 (2013), paras 47–9; S James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples: Extractive Industries and Indigenous Peoples, A/ HRC/24/41 (1 July 2013) [27]. Permanent Forum on Indigenous Issues, Report on the third session, Supp No 23, UN Doc E/2004/42 E/C.19/2004/23, Draft Decision II (10–21 May 2004) 1.

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Definition of Terminologies such as Free, Prior, Informed and Consent is required formally; There is an argument that FPIC contravenes state sovereignty in general, including state sovereignty over natural resources; and FPIC should be recognized legally.174

Assertions that FPIC needs formal definitional and legal recognition underscores the importance of legal models, which, within international legal discourse, inflects how subjects will be identified and re-signified. For example, in 2002, the WGIP released a report that identified FPIC as the link between ‘the right of selfdetermination and rights over their lands and resources and their capacity to enter into equitable relationships with the private sector’.175 It identified those Indigenous peoples whose lands and resource rights were previously predicated on treaties or other arrangements with states as being better able to enter into agreements with the private sector on the basis of FPIC than those who did not have those rights.176 In essence, it signifies the linkage between formalized property rights and the ability to contract as previously recognized by states – the two pillars of the liberal rule of law advocated by democratic state actors – and Indigenous peoples’ self-determination and FPIC. Identifying Indigenous peoples as successfully deploying this style of legality provides the appearance that natural subjects who command that type of law are more successful.177 Within this democratized international legal discourse, assertions that FPIC needs legalization assisted in identifying and resignifying those who had been previously structured through liberal legal arrangements, and those who defended property and used contracts according to democratic state systems, as successful Indigenous peoples.178 Of course, there are other, ‘less successful’ Indigenous peoples who, as articulated by the Harvard Project on American Indian Economic Development, suffer from institutional ‘thinness’.179 Clearly, many Indigenous peoples advocate for property rights and fair contract terms, and they can benefit from corresponding legal protections. However, re-identifying who is successful and who is not through legal constructions resignifies as it delimits and validates which forms of legality are legitimate, allowable, knowable and utterable from those that are not. It also works upon and shapes what Indigenous peoples should 174 Permanent Forum on Indigenous Issues (n 173) 12. 175 United Nations, Report of the Workshop on Indigenous Peoples, Private Sector Natural Resource, Energy and Mining Companies and Human Rights UN Doc E/CN.4/ Sub.2/AC.4/2002/3 (2002) para 6. 176 Ibid, Report of the Workshop on Indigenous Peoples, para 6. 177 See Butler (n 97) 13. 178 See Harvard Project on American Indian Economic Development, On Improving Tribal-Corporate Relations in the Mining Sector: A White Paper on Strategies for Both Sides of the Table (Harvard Project on American Indian Economic Development, April 2014) 37–41 . 179 Ibid, Harvard Project, 37–41.

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do to become successful: the Harvard Project recommends that those suffering from ‘thinness’ develop institutional capacity, a suggestion to reproduce the institutions of democratic states that might welcome outside interventions and consultancies.180 As the subjectivity of Indigenous people was resignified to encourage statelike restructuring, many international legal actors embraced softer forms of legality as financial institutions and industry actors began adopting voluntary initiatives for self-regulation. Throughout the 1990s, Indigenous peoples, NGOs and UN institutions documented the inordinate impacts of WBGfunded developments.181 Accordingly, the WBG commissioned an Extractive Industries Review of its policies in 2001.182 That review ended in 2004 and recommended that the WBG adopt an FPIC standard.183 Instead, the WBG adopted a policy that ‘can be boiled down to free, prior and informed consultation resulting in informed participation that leads to broad community acceptance of the project’.184 Later, the IFC would adopt the same policy.185 Some commentators view the WBG’s and the IFC’s interests in including Indigenous peoples in participatory schemas as ‘a movement towards greater autonomy for the groups subject to bank intervention’.186 As Ruth Buchanan and Sundhya Pahuja argue, the WBG’s adoption of broader participatory schemas is ‘a laudably more democratic approach’ that doubles as ‘a vehicle with which to integrate “poor people” (those without financial capital) into global markets more rapidly’.187 Simultaneously, industry actors began articulating standards for sustainable development. In a 2001 speech to the mining industry, Richard Sandbrook said: At the Rio Earth Summit in 1992 industry was a side player in comparison to governments and ‘civil society’. Many in government now can see that this was a mistake – but it was as much a result of private sector actors being 180 Ibid, Harvard Project, 42–7. 181 Mackay (n 106) 68; Rodolfo Stavenhagen, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, UN Doc E/ CN.4/2002/97 (4 February 2002) [56]; Korina Horta, ‘Rhetoric and Reality: Human Rights and the World Bank’ (2002) 15 Harvard Human Rights Journal 227, 237–9. For a commentary, see generally, Ruth Buchanan and Sundhya Pahuja, ‘Law, Nation and (Imagined) International Communities’ (2004) 6 Law Text Culture 1, 19–24. 182 Andrés Liebenthal, Roland Michelitsch and Ethel Tarazona, Extractive Industry and Sustainable Development: An Evaluation of World Bank Group Experience (World Bank, 2003); Fergus Mackay, ‘Indigenous People’s Right to FPIC and the World Bank’s Extractive Industries Review’ (2004) 4(2) Sustainable Development Law and Policy 43. 183 Ibid, Mackay, 50. 184 Ibid, Mackay, 48; Errico (n 103) 371. 185 International Finance Corporation, Policy of Social and Environmental Sustainability (2006); Laplante and Spears (n 108) 82; Baker (n 108) 674–5. 186 Buchanan and Pahuja (n 149) 80. 187 Buchanan and Pahuja (n 149) 80.

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reluctant players as any conspiracy to keep you ‘outside the tent’. Ten years on the mood is very different. There is now recognition that private sector investments are central to achieving a better world and that business must be involved.188 As coordinator for the Mining Minerals and Sustainable Development (MMSD) project, Sandbrook’s statement is paradigmatic of voluntary initiatives. He was advocating for the MMSD, a voluntary initiative for sustainable development and mining,189 which enabled industry actors, in collaboration with NGOs and Indigenous peoples, to develop principles they could use to evaluate their behavior and report back to a central authority to validate and publish the reports. In 2006, the banking industry formed the Equator Principles to self-regulate private lending.190 The emergence of voluntary initiatives had several effects. First, noting that industry actors were increasingly interested in human rights, and prompted by the high profile instances of transnational corporations abusing development sites and surrounding populations, the UN SubCommission on the Promotion and Protection of Human Rights established the Working Group on Transnational Corporations.191 It examined the interrelation of human rights and business. In 2003, the Working Group completed a draft Norms on the Responsibilities of Transnational Corporation.192 However, the Commission on Human Rights rejected that draft, citing its inability to monitor those rights as it did not have legal standing. That rejection reaffirmed the importance of legal models while also inspiring a shift to a softer legal approach to human rights for industry purposes. The project continued by appointing Special Representative John Ruggie to ‘identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to 188 Link: Monthly Newsletter of the Global Mining (February 2001) 1(1) 1. 189 International Institute for Environment and Development, ‘Mining Minerals and Sustainable Development’, iied (undated) ; International Council on Mining and Metals, Good Practice Guide to Indigenous Peoples and Mining (ICMM, 2nd ed, 2015) 25–9. For a general overview of private standards that have adopted FPIC, see First Peoples Worldwide, Indigenous Peoples Guidebooks on Free Prior Informed Consent and Corporation Standards (First Peoples Worldwide and Trillium Asset Management, 2011) 23–54. 190 Baker (n 108) 674–5; Ariel Meyerstein, ‘Transnational Private Financial Regulation and Sustainable Development: An Empirical Assessment of the Implementation of the Equator Principles’ (2013) 45 New York University Journal of International Law and Policy 487, 498; Young (n 109). 191 Responsibilities of Transnational Corporations and other Business Enterprises with regard to Human Rights, Sub-Commission resolution 2003/16, UN Doc E/CN.4/ Sub.2/2003/L.11 at 52 (2003). 192 Draft Norms on the Responsibilities of Transnational Corporation and Other Business Enterprises with Regard to Human Rights, UN Doc E/CN.4/Sub.2/2003/12 (2003).

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human rights’.193 Ruggie then drafted the UN Guiding Principles on Business and Human Rights, which introduced the ‘Protect, Respect, Remedy’ framework. It requires states to protect internationally recognized human rights and companies to respect them even where state governments do not.194 It provides industry actors with a means for identifying at-risk communities and their rights – some of whom might identify as Indigenous peoples – and then contracting with them so that they can benefit from development, or protect themselves through agreeable standards. Second, where industry adopts human rights standards for self-regulation, it shifts the burden of identifying and ‘enforcing’ failures to ‘respect’. That may provide Indigenous peoples with the ability to articulate and defend their property rights by contracting or articulating self-determination and FPIC. It also provides the appearance that self-identifying Indigenous peoples are natural subjects who are giving effect to their own powers, which reinforces the naturalization of Indigenous peoples as they uphold the legal models of power that states and other actors recognize. It led to the creation of scholarly projects and human rights NGOs that were interested in identifying successful and unsuccessful Indigenous peoples, and then increasing Indigenous peoples’ institutional capacity to defend their human rights.195 Third, the increasing number of voluntary initiatives increased competition among institutional actors and inspired broader acceptance of softer standards. For instance, in the 1980s, UNDRIP was originally conceived as a provisional step towards the creation of a Convention on Indigenous peoples’ rights.196 Today, it is unknown if that will happen, or even if it is something that Indigenous peoples would desire.197 Similarly, as one of two binding international instruments that codified FPIC, the trajectory of the CBD demonstrates a preference towards softer 193 Commission on Human Rights, Human Rights and Transnational Corporations and other Business Enterprises, Resolution 2005/69, 61st sess, UN Doc E/Cn.4/RES/ 2005/69 (20 April 2005). See also Hanna and Vanclay (n 131) 149; Leonardo M Crippa, ‘Multilateral Development Banks and Human Rights Responsibility’ (2010) 25 American University International Law Review 531; J P Laplante and Catherine Nolin, ‘Consultas and Socially Responsible Investing in Guatemala: A Case Study Examining Maya Perspective on the Indigenous Right to Free, Prior, and Informed Consent’ (2014) 27(3) Society & Natural Resources: An International Journal 231. 194 John Ruggie, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises: Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, HRC, 17th sess, agenda item 3, UN Doc A/HRC/ 17/31 (21 March 2011). 195 See, eg, Harvard Project (n 179). 196 Cobo (n 76) [312]. 197 Megan Davis, ‘To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On’ (2012) 19 Australian International Law Journal 17, 37–40; Julian Burger, ‘After the Declaration: next steps for the protection of indigenous peoples’ rights’ (2019) 23(1–2) International Journal of Human Rights 22, 22–3, 29–30.

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law.198 The 1992 binding CBD required states to obtain Indigenous peoples’ FPIC before using their traditional knowledge for commercial purposes.199 After 2000, the Secretariat on the CBD adopted the Bonn Guidelines on Access and Benefit Sharing and commissioned the Akwé: Kon Voluntary Guidelines.200 Both recommend obtaining Indigenous peoples’ FPIC, but neither is binding.201 The Bonn Voluntary Guidelines note that voluntariness is ‘of particular importance to developing countries, as they hold most of the world’s biological diversity but feel that, in general, they do not obtain a fair share of the benefits derived from the use of their resources’.202 In essence, the Secretariat balanced the relevance of itself and the CBD to developing nations – no longer just industry – against the rights that it sought to legalize. As international legal discourse underwent these changes, the WGDD remained at an impasse. In 2004, that impasse ended when Indigenous negotiators came back to the table.203 The WGDD amended the 1993 Draft Declaration, which was then submitted to and approved by the Human Rights Council.204 The ultimate step in the UN was to have the General Assembly endorse it. After mollifying opposition from an African bloc of states,205 the General Assembly endorsed UNDRIP.206 Unsurprisingly, Australia, New Zealand, Canada and the United States, which had been actively lobbying against UNDRIP, voted against it.207 Those states expressed concerns over the 198 The ILO is the other. It has also shifted towards softer standards, but since 1989 it has not addressed Indigenous peoples’ rights. See Guy Standing, Work After Globalization: Building Occupational Citizenship (Edward Elgar, 2009) 9–13; Engle (n 128) 157. 199 CBD (n 113) art 8(j). 200 Secretariat of the Convention on Biological Diversity, Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (2002); Secretariat of the Convention on Biological Diversity, Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments Regarding Developments Proposed to Take Place on, or Which Are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities (2004). 201 Ibid, Bonn Guidelines, arts 15, 16(a)(vii); ibid, Akwe: Kon Guidelines, [29], [53]. 202 Ibid, Bonn Guidelines, Introduction. 203 Henriksen (n 158) 82–3; Davis (n 160) 13–15. 204 See Luis Alfonso de Alba, ‘The Human Rights Council’s Adopting of the United Nations Declaration on the Rights of Indigenous Peoples’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 116–120; Human Rights Council, Working Group of the Commission of Human Rights to elaborate a draft declaration in accordance with paragraph 5 of the General Assembly resolution 49,214 of 23 December 1994, Resolution 2006/2 (29 June 2006). 205 Ibid, de Alba, 125–9; Henriksen (n 158) 79; Jérémie Gilbert, ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60(1) International & Comparative Law Quarterly 245, 246. 206 UNDRIP (n 1). 207 Meeting Record, UN GAOR, 61st sess, 107th plen mtg, UN Doc A/61/PV.107 (13 September 2007) 11–15.

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rights to self-determination (article 3) and FPIC (multiple articles), topics evaluated in Chapter 3. After the adoption of UNDRIP in 2007, enthusiasm for voluntary initiatives, soft law, Indigenous rights and FPIC increased. In 2007, the Human Rights Council created the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), to provide expertise and advice on the rights UNDRIP recognized.208 It has conducted several studies on Indigenous participatory rights and FPIC.209 In 2008, the UNDP released the Guidelines on Indigenous Peoples’ Issues.210 In 2009, the Committee on Economic Social and Cultural Rights released a General Comment on the right of everyone to take part in cultural life, noting the importance of obtaining FPIC, as well as the important role of corporations.211 The IFC adopted an FPIC standard in 2012.212 The Equator Principles followed the IFC.213 In 2015, the WBG announced that it would adopt FPIC.214 As discussed in Chapter 6, since 2001, the Organization of American States and the InterAmerican Human Rights system has developed and imposed legal rights for the participation of Indigenous peoples, including its own Declaration on the Rights of Indigenous Peoples.215 Beginning in 2001, UN Special Rapporteurs on the Rights of Indigenous Peoples provided reports on the importance of Indigenous peoples, their rights and development.216 Numerous NGOs have been articulating rights, disseminating information and pressuring organizations to adopt FPIC.217 208 Human Rights Council, Resolution 6/36, Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/HRC/6/L.42 (14 December 2007), amended by Human Rights Council, Resolution adopted by the Human Rights Council on 30 September 2016, 33/25, Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/ HRC/RES/33/25 (5 October 2016). 209 Human Rights Council, Final Report of the Study on Indigenous Peoples and the Right to Participate in Decision-Making: Report of the Expert Mechanism on the Right of Indigenous Peoples, UN DOC A/HRC/18/42 (17 August 2011) para 63; Expert Mechanism on the Rights of Indigenous Peoples, Free, prior and informed consent: a human rights-based approach, UN Doc A/HRC/39/62 (September 2018). 210 UN Development Group, Guidelines on Indigenous Peoples’ Issues (2008). 211 Committee on Economic, Social and Cultural Rights, General Comment No 21, Right of everyone to take part in cultural life, UN Doc E/C.12/21 (21 December 2009) art 15(1)(a). 212 International Finance Corporation, Performance Standard 7 Indigenous Peoples (1 January 2012). 213 The Equator Principles June 2013, 7–8 . 214 World Bank, ‘World Bank Board Committee Authorizes Release of Draft Environmental and Social Framework’ (Press Release, 4 August 2015) . 215 Organization of American States, Declaration on the Rights of Indigenous Peoples, 3rd plen sess, AG/RES.2888 (XLVI-O/16) (15 June 2016). 216 See, eg, Anaya (n 173). 217 See, eg, First Peoples Worldwide (n 190); Christina Hill, Serena Lillywhite and Michael Simon, Guide to Free Prior and Informed Consent (Oxfam, 2010); Amnesty

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The natural subject and its legal object The subject of Indigenous peoples emerged in international legal discourse as these peoples sought to articulate their rights. In the early 1990s, binding legal instruments codified Indigenous peoples’ rights. After 1993, the international discourse underwent profound democratic reclamation. When Indigenous peoples asserted their rights, it coincided with a proliferation of non-binding instruments. As the onus of enforcement fell on Indigenous peoples to articulate, negotiate and defend their rights, they then appeared as natural subjects searching to legalize their rights in an era of softer-regulatory interests. This has led to concerns about the ‘normative drift’ of FPIC away from Indigenous peoples’ self-determination,218 which upholds Indigenous peoples as natural subjects who possess and have always possessed self-determination as an object that is more fixed, fixable and stabilizable than FPIC. These are the effects of changes to international legal discourse. For example, in 1991, Anaya saw Indigenous peoples or populations as emerging from the organs of international human rights organization.219 By the late1990s, the manner of speaking about Indigenous people changed. In 1999, Anaya wrote, ‘benefiting from an international system in which assertions of domestic jurisdiction are less and less a barrier to international concern over issues of human rights, indigenous peoples have been successful in attracting significant attention to their demands at the international level’.220 Similarly, in an article from 2009, Rodolfo Stavenhagen wrote, ‘it was not until well alter [sic] World War II, when human rights had become an important ingredient of international relations and democratic governance, that indigenous people began to organize and lobby for their rights at the domestic and international levels, so that governments and multilateral organizations started to take notice’.221 Both statements advance the view that Indigenous peoples are pre-existing natural subjects who took advantage of human rights and reduced barriers to international law or the increasing salience of ‘democratic governance’. The terms of that discourse naturalize Indigenous peoples and shed the constitutive and formative roles of NGOs, other organizations, and the discourse in shaping, supporting and forming that emergent subjectivity.222 Both Anaya and Stavenhagen were Special Rapporteurs on the Rights of Indigenous peoples who, at times, identified the emergence of Indigenous peoples in the 1980s.223

218 219 220 221 222 223

International, ‘Open Letter on Free, Prior and Informed Consent’, Amnesty International (24 November 2015) . Nathan Yaffe, ‘Indigenous Consent: A self-determination perspective’ (2018) 19(2) Melbourne Journal of International Law 703, 705–7, 725–39. Anaya (n 2) 4. Although my citation is to the second edition published in 2004. Anaya (n 2) 57. Stavenhagen (n 79) 45. Ronald Niezen, Public Justice and the Anthropology of Law (Cambridge, 2010) 116–20. Stavenhagen (n 79) 45; Anaya (n 2) 57.

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They did not forget. They performatively present simplified or strategic accounts to reflect the altered terminology of the discourse. And in so doing, they encourage a legal model of power for Indigenous peoples, which reproduces legal models all the same. The more undesirable effects can be clarified through an example. Stavenhagen claims, as others do, that ‘[t]he plight of indigenous peoples under colonial domination was documented as early as the sixteenth century by the friar Bartolomé de las Casas’.224 De las Casas, Vitoria and others of that epoch documented the plight of the ‘natives’ or ‘de indies’, but not Indigenous peoples.225 Stavenhagen retroactively deploys the contemporary signifier to those who had been previously identified under more racialized or inappropriate terms. He does so because there is no signifier for all autochthonous communities who act with collective will other than ‘Indigenous peoples’. The anachronistic use of this terminology might appear strategic, prudent and structurally benevolent, but it also legitimates and it remakes international law’s regulatory and discursive hegemony as a natural feature of those peoples’ marginalization and oppression.226 The concern is that the author presents a strategic picture by re-presenting Indigenous peoples,227 which does not account for the subjectivity-producing functionality of the legal discourse, which shapes and oppresses its subjects as it expresses their agency and freedom. These anachronistic uses are dangerous for the ways in which they reproduce the elisions of manifestations and modalities of power,228 not that they are technically incorrect or improper. Even with a caveat to acknowledge anachronistic terminological deployments, which most forego,229 the scholars’ terminology, if not their intent, advances the view that Indigenous peoples are natural subjects. Despite a laudatory or simplified staging, producing a vision of law that conceals the emergence and naturalization of the subject for the purposes of legitimating the subject doubles to legitimate international law’s ‘regulatory hegemony’.230 Accordingly, even if Anaya, Stavenhagen and others performatively advocate for Indigenous peoples or present simplified accounts to ‘not overcomplicate matters’,231 they perpetuate a legal model of power by re-forming Indigenous peoples as pre-existing natural subjects within a natural, neutral and inevitable international legal hegemony. 224 Stavenhagen (n 79) 46. 225 See Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2003) 28–31. 226 See Kathleen Birrell, Indigeneity: Before and Beyond the Law (Routledge, 2016) 4. 227 See, eg, Gayatri Chakravorty Spivak, ‘Can the Subaltern Speak?’ in Cary Nelson and Lawrence Grossberg, eds, Marxism and the Interpretation of Culture (University of Illinois Press, 1988) 275–8. 228 Michel Foucault, ‘On the Genealogy of Ethics’ in Paul Rabinow (ed) Foucault Reader (Pantheon Books, 1984) 343. 229 Cf Ahrén (n 2) 1; Tennant (n 8) 3–5. 230 Butler (n 11) 2. 231 Ahrén (n 2) 1.

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Today, it appears taken for granted that Indigenous peoples are natural subjects who use and make international law.232 Scholars, international actors and NGOs can then form autochthonous communities according to the international legal discourse and conceal their own productive and formative identifications by upholding Indigenous peoples as natural subjects. That does not mean any individual is solely responsible for that discourse. To the extent that it appears as though Indigenous peoples are natural subjects who care about democracy, want and defend property rights, and advocate for sustainable development, those are effects of international legal discourse. Many self-identifying Indigenous peoples may be ardent defenders of democracy, property rights and sustainable development, who are fully aware of international law’s limitations.233 The point is that those Indigenous peoples who support democratic practices, property rights and sustainable development are more readily identifiable as Indigenous peoples for the purposes of claiming FPIC or other human rights. And the ability to identify claimants as Indigenous peoples is an effect of legal discourse, which produces and then conceals its role (and the roles of other actors) in constructing how that subject is identified and expressed.234 Within the discourse, the task for many is then to support Indigenous peoples’ rights claims, which focuses attention onto legal models, while further eclipsing the formative and constitutive role of the legal discourse to reproduce legal discipline for its subjects. Those projects have some undesirable effects, which is the focus of Chapter 3.

232 See Lillian Aponte Miranda, ‘Indigenous Peoples as International Lawmakers’ (2010) 32(1) University of Pennsylvania Journal of International Law 203–63. 233 Davis (n 198) 37. 234 Butler (n 11) 2.

Chapter 3

Defining performances The problems and promise of FPIC

Introduction This chapter examines how scholars who adopt and deploy legal models frame the debates about the status of UNDRIP and the definition of FPIC.1 Kathy Bowrey charges that ‘rarely are lawyers and technicians forced to confront the confinement of their disciplinary framing’.2 This chapter confronts and articulates that disciplinary framing by examining how legal scholars who discuss Indigenous peoples’ rights use and thereby reproduce legal models, its mechanisms and hierarchies. Scholars adopt various positions towards FPIC, but (nearly) all who advocate for it deploy some version of a legal model so that Indigenous peoples can claim it as a negative and oppressive power against others – at least in some situations.3 For those who seek to uphold FPIC in this way, the major hurdles to implementing or ‘operationalizing’ FPIC are either FPIC’s status in soft law instruments or its definitional vagueness.4 This chapter first considers UNDRIP through a legal model in order to investigate how issues about self-determination and FPIC arise and how scholars approach those issues and try to resolve them. It then investigates Cathal Doyle’s views on FPIC,5 which is a demonstration of how to deploy a legal model to 1 United Nations Declaration on the Rights of Indigenous Peoples, UN GAOR, 61st sess, 107th mtg, UN Doc A/61/L.67 (13 September 2007) (UNDRIP). 2 Kathy Bowrey, ‘Law and Its Confinement: Reflections on Trevor Nickolls’ Brush with the Lore’ (2011) 20 Griffith Law Review 729, 730. 3 Cf UN Office of the High Commissioner, ‘UN Human Rights Chief Urges Papua New Guinea to Combat Corruption and Strengthen Rule of Law’ (Press Release, 9 February 2018) ; Martha Macintyre, ‘Informed Consent and Mining Projects: A View for Papua New Guinea’ (2007) 80(1) Pacific Affairs 49. 4 See, eg, Federico Lenzerini, ‘Implementation of the UNDRIP around the world’ (2019) 23(1–2) International Journal of Human Rights 51; David Szablowski, ‘Operationalizing Free, Prior, and Informed Consent in the Extractive Industry Sector? Examining the Challenges of a Negotiated Model of Justice’ (2010) 30 Canadian Journal of Development Studies 111, 127. 5 Cathal Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (Routledge, 2015).

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resolve FPIC’s issues that could be very attractive to autochthonous communities. The third section evaluates the potential consequences of projects such as Doyle’s from a legal performative dimension. Treating Indigenous peoples as natural subjects who have natural rights contributes to international legal discourse by reinvesting in legal models and hierarchies in ways that may perpetuate and reproduce aspects and effects of international legal discourse that he targets as undesirable.

UNDRIP’s weaknesses This section examines UNDRIP. As the most salient instrument for Indigenous peoples’ rights, it warrants detailed analysis. This analysis also doubles as a way of articulating what legal scholars view as FPIC’s issues. If one adopts a legal model, two problems with UNDRIP and hence with FPIC are presented. The first issue is that UNDRIP does not have legally binding status, even if it recognized rights contained in other binding instruments.6 The second issue is that the definition of FPIC, especially as related to selfdetermination, is ambiguous. Scholars can identify these problems because they deploy legal models of power that uphold and occlude certain forms of power. They then attempt to solve these problems through legal models so that Indigenous peoples may have control at least over some issues. We now consider each in turn. UNDRIP’s status Legal scholars tend to accept that UNDRIP is the most salient international instrument that recognizes FPIC and that is an aspirational, legally non-binding instrument. As Mauro Barelli writes, UNDRIP ‘does not produce legally binding obligations …. [I]t represents the culmination of a complex legal and political process that led to the affirmation of a number of key rights and principles related to indigenous peoples’.7 Megan Davis explains that the prevailing view is that UNDRIP: is non-binding (or ‘soft’) international law. The text of the Declaration creates no new rights in international law as many of its articles are contained in other international agreements, nor does it create any binding legal obligations in domestic legal systems. It is aspirational and provides a framework that states

6 As discussed in Chapter 2, the CBD and ILO Convention No 169 are binding international law that have FPIC provisions. Chapter 4 examines a context in the Philippines, which adopted FPIC into national legislation in 1997. 7 Mauro Barelli, ‘Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples’ (2012) 16(1) International Journal of Human Rights 1, 9, 16.

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can adopt to underpin their relationship with Indigenous peoples and may guide them in the development of domestic law and policy.8 The argument that UNDRIP recognizes rights already and widely approved in international law for the benefit of Indigenous peoples positions the rights as static objects that states have committed to upholding and must now be upheld for Indigenous peoples.9 Stephen Allen views that argument as a political way of downplaying Indigenous peoples’ rights as ‘special’ or extra-legal entitlements.10 A different view is that Indigenous rights are sui generis,11 a suggestion that could further naturalize Indigenous peoples’ human rights. It is also dangerous because it could lead autochthonous communities to believe that Indigenous rights or human rights are empty vehicles that they can fill with their laws and way of life,12 rather than requiring them to conform to a subject-status they must recite to be identifiable human rights bearers. Even if sui generis origins were an inspiration for Indigenous peoples’ human rights, international legal discourse produced Indigenous peoples and human rights. As a conceptual middle-ground between pre-established and sui generis rights, Kristine Carpenter and Angela Riley see UNDRIP as ‘jurisgenerative’, a concept developed by Robert Cover to reflect how common, ritualistic imaginaries that guide actions create and transform law.13 They assert that ‘[i]nternational human rights law now serves as a basis for 8 Megan Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law 439, 465. 9 S James Anaya, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc A/HRC/9/9 (11 August 2008) 24 [86]; see also Duane Champagne, ‘UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples): Human, Civil, and Indigenous Rights’ (2013) 28(1) Wícˇazo Ša Review 9, 15–16. 10 Stephen Allen, ‘The UN Declaration on the Rights of Indigenous Peoples and the Limits of the International Legal Project’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 235–9. 11 Alexandra Xanthaki, Indigenous Rights and United Nations Standards (Cambridge University Press, 2007) 4; Mauro Barelli, ‘The Interplay between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime’ (2010) 32 Human Rights Quarterly 951, 953; Megan Davis, ‘To Bind or Not to Bind’ (2012) 19 Australian International Law Journal 17, 26–8. 12 For analysis of rights as empty vessels, Ben Golder, ‘Thinking Human Rights Through Metaphor’ (2019) Law & Literature 1, 18–23. 13 Kristen A Carpenter and Angela R Riley, ‘Indigenous Peoples and the Jurisgenerative Moment in Human Rights’ (2014) 102 California Law Review 173, 178 n 24, citing Robert Cover, ‘The Supreme Court 1982 Term – Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4, 15–16. They see Indigenous peoples’ mobilization of human rights alongside states as jurisgenerative, rather than seeing the creation of Indigenous peoples as jurisgenerative. Application of Cover’s theory to Indigenous peoples’ rights would lead to ‘imperial virtues and imperial mode of world maintenance’.

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indigenous peoples’ claims against states and even influenced indigenous groups’ internal processes of revitalization’.14 Where Carpenter and Riley see Indigenous rights as ‘against’ states, Davis and others acknowledge that Indigenous rights are claimed vis-à-vis states ‘to underpin their relationship with Indigenous peoples’.15 Even if Indigenous peoples claim rights ‘against’ states, UNDRIP’s non-binding status remains problematic because, even if states generally recognize those rights, what obliges a state to uphold them specifically for Indigenous peoples as Indigenous peoples demand, dictate or desire is not settled.16 Perhaps, as Kathy Bowrey argues, UNDRIP’s softness maintains ‘the state monopoly on violence by confining the interpretation of the UNDRIP within the bars of the state. Its productive value is constrained by the interpretative context that privileges the state’.17 Scholars and advocates who argue that states are required to recognize Indigenous rights as legal rights uphold and deploy legal models, and circumvent issues about UNDRIP’s status by collapsing or subsuming politics or morality to law.18 For instance, Stavenhagen claims that the strongest argument is ‘that as a universal human rights instrument it morally and politically binds all of the UN member states to comply fully with its contents’.19 There, Stavenhagen invokes morality and politics as binding state action. Elsewhere, he clarifies that morality and politics are at the service of law. He writes, ‘there is an opportunity, indeed the need, to begin working on a future convention on the rights of indigenous peoples’, and that ‘[j]ust as the Universal Declaration of Human Rights has become customary international law, so can [UNDRIP] become customary international law’.20 Similarly, Stephen Allen notes that ‘[t]he Declaration should 14 Carpenter and Riley (n 13) 175. 15 Davis (n 8) 465. 16 Kirsty Gover, ‘Book Review: The Elusive Promise of Indigenous Development: Rights, Culture, Strategy’ (2011) 12 Melbourne Journal of International Law 419. 17 Bowrey (n 2) 744; cf Davis (n 11) 37; also Joshua Castellino, ‘Indigenous Rights and the Right to Develop’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 371; Clive Baldwin and Cynthia Morel, ‘Using the United Nations Declaration on the Rights of Indigenous Peoples in Litigation’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 122–4. 18 See S James Anaya, Indigenous Peoples in International Law (Oxford University Press, 2nd ed, 2004) 69 (collapses law and morality). 19 Rodolfo Stavenhagen, ‘Making the Declaration on the Rights of Indigenous Peoples Work’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 151; Emmanuel Voyiakis, ‘Voting in the General Assembly as Evidence of Customary International Law?’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 217–22. 20 Stavenhagen (n 19) 151–52; Julian Burger, ‘After the Declaration: next steps for the protection of indigenous peoples’ rights’ (2019) 23(1–2) International Journal of Human Rights 22–30.

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be viewed as a highly persuasive tool to be utilised in the political contests that determine municipal laws and policies within the arena of the state’.21 As different as their projects are, Stavenhagen and Allen both see UNDRIP as an instrument with less than binding force and subsume politics or morality to the law so that state recognition of Indigenous rights does the work of making them binding. Both Allen and Stavenhagen uphold the preeminence of law by dividing law and other forms of social regulation or powers. Scholars uphold and reproduce legal models with another style of argument: some view the dispersion and uptake of Indigenous peoples’ rights in other instruments or bodies as an ‘evolution’ of Indigenous peoples’ participation, leading to its eventual legal recognition.22 They retrospectively read all instruments and bodies that have made positive citations to Indigenous peoples’ participatory rights – including ILO’s Convention No 169, pronouncements by CERD, other UN bodies, the Inter-American Court on Human Rights, and the various voluntary initiatives – as indicative of a progressive evolution towards the crystallization of Indigenous peoples’ rights as customary international law.23 It is becoming common to see opinions that the widespread acceptance of UNDRIP reflects some degree of opinio juris, which is a gesture toward customary international law.24 Perhaps then, the multiple articulations of Indigenous peoples’ rights in various forms is not fragmentary but, contrarily, generates international legal legitimacy.25

21 Allen (n 10) 225. 22 Anaya (n 18) 6, 291; S J Rombouts, ‘The Evolution of Indigenous Peoples’ Consultation Rights under the ILO and UN Regimes’ (2017) 53 Stanford Journal of International Law 169; Odette Mazel, ‘The Evolution of Rights: Indigenous Peoples and International Law’ (2009) 13(1) Australian Indigenous Law Review 140, 143; Erica-Irene A Daes, ‘The Contribution of the Working Group on Indigenous Populations to the Genesis and Evolution of the UN Declaration on the Rights of Indigenous Peoples’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 48; Gaetano Pentassuglia, ‘Evolving Protection of Minority Groups: Global Challenges and the Role of International Jurisprudence’ (2009) 11 International Community Law Review 185; Tara Ward, ‘The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participation Rights within International Law’ (2011) 10(2) Northwestern Journal of International Human Rights 54, 62–6; cf Kathryn McNeilly, ‘Are Rights Out of Time? International Human Rights Law, Temporality and Radical Social Change’ (2018) Social & Legal Studies 1. 23 See n 22; Stavenhagen (n 19) 151–2. 24 Claire Charters, ‘Indigenous Peoples and International Law and Policy’ (2007) 18 Public Law Review 22, 34; Paul Patton, ‘Philosophical justification for Indigenous rights’ in Corrine Lennox and Damien Short (eds), Handbook of Indigenous Peoples’ Rights (Routledge, 2016) 13. 25 Claire Charters, ‘Multi-Sourced Equivalent Norms and the Legitimacy of Indigenous Peoples’ Rights under International Law’ in Tomer Broude and Yuval Shaney (eds), Multi-Sourced Equivalent Norms in International Law (Hart, 2011) 298–9, 303–19;

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There are also institutions that see making UNDRIP into law as their mission. For instance, in 2009, the PFII stated that it was attempting to make the rights that UNDRIP recognizes a ‘living law’.26 The PFII stated that even if UNDRIP is not a treaty, it ‘does not mean that the Declaration is without any legally binding effect’.27 For some PFII members, prolonged negotiation and drafting, combined with the overwhelming majority of votes of the General Assembly imbues the document with ‘a stronger legal character than most “soft law” documents’.28 That could mean, as Erica-Irene Daes suggests, that UNDRIP should be universally understood as setting obligations that cannot be derogated from by contrary municipal legislation.29 Undoubtedly, international and domestic citations to UNDRIP lend credibility to views that it has some legal authority.30 And it could be that UNDRIP is a provisional step toward a Convention that is binding law.31 Arguably, states that resist adopting national legislation for the participation of Indigenous peoples are unlikely to adopt a Convention – but, then again, state attitudes could change.32 Many scholars see UNDRIP as having moral or political authority in ways that underpin, shape or restrict state law, even though it is not legally binding. And to maintain these approaches, scholars subsume morality and politics to law so that UNDRIP’s rights are negative and oppressive on state actors in ways that politics or morality do not necessarily ‘bind’ or ‘determine’. And to see UNDRIP’s softness as a problem requires scholars to have already adopted some version of a legal model that pre-constructs divisions between law and morality, or law and politics. Scholars who adopt legal models and see UNDRIP’s status as problematic are not wrong to do so: they reflect an ordering of contemporary social disciplines. But in doing so, they reconstruct and remake those disciplines by arguing that UNDRIP or its rights are legally binding, or should be law, despite existing as mere morality or politics.

26

27 28 29 30 31

32

S James Anaya, ‘The Emergence of Customary International Law Concerning the Rights of Indigenous Peoples’ (2005) 12 Law and Anthropology 127, 127–9. Carsten Smith, ‘Comments on Article 42 as Legal Basis for a Declaration “Treaty Body”’ (Presentation at the International Expert Group Meeting on the Role of the United Nations Permanent Forum on Indigenous Issues in the Implementation of Article 42 of the United Nations Declaration on the Rights of Indigenous Peoples, 14–16 January 2009) UN Doc PFII/2009/EGMI/5, 2. Ibid, Smith, [3]. Ibid, Smith, [3]. Daes (n 22) 37; cf Champagne (n 9) 16. Mattias Ahrén, Indigenous Peoples’ Status in the International Legal System (Oxford University Press, 2016) 105. José R. Martínez Cobo, Study of the Problem of Discrimination Against Indigenous Populations Vol 5: Conclusions, Proposals and Recommendations (United Nations, 1987), originally distributed as E/CN.4/Sub.2/1983/21/Add.8 [312]; Stavenhagen (n 19) 151; Burger (n 20). George K Foster, ‘Foreign Investment and Indigenous Peoples: Options for Promoting Equilibrium between Economic Development and Indigenous Rights’ (2011–12) Michigan Journal of International Law 627, 673.

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Most scholars are keenly aware that Indigenous rights, as recognized in UNDRIP and elsewhere, should underpin relations between Indigenous peoples and states.33 As such, many attempt to clarify how states should uphold the rights that UNDRIP recognizes. The problem they face is if these rights are ‘against’ states, it is not clear why state actors would agree to recognize them as obligatory. UNDRIP’s definitions of self-determination and FPIC The general notion is that if UNDRIP recognizes rights that are binding international law, then states must recognize Indigenous peoples’ rights, such as FPIC. And some scholars have sought to delineate how FPIC should be implemented or operationalized as if it were binding.34 The language of ‘operating’ or ‘operationalizing’ FPIC has become commonplace in the literature, but it is also a term of art.35 The concern with operationalization is that if states or other actors must obtain FPIC, then it is important to understand which processes are required as well as when and where that must happen so that FPIC can be legitimately obtained. Under such projects, how UNDRIP defines FPIC and self-determination requires scrutiny. But states such as Australia, New Zealand, Canada and the United States opposed UNDRIP primarily over the right to self-determination and requirements of FPIC.36 Those states maintained, perhaps wrongly, that Indigenous peoples’ self-determination creates preferential rights and challenges state sovereignty.37 And if FPIC is a mechanism for preserving self-determination, then state recognition of those rights is contentious.38 This entire trajectory of 33 See, eg, Davis (n 8) 27. 34 There is recent scholarship on how FPIC has been claimed. See Marilyn Machado et al, ‘Weaving Hope in Ancestral Black Territories in Colombia: The Reach and Limitations of Free, Prior and Informed Consultation and Consent’ (2017) 38(5) Third World Quarterly 1075; Almut Schilling-Vacaflor, ‘Who Controls the Territory and the Resources? Free, Prior and Informed Consent (FPIC) as a Contested Human Rights Practice in Bolivia’ (2017) 38(5) Third World Quarterly 1058–74. Previous articles compare state consultation regimes to FPIC. See, eg, Nicholas A Fromherz, ‘From Consultation to Consent: Community Approval as a Prerequisite to Environmentally Significant Projects’ (2013) 116 West Virginia Law Review 110; Derek Inman, Stefaan Smis and Dorothee Cambou, ‘We Will Remain Idle No More: The Shortcomings of Canada’s Duty to Consult Indigenous Peoples’ (2013) 5 Goettingen Journal of International Law 251; Lisa J Laplante and Suzanne A Spears, ‘Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive Sector’ (2008) 11 Yale Human Rights and Development Law Journal 69. 35 See n 4; see also ibid, Laplante and Spears, 71, 87–97. 36 Meeting Record, UN GAOR, 61st sess, 107th plen mtg, UN Doc A/61/PV.107 (13 September 2007) 11–15. 37 Catherine J Iorns, ‘Indigenous Peoples and Self Determination: Challenging State Sovereignty’ (1992) 24 Case Western Reserve Journal of International Law 199, 281– 5, 290. 38 Aileen Moreton-Robinson, ‘Virtuous Racial States: The Possessive Logic of Patriarchal White Sovereignty and the United Nations Declaration on the Rights of Indigenous peoples’ (2011) 20(3) Griffith Law Review 641–58.

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thought assumes that rights, and particularly Indigenous peoples’ rights, are ‘against’ or ‘oppose’ state sovereignty. Comparing the self-determination provisions in the 1993 Draft Declaration with those in UNDRIP,39 and, second, examining UNDRIP’s FPIC reveals, however, that these rights are not necessarily against states or their processes. Self-determination in UNDRIP As Engle has argued, the 1993 Draft Declaration article 3 recognized selfdetermination as continuing the processes of formal decolonization, rather than a liberalized, democratic human rights understanding.40 After 1993, and due to the ‘no-change’ position, negotiations in the WGDD regarding UNDRIP revealed that amending article 3 would immediately lose support from Indigenous delegates.41 So instead of amending article 3, negotiators added articles 4 and 46.42 Article 4 declares that the exercise of Indigenous peoples’ selfdetermination is a ‘right to autonomy or self-government in matters relating to their internal or local affairs, as well as ways and means for financing their autonomous functions’.43 It restricts self-determination to internal self-governing and funding as they see fit. Article 46 contains a territorial integrity clause, which has traditionally legitimated internal colonialism by preventing secessionist movements or claims to ‘external’ sovereignty unless states are rightsdenying areas.44 Including a territorial integrity clause is consistent with international law’s trajectory of legitimating internal colonialism. 39 Jonathan A Franklin, ‘Introduction’ (2013) 22(2) Pacific Rim Law and Policy Journal 239, 240; cf S James Anaya and Siegried Wiessner, ‘The UN Declaration on the Rights of indigenous Peoples: Towards Re-Empowerment’, Jurist Legal News and Research (3 October 2007) . 40 Karen Engle, ‘On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights’ (2011) 22(1) European Journal of International Law 141, 152–3. 41 Luis Enrique Chávez, ‘The Declaration on the Rights of Indigenous Peoples Breaking the Impasse’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 97–8. 42 Ibid, Chávez, 102; Siegfried Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’ (2008) 41 Vanderbilt Journal of Transnational Law 1141, 1160; Asbjørn Eide, ‘The Indigenous Peoples, the Working Group on Indigenous Populations and the Adoption of the UN Declaration on the Rights of Indigenous Peoples’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 41; Davis (n 8) 20–1. 43 UNDRIP (n 1) art 4. 44 UNDRIP (n 1) art 46(1); Dorothée Cambou, ‘The UNDRIP and the legal significance of the rights of indigenous peoples to self-determination: a human rights approach with a multidimensional perspective’ (2019) 23(1–2) International Journal

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These additions to UNDRIP reframe self-determination as a democratizing concept, a ‘continuing right of all peoples’, who may self-govern, internally develop and decolonize themselves. It could mean that self-determination ‘is met whenever the government is elected in free and fair elections by universal suffrage and in a secret ballot’.45 Whether or not internal self-determination is so minimally understood and UNDRIP contributes to the ‘development of the internal dimension to self-determination in international law’,46 it is more acceptable to states than versions tied to secession, external self-determination or decolonization processes.47 Given the presence of article 46(1), states for which UNDRIP is significant will continue to respect the territorial integrity and unity vis-à-vis other states, and Indigenous peoples will largely remain subject to the existing legal order.48 Self-determination may be further limited by articles 46(2) and 46(3), which require all rights recognized in UNDRIP to be read consistently with democracy.49 Where UNDRIP article 3 preserves the terminology proposed by the 1993 Draft Declaration, additions to UNDRIP unquestionably recast article 3, and the entire instrument, as furthering democratic practices within states. Consequently, Ward Churchill criticized UNDRIP for ‘turn[ing] the rhetoric of self-determination to the opposite purpose, that of consecrating in law the very structure of

45

46 47

48 49

of Human Rights 34–50; Chávez (n 41) 102; Eide (n 42) 42; Steven T Newcomb, ‘The UN Declaration on the Rights of Indigenous Peoples and the Paradigm of Domination’ (2011) 20 Griffith Law Review 578, 600; Moreton-Robinson (n 38) 644; Karen Knop, Diversity and Self-Determination in International Law (Cambridge University Press, 2002) 76. Helen Quane, ‘The UN Declaration on the Rights of Indigenous Peoples: New Directions for Self-Determination and Participatory Rights?’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 267. Ibid, Quane, 267. Thomas M Antkowiak, ‘Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113, 127; Engle (n 40) 161; Hans Lindahl, ‘Recognition as Domination: Constitutionalism, Reciprocity and the Problem of Singularity’ in Neil Walker, Stephen Tierney and Jo Shaw (eds), Europe’s Constitutional Mosaic (Hart, 2011) 224–5. Champagne (n 9) 16; cf Daes (n 22) 38–9. UNDRIP (n 1) art 46(2); Will Kymlicka, ‘Theorizing Indigenous Rights’ (1999) 49 University of Toronto Law Journal 281, 291–2 (specifically addressing Anaya’s avoidance of this problem); Catherine J Iorns-Magallanes, ‘Indigenous Rights and Democratic Rights in International Law: An “Uncomfortable Fit”?’ (2010) 15 UCLA Journal of International Law and Foreign Affairs 118; Mazel (n 22) 14; see also Grizelda Mayo-Anda, Loreto L Cagatulla and Antonio G M La Vina, ‘Is the Concept of Free, Prior and Informed Consent Effective as a Legal and Governance Tool to Ensure Equity among Indigenous People?’ (Paper for the Conference of the International Association for the Study of Common Property, Bali, Digital Library of the Commons, Indiana University, 2006) 21; Val Napoleon, ‘Aboriginal Discourse: Gender, Identity and Community’ in Benjamin J Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law (Hart, 2009) 233.

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internal colonial domination and exploitation at the hands of state entities from which Indigenous nations have been struggling to free themselves’.50 Despite these limitations and Churchill’s criticism, many view UNDRIP’s recognition of Indigenous participatory rights – particularly FPIC – as related to, or as a mechanism for, self-determination.51 We now consider FPIC in UNDRIP. FPIC in UNDRIP Within the WGDD, states expressed concerns over the FPIC provisions. Luis Chávez explains that: the state could not renounce either its powers or its responsibility when taking decisions on issues of public order. And, in principle, the declaration could not recognise indigenous peoples preferential or greater rights than those granted to other members of society, as would be the case with a right of veto.52 Consequently, UNDRIP recognizes FPIC but the intention, according to Chávez, was not to recognize a veto. This raises an issue: if FPIC is a right, and ‘[i]t is well known that the function of rights is to trump the political, to defy utilitarian and realist calculations about the good’,53 then state recognition of Indigenous peoples’ FPIC may trump state-sanctioned acts. This view assumes a legal model to construe consent as a negative and oppressive power, so that providing or withholding consent either allows or forbids. Under such a view, where Indigenous peoples withhold FPIC, it would trump and act somewhat like a veto. If consent does not function in that way, then state-backed development projects that have not obtained FPIC would either conflict with intuitive notions of rights to consent or undermine Indigenous peoples’ self-determination. This has led to a ‘veto debate’, which tries to resolve what FPIC is and how it should be operationalized to uphold Indigenous peoples’ self-determination while downplaying any inconsistencies with states’ interests.54 50 Ward Churchill, ‘A Travesty of a Mockery of a Sham: Colonialism as “Self-Determination” in the UN Declaration on the Rights of Indigenous Peoples’ (2011) 20(3) Griffith Law Review 526, 527–8 n 6. 51 See, eg, Human Rights Council, Final Report of the Study on Indigenous Peoples and the Right to Participate in Decision-Making: Report of the Expert Mechanism on the Right of Indigenous Peoples, UN DOC A/HRC/18/42 [20] (17 August 2011); Quane (n 45) 286. 52 Chávez (n 41) 103. 53 Allen (n 10) 235 citing Martti Koskenniemi, ‘The Effects of Rights on Political Culture’ in Philip Alston (ed), The EU and Human Rights (Oxford University Press, 1999) 99, 101, referring to Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977). 54 See, eg, Cathal Doyle and Jérémie Gilbert, ‘A New Dawn over the Land: Shedding Light on Collective Ownership and Consent’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 289, 316–20.

