Indigenous Peoples, Consent and Rights

Troubling Subjects

Stephen Young

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9780367344627
• eBook ISBN:
  9781000752656
• Topic: Derecho
• Subtopic: Derecho civil

Analysing 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 problematises the subject-status of those who claim Indigenous peoples' rights and the role of scholars, institutions, NGOs and others in producing that subject-status. 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.

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

1 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).

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 what, and when it will qualify as proper knowledge’.⁹ To understand the rules of discursive knowledge production, one must consider historical events.¹⁰

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.

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.

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 discourse and discipline to the modalities of power that Foucault articulated in his genealogical period is important here.

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.

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 t...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• List of abbreviations
• Introduction
• 1. Troubling subjects
• 2. The emergence and naturalization of Indigenous peoples in international legal discourse
• 3. Defining performances The problems and promise of FPIC
• 4. FPIC as national legislation: The Philippines, the B’laan and theTampakan Mine
• 5. FPIC as international human rights law: Australia, the Wangan and Jagalingou, and the Carmichael Mine
• 6. FPIC as regional human rights law: The Inter-American Court of Human Rights and Indigenous peoples
• 7. The legal performativity of FPIC
• 8. Insurrectionary ends?
• Bibliography
• Index