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UNDRIP’s FPIC provisions do not address the existence of a veto. If one were to parse UNDRIP’s FPIC articles as law, they would fall into, roughly, two categories: those with obligatory language, and those with permissive language. Articles 10, 11(2), 29(2) and 28(1) use the obligatory legal word ‘shall’, as in ‘Indigenous peoples shall not be forcibly removed from their lands’ without their FPIC,55 or states ‘shall provide redress’ for ‘property taken’ without their FPIC.56 More permissive language is in articles 19 and 32(2). They declare that ‘[s]tates shall consult and cooperate in good faith … in order to obtain their [FPIC]’. Each article employs an obligatory legal term, ‘shall’, but as an obligation to consult and cooperate in order to obtain FPIC, rather than an obligation to obtain FPIC. This permissive language might be problematic. If article 32(2) was law, it could appear as though states must consult, cooperate and engage in good faith negotiations regarding development impacts, but not necessarily recognize that Indigenous peoples have withheld their consent unless the state acts also contravene an obligatory FPIC article – say, by forcibly relocating or taking property without Indigenous peoples’ FPIC or redress.57 That could negate Indigenous peoples’ self-determination to control and develop their lands as they see fit. On the other hand, if FPIC allows Indigenous peoples to withhold consent, and saying ‘no’ is authoritative and obliging, it would trump or veto state acts, end the controversy and provide Indigenous peoples with control – which state actors could interpret as undercutting state sovereignty.58 If one deploys legal models so that having a right enables Indigenous peoples to withhold consent, and that is negative and oppressive, then it is difficult to extricate oneself from the veto debate. Despite the difficulty in moving away from the veto, many scholars attempt to do so while maintaining the notion that a right to consent or FPIC allows or forbids. Some maintain that article 32(2), even though couched in permissive terminology, requires states to obtain Indigenous peoples’ FPIC, which is either implicitly or explicitly a veto.59 Kinnison views the FPIC provisions as falling on a ‘spectrum’, 55 UNDRIP (n 1) arts 10, 11(2), 29(2), 28(1). 56 UNDRIP (n 1) art 11(2). It is possible that, if breached, it gives rise to a claim for restitution or compensation. 57 Chávez (n 41) 103–4. 58 Meeting Record (n 36) 11–15. 59 Emma Barry-Phelby, ‘Examining the Priorities of the Canadian Chairmanship of the Arctic Council: Current Obstacles in International Law, Policy and Governance’ (2014) 25(2) Colorado Natural Resources, Energy and Environmental Law Review 3; Iorns-Magallanes (n 49) 133, 140, 182; Jo M Pasqualucci, ‘International Indigenous Land Rights: A Critique of the Inter-American Jurisprudence of the Inter-American Court of Human Rights in Light of the United Nations Declaration on the Right of Indigenous Peoples’ (2009) 27 Wisconsin International Law Journal 51, 87–8; Shalanda H Baker, ‘Why the IFC’s Free, Prior and Informed Consent Policy Does Not Matter (Yet) to Indigenous Communities Affected by Development Projects’ (2012) 30 Wisconsin International Law Journal 668, 687–8; Carol Y Verbeek, ‘Free, Prior, Informed Consent: The Key to Self-Determination: An Analysis of the Kichwa People of Sarayaku v Ecuador’ (2012–13) 37 American Indian Law Review 263, 265, 280; Robert James Hales et al, ‘Indigenous Free Prior Informed Consent: A Case for Self

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with FPIC required in some instances and consultation in others.60 Other scholars are circumspect in their analysis,61 despite holding out some hope.62 James Anaya’s approach to FPIC is worth investigating for the way it appears to eschew vetoes or trumps.63 As the UN Special Rapporteur on the Rights of Indigenous Peoples (2008–14), Anaya wrote that FPIC ‘does not provide “veto power” but rather establishes the need to frame consultation procedures in order to make every effort to build consensus on the part of all concerned’.64 More recently, Anaya and Sergio Puig explain that other scholars adopt a ‘consent or veto power approach [which] is a direct challenge to the classical liberal framework, with a “counter-majoritarian” thesis’.65 Asserting that FPIC-as-veto challenges the classical liberal model enables Anaya and Puig to define FPIC as an aspect of a duty to consult, so that Indigenous rights fit neatly within liberal democratic practices. Potentially, this approach makes FPIC more attractive to state actors. Hence, they read FPIC alongside ‘the emancipatory power of human rights law’ as a ‘mitigating force against the exercise of state sovereignty’.66 Although they

60

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62 63 64

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Determination in World Heritage Nomination Processes’ (2013) 19(3) International Journal of Heritage Studies 270, 280–1. Akilah Jenga Kinnison, ‘Indigenous Consent: Rethinking U.S. Consultation Policies in Light of the U.N. Declaration on the Rights of Indigenous Peoples’ (2011) 53 Arizona Law Review 1301, 1304, 1326–32. Gaetano Pentassuglia, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22(1) European Journal of International Law 165; Engle (n 40); Megan Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law 439, 465; The Indian Law Resource Center, ‘Indigenous Peoples’ Right of Free Prior Informed Consent with Respect to Indigenous Lands, Territories and Resources’ (28 June 2010); Enzamaria Tramontana, ‘The Contribution of the Inter-American Human Rights Bodies to Evolving International Law on Indigenous Rights over Land and Natural Resources’ (2010) 17 International Journal on Minority and Group Rights 241, 246; Alexandra Xanthaki, ‘Rights of Indigenous Peoples under the Light of Energy Exploitation’ (2010) 56 Germany Yearbook of International Law 241, 259; Mauro Barelli, ‘Shaping Indigenous Self-Determination: Promising or Unsatisfactory Solutions’ (2011) 13 International Community Law Review 413, 432–3; Barelli, (n 7) 11–12. Ward (n 22) 84. Doyle’s view discussed below is quite similar to that of Anaya. S James Anaya, Report of the Special Rapporteur on the situation of human right and fundamental freedoms of indigenous people, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development UN Doc A/HRC/12/34 (15 July 2009) [48]. S James Anaya and Sergio Puig, ‘Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples’ (2017) 67(4) University of Toronto Law Journal 435, 449, citing Alexander M Bickel, The Least Dangerous Branch (Yale University Press, 2nd ed, 1986) ch 1 (emphasis in original). Anaya and Puig (n 65) 437, 454. They borrow from Patrick Macklem’s view on human rights, but combine it with the ‘emancipatory powers’ of human rights. Patrick Macklem, The Sovereignty of Human Rights (Oxford University Press, 2015) 48. Yet Macklem uses the word ‘emancipate’ only once, and that is to articulate the version of human rights that he targets as misconstruing human rights: at 53.

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appear to eschew vetoes or trumps, they deploy a legal model so that FPIC is a negative and oppressive right and those who seek Indigenous peoples’ FPIC must obey. They write: an important role of the international law rights of indigenous peoples is to function as a counterweight to the exercise of sovereignty that is concentrated in the state. This counterweight guards against state decisions that might be contrary to indigenous peoples’ interests or wellbeing, without ultimately overriding the sovereignty of states that is a cornerstone of the international legal system. Hence, inasmuch as the duty to consult is a corollary of international law’s human rights system, it cannot be a tool to completely abolish the sovereign power of states, nor can it be detached from the counterweight function. A practical import of this idea is that the duty entails more than a mere right to be informed and heard, but not an absolute right of veto.67 By framing Indigenous peoples’ rights as a counterweight to state sovereignty, Indigenous rights ‘mitigate’ but do not ‘override’ state sovereignty. A consensusbuilding process, as they argue, would not grant an ‘absolute right’. Instead, they articulate FPIC as part of a state’s ‘duty to consult’, which they claim requires them to ‘reject a right to consent or withhold consent as the key value’.68 While it might seem that they have ejected consent and FPIC from their analysis in favor of articulating a state’s minimal duty to consult with Indigenous peoples, as they explain the details, it becomes clear that they maintain consent as the highest general safeguard that protects ‘substantive rights’: In keeping with the safeguard role of the duty to consult, as a general rule, consent by indigenous peoples is required whenever their substantive rights over land and resources, their right to culture and religion, their right to set their own development priorities, or other internationally recognized rights will be materially and substantially affected by the measure promoted by the state.69 There might be situations where the state can determine that consent is not necessary, but ‘[f]or such non-consensual limitation to be valid, the right involved must be one subject to limitation by the state’.70 A limitation to consent is valid if limited by state law and a ‘valid public purpose or objective’, which excludes ‘mere commercial purposes, private gains or revenue-raising objectives’.71 67 68 69 70 71

Anaya Anaya Anaya Anaya Anaya

and and and and and

Puig Puig Puig Puig Puig

(n (n (n (n (n

65) 65) 65) 65) 65)

453. 454–55. 461. 461. 461.

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Anaya and Puig’s approach could appear as a practical way to operate a duty to consult and FPIC.72 But it assumes that there are clear and legally operable distinctions between ‘valid public purpose[s]’ and ‘commercial purposes’. Additionally, Anaya and Puig have not walked away from trumping. In their view, if states are willing or required to build consensus because their acts materially interfere with Indigenous peoples’ substantive rights, and Indigenous peoples say ‘no’ or refuse to negotiate, it would trump or effectively end the controversy. Where Indigenous peoples say ‘no’ or refuse to negotiate, a state could continue with the project but would have to stop as limited by its own laws or the proposed acts fall short of ‘valid public purpose or objective’. To be sure, Anaya and Puig acknowledge that ‘[t]here are clear tensions between indigenous peoples, the state, and business enterprises around the implementation of particular development projects that are of concern to each’.73 That is why they believe a human rights approach ‘properly grounds the duty to consult in contemporary international law, and in doing so [why they] have attempted to provide conceptual clarification to better guide the duty’s process of implementation’.74 This consensus model depends on FPIC or consent as an overarching safeguard that enlivens all other material or substantial rights by trumping or ending the controversy so that Indigenous peoples have control. Anaya and Puig present a complex and nuanced case for a nonveto approach, and it is not a ‘veto’ – even though it trumps and ends controversy – because apparently states have agreed to or are bound to uphold a duty to consult as stipulated by the hierarchy of international law. Given the troubles that arise in defining FPIC, Robert Coulter argues that FPIC is too vague or opaque to be legally binding, a ‘formula for getting around and overcoming the rights of indigenous peoples’.75 Despite Coulter’s view, some scholars continue to believe that the primary hurdle to its operationalization is to clarify its definitional ambiguities, which rights are a risk, or its positive and negative obligations and duties. The following section considers the most robust articulation of FPIC so far.

FPIC’s promise: a legal model of FPIC This section presents and unpacks Cathal Doyle’s view of FPIC, which he articulated in Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent.76 First, consider, how Doyle

72 I believe that they are reflecting the safeguards and approach to FPIC that the InterAmerican Court articulated. See, Case of the Saramaka People v Suriname (Preliminary Objections, Merits, Reparations, and Costs) (Inter-American Court of Human Rights, Ser C, No 172, 28 November 2007) [120]–[140]. 73 Anaya and Puig (n 65) 464. 74 Anaya and Puig (n 65) 464. 75 Robert Coulter, ‘Free, Prior, and Informed Consent: Not the Right It Is Made Out to Be’, Indian Law Resource Center (31 October 2013) 1; also Macintyre (n 3) 49, 51–2. 76 Doyle (n 5).

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resolves FPIC’s status, and, second, how that leads to proper recognition and definition of FPIC. Resolving FPIC’s status For Doyle, there are two reasons why FPIC’s status as recognized in UNDRIP is not problematic. First, Indigenous peoples’ FPIC is tied to their self-determination.77 Second, the momentum of FPIC suggests that it has reached a ‘tipping point’,78 a constructivist notion according to which the international legal community will recognize or has already recognized it as a requirement. The foundations of Indigenous peoples’ FPIC Doyle states that ‘[t]he colonial encounter with indigenous peoples was central to the formation of international law’.79 Because of that, he can ‘demonstrate that the requirement for Indigenous peoples’ FPIC has a historically distinct, international law-grounded genesis which differs from, and precedes, the more recent individual or State-centred consent requirements under contemporary human rights and environmental laws’.80 For Doyle, the Spanish legal-theological scholars provide the foundation for the claim that the ‘contemporary consent requirement has its genesis in the initial discussions pertaining to the justification of claims to title to territory’.81 Isolating first contact as the basis for FPIC attempts to cement it in Indigenous peoples’ self-determination and sovereignty, as recognized in the foundations of international law, before colonialism.82 Accordingly, Francisco de Vitoria’s and Bartolomé de las Casas’s acknowledgements of native sovereignty are the international legal bases for Indigenous peoples’ FPIC.83 Doyle is aware of criticisms, primarily stemming from Third World approaches to international law scholarship,84 that the Spanish legaltheologians were formative in establishing and legitimating a dynamic of difference and a colonial international legal order.85 In recognizing this criticism,

77 78 79 80 81 82 83 84

Doyle (n 5) 15. Doyle (n 5) 248. Doyle (n 5) 14. Doyle (n 5) 15. Doyle (n 5) 5–6. Doyle (n 5) 15. Doyle (n 5) 25–39. Doyle (n 5) 14, 26–62; Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2003) 36–9. 85 See also Martti Koskenniemi, ‘Vitoria and Us: Thoughts on Critical Histories of International Law’ (2014) 22 Journal of the Max Planck Institute for European Legal History 119; David Kennedy, ‘Primitive Legal Scholarship’ (1986) 27 Harvard International Law Journal 1; but also Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton University Press, 1995) 8–10.

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Doyle uses it to distinguish colonial implementations of consent from true or proper conceptions of consent per FPIC.86 For Doyle, FPIC’s ‘roots are found in conceptions of inherent rights premised on natural law’, as opposed to positivist law.87 Under this approach, when European and Indigenous peoples began interacting they exhibited ‘equal weight [and] something akin to a genuine rights-based conception of consent emerges’.88 Those early moments of equality existed only briefly, because non-equal interpretation, enforcement and implementation were imposed through what Doyle calls a ‘rights constraining colonial legal doctrine’.89 In the rights-constraining colonial era, Europeans took advantage of inequalities ‘in power, manifested through the use of force, coercion and legal subterfuge’, to unilaterally define ‘consent’.90 Because the ‘consent’ requirement had been unilaterally determined by states, the relationship between Indigenous peoples and states had been ‘one based on power and dominance’ as opposed ‘to one premised on equality and consent’.91 Doyle then contrasts the rights-constraining colonial era with the contemporary human rights granting era. It is crucial, under Doyle’s account, that ‘indigenous peoples’ claims to ancestral territories [are] within a rights-based perspective’, as a ‘rights-based framework grounds indigenous peoples’ self-government and land rights in a nondiscriminatory approach’ within their own systems.92 As such, proper recognition of Indigenous rights ‘draws on indigenous perspectives on law and justice and is premised on indigenous control over its realisation’.93 Doyle is aware that Vitoria and de las Casas spoke of ‘natives’ rather than Indigenous peoples, but he treats Indigenous peoples as pre-legal natural subjects or as the re-emergence of that which is pre-contact and pre-legal. He then argues that a proper understanding of FPIC is as a natural right stemming from Indigenous peoples’ own rights to self-determination and sovereignty. Hence, proper implementation of FPIC requires the content and processes of consent to be determined by Indigenous peoples, so that they can define it and implement it in ways that manifests their natural self-determination.94 Doyle argues that 86 Doyle (n 5) 2, 37. 87 Doyle (n 5) 14–17. 88 Doyle (n 5) 7; cf Jennifer Beard, ‘The International Law in Force: Anachronistic Ethics and Divine Violence’ in Fleur Johns, Richard Joyce and Sundhya Pahuja (eds), Events: The Force of International Law (Routledge, 2011) 22–4; see generally Anghie (n 84). For critical views on consent in international law, see Matt Craven, ‘The Ends of Consent’ in Michael J. Bowman and Dino Kritsiotis, Conceptual and Contextual Perspective on the Modern Law of Treaties (Cambridge University Press, 2018); Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2014) 108(1) American Journal of International Law 1–40. 89 Doyle (n 5) 6, 35. 90 Doyle (n 5) xii. 91 Doyle (n 5) 262. 92 Doyle (n 5) 5. 93 Doyle (n 5) 6. 94 Doyle (n 5) 261, 268–275.

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Indigenous peoples are sovereign peoples with a right of self-determination, which is natural law – just as Indigenous peoples are pre-legal natural subjects. Indigenous peoples’ FPIC reaches a tipping point Another issue with FPIC’s status is that neither the laws of Indigenous peoples nor the multiple sources that recognize FPIC are, under the international law traditional sources doctrine, traditional and accepted sources of public international law.95 As described above, the problem with UNDRIP and other international human rights instruments is that they do not legally obligate states to obtain Indigenous peoples’ FPIC. Doyle solves this problem by pointing to FPIC’s ‘tipping point’. According to Doyle, ‘we appear to be witnessing the crystallisation of the norm of FPIC at the international level … The process through which this evolution has occurred can be considered in light of the norm lifecycle stages involving norm emergence, norm cascade, and internalisation outlined by Finnemore and Sikkink’.96 For Finnemore and Sikkink, the first stage is typified by the persuasion on the part of norm entrepreneurs that a norm is valuable, important or otherwise indispensable.97 When the norm has gained traction, it moves from the norm emergence phase to the norm cascade phase. The juncture between these two stages is the ‘tipping point’: when ‘a critical mass of actors on some emergent norm can create a tipping point after which agreement becomes widespread in many empirical cases’.98 The second stage, the norm cascade, is ‘characterized more by a dynamic of imitation as the norm leaders attempt to socialize other states to become norm followers’.99 And, lastly, in the internalization stage, ‘norms acquire a taken-for-granted quality and are no longer a matter of broad public debate’.100 In deploying Finnemore and Sikkink’s social constructivist approach to international norm formation, Doyle explains that Indigenous peoples reasserted their natural rights in international law, the rights were dispersed throughout that order, and states will be required to recognize those rights.101 Under this theory, FPIC’s momentum began when it was adopted in ILO 95 See, eg, Statute of the International Court of Justice (1945) art 38(1). 96 Doyle (n 5) 248; Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52(4) International Organisation 887, 892–5. 97 Ibid, Finnemore and Sikkink, 895. 98 Ibid, Finnemore and Sikkink, 892–95 99 Ibid, Finnemore and Sikkink, 895. 100 Ibid, Finnemore and Sikkink, 895. 101 Alexander Wendt has criticized some versions of social constructivism, such as that of John Ruggie, which Doyle cites approvingly. Wendt argues that Ruggie’s social constructivism is an ‘undersocialized’ and ‘neoliberal’ approach that ‘pays insufficient attention to the ways in which the actors in world politics are socially constructed’: Alexander Wendt, Social Theory of International Politics (Cambridge University Press, 1999) 4.

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Convention No 169.102 Between Convention No 169 and UNDRIP, the UN treaty bodies, the PFII, Special Rapporteurs and regional human rights bodies began articulating FPIC to protect Indigenous peoples and their territories, livelihoods and rights. When the General Assembly endorsed UNDRIP, it affirmed that ‘indigenous peoples are vested with a right to self-determination’ and connected it to FPIC through the Declaration’s content and conceptual framing.103 Recognition of the requirement for FPIC also extends beyond the human rights legal framework and is exhibited by its uptake by multilateral development banks, international finance institutions, industry actors, NGOs, voluntary initiatives and Indigenous peoples’ organizations. Because UN Member States have overwhelmingly approved UNDRIP and a diverse range of institutions and actors have adopted FPIC, Doyle writes, there is a ‘jurisprudential trend towards affirming a requirement for FPIC in order to constrain state power to infringe on indigenous peoples’ enjoyment of their rights in the context of resource extraction projects impacting on their well-being or territories’.104 Thus, for Doyle, as well as others, the numerous recognitions of FPIC are intertwined and evolving to provide Indigenous peoples with the ability to define for themselves what self-determination, sovereignty and development mean to them.105 Under Doyle’s approach, FPIC reached a tipping point in 2011, when the IFC accepted it.106 Even if many recognitions of FPIC are in soft law or are legal positivist, for Doyle, each recognizes Indigenous peoples’ natural rights. The UNDRIP’s status and FPIC’s use and meaning are oriented in Indigenous peoples’ natural laws and rights, and hence FPIC is not problematic when it is properly so recognized. Now that it is evolving throughout the international legal order, it will become a requirement from which states cannot derogate. The remaining problem is the veto debate. Proper recognition and the definition of FPIC Doyle argues that the concern over whether or not FPIC contains a veto is an attempt to ‘abstract the concept from its rights bases’.107 To him, the veto debate is a tactic used by states and industry to distract attention from the recognition that Indigenous peoples are sovereign with their own right of self-determination. To circumvent the veto debate and stymie potential objections, Doyle presents three main objections to arguments that are used to deny Indigenous peoples’ FPIC and self-determination.

102 103 104 105 106 107

Doyle Doyle Doyle Doyle Doyle Doyle

(n (n (n (n (n (n

5) 7. 5). 5) 158. 5) 145. 5) 262; cf Baker (n 59). 5) 160, 161–4.

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First, Doyle targets those who deny FPIC as against public or national interest in development. He argues that public interest arguments are consistent with an outdated assimilationist, integrationist and colonial reasoning.108 By equating state or public interests with assimilation and integration, he then upholds international human rights instruments and treaty bodies as rejecting the public interest or common good as justifiable bases where national courts have not upheld the public interest argument.109 Furthermore, for Doyle, the ‘resource curse’ literature, which argues that countries and regions which are rich in natural resources are cursed by lack of development and weak democratic institutions, is empirical evidence that extractive industry projects for the public interest are ‘strongly contested and rarely substantiated’.110 Accordingly, public interests can only legitimately limit FPIC when there is a national need and a proportional weighing with Indigenous peoples’ self-determination – as articulated, for example, by the African Commission on Peoples and Human Rights.111 And this weighing will almost always favor Indigenous peoples, because their unique relationships to their territories present a high barrier that will rarely, if ever, be satisfied.112 Second, Doyle responds to those states that argued that Indigenous peoples’ FPIC and self-determination threaten state sovereignty.113 For Doyle, Indigenous peoples’ FPIC and self-determination are consistent with state sovereignty, whether sovereignty is defined as external, internal or a mixture of external and internal practices. If state sovereignty is external then it ‘is exercised vis-à-vis other States and the issue of indigenous peoples’ exercise of FPIC within State borders does not affect this’.114 For Doyle, it is not problematic because ‘indigenous governments exercise a degree of de facto sovereign power alongside 108 Doyle (n 5) 168–9, 172; cf Native Title Act 1993 (Cth) ss 33, 39, 42. 109 Doyle (n 5) 169–71, citing R v Sparrow [1990] SCR 1075 (Canadian Supreme Court); Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (African Commission on Human and Peoples’ Rights, 276/2003, 4 February 2010) (‘Endorois’). 110 Doyle (n 5) 168–9, citing J D Sachs and A M Warner, ‘Natural Resource Abundance and Economic Growth Papers 517a’ (Harvard Institute for International Development, 1997); J D Sachs and A M Warner, ‘The Curse of National Resources’ (2001) 45 European Economic Review 827; R M Auty, Resource Abundance and Economic Development (Oxford University Press, 1998). For a recent application, see Marcia Langton, ‘The Resource Curse: Still the Lucky Country?’ (2010) 28 Griffith Review . 111 Doyle (n 5) 168–9 citing Endorois (n 109). 112 Doyle (n 5) 172. 113 See, eg, Meeting Record (n 36). There is also a conflict with how states conceive of permanent sovereignty over natural resources. See Doyle (n 5) 184–5. I do not address the various arguments on permanent sovereignty over natural resources, because in many respects Doyle’s discussion of sovereignty mirrors those arguments. 114 Doyle (n 5) 177, citing James Crawford, The Creation of States in International Law (Oxford University Press, 2007) 27; Patrick Macklem, ‘Distributing Sovereignty: Indian Nations and Equality of Peoples’ (1993) 45(5) Stanford Law Reviews 1311, 1315.

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federal and State structures in a number of jurisdictions’.115 If state sovereignty is internal, then states only legitimately use power to the extent that the use of power conforms to recognized human rights. Then recognition of FPIC emboldens sovereignty as a legitimate exercise of state power.116 If sovereignty is a mixture of internal and external powers, then it is the embodiment of the state’s ‘power of imperium and dominium over its territories’.117 Because Indigenous peoples’ rights over traditional territories existed prior to state power, FPIC can ‘reconcile the existing legal tension between these two competing claims to dominium’.118 Here, Doyle treats FPIC as a mediating concept between different sovereigns. If Indigenous peoples’ sovereignty is proportionally balanced against state sovereignty, then, unless the development project is necessary and indispensable, it will remain ‘far from proportionate to the potential negative impacts on the self-determination rights of an indigenous people’.119 Third, Doyle responds to states – such as the United States, Australia, Canada and New Zealand – that voted against UNDRIP, partly, because of concerns over whether FPIC is consistent with democracy.120 Doyle argues that FPIC sits comfortably with democracy by conceptually distinguishing current democratic practices, as represented by elite theory, from an idealized notion of democratic practice, a deliberative democracy.121 For him, the contemporary political reality is epitomized by elite theory, where inter-group competition is highly influenced, if not captured, by business and financial sectors that have instituted a neoliberal development paradigm.122 Although not explicit in defining neoliberalism, he claims that the ‘neo-liberal developmental discourse presents an extractive-based foreign direct investment-driven model as the unique solution to poverty alleviation, identified as the primary driver for growth and sustainable development’.123 On the other hand, participatory and deliberative democracy emphasize negotiation, participation and consensus-building to correct the 115 Doyle (n 5) 177. 116 Doyle (n 5) 178, citing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)) [1996] ICJ 595 [2] (Judge Weeramantry). 117 Doyle (n 5) 177. 118 Doyle (n 5) 177. 119 Doyle (n 5) 179, citing Macklem (n 114). 120 Doyle (n 5) 179; see also Meeting Record (n 36) 11–15. 121 Doyle (n 5) 173–76, citing Russel Lawrence Barsh, ‘Democratization and Development’ (1992) 14 Human Rights Quarterly 120, 120; P Bachrach and M S Baratz, ‘Two Faces of Power’ (1962) 56(4) American Political Science Review 947; cf Wendy Brown, Politics Out of History (Princeton University Press, 2001) 119–38. 122 Doyle (n 5) 173–4. 123 Doyle (n 5) 174. Neoliberalism is a contested concept with multiple meanings. See Fleur Johns, ‘On Failing Forward: Neoliberal Legality in the Mekong River Basin’ (2015) 48 Cornell International Law Journal 327, 350–3; Tony Evans, ‘International Human Rights Law and Power/Knowledge’ (2006) 27(3) Human Rights Quarterly 1046.

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democratic deficits created by elite theory.124 A deeper democracy treats selfdetermination as ‘the foundational ideal for inclusive democracy … [and] all point to the consistency of indigenous peoples’ FPIC with the ideals embodied in democratic principles’.125 Doyle then posits that FPIC is consistent with a deeper, truer or better democracy and inconsistent with the exclusive-elite practice of democracy. As such, FPIC has a corrective function within democratic society and would be consistent with the true values of egalitarianism and democracy.126 When those arguments are accepted and FPIC is properly recognized, argues Doyle, Indigenous peoples will be able to define what FPIC and self-determination mean, how they apply, and when. Doyle writes: For indigenous peoples to be free to exercise their right to self-determination a ‘philosophical space’ within which they can continue to construct their own perspectives and worldviews is essential. The requirement for FPIC can facilitate the preservation or creation of these philosophical spaces … If this is realised, indigenous peoples will have the freedom to imagine their own futures, secure in the knowledge that they will have the physical spaces and the control over them necessary to translate these visions into reality.127 The invocation of this spatial metaphor – a ‘philosophical space’ – to determine the meaning and content of self-determination depends upon Indigenous peoples’ ability to manifest their rights.128 The philosophical space is rendered all the more important when seemingly contrasted to the ‘elite-dominated political space’.129 Doyle, and others,130 seek to carve out conceptual ‘spaces’ to actualize the

124 Doyle (n 5) 176, citing Michel Crozier, Samuel Huntington and Joji Watanuki, The Crisis of Democracy: Report on the Governability of Democracies to the Trilateral Commission (New York University Press, 1975); Iris M Young, Inclusion and Democracy (Oxford University Press, 2000); John S Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations (Oxford University Press, 2000); cf Boaventura de Sousa Santos, ‘Beyond Neoliberal Governance: The World Social Forum as Subaltern Cosmopolitan Politics and Legality’ in Boaventura de Sousa Santos and César A Rodríguez-Garavito (eds), Law and Globalisation from Below (Cambridge University Press, 2005) 29. Anaya and Puig (n 65) 454 n 29 cite Santos approvingly because Santos views Indigenous peoples’ rights as counter-hegemonic. 125 Doyle (n 5) 176. 126 Doyle (n 5) 176. 127 Doyle (n 5) 267. 128 Doyle (n 5) 267. 129 Doyle (n 5) 175. 130 Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, 2002) 113–4; Carpenter and Riley (n 13) 198. Carpenter and Riley are less committed to the spatial metaphor than Doyle, because a ‘jurisgenerative’ moment may also become a colonial moment that structures epistemologies.

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democratic promise of emancipation from colonial influence, which would come with an unequal meeting of laws or interpretation.131 Under Doyle’s approach, Indigenous peoples’ ability to define consent and the boundaries for FPIC’s usage without non-indigenous interventions putatively restructures the relationship ‘from one based on power and dominance, to one premised on equality and consent’.132 And, if he is correct, then the issues surrounding status and definition of FPIC are resolved to the extent that the momentum of the requirement for FPIC reveals that the ‘extractive sector is shifting from the question of whether FPIC is required to how it will be operationalised’.133

Interrogating the legal model of FPIC This section re-considers three features of Doyle’s account. Each is an effect of deploying a legal model. Natural subjects First, Doyle treats Indigenous peoples as natural, pre-legal subjects instead of a subjectivity produced within international legal discourse. In the same way as the rights he discusses, he treats ‘Indigenous peoples’ as merely a new term for latent sovereign power – a power naturally conferred, withheld, and never ceded. Accordingly, when Indigenous peoples invoke FPIC, they command sovereign and self-determining powers that are negative and oppressive on those who are required to recognize it. In many respects, this is normatively appealing. It might also be compelling to those who self-identify as Indigenous peoples because it upholds them as sovereign and selfdetermining peoples who, when they claim rights, can control their futures. The problem is that treating Indigenous peoples as a subject-status that relates back to a pre-contact or pre-legal natural subject insufficiently credits, if not distracts from, the productive and formative processes of legal discourse. As argued in previous chapters, international legal discourse preceded and produced Indigenous peoples, a relatively new subject-status.134 When scholars view Indigenous peoples 131 See, eg, Shaun McVeigh and Sundhya Pahuja, ‘Rival Jurisdictions: The Promise and Loss of Sovereignty’ in George Pavlich and Charles Barbour (eds), After Sovereignty (Routledge, 2010) 97–114 (evaluating the rival jurisdictions and confrontation revolving around permanent sovereignty over natural resources); cf Judith Butler and Gayatri Chakravorty Spivak, Who Sings the Nation-State (Seagull Books, 2007) 74; Gayatri Chakravorty Spivak, ‘The Politics of Translation’ in Gayatri Chakravorty Spivak, Outside in the Teaching Machine (Routledge, 1993) 179–200. 132 Doyle (n 5) 262. 133 Doyle (n 5) 246, cf Judith Butler, Giving an Account of Oneself (Fordham University Press, 2005) 9. 134 Also, Marjo Lindroth, ‘Indigenous Rights as Tactics of Neoliberal Governance: Practices of Expertise in the United Nations’ (2014) 23(3) Social and Legal Studies 341, 344–6.

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as pre-legal natural subjects, they underestimate the demands that are placed on autochthonous communities to insert themselves into international legal discourse as Indigenous peoples. For the purposes of claiming human rights, Indigenous peoples express powers of international law because they demonstrate their willing subjection to international law and its power. And, maybe more troubling, where scholars and others view Indigenous peoples as pre-legal or natural subjects, then the distinctiveness of all autochthonous communities is, for the sake of a scholar’s argument and international law, pooled or consolidated into international legal discourse as Indigenous peoples. Doyle’s main goal is to convince state and industry actors to see FPIC and Indigenous peoples as he does, which could also lead autochthonous communities to believe that what they need are properly recognized rights. Under such a theory, the ability to reform, contest and explore legal or political possibilities not contained by a rights-based framework is neither explored nor necessary. That is because the rights are natural. Natural rights Second, in upholding FPIC as the re-emergence of natural rights, Doyle treats rights as natural, neutral and idealized objects that Indigenous peoples imbue with their own content. Doyle can then assert that the ‘transformative power of FPIC lies in its potential to restructure the relationship between indigenous peoples, States and industry from one based on power and dominance, to one premised on equality and consent’.135 The binary between power–dominance and equality– consent depends upon a legal model to uphold the negative and oppressive powers of rights. Doyle further deploys binaries between the ills of positivistic law and the benefits of natural rights; the ills of the neoliberal development regime and the benefits of the human rights regime; and the ills of current democratic practice and the benefits of deliberative democracy. When so oriented, positivist legal projects, neoliberal development and current democratic practice appear to be associated with rights-constraining colonial projects, power and domination. On the other hand, natural law, human rights and deliberative democracy become associated with equality and consent. In constructing those binaries, FPIC appears oppositional and antagonistic to current state practice epitomized by elite theory, neoliberal development and a positivistic rights-constraining colonial era where Europeans took advantage of inequalities ‘in power, manifested through the use of force, coercion and legal subterfuge’ to unilaterally define ‘consent’.136 Undoubtedly, Europeans took advantage of inequalities in power, and many states continue to deny equal treatment and equal rights to their subjects. In those areas where autochthonous communities have no access or recourse to state law, claiming FPIC through performatively enacting the subjectivity of Indigenous peoples can draw attention to 135 Doyle (n 5) 262. 136 Doyle (n 5) xii.

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and create legal-political controversy. But to uphold human rights – or recognition of rights as creating a natural, equal or neutral playing field that is antagonistic to whatever is identified as ‘power and domination’ – ignores the powers at work in constructing and reproducing legal hierarchies, structures and binaries through legal discourses that also produced Indigenous peoples’ human rights. Insufficiently crediting that the rights that Indigenous peoples claim are the rights of international legal discourse leads to overestimating what law can do. Under a legal performative method, power is productive and formative as well as negative and oppressive, which suggests that the binaries do not hold. Claiming equality or consent involves power and dominance, as well as freedom and agency. This has troubling consequences for binary construction, which becomes more obvious when Doyle advances a rights-based platform for Indigenous peoples that depends upon what he targets as problematic. For example, he claims that the IFC’s recognition of FPIC in 2011 was the tipping point for recognition of the consent requirement.137 Elsewhere, he acknowledges that ‘[t]he emerging risk for indigenous peoples today is that FPIC becomes a corporate or state construct, one again divorced from self determination and sovereignty rights, thereby facilitating unfettered access to resources in indigenous territories’.138 Where Doyle argues that Indigenous rights are natural rights, he necessarily relies on the multiple articulations of FPIC in positivistic international law and industry to prove that FPIC has the proper status. Furthermore, as much as he seeks to discredit contemporary state democratic practices, he also cites some state laws as upholding Indigenous peoples’ FPIC,139 and argues that FPIC is entirely consistent with – and may strengthen – practices of democratic state sovereignty.140 Advocating for states to recognize FPIC may be just as good as it is deleterious for Indigenous peoples. Doyle acknowledges that there might be problems with current practices, which is exactly why he deploys a legal model to construct a proper or meaningful view of FPIC and rights-based projects so that Indigenous peoples have control. Doyle uses contemporary legal terminology to signify what is pre-contact and pre-international law, in terms of both natural rights and natural subjects, and he constructs a very appealing picture of what Indigenous peoples’ FPIC should be. By insufficiently acknowledging the productive and formative aspects of international legal discourse, and by deploying terms of and within international legal discourse, Doyle’s approach to rights is commensurate with and, perhaps, entirely supports positivism, neoliberal development and democratic practice. As Marjo Lindroth argues, the ‘language of rights, which has as its stated aim the protection of indigenous peoples, contains effects of power that render its subjects

137 138 139 140

Doyle Doyle Doyle Doyle

(n (n (n (n

5) 5) 5) 5)

262. 17. 195, 248. 177.

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(indigenous peoples and their situations) “proper” in terms of neoliberal governing rationalities’.141 Natural and neutral spaces Third, if one insufficiently credits how power precedes and produces subjects and their rights, one may suppose that the law can provide ‘spaces’ – either philosophical and hermetically sealed, or neutral and natural. Under Doyle’s theory, these spaces have not yet materialized, but will arise when Indigenous peoples’ FPIC, sovereignty and self-determination are properly recognized. In other words, under Doyle’s theory, we will know when states and others have properly recognized Indigenous peoples’ FPIC because Indigenous peoples will have the space to articulate what FPIC means as consistent with however they define and determine what self-determination means. Attempting to actualize this space seeks to engender the democratic promise of emancipation from the colonial influence that would come with an unequal meeting of laws or interpretation.142 The problem is that scholars who insufficiently credit the formative and constitutive role of legal discourse insert Indigenous peoples and their rights within a discourse that structures, shapes and limits how those subjects and objects are understandable. The following chapters describe and evaluate how autochthonous communities performatively enact as Indigenous peoples by inserting themselves, as others insert them, into citational-chains of Indigenous peoples as subjects of legal discourses. Those who deploy legal models may uphold Indigenous peoples as equal sovereigns who command and control some negative and oppressive powers when properly recognized. However, scholars who fail to acknowledge that Indigenous peoples are subjects of legal discourse risk restaging a dynamic of difference – in other words, ‘a gap between two cultures, demarcating one as “universal” and civilized, and seeking to bridge the gap by developing techniques to normalise the aberrant society’.143 When Doyle seeks to uphold human rights as universal and Indigenous peoples as civilized and sovereign, autochthonous communities can then insert themselves into that citational-chain by deploying legal technologies that demonstrate that they are appropriately normalized and willing legal subjects. It might be that projects such as Doyle’s insert ‘Indigenous peoples’ into international legal discourse about human rights in the same way that Vitoria or de las Casas inserted ‘natives’ or ‘de Indis’ into a nascent international legal discourse on sovereignty. This does not mean that autochthonous communities are uncivilized or not sovereign. Rather, privileging Indigenous peoples and their rights as the only option relegates autochthonous communities to an abject domain, which is an exclusionary effect of the apparent universality of international legal discourse, human rights and the subjectivity of 141 Lindroth (n 134) 345. 142 Cf Butler and Spivak (n 131) 74; Spivak, (n 131) 179–200. 143 Anghie (n 84) 4.

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Indigenous peoples. In this way, scholars who deploy legal models for Indigenous peoples may encourage others to claim and uphold rights and believe that rights produce control while reproducing the dynamic of difference and a version of the civilizing mission.

Considering how subjects claim FPIC Thus far, we have seen how scholars, NGOs, institutions and others use and do things with FPIC. None of them, however, claim FPIC as a right. Chapters 4, 5 and 6 present case studies on FPIC in order to consider how FPIC is claimed. Each case study considers how one becomes a subject who claims FPIC. Importantly, claimants performatively enact, according to a citational-chain, as Indigenous peoples in order to make their FPIC claims intelligible to others. To become identifiable as Indigenous peoples for the purposes of claiming rights is a demanding, legally oriented, rights-based and disciplined way of living. As subjects of international legal discourse, claiming FPIC, or filling it with sovereign content, does not end the controversy or provide the claimant with control. When autochthonous communities performatively enact as Indigenous peoples and claim FPIC, they create controversy and solicit state powers in attempts to conscript and reform state powers and practices.

Chapter 4

FPIC as national legislation The Philippines, the B’laan and the Tampakan Mine

Introduction This chapter examines how FPIC is claimed where a state has adopted it into national legislation. It does so by examining the attempt to develop the Tampakan Copper-Gold Mine (‘Tampakan mine’) located on the southernmost Philippine island of Mindanao. As conceived, the Tampakan mine was to be built upon a portion of the traditional territory of some B’laan peoples. This project is worth studying because initial exploration for the mine began several years before 1997 when the Philippines adopted FPIC into national legislation under the Indigenous Peoples Rights Act (IPRA).1 As such, this case study provides information on agreement-making with the B’laan both pre- and post-FPIC. It further establishes that when it appeared that the IPRA failed to protect the B’laan, the discourse of Indigenous peoples and international law, which was becoming far more established, began influencing the project and those who were contesting it. The extent of problems that arise in this case study is not common to all countries. Nonetheless, to the extent that any state adopts FPIC, it reveals some challenges that a state will have to avoid. Other states have adopted FPIC standards more recently.2 However, case studies from the Philippines are valuable because it has the longest operating FPIC standard in national law and, consequently, it has attracted the most scholarly attention. Scholars and human rights 1 An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous People, Creating a National Commission of Indigenous People, Establishing Implementing Mechanisms, Appropriating Funds Therefore, and for other purposes (Philippines) Republic Act No 8371. The short title is the Indigenous Peoples Rights Act of 1997 (IPRA). 2 See Amelia Alva-Arévalo, ‘A critical evaluation of the domestic standards of the rights to prior consultation under the UNDRIP: lessons from the Peruvian case’ (2019) 23 (1–2) International Journal of Human Rights 234–48; Riccarda Flemmer and Almut Schilling-Vacaflor, ‘Unfulfilled Promises of the Consultation Approach: The Limits to Effective Indigenous Participation in Bolivia’s and Peru’s Extractive Industries’ (2016) 37(1) Third World Quarterly 172–88; Viviane Weitzner, ‘“Nosotros Somos Estado”: Contested Legalities in Decision-Making about Extractives Affecting Ancestral Territories in Colombia’ (2017) 38(5) Third World Quarterly 1198.

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advocates have upheld the Philippines’ FPIC legislation as a ‘high water mark’,3 while simultaneously lamenting that it fails to work as it should. That FPIC fails to operate as it should is an enduring problem tied to the issues surrounding the implementation or operationalization of FPIC.4 While there are many different developments in the Philippines that impact and involve autochthonous communities qua Indigenous peoples,5 the Tampakan mine provides a historical vantage point from which to examine what consultation looks like before the IPRA’s FPIC provision, what it looks like after, and how struggles changed when participants invoke discourse on Indigenous peoples and international law. This chapter begins with a brief history of the Philippines, followed by an overview of relevant Philippine legislation, particularly the IPRA and the Mining Act of 1995 (‘Mining Act’).6 The third section then presents the case study on the B’laan opposition to the Tampakan mine, which reveals several issues. First, claiming rights or even winning legal claims does not end the controversy or provide claimants with control. The invocation of FPIC, whether from national or international law, does not fully end the pressure to develop. Likewise, the efforts 3 Cathal Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (Routledge, 2015) 195, 248; John Altman, ‘Benefit Sharing Is No Solution to Development: Experience from Mining on Aboriginal Land in Australia’ in R Wynberg, D Schroeder and R Chennells (eds), Indigenous Peoples, Consent and Benefit Sharing: Lessons from the San-Hoodia Case (Springer, 2009) 285, 298–301 (compares Australia’s Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to the San Hoodia case in the Philippines); Fergus Mackay, ‘Indigenous People’s Right to FPIC and the World Bank’s Extractive Industries Review’ (2004) 4(2) Sustainable Development Law and Policy 43, 55. Doyle upholds Australia’s Native Title Act 1993 (Cth) for affirming ‘a right to negotiate’. He also favorably cites a 2009 Native Title Tribunal arbitration as an example of providing Aboriginal peoples the right to ‘say no to development and to expect that considerable weight would be given to their view about the use of the land in the context of all the circumstance projects’: at 197, citing Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Western Australia/Holocene Pty Ltd [2009] NNTTA 49 (27 May 2009) [215]. While Holocene did find in favor of the Aboriginal group in question, this case is one of only three to find in favor of Indigenous peoples. The holding was based on weighing the economic benefit and the impact on Indigenous peoples, and not on the self-determined ability to say ‘no’. Chapter 5 addresses Holocene and the Native Title Act in more detail. 4 See Kathryn Tomlinson, ‘Indigenous Rights and Extractive Resource Projects: Negotiations over the Policy and Implementation of FPIC’ (2017) International Journal of Human Rights 2. 5 See, eg, Rodolfo Stavenhagen, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Commission on Human Rights, 59th Session, Item 15 provision agenda, UN Doc E/CN.4/2003/90/Add.3 (5 March 2003) paras 30–38 (‘Stavenhagen 2003’); Robert Goodland and Clive Wicks, Philippines: Mining or Food? (Working Group on Mining in the Philippines, 2009). 6 An Act Instituting a New System of Mineral Resources Exploration, Development, Utilization, and Conservation, Republic Act No 7942. The short title is the Philippine Mining Act of 1995 (‘Mining Act’).

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to develop the project do not end opposition. Instead, when one side appears to ‘win’, opposition becomes mobilized. Second, it reveals efforts and struggles in identifying the B’laan as Indigenous peoples. As we will see, the struggle to performatively enact the subjectivity of Indigenous peoples by invoking traditional and essential features is apparent but becomes complicated by violence, state law and pre-existing political movements.

A brief history of the Philippines This section provides a concise history of the Philippines. There are six basic periods discussed here: the pre-occidental contact era (before 1521), Spanish colonialism (1534–1898), American colonialism (1901–41), national development and independence (1945–64), authoritarian regime (1965–85), and, lastly, the era that Alvin Camba calls the neoliberal, capitalist era (1986 to the present).7 Before Magellan ‘discovered’ and laid claim to several islands that would become identified as the Philippines, the people who lived there had their own laws and extensive trade networks with the Muslim Malay Empire and with the Chinese.8 By the time the Spanish arrived, the islands were organized as villagestates, later called barangays (a Hispanicised version of balangay, the Malay term for ‘sailboat’).9 Each barangay was ruled by a datu, a patrilineal-inherited position, who promulgated the oral and written laws of that territory. The earliest written laws, from around 1250, regulated trials for establishing guilt or non-guilt as well as labor and family issues.10 In 1521, Ferdinand Magellan, sailing on behalf of the Spanish, ‘discovered’ the territories that would become the Philippines and claimed them as a Spanish colony.11 Magellan baptized a local datu, Saripada Humabon, assuring him that ‘he would more easily conquer his enemies’.12 Through Catholic baptism, Humabon re-signified himself and became identified as Don Carlos. Magellan reported that ‘some of the chiefs did not wish to obey him’,13 to which he responded ‘that, unless they obeyed [Don Carlos as their new king, Magellan] would have them killed and would give their possessions to the king’.14 Thus

7 Alvin A Camba, ‘Philippine Mining Capitalism: The Changing Terrains of Struggle in the Neoliberal Mining Regime’ (2016) 9(1) Austrian Journal of South-East Asian Studies 69, 74. 8 Gregorio F Zaide, The Republic of the Philippines (Rex Book Store, Manila, 2nd ed, 1970) 1, 25–7, 44–51; Salvador P Lopez, Isles of Gold: A History of Mining in the Philippines (Oxford University Press, 1992) 10–12. 9 Ibid, Zaide, 44. 10 Ibid, Zaide, 46–50 citing the Maragtas Code (1250) and the Kalantiaw Code (1433). 11 José S Arcilla, An Introduction to Philippine History (Ateneo de Manila University Press, 4th ed, 1998). 12 Ibid, Arcilla, 3. 13 Ibid, Arcilla, 3. 14 Ibid, Arcilla, 3.

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began Magellan’s conquest, which he carried out through Catholic conversion or more violent acts. Subsequent Spaniards continued in Magellan’s wake. The Spanish initially found some active gold mining, but initially only in quantities that questioned the value of colonization.15 In 1559, Ruy López de Villalobos named the Samar and Leyte islands Islas Filipinas after Philip II of Spain, a name that spread as the Spanish consolidated power.16 By the late 16th century, the Spanish reported that there was a settlement known as ‘Bilan’ and a ‘river with gold mines’.17 From the 16th through the 19th centuries, the Spanish mined gold, copper, iron and coal.18 In 1846, the Colonial Superior Civil Government introduced the Regalian doctrine, which claimed that all mineral wealth belonged to the state.19 Spanish colonization lasted until the Spanish-American war in 1898 when the Spanish ceded and sold the Philippines to the United States.20 During the US colonization of the Philippines, American lawyers, anthropologists and miners took an interest in the islands. In 1913, anthropologist FayCooper Cole published The Wild Tribes of Davao District, Mindanao, which detailed the lives of the ‘Bila-an’.21 Cole wrote that the Bila-an ‘are almost unknown to history, for aside from two or three short accounts, based mostly on hearsay, we find no mention of them’.22 John Smith’s more recent account explains the Filipino terminology for categorizing autochthonous communities: The people of the Philippine archipelago may be categorized as those who were colonized [by the Spanish] and those who were not … Those who were not colonized can be further sub-divided into those who resisted subjugation, and those who evaded contact with the Spaniards … The second sub-group comprises eighteen ethnolinguistic groups collectively known as ‘Lumads’, a Cebuano word meaning indigenous. B’laans are one of these Lumad groups.23

15 16 17 18 19 20

Lopez (n 8) 17–25. Arcilla (n 11) 7. Lopez (n 8) 23 Lopez (n 8) 32–42. Lopez (n 8) 29. Treaty of Peace (Treaty of Paris), signed 10 December 1898, 30 Stat 1754, Treaty Series 343 (Spain-Unites States of America), art III. 21 Fay-Cooper Cole, ‘The Wild Tribes of Davao District Mindanao’ (Field Museum of Natural History, Publication 170, Anthropological Series vol 12, no 2, 1913) 49, 129–49. 22 Ibid, Cole, 130; see also John M Garvans, The Manóbos of Mindanáo (US Government Printing Office, 1931) 7. 23 John Willem Smith, The Challenge of Sustainable Local Development at the Site of the Tampakan Copper Project in the Philippines (PhD Dissertation, London School of Economics and Political Science, 2006) 73 (internal citations omitted); see also Jose Mencio Molintas, ‘The Philippine Indigenous Peoples’ Struggle for Land and Life: Challenging Legal Texts’ (2004) 21 Arizona Journal of International and Comparative Law 269, 273–5.

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The International Working Group for Indigenous Affairs, an international NGO, identifies ‘[t]he indigenous groups in the northern mountains of Luzon … as Igorot while the groups on the southern island of Mindanao are collectively called Lumad’.24 Signifying someone as Lumad or Igorot does not automatically make them Indigenous peoples. Indeed, some Lumads have objected to being identified as ‘Indigenous peoples’.25 The Lumad group known as the B’laan is partially comprised of current-day individuals and communities who oppose the Tampakan mine,26 which is discussed in the case study below. It was during the American colonization of the Philippines that a legal native title regime formed. Doyle claims: The IPRA finds its roots in the 1909 Cariño vs. [the Philippine] Insular Government, ruling of the U.S. Supreme Court which recognised indigenous peoples’ native title affirming that their lands were their private property by virtue of ‘native custom and long association’. However, despite this landmark ruling, public land laws continued to classify indigenous peoples as squatters in their own lands and legitimise large scale expropriation of their territories for logging, mining and dam construction.27 As a ‘landmark ruling’ that ‘legitimise[d] large scale expropriation’ and failed to protect ‘indigenous peoples’, Cariño is an inauspicious foundation for FPIC or IPRA. The plaintiff, ‘an Igorot of the Province of Benguet’, claimed that ‘as far back as the findings go, his ancestors had held the land as owners’.28 His father cultivated and farmed the land, and the Igorot community recognized him and his ancestors as owners, despite not possessing formal title. The judgment’s author, Justice Holmes, never mentions ‘Indigenous peoples’. He noted that the territory ‘was inhabited by a tribe that the Solicitor General, in his argument, characterized as a savage tribe that was never brought under the civil or military government of the Spanish Crown’.29 In his analysis, Holmes explains that the colonization of the Philippines was ‘for the benefit of the 24 International Working Group for Indigenous Affairs, The Indigenous World 2015 (Copenhagen, 2015) 254. 25 Karl M Gaspar, The Lumad’s Struggle in the Face of Globalization (Alternative Forum for Research in Mindanao, 2000) 145. 26 For alternative names and spellings, see National Commission for Culture and the Arts, B’laan (17 June 2015) . 27 Cathal Doyle, ‘The Effectiveness of Legal and Non-Legal Remedies for Addressing the Rights of Indigenous Peoples at Mindoro Island and Elsewhere’ in Forum for Development Cooperation with Indigenous Peoples, Indigenous Participation in Policy-Making: Ideals, Realities and Possibilities Report (Forum for Development Cooperation with Indigenous Peoples, 2010) 85. 28 Cariño v Insular Government of Philippine Islands 212 US 449, 455–6 (1909). 29 Ibid, Cariño, 458.

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inhabitants’,30 unlike the colonization of the Americas by ‘white races … to occupy the land’.31 In parsing Spanish law, Holmes found ‘pretty clearly that the natives were recognized as owning some lands, irrespective of any royal grant. In other words, Spain did not assume to convert all the native inhabitants of the Philippines into trespassers, or even into tenants at will’.32 Essentially, Holmes upheld ‘native’ title by expanding the law of property to include those concepts that ‘native custom and by long association … regarded as their own’.33 In doing so, the US Supreme Court subjugated the Igorot plaintiff to a foreign colonial court, as well as the Philippine state.34 It has been over a hundred years since the judgment, but the plaintiff’s ancestors continue to await the decision’s enforcement.35 It is tempting and easy to adopt today’s terminology of ‘Indigenous peoples’ and read it into that opinion. But doing so re-writes the terms of that struggle in ways that elide the productive and formative aspects of that legal contest, as well as its failings, in favor of contemporary legal projects and subjects. When the Philippines gained independence from the United States in 1946, American citizens gained parity rights that effectively granted them Filipino citizenship.36 As a result, America’s more heavily capitalized and industrialized mining firms, combined with Japan’s thirst for mineral imports,37 dominated the Philippine mining sector until the parity rights regime ended in 1974.38 The end of the parity rights regime was also the beginning of Ferdinand Marcos’s authoritarian regime.39 30 Ibid, Cariño, 458–9, citing the Philippine Organic Act of 1 July 1902, c 1369, s 12, 32 Stat 691. 31 Ibid, Cariño, 458; cf Cherokee Nation v State of Georgia 30 US 1, 48 (1831) (‘Indians have rights of occupancy to their lands as sacred as the fee-simple, absolute title of the whites’). 32 Ibid, Cariño, 460. 33 Ibid, Cariño, 459, 461–3. 34 In 2000, Justice Puno, on behalf of the Philippines Supreme Court, wrote that ‘the U. S. Supreme Court noted that it need not accept Spanish doctrines. The choice was with the new coloniser. Ultimately, the matter had to be decided under U.S. law’: Cruz v Secretary of Environment and Natural Resources, GR No 135385, IV(A)(2)(a) (6 December 2000) (‘Cruz’) . 35 Stavenhagen 2003 (n 5) para 32; Submission to the Committee on the Elimination of All Forms of Racial Discrimination, Philippines Indigenous Peoples ICERD Shadow Report for the consolidated fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, and twentieth Philippine ICERD periodic reports, Committee on the Elimination of All Forms of Racial Discrimination, 73rd session (3–28 August 2009) 71 (‘Shadow Report’). 36 Treaty of General Relations between the United States of America and the Republic of the Philippines, 61 Stat 1174 (signed 4 July 1946, entered into force 22 October 1946). 37 Rene E Ofreneo, ‘Failure to Launch: Industrialisation in Metal-Rich Philippines’ (2009) 14(2) Journal of the Asia Pacific Economy 194, 195–6. 38 Lopez (n 8) 236. 39 Smith (n 23) 83 citing Lopez (n 8) 236–49. Marcos’s Martial Law ended the parity rights regime.

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Marcos’ election to the presidency in 1966 placed him in a position of power for the next 20 years. The Marcos regime attempted the ‘Filipinization’ of the mining industry by providing large mining firms with ‘service contracts’.40 Those service contracts ‘were subsequently denounced for being antithetical to the principle of sovereignty over natural resources, because they allowed foreign control over the exploitation of natural resources, to the prejudice of the Filipino nation’.41 In opposition to Marcos’s regime, the Communist Party of the Philippines formed, along with its armed militia group, the New People’s Army (CPP-NPA).42 It sought ‘to overthrow the Philippine government in favour of a new state led by the working class and to expel U.S. influence from the Philippines’.43 It was politically active through the 1990s and increased militarization in the 2000s.44 In 1986, a series of civil protests culminated in a nonviolent revolution, called the People Power Revolution, overthrew the Marcos regime and instituted democratic practice by passing the 1987 Constitution. The new government sought to recover Marcos’s ill-gotten wealth by removing and privatizing his and his supporters’ interests in mining companies.45 Given the large Igorot and Lumad groups, the 1987 Constitution ‘recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development’ by guaranteeing the protection of their rights to ancestral lands, as well as their economic, social and cultural wellbeing.46 Former Chief Justice of the Philippines Supreme Court Reynato Puno called it a shift ‘from assimilation and integration to recognition and preservation’.47 It recognizes indigenous cultural communities’ ancestral land and economic, social and cultural wellbeing but also declares that ‘Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain’.48 Where Justice Holmes’s 1909 opinion subjected that ‘natives’ 40 Lopez (n 8) 278; Ofreneo (n 37) 199. 41 La Bugal-B’Laan Tribal Association v Ramos, GR No 127882 (1 December 2004). 42 Mapping Militant Organizations, ‘Communist Party of the Philippines–New People’s Army’, Stanford University (24 August 2015) ; ‘Foreign Terrorist Organization: Redesignation of Communist Party of the Philippines/New People’s Army’, US Department of State (9 August 2004) (copy on file with author); see also Refugee Review Tribunal, ‘Country Advice Philippines’ (Australian Government, 12 April 2010) . 43 Ibid, Mapping Militant Organizations. 44 Ibid, Mapping Militant Organizations. 45 Lopez (n 8) 383. 46 The Constitution of the Republic of the Philippines art XII, ss 5, 22 (‘1987 Constitution’). 47 Reynato S Puno, The IPRA: Indigenous Peoples and Their Rights (2008), cited in Oxfam, Free Prior and Informed Consent in the Philippines: Regulations and Realities (American Briefing Paper, September 2013) 4 . 48 See 1987 Constitution (n 46).

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and ‘savage tribes’ to the state, the 1987 Constitution subjected ‘indigenous cultural communities’ to the state while reaffirming the Regalian doctrine.49 It does not mention ‘Indigenous peoples’, a term with signification in international legal discourse. Throughout the 1990s, the Philippine Presidents ‘embraced sweeping liberal economic reforms as a way of catching up with the country’s neighboring Asian tigers’.50 These ‘liberal economic reforms’ included entering into multilateral investment treaties, privatizing public services, and adopting the 1995 Mining Act.51 Two years later, it passed IPRA.52 More detailed analyses of the Mining Act and IPRA are necessary in order to analyze the B’laan opposition to the Tampakan mine.

The Mining Act and the IPRA The Mining Act permits the state to enter into agreements with natural resource developers.53 Although the 1997 IPRA, discussed below, has been viewed as the first instantiation of Indigenous consent and control over natural resources in national legislation, the 1995 Mining Act declares that ‘no ancestral land shall be opened for mining operations without the prior consent of the indigenous cultural community concerned’.54 Apparently, it allows the community to refuse an agreement.55 However, the Mining Act reveals an ambivalence about consent, especially considering that the section granting a right of consent is entitled, ‘Opening of Ancestral Lands for Mining Operations’. The IPRA and its regulations bolster indigenous cultural community consent, even though it ‘has not been clearly established how the IPRA is to be weighed against the Mining Act’.56 As much as scholars have criticized the Mining Act for conflicting with the IPRA,57 the Philippines demonstrates how states can adopt national legalization for FPIC while embracing countervailing laws, interests and interpretations. The 1997 IPRA was modelled on a draft of UNDRIP and ILO Convention No 169.58 In adopting the IPRA, those previously regulated as indigenous cultural communities were amalgamated with the international legal terminology of 49 50 51 52 53 54 55 56

1987 Constitution (n 46) art XII, ss 1–2. Camba (n 7) 76. Mining Act (n 6). IPRA (n 1); Camba (n 7) 76. Mining Act (n 6) art II, s 5. Mining Act (n 6) s 15. Mining Act (n 6) s 16. Brigitte Hamm, Anne Schax and Christian Scheper, Human Rights Impact Assessment of the Tampakan Copper-Gold Project, Mindanao, Philippines (Misereor, 2013) 18 (‘Human Rights Impact Assessment’); Stavenhagen 2003 (n 5) para 22; Camba (n 7) 768 (notes that both the IPRA and the Mining Act were, until 2011, under the Department of Energy and Natural Resources, which was charged with environmental protection as well as resource exploitation permitting). 57 Stavenhagen 2003 (n 5) para 22. 58 Cruz (n 34) II(a).

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Indigenous peoples. Hence, it recognizes ‘indigenous cultural communities/ indigenous peoples (ICCs/IPs)’.59 Senator Flavier proposed the IPRA Bill to protect ICCs/IPs, saying that ‘[t]heir survival depends on securing or acquiring land rights, asserting their rights to it; and depending on it. Otherwise, IPs shall cease to exist as distinct peoples’.60 The proposed Bill embraced two legal principles: ‘(1) the concept of native title [as recognized in Cariño] and (2) the principle of parens patriae’.61 Given this paternalism, the IPRA subjects all ICCs/IPs to the state and grants them rights for their own protection. Due to its protections for ICCs/IPs and its FPIC provision, some scholars view the IPRA as internationally significant landmark legislation, even as they lament its limitations or implementations.62 In 2006, state level regulations restricted its application, which were partially removed by the IPRA’s 2012 FPIC Guidelines.63 The Guidelines restructured the agencies involved in the interpretation and enforcement of the law and sought to ‘[e]nsure genuine exercise by Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) of their right to Free and Prior Informed Consent (FPIC)’.64 Although the Guidelines were seen as a beneficial step for ICCs/IPs,65 Executive Order 79 was promulgated almost simultaneously. It sought to increase mining revenue and foreign direct investment in natural resources.66

59 IPRA (n 1); see Nestor T Castro, ‘Three Years of the Indigenous Peoples Rights Act: Its Impact on Indigenous Communities’ (2000) 15(2) Kasarinlaw 35. The abbreviation ‘ICCs/IPs’ is common in the Filipino literature on ‘indigenous cultural communities/indigenous peoples’. I employ the same abbreviation in this chapter to refer to those regulated under the IPRA. 60 Cruz (n 34) III(A). 61 Cruz (n 34) III(A). See Augusto B Gatmaytan, ‘Political Implications of Ganwaon Indigenous Law’ (2001) 18 Tambara 27, 27–8, 39–41. 62 Marcus Colchester and Maurizio Farhan Ferrari, Making FPIC Work: Challenges and Prospects for Indigenous Peoples (Forest Peoples Programme, 2007) 11–12; Cathal Doyle and Jill Cariño, Making Free Prior & Informed Consent a Reality: Indigenous Peoples and the Extractive Sector (Piplinks, 2013) 20, 58; Doyle (n 3); Daniel Barstow Magraw and Lauren Baker, ‘Globalization, Communities and Human Rights: Community-Based Property Rights and Prior Informed Consent’ (2007) 35 Denver Journal of International Law and Policy 413, 425–7. 63 The 2006 Regulations were adopted after substantive revisions were made to the Mining Act. Mineral Action Plan for Executive Order No 270 and 270-A, National Policy Agenda on Revitalizing Mining in the Philippines; see Shadow Report (n 35) v. 64 Republic of the Philippines, Administrative Order No 03–12 or The Revised Guidelines on Free and Prior Informed Consent (FPIC) and Related Process of 2012 (April 2012) Pt 1, s 2(a) (‘Revised Guidelines 2012’). 65 Doyle (n 3); Pius Ginting, Melina Lumbantoruan and Ronal Allan Barnacha, Community Right Base Advocacy on Extractive Industries: Framing and Experience from Southeast Asian Countries (Publish What You Pay-Indonesia, 2015) 24–7. 66 Human Rights Impact Assessment (n 56) 18.

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Several specific IPRA provisions are important to acknowledge. The IPRA provides ICCs/IPs with substantive property rights as well as procedural safeguards for protecting those rights, such as FPIC.67 It defines FPIC as: The consensus of all members of the ICCs/IPs to be determined in accordance with their respective customary laws and practices, free from any external manipulation, interference and coercion, and obtained after fully disclosing the intent and scope of the activity, in a language and process understandable to the community.68 The IPRA also provides ICCs/IPs with the ability to self-delineate ancestral lands and obtain formal title from the government.69 However, the government retains the power to title, identify and demarcate those lands through the National Commission on Indigenous Peoples (NCIP). Seven of the eight NCIP seats are held by Indigenous Commissioners, which are supposed to mitigate concerns of bias or capture because. Each member is appointed to the NCIP by the President from a list compiled by ICCs/IPs, to support ICC/IP methods of delineation, demarcation and titling.70 The NCIP is tasked with assisting consent negotiations and ensuring that mine royalties are dedicated to ICCs/IPs for development, social services or infrastructure projects.71 FPIC is required for the exploration, development and use of natural resources, as well as for other purposes, such as relocation, research and bioprospecting. To support the NCIP in achieving these aims – and, as we will see, amid accusations of unfairly favoring industry – the 2012 Guidelines created an FPIC Team, who have knowledge of the peoples and provinces to assist and oversee the validity of the processes.72 Although the IPRA is legislation that seeks to support ICCs/IPs, it has attracted criticism. Jose Molintas argues that the legalization of property rights discourages tribal unity by pairing parcels with specifically identifiable individuals, families or tribes, and that it acts as a means of solidifying the state as the sole dispenser of legal title.73 Others have criticized the NCIP as manipulating FPIC and titling processes in favor of companies and the government.74 Augusto 67 National Commission on Indigenous Peoples Administrative Order No 1 Series of 1998, Rules and Regulations Implementing Republic Act No 8371, otherwise known as the Indigenous Peoples’ Rights Act of 1997, s 8 (Right to Resolve Conflicts According to Customary Laws) (‘Rules and Regulations for IPRA’). 68 IPRA (n 1) s 3(g). 69 Department of Energy and Natural Resources Administrative Order No 2, series of 1993, ss 51, 52. 70 IPRA (n 1) s 40. 71 IPRA (n 1) s 44; Rules and Regulations for IPRA (n 67) Part II, s 2(a). 72 Revised Guidelines 2012 (n 64) s 16. 73 Molintas (n 23) 288. 74 International Working Group for Indigenous Affairs (n 24) 258; Marya Salamat, ‘Indigenous Peoples’ Groups Decry Use of IPRA and NCIP for Development Aggression’, Bulatlat.com (12 August 2011) . Augusto B Gatmaytan, ‘Philippine Indigenous Peoples and the Question for Autonomy: Negotiated or Compromised?’ in August B Gatmaytan (ed), Negotiating Autonomy: Case Studies on Philippine Indigenous Peoples’ Land Rights (Legal Rights and Natural Resources Center Kasama sa Kalikasan, 2007) 1, 19–25. International Council on Metals and the Environment, Mining and Indigenous Peoples: Case Studies (ICMM, 1999) v. Preliminary note on the visit of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, to the Philippines (12–21 February 2007) A/ HRC/4/20/Add.3, 22 March 2007, para 8. Smith (n 23) 82. Smith (n 23) 14.

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Kiblawan), five barangay councils and leaders of the B’laan communities. These agreements took place before the IPRA’s enactment. In 1998, the year after the IPRA came into force, Stephen Davis published an article on agreement-making between Western and B’laan communities. As a geographer for Western, Davis’s article was an early and, in retrospect, overly congratulatory view.80 Davis wrote that the corporation entered into Heads of Agreement with the traditional B’laan leaders, called fulong or bong fulong.81 Those agreements were then superseded by more formal instruments, called Principal Agreements (PAs).82 Davis described how the PAs mirrored the two-tiered traditional B’laan agreement-making: the first level was a kasfaia, which binds two people in agreement, and the second is a diandi, a public blood compact where breach is punishable by death.83 Davis noted that the B’laan had not been relocated and that if ‘mineral development proceeds, then relocation would need to be discussed with a small number of people potentially affected. However, the informed consent of the affected people and fair compensation’ would be required.84 Davis also recognized that there would also be opposition to the mine, which he thought would primarily stem from environmental groups, which believed that the ‘Bla’an stand to bear the brunt of [Western’s] activities’, and local communities that were not poised to benefit from the project.85 He thought that Western’s ability to work with the local B’laan community provided a foundation for the development project, which had ‘angered a number of advocacy groups who have found it hard to find fertile grounds to criticize [Western]’.86 He described that the agreement process allowed the B’laan communities and Western ‘to understand more about each other and provided a basis on which a mutual understanding and a positive working relationship could grow’.87 With Western’s assistance, potentially affected B’laan secured formal title to several areas.88 Davis quoted Limukum Cafion, who said, ‘We, the leaders of Bong Mal, need help to explain our situation to the government … We do not have any advocates. We would like [Western] to stay in our area and be our advocate. Talk to the government, and help us’.89 Given the putatively extensive consultations and complex agreement formation processes, the ICME viewed Western’s Tampakan mine as a 80 Stephen L Davis, ‘Engaging the Community at the Tampakan Copper Project: A Community Case Study in Resource Development with Indigenous People’ (1998) 22(4) Natural Resources Forum 233. 81 Ibid, Davis 236–8; Smith (n 23) 75–7 (explains fulong means ‘leader’ and bong fulong means something like ‘big leader’). 82 Ibid, Davis, 239; Smith (n 23) 15. 83 Ibid, Davis, 239. 84 Ibid, Davis, 240. 85 Ibid, Davis, 240, 242. 86 Ibid, Davis, 242. 87 Ibid, Davis, 239 88 Human Rights Impact Assessment (n 56) 25, citing Hansen Bailey, Environmental and Social Impact Assessment – Tampakan Mine Project (Sagittarius Mines, Inc, 2011) 38. 89 Davis (n 80) 240, 242.

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new and promising standard for community development and mine–community relations.90 The ICME also repeatedly emphasized the difficulty of developing projects where ‘advocacy groups’ oppose mining activities.91 Smith’s fieldwork and interviews on consultation and development surrounding the Tampakan mine in 1999 and the early 2000s revealed complicated, multivalent socio-political circumstances and growing dissatisfaction with the miners.92 Smith found that some provincial Governors as well as a Mayor from a municipality had not entered into agreements with Western, and were ‘expressing dissatisfaction over environmental safeguards’.93 He describes how they questioned Western’s environmental safety, even though none could provide an example of environmental risk.94 Smith tentatively explains that their environment concerns were a ‘smokescreen for deeper political machinations’: Considering the recent history of Mindanao, particularly the abuses of Ferdinand Marcos’ martial law regime [1972–86], the recalcitrance of some local leaders may have been a tacit reflection of left-wing opposition to the state strategy of top-down development by means of multi-national corporate investments in exchange for rights to land, minerals, etc.95 Smith also questioned Davis’s account. Davis claimed that Western found traditional B’laan society to be structured around a ‘single strongman’, but Smith failed to find a ‘strongman’ society even if their communities were not democratic.96 Where Davis claimed that Western had entered into traditional kasfaia and diandi agreements, Smith found little evidence that the agreements significantly differed from standard mining PAs.97 Smith tentatively concluded ‘that the company might be seeking B’laan customs to fit with mining practices rather than the other way around’.98 The legal challenge and international legal discourse Beginning in 1997 and lasting until 2004, Western faced a legal challenge from the B’laan, who acted as the lead plaintiffs for various interested parties. The challenge would ultimately fail, but international legal discourse on Indigenous peoples would find its way into local struggles while that litigation occurred.

90 91 92 93 94 95 96 97 98

International Council on Metals and the Environment (n 76) 41–50. International Council on Metals and the Environment (n 76) viii, 49, 50. Smith (n 23). Smith (n 23) 86. Smith (n 23) 86. Smith (n 23) 86. Smith (n 23) 88. Smith (n 23) 88. Smith (n 23) 88.

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When Western obtained its FTAA under the Mining Act, the Catholic Church, environmental and social NGOs, and some B’laan opposed it. They had various reasons for opposing the FTAA, but channeled their opposition into a constitutional challenge in La Bugal-B’Laan Tribal Association v Ramos.99 As the lead plaintiffs, members of the B’laan Tribal Association enacted subjection to the state, and in doing so sought to uphold their view of the 1987 Constitution. They argued that FTAAs perpetuated the ‘service contracts’ of the Marcos era by giving foreign companies full control over natural resources in contravention of the Regalian doctrine and the 1987 Constitution’s limitation on foreign interests in natural resource exploitation.100 The Supreme Court initially sided with the B’laan and the other petitioners.101 The controversy, however, did not end. While the proceedings commenced, Western sold its holdings to Sagittarius Mines, Inc (SMI), a corporation organized under Filipino law and owned by a Filipino majority.102 Subsequently, in 2004, the court reversed its opinion, finding that the miner’s foreign status was rendered moot through a valid transfer of the FTAA to a Filipino company, which adequately protected Filipino sovereignty.103 Even if that appeared to end the political controversy so that the Tampakan mine could proceed, the Court’s reversal became a lightning rod for anti-mining activism. Alan Tan claimed that ‘[t]op government officials, including the President and several congressmen, senators, and department secretaries, subsequently lent their voices to the chorus urging the Supreme Court to review its decision’.104 Similarly, Catholic missionary Father Shay Cullen reported that the Speaker of the Congress Jose de Venecia started a political campaign to reverse the initial decision as a ‘signal to the captains of industry … to go back to the Philippines and take a good strong second look at our mining potential’.105 Later, as international human rights NGOs invoked international legal discourse, they would cite Tan’s and Cullen’s views.106 99 100 101 102

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La Bugal-B’Laan Tribal Association v Ramos (n 41). Goodland and Wicks (n 5) 110–12. La Bugal-B’Laan Tribal Association v Ramos (n 41). La Bugal-B’Laan Tribal Association v Ramos (n 41). The holders of the original FTAAs were Filipino companies, Sagittarius, Tampakan Mining Corp and Southcot Mining Corp, as pointed out in the earlier trial. It also invalidated portions of the FTAA; see La Bugal-B’Laan Tribal Association v Ramos (n 41) ss 7.8, 7.9. Alan Khee-Jin Tan, ‘All That Glitters: Foreign Investment in Mining Trumps the Environment in the Philippines’ (2005–06) 23(1) Pace Environmental Law Review 183, 195. Shay Cullen, ‘The Rights of the Indigenous Peoples to Their Ancestral Lands Is Sacred’, Mines and Communities (18 October 2006) , citing Father Shay Cullen’s mission website at . Goodland and Wicks (n 5) 112 n 12, citing Cullen; Human Rights Impact Assessment (n 56) 18, citing Tan (n 104); Shadow Report (n 35) ii (unattributed citation uses the same language as Shay Cullen).

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As evaluated in Chapter 2, by the early 2000s, Indigenous peoples’ rights had spread throughout international legal organizations. As emblematic of this development, in 2003, the first UN Special Rapporteur on Indigenous Peoples Rodolfo Stavenhagen wrote: A mining license was granted to the Western … for areas that cover the territory of the community of B’laan … As a result of this mining operation, it was reported that the B’laan were deprived of their right to determine their own economic, social and cultural development and their property was disposed of. No genuine consent was given by the indigenous peoples. They argue that their leaders were tricked by the authorities into signing agreements which they could not fully understand and which have not benefited them.107 Stavenhagen’s account significantly differs from Davis’s provided above. When Stavenhagen writes that ‘[n]o genuine consent was given by the indigenous peoples’, he is obviously talking about the B’laan community. It is not so obvious that, as the first UN Special Rapporteur on the Rights of Indigenous Peoples, he is legitimating the B’laan as Indigenous peoples for the purposes of international legal discourse. Stavenhagen begins by describing Western’s impact on the B’laan. He then links the reports made on behalf of the B’laan to the language on selfdetermination in common article 1 of the International Covenants, ‘the right to determine their own economic, social and cultural development’. Then, as though writing a legal memo, he establishes that the B’laan qua Indigenous peoples did not provide genuine consent, because their leaders were tricked. After forming the B’laan into Indigenous peoples, he recommends ‘[t]hat the Philippine judiciary fully respect the legislative intent and spirit of IPRA and ensure that maximum favour be accorded to indigenous peoples in resolving the issue of conflict of law between IPRA and other national legislation such as the 1995 mining Act’.108 The notion of IPRA’s ‘spirit’ is important. When human rights advocates compare the IPRA (as law or in practice) to other international instruments, the ‘spirit’ is then re-cited as the conceptual remainder that animates claims for proper recognition of Indigenous peoples’ FPIC. Because the IPRA was modelled on drafts of UNDRIP and ILO Convention No 169 and regulates the B’laan as ICCs/IPs, the B’laan already appear like Indigenous peoples for international legal purposes. If one adopts a legal model and focuses on the rights rather than the ways in which subjects are produced in relation to the rights claim, the B’laan appear as de facto, rather than de jure, Indigenous peoples. Thus, Stavenhagen and others can identify the B’laan as Indigenous peoples, even though it is legal actors who form the B’laan into Indigenous peoples by deploying international legal discourse in their identification 107 Stavenhagen 2003 (n 5) para 34. 108 Stavenhagen 2003 (n 5) para 67(c) (emphasis added).

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and subjectification of the B’laan as legitimate Indigenous peoples. Even if these processes appears natural, there are struggles to performatively enact the subjectivity. Increasing conflicts, heightened stakes, lofty rhetoric Following the Supreme Court’s reversal, the Tampakan mine re-commenced feasibility studies, including an environmental impact assessment.109 Meanwhile, Special Rapporteur Stavenhagen discussed the B’laan in his reports on the Philippines in 2002 and 2003, which legitimated deployments of international legal discourse by scholars and advocates as reflecting a natural and true account of the B’laan qua Indigenous peoples. Accordingly, human rights advocates would propose alternative models for sustainable development to support Indigenous peoples’ FPIC and self-determination. In 2008, one year after the UN General Assembly’s endorsement of UNDRIP, Robert Goodland and Clive Wicks published a series of case studies entitled Philippines: Mining or Food?110 They argued that the government should promote food security and demote mining as the largest environmental risk to food security.111 Although it is not obvious that the B’laan have a role to play in food security, according to international legal discourse Indigenous peoples are natural guardians of sustainable development. Hence, Goodland and Wicks argue that the Philippines should: necessitate that mines be developed according to climatic, geographic, and demographic conditions. It would also require adherence to the legislative protection already in place, respect for Indigenous Peoples’ rights and ensuring that the income generated be used to support sustainable activities. Indigenous peoples regard large-scale mining as a direct threat to their survival.112 To support their argument, they use the Tampakan mine as one of several case studies and treat the B’laan as, naturally, Indigenous peoples. They write that ‘[t] here are 33,000 people in the municipality of Tampakan including the La Bugal B’laan Indigenous Peoples who used to be hunter-gatherers and fishers’.113 They then argue that if Indigenous peoples’ FPIC had been followed, a more sustainable development approach towards protecting food sources would have been followed. They note that ‘[e]xploration permits were granted in May 1995,

109 Rocel C Felix, ‘Indophil to Invest $51M in Tampacan Gold-Copper Mine’, The Philippine Star (online) (19 May 2006) . 110 Goodland and Wicks (n 5). 111 Goodland and Wicks (n 5) x–xiv. 112 Goodland and Wicks (n 5) xii. 113 Goodland and Wicks (n 5) 107.

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without any Free and Prior Informed Consent being obtained’.114 In a footnote, Goodland and Wicks explain that: Stavenhagen (2003) questions the legitimacy of the signed documents supposedly giving consent to the project since it was signed in 1995, a month after the issuance of a mining permit and the signing of the FTAA. The law stipulates that ‘free and prior informed consent’ is required before granting a mining permit.115 In fact, the 1995 Mining Act states that ‘[n]o ancestral land shall be opened for mining operations without the prior consent of the indigenous cultural community concerned’.116 It prohibits mining operations, not permitting, until ICCs provide consent.117 The retroactive and ahistorical application of Indigenous peoples’ FPIC performatively re-cites and re-writes international human rights to question the validity of the mine’s current or future development. In their case studies, Goodland and Wicks cite Cullen’s report, and re-cite Stavenhagen’s recommendation.118 They write that the Philippine government should ‘[e]nsure adherence with the spirit and letter of IPRA and the UN Declaration on the Rights of Indigenous Peoples’.119 The re-citation exhibits decontextual/recontextualized slippage. Where Stavenhagen wrote of the ‘intent and spirit of the IPRA’, Goodland and Wicks re-cite the ‘spirit and letter of IPRA’, as though the Philippines was not enforcing IPRA or UNDRIP, even if they were not applicable when the mine was permitted in 1995. SMI responded that the publication was biased.120 As the first human rights case study on the Tampakan mine, Goodland and Wicks’ publication channeled dissatisfaction and drew attention to the rights claims of the B’laan Indigenous peoples. Their report has been subsequently re-cited in ways that influence the discourse on the Tampakan mine development, human rights, environmental harm and the ensuing social effects.121 While international legal discourse gained traction in the Philippines, the CPPNPA continued attempting to overthrow and subvert capitalistic endeavors. While Goodland and Wicks were compiling research for the Philippines: Mining or Food?, 114 Goodland and Wicks (n 5) 109. 115 Goodland and Wicks (n 5) (emphasis in original). It is not clear that Stavenhagen wrote what they claim. 116 Mining Act (n 6) s 16. 117 Issuing permits may make the consent of ICCs/IPs appear as a foregone conclusion, but holding that view undermines the IPRA as much as it seeks to uphold it. 118 Goodland and Wicks (n 5) 112 n 12. 119 Goodland and Wicks (n 5) xviii (emphasis added). 120 Mark Williams, General Manager, SMI, ‘Letter to Joanne Bauer, Business and Human Rights Resource Center’ (24 March 2009) . 121 See Shadow Report (n 35) 81; Human Rights Impact Assessment (n 56) 18 citing Tan (n 104).

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the CPP-NPA attacked and destroyed portions of SMI’s base camp.122 In response, local governments, police agencies and SMI created a task force named KITACO (named for the local government units of Kiblawan, Tampakan and Columbio); SMI hired a private security firm to protect its assets and workers; and the Philippine Department of National Defense considered deploying soldiers to protect the project.123 Xstrata, a UK–Swiss investor in the mine development, urged the government to accept responsibility but voiced ‘serious reservations about involving the military so actively’.124 Similarly, Eliezer Billanes, a local antimining advocate, warned against militarization noting that it ‘will result to [sic] displacement of indigenous peoples and more human rights violations’.125 Although financers and anti-mining advocates both warned against it, militarization increased, especially after Billanes was murdered. Local mining opponents called his death an ‘extra-judicial killing promoted by high-ranking agents of the government’ to ‘horrify the mass activists and environmentalists’.126 SMI denied any connection and made reassurances that all staff and security would be further trained on its voluntary initiatives and human rights.127 SMI’s reassurances regarding human rights training and the invocation of its voluntary initiatives demonstrate that it was not simply a passive target of human rights abuse allegations. Rather, its response was representative of the way in which voluntary initiatives influence international legal discourse by providing corporations with a means of ‘respecting’ human rights. Increasing violence was matched by increasing human rights rhetoric. The Working Group on Mining in the Philippines, a human rights NGO comprised of the same supporters as Philippines: Mining or Food?, submitted a call for evidence of human rights abuses based upon that publication to the United Kingdom’s Joint Committee on Human Rights.128 Although it is unclear why a UK Joint Committee on Human Rights would have jurisdiction over matters in the Philippines, or what actions it could take, the submission explains that the case studies 122 Bong S Sarmiento, ‘Critics Nix Deployment of Soldiers in Mining Site’, Inside Mindanao (19 October 2008) . 123 Ibid, Sarmiento. 124 Goodland and Wicks (n 120). 125 Sarmiento (n 122). 126 Soccsksargends – Alliance for Genuine Development, ‘Agenda on the Facts and Story behind the Death of Eliezer “Boy” Billanes’, Mindanews (27 March 2009) . 127 Sagittarius Mines, Inc, ‘Statement to Be Attributed to Mr Mark Williams, General Manager, Sagittarius Mines, Inc. (SMI)’ (Press Release, 17 March 2009) . 128 Working Group on Mining in the Phillippines [sic] (WGMP), ‘The Impact of UKBased Mining Companies on the Philippines, Particularly Focusing on the Right to Food’ (16 December 2009) .

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‘[a]ll have a UK connection’.129 It performatively supports Indigenous peoples’ human rights assertions and increase international scrutiny of the mine development. Another consortium of NGOs, acting on behalf of all Philippines Indigenous Peoples, submitted a shadow submission to CERD. It described human rights abuses and the ways in which the Philippines’ 2006 FPIC Guidelines ‘conflict with the law’.130 Even though the Philippine government enacted the 2006 Guidelines according to legal processes, the submission explains that the law: evolved into a highly discriminatory set of rules which impose restrictions on the time, manner and process of FPIC which are not in conformity with the customs, laws and traditional practices of indigenous communities. They clearly work against the spirit and letter of the IPRA on FPIC.131 Not only does this statement reflect how laws ostensibly for protection can, in time, become viewed as ‘evolving’ into a discriminatory set of rules, it also re-cites Stavenhagen’s language as the ‘spirit and letter of the IPRA on FPIC’. CERD affirmed the views and responded by criticizing: extrajudicial ‘executions’, ‘disappearance and detention’, and internal displacement due to armed conflict; the application of the Regalian doctrine and the Mining Act as contrary to indigenous property rights of the IPRA; and other human rights violations.132 It also recommended that ‘the State party verify that the current structures and guidelines/procedures established to conduct FPIC are in accordance with the spirit and letter of IPRA’.133 The re-citations of this language – ‘the spirit and letter’ – demonstrates how a phrase or term within a citational-chain may be slightly altered over time and in mostly innocuous ways. At first, the phrase the ‘spirit and letter’ was about the IPRA. Then it became about the IPRA and the UNDRIP. Then it was the IPRA and FPIC. As expressed below, when advocates began to view the IPRA unfavorably, this phrase would become the ‘spirit of FPIC’.134 While otherwise harmless, the ‘spirit’ displaced the letter while contributing to the notion that FPIC, even if initially codified in national legislation or in international human

129 130 131 132

Ibid, WGMP. Shadow Report (n 35) 36–8. Shadow Report (n 35) 9. Committee on the Elimination of Racial Discrimination, Consideration of Reports Submitted By State Parties Under article 9 of the Convention, Concluding Observations of the Committee on the Elimination of Racial Discrimination, Philippines, 75th session, UN Doc CERD/C/PHL/CO/20 (3–28 August 2009) paras 13–35. 133 Ibid, Committee on the Elimination of Racial Discrimination, para 24. 134 Joji Cariño, ‘Indigenous Peoples’ Right to Free, Prior, Informed Consent: Reflections on Concepts and Practice’ (2005) 22 Arizona Journal of International and Comparative Law 19, 39.

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rights, has become increasingly viewed as a right inherent to Indigenous peoples as natural subjects. Violence and the struggle to identify subject-status Within the community, consent and FPIC became part of the local vernacular. A media outlet interviewed ‘B’laan leader Pilo Capion’, who had previously worked for and supported the mine.135 However, Pilo changed his mind, ‘recently siding with the Catholic Church’, when roads were constructed without ‘prior consent’.136 Pilo, his brother, Daguil, and his grandfather complained that they were ‘promised the heavens … so they gave their consent to the firm’s plans. But he claimed they were not told about the project’s ill effects’.137 Media also cited Father Romeo Catedral, who said that ‘though they gave their consent … they never understood what large scale mining was all about and would have never allowed the mining company if they were told in the first place’.138 Supported by or aligned with the Church, the Capions asserted that even if they had, at one time, provided consent, it was not informed consent. When SMI was asked to respond, the manager for community affairs noted growing discontent but downplayed it as ‘a tribal leadership crisis’.139 Even if there were changes in tribal leadership, international legal commentators and actors were scrutinizing the project and FPIC in the Philippines, which amplified and perhaps contributed to those shifts in power. A series of killings around the mine forced SMI to, again, delay the start of operations.140 In 2011, three drill operators were killed, followed by the murder of SMI’s offsite land acquisition offer.141 The following year, Daguil Capion, whose discontent was mentioned above, claimed responsibility for killing two SMI security guards.142 Shortly afterwards, Armed Forces of the Philippines Brigade killed Capion’s wife Juvy and their two children.143 The Brigade claimed that they were casualties from actively pursuing Capion.144 Witnesses asserted that Capion 135 Romer S Sarmiento, ‘Discontent in a Mining Wilderness’, Business World (28 October 2009) . 136 Ibid, Sarmiento. 137 Ibid, Sarmiento. 138 Ibid, Sarmiento. 139 Ibid, Sarmiento. 140 Bong S Sarmiento, ‘Mining Firms Form Group in Central Mindanao’, MindaNews (12 June 2012) . 141 Edwin Espejo, ‘Tampakan Mine Operator Seeks Tighter Security Due to Attacks’, Rappler (27 July 2012) . 142 Ibid, Espejo. 143 Human Rights Impact Assessment (n 56) 54. 144 Human Rights Impact Assessment (n 56) 54.

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was not present, that Juvy and her children were unarmed, and that the Brigade was destroying evidence.145 Locals began referring to the murders as the ‘Capion massacre’ or the ‘Tampakan massacre’.146 When prosecutors acquitted the alleged murderers, Indigenous peoples and human rights advocacy groups publicized local dissent in international legal fora.147 In 2013, KITACO forces killed Kitari Capion, Daguil’s brother, and claimed that they were fired upon by Capion’s group.148 Shortly afterwards, forces killed two more B’laan members, which was again justified as pursuing Capion.149 Media outlets then reported that Capion had joined the CPP-NPA.150 Much of the violence surrounds Daguil Capion and the Capion family. Unsurprisingly, there were conflicting attempts to identify whom he sided with or was used by, and why. Those who support the state and the mine emphasize his violence and view him through a legal lens as a criminal in order to justify state violence. A local Mayor was reported to have called Daguil Capion a ‘bandit’ and offered a reward for his capture, ‘which translates into a shoot-to-kill order … [because] the branding of Daguil as a bandit made him and his entire family an open target’.151 It was also reported that the ‘military … said Capion is a bandit who resorted to armed robbery after he was denied work in the company’.152 At the most extreme, a local chapter of the Filipino Alliance for Nationalism and Democracy claimed that he was a fugitive bandit who deployed anti-mining rhetoric to escalate a personal quarrel with a Mayor and was being used by the CPP-NPA to advance their agenda.153 In identifying him as a ‘bandit’ or a 145 Human Rights Impact Assessment (n 56) 54. 146 Marya Salamat, ‘Prosecutor’s Dismissal of Case against Accused Soldiers in Capion Massacre Slammed’, Bulatlat.com (19 October 2013) . 147 Ibid, Salamat; Amnesty International, The State of the World’s Human Rights (Amnesty International, 2013) 211. 148 Aquiles Zonio and Orlando Dinoy, ‘B’laan Leader Capion Confirms Brother Killed in Clash with Soldiers’, Inquirer Mindanao (31 January 2013); Human Rights Impact Assessment (n 56) 54. 149 Bong S Sarmiento, ‘2 Dead in Fresh Violence at Tampakan Mine Site – Military’, MindaNews (23 August 2013) . 150 Edwin Espejo, ‘NPA’s Latest Recruit: Fugitive tribal Leader’, Rappler (24 April 2013) ; ‘Daguil Capeon Interview’, YouTube (April 2013) . 151 Raymund V Villanueva, ‘Probe Reveals Massacre of Blann Family “Premeditated”’, Bulatlat.com (19 November 2012) . 152 Edwin Espejo, ‘Anti-mining tribe leader’s wife, 2 sons killed in “encounter”’, Rappler (18 October 2012) . 153 Alliance for Nationalism and Democracy (ANAD), Facebook (Untitled Post, 28 March 2013) ; Alliance

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‘fugitive’, these actors attempt to subjectify Capion as an illegitimate, violent actor who cannot be tolerated in democratic society because he is outside the law. On the other side are those who identify Daguil Capion as a traditional B’laan elder and leader by emphasizing his role in the B’laan community, the Capion family or the clan, rather than as an individual. Whether knowingly or not, they seek to shape the B’laan into traditional and essential Indigenous peoples. For instance, in a local newspaper, Raymund Villanueva wrote: For a fulong, a well-respected B’laan clan elder, however, Daguil is not a bandit … The Capions initially supported SMI-Xtrata, including Daguil, who was employed by the mining company as a community relations staff for three years starting in 2005 … [but] [t]he clan had a falling-out with the company when it ordered the Capions to leave their land, which SMI-Xstrata wanted to buy … [T]he Capions said they are just following and enforcing their customary laws against violators of their ancestral domain. ‘When it comes to our land, our laws, and not of outsiders, apply,’ the fulong said.154 Villanueva demonstrates how, in the context of a claim for Indigenous peoples’ rights, the individual is de-emphasized, while the traditional laws and identities are emphasized. When Villanueva explains that the Capions sought to enforce their customary law, the name ‘Daguil’ is replaced with his traditional title of ‘fulong’. Those who support Daguil Capion identify his violence as that of a tribal resistance leader, who had declared a pangayaw (a traditional tribal war) after it became clear that his people would be forcibly relocated from their ancestral lands.155 Human rights groups have trouble with Daguil Capion’s association with the nondemocratic CPP-NPA. In their human rights impact assessment of the mine, Hamm, Schax and Scheper report that the CPP-NPA ‘capitalized on the resentment felt primarily by indigenous community members towards SMI to recruit new members’.156 They then express concerns that Philippine military forces were legitimating their operations by listing Indigenous communities as CPP-NPA supporters.157 To support the B’laan qua Indigenous peoples, they de-emphasize the individual as violent and either legitimate any violence as being based on tribal law or view the CPP-NPA as somehow using the B’laan to advance their own agenda.

154 155

156 157

for Nationalism and Democracy (ANAD), Facebook (Untitled Post, 30 March 2013) . Villanueva (n 151). Sarmiento (n 149); Edwin Espejo, ‘Survivors of Capion Killings “Hijacked”’, Rappler (22 October 2012) ; Kalikasan, ‘Capion Family Massacre “Worst Act of State Terrorism” in Mining-Affected Communities, Green Group Says’ (Press Release, 20 October 2012) . Human Rights Impact Assessment (n 56) 29. Human Rights Impact Assessment (n 56) 15.

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Undoubtedly, the B’laan are Indigenous peoples, which is a historically contingent international legal subjectivity, rather than a pre-legal natural subject status. Those who resist the state or mine, such as Daguil Capion, can align with whomever they want to further their interests. Those who resist can align with the Catholic Church, Indigenous peoples, environmental organizations or communist militias. They can and will use whatever political platforms are available to express their agency and opposition. They may assert human rights and they may not. In this context, pro-mining and anti-mining actors identify and subjectify Daguil Capion differently. The struggle for subjectstatus is not necessarily his or performatively enacted only by him. He might be a bandit, or an outlaw, as well as a traditional leader engaged in a traditional war in opposition to the mine or state-backed capitalist enterprises. How others view him and identify him may be intentional or not. However, it is clear that the different attempts to identify him seek to subjectify him in ways that advance the identifiers’ projects. In 2015, Glencore (formerly Xstrata) exited the project. The Tampakan mine may become socially or economically viable at some point, but it is shuttered for now. SMI remains in the community,158 and rumors persist that the mine may open.159 Although the Tampakan mine is controversial, almost everyone agrees that FPIC did not work as it ‘should’ have.

Criticism of FPIC in the Philippines The B’laan opposition to the Tampakan mine is one example of FPIC in the Philippines, but it reflects the troubles that ICCs/IPs face in using FPIC, the violence that Indigenous peoples and anti-mining advocates confront, and the ramifications of an incredibly complex history in a post-colonial state. Many view the problem with FPIC as failures in implementation. For instance, Rosa Cordillera A Castillo and Fatima Alvarez-Castillo write: Violations of the rights of indigenous peoples continue in the age of the modern state. In the Philippines, these violations are often linked to largescale development projects like dam, logging and mining in indigenous peoples’ lands. Such development projects are accompanied by numerous cases of fraudulently obtained ‘free and prior informed consent’ (FPIC), militarization, displacement and killing of indigenous peoples and their advocates. These occur despite the recognition of the rights of indigenous peoples in both the Constitution and national laws, including the right to 158 Sagittarius Mines, Inc, ‘Altayan River in Tampakan gets a clean-up’ (Press Release, 23 June 2017) . 159 Louise Maureen Simeon, ‘DENR thumbs down Tampakan mine project’, Philippine Star (online) (28 July 2016) .

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give or withhold FPIC. The law’s implementation leaves much to be desired.160 In specifically considering the Tampakan mine, First Peoples Worldwide, an NGO advocating for Indigenous peoples, writes: After learning about potential benefits and downsides to the mine, community members were initially split in their opinions; however, as the violent encounters between community members and the company have continued, more and more B’laan villagers now oppose the mine. Proper consultation and negotiations on the behalf of Glencore-Xstrata could have prevented numerous deaths, injuries, protests, and project delays.161 Other commentators question the Philippines’ FPIC and claim that it was implemented to the detriment of its Indigenous peoples,162 instead of protecting them or providing a pathway towards sustainable mining development. Doyle sees ‘scant evidence of indigenous peoples benefitting from mining and numerous cases that point to the contrary’, which supports his view that FPIC needs fixing and proper recognition.163 Some believe that each party (industry, government and ICCs/IPs) uses the IPRA to advance its own personal, market-based interests,164 or that IPRA creates a ‘consent for the highest bidder’ mentality among ICCs/IPs.165 If the formative and productive features of law can do that, then adopting FPIC into national law might destroy what it seeks to protect.166 And then there is recourse to international legal discourse, as though Indigenous peoples are natural subjects. The 160 Rosa Cordillera A Castillo and Fatima Alvarez-Castillo, ‘The Law Is Not Enough: Protecting Indigenous Peoples’ Rights against Mining Interests in the Philippines’ in R Wynberg, D Schroeder and R Chennells (eds), Indigenous Peoples, Consent and Benefit Sharing: Lessons from the San Hoodia Case (Springer, 2009) 272; see also International Working Group for Indigenous Affairs (n 24) 258. 161 First Peoples Worldwide, ‘Victims of B’laan Massacre Call on UN to Intervene in Violent Struggle over Mine’ (14 November 2013) (copy on file with author). 162 Grego Keienburg, ‘Blessing or Curse? – The Indigenous Peoples Rights Act of 1997 and Its Implementation’ (2012) 4(2) Observer 16, 17–19. 163 Doyle (n 3) 57. 164 Castro (n 59); Cheryl L Daytec-Yañgot, ‘FPIC: A Shield or Threat to Indigenous Peoples’ Rights?’, Indigenous Peoples Foundation for Education and Environment (undated) 10 (copy on file with author). 165 Ann Loreto Tamayo, Legislation Not Necessarily a Guarantee to the Exercise of FPIC in Philippines (Institute of Ecology and Action Anthropology, 2012) 14 . 166 Ibid, Tamayo; Grizelda Mayo-Anda, Loreto L Cagatulla and Antonio G M La Vina, ‘Is the Concept of Free, Prior and Informed Consent Effective as a Legal and Governance Tool to Ensure Equity among Indigenous People?’ (Paper for the Conference of the International Association for the Study of Common Property, Bali, Digital Library of the Commons, Indiana University, 2006) 26.

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National Alliance of Indigenous Peoples’ Organizations in the Philippines (Kalipunan ng mga Katutubong Mamamayan ng Pilipinas) has argued that the IPRA is a ‘tool to deceive and appease the indigenous people’s struggles for land and self-determination’.167 Despite the IPRA’s failure to work as advocates believe it should, many have begun advocating for FPIC and legal recognition of Indigenous peoples’ rights in a less ‘formalistic’ or ‘bureaucratic’ interpretation, or in an altogether non-legal manner – a move away from IPRA’s legalism.168 For example, Cariño argues, not that FPIC fails, but that ‘[t]he Philippine experience demonstrates a failure to implement the “spirit” of FPIC’.169 Under a view where FPIC’s implementation is problematic but FPIC itself is not, there are several options that enable one to suggest that Indigenous peoples have control. The first is to adopt and (re)deploy a legal model and suggest some alterations to the legal apparatus or process to make it ‘better’: reform the IPRA or the NCIP, adopt more operational guidelines, make mining illegal or alter the Constitution. There are many potential legal solutions one could suggest to actualize the hope of creating space or control for Indigenous peoples. One could also seek a different legal form. For example, some see Indigenous peoples as having ‘no option but to resort to direct political action, exemplified in public rallies to demonstrate their opposition and petition signing to put pressure on government officials to act more responsibly’.170 Chapter 5 examines a case study where Indigenous peoples claim FPIC as a requirement of international human rights law, which is one way of putting ‘pressure on government officials’ that state actors view as more akin to ‘direct political action’. As encouraged here, one could also query the effectiveness of legal models and inquire about the ways in which power precedes and produces the subject to claim rights. From a similar position, Camba writes: My own fieldwork shows that the FPIC process gives the leader or the council of the indigenous peoples the freedom to choose what kind of operation to allow and under which conditions … The law not only prefigures a liberal logic, reducing people to individual subjects with ‘free’ choices like consumers in markets, 167 Salamat (n 74); see also Abbi Buxton, ‘The Spirit of FPIC: Lessons from Canada and the Philippines’ (2012) Participatory Learning and Action 65, 67. 168 Doyle (n 3) 199; Cariño (n 134); see also Leanne A Farrell, Ralph Hamann and Eric Mackres, ‘A Clash of Cultures (and Lawyers): Anglo Platinum and Mine-Affected Communities in Limpopo Province, South Africa’ (2012) 37 Resource Policy 194; John R Owen and Deanna Kemp, ‘“Free Prior and Informed Consent”, Social Complexity and the Mining Industry: Establishing a Knowledge Base’ (2014) 31 Resource Policy 91. 169 Cariño (n 134) 39. Cariño then co-wrote, with Doyle, Making Free, Prior & Informed Consent a Reality: Indigenous Peoples and the Extractive Sector (PipLinks, 2013). See, eg, Buxton (n 167), 67; Abbi Buxton and Emma Wilson, FPIC and the Extractive Industries (International Institute for Environment and Development, 2013). 170 Castillo and Alvarez-Castillo (n 160) 271–84.

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but also violently abstracts the historically tenuous experience of the autonomous indigenous peoples from the ‘sin’ of Philippine nation state formation.171 That style of analysis is pursued in Chapter 7. First, we consider how FPIC is claimed as a requirement of international human rights law when states view those claims as ‘direct political action’.

171 Camba (n 7) 78.

Chapter 5

FPIC as international human rights law Australia, the Wangan and Jagalingou, and the Carmichael Mine

Introduction This chapter examines how FPIC is claimed as a requirement of international human rights law where the state has not adopted it into law. Chapter 4 ended by suggesting that Indigenous peoples might use FPIC by ‘resort[ing] to direct political action, exemplified in public rallies to demonstrate their opposition and petition signing to put pressure on government officials to act more responsibly’.1 This chapter examines what it looks like when FPIC claimants performatively enact their status as Indigenous peoples to claim international human rights law, which, from the state’s perspective, appears more like direct political action than the invocation of rights formally enshrined in national law. The Wangan and Jagalingou (W&J)2 Family Council has claimed FPIC to oppose the Carmichael Mine Project (‘Carmichael mine’) in central Queensland. Planning for the Carmichael mine began in 2010, and if developed, it would be on some W&J ancestral territories. The Australian legal regime is worth studying because it recognizes and regulates the rights of Aboriginal and Torres Strait Islander peoples, but – unlike the Filipino legal regime – has not adopted FPIC into national legislation.3 Australia does have some human rights protections, such as a municipal-level Human Rights Commission, which reports to Parliament to promote and protect human rights. It has also ratified and legislatively implemented a number of human rights treaties. Yet, the Commonwealth has not adopted comprehensive 1 Rosa Cordillera A Castillo and Fatima Alvarez-Castillo, ‘The Law Is Not Enough: Protecting Indigenous Peoples’ Rights against Mining Interests in the Philippines’ in R Wynberg, D Schroeder and R Chennells (eds), Indigenous Peoples, Consent and Benefit Sharing: Lessons from the San Hoodia Case (Springer, 2009) 271, 272. 2 I employ the abbreviation ‘W&J’ to signify the Wangan and Jagalingou because the Family Council uses it. 3 See Ciaran O’Faircheallaigh and Tony Corbett, ‘Indigenous Participation in Environmental Management of Mining Projects: The Role of Negotiated Agreements’ (2005) 14(5) Environmental Politics 629, 634–5. They note that some in some non-federal jurisdictions require obtaining consent such as the Aboriginal Land Rights (Northern Territory) Act 1996 (Cth) or the Mineral Resources Act 1989 (Qld). See n 20.

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human rights legislation or, for that matter, a Bill of Rights. Therefore, this case study provides information on how the Family Council, a traditional owner’s group within the W&J, claims FPIC as an international human right alongside its engagement with Australian legal processes. Every state and all autochthonous communities are different, but Australia is like the United States, Canada and New Zealand, all of which have not adopted FPIC into legislation.4 As such, and even though there are differences among and within these states, this case study aids in understanding how Indigenous peoples claim human rights in those settler-states. Compared to Chapter 4, this case study more obviously demonstrates the selfdirected performative enactment of Indigenous peoples’ subjectivity to claim FPIC. The differences between the case studies are explicable by considering when the mining projects were planned and opposition fomented in relation to international legal discourse. The B’laan’s opposition to the Tampakan mine began in the mid-1990s, when Indigenous peoples were still relatively nascent in international legal discourse. It was not always clear that members of the B’laan were interested in claiming FPIC. Here, the Family Council’s public opposition to the Carmichael mine began in 2015, prompting FPIC claims that arose when international legal discourse on Indigenous peoples was more widely recognized. As such, this case study demonstrates the Family Council’s performative enactments in ways that are clearer and more obvious, but nonetheless contested. This chapter commences with a succinct history of Australia with attention to the development of the native title regime. It then outlines the native title future acts regime, which facilitates mining activities on native title lands in some instances. The last major section then presents the case study on the Family Council’s opposition to the Carmichael mine and how it claims FPIC.

The history and formation of Australia and its native title regime The people who are today identified as Aboriginal and Torres Strait Islander have, according to the Western archaeological discipline, inhabited what is now known as Australia for between 50,000 and 60,000 years.5 Heather Goodall writes that ‘the Aboriginal worldview is that land is seen to embody profound religious and philosophical knowledge … It is composed of a body of oral traditions held in memory and taught in performance as the words and music of songs, as painting and dance’.6 4 In Canada, an UNDRIP implementation bill has been proposed, but not passed. An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, Bill C-232, First Session, 42nd Parliament, 2015–2016; also Jeremy Patzer, ‘Indigenous rights and the legal politics of Canadian coloniality: What is happening to free, prior and informed consent in Canada?’ (2019) 23(1–2) International Journal of Human Rights 214–23. 5 Richard G Roberts et al, ‘The Human Colonisation of Australia: Optical Dates of 53,000 and 60,000 Years Bracket Human Arrival at Deaf Adder Gorge, Northern Territory’ (1994) 13 Quarternary Science Reviews 575. 6 Heather Goodall, Invasion to Embassy (Allen & Unwin, 1996) 2–3.

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Aboriginal peoples in Australia have traditionally seen land as historical, environmental and religious knowledges that involve kinship relations, obligations and economic resources.7 Colonists arriving from Britain would significantly alter the land, the laws and the people contained therein. The history of Aboriginal peoples’ resistance to and defiance of the white invasion and massacres is not short nor described in its entirety here.8 In 1768, prior to contact and colonial land-grabs, the English Admiralty provided instructions to Captain James Cook: You are also with the consent of the natives to take possession of convenient situations in the country, in the name of the King of Great Britain, or, if you find the country uninhabited take possession for His Majesty by setting up proper marks and inscriptions as first discoverers and possessors.9 When Cook landed in 1770, he did not seek or obtain the natives’ consent. But he claimed possession on behalf of King George III and mapped the east coast, which he called New South Wales.10 When colonists landed in 1788, their interests in colonization led them to assert that, upon arrival, they were perfecting Great Britain’s previous claims of possession.11 The colonists then systematically and violently pushed Aboriginal and Torres Strait Islander peoples off the land,12 as the penal colony was gradually transformed into the Australian Commonwealth. In the late 19th century, the colonies asserted their collective will as a ‘people’ to become a Federated Commonwealth, which the British Parliament and the Crown assented to in 1901.13 Aboriginal and Torres Strait Islander individuals were not included in the Commonwealth’s understanding of ‘the people’ until 1967.14 It was that year, at 7 Ibid, Goodall, 1–11. 8 See, eg, Henry Reynolds, Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (University of New South Wales Press, 2006) 95–179; Noel Loos, Invasion and Resistance: Aboriginal–European Relations on the North Queensland Frontier 1861–1897 (Australian National University Press, 2017); Jan Roberts, Massacres to Mining: The Colonisation of Aboriginal Australians (Dove Communications, 1981). 9 Prue Vines, Law and Justice in Australia (Oxford University Press, 3rd ed, 2013) 126. 10 Ibid, Vines, 126. 11 Stewart Motha, ‘The Sovereign Event in a Nation’s Law’ (2002) 13(3) Law and Critique 311, 313. Motha argues that attempts to perfect title were not perfect. 12 John Harris, ‘Hiding the bodies: The myth of the humane colonisation of Aboriginal Australia’ (2003) 27 Aboriginal History 79–104; Patrick Wolfe, ‘Nation and MiscegeNation: Discursive Continuity in the Post-Mabo Era’ (1994) 36 Social Analysis 93, 99–152. 13 Commonwealth of Australia Constitution Act 1900 (Imp). 14 Elisa Arcioni, ‘Excluding Indigenous Australians from “the People”: A Reconsideration of Sections 25 and 127 of the Constitution’ (2012) 40 Federal Law Review 287, 292.

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the Commonwealth level that the Australian population voted to amend the Constitution, include Aboriginal and Torres Strait Islander people in the census and allow the Commonwealth to create laws for them. The struggle for state recognition of ancestral land rights took longer. In 1963, the Northern Territory Government set aside territory for bauxite mining in the eastern Arnhem Land Reserve upon which the Yirrkala peoples live.15 The Commonwealth explained that under the ‘policy of assimilation [it] assumed that the development of reserves could take place, provided that the Aborigines shared in the benefits of the development’.16 The Yirrkala people then presented a petition, painted in a traditional style and on the bark of a tree, requesting the ability to present ‘the views of the Yirrkala people before permitting the excision of this land’.17 Their opposition to the mine would culminate in a Northern Territory Supreme Court Case, Milirrpum v Nabalco Pty Ltd, which denied that Aboriginal title was part of the common law.18 Elsewhere, in 1966, Vincent Lingiari led 200 Gurindji, Mudburra and Warlpiri workers and their families in a walk-off from the Wave Hill cattle station in the Northern Territory. They set up camp on their own land at Wattie Creek.19 Together, these actions and other factors galvanized a land rights campaign that would lead to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).20

15 Commonwealth of Australia, House of Representatives, Report from the Select Committee on Grievance of Yirrkala Aborigines, Arnhem Land Reserve (Canberra, 1963) para 34. 16 Ibid, Commonwealth of Australia, para 34. 17 Petition of the Yirrkala Peoples, To the Honourable the Speaker and Members of the House of Representatives in Parliament Assembled, presented to House of Representatives (28 August 1963) [7]. 18 (1971) 17 FLR 141 (Blackburn J). 19 Charlie Ward, A Handful of Sand: The Gurindji Struggle, after the Walk-Off (Monash University Publishing, 2016) xxvi. 20 Some scholars have upheld the Aboriginal Land Rights (Northern Territory) Act 1976, alongside the IPRA, as a ‘high water mark’ for Indigenous peoples’ consent. Fergus Mackay, ‘Indigenous People’s Right to FPIC and the World Bank’s Extractive Industries Review’ (2004) 4(2) Sustainable Development Law and Policy 43, 55; Cathal Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (Routledge, 2015) 195, 248. The Aboriginal Land Rights (Northern Territory) Act 1976 allows for consent at one phase, but it is a lower standard than the IPRA. Instead of focusing on the purported FPIC standard in the Northern Territory, a much clearer picture of how FPIC is claimed by Indigenous peoples is demonstrated where there is no question that FPIC is not the legally applicable standard. Doyle also upholds Australia’s Native Title Act 1993 (Cth) (NTA) as affirming ‘a right to negotiate’ and favorably cites the 2009 Native Title Tribunal arbitration Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Western Australia/Holocene Pty Ltd [2009] NNTTA 49 (27 May 2009) [215]. Although that case found in favor of the Aboriginal group in question, it did not involve the self-determined ability to say ‘no’. It weighed the economic benefit and the impact on the native title claimant.

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Native title rights were later established in the Mabo cases.21 The 1992 case, Mabo v Queensland (No 2) (Mabo), recognized the legal claim of Aboriginal and Torres Strait Islander people to ancestral territories within Australia’s territory that predate settler-state sovereignty claims.22 The Court undermined terra nullius, the doctrinal justificatory basis for colonization that legitimated the acquisition of sovereignty over land that was unsettled or uncultivated, but did not unsettle Crown sovereignty.23 Accordingly, Mabo found that native title and Crown sovereignty co-existed, but only to the extent that the Crown had not exhibited a ‘clear and plain intention’ to extinguish native title.24 Much like the Filipino establishment of native title in Cariño, Mabo established the existence of native title in Australia. The Court asserted that the Crown had a radical title while recognizing native title, which subjected all Aboriginal and Torres Strait Islander peoples to Crown sovereignty and the state’s common law. In short, Aboriginal and Torres Strait Islander communities could prove that they had native title rights by subjecting themselves, their relationship and their cultural practices to legal scrutiny of the state where the Crown had not extinguished native title rights. Mabo generated confusion because the Court did not define what constituted a ‘clear and plain intention’ to extinguish or what processes were required to prove native title.25 Accordingly, the Commonwealth Parliament adopted the Native Title Act 1993 (Cth) (NTA), to codify procedural mechanisms to recognize, protect and determine native title while establishing legal mechanisms for validly extinguishing native title, a future act regime.26 It established the National Native Title Tribunal (NNTT) to recognize native 21 Mabo v Queensland (No 1) (1988) 166 CLR 186. 22 Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo’); George Foster, ‘Foreign Investment and Indigenous Peoples: Options for Promoting Equilibrium between Economic Development and Indigenous Rights’ (2012) 33(4) Michigan Journal of International Law 627, 645. Given the date of this case, Brennan J writes of ‘indigenous people’. Ibid, Mabo, 35, 38, 52–3, 66–7, 83. Deane and Gaudron JJ, in fact, write of ‘indigenous peoples’; ibid, Mabo, [23] citing Re Southern Rhodesia [1919] AC 211, p 234. Undeniably, there are earlier uses of ‘indigenous peoples’. The salient point is that the term ‘Indigenous peoples’ means something different today when asserting human rights claims because members of Indigenous populations engaged with and became subjects of international law in the 1970s and 1980s. For human rights purposes, those terms are no longer adjectives even if they can be used and often masquerade as adjectives. Accordingly, the identifiers ‘Aboriginal and Torres Strait Islanders’ and ‘indigenous peoples’ can be used interchangeably without seeming problematic. But, for legal purposes, national and international subjectivities are not identical and not equated. See NTA Preamble, s 223. 23 Ibid, Mabo, [29], [34] (Brennan J). 24 Ibid, Mabo, [75]. 25 See Members of the Yorta Yorta Aboriginal Community v Victoria [2002] 194 ALR 538 (‘Yorta Yorta’). 26 NTA s 3.

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title claims and to mediate disputes where proposed acts, called future acts, might extinguish native title.27 Originally, the NTA created a procedural framework for regulating future acts with impacts on native title lands, called the right to negotiate (RTN),28 which is discussed below. In response to a 1996 case,29 Parliament passed the Native Title Amendment Act 1998 (Cth) (‘1998 Amendments’).30 Among other changes, the 1998 Amendments streamlined the future acts regime by adding a second process, the Indigenous Land Use Agreement (ILUA) process, also discussed below. Some commentators were highly critical of the 1998 Amendments.31 For our purposes, the most important criticism came from CERD. It criticized the 1998 Amendments as inconsistent with its General Recommendations XXI and XXIII.32 Those recommendations, respectively, called on ratifying states to recognize Indigenous peoples’ right of self-determination,33 and to recognize, protect and ensure ‘that no decisions directly relating to [Indigenous] rights and interests are taken without their informed consent’.34 It also claimed that Australia ‘replace[d] the right to negotiate with the lesser right to be consulted and to object to the land use’,35 while narrowing which native title claims 27 See generally NTA Pt 2. Because Mabo v Queensland (No 1) (1988) 166 CLR 186 held that the Racial Discrimination Act 1975 (Cth) made it unlawful for the government to extinguish native title, any governmental Acts that extinguished native title after 1975 but before Mabo were called into question. 28 Margaret Stephenson, ‘Resource Development in Aboriginal Lands in Canada and Australia’ (2002/03) 9 James Cook University Law Review 21, 23. 29 Wik Peoples v Queensland (1996) 187 CLR 1, 21, 36–7. The practical implication of Wik was that pastoral leases did not provide leaseholders with a right to exclusive possession, and that lands subject to such leases could contain native title rights. 30 Richard Bartlett, ‘A Return to Dispossession and Discrimination: The Ten Point Plan’ (1997) 27 University of Western Australia Law Review 44, 50. 31 Tony McAvoy, ‘Native title litigation reform’ (2009) 93 Reform 30, 30–32, quoting Deputy Prime Minister Tim Fischer’s comments on the 10-Point Plan; Sean Brennan, ‘Compulsory acquisition of native title land for private use by third parties’ (2008) 19 Public Land Review 179, 184, citing NTA s 26(2); Bartlett (n 30) 52, 63 (original emphasis). 32 CERD, Decision 2(54) on Australia – Concluding Observations/Comments, UN Doc CERD/C/54/MISC.40/rev.2 (18 March 1999) 6, [13]; see Katharine Gelber, ‘Human Rights Treaties in Australia – Empty Words?’, Australian Review of Public Affairs (12 April 2001) ; see also Greg Marks, ‘Australia, the Committee on the Elimination of All Forms of Racial Discrimination and Indigenous Rights’ (2004) 6(7) Indigenous Law Bulletin 11; McAvoy (n 31) 193. 33 Ibid, CERD, [87], citing Committee on the Elimination of Racial Discrimination, General Recommendation XXI – Right to self-determination, 48th session, 1996, UN Doc: A/45/18 (1996) paras 7–9. 34 Ibid, CERD, [87], citing Committee on the Elimination of Racial Discrimination, General Recommendation XXIII concerning Indigenous Peoples, UN Doc CERD/C/ 51/Misc.13/Rev.4 (18 August 1997). CERD cited para 4(a), as opposed to para 4 (d), which is cited here as it is directly related to Adrian Burragubba’s claims. See nn 158 and 170. 35 Ibid, CERD, [43].

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would be considered valid.36 As the earliest UN treaty body to argue that states should recognize the rights of Indigenous peoples, CERD’s criticism of the 1998 Amendments was an early legalistic pronouncement of Indigenous peoples’ human rights. It sought to protect all Aboriginal and Torres Strait Islander peoples as Indigenous peoples by making them subjects of international legal discourse. To be sure, some Aboriginal and Torres Strait Islander peoples involved in the UN37 and elsewhere38 were actively cultivating international legal subject-status. However, CERD’s critique of Australia’s native title regime begins to reveal a clash between Australian laws that recognize and grant rights to Aboriginal and Torres Strait Islander peoples and international laws that recognize and grant rights to Indigenous peoples. The 1998 Amendments along with subsequent cases had several notable effects. First, Australia’s native title jurisprudence does not recognize Aboriginal law as such.39 Stewart Motha argues that it legally determined what is or is not ‘a “proper” “Aboriginality” adequate to retain a proprietary interest’.40 The problem is that the Australian law defines and constructs what matters as ‘Aboriginal and Torres Strait Islander’, the legal subjects, as well as what laws and practices matter for purposes of ‘native title’, the legal objects.41 To the extent that these objects, the rights, are treated as more obvious or clearer examples, the cases transformed 36 Ibid, CERD, [51]–[87]. 37 UN Working Group on Indigenous Populations, Report of the Working Group on Indigenous Peoples on its fourth session, Chairman/Rapporteur: Mrs. Erica-Irene A Daes, UN Doc E/CN.3/Sub.2/1985/22 (27 August 1985) Annex III, 1 and 2 (Declaration of Principles Adopted by Indigenous Peoples at the WGIP in July 1985, submitted by the National Aboriginal and Islander Legal Service and others). 38 For example, the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) established the Aboriginal and Torres Strait Islander Commission (ATSIC). That Act mentions ‘Indigenous inhabitants’ but not ‘Indigenous peoples’. Lois (Lowitja) O’Donoghue was the first Chairperson of ATSIC. In that role, she was actively communicating with WGIP members. See Erica-Irene A Daes, ‘The Contribution of the Working Group on Indigenous Populations to the Genesis and Evolution of the UN Declaration on the Rights of Indigenous Peoples’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 48, 70. 39 Western Australia v Ward (2002) 191 ALR 1; Yorta Yorta (n 25); see Lisa Strelien, ‘From Mabo to Yorta Yorta: Native Title Law in Australia’ (2005) 19 Washington University Journal of Law and Policy 225; Sean Brennan, ‘Native Title in the High Court of Australia a Decade after Mabo’ (2003) 14 Public Law Review 209; Richard Bartlett, ‘An Obsession with Traditional Laws and Customs Creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta’ (2003) 31 Western Australian Law Review 35. 40 Motha (n 11) 338; also John Altman, ‘Rights, Corporations, and the Australian State’ in Suzana Sawyer and Edmund Terence Gomez (eds), The Politics of Resource Extraction: Indigenous Peoples, Multinational Corporations and the State (Palgrave Macmillan, 2012) 52; Tom Calma, Native Title Report 2009 (Australian Human Rights Commission, 2009) 80–88. 41 NTA s 223.

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traditional and cultural practices into a native title right as a stick in a ‘bundle of rights’,42 a trope utilized to conceive of property law.43 A related second issue is when developers can access resources on or under native title lands, which may extinguish native title rights that are lesser sticks in the bundle.44 Problematically, when native title claimants do not have rights to those resources and do not have the ability to stop others from exploiting them, if resource exploitation conflicts with their native title rights, then they have no means of preventing the extinguishment of their rights. To mitigate extinguishment as a legal fait accompli, the NTA’s future acts regime creates processes and procedures that balance conflicting uses with extinguishment. And third, it might mean that those people who lose native title claims – or refuse to be subjected to the state45 – continue to exhibit laws, practices, cultures and ways of living that are perfectly identifiable to them,46 but are not recognizable to the state as ‘Aboriginal and Torres Strait Islander’ peoples for the purposes of ‘native title’. Together, the future acts regime does not provide native title claimants with the ability to withhold their consent to trump or to ‘veto’ development projects. And because the NTA subjects Aboriginal and Torres Strait Islander peoples to the Australian native title regime without providing them with the power to control activities that may impact those rights, it sets the stage for some to performatively enactment their subjection as Indigenous peoples by claiming international human rights law.

Future acts procedural processes for conflict resolution A ‘future act’ is an impact that would extinguish native title rights.47 As explained above, the NTA currently has two processes, the RTN and the ILUA, for validating future acts.48 A grant or renewal of a mining lease on native title land is subject to the NTA insofar as mining activities conflict with native title rights or it 42 Ann Genovese, ‘Turning the Tides of History’ (2004) 2 Griffith Review . 43 Katy Barnett, ‘Western Australian v Ward: One Step Forward and Two Steps Back: Native Title and the Bundle of Rights Analysis’ (2002) 24(2) Melbourne University Law Review 462, 466; Marcia Langton, Odette Mazel and Lisa Palmer, ‘The “Spirit” of the Thing: The Boundaries of Aboriginal Economic Relations at Australian Common Law’ (2006) 17(3) Australian Journal of Anthropology 307, 310–11. 44 See Stephenson (n 28) 25–30. Australian law vested mineral ownership with the Crown, as confirmed in Ward (n 39) but perhaps questioned by Eaton v Yanner (1999) 201 CLR 351. See also Commonwealth of Australia v Yarmirr (2001) 184 ALR 113, discussed in ibid, Langton, Mazel and Palmer. 45 Irene Watson, ‘First Nations Stories, Grandmother’s Law: Too Many Stories to Tell’ in Heather Douglas et al (eds), Australian Feminist Judgments: Righting and Rewriting Law (Hart, 2014) 46–53. 46 See, eg, Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge, 2015). 47 NTA ss 223, 226. 48 NTA Div 3 Pt 2, ss 24AA, 24BA–24EB.

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is otherwise invalid.49 Although compliance with the NTA is compulsory, the developer, called the ‘grantee’, decides which process to pursue. Where a grantee pursues an ILUA, it may employ the RTN as a secondary measure. ILUAs Created by the 1998 Amendments, ILUAs allow grantees, such as miners, to enter into an agreement with native title holders – those who comprise the registered native title claimant (RNTC).50 ILUAs are legally enforceable contracts that enable the parties to enter into a process that is more flexible than the RTN, which might be considered a ‘win–win’ situation.51 ILUAs allow the parties to negotiate how they will work together to resolve disputes, monetary compensation, employment, training or other areas of mutual concern, such as how lands and waters are managed.52 ILUAs also allow native title claimants to seek greater private acknowledgement of rights than is allowable by the NTA: the NTA does not specifically grant native title claimants mineral rights, but an ILUA may cover ‘royalty’ payments, partnerships in the enterprise or any feature to which both parties agree. As such, an ILUA can benefit native title holders in ways that the RTN would not allow, while it provides the developer with the ability to access or extinguish native title rights.53 Even if ILUAs allow for more flexible negotiations, grantees retain the ability to initiate an RTN process before, during or after an ILUA process, which looms over any ILUA negotiation.54 RTN The RTN provides native title holders and registered claimants with the right to negotiate with the government and the grantee prior to any land-use grant that may affect native title rights. The NTA allows for an RTN without having native title previously determined and without granting a right of ownership in the minerals, which is held by the Crown.55 Because the NTA does not guarantee that native title rights will be recognized or will not be impacted, the RTN process provides native title claimants with the ability to negotiate how their rights are impacted but not whether they are impacted.56 It is a structured negotiation ‘designed to encourage reaching an agreement’.57 Negotiations commence when 49 NTA s 28. 50 There are three forms of ILUAs: Body Corporate Agreements, Areas Agreements and Alternative Procedure Agreements: NTA ss 24BA–24BI, 24CA–24CL, 24DA–24DM. 51 NTA ss 24BI(2), 24CI, 24DJ. 52 NTA s 24BB (for Body Corporate Agreements), s 24CB (for ILUAs discussed herein). 53 For a comment on discrimination as a motivating factor behind the NTA, see Bartlett (n 30). 54 NTA ss 24EB(1)(c), 26(2). 55 See n 44. 56 See NTA ss 25, 26, 28. 57 NTA s 25; Stephenson (n 28) 57.

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the government provides notice of the proposed land-use act, with the date of notification triggering a timeline for negotiation.58 From the notice date, potentially affected Aboriginal and Torres Strait Islander peoples have several months to register with the NNTT as either a body corporate or a registered claimant.59 As such, Australian law requires them to constitute themselves in a particular way to be identifiable to the grantee and the state. When Aboriginal or Torres Strait Islander peoples are properly self-constructed, the parties must engage in good faith negotiations for six months before the NNTT or the Minister can make a determination as to whether the future act may be done.60 The RTN also limits the substance of any negotiation in two ways. First, negotiations ‘must necessarily be about the terms and conditions upon which the native title parties would be prepared to agree’.61 Second, the negotiation is only substantively constrained by the requirement of good faith.62 Negotiations cannot be about the temporality of the negotiation or whether the act may or may not be done because the NTA does not provide a right to question the doing of the act.63 If an agreement is reached, then it may be registered with the NNTT. So long as six months have elapsed and the grantee can demonstrate good faith on its part, the NNTT or the Minister is required to make a determination regarding the ‘doing of the act’.64 If the NNTT finds that an act may be done, it is limited to granting compensation for access over native title land and, unlike ILUAs, it cannot require that the claimant receive royalties, income or profit sharing.65 The NTA’s future acts regime does not allow native title claimants to withhold consent or question the ‘doing of the act’. It requires Aboriginal and Torres Strait Islander peoples to constitute and produce themselves as an RNTC for native title NTA s 29. NTA ss 29(4), 30(1)(a)–(b). NTA s 36. Northern Territory v Risk [1998] NNTTA 97/1 (9 February 1998) 88. NTA ss 30A, 31; Western Australia v Taylor (1996) 134 FLR 211, 224–5; Adani Mining/Jessie Driver on behalf of the Wangan and Jagalingou People v Queensland [2013] NNTTA 30 (31 March 2013); FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49, 27. 63 Northern Territory v Risk (n 61) 88. 64 NTA ss 28(f), 25(3), 29, 35, 38. 65 NTA s 38(2). The grant is read consistently with Commonwealth of Australia Constitution Act 1900 s 51 (xxxi), requiring the payment of just terms for the extinguishment of any property right. In 2009, the NNTT made native title determinations in favor of the native title claimants. Western Desert Lands Aboriginal Corporation (n 20); Weld Range Metals Limited/Western Australia/Simpson [2011] NNTTA 172 (21 September 2011); Seven Star Investments Group Pty Ltd/Western Australia/Freddie [2011] NNTTA 53 (24 March 2011). See Tony Corbett and Ciaran O’Faircheallaigh, ‘Unmasking the Politics of Native Title: The National Native Title Tribunal’s Application of the NTA’s Arbitration Provisions’ (2006) 33(1) University of Western Australian Law Review 153; cf Christopher J Sumner and Lisa Wright, ‘The National Native Title Tribunal’s Application of the Native Title Act in Future Act Inquiries’ (2009) 34 University of Western Australia Law Review 191.

58 59 60 61 62

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purposes. Those who want to question the ‘doing of the act’ or withhold their consent must, then, constitute themselves according to discourses that putatively enables subjects to withhold consent. The international legal discourse is such a discourse: it recognizes Indigenous peoples’ right to FPIC. Australia and UNDRIP Amid widespread Member State endorsement of UNDRIP in 2007, Australia was one of four countries to vote ‘no’.66 On 3 April 2009, Jenny Macklin, Minister for Indigenous Affairs, announced that Australia would reverse its position and endorse UNDRIP.67 Macklin stated, ‘Today, Australia joins the international community to affirm the aspirations of all indigenous peoples … While it is nonbinding and does not affect existing Australian law, it sets important international principles for nations to aspire to’.68 That statement couched Australia’s endorsement in language highlighting the aspirational nature – and non-legal status – of the instrument. Australia’s position towards UNDRIP is consistent with its dualist approach to international law. That is, if UNDRIP had the legal force of a treaty document or customary international law, domestic legislation is required for it to have municipal effect.69 Without that, UNDRIP can still influence legislation70 as well as judicial interpretation of Australian law, in terms of triggering presumptions of statutory and common law interpretation.71 Arguments that UNDRIP engenders some legal authority by recognizing rights codified in other instruments or should underpin legislation would not give rise to authority for claiming that UNDRIP is binding in Australia. But as an aspirational instrument, there is mounting pressure on industry actors, such as mining companies, that ‘increasingly feel compelled to obtain the written consent of traditional landowners and to share financial benefits 66 Meeting Record, UN GAOR, 61st sess, 107th plen mtg, UN Doc A/61/PV.107 (13 September 2007) 11–12. 67 Jenny Macklin, ‘Statement on the United Nations Declaration on the Rights of Indigenous Peoples’ (Minister for Families, Housing, Community Services and Indigenous Affairs, Parliament House, Canberra, 3 April 2009) . 68 Ibid, Macklin; also Australian Human Rights Commission, ‘Questions and Answers on the UN Declaration on the Rights of Indigenous Peoples (2009)’ (2 April 2009) . 69 See, eg, Anna Cowan, ‘UNDRIP and the Intervention: Indigenous Self-Determination, Participation, and Racial Discrimination in the Northern Territory of Australia’ (2013) 22 Pacific Rim Law & Policy Journal 247, 249. 70 Catherine J Iorns Magallanes, ‘International Human Rights and Their Impact on Domestic Law on Indigenous Peoples’ Rights in Australia, Canada and New Zealand’ in Paul Havemann (ed), Indigenous Peoples’ Rights in Australia, Canada and New Zealand (Oxford University Press, 1999) 235, 245–53. 71 Kristen Walker, ‘Who’s the Boss? The Judiciary, the Executive, the Parliament and the Protection of Human Rights’ (1995) 25 Western Australian Law Review 238, 239–43.

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with them’.72 Where industry actors feel compelled to obtain consent, this sense of compulsion is primarily predicated on lending restrictions, voluntary initiatives, or a more general duty to respect human rights all of which may be influenced by UNDRIP. While Australian law enables grantees to use either the RTN or an ILUA, Indigenous peoples have begun arguing that financial institutions are unable to lend to industry actors that have not obtained FPIC for the development project to be financed.73 The following case study demonstrates a clash between international human rights and Australian law when industry actors seek to comply with the RTN or register an ILUA and some Aboriginal or Torres Strait Islander peoples seek to prevent that from happening.

The Carmichael mine and the Family Council In July 2014, Adani, an energy company from India, received environmental approval from the Australian Minister for the Environment to develop the Carmichael coal deposit in central Queensland.74 As proposed, the mine would extract thermal coal from under some native title land claimed by the W&J and export it to India for electricity generation. Adani initially failed to obtain an ILUA with the W&J, so it sought approval from Australia to construct the mine via the RTN.75 In opposition, Adrian Burragubba, a member of the W&J, invoked international human rights against Adani and the state by performatively enacting the subjectivity of Indigenous peoples.76 Although Burragubba was invoking international human rights, a potential legal issue arose when he submitted a letter to the NNTT that was reviewing Adani’s application.77 He asserted that the Family Council had not consented to Adani’s mining actions. In an exchange with the NNTT, Burragubba explained that the Family Council was a central governing body of an ‘indivisible whole’ that broadly represented the ‘heart of our rights as an Indigenous People, and the issue of obtaining our free, prior and informed consent for matters affecting our traditional 72 Foster (n 22) 646 citing Marcia Langton and Odette Mazel, ‘Poverty in the Midst of Plenty: Aboriginal Peoples, the “Resource Curse” and Australia’s Mining Boom’ (2008) 26 Journal of Energy and Natural Resources Law 31, 39–41; David Brereton and Joni Parmenter, ‘Indigenous Employment in the Australian Mining Industry’ (2008) 26 Journal of Energy and Natural Resources Law 66, 68. 73 See also Stephen M Young, ‘The Sioux’s Suits: Global Law and the Dakota Access Pipeline’ (2017) 6(1) American Indian Law Journal 173. 74 Department of Environment, Approval – Carmichael Coal Mine and Rail Infrastructure Project, Queensland (EPBC 2010/5736, 24 July 2014). 75 Adani Mining Pty Ltd v Adrian Burragubba, Patrick Malone and Irene White on behalf of the Wangan and Jagalingou People [2015] NNTTA 16 (8 April 2015) [14], [20]. 76 Wangan and Jagalingou, ‘Statement by the Wangan and Jagalingou peoples about the Carmichael Mine’, Wangan & Jagalingou Family Council (26 March 2015) . 77 Adani v Burragubba (n 75) [29].

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territories, upon which we uphold all of our spiritual, cultural, family and social, environmental and economic values, rights and interests.’78 He essentialized the W&J as an indivisible whole that acts with a collective will as traditional custodians of sustainable development in a performative enactment of Indigenous peoples’ subjectivity for the purposes of claiming human rights. While the NNTT deliberated, Burragubba commenced a more public campaign against the mine. It opened with a public letter to the Queensland Premier asking her to uphold the W&J’s internationally recognized rights of FPIC and selfdetermination.79 In interviews, he claimed that the W&J elders had self-determination, were able to decide for themselves, and would continue to reject the project.80 Here, his international human rights claims appeared as an (in)direct challenge to the native title regime, under which the state could approve the mine without the consent of the Family Council or Indigenous peoples. By inserting the Family Council within international legal discourse as an identifiable subject of international human rights, as explored below, the W&J also became subjectobjects of broader public scrutiny and discourse. Ultimately, the NNTT found that the leases could be granted as the mine would likely have a positive economic impact that would be in the public interest.81 Burragubba then appealed that decision to the Federal Court, claiming that Adani had overinflated the economic benefits of the project.82 The appeal was denied in August 2016, but was then appealed to the Full Federal Court in September 2016.83 That appeal failed.84 But while those appeals worked through the court system, Adani sought to cultivate agreement and have an ILUA approved. The Family Council has continually opposed ILUA formation by enacting its

78 Adani v Burragubba (n 75) [29]; Wangan and Jagalingou, ‘Explainer: Representation of W&J’, Wangan & Jagalingou Family Council (21 August 2015) . 79 Wangan and Jagalingou, ‘Letter to Queensland Premier Annastacia Palaszczuk’, Wangan & Jagalingou Family Council (26 March 2015) ; see ‘Native Title Claims’, Queensland Government (16 September 2014) . 80 This has also been reported, favorably, in the left-wing activist press. See Carl Jackson, ‘Wangan and Jagalingou People Take on Coal Giant Adani’, Redflag (12 April 2015) ; ‘Traditional Owners Reject Adani’s Huge Carmichael Coal Mine in Queensland’s Galilee Basin’, Green Left Weekly (27 March 2015) . 81 Adani v Burragubba (n 75). 82 Burragubba v State of Queensland [2016] FCA 984 (19 August 2016). 83 Wangan and Jagalingou, ‘NNTT registration of contested Adani land deal to be fought hard in Court by W&J’, Wangan & Jagalingou Family Council (8 December 2017) . 84 Burragubba v State of Queensland (No 2) [2018] FCAFC 65 (26 April 2018) [8]–[11].

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status as an international legal subject, and as the next subsection clarifies, it did so with assistance from NGOs. The ‘black and green partnership’85 When Burragubba began making public media appearances, Adani responded by attacking Burragubba’s legitimacy to speak on behalf of the W&J.86 Questions about the composition of the W&J as ‘unified’ and its relations to environmentalists became politicized when it was reported that the Family Council ‘convened by Adrian Burragubba’ was financially supported by the Sunrise Project (‘Sunrise’), an environmental NGO that receives foreign funding.87 Media outlets reported that the Family Council had been offered ‘a $325,000 payment over one year to the Wangan and Jagalingou group … and access to a scholarship program … to the value of $600,000 over five years’.88 Burragubba initially claimed that money had not been exchanged.89 However, Sunrise’s executive director, John Hepburn, wrote that it was happy to have entered into an agreement with the Family Council, a ‘duly authorised decision making body’, and support its mission of environmental conservation.90 Hepburn also responded to criticisms that the arrangement was an ‘inducement’ or a ‘cash for comment’ by saying that these were ‘deeply troubling’ accusations, although he acknowledged that Sunrise’s support could only continue for so long as Sunrise’s interests were aligned with those of the Family Council.91 In performatively enacting as Indigenous peoples, the Family Council deployed a technology of self and was able to attract relationships and support from NGOs to assist in expressing the Family Council’s agency. The Family Council has maintained some distance from the larger environmental ‘Stop Adani’ campaign, 85 David Ritter, ‘Black and Green Revisited: Understanding the Relationship between Indigenous and Environmental Political Formations’ (2014) 6(2) Land, Rights, Laws: Issues of Native Title 1 (generally discussing Aboriginal peoples and environmental NGOs). 86 ABC News, ‘Adani Rejects Indigenous Mine Opposition’, Lateline (26 March 2015) ; ‘Traditional Owners Reject Adani Mine’, The Australian (online) (26 March 2015) ; John Stewart, ‘Traditional Owners vs Carmichael Mine’, Lateline (26 March 2015) . 87 Anna Krien, ‘The Long Goodbye: Coal, Coral and Australia’s Climate Deadlock’ (2017) 66 Quarterly Essays 1, 37–8. 88 Sid Maher, ‘Anti-Coal Activists’ $1m Bid to Campaign’, The Australian (online) (19 May 2015) . 89 Ibid, Maher. 90 John Hepburn, ‘Our Support for the Wangan and Jagalingou Traditional Owners’ (Sunrise Project, 21 May 2015). 91 Ibid, Hepburn.

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as its fight is to protect its territories, cultural practices and sovereignty and selfdetermination.92 Despite that distance, relationships with and support from NGOs that aid in expressing the Family Council’s agency are also disciplinary – as Hepburn noted, funding was contingent upon mutually aligning interests, which requires the Family Council to act in ways that strengthen and support the relationship. Discipline is revealed where the Family Council and, indeed, the members of the W&J who support the mine project become subjected to heightened scrutiny about their financial ties to foreign NGOs.93 Given that discipline supports agency and is oppressive, dueling narratives about the Family Council arose. Some commentators have highlighted how relationships express agentic action by seeking to uphold the Family Council’s independence, autonomy and self-determination.94 On the other hand, some commentators attempt to support Australia’s NTA or the mine project by highlighting the oppressiveness of those relationships, claiming that the Family Council is being ‘used’ by foreign interests or environmentalists.95 In July 2015, it was reported that Adani had bussed 150 members of the W&J to a meeting, so that they could vote on and approve a new ILUA.96 Although that ILUA was not approved, Burragubba asserted that Adani was ‘engaging in tactical skulduggery’ and ‘has been conniving with these other two [native title representatives] to try to get an agreement and undermine the Native Title process and our right to free prior informed consent’.97 There are two conceptual problems that arise from Burragubba’s assertions. First, in admitting that other W&J members supported the ILUA, it appeared that the W&J was not acting as one people with a collective will. Second, it is not clear whether Burragubba was claiming human rights against the state, or that Adani’s interests were against the state.98 Even though he previously asserted that the state was against W&J’s human rights, because human rights are meant to ‘underpin’ the relationship between Indigenous peoples and state,99 claiming human rights had to establish 92 Wangan and Jagalingou (n 76). 93 Geoff Egan, ‘Adani Questions Where Opponents Get Their Money’, Sunshine Coast Daily (online) (31 January 2018) . 94 Joshua Robertson, ‘Leading Indigenous lawyer hits back at Marcia Langton over Adani’, The Guardian (online) (9 June 2017) . 95 Michael McKenna, ‘Green activist still working to block Adani project’, The Australian (online) (25 October 2016) 6; Nyunggai Warren Mundine, ‘Activists are the new colonial oppressors’, Australian Indigenous Chamber of Commerce (Blog Post, 19 April 2017) . 96 Michael West, ‘Adani Shown the Door by Traditional Owners’, The Sydney Morning Herald (online) (4 July 2015) . 97 Ibid, West. 98 Ibid, West. 99 Megan Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law 439, 465.

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and support a better form of democratic state behavior.100 Posts on the Family Council’s website responded to and clarified both issues. First, in order to quash concerns of disunity among the W&J (and beliefs that Burrabugga was acting alone as the Family Council) the Family Council stated that ‘it is not true to say that the group is divided in its opposition to [the] Carmichael mine’.101 Although that statement contrasts with Burragubba’s admission that Adani was working with two W&J members, the statement identifies the ‘group’ that matters as the Family Council and Indigenous peoples. This makes sense because to be identifiable human rights bearers, the claimants need to speak with the collective will of Indigenous peoples, not necessarily the W&J. The Family Council further claimed that decisions were made by a ‘majority’, and that ‘[t]he Traditional Owners’ Council has AUTHORISED Adrian Burragubba as its spokesperson and cultural leader’.102 It ended by invoking the recognition in UNDRIP article 18 of Indigenous peoples’ traditional decision-making authority.103 That publication demonstrates how the Family Council performatively enacts as it constructs itself as Indigenous peoples by objectifying itself in international legal discourse through invoking human rights. Second, in order to clarify whether its claims were ‘against’ the state or Adani, a subsequent letter published on the Family Council’s website rhetorically asked: ‘What part of our “democracy” do they not understand? Adani is dishonestly seeking to divide and conquer’.104 The Family Council also responded to allegations it was being ‘used’ by environmentalists: ‘Nor will we stand by while the media mouthpieces of Adani and the government insult us, representing us in story after story as simple, gullible patsies bought off by greenies’.105 This statement demonstrates how Burragubba and the Family Council performatively enacted the Indigenous peoples’ subjectivity, how that form must also be democratic for the purposes of claiming internationally recognized human rights, and how they seek to contradict assertions that they are being used. With support from environmental and human rights NGOs, the Family Council’s campaign gained traction, internet presence, national and international media attention, as well as the ability to meet with major banks and demand that they respect Indigenous peoples’ international human rights.106 Environmental NGOs had been waging a campaign to ensure public acknowledgement and legal 100 Duane Champagne, ‘UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples): Human, Civil, and Indigenous Rights’ (2013) 28(1) Wícˇazo Ša Review 9, 15. 101 Wangan and Jagalingou (n 78). 102 Wangan and Jagalingou (n 78). 103 Wangan and Jagalingou (n 78). 104 Wangan and Jagalingou, ‘Next, Federal Court: Wangan and Jagalingou Stand Stronger Than Ever to Stop Adani Carmichael’, Wangan & Jagalingou Family Council (21 August 2015) . 105 Ibid, Wangan and Jagalingou. 106 Krien (n 87) 36–7.

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approval of all potential environmental despoliation.107 In April 2015, NGOs successfully brought environmental concerns to the attention of several fossil fuel financers, which then announced that they would not fund the Carmichael mine.108 By enacting its subjection as Indigenous peoples, the Family Council took its human rights concerns directly to financers.109 In late 2015, several additional banks withdrew funding support.110 The bank decisions were not directly attributed to concerns for Indigenous peoples’ self-determination or FPIC, but came after Family Council representatives appealed to board members and stockholder conferences.111 In October 2015, Commonwealth Environment Minister Greg Hunt reapproved the Adani project.112 In response, and with the support of Earthjustice, a US-based environmental justice law firm, the Family Council sent letters to UN bodies requesting ‘urgent intervention’ under UNDRIP.113 It sent a request to the UN Special Rapporteur on Indigenous Peoples, Victoria Tauli-Corpuz, to comment on Australia’s support and facilitation of the Carmichael mine as against its ‘fundamental, universally recognized human rights’ to FPIC and self-determination.114 The Family Council sent a similar request to the UN Special Rapporteur in the field of cultural rights.115 UN Special Rapporteurs are limited to exercising recommendatory jurisdiction and do not have the ability to intervene legally. However, the letters function as requests that UN actors appraise the 107 Stephanie March, ‘French Banks Rule out Funding Galilee Basin Coal Project’, AM, Australian Broadcasting Corporation (9 April 2015) . 108 Ibid, March. 109 Wangan and Jagalingou, ‘The Wangan & Jagalingou Declaration to Banks’, Wangan & Jagalingou Family Council (29 May 2015) . 110 Krien (n 87) 36–7; P R Sanjai, ‘National Australia Bank Rules out Funding for Adani’s Carmichael Project’, LiveMint (3 September 2015) . 111 Krien (n 87) 36–7; Wangan and Jagalingou Traditional Owners Council, Facebook (Untitled Post, 17 December 2015) . 112 Greg Hunt, ‘Carmichael Coal Mine and Rail Infrastructure Project’ (Media Release, Minister for the Environment, 15 October 2015). 113 Adrian Burragubba and Murrawah Johnson, Submission regarding Australia’s Failure to Protect the Wangan and Jagalingou People’s Rights to Culture and to be consulted in good faith about, and give or withhold consent to, to the development of the destructive Carmichael Coal Mine on our traditional lands, Submission to the United Nations Special Rapporteur on the rights of indigenous peoples (2 October 2015). 114 Ibid, Burragubba and Johnson. 115 Adrian Burragubba and Murrawah Johnson, ‘Letter to UN Special Rapporteur in the field of cultural rights re: Submission regarding Australia’s failure to protect the Wangan and Jagalingou People’s rights to culture from the proposed Carmichael Coal Mine’ (2 October 2015).

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controversy and legitimate the Family Council as fitting the form of Indigenous peoples who are human rights subjects, which helps cultivate public pressure against the development.116 Tauli-Corpuz validated the Family Council as Indigenous peoples by requesting additional information from Australia while reminding Australia of its international human rights obligations – specifically, referencing UNDRIP article 32 on FPIC and resource development.117 The Commonwealth representative responded by describing the NTA processes and reasserting that: Australia encourages all Australians to participate fully and freely in our democratic processes and specifically recognises how important it is for Aboriginal and Torres Strait Islander people to have a voice and a means to express it. Australia recognises the importance of engaging in good faith consultation with Indigenous peoples … Australia’s statement on the [UNDRIP] clarified that Australia’s laws concerning land rights and native title are not altered by its support of the [UNDRIP]. However, Australia supports Indigenous peoples’ aspiration to develop a level of economic independence so they can manage their own affairs and maintain their strong culture and identity.118 The state’s response preserves a distinction between international and national legal discourse while simultaneously reducing self-determination to the internal management of self by or within democratic processes of the existing state laws. It upholds Indigenous peoples’ aspirations to ‘manage their own affairs’ and ‘a level of economic independence’, as it includes them as ‘all Australians’ to orients the dispute within the state democratic processes.119 Apparently, the state viewed the Family Council’s letters and human rights claims as political acts. As the representative of democratically organized Indigenous peoples subject to international law, the Family Council continued to ‘manage [its] own affairs’. It pressured financial actors to not lend to Adani, adopted new methods of publicizing its opposition, and would explore alternative, sustainable developmental models for the W&J. It would also face considerable opposition.

116 See, eg, Young (n 73) 209–38. 117 Victoria Tauli-Corpuz, Mandate of the Special Rapporteur on the rights of indigenous peoples, UN Doc UA AUS 2/2016 (29 February 2016) 4 . 118 Tanya Bennett, Charge d’affaires, ‘Letter to Karim Ghezraoui, Chief Officer, Officer of the High Commissioner for Human Rights’ (1 April 2016) 5 . 119 Ibid, Bennett; cf the Australian Government’s comments to WGIP in Gundmundur Alfredsson, ‘The Right of Self-Determination and Indigenous Peoples’ in Christian Tomuschat (ed), Modern Law of Self-Determination (Kluwer Academic Publishers, 1993) 51.

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The miners fight back While the Family Council invoked international human rights, Adani and the state advanced their interests in developing the mine at the municipal level.120 The Queensland Coordinator-General, the actor responsible for state land-use planning, proposed the compulsory acquisition of the land, which would have extinguished any native title claim and allowed the state to transfer title to Adani.121 Queensland did not use its compulsory acquisition powers. At the Commonwealth level, Prime Minister Tony Abbott publicly committed the Commonwealth to repealing sections of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to ‘protect jobs against extreme green law-fare’.122 Commonwealth Attorney-General George Brandis also asserted that ‘radical environmentalists who sabotage major developments’ are engaged in ‘vigilante litigation’ and ‘lawfare’.123 The Prime Minister’s and the Attorney-General’s invocations of ‘vigilantism’ and ‘lawfare’ attempted to identify and subjectify those who oppose the mine – primarily environmental organizations that use environmental legal protections – as undemocratic vigilantes. The Family Council would shortly thereafter become associated with these ‘greenies’.124 The identifications are similar to but less violent than the Philippine state actors’ identification of Daguil Capion as a ‘fugitive’ or ‘bandit’. Adani’s Chief Executive Officer said that it was ‘absolutely committed to proceeding with its investments in Queensland’, although the company elsewhere asserted that it would ‘not put any capital expenditures into the Carmichael project in the next financial year and would not make any further investments’.125 In 120 Adani Mining Pty Ltd v Land Services of Coast and Country Inc [2015] QLC 48. 121 Wangan and Jagalingou, ‘Qld Government Plans to Extinguish Native Title for Adani’s Coal Mine a New Low in Violating Traditional Owners’ Rights’, Wangan & Jagalingou Family Council (28 November 2015) . 122 ABC News, ‘Warfare on Lawfare’, Insiders (23 August 2015) . 123 Lisa Cox and Jane Lee, ‘Abbott Government to Change Environment Laws in Crackdown on “Vigilante” Green Groups’, The Sydney Morning Herald (online) (18 August 2015) ; Thom Mitchell, ‘Adani’s Mega Coal Mine Hits Another Hurdle: A Second Round of “Vigilante Lawfare”’, New Matilda (9 November 2015) . 124 Katharine Murphy, ‘Indigenous People Victims of “Green” Fight against Adani Mine, Says Marcia Langton’, The Guardian (online) (7 June 2017) . 125 David Sparkes, ‘Analysts Say Adani Won’t Go Ahead with Carmichael Mine until Coal Prices Improve’, ABC News, 6 February 2016, .

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an effort to expedite the mine’s development, Adani’s owner, Gautam Adani, held a private meeting with the new Prime Minister, Malcolm Turnbull, and asked him to introduce a law prohibiting activists from seeking further judicial review.126 Adani explained that he made the appeal because multiple rounds of legal challenges were making the project uncertain and no ‘lenders will be willing to finance it’.127 Where environmentalists and Indigenous peoples began to make the mine financially unsound as part of the sustainable development model, Adani resorted to deploying direct political pressure. In February 2016, amid ongoing legal challenges and financial difficulties, the Queensland Government provided environmental approval for the mine, subject to 140 conditions for environmental protection.128 However, the development could not proceed without resolving the native title issues. In March 2016, a claim group rejected another ILUA.129 In response, The Australian, a Murdoch-owned national broadsheet newspaper, published an article entitled, ‘Greens Bankroll Indigenous Rebels Opposed to Carmichael Mine’.130 It reported that the W&J was set to finalize a deal with Adani, but the deal fell through because of ‘anti-coal activists funding Adani opponents within the indigenous group’. This discourse emphasized the notion that ‘radical environmentalists who sabotage major developments’,131 are undemocratic actors or objects to dismiss. To support this view, the article quoted ‘Elder Irene White’ who said: ‘Last year, there was majority support in a vote of the native title applicants to go ahead with the negotiations … And then last month, this public notice appears from another greenie, an Aboriginal woman from Victoria, to stop the agreement’.132 White continued: ‘Why shouldn’t our kids get the opportunity to 126 Lisa Cox, ‘Gautam Adani Makes Special Request to Malcolm Turnbull over $15b Deal’, Canberra Times (online) (9 December 2015) . 127 ‘Adani Group Seeks Uncontestable Nod from Australia for Its Mega Projects’, The Economic Times (online) (8 December 2015) (copy on file with author). 128 Department of Environment and Heritage Protection (Qld), ‘Adani’s Carmichael Coal Mine Environmental Authority Approved’ (Media Release, 2 February 2016) . 129 Joshua Robertson, ‘Traditional Owners Vote to Sack Representatives Who Received Benefits from Adani’, The Guardian (online) (21 March 2016) . It was later found to have not been a validly convened ILUA authorisation meeting. See Burragubba v State of Queensland [2017] FCA 373 (11 April 2017) [33]–[35], [37]. 130 Michael McKenna, ‘Greens Bankroll Indigenous Rebels Opposed to Carmichael Mine’, The Australian (online) (12 March 2016) . 131 See n 123. 132 McKenna (n 130).

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get a job, earn a living, buy a car and save up for a house just like any other Australians?’133 According to this quotation, White placed the onus of blame for the ILUAs failure on ‘another greenie’. In seeking to support the mining, she downplayed the role of the Family Council and upheld the W&J ‘majority’ as associated with ‘any other Australians’, an appeal to the state-level discourse. The Family Council responded by pointing out inconsistencies in this account, particularly that Irene White was not an elder.134 That is a significant distinction for the Family Council to make, because it performatively enacted itself as true, traditional and essential Indigenous peoples. In maintaining its subjection to international legal discourse, it had to distance itself from White and other pro-mining W&J individuals. Soon afterwards, in April 2016, it was reported that the W&J had agreed to an ILUA that, if registered, would allow Adani to commence development. The Family Council objected by mounting a new legal challenge against its registration.135 Murrawah Johnson, a newer spokesperson for the Family Council, accused Adani of bussing a ‘large number of people, including non-members of our claim group who have no connection to the country’ to vote on the ILUA.136 From this point forward, the Family Council would attempt to undermine legal and public perceptions that the ILUA was valid by claiming that those who had voted for it were ‘not the true people from that country’.137 On the other hand, Paul Malone, a W&J member who supported the mine, said that those who supported the mine lived in rural areas and were looking for jobs.138 He accused mine opponents of living in capital cities and ‘sitting in their home in the luxury of air conditioning that’s probably fueled by coal fire power stations’.139 Malone asserted authority as a W&J member who lived in the area 133 McKenna (n 130); also, Paul Robinson, ‘Traditional owners say they were forced to negotiate with Adani for fear of losing native title rights’, ABC News (11 December 2017) . 134 Wangan and Jagalingou, ‘W&J People Authorisation Meeting: The Facts’, Wangan & Jagalingou Family Council (12 March 2016) . Irene White’s name appears on the registered native title claim. See Adani v Burragubba (n 75). 135 Wangan and Jagalingou, ‘Traditional Owners’ Rejection of Carmichael stands, Despite Adani Bank Rolling Bogus “Land Use Agreement”’, Wangan & Jagalingou Family Council (16 April 2016) ; Wangan and Jagalingou, ‘Court hearing: W&J Traditional Owners Fight Adani and Qld Govt’, Wangan & Jagalingou Family Council (12 March 2018) . 136 Ibid, Wangan and Jagalingou, ‘Traditional Owners’ Rejection of Carmichael stands’. 137 George Roberts, ‘Indigenous Groups in Federal Court to Extend Injunction against Adani over Native Title’, ABC News (31 January 2018) . 138 Robinson (n 133). 139 Robinson (n 133).

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and was looking for a job as he questioned the authority of the opponents as ‘true people from that country’ and undermined their subjection to international legal discourse as essential and traditional Indigenous peoples. In constructing itself as an international legal subject, the Family Council would then invoke international law to challenge the state-level legal discourse. Burragubba responded: ‘We are disadvantaged by the law and denied our international rights of self determination and free, prior informed consent. We are required to participate in the native title regime against a backdrop of financial disadvantage and discrimination’.140 Where media outlets previously reported that the Family Council was supported by environmental NGOs, those tactics would be used against those W&J who favor the mine. The Australian online edition of the global British newspaper, The Guardian, began reporting that pro-mine W&J members had accepted undisclosed payments from Adani.141 Essentially, it questioned the economic benefits received by pro-mining W&J. Those in favor of the mine accepted money from Adani and aligned with current democratic practices of the state, which opponents sought to question. On the other hand, the Family Council accepted money and funding from environmental NGOs to try to establish a feasible, and environmentally sustainable, democratically-based development model.142 In furtherance of alternative sustainable development and democratic practices, the Family Council’s partnership with environmental NGOs led to collaboration at the University of Queensland’s Global Change Institute.143 As the Institute’s first ‘flagship project’, the partnership ‘will explore the international Indigenous movement that is re-imaging human rights and social and economic development’.144 In addition to publishing on Indigenous human rights and sustainable development to oppose the mine,145 the Institute began publishing information on the mine’s economic non-viability.146 140 Robinson (n 133). 141 Joshua Robertson, ‘Revealed: Traditional Owners Accepted Payments to Attend Adani Meetings’, The Guardian (online) (16 April 2016) . 142 Krien (n 87) 36–9. 143 Wangan and Jagalingou, ‘Naomi Klein Commends New UQ Traditional Owners Flagship Project’, Wangan & Jagalingou Family Council (23 November 2016) . The Global Change Institute is supported by EarthJustice and Graeme Wood, who is a financial supporter of Sunrise and the founding investor of Guardian Australia. 144 ‘Global Change Flagship Projects’, University of Queensland (14 June 2017) . 145 Kristen Lyons, Morgan Brigg and John Quiggin, Unfinished Business: Adani, the State, and the Indigenous Rights Struggle of the Wangan and Jagalingou Traditional Owners Council (University of Queensland, 12 June 2017) . 146 John Quiggin, ‘The Economic (non)viability of the Adani Galilee Basin Project’, University of Queensland (July 2017) .

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The controversy surrounding the Family Council and environmental NGO partnerships came into sharper focus when Marcia Langton, who holds the Foundation Chair in Australian Indigenous Studies at the University of Melbourne, was reported to have said that ‘cashed-up green groups, some funded by wealthy overseas interests, oppose mining project with often-flimsy evidence and misrepresent the evidence to the public … They deliberately thwart the aspirations and native title achievement of the majority of Indigenous peoples by deception’.147 According to Langton’s statement, the Family Council was used and deceived in ways that negated Indigenous peoples’ aspirations for native title. In re-identifying all W&J and all Australian Aboriginal peoples as Indigenous peoples, Langton upheld the native title regime and democratic practice of the state and downplayed the subjectivity of the Family Council as true Indigenous peoples. Langton’s use of ‘Indigenous peoples’ insufficiently credits the formative capacity of international legal discourse, but also demonstrates re-iterative and problematic slippage between the state and international legal discourses resulting from naturalization of that subjectivity. In response, Tony McAvoy, Australia’s first Indigenous silk and a senior counsel assisting the Family Council, responded that the Family Council’s campaign was ‘driven by proud and independent people’ and that Langton was ‘very poorly informed’.148 McAvoy highlighted and upheld the independence of the Family Council while downplaying Langton’s information as inaccurate. It can be seen that those who hold different interests can highlight the agency or oppressive aspects of the Family Council–NGO relationship to generate contrasting views. The central and outstanding question was whether the April 2016 ILUA could be registered. If so, then Adani had satisfied the legal hurdles to the mine’s development. The ‘Adani Amendment’ While the above was unfolding, events from elsewhere would enable the NNTT to register the April 2016 ILUA against the Family Council’s objections and without its consent. Beginning with the 2010 Bygrave case, a Federal Court considered whether the RNTC was a ‘collective entity’ or all individual members of the RNTC.149 It found that the RNTC was one or more persons named in the RNTC acting in a representative capacity for the ILUA.150 Accordingly, the Adani/W&J April 2016 ILUA could have been registerable without Burragubba’s agreement or signature even though he is a named member of the RNTC, as well as a Family Council member for international legal discourse purposes. Based on an NTA ILUA controversy in Western Australia,151 in early 2017, McGlade ‘decline[d] to 147 148 149 150 151

Murphy (n 124). Robertson (n 94). QGC Pty Ltd v Bygrave (No 2) [2010] 189 FCR 412 [56] (‘Bygrave’). Ibid, Bygrave, [85] See Harry Hobbs and George Williams, ‘The Noongar Settlement: Australia’s First Treaty’ (2018) 401(1) Sydney Law Review 1, 29–30.

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follow Bygrave’.152 In McGlade, the Full Federal Court found that all members of the RNTC would have to sign an ILUA in order for the NNTT to register it.153 As such, in refusing to sign the April 2016 ILUA, Burragubba and other Family Council members who were also RNTC members made the ILUA unable to be registerable. But the controversy did not end there. In response to McGlade, Attorney-General Brandis proposed an Amendment to the NTA that would essentially reinstitute the Bygrave standard for ILUA registration.154 The proposed amendment was designed to validate ILUAs registered between Bygrave and McGlade and those that were made but not yet registered, including the April 2016 ILUA.155 Brandis justified the Amendment as consistent with Indigenous peoples’ rights to self-determination as recognized in UNDRIP and elsewhere.156 Under the Amendment, the Adani/W&J April 2016 ILUA could be registered so long as it was approved by a majority, which there may have been depending on who counted the votes. Before Parliament passed the Amendment, various Aboriginal communities, including the Family Council, submitted comments to the Senate. The Family Council testified and released a press statement. It claimed that the ‘Adani Amendment’ was ‘a con on the public and part of a manufactured crisis’.157 It also appealed to CERD158 and Special Rapporteur Tauli-Corpuz, claiming that: This system does not respect indigenous peoples’ right to free, prior and informed consent, including our right to give or withhold our consent to a 152 McGlade v Native Title Registrar [2017] FCAFC 10 (‘McGlade’), [267]. 153 Ibid, McGlade, [517]. 154 Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (Cth) [11]. There are three types of ILUAs, one of which is Area ILUAs. See NTA Pt 2 Div 3 Subdiv C. 155 Section 24CD(2)(a) of the amending Act states that if a person has been nominated or determined under s 251A(2), they may sign an ILUA. If no persons have been nominated or determined, then a majority of the RNTC is sufficient to register an ILUA. Section 251A(2) allows a native title claim group to nominate one person who comprises the RNTC to be a party to the agreement, or to specify a process for determining which person (or persons) who comprises the RNTC is to be a party (or parties). 156 Explanatory Memorandum (n 154) Statement of Compatibility with Human Rights, [9]–[21]; for commentary, see Stephen Young, ‘The self divided: The Problems of contradictory claims to Indigenous peoples’ self-determination in Australia’ (2019) 23 (1–2) International Journal of Human Rights 193–213. 157 Wangan and Jagalingou, ‘Traditional Owners Condemn Brandis’ “Adani Amendment” to Native Title Act as a Con on the Public’, Wangan & Jagalingou Family Council (13 February 2017) . 158 Wangan and Jagalingou, ‘Request to the United Nations Committee on the Elimination of Racial Discrimination for Urgent Action under the Early Warning and Urgent Action Procedure’, Wangan & Jagalingou Family Council (31 July 2018) .

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proposed destructive project, like a mine, on our traditional lands. If we reject a proposed project on our lands, our ‘no’ does not mean no.159 The Family Council invoked FPIC and stated the belief that ‘no means no’.160 That statement reflects the notion that withholding consent should provide the claimant with command over a negative and oppressive power, which is predicated on a legal model of power. It elides the other forms of power, and the performative enactment of the subjectivity – that which constructs the ability to have a voice and say ‘no’ by having said ‘yes’ to their subjection. Parliament passed the Amendment to the NTA in June 2017.161 Shortly afterwards, the NNTT registered the ILUA, which the Family Council then sought to challenge in state court.162 That appeal was dismissed.163 And still the controversy persists. Despite its inability to obtain funding, and the Indian Energy Minister publicly stating that India would not accept new coal imports until at least 2020,164 Adani announced that it would commence development in 2018.165 To stave off further appeals, Adani asked W&J representatives to pay legal costs from failed bids, which the court upheld but reduced.166 Adani then announced it would ask the Court to have Burragubba personally pay more than $600,000 from its various rounds of litigation.167 It noted that ‘Burragubba has been urged’ by ‘the ‘foreign-backed Sunrise Project’ to ‘oppose the Adani Carmichael project’ which has ‘abandoned him’.168 It apparently decided to sue Burragubba in his 159 Adrian Burragubba and Murrawah Johnson, ‘Update on the situation of the Wangan and Jagalingou People’s opposition to the proposed Carmichael Coal Mine and comments on Australia’s response to the Special Rapporteur’s letter dated 1 April 2016’, Wangan & Jagalingou Family Council (8 March 2017) 7 . 160 Wangan and Jagalingou, ‘Video/No Means No’, Wangan & Jagalingou Family Council (18 March 2016) . 161 Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth). For commentary, see Stephen M Young ‘Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth): Relying on Human Rights to Justify a Legalised Form of Colonial Dispossession?’ (2017) 8(30) Indigenous Law Bulletin 24. 162 Robinson (n 133); Wangan and Jagalingou, ‘Court Hearing’ (n 135). 163 Kemppi v Adani Mining (No 4) [2018] FCA 1245 (17 August 2018). 164 Giles Parkinson, ‘Read My Lips: Indian Energy Minister Repeats “No Coal Imports within 3 Years”’, RenewEconomy (19 April 2016) . 165 SBS News, ‘Adani’s $16 Billion Queensland Mega Mine Gets the Go-Ahead’ (6 June 2017) . 166 Kemppi v Adani Mining [2018] FCA 2012 (18 December 2018) [57]. 167 Adani Media, ‘Environmental groups leave Traditional Owner in debt’ (Media Statement, 29 December 2018) . 168 Ibid, Adani Media.

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personal capacity because the April 2016 ILUA was approved by ‘a vote of 294 to 1 and Mr Burragubba refuses to accept the voice of his own people’.169 Adani seeks to undermine the Family Council’s authority as a democratic actor by relying on state legal discourse as the prevailing form of truth and subjection constitution. And the clash between international and national legal discourses continues. The Chair of CERD, Noureddine Amir, recently wrote to Australia’s ambassador to the UN, Sally Mansfield, expressing concerns about the 2018 Amendment to the NTA and that the Carmichael mine does ‘not enjoy’ the FPIC of the ‘Wangan and Jagalingou indigenous people’.170 It was reported that Federal Resource Minister Matt Canavan responded that CERD should ‘respect the Australian legal system’ on matters it ‘clearly does not understand’.171 The Family Council is not giving up its fight either. Burragubba stated that ‘Adani is going nowhere fast – they don’t have money to fund their mine of mass destruction and they don’t have our consent’.172

Thoughts about FPIC in Australia As of writing this book, it is unknown whether Adani will develop the mine. If it does, it will not have obtained the Family Council’s consent. The Family Council performatively enacted the subjectivity of Indigenous peoples for the purposes of claiming FPIC. It invoked FPIC as international human rights law that interjected, from a doctrinal approach to Australian law, a political challenge to the mine. But from a legal model where withholding consent is a negative and oppressive power, claiming that the right of FPIC has not been obtained should mean ‘no’, even if it is not a legal claim that the state has previously recognized. Through claiming FPIC, environmental NGOs and other institutions – such as Earthjustice, Sunrise, The Guardian and the University of Queensland – assisted the Family Council. This assistance does not mean that Burragubba or other Family Council members were being ‘used’ by NGOs, at least not in the sense that their agency or intentionality was fully eclipsed. Instead, even if the Family Council’s strategies were shaped or disciplined by NGOs, that discipline assisted 169 Ibid, Adani Media. 170 Noureddine Amir, ‘Letter from the Chair, Committee on the Elimination of Racial Discrimination, to Sally Mansfield, Permanent Representative of Australia to the United Nations Office’, CERD/EWUAP/Australia/2018/JP/ks (14 December 2018) . 171 Josh Robertson, ‘Adani coal mine should be suspended, UN says, until all traditional owners support the project’, ABC (25 January 2019) . 172 Wangan and Jagalingou, ‘Native Title Bill Fails Us: Traditional Owners Say Adani Fight Continues’, Wangan & Jagalingou Family Council (13 June 2017) .

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the Family Council’s opposition to the mine and its performative enactment of status as Indigenous peoples. And throughout all of this, the pressure to develop never ended. Instead, the Family Council and the W&J became open to public scrutiny and faced questions about who provided them with financing, how they govern themselves, and whom they represent. In being identifiable to the public, the Family Council was scrutinized as a subject of public concern, which also allowed it to advance opportunities for alternative and sustainable development.173 A newer spokesperson for the Family Council, Murrawah Johnson, said that ‘[i]f Adani and its backers in government persist in their efforts to impose this mine without our consent, we will challenge this country’s failed native title regime’.174 As much as mine opponents hope for that, it is not entirely clear that Australia’s native title regime ‘failed’, or that claiming human rights ‘challenges’ so much as it attempts to reform state law. The Family Council requested intervention from UN actors and it has mounted a public and publicized challenge. But if the mine proceeds without the consent of the Family Council, what recourse does it have? Again, and just like at the end of Chapter 4, it appears that those who view FPIC through a legal model face several options. The first is to engage with the legal model and suggest uses for FPIC in a different legal form. One could argue that the NTA should adopt an FPIC standard. Such an amendment might be welcomed by some Aboriginal and Torres Strait Islander peoples, but it would not alter how the NTA funnels their culture, laws and forms of life into property rights to be identifiable by and subject to the state as the sole dispenser of legal title. Nor would Australia’s legislation of FPIC necessarily avoid the problems that arise from the IPRA in the Philippines. Alternatively, if there were an international human rights body that could enforce the Family Council’s rights claims against Australia and Adani, then maybe one might think that ‘no’ can mean ‘no’. Let us now consider how a regional human rights body requires states to adopt and enforce Indigenous peoples’ FPIC.

173 ‘Global Change Flagship Projects’ (n 144). 174 Wangan and Jagalingou, ‘“Three Strikes You’re Out” – Traditional Owners Reject Adani Carmichael Mine for a Third Time’, Wangan & Jagalingou Family Council (21 March 2016) .

Chapter 6

FPIC as regional human rights law The Inter-American Court of Human Rights and Indigenous peoples

Introduction This chapter examines FPIC claims as articulated by an authority that requires states to uphold it for Indigenous peoples. Since 2001, the Inter-American Court of Human Rights (‘Court’) has articulated a right of participation for Indigenous peoples when states pursue development that materially affects their territories or their cultural survival. This high-profile, regional court has announced that states are required to adopt and enforce Indigenous peoples’ FPIC. For this reason, many scholars see the Court’s jurisprudence on the land rights of Indigenous peoples as integral to the development and understanding of FPIC as part of a duty to consult or a right of participation.1 The Court and the Inter-American Commission on Human Rights (Commission) are the two bodies of the Organization of American States (OAS) that comprise the Inter-American Human Rights System. Although the Inter-American Human Rights System is not universally binding – so that states such as Australia or the Philippines do not fall within the jurisdictions of the Commission or Court – the Court’s contributions in developing participatory rights for Indigenous peoples are important to international legal discourse.2 Scholars have viewed the Court as contributing to the ‘evolution’ of 1 See, eg, Ben Saul, Indigenous Peoples and Human Rights: International and Regional Jurisprudence (Hart, 2016) 131–64; James Hopkins, ‘The Inter-American System and the Rights of Indigenous Peoples: Human Rights and the Realist Model’ in Benjamin J Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law (Hart, 2009) 135; S James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples: Extractive Industries and Indigenous Peoples, A/HRC/24/41 (1 July 2013) [27]; S James Anaya, Indigenous Peoples in International Law (Oxford University Press, 2nd ed, 2004) 232–4; Gaetano Pentassuglia, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22 European Journal of International Law 165, 177–82; Jérémie Gilbert, ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60(1) International and Comparative Law Quarterly 245, 253, 269–70. 2 Another regional human rights body is the African Court on Human and Peoples’ Rights (ACHPR). The Inter-American Court was chosen as the focus of this chapter because it has a longer and broader jurisprudence for the participation of Indigenous peoples than does the ACHPR. See Centre for Minority Rights Development (Kenya)

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FPIC, participatory rights, and a duty to consult.3 The Court may become even more influential, as the OAS recently endorsed the American Declaration on the Rights of Indigenous Peoples (OASDRIP),4 which is similar to, but in some ways more substantial than, UNDRIP.5 This chapter begins by describing the history of the OAS. It explains the authority of the Commission and the Court, and then sets up fundamental tensions created by the Court. The Court issues judgments for violations of rights that Member States have agreed to uphold in the American Convention on Human Rights (‘American Convention’).6 However, the Court also draws from a wide variety of sources to expand its interpretation of those rights, which it then requires states to enforce or uphold.7 Essentially, the Court’s judgments require states to use power in broad ways that state actors may see as contrary to their interests. States and scholars tend to act as though the Court is taking power away from the state and giving a negative and

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and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (African Commission on Human and Peoples’ Rights, 276/2003, 4 February 2010) (‘Endorois’); Cathal Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (Routledge, 2015) 169–71. The phrase ‘evolutionary’ comes from Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua (Merits, Reparations and Costs) (Inter-American Court of Human Rights, Ser C, No 79, 31 August 2001) [146] (‘Awas Tingni’). Soon after the publication of the opinion, the legal representative of the Awas Tingni, James Anaya, would publish an article arguing that there was an evolutionary approach throughout the international legal organizations. Anaya (n 1), 61–2; S J Rombouts, ‘The Evolution of Indigenous Peoples’ Consultation Rights under the ILO and UN Regimes’ (2017) 53 Stanford Journal of International Law 169; Odette Mazel, ‘The Evolution of Rights: Indigenous Peoples and International Law’ (2009) 13(1) Australian Indigenous Law Review 140, 143; Erica-Irene A Daes, ‘The Contribution of the Working Group on Indigenous Populations to the Genesis and Evolution of the UN Declaration on the Rights of Indigenous Peoples’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (International Work Group for Indigenous Affairs, 2009) 48; Gaetano Pentassuglia, ‘Evolving Protection of Minority Groups: Global Challenges and the Role of International Jurisprudence’ (2009) 11 International Community Law Review 185; Tara Ward, ‘The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participation Rights within International Law’ (2011) 10(2) Northwestern Journal of International Human Rights 54, 62–6. Organization of American States, American Declaration on the Rights of Indigenous Peoples, 3rd plen sess, AG/RES.2888 (XLVI-O/16) (15 June 2016) (OASDRIP). United Nations Declaration on the Rights of Indigenous Peoples, UN GAOR, 61st sess, 107th mtg, UN Doc A/61/L.67 (13 September 2007) (UNDRIP). American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) (‘American Convention’). The United States and Canada have not ratified the American Convention. See Charles R Hale, ‘Neoliberal Multiculturalism: The Remaking of Cultural Rights and Racial Dominance in Central America’ (2005) 28 Political and Legal Anthropology Review 10, 20.

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oppressive power to Indigenous peoples. But to demonstrate that power is not only negative and oppressive, nor fixed or fixable – so that the Court is also creating opportunities for states to regulate Indigenous peoples – this chapter then examines three cases: Awas Tingni v Nicaragua (2001), Saramaka v Suriname (2007), and Kaliña and Lokono v Suriname (2015).8 There are other important cases,9 but these three best exemplify the Court’s jurisprudential trend on Indigenous peoples’ participation, consultation and consent. These cases demonstrate the legal performativity involved in the Court’s jurisprudence, which involves an exposition of how the Court’s jurisprudence changes to reflect alterations in international legal discourse. When first created, the Court did not articulate the rights of Indigenous peoples. That changed when the Court issued its 2001 judgment, Awas Tingni. This chapter then examines Saramaka rather than other cases, because it was contemporaneous with the UN General Assembly’s endorsement of UNDRIP, it features the Court’s most robust articulations of FPIC and the ‘juridical personality’ of Indigenous peoples, and it is the midpoint between Awas Tingni and the third case. Kaliña and Lokono is third and the most recent case this chapter examines. Together, the three cases demonstrate how the Court validates the formation of the petitioners as Indigenous peoples by inserting them within international legal discourse and, importantly, how the Court’s judgments conscript state powers in productive and formative ways – not in ways that transfer negative and oppressive, fixed or fixable powers from states to Indigenous peoples. This chapter also draws attention to the effects of winning rights claims.10 Given state concerns that the Court transfers state powers elsewhere, legal scholars have expressed their own concerns over failures to comply,11 the 8 Awas Tingni (n 3); Case of the Saramaka People v Suriname (Preliminary Objections, Merits, Reparations, and Costs) (Inter-American Court of Human Rights, Ser C, No 172, 28 November 2007) (‘Saramaka’); Case of the Kaliña and Lokono Peoples v Suriname (Merits, Reparations and Costs) (Inter-American Court of Human Rights, Ser C, No 309, 25 November 2015) (‘Kaliña and Lokono’). 9 Other cases that could have been discussed include Moiwana Community v Suriname (Preliminary Objections, Merits, Reparations, and Costs) (Inter-American Court of Human Rights, Ser C No 124, 15 June 2005); Case of the Yakye Axa Indigenous Community v Paraguay (Inter-American Court of Human Rights, Ser C, No 125, 17 June 2005); Case of the Sawhoyamaxa Indigenous Community v Paraguay (Merits, Reparations and Costs) (Inter-American Court of Human Rights, Ser C, No 146, 29 March 2006); Kichiwa Indigenous People of Sarayaku v Ecuador (Inter-American Court of Human Rights, Ser C, No 245, 27 June 2012). For a discussion on those middle cases, see Thomas M Antkowiak, ‘Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113. 10 See Joel E Correia, ‘Adjudication and Its Aftereffects in Three Inter-American Court Cases Brought Against Paraguay: Indigenous Land Rights’ (2018) 1 Erasmus Law Review 43. 11 See, eg, S James Anaya, Report of the Special Rapporteur on the rights of indigenous peoples, Addendum: Measures needed to secure indigenous and tribal peoples’ land and related rights in Suriname, UN Doc A/HRC/18/35/Add.7 (18 August 2011) [11]–[17].

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insufficiency of awards and reparations,12 and national court hesitancy to uphold the Court’s judgments.13 They have also argued that the rights at stake must be clarified in order to ensure greater enforcement.14 The concern here is different. In the cases examined, the Court’s judgments require states to adopt legislation to delineate, demarcate and title traditional lands and Indigenous participatory rights. Such legislation is like, or less substantive than, the IPRA in the Philippines.15 As such, the concern is that when states comply with the Court’s judgment, they create similar issues to those that arose in the Philippines. The small amount of scholarship that examines the effects and consequences of the Court’s judgments supports these concerns.16 That scholarship does not reveal transfers of power from states to Indigenous peoples in ways that provide them with control. On the contrary, the Court’s judgments validate the transformation of the petitioners into Indigenous peoples and calls forth state powers to regulate FPIC claimants as subjects of the state. State actors may object to using power in that way, but, given the information we have on FPIC in national legislation, where states adopt FPIC legislation it may not necessarily benefit FPIC claimants. It certainly does not provide them with control over the effects of the judgments.

Background on the Inter-American Human Rights System The OAS was created in 1948, which year also saw the adoption of the American Declaration on the Rights and Duties of Man (‘American Declaration’).17 The American Convention was adopted in 1969 and has been ratified by a majority of OAS Member States.18 The American Declaration created the Commission, and the American Convention created the Court, which formed in 1979.19 Every Member State is subject to the Commission because to be an OAS Member is to have signed the American Declaration. Any person, group of persons, or NGO can bring a case that involves the alleged violation of rights contained in the American Declaration to 12 Thomas M Antkowiak, ‘A Dark Side of Virtue: The Inter-American Court and Reparations for Indigenous Peoples’ (2014) 25(1) Duke Journal of Comparative & International Law 1–80. 13 Alexandra Huneeus, ‘Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights’ (2011) 44(3) Cornell International Law Journal 493. 14 Alejandro Fuentes, ‘Protection of Indigenous Peoples’ Traditional Lands and Exploitation of Natural Resources: The Inter-American Court of Human Rights’ Safeguards’ (2017) 24 International Journal on Minority and Group Rights 229, 231. 15 An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous People, Creating a National Commission of Indigenous People, Establishing Implementing Mechanisms, Appropriating Funds Therefore, and for other purposes (Philippines) Republic Act No 8371. 16 Hale (n 7); Joseph Bryan, ‘Conference Transcript: Heeding Frickey’s Call: Doing Justice in Indian Country’ (2013) 37(2) American Indian Law Review 347, 393–401. 17 American Declaration on the Rights and Duties of Man, OR OEA/SEr.L./V/II/82/ Doc.6 (1948). 18 American Convention (n 6). 19 American Declaration (n 17) Pt II.

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the Commission, which makes recommendations to Member States.20 Accordingly, tribes or their representatives may make submissions or provide evidence to the Commission, which can make recommendations to Member States if it finds that there has been a violation of rights under the American Declaration.21 If the Member State fails to comply and it has signed the American Convention, the Commission may make a complaint to the Court if the Member State.22 Unlike some international instruments or treaty bodies, the Court makes binding decisions on American Convention rights that states have violated, which partly explains why some commentators view the Court as a leader in developing Indigenous peoples’ legal rights.23 As a prolific extra-national juridical source of legal rights for Indigenous peoples, the Court has international influence.24 Yet, its direct impact is confined to those Member States that have ratified the American Convention,25 which precludes OAS Member States that have not ratified it, such as Canada and the United States.26 Recently, and potentially problematically for Indigenous peoples and the Court, some Latin American Member States that are subject to the Court’s jurisdiction – including Venezuela, Ecuador, Nicaragua, Colombia, Peru and Brazil27 – have expressed dissatisfaction with the Court or even denounced it as illegitimate.28

20 21 22 23

24 25 26

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American Declaration (n 17) art 44. American Declaration (n 17) arts 45–51. American Declaration (n 17) art 62. Fergus Mackay, A Guide to Indigenous Peoples’ Rights in the Inter-American Human Rights System (Forest Peoples Programme, 2001) 3 . Saul (n 1) 131–2; Anaya, Indigenous Peoples in International Law (n 1) 232–4; Antkowiak (n 9) 120; Pentassuglia (n 1) 175. Endorois (n 2); Pentassuglia (n 1) 187–9. The United States has signed the American Convention (n 6), but has not ratified it by an Act of Congress. See Dann v United States (Case 11.130, Inter-American Court of Human Rights, Report No 75/02, OEA/Ser.L/V/II/117, doc 1 rev 1, 2003); Pentassuglia (n 1) 196. Mari Hayman, ‘Brazil Breaks Relations with Human Rights Commission over Belo Monte Dam’, Latin America News Dispatch (3 May 2011) ; Upasana Khatri, ‘Indigenous Peoples’ Right to Free, Prior, Informed Consent in the Context of State-Sponsored Development: The New Standard Set by Sarayaku v Ecuador and Its Potential to Delegitimize the Belo Monte Dam’ (2013) 29 American University International Law Review 165. See Alexandra Huneeus, ‘Rejecting the Inter-American Court: Judicialization, National Courts, and Regional Human Rights’ in Javier Couso, Alexandra Huneeus and Rachel Sieder (eds), Cultures of Legality: Judicialization and Political Activism in Latin America (Cambridge University Press, 2010) 112–38; Victoria Amato, ‘Taking Stock of the Reflection of the Workings of the Inter-American Commission on Human Rights’ (2012) 16(5) Aportes DPLF 4, 5, 8; Daniel Cerqueira, ‘Brazil, Ecuador, and the Inter-American Human Rights System’, Americas Quarterly (6 March 2015) .

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Jorge Contesse explains that Latin American state dissatisfaction with the Court is the result of changes to states’ political institutions. He argues that when the Court began making decisions, many Latin American states were authoritarian.29 Now that those states embrace democratic forms of government, the Court’s weak approach to the doctrine of subsidiarity – in other words, its unwillingness to defer to Member States on matters that reflect majority will – conflicts with popular sovereignty and democratic practice.30 The concerns over popular sovereignty and democratic practice are the same issues that arise surrounding counter-majoritarianism and FPIC’s veto debate discussed in Chapter 3.31 Contesse supports his argument by asserting that it is taken for granted that the Court makes decisions against states.32 The problem that Contesse and others see is that if state actors view the Court as illegitimate, then states are unlikely to enforce rulings against themselves.33 His solution for ensuring the Court’s relevance is for the Court to uphold a stronger form of subsidiarity, which would see it defer to the state on matters involving majority will.34 By contrast, Alexandra Huneeus has argued that the Court ‘must make itself matter to local state actors beyond the foreign ministry to achieve greater implementation of its rulings’.35 The central reason why states object to the Court’s judgments, according to Lucas Lixinski, is the Court’s reliance on ‘external elements’ to expand its jurisprudential pallet.36 To understand how the Court relies on external elements to uphold Indigenous rights, it is necessary to introduce several articles of the American Convention. Article 1 obligates signatories to uphold all ‘rights and freedoms’, which is the general catch-all article for human rights. Article 3 is a ‘right to juridical personality’ which states that ‘[e]very person has the right to recognition as a person before the law’. As the cases demonstrate below, petitioners’ representatives expand the definition of ‘person’ to include communities or collectivities and claim that Indigenous peoples are afforded juridical personality under article 3, which the Court has upheld. Article 21 is particularly important to 29 Jorge Contesse, ‘Contestation and Deference in the Inter-American Human Rights System’ (2016) 79 Law and Contemporary Problems 123, 127. 30 Ibid, Contesse; see also Alvaro Paul, ‘The Inter-American Commission on Human Rights’ Initial Review of Petitions, Its Backlog, and the Principle of Subsidiarity’ (2016) 49 George Washington International Law Review 19. 31 See also, Juan C Herrera, ‘Judicial Dialogue and Transformative Constitutionalism in Latin America: The Case of Indigenous Peoples and Afro-descendants’ (2019) 43 Revista Derecho del Estado 191, 211–5. 32 Contesse (n 29) 127. 33 David C Baluarte and Christian M De Vos, From Judgment to Justice: Implementing International and Regional Human Rights Decisions (Open Society Foundation, 2010) 9–11. 34 Contesse (n 29) 136. 35 Huneeus (n 13) 496. 36 Lucas Lixinski, ‘Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law’ (2010) 21(3) European Journal of International Law 587.

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the Court’s jurisprudence for Indigenous peoples’ communal or collective property rights and a right to consultation or consent. The first clause provides for ‘the right to the use and enjoyment of property’, while the second clause prohibits the deprivation of property rights without just compensation. Although other articles play important roles, article 21 is the foundation for Indigenous property rights. It is read in conjunction with other international human rights instruments37 to find Indigenous peoples’ participatory rights in the Court’s jurisprudence.38 To foreshadow some limitations, the second sentence in the first clause of article 21 declares that ‘[t]he law may subordinate such use and enjoyment to the interest of society’. Commentators have appropriately criticized the Court’s reliance on a property right as the foundation for Indigenous participatory rights.39 Although those articles are central to the Court’s jurisprudence for Indigenous peoples’ rights, neither the American Declaration (1948) nor the American Convention (1969) explicitly references Indigenous peoples.40 As Chapter 2 explains, Indigenous peoples who had a right to self-determination and could claim human rights did not emerge from international legal discourse until the 1980s. After or during that emergence, some communities that were resisting statist impositions of power subjectified themselves as Indigenous peoples.41 Before that occurred, the Commission began considering issues involving Indian and Indigenous populations in the 1970s.42 Between the early 1980s and 2000, the Commission issued special reports on human rights that mirror the terminological changes of 37 See Case of the Yakye Axa Indigenous Community v Paraguay (n 9) [127]–[130]; Case of the Sawhoyamaxa Indigenous Community v Paraguay (Merits, Reparations and Costs) (n 9) [160]–[164], [171]. The Court has cited International Labour Organization, Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries, opened for signature 27 June 1989, 28 ILM 1382, 1650 UNTS 383 (entered into force 6 September 1991); UNDRIP (n 5); International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1969, 993 UNTS 3 (entered into force 3 January 1976); International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 38 See, eg, Lixinski (n 36); Dinah Shelton, ‘International Law and the Development of the Rights of Indigenous Peoples (Panel 8): The Inter-American Human Rights Law of Indigenous Peoples’ (2013) 35 University of Hawai’i Law Review 937, 943–8. See also Dann v United States (Case 11.140, Report No 75.02, Inter-American Commission of Human Rights, Doc 5 rev 1, 27 December 2002). 39 Antkowiak (n 9) 168–70; Jo M Pasqualucci, ‘International Indigenous Land Rights: A Critique of the Jurisprudence of the Inter-American Court of Human Rights in Light of the United Nations Declaration on the Rights of Indigenous Peoples’ (2009) 27 Wisconsin International Law Journal 51–98. 40 Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, 2002) 268. 41 See Karen Engle, The Elusive Promise of Indigenous Development (Duke University Press, 2010) 112; Courtney Jung, The Moral Force of Indigenous Politics: Critical Liberalism and the Zapatista (Cambridge University Press, 2008) 147. 42 Guahabo Indians v Colombia, Case No 1690, OEA/Ser.L/V.II.30, Doc 45 rev 1, 21 (26 February 1973); Resolution on Special Protection for Indigenous Populations:

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international legal discourse from ‘populations’ to ‘Indigenous peoples’.43 In the 1990s, the Court began accepting cases involving ‘tribes’ or villagers.44 Since 2000, the Commission and the Court ‘have both been prepared to interpret the basic rights of these two instruments in a manner that is sensitive to the special circumstances of indigenous peoples’.45 Because the American Convention does not address Indigenous peoples’ rights, Lixinski explains that the Court interpreted article 29 as requiring the Convention to be harmonious with other relevant human rights instruments which brought ‘indigenous rights within the scope of the American Convention’.46 In its first case on Indigenous peoples, Awas Tingni, the Court found that its articulation of human rights should reflect contemporaneous understandings. It therefore adopted an ‘evolutionary’ approach to Indigenous peoples’ rights.47 Lixinski argues that the Court’s willingness to draw on external elements and other international instruments supports the unity of the international legal system rather than the ‘feared fragmentation’.48 Many commentators on Indigenous peoples and their rights are not concerned about fragmentation,49 preferring instead to read the Court’s jurisprudence as contributing to a progressive evolution of Indigenous peoples’ rights.50 This metaphorical ‘evolution’ contributes to

43

44

45 46 47 48 49

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Action to Combat Racism and Racial Discrimination, OEA/Ser.L/V/II.29, Doc 41 rev 2 (13 March 1973). See, eg, Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights of a segment of the Nicaraguan Population of Miskito Origin, OAE/Ser.L/V.II.62, Doc 10 rev 3 (29 November 1983); (IACHR), Fourth Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.83, Doc 16 rev, Ch III (1 June 1993) (Indigenous man, population, groups, communities, society, people); (IACHR), Second Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.84, Doc 39 rev, Ch XI (14 October 1993) (Indigenous people, communities, persons); (IACHR), Special Report on the Human Rights Situation in the So-called ‘Communities in Resistance’ in Guatemala, OAE/Ser/L/V/ II.86, Doc 5 rev 1 (16 June 1994); (IACHR), Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc 9 rev 1, Ch X (26 February 1999) (indigenous peoples); (IACHR), The Human Rights Situation of the Indigenous People in the Americas, OEA/Ser.L/V/II.108, Doc 62 (20 October 2000). Case of Cayara v Peru (Judgment and Preliminary Objections) (Inter-American Court of Human Rights, Ser C No 14, 3 February 1993); Case of Aloeboetoe et al v Suriname (Judgment, Reparations and Costs) (Inter-American Court of Human Rights, Ser C No 15, 10 September 1993). Nigel Bankes, ‘International Human Rights and Natural Resources Projects within the Traditional Territories of Indigenous Peoples’ (2009–10) 47 Alberta Law Review 457, 479. Lixinski (n 36) 596. Awas Tingni (n 3) [146]. Lixinski (n 36) 586. Claire Charters, ‘Multi-Sourced Equivalent Norms and the Legitimacy of Indigenous Peoples’ Rights under International Law’ in Tomer Broude and Yuval Shaney (eds), Multi-Sourced Equivalent Norms in International Law (Hart, 2011) 298–9, 300–4. See n 3; but see Kathryn McNeilly, ‘Are Rights Out of Time? International Human Rights Law, Temporality and Radical Social Change’ (2018) Social & Legal Studies 1, 10–14.

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producing the view that Indigenous peoples are natural subjects who turned to international law and the Court to recognize their pre-existing rights. Re-deploying legal models, hence, contributes to the view that the Court articulates Indigenous peoples’ rights as against or antagonistic to states, and then concerns about counter-majoritarianism, democratic practice, vetoes or subsidiarity. On the other hand, where discourse participants credit the productive and formative powers of international legal discourse then the Court is involved in performatively legitimating claimants as Indigenous peoples. When the Court identifies communities as subjects of international legal discourse, it reinforces international legal discourse. When the Court conscripts state powers to support Indigenous peoples, it also reinforces state laws, which Indigenous peoples support by employing state-sanctioned means of contestation. Where scholars are involved in clarifying the rights at stake, or arguing that the rights are consistent with democratic practices, they may help Indigenous peoples by providing protections for them while simultaneously hindering Indigenous aspirations of self-determination by providing states with the means for regulating Indigenous peoples as subjects of the state. Examining the effects of the cases reveals how that works.

Awas Tingni v Nicaragua (2001) Although the Court had previously addressed tribal and/or villager issues,51 indicating that minority groups or sectors of the population faced discrimination,52Awas Tingni was the first to address communal property of ‘Indigenous peoples’. The Court did not address the juridical personality of the Awas Tingni. Nor did it explicitly address a right of consultation or consent. Awas Tingni is an important case because it was the first in a series of cases on Indigenous communal property rights, which the Court would later expand to include consultation and FPIC. The following describes Awas Tingni and then evaluates the struggles and effects arising from the state’s efforts to comply with the judgment. The case, its finding and holding In Awas Tingni, Nicaragua had granted a logging concession to a company on Awas Tingni lands to which the Awas Tingni did not have legal title. The Court began by reciting ‘proven facts’, stating that ‘the Awas Tingni Community is an indigenous community of the Mayagna or Sumo ethic group’.53 It also stated that 51 See n 44. 52 This indication is based upon pre-Indigenous peoples in international legal discourse. See International Labour Organization, Convention (No 107) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957, International Labour Conference, 328 UNTS 247 (entered into force 2 June 1959). 53 Awas Tingni (n 3) [103(a)].

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Nicaragua had granted a logging concession, to which the Northern Atlantic Autonomous Region, a geographic region of Nicaragua comprising various political and ethnic groups, had agreed. In response, Awas Tingni representatives requested that the logging company enter into agreements with the community to protect its property rights and ‘prevent the granting of concessions for exploitation of natural resources within the area under discussion without prior consent of the community’.54 That agreement never materialized. The Court found that Nicaragua had breached several American Convention rights. With regard to a right of judicial protection, the Court found that Nicaragua ‘has not adopted the adequate domestic legal measure to allow delimitation, demarcation, and titling of indigenous community land’.55 Importantly, it found that Nicaragua would have to create effective mechanisms to delimit and title the property ‘of the members of the Awas Tingni Mayagna Community, in accordance with the customary law, values, customs and mores of that Community’.56 With regard to the property rights, Nicaragua argued that the Awas Tingni had not availed themselves of property rights provisions granted by the Nicaraguan agrarian reform laws to title their lands, and that the logging concessions would not impact their territories.57 However, the Court found that lacking. It wrote: Through an evolutionary interpretation of international instruments for the protection of human rights … it is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua.58 The reference to an ‘evolutionary interpretation of international instruments’ establishes the property right as the foundation upon which it would later find Indigenous peoples’ rights for consultation and consent. It is also language that scholars have adopted to identify the development of Indigenous peoples’ participatory rights as a linear progression.59 The Court stated: Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as a fundamental basis of

54 55 56 57 58 59

Awas Tingni Awas Tingni Awas Tingni Awas Tingni Awas Tingni See n 3.

(n (n (n (n (n

3) 3) 3) 3) 3)

[103(j)], [103(k)], [103(m)], [103(n)], [103(ñ)], [103(o)]. [137]. [138]. [141(b)(i)]–[141(b)(ii)]. [148].

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their cultures, their spiritual life, and their integrity and their economic survival.60 In short, Nicaragua’s failure to delimit, demarcate and title Awas Tingni territories had breached article 21, as well as a general obligation to human rights under article 1.61 Given Nicaragua’s violations of Awas Tingni rights, the Court ordered the state to delimit, demarcate and title communal properties, and to pay reparations and some legal expenses.62 The delimitation, demarcation and titling of Indigenous territories had to be ‘in accordance with customary law, values, customs and mores of that Community’,63 which would require that state actors consult with the Awas Tingni community to understand their law, values, customs, and mores. It was the Court’s first case in developing the jurisprudence for Indigenous participation, which in subsequent cases developed into consent and FPIC. Awas Tingni was the first instance where an international court had ruled that a state was required to recognize and protect Indigenous communal property rights.64 Notwithstanding this recognition, the property right could yield to public or national interests, which scholars have criticized.65 Thomas Antkowiak has also criticized the Court’s remedies and reparations as insufficient to restore and make redress to the victims.66 And yet, as the first legal pronouncement of a binding decision against a state, Awas Tingni was undoubtedly welcomed by the Awas Tingni and indeed all Indigenous peoples. In deploying a legal model, it appears that the Awas Tingni, as representatives of Indigenous peoples, have an unqualified ‘win’. But how the Awas Tingni came to stand before the Court as Indigenous peoples, and the effects of this ruling, question whether the effects are more complicated. The concern is not whether the remedies and reparations are insufficient – they likely are – but, rather, how Nicaragua’s compliance with the judgment had deleterious effects for the Awas Tingni. The effects of compliance Since Awas Tingni was decided in 2001, non-lawyers have produced some literature on the effects of Nicaragua’s compliance with the Court’s judgment.67 The following rehearses two accounts. The first, from 2005, is by an anthropologist 60 61 62 63 64 65 66 67

Awas Tingni (n 3) [149]. Awas Tingni (n 3) [153], [155]. Awas Tingni (n 3) [164], [167], [169]. Awas Tingni (n 3) [164]. Awas Tingni (n 3) [153(a)]. Antkowiak (n 9) 141. Antkowiak (n 12). Correia (n 10) also considers ‘adjudication’ ‘aftereffects’ in cases against Paraguay. Correria employs a ‘legal geography’ method to broaden his analysis beyond the ‘courtroom deliberations and resultant jurisprudence’, at 44.

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who was also an expert witness in Awas Tingni. The second, from 2008, is by a geographer who assisted in the delimitation and demarcation of Awas Tingni territories. ‘Modern’ forms in 2005 In 2005, anthropologist Charles Hale argued that the effects of the ruling were entirely consistent with ‘neoliberal multiculturalism’.68 He defined ‘neoliberal multiculturalism’ as the integration of cultural and collective rights into the ‘reorganization of political society along the lines of decentralization, trimming down of the state, affirming basic human rights, and calling for minimally functional democracies’.69 He focused on two aspects.70 First, Hale describes the approach of the Awas Tingni’s lawyer, James Anaya, which, under performative method, formed the Awas Tingni into Indigenous peoples.71 According to Hale, Anaya championed a ‘modern’ approach toward Indigenous peoples, which ‘strengthen the cultural essence, the life ways of indigenous peoples, assign value to indigenous religious and philosophical beliefs (cosmovision) and to their relations with the land’.72 This modern approach was then juxtaposed with an ‘out-of-date’ or ‘backwards-looking’ assimilationist or integrationist approach, which would allow the state to strip ‘away their cultural attributes, their cultural essence, preventing them from prospering in the land where they have lived’.73 Both ‘modern’ and ‘backwards’ approaches are direct analogs of international legal discourse. As examined in Chapter 2, assimilationist and integrationist international instruments sought to regulate Indigenous populations and make them consistent with state populations. Because Indigenous peoples had asserted themselves before and within international institutions, in part, to combat assimilation and integration, Anaya casts assimilation as a backwards approach. By forming the Awas Tingni community into Indigenous peoples, he (and others) inserted them into the citational-chain and upheld the distinctive essence of Indigenous peoples as protected by the modern approach to international law. Anaya was not alone in furthering this modernist tactic. Although Awas Tingni community members who testified did not self-identify as, or mention, ‘Indigenous peoples’, anthropologists and lawyers did.74 An expert, Rodolfo Stavenhagen said: 68 69 70 71

Hale (n 7). Hale (n 7) 12. Hale (n 7) 13. James Anaya, who has been cited in every chapter, is a seminal figure in developing Indigenous peoples’ rights – first as a scholar, then as counsel for Awas Tingni, and as the UN Special Rapporteur. His book Indigenous Peoples in International Law also proposes understanding international law in an evolutionary way. Anaya (n 1) 6, 291. 72 Hale (n 7) 15. 73 Hale (n 7) 15. 74 Awas Tingni (n 3) 18–45 [83a]–[83m]. It is likely that the community members did not need to. For commentary on the role of experts, see David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton University Press, 2016).

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For many years, the Nicaraguan State has carried out policies of incorporation, of integration of these peoples … with some positive results in terms of national integration of the country, but there have also been tensions between the indigenous population of that region and the rest of society … A fundamental theme in the definition of indigenous peoples is how they relate to the land. All anthropological, ethnographic studies, all documentation which the indigenous peoples themselves have presented in recent years, demonstrate that the relation between indigenous peoples and the land is an essential tie which provides and maintains the cultural identity of those peoples.75 As the Awas Tingni was a traditional community whose cultural essences were tied to its land, the experts inserted it into the citational-chain of Indigenous peoples as subjects of modern and progressive international legal discourse. In opposition, the state argued that Awas Tingni individuals had moved around too much to retain a connection to territory and that they were racially mixed.76 In proffering this argument, the state sought to identify them as part of the non-distinct and non-essential part of its population. Hale argues that because the state’s arguments were more associated with assimilation and integrationist projects, they inspired ‘contempt for their cultural backwardness’.77 The second aspect Hale that focused on was Nicaragua’s compliance with the order to delimit, demark and title Awas Tingni traditional lands in accordance with Awas Tingni customs and laws. To give effect to the ruling, Nicaragua engaged in a twenty-month consultation and negotiation with the Awas Tingni, which, given state budgetary constraints, required support and structuring from the World Bank. Enforcing a ruling against itself allowed Nicaragua to pivot from its role as the defendant to a role as the arbiter between the Awas Tingni and others. Hale saw this as introducing new constraints and means of manipulation.78 He argues that it introduces the ‘unprecedented involvement of the state and of neoliberal development institutions in the community’s internal affairs: regulating the details of the claim, shaping political subjectivities, and reconfiguring internal relations’.79 Where Hale sees the political subjectivities being shaped at that stage, the legal subjectivity of the Awas Tingni had previously been re-formed and shaped to enable it to be identifiable as Indigenous peoples for purposes of litigation. Hale, though, claims that the negotiations ‘entangled’ the Awas Tingni in a ‘grid of intelligibility’, which he views as a ‘central tenet of neoliberalism’.80 It is 75 76 77 78 79 80

Awas Tingni (n 3) 23–4 [83d] (emphasis added). Hale (n 7) 23–4 Hale (n 7) 15–16. Hale (n 7) 20. Hale (n 7) 20. Hale (n 7) 15, citing James C Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (Yale University Press, 1998) 24, 36, 57; cf Michel Foucault, History of Sexuality: Vol 1 (Pantheon Books, 1978) 92–3.

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similar to Wangan and Jagalingou and Daguil Capion becoming subjects of state concern and public scrutiny. As maintained here, to claim human rights is to become identifiable as a subject of international legal discourse. Hale, however, identifies the ‘entanglement’ with a ‘neoliberal’ ‘grid of intelligibility’ at the state level, rather than the international level. According to him, entanglement with the state transformed the Indigenous political project from one that had been oppositional and protest-focused to one that was more sympathetic with compromise. This transformation amounted to a loss in the desire or the ability of the Awas Tingni ‘to articulate a more expansive utopian political vision [in favor of] pragmatic tactics of the here and now’.81 Hale was not suggesting that the Awas Tingni had entered into the struggle with ‘foolhardy’ intentions, but he queried whether Indigenous peoples could ‘use the system’ to ‘fight the system’. He urged viewing the ‘process as a transformation of power relations as opposed to resistance toward empowerment’,82 and claimed that the Awas Tingni ‘started occupying the spaces that neoliberal multiculturalism has opened’.83 Hale’s view stands in distinct contrast to Doyle’s argument, presented in Chapter 3, that Indigenous peoples could use FPIC to create a ‘philosophical space’ against the ‘neoliberal development paradigm’.84 Deficient formulations in 2008 In 2008, Joseph Bryan saw deleterious effects of Hale’s ‘neoliberal multiculturalism’ and the Court’s decision. As a geographer involved in the demarcation and delimiting process of the Awas Tingni, Bryan wrote that when the Awas Tingni ‘finally received their title in 2008, half of their land claim had already been taken away or ceded to other communities, the forest had been depleted, and they faced serious tensions with many of their Miskito neighbors’ – distinct and similarly situated, but more numerous, ethnic communities.85 He identified the cause of those problems as being ‘only rarely linked to the Inter-American Court’s ruling. Instead they were repeatedly blamed on the general levels of political dysfunction and corruption found in Nicaragua’.86 For Bryan, the Court produced two problems. First, the lawyers formed ancestral or traditional territory claims into state-based property rights in order to make Indigenous peoples’ claims into ‘something that states could recognize’.87 Doing so ‘minimized the perceived threat that indigenous territorial claims posed to state 81 82 83 84 85 86 87

Hale (n 7) 20. Hale (n 7) 16. Hale (n 7) 14. Doyle (n 2) 173–4. Bryan (n 16) 399. Bryan (n 16) 399. Bryan (n 16) 397.

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sovereignty while underscoring the fundamental importance of control over land and resources’.88 It reflects, as Hale says, a transformation of opposition to compromise. Second, the mechanism for enforcing the judgment was for the Awas Tingni to ask Nicaragua to comply,89 which required further subjection to the state. Bryan notes, ‘they spoke of how they felt like they had won their case and obtained a title only to feel “jailed” (encarcelado) in the community’.90 Through its legal performance, the Awas Tingni became Indigenous peoples and Awas Tingni became an important case for Indigenous peoples throughout the world. The problem, though, is that the controversies did not end with the issuance of that judgment. The Court’s order to Nicaragua to adopt laws that protect Indigenous peoples’ territories was significantly weaker than the IPRA in the Philippines, so perhaps the effects of Awas Tingni are unsurprising. They are consistent with the effects of the IPRA. The following cases expand the jurisprudence articulated in Awas Tingni, going so far as to articulate FPIC. The Court directs the states to enforce similar remedies – although, in the following cases, the state does not always comply with the judgments.

Saramaka People v Suriname (2007) In Saramaka People v Suriname, the state granted logging and mining concessions over Saramaka lands.91 The Saramaka argued that Suriname violated their right to occupy their traditional lands, their right to judicial protection, and that the state failed to adopt legal provisions to guarantee such rights. In dealing with those claims, the Court’s analysis can be divided into two categories.92 The first involved the Saramaka’s subjectivity as Indigenous peoples, or, in this case, as ‘tribal peoples’. The second is about the rights that inure to that subjectivity. Juridical personality as the true, natural subject The Saramaka are ‘maroons’, people whose ancestors were brought by slavers from Africa to the Americas in the 17th century.93 The Court found that ‘[t]heir ancestors escaped to the interior regions of the country where they established autonomous communities’.94 Largely following its ruling in a case decided after 88 Bryan (n 16) 397. 89 Bryan (n 16) 397–9. 90 Bryan (n 16) 400. Bryan describes how the tensions between the Awas Tingni and their Miskito neighbors led to blockades, threats and hostage situations. 91 Saramaka (n 8) [124]. 92 Saramaka (n 8) [77]. 93 Saramaka (n 8) [78]–[80]. 94 Saramaka (n 8) [79].

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Awas Tingni and before Saramaka,95 the Court found that the Saramaka were not Indigenous peoples because they were not indigenous to the area.96 Consequently, the Court sought to determine whether the Saramaka peoples were ‘like Indigenous peoples’ and whether, as alleged, they were not granted communal juridical personality by Suriname. It found that ‘[t]heir culture’ was ‘similar to that of tribal peoples’ insofar as they ‘maintain a strong spiritual relationship with the ancestral territory’, which is ‘more than merely a source of subsistence’.97 The Court continued, finding that their lands were ‘a necessary source of the continuation of the life and cultural identity’, which are ‘part of their social, ancestral, and spiritual essence’.98 Because the Saramaka are descendants of escaped slaves, the Court noted the important interrelation and constitution of identity, territory and freedom. It wrote that ‘the identity of the members of the Saramaka people with the land is inextricably linked to their historical fight for freedom from slavery, called the sacred “first time”’.99 By acknowledging that they were free peoples, they could accordingly choose to become subjects of power.100 The Court then upheld the Saramaka as ‘tribal peoples’, which it treats as legally synonymous with Indigenous peoples.101 Before the Court issued its judgment or found that the Saramaka were tribal peoples, Suriname raised preliminary objections. One is relevant to the Court’s opinion on juridical personality. In a curious turn, Suriname argued that the Saramaka petitioners had failed to consult and obtain the consent of their own chief/leader, the Gaa’man, to bring the claim and, hence, had not complied with their own laws.102 The Court quickly dispensed with this objection, holding that it was not necessary under the Court’s processes for the petitioners to have obtained the authorization of the Gaa’man to file a petition.103 Some implications are discussed below. One of the Saramaka’s representative’s central allegations was that Suriname violated American Convention article 3, which states that ‘[e]very person has the right to recognition as a person before the law’. The Saramaka’s representatives argued that the state failed to ‘recognize the juridical personality of the Saramaka people as a distinct people, in accordance also with their right to self-determination’.104 The representatives also alleged that the state violated article 21 because, 95 Moiwana Community v Suriname (Preliminary Objections, Merits, Reparations, and Costs) (n 9). 96 Saramaka (n 8) [79]. 97 Saramaka (n 8) [82]. 98 Saramaka (n 8) [82]. 99 Saramaka (n 8) [82]. 100 Michel Foucault, ‘The Subject and Power’ (1982) 8(4) Critical Inquiry 777, 790. 101 Saramaka (n 8) [84]. The Court’s inclusion of ‘tribal peoples’ in the category of Indigenous peoples expands that form. However, the choice of terminology is not always clear, with the Court writing ‘tribal peoples’ and elsewhere ‘tribal community’. I have preserved the Court’s terminology within quotations. 102 Saramaka (n 8) [23]. 103 Saramaka (n 8) [24]. 104 Saramaka (n 8) [159].

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as peoples without juridical personality, the Saramaka were ‘ineligible to receive communal title to land’.105 The state proffered two counter-arguments. First, it argued that some Saramaka individual’s ‘voluntary inclusion into “modern society” … has affected their cultural distinctiveness, such that it would be difficult to define them as a distinct legal personality’.106 Suriname emphasized how the Saramaka had voluntarily integrated with the population of the modern state, questioned Saramakan distinctiveness, and whether they could be Indigenous peoples while upholding itself as a modern and inclusive society without necessarily appearing ‘backwards’. Nonetheless, consistently with Awas Tingni and international legal discourse, the Court recognized the Saramaka as distinct tribal peoples, rather than including them in the population of the state. As the Court had already declared that they were tribal peoples, it found that any choices to live outside the traditional territories did not mean that they were not distinct.107 Whether some Saramaka individuals were too removed from a distinct way of living, the Court asserted that it was ‘a question that must be resolved by the Saramaka people in accordance with their own traditional customs and norms, not by the State or this court’.108 Suriname’s second argument was that it was impossible to recognize the juridical personality of a group rather than of its individuals.109 Because the Court had already upheld the Saramaka as tribal peoples, it easily found that Suriname did not recognize their juridical personality for the purposes of using and enjoying communal property, which denied a right of equal access to judicial protection.110 And then the state’s preliminary objection involving the Gaa’man became relevant. The Court stated: A recognition of the right to juridical personality of the Saramaka people as a whole would help prevent such situations, as the true representatives of the juridical personality would be chosen in accordance with their own traditions, and the decisions affecting the Saramaka territory will be the responsibility of those representatives, not of the individual members. … The dispute over the Gaa’man and the controversy over who actually represents the Saramaka people is precisely a natural consequence of the lack of recognition of their juridical personality.111 In forming the Saramaka into tribal peoples, the Court validated the Saramaka’s performative enactment of Indigenous peoples and legitimated their insertion into the citational-chain of international legal discourse. In orienting the dispute within 105 106 107 108 109 110 111

Saramaka Saramaka Saramaka Saramaka Saramaka Saramaka Saramaka

(n (n (n (n (n (n (n

8) 8) 8) 8) 8) 8) 8)

[159]. [164]. [164]. [164]. [167]. [169]. [169]–[170].

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that truth-producing discourse, the Court upheld the juridical personality constructed in the terms of that discourse, characterizing the plaintiffs as the ‘true representatives’. Suriname was attempting to enforce a legal construction of the Saramaka, which was based on either state law or Saramaka law (or a combination of both), by urging the Court to compel the petitioners to consult with and obtain the consent of the Gaa’man. However, in lodging the performative enactment in international legal discourse, the Court then required the state to recognize the juridical personality of the tribal peoples, which is ‘a natural consequence of the recognition of the right of members of indigenous and tribal groups to enjoy certain rights in a communal manner’.112 The Court’s identification and subjectification of the Saramaka as Indigenous peoples contrasts with Suriname’s attempt to identify and subjectify them as state subjects. It also mirrors the struggle between Nicaragua and the Court to identify the subject status of the Awas Tingni, as well as the struggles of the Family Council (traditional or ‘greenies’ and ‘vigilantes’) and Daguil Capion (traditional or fugitive bandit). By identifying and legitimating the subjectivity of the Saramaka as equivalent to that of Indigenous peoples, the Court would then investigate which rights inure to that subject. It could appear that the Court or Indigenous peoples are against the state or against state subjection. But, when the Court articulates which rights inure to Indigenous peoples, it requires the state to use its powers to protect the Saramaka as Indigenous peoples. The rights that inure to subjectivity as Indigenous people The Court examined and upheld the Saramaka’s ‘right to use and enjoy their territory in accordance with the traditions and customs’ as tribal peoples. The Court found that tribal peoples have a right to property that is like that of Indigenous peoples because both share distinct social, cultural and economic characteristics.113 When considering Suriname’s recognition of those rights, the Court held that the state had breached American Convention article 21 by ‘merely grant[ing] the members of the Saramaka people a privilege to use land, which does not guarantee the right to effectively control their territory without outside interference’.114 Here, the Court explicitly upholds the view that rights are a power that should provide Indigenous peoples with control, even though it is, in essence, asking the state to use state powers to title the Saramaka’s land. The more contested and complicated issue was whether the state could grant concessions for natural resource exploitation. The Court established, under article 21, that the Saramaka are entitled to use and enjoy territory in accordance with 112 Saramaka (n 8) [172]. 113 Saramaka (n 8) [86]. 114 Saramaka (n 8) [115]; Bankes (n 45) 486. Bankes notes that the Suriname property law did not recognize communal property, so the Court also had to draw on American Convention (n 6) art 25 to support its finding of a communal property rights.

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their traditions and customs, which extended to the natural resources necessary for ‘the cultural and economic survival of indigenous and tribal peoples, and their members’.115 The court noted: the right to use and enjoy their territory would be meaningless in the context of indigenous and tribal communities if said right were not connected to the natural resources that lie on and within the land. That is, the demand for collective land ownership by members of indigenous and tribal peoples derives from the need to ensure the security and permanence of their control and use of the natural resources, which in turn maintains their very way of life.116 That the right to territories and the use of natural resources is tied to traditions, and the essence of survival appears progressive, but it has been critiqued for limiting the right to those resources that are only traditionally used and essential for survival.117 The Court’s formation of this right mirrors the problems arising from Australia’s native title regime and the conflict between the Mining Act and the IPRA in the Philippines: it protects rights to lands and resources traditionally used, but other resources on or in those territories are exploitable by non-Indigenous people. The Court attempted to mitigate the pernicious effects of that arrangement by announcing a proportionality test that hinges on a duty of consultation and consent.118 After establishing that the Saramaka have a right to traditionally used natural resources that are ‘essential to their continued physical and cultural survival as people’, such as forests and rivers,119 the Court considered whether the mining concessions were issued in ways that complied with international legal safeguards.120 Given the importance of communal property to Indigenous peoples, and because article 21 ‘does not per se preclude the issuance of concession for the exploration and exploitation of natural resources in indigenous or tribal territories’,121 the Court articulated a proportionality test that sought to determine whether a proposed state action jeopardizes the community’s continued survival.122 Where projects would have a ‘major impact’ ‘the state has a duty … to

115 116 117 118

119 120 121 122

Saramaka (n 8) [120]. Saramaka (n 8) [122]. Pasqualucci (n 39) 79–81; Antkowiak (n 9) 120–1; Bankes (n 45) 486–91. See also, Doyle (n 2) 172; S James Anaya and Sergio Puig, ‘Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples’ (2017) 67(4) University of Toronto Law Journal 435, 461. Richard Price, Rainforest Warriors: Human Rights on Trial (University of Pennsylvania Press, 2011) 214–15. Saramaka (n 8) [120]–[140]. Saramaka (n 8) [143]. Saramaka (n 8) [128]. The proportionality test comes from an earlier case, Case of the Yakye Axa Indigenous Community v Paraguay (n 9) 144–5. Cf Doyle’s proportionality test, Doyle (n 2) 168–9.

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obtain their free, prior, and informed consent, according to their customs and traditions’.123 The Court supported this reading by citing Special Rapporteur Rodolfo Stavenhagen,124 and UNDRIP article 32 as the UN General Assembly had endorsed UNDRIP the month before the judgment was announced. Although the Court cited UNDRIP’s FPIC provisions and advanced Indigenous rights as legal entitlements, it did not provide an unqualified right to collective territories, FPIC or self-determination. Mauro Barelli rightly views the Court’s reference to UNDRIP article 32 as consistent with a flexible and dynamic approach to FPIC – instead of as an incontrovertible or non-derivable right – which balances Indigenous peoples’ rights with state interests.125 The Court’s balancing derives from its three safeguards that states must adopt in order to develop on or near Indigenous peoples’ lands. Before granting any natural resource concessions, the state must guarantee: (1) the effective participation of the community members; (2) that the community will benefit from the proposed activity; and (3) the performance of independent environmental and social impact statements.126 In applying this balancing test to the concessions that Suriname had issued, Robert Goodland, a co-author of Philippines: Mining or Food? discussed in Chapter 4, testified that logging had degraded the Saramaka’s lands.127 With regard to gold-mining concessions, the Court found that the Saramaka did not have a traditional connection to gold, but that mines on or near their territories would impact their way of living.128 Suriname had issued logging and mining concessions in the 1990s, but had not complied with the safeguards the Court announced and had thus breached article 21.129 Remedies or problems? Because Suriname had failed to recognize the juridical personality of the Saramaka as tribal peoples, the violations of their rights needed to be redressed.130 The Court ordered the state to delimit, demarcate and grant collective title to territory; to recognize the Saramaka’s collective juridical personality; to remove or amend the legal provisions that impede recognition or protection of collective property title for land and natural resources that are necessary for social, cultural and 123 Saramaka (n 8) [134], [137]. 124 Saramaka (n 8) [135]. 125 Mauro Barelli, ‘Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead’ (2012) 16(1) International Journal of Human Rights 1, 13–4. 126 Saramaka (n 8) [129]. 127 Saramaka (n 8) [151]–[152]; see Robert Goodland and Clive Wicks, Philippines: Mining or Food? (The Working Group on Mining in the Philippines, 2009). 128 Saramaka (n 8) [155]–[157]. 129 Saramaka (n 8) [158]. 130 Saramaka (n 8) [187]–[188].

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economic survival; to adopt laws or other measures to ensure that they are ‘effectively consulted, in accordance with the traditions and customs, or when necessary, the right to give or withhold their free, informed and prior consent, with regards to development or investment projects … and to reasonably share the benefits of such projects’; and to adopt laws for adequate and effective resource management.131 It also required compensation for material and immaterial harms, and the creation of a community development fund to benefit the Saramaka peoples.132 These remedies direct Suriname to adopt laws similar to those of the IPRA in the Philippines. Before moving onto the next and final case, it is worth examining some criticisms. Scholars have criticized the Court’s reliance on a property framework for articulating Indigenous peoples’ consultation and consent.133 In part, the criticism arises because article 21 restricts some development but does not override the state’s ability to grant concessions to third parties over Indigenous peoples’ territories. Even though the forms of life are at stake, the Court fails to recognize an absolute right or overriding Indigenous interest. Lixinski criticizes the Court’s embrace of subsidiarity, its deference to the state, and its ‘timidity’ towards Indigenous consent – which, he claims, otherwise ‘essentially creates a veto for indigenous peoples’.134 But even if the Court had articulated a stronger or absolute right, it is not clear that Suriname would enforce the right. It is also doubtful that upholding an absolute right would, in fact, provide the Saramaka with a veto or control. An expert witness in Saramaka, anthropologist Richard Price wrote that the majority of the ‘judgment may be considered a signal victory for the Saramakas’.135 But, he continued, ‘[a]s I write this in the spring of 2010, Suriname has done little to abide by the Court’s judgment, other than to assert its good intentions’.136 With regard to titling and demarcation of ancestral lands, Suriname claimed that it could title the Saramakas’ land only if a comprehensive titling project for all Indigenous peoples was possible. To do so, Suriname initiated a ‘support for the Sustainable Development of the Interior’ project, to which some Saramaka strongly objected.137 In 2013, several Saramaka leaders filed a petition with the Court requesting provisional measures. They claimed that Suriname had not complied with the judgment and was actively intimidating and coercing the Saramaka by removing their legal representative’s 131 Saramaka (n 8) [194(a)]–[194(f)]. 132 Saramaka (n 8) [199]–[201]. 133 Antkowiak (n 9) 120–1; Marcos A Orellana, ‘Saramaka People v Suriname’ (2008) 102 American Journal of International Law 841, 846. 134 Lucas Lixinski, ‘Case of the Kaliña and Lokono Peoples v. Suriname’ (2017) 111 American Journal of International Law 147, 153. Note that Lixinski’s analysis was made about the following case which he compared to Saramaka. 135 Price (n 119) 209. 136 Price (n 119) 223. 137 Price (n 119) 223–4.

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salary.138 The Court found that Suriname’s revocation of the legal representative’s salary did not require a provisional measure.139 Even if the Saramaka ‘won’ the case, Price describes how controversy persists. Price then defaults to a legal model of power. He concludes that there are two options for the Saramaka: ‘Will the Saramakas have the collective will and organizational skills to play a strong hand that the Court has dealt them? Or will they join the long list of peoples who have become proverbial “victims of development”?’140 The first option is that ‘a self-determining Saramaka people controlling and making the ultimate decisions about what takes place in their territory’ do so by ‘drawing considerable strength from their culture, spirituality, and history of resistance, as well as leaning on their victory before the Court’ to ‘become masters of their fate’.141 The second is that they become ‘victims of development’, through a rapid ‘integration’ and ‘modernization’. As representative of this second view, Price cites a Saramaka individual, Vinije Haabo, who said, ‘[i]n twenty years’ time there will hardly be any original inhabitants left in the Surinamese interior. Multiple mixed social groups will live there … and we’ll see ghettos in the big cities just like in Africa and elsewhere in South America’.142 Price’s binary between ‘self-determining Saramaka masters of fate’ and ‘development victims’ embraces the negative and oppressive aspects of the legal model: one either controls the law or is dominated by it. Under such a view, Indigenous peoples either command power as self-determining sovereigns who are ‘masters of their fate’, or they are subjugated by power. As argued throughout this book, there are no means of free agentic expression without some correlative degree of discipline and oppression. To use power and to be empowered is to be a subject of power. To claim FPIC requires relationships between Indigenous peoples, NGOs, states and industry. Each relationship involves disciplinary powers that are oppressive as well as constitutive of subjective self-expression and self-determination. And yet, the performative enactment of the Saramaka as possessing juridical personality equivalent to that of Indigenous peoples is, as Bryan noted above, ‘something that states could recognize’, which may have ‘minimized the perceived threat that indigenous territorial claims posed to state sovereignty’.143

138 Saramaka People v Suriname (Monitoring Compliance with Judgment) (Order of the Court, Inter-American Court of Human Rights, 4 September 2013) ‘Having Seen’ [6]–[8]. 139 Ibid, Saramaka People v Suriname (Monitoring Compliance with Judgment), [14]– [15]. 140 Price (n 119) 242. 141 Price (n 119) 241–2. 142 Price (n 119) 241, citing Vinije Haabo, ‘The Future’ in Thomas Meijer zu Schlochtern and Christopher Cozier (eds), Paramaribo Span (KIT, 2010) 76. 143 Bryan (n 16) 397.

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Kaliña and Lokono v Suriname (2015) Kaliña and Lokono is the Court’s most recent case on Indigenous peoples, resource development, property and participatory rights that has been published in English.144 It follows and often cites the reasoning found in Saramaka, because both cases involve Suriname as the defendant.145 At issue in Kaliña and Lokono was whether Suriname’s creation of nature reserves for environmental protection,146 as well as grants of mining concessions147 and private title,148 impacted the Kaliña and Lokono traditional territories. The Kaliña and Lokono argued that through those land uses, Suriname refused to recognize their right to collective juridical personality, and their rights to property and juridical protection. Juridical personality With regard to a right to collective juridical personality, the Court relied heavily on Saramaka, which found that the juridical personality of Indigenous peoples is ‘one of the special measures that should be granted to the indigenous and tribal groups in order to ensure that they may enjoy their territories according to their traditions’.149 Because the Court in Saramaka had already identified Indigenous peoples as equivalent to tribal peoples within Suriname, the Court in Kaliña and Lokono was able to identify the Kaliña and Lokono as Indigenous peoples. It found that Suriname had not recognized their legal personality as Indigenous peoples, but as Indigenous peoples the Kaliña and Lokono were afforded some rights. The Court then examined which rights applied. The rights that inure to that subject With regard to their right to property, the Court applied article 21 and found that it requires ‘the right of the members of indigenous and tribal peoples to freely determine and enjoy their own social, cultural and economic development, which includes the right to enjoy their particular spiritual relationship with the territory they have traditionally used and occupied’.150 Essentially, the Court found that Suriname refused to hear the complaints of the Kaliña and Lokono, which violated their right to property and a general obligation to protect human rights under 144 Xucuru Indigenous Peoples v Brazil (Preliminary Objections, Merits, Reparations and Costs) (Inter-American Court of Human Rights, Ser C, No 346, 8 February 2018) has been released in Spanish. 145 Herrera (n 31) 199. 146 Kaliña and Lokono (n 8) [70]–[73]. 147 Kaliña and Lokono (n 8) [88]–[93]. 148 Kaliña and Lokono (n 8) [96]–[99]. I do not analyze this claim below because the reasoning does not substantially differ from that of the other claims. 149 Kaliña and Lokono (n 8) [107]. 150 Kaliña and Lokono (n 8) [124].

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article 1.151 In discussing the right to property, the Court considered the ways in which the creation of the nature reserves and mining reserves impacted the Kaliña and Lokono and whether the state’s actions had violated their rights. Each deserves some exposition. Nature reserves Suriname established one of the nature reserves in 1980. It produced evidence that the government had consulted KANO, an organization comprised of Indigenous leaders and individuals.152 Whether Suriname consulted with KANO, however, is probably irrelevant. According to the evidence, KANO ceased to exist six years before the creation of the reserve. The evidence also established that the Kaliña and Lokono only realized that Suriname created the reserve in 1997, when they discovered mining activities within the reserve on their land.153 Experts provided testimony on how to properly balance environmental protection of the nature reserve with Indigenous peoples’ property rights. Jérémie Gilbert testified that ‘there is no need to expel the indigenous peoples in the name of protecting nature … indigenous peoples are part of the protection of nature’.154 The Court found that the protected environmental area was biological, which included socio-cultural dimensions because ‘Indigenous peoples may play an important role in nature conservation, since certain traditional uses entail sustainable practices and are considered essential for the effectiveness of conservation strategies’.155 The Court supported its interpretation by referencing the Convention on Biological Diversity,156 the Rio Declaration on Environment and Development,157UNDRIP and other international instruments. It concluded that, ‘owing to their interrelationship with nature and their ways of life, the indigenous and tribal peoples can make an important contribution to such conservation’.158 151 Kaliña and Lokono (n 8) [160]. 152 Kaliña and Lokono (n 8) [85]. 153 Kaliña and Lokono (n 8) [87], [90]. Bauxite mining was allowable and happening within the Wane Kreek Nature Reserve. 154 Kaliña and Lokono (n 8) [175]; see also Cathal Doyle and Jérémie Gilbert, ‘Indigenous Peoples and Globalization: From “Development Aggression” to “Self-Determined Development”’ (2008–09) 7 European Yearbook of Minority Issues 219; Cathal Doyle and Jérémie Gilbert, ‘A New Dawn over the Land: Shedding Light on Collective Ownership and Consent’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 28. 155 Kaliña and Lokono (n 8) [173]. 156 Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 69 (entered into force 29 December 1993). 157 Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3–14 June 1992), UN Doc A/CONF.151/26 (Vol I) (12 August 1992), Annex I: Rio Declaration on Environment and Development. 158 Kaliña and Lokono (n 8) [181].

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Here, one can see how the Court deployed the subjectivity of Indigenous peoples as protectors of nature and sustainable development, as cultivated by experts, Indigenous peoples and the Kaliña and Lokono, for the claimants’ benefit. According to Lixinski, the Court ‘broadened the scope of the term “environment” to include other considerations, particularly indigenous interests’.159 And to do so, the Court shaped them into the form of Indigenous peoples’ subjectivity by upholding them as natural subjects and equating their interests with environmental conservation. While potentially progressive, Lixinski acknowledges that: the Court assumed that indigenous practices help environmental conservation, in a way that unproductively essentialized indigenous identity and reinforces the myth of the ‘Noble Savage,’ meaning that indigenous people in their wisdom harmoniously engage with nature. While this connection has been exploited successfully by indigenous peoples, it also brings unintended consequences to indigenous peoples, who now can only use their lands in sustainable ways and are excluded from certain forms of development that should otherwise accrue as a matter of human rights.160 Lixinski succinctly articulates some damaging effects that arise from legally formalizing essentialism. Part of the problem with performatively enacting as Indigenous peoples is the requirement to fit the ‘form’ of an essentialist identity for the purposes of claiming human rights. The Court may have, with beneficent intentions, followed Gilbert’s testimony and international legal discourse to broaden the concept of ‘environment’ to include Indigenous peoples. It also concealed how the Court and international legal discourse form and produce that subject by upholding the appearance of a natural subject that is intertwined with nature. Mining activities With regard to the mining activities, in 1958 Suriname granted a seventy-fiveyear bauxite mining concession to industry actors over some Kaliña and Lokono territories.161 Mining commenced in 1997 without an environmental impact assessment and ended in 2009. Given a lack of baseline evidence to discern environmental conditions before the mining began, the Court engaged in an onsite visit and found obvious and significant adverse environmental degradation.162

159 160 161 162

Lixinski (n 134) 150. Lixinski (n 134) 154. Kaliña and Lokono (n 8) [88]. Kaliña and Lokono (n 8) [89], [91]–[93].

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The Court found that Suriname failed to ‘ensure the effective participation, by means of a consultation process, of the Kaliña and Lokono peoples before undertaking or authorizing the exploitation of the bauxite mine’.163 Although the Commission urged the Court to uphold the FPIC of the Kaliña and Lokono,164 the Court did not expressly articulate it as a right that Suriname breached. Lixinski explains that ‘the Court is still very tentative in its engagement with this right, and clearly protecting of a state’s prerogative to make decisions on the exploitation of natural resources within its territory’.165 Clearly, the Court continues to balance Indigenous peoples’ rights with state interests. So maybe the Court is ‘timid’ about FPIC, ‘as it essentially creates a veto for indigenous peoples’.166 Or perhaps the Court has bowed to state pressures and, in not explicitly articulating FPIC, implicitly adopted a stronger form of subsidiarity. Another possibility is that the Court has subsumed consultation and consent under ‘effective participation’. The Commission previously found that Suriname had issued concessions without FPIC of the Kaliña and Lokono.167 The legal representatives urged the Court to order Suriname to obtain FPIC,168 and Suriname repeatedly asserted to the Court that it was developing FPIC legislation.169 While the Court did not assert that FPIC applied, it stated that it ‘has already established that the State must ensure the effective participation with regard to any development, investment, exploration or extraction plan’ and explicitly referenced Saramaka safeguards.170 It noted that the UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, had earlier recommended that Suriname adopt FPIC provisions based on a previous judgment of the Court.171 Even if it did not explicitly mention FPIC, the Court determined the state had violated American Convention articles 3, 21 and 23 by ‘the lack of effective participation in relation to the exploitation project’.172 Thus, the Court might have implicitly included FPIC under its label, ‘effective participation’.173 Even though it acknowledged that the concession and licenses for the mining and nature reserve were granted without ‘obtaining the prior, free and informed 163 Kaliña and Lokono (n 8) [212]. 164 The Kaliña and Lokono (Case 12.639, Report No 79/13, Inter-American Commission of Human Rights, 18 July 2013) [132]–[156]. 165 Lixinski (n 134) 153. 166 Lixinski (n 134) 153. 167 Kaliña and Lokono (n 8) [1], [2(c)(iii)]. 168 Kaliña and Lokono (n 8) [276], [307]. 169 Kaliña and Lokono (n 8) [204]. 170 Kaliña and Lokono (n 8) [206] (emphasis added). 171 Kaliña and Lokono (n 8) [248] (emphasis added), citing Saramaka (n 8) and Moiwana Community v Suriname (Preliminary Objections, Merits, Reparations, and Costs) (n 9). 172 Kaliña and Lokono (n 8) [278], [304] (emphasis added). 173 See Saramaka (n 8) [133].

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consent of the Kaliña and Lokono peoples’,174 as Lixinski argues, the Court continued to articulate Indigenous peoples’ rights while ‘clearly protecting of a state’s prerogative to make decisions on the exploitation of natural resources within its territory’.175 The Court’s unwillingness or oversight in not explicitly upholding FPIC demonstrates how rights claims can be cited and re-cited in ways that do not produce a perfectly coherent approach to Indigenous peoples’ rights. It is clear, however, that the Court’s identification of the claimants as equivalent to Indigenous peoples forms them into subjects that the state can identify. The remedies The remedies were nearly the same as those in Saramaka. The Court determined that Suriname must recognize the collective juridical personality of the Kaliña and Lokono, and must delimit, demarcate and grant collective title to their territory.176 It stated that if Suriname appropriates lands for third parties, it must purchase those lands from them.177 The Court found it appropriate to create a ‘community development fund as compensation for the pecuniary and nonpecuniary damage suffered by the members of these peoples’ so that they may ‘develop projects … that the Kaliña and Lokono peoples consider pertinent for their development’.178 Jeanice Koorndijk has recently argued that ‘eleven years after the landmark Saramaka case, Suriname has not taken steps to guarantee the rights of indigenous and tribal communities in a manner consistent with the jurisprudence of the Court’.179 While Suriname has passed a law ‘which aims to protect’ communities such as the Saramaka and the Kaliña and Lokono, Koorndijk charges that it ‘fails to provide adequate delimitation, demarcation, and collective titling’ of their lands, and ‘does not provide … juridical personality’.180 Suriname may adopt FPIC legislation, which it has said it would do.181 If it does, it is not clear how that law will avoid the effects that arise from the IPRA in the Philippines. Regardless of Surinamese law, industry actors have noticed the Court’s jurisprudence and have begun implementing FPIC processes.182 Saramaka (n 8) [1]. Lixinski (n 134) 153. Kaliña and Lokono (n 8) [279(i)(a)]–[279(i)(b)]. Kaliña and Lokono (n 8) [280]. Kaliña and Lokono (n 8) [296]. Jeanice L Koorndijk, ‘Judgements of the Inter-American Court of Human Rights concerning indigenous and tribal and rights in Suriname: new approaches to stimulating full compliance’ (2019) International Journal of Human Rights, doi: 10.1080/ 13642987.2019.1624536, 7. 180 Ibid, Koorndijk, 7–8, n 73 citing unpublished law. 181 Kaliña and Lokono (n 8) [204], [210], [303]. 182 See generally S James Anaya, Jessica Evans and Deanna Kemp, Free, Prior and Informed Consent (FPIC) within a Human Rights Framework: Lessons from a Suriname Case Study (RESOLVE FPIC Solutions Dialogue, 2017). 174 175 176 177 178 179

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Final thoughts, moving forward? There are important structural limitations and effects of claiming FPIC and selfdetermination. In the cases described here, states are the defendants – and they have consented to the Court’s jurisdiction. That is important because where a state loses, it may resist implementation through recourse to its own legal institutions.183 And, where it seeks to comply with the judgment, compliance creates practical problems and deleterious effects.184 One might extol the opinions and judgments as demonstrable and unqualified wins for Indigenous peoples or, more modestly, as providing a means for Indigenous peoples to negotiate and compromise with states when they were previously unable to do. But if using rights-based mechanisms inserts Indigenous peoples into the spaces opened by neoliberal multiculturalism, as Hale argues,185 might states integrate them in ways that they end up in ‘ghettos’, as Haabo worries?186 Under the analysis presented here, the petitioners became Indigenous peoples as they inserted themselves – and other inserted them – within that citational-chain as willing subjects of law. When the Court conscripts state powers while making Indigenous peoples into subjects whom states can recognize, the Court provides states with the means for protecting Indigenous peoples by regulating them. And if those regulations do not provide Indigenous peoples with control, as the Court and legal models tend to suggest, then it might appear as though FPIC ‘implementation’ did not work as it should have. This chapter only considered three cases, but Joel Correia’s review of ‘aftereffects’ of the Court’s judgments against Paraguay generates a similar conclusion: ‘the point is not “that implementation occurred” but that implementation can exacerbate marginalisation, undermine a community’s rights and create new forms of trauma if not done carefully’ – and he continues – ‘through meaningful consultation with Indigenous victims of human rights abuse’.187 Again – and just as we saw at the end of Chapters 4 and 5 – there are several options that one could suggest so that FPIC could work as it should. The first option involves re-deploying legal models to suggest that FPIC should be used in a different legal form. The Saramaka petitioners literally went back to the Court seeking provisional measures.188 And one might hold out hope, like Price, that Indigenous peoples who come before the Court can draw ‘considerable strength from their culture, spirituality, and history of resistance’ and ‘become masters of their fate’.189 Likewise, one might re-double and re-emphasize the importance of 183 184 185 186 187 188

Huneeus (n 13). Bryan (n 16). Hale (n 7) 12. Price (n 119) 241–2. Correia (n 10) 44. Saramaka People v Suriname (Monitoring Compliance with Judgment) (n 138) ‘Having Seen’ [6]–[8]. 189 Price (n 119) 241–2.

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human rights and consultation, like Correia.190 Perhaps Indigenous peoples can inspire more local or majoritarian interests in the Court to ensure state compliance.191 States might then adopt FPIC legislation that improves state protections for Indigenous peoples. Where the states do so, the state strengthens its role in the regulation of Indigenous peoples and their rights, as well as the state-sanctioned means of claiming rights and legal-political contestation.192 But, where states adopt laws for delimiting, demarcation and titling of ancestral territories as well as effective consultation and consent, it may have effects that are similar to those arising out of the Philippines. Recall that the problem there was that the national legal protections for Indigenous peoples did not work as they should have and, perhaps, required more ‘direct political action’. Perhaps the Court’s jurisprudence signals to industry actors that they must seek Indigenous peoples’ FPIC, even where the state does not recognize that right.193 That, of course, depends on industry actors identifying Indigenous peoples and which rights are at risk, as well as caring about reputational costs, repeat play and direct political action. In Australia, the Family Council claimed international human rights, which the state viewed as more ‘direct political action’. The problem there was a lack of enforcement where Adani did not seek FPIC as it should have, and Australian law did not require FPIC. And, in this chapter, where the Court enforces international law, it directs states to adopt national legislation to protect Indigenous peoples. Considering these case studies together reveals that the FPIC claims form a cycle: if we are interested in re-deploying a legal model, each looks to other legal forms to resolve its problems so that Indigenous peoples have control. One can always suggest legal or technical fixes, articulate how FPIC should be operated, or attempt to reposition Indigenous peoples at the pinnacle of a legal hierarchy. But, as much as one attempts to deploy legal models or reconstruct legal structural hierarchies, a performative legal analysis suggests that those fixes do not remain stabilized. Nor is there an obvious exit from this cycle. Rather than search for the proper legal form, we need more careful analysis of the formative and productive power of legal discourse and the consequences of the performative enactment of Indigenous peoples’ subjectivity. We now turn to that analysis.

190 Correia (n 10) 44. 191 See Huneeus (n 13) 496. 192 See Judith Butler, Ernest Laclau and Slavoj Žižek, Contingency, Hegemony, Universality: Contemporary Dialogues on the Left (Verso, 2000) 176. 193 Anaya, Evans and Kemp (n 182).

Chapter 7

The legal performativity of FPIC

Introduction Legal performativity maintains that claiming rights is a form of legal, political, social and relational action.1 The case studies revealed that those who claimed FPIC performatively enacted as Indigenous peoples by inserting themselves, with the assistance of others, into the citational-chain as subjects of international legal discourse. The claimants influenced states, industry actors, NGOs, self-identifying Indigenous peoples and others, as each of those actors influenced the claimants. And yet, one could have the impression that Indigenous peoples are pre-legal natural subjects. This chapter explains how one could hold that impression – when self-identifying Indigenous peoples assert human rights, power loses its priority and provides the appearance that the rights claimed were Indigenous peoples’ own powers. Furthermore, when laws require Indigenous peoples to be consulted or to provide consent as consistent with their laws, culture or customs, it appears that law allows for them to express their pre-state laws, culture or customs. The problem with that type of account is that power precedes and produces the subject that is to claim rights. One effect is that whatever legal actors can identify as a ‘subject’, and the subject’s ‘own’ law, has already been structured by legal discourse as that which is identifiable to other legal actors. As such, this chapter excavates how Indigenous peoples come to stand before the law in the settings described and compares it to how legal discourse contributes to the naturalization of Indigenous peoples.2 This involves examining how scholars construct linear, progressive or evolutionary accounts about Indigenous rights.3 A performative method aids in explaining that scholars who adopt and 1 Karen Zivi, Making Rights Claims: A Practice of Democratic Citizenship (Oxford University Press, 2012) 9; Kathryn McNeilly, Human Rights and Radical Social Transformation: Futurity, Alterity, Power (Routledge, 2017) 4–6, ch 3. 2 See Judith Butler, Excitable Speech: A Politics of the Performative (Routledge, 1997) 2– 3; Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1993) 40–1. 3 See Cathal Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (Routledge, 2015) 277; S James Anaya, International Human Rights and Indigenous Peoples (Aspen Publishers, 2009) 6, 291; S J Rombouts, ‘The Evolution of Indigenous Peoples’ Consultation

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reproduce legal models do so, as is their legal discipline, by prematurely halting analyses of rights claiming at privileged moments. Halting at privileged moments tends not to acknowledge ongoing controversies. Linking these privileged moments together, or showing interrelation and constitutive aspects, enables scholars to construct linear, progressive or evolutionary accounts for rights or FPIC. Those accounts appear as linear, progressive or evolutionary accounts because they do not consider the legal, disciplinary, formative and constitutive effects of their subject. Those accounts have a troubled subject precisely because their subject is putatively untroubled. This chapter then re-examines the case studies to argue that the uses of FPIC, and Indigenous rights generally, do not advance a linear, progressive or evolution of Indigenous peoples’ rights. Instead, they produce and reproduce a cycle of legal forms. Those who use FPIC, including those who discuss or claim it, can create and draw attention to controversy, which does not determine how others will react to those claims and thus the claim will not end the controversy, at least, not forever. Those who use rights as a source of power do so by becoming self-disciplined legal subjects, which no one individual or community controls. Scholars and claimants both insert themselves into citational-chains and demonstrate their willing subjection to international and state legal regimes, which allows them to partake in, uphold and reproduce state-sanctioned processes of contestation. When they do so, scholars and rights claimants become performatively disciplined to reproduce legal discipline and its subjects, and therein perpetuate and advance a cycle of legal forms. The cycle of form represents these ‘attractions, these evasions, these circular incitements’, these ‘perpetual spirals of power and pleasure’ that arise from discipline.4

A legal performative analysis of FPIC claims A central claim of this book is that to make a rights claim is to insert oneself into a citational-chain that precedes one’s claim and continues after the claim has been made. From a performative perspective to rights claiming, Karen Zivi writes, even if we think that claiming rights ‘bring about a particular end … rights claiming is a complex linguistic activity, the outcomes of which are quite often beyond our Rights under the ILO and UN Regimes’ (2017) 53 Stanford Journal of International Law 169; Odette Mazel, ‘The Evolution of Rights: Indigenous Peoples and International Law’ (2009) 13(1) Australian Indigenous Law Review 140, 143; Gaetano Pentassuglia, ‘Evolving Protection of Minority Groups: Global Challenges and the Role of International Jurisprudence’ (2009) 11 International Community Law Review 185; Tara Ward, ‘The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participation Rights within International Law’ (2011) 10(2) Northwestern Journal of International Human Rights 54, 62–6; cf Kathryn McNeilly, ‘Are Rights Out of Time? International Human Rights Law, Temporality and Radical Social Change’ (2018) Social & Legal Studies 1, 10–4. 4 Michel Foucault, History of Sexuality: Vol 1 (Pantheon Books, 1978) 45 (original emphasis).

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complete control’.5 Additionally, for Zivi, a performative approach to rights claiming reveals that claiming rights does not limit democratically sanctioned manifestations of popular sovereignty.6 This matters for debates about some human rights of Indigenous peoples, such as self-determination and FPIC, because, as discussed in Chapter 3, those who argue against the view that FPIC engenders a veto are simultaneously attempting to show that it fits with democratic practice. But importantly, we must consider the disciplined subject who claims rights in relation to the object, the rights. Zivi argues, and I concur, that claiming rights is a performative practice of democratic citizenship – in other words, rights claimants enact a subjectivity as a citizen. That is problematic, however, for Indigenous peoples because when they claim rights, such as self-determination or FPIC, it does not provide them with the ability to self-govern or control the controversies in which they find themselves.7 Instead, where autochthonous communities must determine for themselves that they are Indigenous peoples in order to claim FPIC, they engage in technologies of self to be identifiable as both Indigenous peoples and democratic citizens of the state in attempts to conscript and reform state powers. Despite this view, it is understandable why scholars and others view rights claiming as acts that provide Indigenous peoples with control. According to Zivi’s analysis, many scholars prematurely halt their analyses of rights claiming at privileged moments which: advance a particularly individualistic and antagonist ethos … [which] obscures the fact that the practice is, like all speech activity, fundamentally unpredictable and always changing, and it reinforces the idea that we can have complete sovereignty over language and political outcomes.8 There are two aspects I draw from this, both of which are effects of deploying legal models that uphold rights as negative and oppressive powers that others must obey. The first is that legal models have a tendency to advance an ‘antagonistic ethos’, as though claiming FPIC or self-determination is an exercise of Indigenous peoples’ own powers that are antagonistic to states. Second, legal models tend to obscure that claiming FPIC, like all speech activity, is fundamentally unpredictable9 – no one has complete sovereignty over language or the effects of legal outcomes. Together these effects elide consideration of the formative and productive aspects of legal discourse and its disciplinary effects. 5 Zivi (n 1) 9. By ‘complex linguistic activity’, Zivi means that any speech acts can be analyzed in three parts: the locutionary, the illocutionary and the perlocutionary. See also, Elena Loizidou, Judith Butler: Ethics, Law, Politics (Routledge, 2007) 26–41. 6 Zivi (n 1) 38, 49. 7 Duane Champagne, ‘UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples): Human, Civil, and Indigenous Rights’ (2013) 28(1) Wícˇazo Ša Review 9, 15. 8 Zivi (n 1) 38. 9 See McNeilly (n 1) 40–1.

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Legal models establish and reproduce the appearance that Indigenous rights claims are antagonistic to states but insufficiently capture other modalities of power, including significant concerns for the subjectivity of their subject-object. To establish how this reproduction occurs through advocacy, the next subsection re-reads privileged moments from the case studies according to a legal model in support of a linear, progressive or evolutionary account of Indigenous rights or FPIC that are antagonistic to states. The following subsection then considers how controversies in the case studies persisted in unpredictable ways, and that claiming rights attempts to enlist and conscript state powers as rights claimants enact subjectivities that are supportive of democratic citizenship. Halting at verdicts and ‘wins’ When working with legal models, scholars prematurely halt analysis at a verdict or at other privileged moments. For example, it is possible to isolate or freeze the judgments of the Inter-American Court of Human Rights (‘Court’) as ‘wins’ and uphold them for Indigenous peoples.10 When states must comply with the Court’s judgments, it may appear as though the judgments are antagonistic to states or enable Indigenous peoples to gain power from states. One might then assert ‘[t]hat the Inter-American Court renders decisions against states is somehow taken for granted’.11 In support of legal models, the Court’s judgments and remedies clearly require states to delineate, demarcate and title land according to Indigenous peoples’ own laws, cultures and customs. The problem is that the Court’s judgment provides the state with justification to deploy its power for Indigenous peoples while retaining the powers and abilities to title land. This structures Indigenous claimants according to extant state practices which, Hale argued, ‘entangles’ them within the state’s ‘grid of intelligibility’.12 The Court issues state-based legal remedies and identifies petitioners as Indigenous peoples 10 See, eg, Ben Saul, Indigenous Peoples and Human Rights: International and Regional Jurisprudence (Hart, 2016) 131–64; James Hopkins, ‘The Inter-American System and the Rights of Indigenous Peoples: Human Rights and the Realist Model’ in Benjamin J Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law (Hart, 2009) 135; S James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples: Extractive Industries and Indigenous Peoples, A/HRC/24/41 (1 July 2013) [27]; S James Anaya, Indigenous Peoples in International Law (Oxford University Press, 2nd ed, 2004) 232–4; Gaetano Pentassuglia, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22(1) European Journal of International Law 165, 177–82; Jérémie Gilbert, ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60(1) International & Comparative Law Quarterly 245, 253, 269–70. 11 Jorge Contesse, ‘Contestation and Deference in the Inter-American Human Rights System’ (2016) 79 Law and Contemporary Problems 123, 127. 12 Charles R Hale, ‘Neoliberal Multiculturalism: The Remaking of Cultural Rights and Racial Dominance in Central America’ (2005) 28 Political and Legal Anthropology Review 10, 15.

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(or like them) so they become subjects that are identifiable to the state.13 Scholars who deploy legal models largely consider the Court’s judgments to be wins for Indigenous peoples, typically because ongoing controversies and its ‘aftereffects’ pass outside the disciplinary framing of legal discourse until or unless the Indigenous claimant brings a matter back to the Court as a legal issue that is identifiable to legal scholars.14 Scholars may maintain legal models by highlighting the ‘wins’ of the Court and reading them alongside ‘positive’ FPIC articulations in other instruments, such as the IPRA in the Philippines or the IFC’s endorsement of it. A scholar might view Saramaka as ‘a landmark case which strives for systematic protection of indigenous autonomy and self-governance’.15 Another scholar might privilege the IPRA as a ‘high water mark’ for ‘indigenous peoples’ inherent rights to selfdetermination and their ancestral territories’.16 Furthermore, it is possible to read the case study on the B’laan that I presented in Chapter 4 to support the view that FPIC prevented the mine development. Privileging those moments, however, does not stabilize the law or explain how controversies persisted and changed after, and as a result of, those moments.17 For instance, the National Alliance of Indigenous Peoples Organizations in the Philippines (KAMP) has recently asserted that the IPRA is a ‘tool to deceive and appease the indigenous people’s struggles for land and self-determination’.18 When criticisms such as KAMP’s arise, a scholar may continue to preserve a legal model by asserting that IPRA or some other state law failed, and that is why Indigenous peoples’ FPIC – as an international human right that is grounded in international law or as a more transcendental ‘spirit’ – is so important.19 For instance, where the B’laan in the Philippines or the Family Council in Australia lost their legal claims 13 Ibid, Hale. 14 See Saramaka People v Suriname (Monitoring Compliance with Judgment) (Order of the Court, Inter-American Court of Human Rights, 4 September 2013) ‘Having Seen’ [6]–[8]; Joel E Correia, ‘Adjudication and Its Aftereffects in Three InterAmerican Court Cases Brought Against Paraguay: Indigenous Land Rights’ (2018) 1 Erasmus Law Review 43. 15 Juan C Herrera, ‘Judicial Dialogue and Transformative Constitutionalism in Latin America: The Case of Indigenous Peoples and Afro-descendants’ (2019) 43 Revista Derecho del Estado 191, 199. 16 Doyle (n 3) 195, 248. 17 Republic of the Philippines, Administrative Order No 03–12 or The Revised Guidelines on Free and Prior Informed Consent (FPIC) and Related Process of 2012 (April 2012) Pt 1, s 2(a). 18 Marya Salamat, ‘Indigenous Peoples’ Groups Decry Use of IPRA and NCIP for Development Aggression’, Bulatlat.com (12 August 2011) . 19 See Joji Cariño, ‘Indigenous Peoples’ Right to Free, Prior, Informed Consent: Reflections on Concepts and Practice’ (2005) 22 Arizona Journal of International and Comparative Law 19, 39; Abbi Buxton, ‘The Spirit of FPIC: Lessons from Canada and the Philippines’ (2012) Participatory Learning and Action 65.

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‘against’ the state,20 they were able to claim FPIC as an international human right. When a spokesperson for the Family Council asserted that their human rights will ‘challenge this country’s failed native title regime’,21 it could appear that claiming FPIC is antagonistic to the state. One could gather all of the interests and invocations of FPIC together – including ILO Convention No 169,22 the WBG’s and IFC’s performance standards, the Court’s articulations, UNDRIP,23OASDRIP24 and state law – and read them as a natural, linear or progressive evolution of Indigenous peoples’ rights.25 With that view, one could re-read the emergence of Indigenous rights in human rights as the re-emergence of natural rights and connect it to their self-determination, to which Indigenous peoples say they have been entitled since time immemorial. In any scenario, one could deploy a legal model and privilege some moments to uphold FPIC and other rights as Indigenous peoples’ negative and oppressive powers. That would advance the views that the controversy should end and that Indigenous peoples will, or should, have control. Where scholars see the development of requirements to obtain Indigenous peoples’ FPIC as linear, progressive or evolutionary, they support their approach by retrospectively reading any potentially privileged moments in favorable terms for their untroubled subject.26 Where one considers some negative legal effects while preserving a natural subject, one might then assert that state legislation of FPIC reveals how it has ‘evolved into a highly discriminatory set of rules’.27 Each and every putatively privileged moment may form part of an ‘evolution’ that is either favorable or discriminatory. And that is because the term ‘evolution’ is undoubtedly metaphorical, artificial and open to contestation – just as each of those privileged moments were contested and continue to be.28 Accordingly, I have positioned these case studies as a cycle of legal 20 La Bugal-B’Laan Tribal Association v Ramos, GR No 127882 (1 December 2004); Adani Mining Pty Ltd v Adrian Burragubba, Patrick Malone and Irene White on behalf of the Wangan and Jagalingou People [2015] NNTTA 16 (8 April 2015). 21 Wangan and Jagalingou, ‘“Three strikes you’re out” – Traditional Owners reject Adani Carmichael mine for a third time’, Wangan & Jagalingou Family Council (21 March 2016) . 22 International Labour Organization, Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries, opened for signature 27 June 1989, 28 ILM 1382, 1650 UNTS 383 (entered into force 5 September 1991). 23 United Nations Declaration on the Rights of Indigenous Peoples, UN GAOR, 61st sess, 107th mtg, UN Doc A/61/L.67 (13 September 2007) (UNDRIP). 24 Organization of American States, American Declaration on the Rights of Indigenous Peoples, AG/RES.2888 (XLVI-O/16) (15 June 2016) (OASDRIP). 25 See n 3. 26 See n 3. 27 Submission to the Committee on the Elimination of All Forms of Racial Discrimination, Philippines Indigenous Peoples, ICERD, Shadow Report for the consolidated fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, and twentieth Philippine ICERD periodic reports, Committee on the Elimination of All Forms of Racial Discrimination, 73rd session (3–28 August 2009) 9 (‘Shadow Report’). 28 McNeilly (n 3) 10–4.

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forms to draw attention to the artificial, contingent and non-natural forms involved in claiming FPIC so as to re-orient our focus on Indigenous peoples as subjects of international legal discipline and discourse. As artificially constructed here, the case studies constitute a cycle of legal forms in the following way. The uses of FPIC in the Philippines generated issues that a more international and flexible approach could remedy, but in Australia that type of FPIC use requires some authority to settle the controversy. The Inter-American Court of Human Rights is such an authority, but it can only require states to adopt FPIC. The states that adopt FPIC seem likely to generate the same or similar issues that arose in relation to the FPIC legislation in the Philippines. The legal cycle is not necessary or natural, but neither is a linear, progressive or evolutionary account.29 When staged as a cycle, the chapters represent how adhering to a legal model creates a search for a different legal form that will provide Indigenous peoples with the ability to end the controversy and control their form of life, from which there is no obvious exit. Where Indigenous peoples’ control does not materialize, those who search for the proper, correct or meaningful legal form to instantiate Indigenous peoples’ control reproduce legal models, its mechanisms and hierarchies that should benefit Indigenous peoples. If one maintains that claiming FPIC or self-determination should provide Indigenous peoples with control, but autochthonous communities performatively enact as Indigenous peoples in order to claim FPIC, and therein demonstrate their willing subjection to international and state law, contestation arises instead of control. They inscribe international legal discipline on themselves and their communities to become and remain identifiable to actors of and within international legal discourse. Where rights appear to be ‘against’ states and may, in fact, temporarily stop or halt state actions by momentarily stabilizing norms or laws, the terms of that debate are never fully stabilized. Nor are the claims fully antagonistic to states, even if they are momentarily against state actors’ interests.30 Because the ‘temporal conditions for making the speech act precede and exceed the momentary occasion of its enunciation’,31 every claimant – even, and especially if they claim sovereignty or a right to self-determination – does not determine for themselves that they are sovereigns or have self-determination over the terms they use or the rights they claim.32 Under a legal performative approach, FPIC claimants deploy technologies of self to become identifiable subjects of international legal discourse in order to draw attention to or create controversy. Indigenous peoples who claim FPIC are able to draw attention to and create controversy about their ongoing 29 Marjo Lindroth and Heidi Sinevaara-Niskanen attempt to ‘[debunk] the myth of progress’ in Global Politics and Its Violent Care for Indigeneity: Sequels to Colonialism (Palgrave Macmillan, 2018) ch 6. 30 Zivi (n 1) 28–9. 31 Judith Butler, Notes Towards a Performative Theory of Assembly (Harvard University Press, 2015) 176. 32 Zivi (n 1) 38.

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disapproval.33 Controversy persists because claiming rights creates controversy by performing in a pre-approved, state-sanctioned style of contestation, which also exceeds any putative boundaries of that discourse.34 Even if Indigenous peoples claim FPIC as part of a movement that prevents a natural resource development project, controversy persist somewhere in some form, which the cycle of legal forms reveals. When Indigenous peoples in the Philippines, Australia or elsewhere claim FPIC, the intended content of the claim may be substantively broader than a state’s codified native title regime. Even if the content of a right is broader than a state’s legislation, the act of claiming human rights stages the claimant as a subject that states can identify because democratic states have sanctioned rights claiming. Accordingly, claiming FPIC is not antagonistic to states because rights claiming is a performative means of drawing attention to, creating or perpetuating controversy by attempting to enlist state powers via legal processes that states have sanctioned.35 To create controversy through rights claiming is precisely what good citizens do in furtherance of democratic state-building projects.36 The following subsections explore how claiming FPIC, as with most rights claiming, is a democratic form of instigating or perpetuating controversies in attempts to reshape and reform the state. Performatively enacting as good citizens and Indigenous peoples For Zivi, rights claiming perpetuates a subject status in the form of democratic citizenship.37 For example, same-sex partners who claim the right to marriage by offering persuasive reasons for one’s inclusion within the legal institution of marriage through one’s democratically sanctioned performance as ‘good citizens’.38 In other words, same-sex partners who make rights claims become identifiable as good citizens by partaking in democratic practices and by arguing that they are good parents who use democratic state-sanctioned means for expanding the institutions of marriage, family and state by inserting themselves within the citationalchain of ‘good democratic citizens’.39 Although rights claiming vis-à-vis the state enacts the form of good democratic citizenship, those who claim Indigenous peoples’ human rights also performatively enact as Indigenous peoples. As such, others can read Indigenous rights claims as involving at least two levels of subjectivity. 33 Cf Adam Kuper, ‘The Return of the Native’ (2003) 44(3) Current Anthropology 389, 395. 34 See H Patrick Glenn, ‘The Three Ironies of the UN Declaration on the Rights of Indigenous Peoples’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing, 2011) 176–7. 35 Ibid, Glenn. 36 Zivi (n 1) 83. 37 Zivi (n 1) 38 38 Zivi (n 1) 83. 39 Zivi (n 1) 119.

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Rights claimants constitute their subjectivity through the performance of claiming rights, which claimants decontextualize and re-contextualize to become identifiable in novel situations.40 To the extent that others legitimate and validate performative enactments, multiple and simultaneous readings of a claimants’ recitation of pre-existing forms may arise. In necessarily relying on others to validate and legitimate their performances, claimants do not fully control or construct the performances. FPIC claims involve at least two levels or forms of subjectivity because those who validate the performative invocation of rights claiming are involved in constructing them. As examined below, each case study reveals that others identify the FPIC claimants as Indigenous peoples who essentialize their identity to speak with a collective will as traditional, land-connected and environmental protectors.41 Unlike engaging in non-state sanctioned processes, such as inciting violence or engaging in acts of terror, FPIC claimants demonstrate that they are Indigenous peoples and also that they ‘envision, enact and contest good citizenship’.42 Through claiming rights, they become identifiable as willing subjects of law. They then put forth reasons why states should accept and uphold their views, such as they have an internationally recognized right of FPIC and selfdetermination, they defend nature, or they can demonstrate alternative means of more sustainable development. Claiming those rights does not necessarily trump state actions, end controversy or provide claimants with control. Instead, the claimants vie for inclusion as subjects of law and claim FPIC in order to create controversy by interrelating the subjectivities of good democratic citizens and Indigenous peoples, all of which is – in the form of a rights claim – contestable. The B’laan Chapter 4 examined the B’laan opposition to the Tampakan mine. The Philippines adopted FPIC into national law in 1997. It transformed those regulated as ‘indigenous cultural communities’ into ‘indigenous cultural communities/indigenous peoples’ or ‘ICCs/IPs’.43 When that law failed to stop the Tampakan mine, it 40 Butler, Excitable Speech (n 2) 147. 41 Spivak raises the issue of ‘strategic essentialism’, which she later repudiates. Gayatri Chakravorty Spivak, ‘Subaltern Studies: Deconstructing Historiography’ in Donna Landry and Gerald Maclean (eds), The Spivak Reader (Routledge, 2006) 203–36. There is an ongoing contest about essentialism in the Indigenous peoples’ discourse. See, eg, Glen Sean Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (University of Minnesota Press, 2015) 79–103. Karen Engle argues for an anti-anti-essentialism: The Elusive Promise of Indigenous Development (Duke University Press, 2010) 276–8. 42 Zivi (n 1) 71. 43 An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous People, Creating a National Commission of Indigenous People, Establishing Implementing Mechanisms, Appropriating Funds Therefore, and for other purposes (Philippines) Republic Act No 8371. The short title is the Indigenous Peoples Rights Act of 1997.

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might appear as though the miners’ rights ‘trumped’ the B’laan’s rights.44 But the controversy continued. The perceived failure of Filipino law to protect the B’laan facilitated the performative enactment of Indigenous peoples’ subjectivity and international human rights claims. NGOs assisted the identification, formation and subjectification of the B’laan as Indigenous peoples and used FPIC to challenge the mine development. When NGOs requested comment from the UN Special Rapporteur on the Rights of Indigenous Peoples, the Special Rapporteur validated the B’laan as Indigenous peoples for the purposes of claiming human rights.45 Human rights advocates could then more easily identify the B’laan as subjects of international human rights protections and suggest more sustainable alternatives.46 That did not end the controversy. In considering the struggle of a B’laan individual, Daguil Capion, it became difficult, but not impossible, to identify him as a representative of Indigenous peoples when he sided with the CPP-NPA. The difficulty arose because Capion was no longer using state-sanctioned means for generating controversy as a ‘good democratic citizen’. Despite the difficulty in viewing Capion, the individual, as representing Indigenous peoples, he could be otherwise identified as a fulong, a tribal leader of their resistance. His identification as a traditional and essential tribal leader enabled others to view him as representing Indigenous peoples.47 Those who identified him as a representative of Indigenous peoples upheld the independence and individuality of the democratic actor qua Indigenous peoples as what the state should embrace. On the other hand, actors who favored the current Filipino policies or the mining project attempted to unsettle that subjectivity by identifying Capion as a ‘fugitive’ or ‘bandit’.48 They highlighted his overt violence and criminality, which are not, supposedly, characteristic of good democratic citizens. Those were performative attempts to negate the identification and subjectification of Capion as a good democratic citizen, as well as a representative of Indigenous peoples, to uphold a vision of what the state should embrace.

44 La Bugal-B’Laan Tribal Association v Ramos (n 20). 45 Rodolfo Stavenhagen, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Commission on Human Rights, 59th Session, Item 15 provision agenda, UN Doc E/CN.4/2003/90/Add.3 (5 March 2003) [30]–[38]. 46 Robert Goodland and Clive Wicks, Philippines: Mining or Food? (The Working Group on Mining in the Philippines, 2009); Brigitte Hamm, Anne Schax and Christian Scheper, Human Rights Impact Assessment of the Tampakan Copper-Gold Project, Mindanao, Philippines (Misereor, 2013). 47 Raymund V Villanueva, ‘Probe Reveals Massacre of Blann Family “Premeditated”’, Bulatlat.com (19 November 2012) . 48 Ibid, Villanueva; Edwin Espejo, ‘Anti-Mining Tribe Leader’s Wife, 2 Sons Killed in “Encounter”’, Rappler (18 October 2012) .

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Capion might be a fulong, a representative of Indigenous peoples, a fugitive or a bandit – and, in fact, all of these things. The point is that claiming rights involves a struggle over identification and subjectification as ‘good democratic citizens’ and ‘Indigenous peoples’. While Capion might be attempting to undermine the current statist order, those who are not the putative FPIC claimant attempt to influence, construct and inflect his subjectivity in order to advance their projects and visions of the state. The Family Council Chapter 5 considered how members of the W&J Family Council claimed FPIC in order to contest the Carmichael mine development with the help of NGOs, UN institutions and others. In claiming FPIC, the Family Council also performatively contested and reconfigured the subjectivity of a democratic, Australian citizen.49 It showed that a ‘good citizen is one who welcomes difference into the community and embraces non-traditional family forms’,50 particularly by re-citing the form of ‘family’ in a traditional non-Western context. Through engagement with statesanctioned rights-claiming processes, they may contest as they expand conceptions of ‘citizen’ as well as ‘family’ through their demonstrations of good citizenship. There was also conflict surrounding how to identify that subjectivity. When Prime Minister Tony Abbott and Attorney-General George Brandis claimed that the ‘greenies’ were engaging in lawfare,51 they attempted to identify their adversaries as using law in a non-democratic fashion. That is contrasted with the Family Council’s assertion that it works by majority or consensus decision-making, rhetorically asking, ‘What part of our “democracy” do they not understand?’52 When contrasted, the mimetic or mocking effect suggests that the heads of states hold narrow or undemocratic interests53 – which were especially pronounced when Gautam Adani, the owner of a foreign mining company, asked the Prime Minister 49 Zivi (n 1) 72. 50 Zivi (n 1) 72. 51 Lisa Cox and Jane Lee, ‘Abbott Government to Change Environment Laws in Crackdown on “Vigilante” Green Groups’, The Sydney Morning Herald (online) (18 August 2015) ; Thom Mitchell, ‘Adani’s Mega Coal Mine Hits Another Hurdle: A Second Round of “Vigilante Lawfare”’, New Matilda (9 November 2015) ; ABC News, ‘Warfare on Lawfare’, Insiders (23 August 2015) . 52 Wangan and Jagalingou, ‘Next, Federal Court: Wangan and Jagalingou Stand Stronger than ever to Stop Adani Carmichael’, Wangan & Jagalingou Family Council (21 August 2015) . 53 Homi Bhabha, ‘Of Mimicry and Man: The Ambivalence of Colonial Discourse’ (1984) 28 Discipleship 125–33; Judith Butler, Gender Trouble (Routledge, 2nd ed, 1999) xvi, 192 n 11.

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to change the law and quash additional legal challenges.54 In this context, the Family Council ‘reinforce[d] the idea that the good citizen is a democratic citizen’, while simultaneously putting forth a vision of what counts as democracy.55 And that was controversial. With regard to the subjectivity of Indigenous peoples, Adani, The Australian, and other W&J members challenged activist Adrian Burragubba’s ‘traditionalness’ and whether he represented the collective will of the W&J.56 In opposing the challenges to the subjectification of the Family Council, Burragubba attempted to clarify that those who questioned him, such as Irene White, were not elders and were in fact receiving benefits from the mine.57 He and the Family Council also appealed to UN actors, who validated the Family Council’s enactment as Indigenous peoples and its claims to FPIC and self-determination.58 The struggles involved more than the content of the law or about which law applies. It concerned whether the Family Council acted with a collective will to represent all W&J and could be traditional or collective enough to be identifiable as Indigenous peoples for the purposes of claiming international human rights. The Family Council created controversy and drew attention to genuine issues through claiming Indigenous rights. As good democratic citizens, it sought to reform and expand the state, not to undermine or antagonize it. The Awas Tingni, Saramaka, and Kaliña and Lokono peoples Chapter 6 considered the development of FPIC and the formation of Indigenous peoples in the Inter-American Court. In each case, the petitioners performatively 54 ‘Adani Group Seeks Uncontestable Nod from Australia for Its Mega Projects’, The Economic Times (online) (8 December 2015) (copy on file with author). 55 Zivi (n 1) 73. 56 ‘Traditional Owners Reject Adani Mine’, The Australian (online) (26 March 2015) ; John Stewart, ‘Traditional Owners vs Carmichael Mine’, Lateline (26 March 2015) ; Michael McKenna, ‘Greens Bankroll Indigenous Rebels Opposed to Carmichael Mine’, The Australian (online) (12 March 2016) (copy on file with author); Paul Robinson, ‘Traditional owners say they were forced to negotiate with Adani for fear of losing native title rights’, ABC News (11 December 2017) . 57 Wangan Jagalingou, ‘W&J People Authorisation Meeting: The Facts’, Wangan & Jagalingou Family Council (12 March 2016) . 58 Adrian Burragubba and Murrawah Johnson, ‘Update on the situation of the Wangan and Jagalingou People’s opposition to the proposed Carmichael Coal Mine and comments on Australia’s response to the Special Rapporteur’s letter dated 1 April 2016’, Wangan & Jagalingou Family Council (8 March 2017) .

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enacted, as their legal representatives shaped them into Indigenous peoples. For instance, legal representatives highlighted the Awas Tingni’s traditional, landconnected and collective subjectivity in order to identify them as re-citing the international legal form of Indigenous peoples.59 When so formed, the Court validated the Awas Tingni as fitting that modern and progressive form of subjects of human rights protections.60 When Nicaragua attempted to argue that the Awas Tingni were neither traditional nor essential, the state appeared assimilationist, racist or backward. In ruling against Nicaragua, the controversy did not end in the state. The defendant became the arbitrator as the Awas Tingni became identifiable subjects who were entangled with the state’s regulatory mechanisms.61 The controversy did not end in the Court either. In Saramaka, the Court upheld the Saramaka peoples as ‘like’ Indigenous peoples because they re-cited the form even if they were not ‘indigenous’ to the region.62 The Court expanded the form of Indigenous peoples’ subjectivity to include the Saramaka and directed Suriname to uphold, protect and regulate that juridical personality, while expanding Indigenous peoples’ participatory rights to include FPIC.63 Controversy then arose over Suriname’s lack of enforcement and refusal to pay for the Saramaka’s legal representation.64 Lack of state enforcement may call into question the relevance of the Court. In Kaliña and Lokono, the Court re-cited many of the findings in Saramaka, but did not explicitly articulate that Suriname needed to obtain the FPIC of the Kaliña and Lokono.65 It remains unknown whether the Court bowed to growing state displeasure and upheld a stronger version of subsidiarity or embedded FPIC within an ‘effective participation’ remedy. Each case reveals that the petitioners performatively enacted as Indigenous peoples and – whether they intended to or not – claimed rights to reform the state as subjects of the state. Where the Court directed states to comply with international human rights, Indigenous rights might appear antagonistic to the state, which raises the specter that claiming rights is antagonistically anti-democratic. But even where the ‘content’ of the claim is not in state actors’ interests, because claiming rights is a performative practice of ‘good democratic citizenship’ that attempts to conscript state powers, the Court’s judgments attempt to reform the 59 Hale (n 12) 12–3. 60 Hale (n 12) 15–16. 61 Hale (n 12) 15–16; Joseph Bryan, ‘Conference Transcript: Heeding Frickey’s Call: Doing Justice in Indian Country’ (2013) 37(2) American Indian Law Review 347, 397. 62 Case of the Saramaka People v Suriname (Preliminary Objections, Merits, Reparations, and Costs) (Inter-American Court of Human Rights, Series C, No 172, 28 November 2007) [82]. 63 Ibid, Case of the Saramanka People [120]–[140]. 64 Saramaka People v Suriname (Monitoring Compliance with Judgment) (n 14) ‘Having Seen’ [6]–[8]; Richard Price, Rainforest Warriors: Human Rights on Trial (University of Pennsylvania Press, 2011) 223–4. 65 Lucas Lixinski, ‘Case of the Kaliña and Lokono Peoples v. Suriname’ (2017) 111 American Journal of International Law 147, 153.

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states by including Indigenous peoples. When Indigenous petitioners won their claims, they did not remain or become distinct from the states. They did not gain control or self-government and there was not a zero-sum shift in a negative power from states to Indigenous peoples. Rather, the Court provided states with a means for regulating the claimants as Indigenous peoples. Winning the rights might slow, halt or prevent some state or industry actions, but not necessarily forever – especially if performatively enacting as willing subjects of legal discourse, which the Court validates through its judgments, facilitates shifts from opposition to compromise. In each case study, problems arise from the rights claims. And for each, there are numerous ways to suggest that the rights can be fixed so that Indigenous peoples have control. But whatever legal form one suggests so that FPIC can manifest Indigenous peoples’ control is not ‘fixable’, frozen or removed from public contestation. If FPIC is law, then it is necessarily open to review, controversy and re-citation elsewhere or in the future. To claim Indigenous rights, however, requires re-citing citational-chains by inscribing on oneself a discipline that is perpetual and indefinite precisely because no one can end it.66 Indeed, that is the significance of this cycle of legal forms – these ‘attractions, these evasions, these circular incitements’ these ‘perpetual spirals of power and pleasure’67 – it does not end as long as it gives others something to do. The cycle of legal forms gestures towards perpetual, legal disciplinary subjection through continuous, meticulous and analytic observation in the service of ‘indefinite discipline: an interrogation without end’.68 Although a legal performative analysis stipulates that many consequences of claiming rights cannot be known, it does reveal some troubling effects.

Some troubles of performing rights claiming The next three subsections outline some problematic effects that a legal performative analysis reveals. While the problems articulated through this method are not entirely novel to critical human rights literature,69 this analysis reveals how

66 Michel Foucault, Security, Territory, Population (Palgrave Macmillan, 2007) 258; Judith Butler, Bodies That Matter: On the Discursive Limits of ‘Sex’ (Routledge, 1993), 222; Judith Butler, Precarious Life: The Powers of Mourning and Violence (Verso, 2004) ch 3. 67 Foucault (n 4) 45 (original emphasis). 68 Michel Foucault, Discipline and Punish (Vintage, 2nd ed, 1991) 227. 69 See, eg, Daniel McLoughlin, ‘Post-Marxism and the Politics of Human Rights: Lefort, Badiou, Agamben, Rancière’ (2016) 27(3) Law and Critique 303, 318–9; David Kennedy, ‘The International Human Rights Regime: Still Part of the Problem?’ in Rob Dickinson et al (eds), Examining Critical perspectives on Human Rights (Cambridge University Press, 2012) 34; Wendy Brown, ‘“The Most We Can Hope for …”: Human Rights and the Politics of Fatalism’ (2004) 103(2/3) South Atlantic Quarterly 451; Costas Douzinas, ‘The Paradoxes of Human Rights’ (2013) 20(1)

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individuals and communities (including scholars, NGOs and others) use rights to advance and reproduce legal discipline. Disciplining the self, reinforcing or subverting discipline? The initial problem with performing rights claims is that it may strengthen what the performer might seek to question or undermine by re-producing and reinscribing forms of discipline and discourse. For instance, in discussing same-sex marriage, Butler writes: The successful bid to gain access to [same-sex] marriage effectively strengthens marital status as a state-sanctioned condition for the exercise of certain kinds of rights and entitlements; it strengthens the hand of the state in the regulation of human sexual behavior; and it emboldens the distinction between legitimate and illegitimate forms of partnership and kinship.70 Butler’s use of the term ‘state’ involves two levels.71 It signifies those forms of selfdiscipline, kinship and relationships that are performatively enacted, as well as the regulatory power of the state. Butler’s concern is that performatively enacting a form normalizes as it naturalizes certain behaviors that re-enforce state and other regulatory hierarchies as the legitimate regulators of those behaviors. There are at least three levels of normalization and naturalization regarding Indigenous peoples: the international legal order, the state legal order and the self-disciplined form of life. The international legal order Claiming international human rights reinforces and strengthens as it makes relevant what matters as the international legal order. Alexandra Xanthaki writes that ‘[t]he indigenous rights debate has contributed to the reinstatement of the United Nations as the primary organization protecting human rights’.72 That lends credibility and agency to expressions of Indigenous peoples’ rights and, Xanthaki continues, ‘[a]t the same time indigenous belief in the United Nations has restored some of the credibility of the organisation’.73 Those who performatively enact as Indigenous peoples rely on UN institutions, including the Special

70 71 72 73

Constellations 51–67; Costas Douzinas, ‘The End(s) of Human Rights’ (2002) 26(2) Melbourne University Law Review 445–64. Judith Butler, Ernest Laclau and Slavoj Žižek, Contingency, Hegemony, Universality: Contemporary Dialogues on the Left (Verso, 2000) 176. Foucault identifies four ‘senses’ of a ‘state’, which he reformulates as ‘the republic’. Foucault (n 66) 256. Alexandra Xanthaki, Indigenous Rights and United Nations Standards (Cambridge University Press, 2007) 285. Ibid, Xanthaki.

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Rapporteur, the Permanent Forum, UN bodies, and others that identify and legitimate their performative enactments.74 When those actors legitimate the claimant/performers as Indigenous peoples, this supports the UN, its instruments, bodies, actors and structures with regard to what materializes as international legal discourse. In relying on UN bodies and actors to verify or legitimate their rights claims, Indigenous peoples reproduce legal structures and hierarchy with experts – sometimes legal experts – at the pinnacle. Marjo Lindroth identifies some consequences: Expert knowledge translates its targets into objects of governance …. For example, when the land rights of indigenous peoples are to be discussed and clarified, the lands are demarcated, the indigenous communities affected are identified and so on; all these are processes that mean more (Western) knowledge on the issues, more interventions in the lives of indigenous communities and more regulation.75 When Indigenous peoples claim human rights, some of whom become internationally recognized experts on Indigenous peoples’ rights, it provides the international legal system and its actors with work. In time, that might operate to reform the international and state legal discourses. But it is problematic where it reinforces and re-legitimates international law and Indigenous peoples as inevitably naturalized facts or objects of the world, which enables more Western knowledge to work its way into how autochthonous communities must regulate themselves. Lindroth and Sinevaara-Niskanen argue that the inclusion of Indigenous peoples within international institutions ‘has succeeded in covering itself against accusations of mistreatment and ignorance, in terms of not only past and current experiences, but also, and more importantly, any future developments’.76 So not only might all that has materialized under the auspices of international law – that which is progressive as well as damning and discriminatory – becomes further viewed as ‘natural’, necessary or inevitably ahistorical, it may become harder to see autochthonous communities as non-Indigenous peoples, and, perhaps more problematically, imagine other legal and political configurations in the future. In time, Indigenous rights may operate (and perhaps they currently do) to identify autochthonous communities as needing international human rights law (and other 74 See generally Lindroth and Sinevaara-Niskanen (n 29). 75 Marjo Lindroth, ‘Indigenous Rights as Tactics of Neoliberal Governance: Practices of Expertise in the United Nations’ (2014) 23(3) Social and Legal Studies 341, 347–8; Marjo Lindroth, ‘Paradoxes of Power: Indigenous peoples in the Permanent Forum’ (2011) 46(4) Cooperation and Conflict 543–62. For a discussion of expertise generally, see Fleur Johns, Non-Legality in International Law: Unruly Law (Cambridge University Press, 2013) 16–21; David Kennedy, A World of Struggle: How Power, Law and Expertise Shape Global Political Economy (Princeton University Press, 2016). 76 Lindroth and Sinevaara-Niskanen (n 29) 130.

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western knowledge and theories) for their own good, which could negate any aspirations to be not-governed as international or state subjects, while reproducing international legal discourse in ways that work into states as well as their own every-day lived experiences. State legal orders Claiming international human rights also reinforces as it re-entrenches state powers. Duane Champagne expresses the concern that Indigenous peoples’ ‘[c]ollective human rights as outlined within UNDRIP suggests that all claims must be adjudicated before nation-state political, legislation or judicial institutions. This plan of relying primarily on nation-state institutions negates the autonomy and powers of indigenous self-government’.77 As discussed above, making rights claims that are putatively against or antagonistic to state and industry actions requires engagement with, and therefore support from, state legal regimes. Relying on state legal apparatuses and institutions – even as variegated as they are – in ways that negate self-government is potentially problematic for those Indigenous peoples who aspire to self-govern, if ‘self-govern’ is equated with using power that comes without a correlative degree of discipline. As argued above, each case study demonstrates that Indigenous peoples contest state acts and assert FPIC as a means of generating controversy by performing as good democratic citizens. By showing that they are willing subjects of law, the performers may contest and re-shape what ‘counts’ as a good democratic citizen. Rather than antagonize, undermine or break from the power of the state – which could, I suppose, see a transfer of power to Indigenous peoples – their performances attempt to expand democratic practices to include Indigenous peoples.78 Hence, claiming FPIC has the potential to contest and expand the subjectivity form of state-citizenship, which may be exactly what the claimants and some Indigenous peoples intend to create. If all UN Member States legally recognize the rights in UNDRIP or adopt FPIC into national legislation, those states could become somewhat more uniform and temporarily stabilized in their regulated relations to Indigenous peoples. That legislation will also require autochthonous communities to transform themselves into Indigenous peoples in order to be identifiable as FPIC claimants. It remains unknown whether the state or the claimant is more transformed, for how long, and to what end, especially when claiming rights supports state-sanctioned means of contestation and legal discipline. Problems potentially arise when other actors, including other Indigenous peoples, put forth reasons for state action and hence enact good democratic citizenship in ways that are contrary to the interests of some Indigenous peoples. A potential consequence is that any seemingly legalized protections could, in time, 77 Champagne (n 7) 15. 78 Elizabeth A Povinelli, ‘The State of Shame: Australian Multiculturalism and the Crisis of Indigenous Citizenship’ (1998) 24(2) Critical Inquiry 575, 601.

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come to conflict with, rework or negate Indigenous interests. For instance, Chapter 5 considered how Australian state actors amended the NTA in 2017, which enabled the Adani/W&J April 2016 ILUA to be registerable over the Family Council’s opposition. Although not discussed there, some Indigenous peoples in Western Australia claimed that the amendment supported their selfdetermination.79 When state actors sided with those Indigenous peoples and against the Family Council, they could legitimately claim that more flexible (and weaker) standards for ILUA registration through legislative amendment were consistent with UNDRIP and Indigenous peoples’ self-determination.80 Furthermore, where states adopt legislation for FPIC, it is not clear whether anything prevents it from becoming like FPIC in the Philippines. There, some argued that the IPRA ‘evolved into a highly discriminatory set of rules which impose restrictions on the time, manner and process of FPIC which are not in conformity with the customs, laws and traditional practices of indigenous communities’.81 Legalization can work to discourage tribal unity by pairing parcels with specifically identifiable individuals, families or tribes, and it may act as a means of solidifying the state as the sole dispenser of legal title.82 If control does not arise from being a subject, and being identifiable as a subject requires deploying technologies of self, then what is it that prevents that from happening in all states? The form of life In performatively enacting as Indigenous peoples, rights claimants perform technologies of self, forms of self-discipline, to fit within a citational-chain that precedes them. Each case study showed how the FPIC claimants formed themselves, with the help of others, into traditional and essential land-connected communities that protect the environment.83 They may, in fact, have been what others identify as traditional or land-connected, but to be so identifiable enables the claimants to stand before the law as Indigenous peoples – a personality of 79 Glen Kelly and Stuart Bradfield, ‘Winning Native Title, or Winning out of Native Title? The Noongar Native Title Settlement’ (2012) 9(2) Indigenous Law Bulletin 15. 80 Stephen M Young, ‘The self divided: The problems of contradictory claims to Indigenous peoples’ self-determination in Australia’ (2019) 23(1–2) International Journal of Human Rights 193–213. 81 Shadow Report (n 27) 9. 82 Jose Mencio Molintas, ‘The Philippine Indigenous Peoples’ Struggle for Land and Life: Challenging Legal Texts’ (2004) 21 Arizona Journal of International and Comparative Law 269, 288. 83 For ‘strategic essentialization’ and its repudiation, see Spivak (n 41) 203–36. In the context of Indigenous peoples’ development, see Engle (n 41) 276–8. The problem with ‘strategic essentialism’ is that it presupposes that a person is fully aware of their prior or current subject-status, what it takes to essentialize oneself, that one consciously subjects oneself, and that this essentialization can be un-done. See Judith Butler, ‘Giving an Account of Oneself’ (2001) 31 Diacritics 22, 51–2.

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international and state legal discourses. In each case, a successful performance as Indigenous peoples depends upon others, an audience, to validate, shape and support that legal transformation. In relying upon others, the subjectivity is relationally constituted in ways that regulate and discipline those subjects as a means of expressing agency.84 Many autochthonous communities are likely already saturated in state and other modalities of power.85 However, pointing to the performative enactment as Indigenous peoples is a means of drawing attention to the fact that the form of life of Indigenous peoples depends on performances that are identifiable and able to be validated by other international and state actors. These performances provide Indigenous peoples with agency and responsibility, which could lead to the re-invention or re-discovery of traditions or practices. It could also lead to greater regulation for all autochthonous communities concerned by their becoming more entangled with the state, international and even Indigenous peoples’ practices – which individuals and communities may influence but not fully control or self-determine – as being ‘self-governing’ peoples. As one example, the institutions and subjectivity of ‘Indigenous peoples’ are currently associated with being ‘in tune’ with nature and sustainable development.86 The centrality of this notion to Indigenous peoples’ subjective form – even if a connection to nature remains an aspirational form of living – assists in expressing agency which is also disciplined and regulated.87 It is a fact of the subjectivity that was performatively and discursively constructed in relation to others, which enables others to validate the performative enactment of the subjectivity as Indigenous peoples. Where the claimants are identifiable as being ‘in tune’ with nature, or as defenders of sustainable development, it is easier to identify them as Indigenous peoples. That Indigenous peoples are associated with nature conservation is also potentially problematic.88 Jeffrey Sissons argues that contemporary interests in Indigenous authenticity and purity comprise an ‘oppressive authenticity’ that reproduces a colonial logic that divides humanity into races and cultures as forms of racism and primitivism in ‘disguise’.89 Furthermore, if one does not perform or cannot claim to perform in that way, one

84 Michel Foucault, Society Must Be Defended (Picador, 2003) 27. 85 Butler (n 31) 79–80. Butler denies the possibility of Agamben’s bare life or zoe. The distinction between zoe and bios is, however, a useful analytic for understanding how one becomes identifiable as a subject. 86 See, eg, Case of the Kaliña and Lokono Peoples v Suriname (Merits, Reparations and Costs) (Inter-American Court of Human Rights, Ser C, No 309, 25 November 2015) [175]; Lixinski (n 65) 150. 87 See, eg, Marjo Lindroth and Heidi Sinevaara-Niskanen, ‘At the Crossroads of Autonomy and Essentialism: Indigenous Peoples in International Environmental Politics’ (2013) 7 International Political Sociology 275, 281–7; Lixinski (n 65) 150. 88 Lixinski (n 65) 154. 89 Jeffrey Sissons, First Peoples. Indigenous Cultures and Their Futures (Reaktion Books, 2005) 37–59.

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risks being unidentifiable to audiences that verify and legitimate Indigenous peoples’ subjectivities.90 Another concern with the connection to nature is that it contributes to the naturalization of Indigenous peoples. As argued in Chapter 2, when Indigenous peoples asserted human rights in the 1990s, it appeared they are pre-legal natural subjects who assert rights as their own powers, rather than those of international legal discourse. Adopting and deploying legal models does not divulge how international law operates on its subjects, how it reproduces, spreads and comes to saturate everyday discourses, or how it may work to dispossess individuals and communities of their forms of life. If being identifiable as an international legal subject requires adopting a technology of self that facilitates Western knowledge to work its way into autochthonous communities,91 this could train autochthonous communities to think of themselves as needing or desiring that type of Western knowledge in order to obtain power. That is not necessarily good or a bad. Rather, as Foucault argues, it is dangerous, problematic, troubling.92 The last issue is that to insert oneself and to be inserted as Indigenous peoples into international legal discourse may make the claimant not only a subject, but also an object of governance and desire.93 If Indigenous peoples are subjects of international legal discourse, they simultaneously uphold themselves as objects of legal inquiry. It might be that they have transformed themselves from Indigenous populations into Indigenous peoples in order either to resign themselves to being subject-objects of a population or to ‘aspire to another form of collective subjectivity only to end up with “chauvinism, nationalism, [exclusion]”’.94 While those are three levels of normalization and naturalization, there are several other troubling effects. Exclusionary matrices and the state of Indigenous peoples Butler writes that an ‘exclusionary matrix by which subjects are formed thus requires the simultaneous production of a domain of abject beings, those who are not yet “subjects” but who form the constitutive outside to the domain of the subject’.95 International legal discourse is obviously exclusionary: it excluded Indian Nations and peoples from participating until relatively recently. And while 90 Jeff Corntassel, ‘Re-Envisioning Resurgence: Indigenous Pathways to Decolonization and Sustainable Self-Determination’ (2012) 1(1) Decolonization: Indigeneity, Education & Society 86, 87. 91 Lindroth, ‘Indigenous Rights’ (n 75) 347–8. 92 Michel Foucault, ‘On the Genealogy of Ethics’ in Paul Rabinow (ed), Foucault Reader (Pantheon Books, 1984) 343. 93 Lindroth, ‘Indigenous Rights’ (n 75) 347–8; Lindroth and Sinevaara-Niskanen (n 29) 114, citing Judith Butler and Athena Athanasiou, Dispossession: The Performative in the Political (Polity Press, 2013) 1–2. 94 Marcelo Hoffman, Foucault and Power: The Influence of Political Engagement on Theories of Power (Bloomsbury, 2014) 116 (emphasis and brackets in original). 95 Butler, Bodies That Matter (n 66) 3.

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we might now think of it as more inclusive – a notion based on a progressive reading of international law – international legal discourse both preceded and produced Indigenous peoples, which transforms the constitution of rights claimants without transforming the discourse into one that was radically inclusive. Instead, the production of Indigenous peoples simultaneously produced a domain of abject beings, those who are not yet ‘subjects’ of international legal discourse, which I have labelled ‘autochthonous communities’. The concern is that performatively enacting as Indigenous peoples is, itself, a method of participating in and constructing an exclusionary matrix. One consequence of an exclusionary matrix is that deploying international and statist legal language for identification and subjectification allows entry into the state, to stand before the law, by normalizing communities and displacing other legal-political possibilities. Wendy Brown makes this point in writing generally of human rights: Human rights activism is a moral-political project and if it displaces political projects, including those also aimed at producing justice, then it is not merely a tactic but a particular form of political power carrying a particular image of justice, and it will behove us to inspect, evaluate, and judge it as such.96 If, as Brown charges, human rights advocacy ‘is a politics and it organizes political space, often with the aim of monopolizing it’,97 then, similarly, where human rights advocacy is principally a legal project it could also monopolize and displace other forms of legality. There might be autochthonous communities that remain unintelligible to Indigenous peoples and non-Indigenous peoples alike because they resist statist and international legalities and are not performatively enacting as Indigenous peoples. If they become identifiable as Indigenous peoples, their forms of resistance may be abandoned when subjected to (quasi-)democratic processes that favor compromise and negotiation with state and international legalities in bids to reform the state.98 For instance, in writing about which autochthonous communities are most successful in claiming human rights, Marilyn Machado et al claim that ‘the most significant variable in achieving concrete benefits for the [Indigenous] communities is the strength of their political organisations’.99 Similarly, as 96 Brown (n 69) 453; cf Paul O’Connell, ‘Human Rights: Contesting the Displacement Thesis’ (2018) 69(1) Northern Ireland Legal Quarterly 19. 97 Brown (n 69) 461. 98 Hale (n 12) 20; Augusto B Gatmaytan, ‘Philippine Indigenous Peoples and the Question for Autonomy: Negotiated or Compromised?’ in August B Gatmaytan (ed), Negotiating Autonomy: Case Studies on Philippine Indigenous Peoples’ Land Rights (Legal Rights and Natural Resources Center Kasama sa Kalikasan, 2007) 19–25. 99 Marilyn Machado et al, ‘Weaving Hope in Ancestral Black Territories in Colombia: The Reach and Limitations of Free, Prior and Informed Consultation and Consent’ (2017) 38(5) Third World Quarterly 1075, 1088.

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mentioned in Chapter 2, a WGIP report identified FPIC as the link between ‘the right of self-determination and rights over their lands and resources and their capacity to enter into equitable relationships with the private sector’.100 Such statements indicate that those Indigenous peoples who are better able to reproduce currently identifiable legal-political forms are easier to identify as Indigenous peoples who achieve concrete and material benefits. Although other autochthonous communities might be attempting to oppose state powers by using other forms of resistance, the presumably universalized form of Indigenous peoples may exclude as it occludes identification of those other efforts as non-legal or non-political, or those communities as non-entities. On the other hand, it may operate to regulate them as ‘less successful’ Indigenous peoples or as minorities of Indigenous peoples’ populations. It might then become difficult for autochthonous communities to prevent becoming identified as Indigenous peoples.101 In discourses that produce the objects and subjects of which it speaks, which then conceal those formative moments, the ability to ‘self-govern’ is pre-constructed by the discourse. The B’laan, the Family Council, the Awas Tingni and others organize, mobilize and performatively enact as Indigenous peoples in order to be identifiable to others, which is dependent upon pre-existing discourses. The case studies reveal that the uses of FPIC depend upon political or legal organization and mobility, supported by various institutions and NGOs.102 As relational forms of disciplinary power shape and train behavior, those who achieve organization and mobility in ways that are not inconsistent or distinct from democratically embodied statesanctioned powers are protected and rewarded.103 Stephen Cornell has argued that Indigenous peoples in democratic settler-states are mobilizing and organizing as nations which are increasingly viewed as effective and legitimate.104 Unquestionably, states and other actors in a democratic international legal order are better

100 United Nations, Report of the Workshop on Indigenous Peoples, Private Sector Natural Resource, Energy and Mining Companies and Human Rights, UN Doc E/CN.4/ Sub.2/AC.4/2002/3 (2002) [6]. 101 Chris Thornhill, et al, ‘Legal Pluralism? Indigenous rights as legal constructs’ (2018) 68(3) University of Toronto Law Journal 440, 446. 102 See also Philippe Hanna, Ester Jean Langdon and Frank Vanclay, ‘Indigenous Rights, Performativity and Protest’ (2016) 50 Land Use Policy 490, 491; Ciaran O’Faircheallaigh, ‘Extractive Industries and Indigenous Peoples: A Changing Dynamic?’ (2013) 30 Journal of Rural Studies 21, 28. 103 A counter-example comes from the Philippines, where Daguil Capion became associated with the armed communist faction, the New People’s Army. In that situation, the identity of Capion as a member of the New People’s Army or as a tribal leader was actively disputed (not by Capion, however). He may have been identifiable as both a communist and a representative of Indigenous peoples. 104 Stephen Cornell, ‘Processes of Native Nationhood: The Indigenous Politics of SelfGovernment’ (2015) 6(4) International Indigenous Policy Journal 1, 11–12. His article is limited to Indigenous peoples in Canada, Australia, the United States and New Zealand.

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able to identify autochthonous communities or Indigenous peoples who reproduce the form and logic of the nation-state as being more effective and legitimate. In this way, the performative re-citation of those forms for the purposes of claiming rights engenders normalizing structures and exclusionary practices. FPIC might then be a means of normalizing autochthonous communities by providing them with a means of perpetuating and reproducing the very same international and statist legal orders from which they were previously excluded – albeit ones that they apparently choose through their performative enactment of Indigenous peoples, which will invariably exclude others.105 Coulter’s concerns that FPIC is a shibboleth may be accurate, but not, as he claims, because its definition is too vague.106 Whose self-determination generates what freedoms? Another concern with exclusionary matrices, and the most concerning problem that legal performativity uncovers, is that claiming FPIC or self-determination expresses the claimants’ agency and reflects their free choice but cannot create an autochthonous community’s self-determination or control. The ICCPR and ICESCR common article 1, the principal source of self-determination in international law, acknowledges two ‘freedoms’: the freedom to determine one’s political status and the freedom to pursue one’s economic, social and cultural development. If one deploys a legal model, then all peoples – including Indigenous peoples – have these freedoms which are unqualified and unlimited by others. Those who have these rights should have the ability to control those freedoms. Under a performative conceptualization and theorization, freedom is not oppositional to power because freedom is the exertion of power as a subject of power.107 Rights claimants freely subject themselves to a form that is not entirely of one’s own construction, which is the freedom to say ‘yes’ to a form of subjection.108 Indigenous peoples exhibit their freedom in choosing to determine their selves by claiming FPIC or self-determination. Freedom does not arise when FPIC or self-determination is ‘won’ or ‘trumps’, because that is not what being a subject engenders. Those who shape themselves into Indigenous peoples in order to claim FPIC exhibit freedom when they determine their selves to be identifiable as a subject of power. As a subject of power, Indigenous peoples can claim FPIC and self-determination to contest, negotiate and compromise with democratic actors, but they do not fully control their political status or their economic, social and cultural development – in other words, control does not arise in a non-contested or uncontroversial way. One becomes an identifiable subject in relation to, 105 See Champagne (n 7) 9. 106 Robert Coulter, ‘Free, Prior, and Informed Consent: Not the Right It Is Made Out to Be’, Indian Law Resource Center (31 October 2013) 1. 107 Michel Foucault, ‘The Subject and Power’ (1982) 8(4) Critical Inquiry 777, 790. 108 Michel Foucault, ‘What is Enlightenment?’ in Paul Rabinow (ed), Foucault Reader (Pantheon Books, 1984) 35–7.

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and with the support from, others by virtue of those others identifying the subject’s ability to consent. In each of the case studies, the development projects came to the communities. Community members who resisted deployed various tactics, but they came to stand before the law as Indigenous peoples by claiming FPIC (and their state-based legal claims). The case study on the Family Council revealed willing subjects of international legal discourse and reluctant subjects of state discourse, while the case study on Daguil Capion did not necessarily reveal his active cultivation of Indigenous peoples’ subjectivity. In each case study, none became subjects of international legal discourse simply because they consented to be or because they determined only for themselves that they were subjects. Rather, the ability to claim FPIC and self-determination is imposed from elsewhere and has a non-consensual basis – even if that imposition finds willing subjects. Today, it is difficult to view the B’laan, the Family Council, the Awas Tingni, Saramaka or Kaliña and Lokono as non-Indigenous peoples. It now seems unlikely that they could not have claimed that they were free to exist as they were, because autochthonous communities are not (necessarily) identifiable as separate from the state’s population, nor are they subjects of international law’s human rights. An autochthonous community may claim that ‘we are the traditional owners of this land, and as Indigenous peoples, we are entitled to international rights of FPIC and self-determination’. Where they do, and if others identify them as Indigenous peoples, then the subjectivity that matters is that of Indigenous peoples, rather than as their autochthonous community, for the purposes of those rights.109 Even if they extract the term ‘Indigenous peoples’ for their assertion, in order to be identifiable as bearers of human rights and to claim FPIC or self-determination, they will become subject to that which they do not control. In other words, even if the human rights concept of self-determination recognizes freedoms, one cannot assert that one is free and then act as ‘oneself’. Butler explains that ‘[w]hen one freely exercises the right to be who one already is, and one asserts a social category for the purpose of describing that mode of being, then one is, in fact, making freedom part of that very social category, discursively changing the very ontology in question’.110 Likewise, if autochthonous communities assert self-determination, they are altering themselves according to a discourse that presupposes an ontology of ‘free self-determination’ through their subjection. Through rights claiming, autochthonous communities transform their selves through the performative enactment of Indigenous peoples. The performative enactment of one form of life to a new form is transformational. Autochthonous communities enact their freedom to become subjects of international legal discourse, which empowers as it transforms and disciplines them as productive actors and passive recipients of those powers. It transforms what counts as human and as rights by renegotiating and rearticulating those autochthonous communities qua Indigenous peoples into what is identifiable as 109 See Thornhill et al (n 101). 110 Butler, Gender Trouble (n 2) 61.

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human.111 Importantly, though, the effect is that autochthonous communities cannot use FPIC in furtherance of the autochthonous communities’ self-determination. Self-determination has no purchase for autochthonous communities because it is as Indigenous peoples that they claim FPIC. Autochthonous communities do not have the absolute freedoms to determine any political status or to pursue their economic, social and cultural development, even if it appears that common article 1 recognizes something like that. Autochthonous communities become subjects of international law as Indigenous peoples, which empowers them to negotiate, compromise and contest those rights. Whatever self-determination is recognized in international legal contexts is not and cannot be handed to claimants because they subject themselves to international law. Those who become identifiable as Indigenous peoples have self-determination by determining that their selves are subjects of international legal discourse as Indigenous peoples, which enables them to claim FPIC and self-determination. Claiming FPIC or self-determination cannot instantiate any claimant’s full control over FPIC or self-determination because to be identifiable as a claimant is to have inserted oneself into a citational-chain that previously existed in legal discourse. Furthermore, FPIC, self-determination and the subjectivity of Indigenous peoples will be claimed elsewhere and in the future in ways, forms and methods that contest previous and present claimants’ visions. A consequence is that to remain identifiable as Indigenous peoples requires repeated and continuous acts of subjection. These are limitations just as they are entailments, effects and allurements of power that Indigenous peoples find themselves within if they are identifiable as claiming FPIC. To the extent that political controversy does not end, the ability to re-inscribe and re-signify performative enactments allows for subversive and insurrectionary potential.112 Where or when might that be?

111 See Judith Butler, Undoing Gender (Routledge, 2004) 36–7. 112 Butler, Excitable Speech (n 2) 130; McNeilly (n 1) 41–4, ch 3.

Chapter 8

Insurrectionary ends?

An insurrectionary potential, somewhere, somehow Scholars who adopt and deploy legal models of power uphold the promise that Indigenous peoples can use FPIC as a mechanism for their self-determination. Those who deploy legal models provide Indigenous peoples with the ability to use FPIC as a mechanism to express, contest and negotiate self-determination. But claiming FPIC does not provide autochthonous communities with the means of controlling what impacts them or what self-determination means. As argued throughout this book, those who deploy legal models tend to elide how international legal discourse produces and forms the subject of rights claims. The major consequences of adopting legal models of power are that one will likely overestimate what FPIC can do and one will likely underestimate what demands are placed upon individuals and communities in order to claim FPIC. Accordingly, it has been necessary to rethink FPIC in relation to a set of terms unconstrained by legal models and the presumptively naturalized and untroubled subject of Indigenous peoples.1 From a legal performative approach, ‘self-determination’ is the free choice and the ability to subjectify oneself within international legal discourse. It is the empowerment to work within the enticements and traps of power in which Indigenous peoples find themselves. Subjectification within the legal discourse does not provide autochthonous communities with self-determination or the ability to use FPIC to fully end a controversy and control the effects of claiming rights. It provides some with the ability to performatively enact the subjectivity of Indigenous peoples and to claim FPIC to create and perpetuate political controversy. My concern is that autochthonous communities come to see themselves as Indigenous peoples – a subjectivity of international legal discourse – and believe that claiming human rights should provide them with control as against state powers. Control does not materialize, but claiming human rights enables autochthonous communities to insert themselves into legal discourse as Indigenous peoples. They can 1 Judith Butler, ‘Sexual Consent: Some Thoughts on Psychoanalysis and Law’ (2011) 21(2) Columbia Journal of Gender and Law 405, 421.

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support international and state forms of power by using state-sanctioned means of contestation to reform themselves and, potentially, the state and international legal institutions. The overarching goal of this book has been to investigate the ways in which law operates as it constructs subjects. It has sought to analyze what is currently happening, not what will necessarily happen in the future. It has sought to articulate the legal conditions and domains of appearance for Indigenous peoples. This type of performative legal methodology is a means for rethinking what is possible.2 It is also a means for rethinking when and where insurrectionary potential lies. Legal performativity uncovers a cycle of forms; the enticements and traps of power within which those who claim FPIC find themselves. Within such cycles, the ability to continually re-enact and re-cite performatives allow for the possibility of insurrectionary uses of FPIC. According to Butler, performatives ‘work to the extent that they are given in the form of a ritual, that is, repeated in time, and, hence, maintain a sphere of operation that is not restricted to the moment of the utterance itself’.3 The possibility of insurrectionary action in re-citing a performative cannot be entirely foreclosed in the same way that it cannot fully break from the citational-chain of discourse. Every performative is necessarily open to reinterpretation, re-iteration and re-inscription.4 So – even if one needs to be a subject of legal discourse to claim rights – each enactment is decontextualized and then re-contextualized. The possibility of insurrectionary action resides in the slippage inherent in repetitious enactments.5 Accordingly, laws that attempt to stabilize affairs also generate the conditions for, at least, momentarily systemic destabilization, especially through performative contradictions. Butler describes an example of a performative contradiction that is inherent in legal censorship: ‘regulation that states what it does not want stated thwarts its own desire … [it] throws into question that regulation’s capacity to mean and do what it says’.6 In other words, a regulation that uses the words that it attempts to forbid or erase performatively contradicts itself. At its most basic, a performative contradiction demonstrates that a norm ostensibly upheld as universal, total and stable fails to be universalizing, totalizing and stabilized by undermining what it seeks to uphold. Importantly, there is always the possibility of strategically and purposefully enacting performative contradictions. For example, Butler describes the performative contradictions inherent in a demonstration staged by undocumented people singing the American national anthem in Spanish in a Los Angeles public space.7 When so-called ‘illegal aliens’ occupy and Judith Butler, Gender Trouble (Routledge, 2nd ed, 1999) xxi. Judith Butler, Excitable Speech: A Politics of the Performative (Routledge, 1997) 3. Ibid, Butler, 155. Kathryn McNeilly calls such projects ‘human rights to come’: Human Rights and Radical Social Transformation: Futurity, Alterity, Power (Routledge, 2017). 6 Butler (n 3) 130 (original emphasis). 7 Judith Butler and Gayatri Chakravorty Spivak, Who Sings the Nation-State? (Seagull Books, 2007) 62–3. 2 3 4 5

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appropriate a public space in an ‘illegal’ demonstration and sing ‘America’s’ national anthem in Spanish, they performatively enact several contradictions. The legal regime that constructs ‘citizen’, ‘America’s’ national anthem, ‘public space’ and ‘legal demonstration’ also makes possible the illegality of the ‘aliens’ singing ‘their’ national anthem in their ‘illegal’ reclamation of public space. At that moment, the performative enactment contradicts the state’s legal claims of ownership by interjecting conflicting notions of public/private, legal/illegal, self/ other, and national/non-national. In the late 1960s and early 1970s, there were numerous re-occupations of lands – an Akwesasne attempt to enforce international trespass notices, the Aboriginal Tent Embassy, and the re-occupations of Wounded Knee and Bastion Point – each of which demonstrates the non-necessity of claiming human rights as Indigenous peoples and alternatives to state-based political-legal action. Each of those is also risky, violent. What they lacked, at that time, was internationally accepted terminology for identifying those actions as acts by Indigenous peoples. By contrast, individuals and communities in the case studies invoked FPIC to reveal that state or international law codified judgments that were against their interests. Even if claiming human rights is personally dangerous, challenging or disruptive of some state-sanctioned actions or state actor interests, those are not insurrectionary uses of FPIC in democratic states. Claiming human rights is a form of contestation that democratic states sanction.8 Those who perform the subjectivity of Indigenous peoples may highlight deficiencies within political-legal contexts – specifically, how state law is unduly burdensome, dangerously undemocratic or has previously rendered them precarious or invisible.9 Where states do not legislate FPIC, and judges remain unable to ‘hear’ the claim, claiming FPIC may highlight the inadequacy of the extant state legal or institutional status quo to give effect to Indigenous peoples’ consent.10 That can be powerful and empowering. As such, claiming FPIC can expose the limitations of state law, draw attention to legal injustice, and, if adopted within national legislation, mitigate those ‘pathologies’ for and on behalf of international and state legality.11 Doing so is entirely consistent with claiming rights to cause disruption, contestation and conflict, which is what good democratic citizens do in order to reform states.12 And, certainly, some Indigenous peoples claim human rights in order to become more 8 H Patrick Glenn, ‘The Three Ironies of the UN Declaration on the Rights of Indigenous Peoples’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011) 176–7. 9 Judith Butler, Undoing Gender (Routledge, 2004) 31. 10 See Julian Aguon, ‘Other Arms: The Power of a Dual Rights Legal Strategy for the Chamoru People of Guam Using the Declaration on the Rights of Indigenous Peoples in U.S. Courts’ (2008) 31 University of Hawaii Law Review 113, 121–3. 11 See Patrick Macklem, The Sovereignty of Human Rights (Oxford University Press, 2015). 12 Emilios Christodoulidis, ‘Strategies of Rupture’ (2008) 20(1) Law & Critique 1, doi: 10.1007/s10978–008–9042-x, 7–13.

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widely identifiable to others as humans, peoples, persons or democratic citizens.13 When they do so, they may become part of a movement that halts or prevents a development project, they may have their property titled, or they may have the state legislate FPIC for their protection. Performatively enacting as Indigenous peoples to claim FPIC in a way that has the appearance of being antagonistic to the state supports and makes relevant international law and state legal forms. When Indigenous peoples claim FPIC or other more widely recognized human rights, they seek to uphold human rights as ostensibly universal democratic entitlements.14 It seems that claiming international human rights is an unlikely vehicle for contradicting the international legal universalities required for that enactment. However, the possibility of using performative contradictions, or other forms of insurrectionary action, resides in human rights somehow and somewhere. If a principal concern is that a human rights-based discourse comes to exclude autochthonous communities’ legal-political options as the only or best method, it is doubly problematic when autochthonous communities can engage in nonrights-based insurrectionary performative actions in ways that contest the state. Butler cautions: Although this language might well establish our legitimacy with a legal framework ensconced in liberal versions of human ontology, it fails to do justice to passion and grief and rage, all of which tear us from ourselves, bind us to others, transport us, undo us, and implicate us in lives that are not are [sic] own, sometimes fatally, irreversibly.15 In claiming rights, perhaps, the goal of some Indigenous peoples is to establish themselves within the state as legitimate subjects and actors. Where rights claiming requires autochthonous communities to continuously and indefinitely perform a technology of self that assimilates and integrates them into states, it does not break from the assimilationist and integrationist aspects of international law that is colonial. It does not appear in an obvious form of colonialism because self-identifying Indigenous peoples claim rights for their legal protection. Even if I agree that autochthonous communities and Indigenous peoples should have control over their lives and should have the protections they want, my concern is that state and international laws are forms of power that are ill-suited to that task. I am also concerned that members of autochthonous communities come to believe that FPIC or self-determination can or should provide them with control, when rights claiming is, in fact, a means of supporting the legal hierarchies and mechanisms – re-producing those legal cycles – which they would otherwise seek to question or undermine if they had control. 13 Butler (n 9) 31. 14 Butler (n 9); Anna Krien, ‘The Long Goodbye: Coal, Coral and Australia’s Climate Deadlock’ (2017) 66 Quarterly Essays 1, 36–7. 15 Butler (n 9) 20.

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I believe that some who performatively enact as Indigenous peoples and claim human rights are seeking parity in power or the ability to be ungoverned by others.16 If so, then the challenge is not to figure out how to use law and how to use rights to become liberated from the state or its institutions. International law, human rights and rights claiming are technologies of power that are employed in support of democratic state-building projects. Where autochthonous communities seek to participate in democratic state-building projects and see Indigenous rights as a means of contestation and potential reform, they can and perhaps should deploy FPIC and other Indigenous rights. Otherwise, perhaps the project should be to rethink how to emancipate autochthonous communities – and, indeed, all individuals and communities – ‘from the state and the type of individualization which is linked to the state’.17 Doing so, at least under a performative model, may discontinue the reproduction of these exclusionary legal forms, cycles and spirals. Is it possible to refuse a self or the rights of Indigenous peoples? Can it be successful? Can autochthonous communities assert a right not to be a subject? Can Indigenous peoples’ institutions purposefully expand and reproduce themselves to be open to those who are not prima facie Indigenous peoples in order to generate alternative or radical forms of inclusion?

Performative limits, unlimited troubles, temporary ends This performative methodology is limited. The first problem is that it is a text. As a text, it attempts to gesture to what is happening outside it, as well as what texts get wrong. In short, I am using text to describe the ways in which text is troublingly incomplete in dealing with its subjects. Performatively, this text is also so limited. In attempting to denaturalize the subjectivity of Indigenous peoples, various viewpoints and subjectivities are treated as objects that can be objectively known, which upholds me as some sort of authorial-sovereign. Multiple and various phenomenological experiences cannot be captured – nor do I seek to ‘capture’ them. As gestured to throughout this text, these limitations are general problems of scholarship, text and privilege that are confined or limited to this text. The limitations are unlimited,18 dispersed and disciplined features of legal discourse and disciplinary society. My subject – to the degree that ‘my’ appears possessive – is also, admittedly, problematic. It is no better when I write, ‘The way in which I treat this subject’, as though ‘this subject’ is a singular or posited unity that I can ‘treat’. These problems are my problems to the extent that they are problems of discourse, language and grammar.19 I have argued that Indigenous peoples are subjects of international legal discourse, a particular type of language 16 17 18 19

Butler (n 9) 31. Michel Foucault, ‘The Subject and Power’ (1982) 8(4) Critical Inquiry 777, 785. Jacques Derrida, Limited Inc (Northwestern University Press, 1988) 34. See generally Jacques Derrida, Of Grammatology (Johns Hopkins University Press, 1976).

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use and speaking, over which no one has control. Those are some troubling subjects we confront. Each individual disciplined by that discourse has their views and experience that are not captured and capture-able or easily and a-politically translatable into international human rights law. That is why international legal discourse is a troubling subject. Other scholars have made seemingly similar observations. Irene Watson’s newest edited book is titled Indigenous Peoples as Subjects of International Law.20 Within it, Roger Merino examines Peru’s recent prior consultation law and argues that it does not allow Indigenous peoples to oppose state decisions but construes them as participants who can benefit in development. He explains that Peru’s ‘liberal legal framework cannot contain the Indigenous cosmology and [that is] why Indigenous peoples cannot use this legal system to move beyond it in a project of social emancipation that seeks to reinvent the state structure in order to recognize Indigenous territorial rights and selfdetermination’.21 I agree with Merino: Indigenous peoples will not find that claiming FPIC, as either a human right or a state law, will enable them to oppose state law and assert their own laws and forms of life or cosmologies. That is because legal discourse – at the state or international level – structures whatever is identifiable in terms of its subjects and rights claims. And the pervasiveness of that discourse is troubling. Merino’s identification of all autochthonous communities in Peru as Indigenous peoples might itself work against their ability to assert their cosmologies by re-subjecting them to international legal discourse. One of my central concerns is that creating oneself as a human rights claimant, a subject of international legal discourse, may displace other political projects. In contrast to my position, Paul O’Connell has argued that those scholars who argue that human rights displace other practices, such as myself, give ‘too much autonomy to language and ideas’ and pay ‘far too little attention to the actual practices of social movements and human agency’.22 He then draws renewed attention to social struggles that ‘bring[] in other languages and perspectives that broaden their struggles out into a more thorough critique of the extant social order’.23 O’Connell’s point is that ‘social movements can and do mobilise the language of human rights in a way which remains attentive to broader structural causes of injustice’.24 His examples ostensibly show ‘that social movements routinely engage in a sort of emancipatory or critical multilingualism, 20 Irene Watson (ed), Indigenous Peoples as Subjects of International Law (Routledge, 2017). 21 Roger Merino, ‘Law and Politics of Indigenous Self-Determination: The Meaning of the Right to Prior Consultation’ in Irene Watson (ed), Indigenous Peoples as Subjects of International Law (Routledge, 2017) 140. 22 Paul O’Connell, ‘Human Rights: Contesting the Displacement Thesis’ (2018) 69(1) Northern Ireland Legal Quarterly 19. 23 Ibid, O’Connell, 27. 24 Ibid, O’Connell, 27.

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which mobilises democracy, equality, race, gender and class alongside human rights claims’.25 In the short examples O’Connell provides, it appears that human rights claimants mobilize the language of human rights to ‘situate their campaign[s], explicitly, in the broader context of neoliberal capitalism and opposition to the logic of commodification inherent in that system of reproduction’.26 I do not doubt that individuals who partake in social movements ‘mobilise the language of human rights’ ‘alongside’ putatively ‘emancipatory or critical multilingualisms’ in opposition to capitalism, commodification or other contemporary ills. The crux of my argument is that human rights is not merely a language to mobilize. The problem is not that I and others who worry about displacement grant ‘too much autonomy to language and ideas’. The problem is that language and ideas do not have enough (or any) autonomy. Language slips. Sometimes purposefully and sometimes not. To be identifiable as a participant in discourse involves inscribing discipline on oneself. So even if claimants’ intend their mobilizations of human rights language to be pitched against forms of neoliberalism, developmental policy or capitalism, to be identifiable to others as subjects who bear human rights may very well advance neoliberalism, development and, perhaps, even capitalism and commodification in ways they do not intend. Attempts to use human rights in broader contexts, might begin transforming those contexts in suitable and new grounds for disciplined human rights subjects. My concern is not simply with displacement, at least not as an isolated phenomenon, but that claiming human rights produces disciplined subjects and a domain of abject beings – those who cannot yet stand before the law. For autochthonous communities to be identifiable as bearing human rights, they are required to performatively enact and become Indigenous peoples. Another limitation of this project is that I have not shown that there are good or preferable alternatives to claiming human rights that are, in fact, displaced. The focus of this book has been limited to international legal discourse and, as such, that which does not conform to that discourse will pass outside of view and remain un-identifiable. If ever there were collectivities that could generate legal and normative alternatives to rights-based discourses and liberal democratic regimes it is those I have called autochthonous communities. Some scholars who are interested in ‘resurgence’ have begun articulating alternatives to rights-based approaches. They also reveal that displacement is, pace O’Connell, not an overstated concern. According to O’Connell, displacement ‘recalls Audra Lorde’s cutting insight that the “master’s tools will never dismantle the master’s house”’.27 As an example of resurgence, Leanne Simpson writes, ‘I am not so concerned with how we dismantle the master’s house … but I am very concerned with how we (re)build our 25 Ibid, O’Connell, 27. 26 Ibid, O’Connell, 28. 27 Ibid, O’Connell, 27.

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own house, or our own houses’.28 Those who are interested in resurgence primarily turn away from statist and international legal forms and rights-based discourses. Instead, they seek to renew, re-write and re-invest in their own traditions and laws. As indicative of that movement, Simpson writes: ‘we need to act against political processes that undermine our traditional forms of governance, our political cultures, our intellectual traditions, the occupation and destruction of our lands, violence against our children and women, and a host of many other issues’.29 For Taiaike Alfred: The only way we can survive is to recover our strength, our wisdom, and our solidarity by honouring and revitalizing the core of our traditional teachings. Only by heeding the voices of our ancestors can we restore our nations and put peace, power, and righteousness back into the hearts and minds of our people.30 Jeff Corntassel seeks to re-envision and practice ‘everyday acts of resurgence … to reclaim and regenerate one’s relational, place-based existence by challenging the ongoing, destructive forces of colonization’.31 For him, this ‘means rejecting the performativity of a rights discourse geared toward state affirmation and recognition, and embracing a daily existence conditioned by place-based cultural practices’.32 As I have argued, the ‘rights discourse geared toward state affirmation and recognition’ includes the discourses on Indigenous peoples and international human rights.33 Although resurgence is an alternative to rights-based discourse, they may have to confront the ways in which they deploy the signifier ‘Indigenous peoples’ and, generally, international legal terminology.34 In Corntassel’s article, ‘Re-envisioning Resurgence: Indigenous Pathways to Decolonization and Sustainable Self-Determination’, he begins ‘by asking “How will your ancestors and future generations recognize you as Indigenous?”’35 His answer is as follows: 28 Leanne Simpson, Dancing on Our Turtle’s Back: Stories of Nishnaabeg Re-Creation Resurgence and a New Emergence (Arbeiter, 2011) 32. 29 Ibid, Simpson, 53. 30 Taiaiake Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (Oxford University Press, 1999) xii. 31 Jeff Corntassel, ‘Re-Envisioning Resurgence: Indigenous Pathways to Decolonization and Sustainable Self-Determination’ (2012) 1(1) Decolonization: Indigeneity, Education & Society 86, 87. 32 Ibid, Corntassel, 89. Although Corntassel identifies rights claiming as performative, he does not explain what he means by ‘performative’ nor does he extend his analysis to human rights. 33 See also Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge, 2015). 34 Dale Turner attempts that in This Is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (University of Toronto Press, 2006). 35 Corntassel (n 31) 88.

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Indigenous peoples must confront existing colonial institutions, structures, and policies that attempt to displace us from our homelands and relationships, which impact the health and well-being of present generations of Indigenous youth and families. Indigenous resurgence means having the courage and imagination to envision life beyond the state.36 I agree with Corntassel that rights-based discourses are principally a means of reaffirming state powers.37 I also believe that everyone should ‘confront existing colonial institutions, structures and policies’. But it is not always so clear, today, what remains uninflected by colonialism. Did decolonization, which otherwise ‘universalized the European state model as the supreme legal subject in the international community’,38 break, reproduce or transform colonialism? Is it possible that modern forms of colonialism – if ‘colonialism’ remains an apt term – involve practices, norms, laws, institutions, discourses and epistemes that presuppose its opposition so that moments of confrontation are not only allowable but encouraged? Building upon Alfred’s approach to resurgence, Simpson writes: We need to rebuild our culturally inherent philosophical contexts for governance, education, healthcare, and economy. We need to be able to articulate in a clear manner our visions for the future, for living as Indigenous Peoples in contemporary times … We need to do this on our own terms, without the sanction, permission or engagement of the state, western theory or the opinions of [others]. In essence, we need to not just figure out who we are; we need to re-establish the processes by which we live who we are within the current context we find ourselves.39 Attempts to make and articulate visions for the future on one’s ‘own terms, without the sanction, permission or engagement of the state, Western theory or the opinions of [others]’, such as opinions like mine, can be empowering and important. I worry that doing so requires using terms of international legal discourse – such as ‘Indigenous peoples’ or ‘western theory’ – so that empowerment is also constrained. Obviously, individuals and communities can use terms differently and in ways that elide common or colloquial understandings. I am concerned about the discipline required to make oneself or one’s community intelligible and identifiable when those outside the community take an interest in them. I sincerely hope that those who reject rights-based discourses and attempt to reappropriate and re-contextualize those terms are successful. Whether self36 Corntassel (n 31) 88–9. 37 Also, Makau Mutua, Human Rights: A Political & Cultural Critique (University of Pennsylvania Press, 2002) ch 6. 38 Mattias Ahrén, Indigenous Peoples’ Status in the International Legal System (Oxford University Press, 2016) 34. 39 Simpson (n 28) 17.

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identification according to terms of international legal discourse has saturated everyday discourses and therein displaced alternatives or provided foundations upon which to ‘(re)build our own house, or our own houses’40 remains to be seen. Although I am concerned that international legal discourse on Indigenous peoples and their rights continues to reproduce colonial forms, the terms of international legal discourse are not, and cannot be, successfully totalizing – the recitation of terms involves slippage which allows the possibility of doing Indigenous peoples and human rights differently. How autochthonous communities or Indigenous peoples decide to work within the traps of power they find themselves within can be neither performatively foretold nor foreclosed.41 They will remain contested. There are two final limitations.42 First, some might be concerned that my use of a legal performative method is focused on individuals and individual rights rather than rights of collectivities or communities. Phrased another way, to the degree that I am suspicious about consent and FPIC, I am also suspicious of any attempts to ‘fix’ utterances, which includes consensus models of deliberative democracy. Butler writes: the ideal of consent … makes sense only to the degree that the terms in question submit to a consensually established meaning … But are we, whoever ‘we’ are, the kind of community in which such meaning should be established once and for all? … Who stands above the interpretive fray in a position to ‘assign’ utterances the same meaning?43 This does not deny that we can communicate or even momentarily agree about how to use terms. The problem is that no one controls how those agreements will be re-interpreted by us or others in the future or how those terms were used in the past. Further, to the degree that we communicated and agreed, those terms are beyond our control so that no one fully controls the terms of membership for the community that agreed. Those who were already disciplined construct communities as they are communally constructed, often without prior consensus or consent, to be able to agree. In fact, this methodology insists that every rights claim involves communities and collectives, but not the communities or collectivities of any individual’s or community’s choice. Many might find this temporary end unsatisfactory. There is more work to do on legal performativity as well as Indigenous rights, human rights and international law – especially, as gestured to throughout, around issues of neoliberalism, political economy, law and development, globalization and race. There are 40 Simpson (n 28) 32. 41 McNeilly (n 5). 42 These are critiques made against performative methodologies more generally. See Amy Allen, ‘Power Trouble: Performativity as Critical Theory’ (1998) 5(4) Constellations 456, 465–8. 43 Butler (n 3) 86–7.

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connections between neoliberalism and discipline, but I have not sought to articulate the interrelationship between international legal discourse, Indigenous peoples and neoliberalism, or globalization, at least not in those terms.44 Additionally, I have not defined what, where or when an Indigenous peoples’ claim of FPIC will be insurrectionary. This relates to the final limitation: I have not articulated nor directed a normative program for future action. I have not because I should not articulate a program of action. Additionally, I cannot. It remains possible to claim FPIC and construct performative contradictions as a means of destabilizing pretenses of universality by highlighting the limited spatial and temporal dimensions of international legalities. Autochthonous community members have contested the state by re-claiming or performatively re-occupying spaces that are both physical and legal. The more difficult challenge in using FPIC or Indigenous peoples’ rights claims for insurrectionary purposes arises from the presumptive universality of international legal discourse, even as autochthonous community members struggle, resist and oppose using and being so subjected. I do not know, nor can I know how or when that will happen: I am performatively disciplined, which is why my agentic actions are constructed in particular ways that, I hope, are legible, identifiable and open to interpretations and re-citations in ways I cannot control. At some point, my intentions – much like the intentions of any individual – cease to be my own, even though, as an author, I must present myself as owning them. Autochthonous communities that performatively enact as Indigenous peoples become empowered as they become identifiable to others. A consequence is that to claim FPIC is to have freely performatively enacted as a subject of legal discourse. It does not appear as such because international legal discourse effectively conceals itself as natural and inevitable, so that its artificial, historical and social contingency appears to disappear. In this book, I have provided a history of the present by excavating the sedimentations of power within FPIC. I have not opened up ‘spaces’, nor have I suggested what Indigenous peoples or others should do. I should not stand in the way of Indigenous peoples or autochthonous communities, or construct new forms, barriers or traps of power. They have their histories to tell and re-tell and other methods to pursue. How and whether autochthonous communities or Indigenous peoples can discover or recover emancipatory languages, return to old forms of life or reproduce their laws is unknown and not for me to theorize.

44 See, eg, Marjo Lindroth and Heidi Sinevaara-Niskanen, Global Politics and Its Violent Care for Indigeneity: Sequels to Colonialism (Palgrave Macmillan, 2018).

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Index

Abbott, T. 148, 196 Abject: beings/self 9, 39, 41, 53, 205–6, 217; as domain 9, 41, 102, 205–6, 217 Aboriginal and Torres Strait Islander Commission (ATSIC) 136 Aboriginal Land Rights (Northern Territory) Act 1976 133 Aboriginal Tent Embassy 51, 213 Adani 18, 141–56, 185, 196–7, 203 Adani, G. 149, 196 African Commission on Peoples and Human Rights 96 African Court on Human and Peoples’ Rights 157 ‘Agenda 21’ 59 Akwé: Kon Voluntary Guidelines 73 Alfred, T. 218–9 Allen, S. 80–2 Alvarez-Castillo, F. 126 American Convention on Human Rights (‘American Convention’) 158, 160–6, 172, 174, 182 American Declaration on the Rights and Duties of Man (‘American Declaration’) 160–3 American Declaration on the Rights of Indigenous Peoples (OASDRIP) 74, 158, 191 American Indian Movement 51 Amir, N. 155 anachronism 11, 26, 64, 76 Anaya, S.J. 22, 55–6, 75–6, 89–91, 158, 168, 182; as Rapporteur 75–6, 89, 182 anthropology 14 Antkowiak, T. 167 Armed Forces of the Philippines Brigade 123 Arnhem Land Reserve 133 aspirational 79, 140, 204

assimilated 46, 49 Austin, J.L. 34 Australia 18, 51, 65, 73, 84, 97, 130–57, 175, 185, 190–3, 196, 203 autochthonous communities 9–10, 16–20, 28–9, 32–3, 37–45, 50–1, 54, 76–80, 100–7, 131, 188, 192, 201–11, 214–7, 220–1 Awas Tingni v Nicaragua 159, 164–74 Awas Tingni 165–71, 174, 197–98, 207–09 B’laan 17–8, 38, 104–11, 114–27, 131, 190, 194–5, 207–9 B’laan Tribal Association 117 Barelli, M. 79, 176 Barnard, A. 14 Billanes, E. 121 binding law 27, 47, 54, 59, 61, 73, 75, 79, 81–4, 91, 140 Bolivia 39 Bonn Guidelines on Access and Benefit Sharing 73 Bowrey, K. 6, 78, 81 Brandis, G. 148, 153, 196 Brown, W. 206 Bryan, J. 170–1, 178, Buchanan, R. 64, 70 Burragubba, A. 141–5, 151–5, 197 Butler, J. 6–8, 16, 20, 26, 33–40, 200, 204–5, 209, 212–4, 220 Cafion, L. 115 Camba, A. 106, 128–9 Canada 51, 73, 84, 97, 131, 161 Canadian National Indian Broth erhood 52 Canavan, M. 155

Index Capion, D. 123–6, 148, 170, 174, 195, 207, 209 Capion, J. 123–4 Capion, K. 124 Capion Massacre (‘Tampakan massacre’) 123–4 Capion, P. 123 Captain James Cook 132 Cariño 108, 112, 128, 134 Carmichael Coal Mine 18, 130–1, 141, 145–9, 154–5, 196 Carpenter, K. 80–1, 98 Castillo, RCA. 126 Catedral, R. 123 Catholic Church 117, 123, 126 Champagne, D. 202 Chávez, L. 87 Churchill, W. 86–7 Clavero, B. 61 Cole, FC. 107 Committee for the Elimination of Racial Discrimination (CERD) 67–8, 82, 122, 135–6, 153, 155 General Recommendation XXIII 67, 135 General Recommendation XXI 135 Committee on Economic Social and Cultural Rights 74 General Comment 74 Communist Party of the Philippines 110 Communist Party of the Philippines-New People’s Army (CPP-NPA) 110, 121, 124–5, 195, 207 Conference on Discrimination against Indigenous Populations in the Americas 54 Conference on Environment and Development see Earth Summit constructivist 16, 22, 92, 94 Contesse, J. 162 Convention on Biological Diversity (CBD) 59, 72–3, 79, 180 Cornell, S. 207 Corntassel, J. 39–40, 218–9 Correia, J. 184–5 Coulter, R. 5, 64, 91, 208 Cover, R. 80 Craven, M. 11, 13 crystallization 61, 82, 94 Cullen, S. 117, 120 customary international law/norms 2–3, 6, 9, 13–9, 26–7, 31, 34, 42–4, 54–6, 61–2, 66, 75–82, 84 140; as ‘evolving’/

259

progressing 61, 82, 94–5, 164–8; as ‘fragmentary’ 82, 164; opinio juris 82 cycle (of legal forms) 18, 185, 187, 191–3, 199, 212, 214–5 Davis, M. 66, 79, 81 Davis, S. 115–8 de las Casas, B. 76, 92–3, 102 de Venecia, J. 117 de Vitoria, F. 76, 92–3, 102 Declaration of Continuing Independence 52 Declaration of Principles (‘1984 Declaration’) 55 Declaration on Friendly Relations 50 Declaration on the Elimination of All Forms of Racial Discrimination 53 Declaration on the Granting of Independence to Colonial Territories and Peoples (‘Resolution 1514’) 49–50 Declaration on the Rights of Indigenous Peoples (UNDRIP) 1–5, 26, 43, 45, 55, 72–4, 78–88, 92–7, 111, 118–22, 140–1, 145–7, 153, 158–9, 176, 180, 191, 202–3; as ‘1993 Draft Declaration’ 55–6, 62–7, 73, 85, 86 decolonization 44–9, 63, 65, 85–6, 219; as non-self-governing 46–7, 50; as trust territories 46 definitional vagueness 17, 78, 91, 208 democratic 45, 47, 56–7, 62–70, 75, 77, 85–6, 89, 96–102, 110, 116, 125, 145–52, 155, 162, 165, 168, 188–9, 193–8, 202, 206–8, 213–7, 220; as form of citizenship 188–9, 193–4, 196, 198, 202; as deliberative democracy 97, 100, 220; as democratization 56–7, 62–5, 86 Derrida, J. 34–5 discipline 11–7, 20–5, 29–37, 53, 77, 83, 103, 131, 144, 155, 178, 187–8, 192, 199–204, 209, 215–21; as disciplinary power 7, 17, 23–4, 26, 30–3, 48, 61, 178; as disciplinary effect 6, 25, 188 discourse 2–38, 41–45, 48–58, 61–9, 73–80, 97–105, 111, 114–21, 127, 131, 136, 140, 142, 145–52, 155–9, 163–5, 168–70, 173–4, 181, 185–94, 199–221 discrimination 53–4, 151, 165 Doyle, C. 17, 78–9, 91–102, 108, 127, 133, 170 Draft Declaration of Principles for the Defense of Indigenous Nations and

260

Index

Peoples of the Western Hemisphere (‘1977 NGO Draft Declaration’) 54–5 dual functions of power 8, 10 duty to consult 89–91, 157–8, 175 ‘dynamic of difference’ 28, 92, 102–3 Earth Summit 57–9, 68, 70 Earthjustice 146, 151, 155 Economic and Social Council (ECOSOC) 47, 68 elite theory 97–100 Engle, K. 63, 85, 194 Environment Protection and Biodiversity Conservation Act 1999 148 Equator Principles 71, 74 essential-ism, -ize 7, 32, 38–40, 60, 125, 142, 150–1, 175, 180–1, 194–5, 198, 203–05 Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) 5, 74 Extractive Industries Review 70 Filipino Alliance for Nationalism and Democracy 124 Financial and Technical Assistance Agreement (FTAA) 114, 117, 120 Finnemore, M. 94 First Peoples Worldwide 127 Fitzpatrick, P. 23 Foucault, M. 6, 16, 20–5, 29–36, 39, 48, 200, 205; archaeological era 21; genealogical period 21, 23; biopolitics 30–1, 48; see discipline; freedom 29–33; governmentality 29–31, 38; Panopticon 24; subjectivation 32 free, prior and informed consent (FPIC) 1–22, 25–38, 42–45, 58–62, 66–79, 84–105, 108, 111–4, 118–123, 126–33, 140–2, 146–7, 153–62, 165, 167, 170–1, 176, 178, 182–99, 202–3, 207–16, 220–1; as veto 26, 87–91, 95, 137, 162, 165, 177, 182, 188; as a trump 10, 17, 26, 87–91, 137, 194–5, 208 fugitive 124–5, 148, 174, 195–6; as bandit 124–6, 148, 174, 195–6 future act 131, 134–39 Gatmaytan, A. 113–4 gender performativity 35–7 Gilbert, J. 180–1 Golder, B. 21, 23; ‘empty vehicles’ 80

Goodall, H. 131 Goodland, R. 119–20, 176 Governance for Sustainable Human Development 67 ‘greenies’ 145, 148–50, 152, 174, 196 Guidelines on Indigenous Peoples’ Issues 74 Gurindji 133 Haabo, V. 178, 184 Hale, C. 168–71, 184, 189 Hamm, B. 125 Harvard Project on American Indian Economic Development 69–70 Hepburn, J. 143–4 Hoffman, M. 31, 48 Holmes, OW. (Justice Holmes) 108–10 Humabon, S. (‘Don Carlos’) 106 Human Rights Commission 130 Human Rights Council 73–4 Huneeus, A. 162 Hunt, G. 146 implementation see operationalization Indian Law Resource Center 5 Indigenous Cultural Communities (ICCs) 110–1, 120, 194 Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) 112–4, 118, 120, 126–7, 194 Indigenous Land Use Agreement (ILUA) 135, 137–44, 149–55, 203 Indigenous Peoples Rights Act (IPRA) 104–5, 108, 111–5, 118–22, 127–8, 133, 156, 160, 171, 175, 177, 183, 190, 203; 2006 FPIC Guidelines 122; IPRA 2012 FPIC Guidelines 112 Indigenous populations 30–3, 43–56, 59, 163, 168–70, 205 Indigenous Rights Protection Act 17 insurrectionary potential 7, 19, 34, 37–8, 210–2 Inter-American Commission on Human Rights (IACHR) 157–64, 182 Inter-American Court of Human Rights 18, 39, 82, 157–67, 170–85, 189–92, 197–9 Inter-American Human Rights System 74, 157, 160 International Council on Metals and the Environment (ICME) 114–6 International Covenant on Civil and Political Rights (ICCPR) 49–50, 64, 208

Index International Covenant on Economic, Social and Cultural Rights (ICESCR) 49, 64, 208 International Covenants on Human Rights 47, 53–4, 118 International Finance Corporation (IFC) 58, 67, 70, 74, 95, 101, 190–1 International Indian Treaty Council (IIFC) 51–3 International Labour Organization (ILO) 14, 47–8, 57, 60, 73, 79, 82, 94, 111, 118, 187, 191; Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (Convention No 107) 48–50, 54, 59–60; ‘Convention No 169’ 60–1, 79, 82, 95, 111, 118, 191; Indigenous Peoples: Living and Working Conditions of Aboriginal Populations in Independent Countries 47 International Working Group for Indigenous Affairs 108 Jensen, S. 43 Johnson, M. 150, 156 juridical power 8, 20, 23 Kaliña and Lokono v Suriname 159, 179–183, 198 Kaliña and Lokono 179–83, 197–98, 209 Kalipunan ng mga Katutubong Mamamayan ng Pilipinas (National Alliance of Indigenous Peoples Organizations in the Philippines) (KAMP) 128, 190 KANO 180 Kelly, M. 32 King George III 132 Kingsbury, B. 16 Kinnison, A. 88–9 KITACO 121, 124 Koorndijk, J. 183 Knop, K. 50 Kuper, A. 14 Langton, M. 152 legal models 10–1, 17, 20–7, 33, 36, 38, 41, 44–5, 63, 65, 69, 71–2, 76–83, 87–91, 99–103, 118, 128, 154–6, 165–7, 178, 184–92, 205, 208, 211 legal performativity 16, 20, 33, 40–1, 159, 186, 208, 212, 220; as theatre 40; as non-voluntaristic 40

261

Lindroth, M. 101, 201 Lingiari, V. 133 Lixinski, L. 162, 164, 177, 181–3 Lorde, A. 217 Mabo cases 134 Machado, M. 206 Macklin, J. 140 Magellan 106–7 Malone, P. 150 Mansfield, S. Maori reoccupation of Bastion Point 51, 213 Marco, F. 109–10, 116–7 Martínez Cobo Report 54 McAvoy, T. 152 Merino, R. 216 Milchman, A. 32 Milirrpum v Nabalco Pty Ltd 133 Mindanao 18, 104, 108, 114, 116 Mining Act of 1995 (‘Mining Act’) 105, 111, 117–8, 120, 122, 175 Mining Minerals and Sustainable Development (MMSD) 71 Miskito 170–1 Mohanty, C. 12 Mohawk 39–40, 51 Molintas, J. 113 Motha, S. 136 Mudburra 133 National Commission on Indigenous Peoples (NCIP) 113–4, 128 National Native Title Tribunal (NNTT) 134, 139–42, 152–4 Native Title Act (NTA) 134–9, 144, 147, 152–6, 203; see ILUA; see RTN; native title 108–9, 112, 131, 134–44, 147–52, 156, 175, 191, 193; Native Title Amendment Act 1998 (1998 Amendments) 135–6, 138; as ‘Adani Amendment’ 153 neoliberal 15, 94, 97, 100–2, 106, 168–70, 184, 217, 220–1 New South Wales 132 Newcomb, S. 16 Nicaragua 161, 165–71, 174, 198 Niezen, R. 14 Non-Government Organization (NGO) 2–3, 6–7, 33, 36, 53–5, 58, 67, 70–7, 95, 103, 108, 117, 121–2, 127, 143–6, 151–2, 155, 160, 178, 186, 195–6, 200, 207

262

Index

Nordic Sami Council 52 Northern Atlantic Autonomous Region 166 Northern Territory 133 Norms on the Responsibilities of Transnational Corporation 71 O’Connell, P. 216–7 operationalization 17, 26, 68–9, 78, 84, 87, 91, 93, 99, 105, 126, 183–4 Organization of American States (OAS) 74, 157–61 Pahuja, S. 64, 70 Paraguay 184 People Power Revolution 110 performative methodology 11, 14–6, 42, 215; as performative approach 7, 21, 188, 192, 212; as performative contradiction 212–214, 221 Permanent Forum on Indigenous Issues (PFII) 3, 68, 83, 95 Peru 161, 216 Philippines 17–8, 79, 104–14, 117–23, 126–8, 156–7, 160, 171, 175–7, 183, 185, 190–5, 203, 207 prescriptive dialogue 61 Price, R. 177–8, 184 Principal Agreement (PA) 115–6 Puig, S. 89, 91 Puno, R. 110 Queensland 18, 130, 141–2, 148–9 re-occupation of Wounded Knee 51, 213 Regalian doctrine 107, 111, 117, 122 Registered Native Title Claimant (RNTC) 138–9, 152–3 ‘resource curse’ 96 Right to Negotiate (RTN) 105, 133, 135–41 Riley, A. 80–1, 98 Rio Declaration on Environment and Development 59, 180 Rosenberg, A. 32 Ruggie, J. 71–2 Sagittarius Mines, Inc (SMI) 117, 120–6 salt-water/blue-water thesis 46–7 same-sex marriage 193, 200 Sandbrook, R. 70–1 Sanders, D. 52

Saramaka v Suriname 159, 171–79, 182–4, 190, 198 Saramaka 171–78, 183–4, 197–8, 209 Schax, A. 125 Scheper, C. 125 secession 49, 55, 63, 65, 85–6 self-determination 1–7, 11, 15–22, 25–6, 32–3, 45–50, 54–6, 61–5, 68–9, 72–5, 78, 84–8, 92–8, 101–2, 119, 128, 135, 142–7, 151–3, 163–5, 172, 176–8, 188–92, 197, 203, 207–11, 214; internal vs external 62–5, 85–7, 96–7, 147 ‘service contracts’ 110, 117 Sikkink, K. 94 Simpson, L. 217–9 Sinevaara-Niskanen, H. 201 Sissons, J. 204 slippage 21, 36–7, 120, 152, 212, 220 Smith, J. 107, 116 soft law 17, 45, 68–75, 78–83, 95 Special Rapporteur on the Rights of Indigenous Peoples 68, 74–5, 89, 95, 118–9, 146, 153, 176, 182, 195, 200–1 speech-act theory 34–5 ‘spirit’ 118, 120, 122, 128, 190 Statement of Forest Principles 59 Stavenhagen, R. 75–6, 81–2, 118–22, 168–9, 176; as Rapporteur 75–6, 118–22, 176 ‘Stop Adani’ 143 Sub-Commission on Prevention of Discrimination and Protection of Minorities 53–4 Sub-Commission on the Promotion and Protection of Human Rights 55, 71 subjectification 7, 31–2, 35–6, 43, 45, 52, 119, 174, 195–7, 206, 211 subsidiary 162, 165, 177, 182, 198 sui generis 80 Sunrise Project 143, 151, 154–5 Suriname 171–83, 198 Tampakan Gold-Copper Project (‘Tampakan mine’) 18, 104–5, 108, 111, 114–21, 126–7, 131, 194 Tan, A. 117 Tauli-Corpuz, V. 146–7, 153; as Rapporteur 146–7, 153 technology of self 32, 38, 52, 143, 205, 214 terra nullius 134 territorial integrity clause 49, 63, 85

Index The Australian 149, 151, 197 The Guardian 151, 155 Third World approaches to international law (TWAIL) 92 Thornberry, P. 67 Thornhill, C. 15 ‘tipping point’ 92, 94–5, 101 traditionalism see essentialism Turnbull, M. 149 UK Joint Committee on Human Rights 121 UN Charter 46, 49 UN Commission on Human Rights 65, 68, 71 UN Declaration on the Rights of Indigenous Peoples see Declaration on the Rights of Indigenous Peoples UN Development Programme (UNDP) 67–8, 74 UN General Assembly 43, 47, 49, 53, 55, 65, 73, 83, 95, 119, 159, 176 UN Guiding Principles on Business and Human Rights 72 UN Permanent Forum on Indigenous Issues (PFII) 3, 68, 83, 95 United Kingdom (UK) 121–2 United Nations (UN) 3, 5, 14, 36, 39, 43, 46–9, 53–74, 81–2, 89, 95, 118–9, 136, 146, 155–6, 159, 176, 182, 195–7 200–2 United States (US) 5, 47, 51–2, 73, 84, 97, 107, 109, 131, 146, 158, 161, 207 Universal Declaration of Human Rights (UDHR) 43, 47, 81 University of Queensland’s Global Change Institute 151 US Supreme Court 108–9

‘vigilante litigation’ 148, 196 ‘lawfare’ 148, 196 Villalobos, R. 107 Villanueva, R. 125 voluntary initiatives 45, 58, 70–4, 82, 95, 121, 141 Wangan and Jagalingou (W&J) 18, 38, 130–1, 141–56, 196–7, 203 Family Council 18, 38, 130–1, 141–56, 174, 185, 190–1, 196–7, 203, 207, 209 Warlpiri 133 Watson, I. 16, 216 Wave Hill 133 Western Mining Corporation (‘Western’) 114–8 White, I. 149–50, 197 Wicks, C. 119–20 World Bank Group (WBG) 57–8, 67, 70, 74, 169, 191 World Council of Indigenous Peoples (WCIP) 52–5 World People’s Conference on Climate Change 39 Working Group on Indigenous Populations (WGIP) 55–62, 65–6, 69, 136, 207 Working Group on Mining in the Philippines 121 Working Group on the Draft Declaration (WGDD) 65–6, 73, 85, 87 Working Group on Transnational Corporations 71 Xanthaki, A. 200 Xstrata 121, 125–7 Glencore 126–7 Yirrkala 133

Vienna Declaration and Programme of Action (1993) 63

263

Zivi, K. 187–8, 193