Introduction
Indigenous peoples worldwide experience great tensions with extractive industries over resources and territories. Such tensions over large industrial projects are not new. Modern history is filled with stories of intrusion, dispossessed lands and destroyed possibilities for pursuing traditional economies and cultures. The current argument is that the pressure is increasing, conflicts are becoming more intense and extending to new and promising areas (such as the Arctic) and including new industries (such as renewable energy and aquaculture).
If not entirely disputed, this view is at least modified by those arguing that Indigenous peoples have got better rights and have become more equal partners through participation and sharing resources. The new instruments developed internationally by market actors or government bodies make it possible to deal with the often stalemate relationship between Indigenous groups and industries (Owen and Kemp, 2017). The gradual recognition of Indigenous peoplesâ rights includes participation in decision-making by states, direct negotiations with companies and possible economic benefits for Indigenous groups (OâFaircheallaigh, 2013, 2016).
Indigenous groups used to manage the pressure on land and other resources by appealing to state authorities with the expectation that the government would have resources to challenge industrial projects and companies and adopt necessary legal regulations to protect traditional Indigenous livelihoods. As the main actors in the international arenas, governments are also responsible for implementing international law in domestic settings. However, statesâlike big companiesâhave a dubious reputation among Indigenous peoples and are not always seen as the best protector of their rights and heritage.
Indigenous peoples take different roles in the life course of industrial projects. In their cooperation with the state and big companies, they are likely to face conflict and heated discussions over resources and the right to participate. What are the roles, then, that Indigenous peoples can assume, and are they co-opted victims rather than real participants? New regulations, whether created by the market or international law, leave room for Indigenous agency, but what kind of agency is it? As large projects will remain on the agenda and conflicts are bound to emerge, how can Indigenous peoples deal with the situation?
Awareness of these issues was on the rise at the Centre for Sami Studies at UiT The Arctic University of Norway some ten years ago. The attention was formalized in the Focal Point North project funded by the Ministry of Foreign Affairs. The project introduced students to increasing conflicts over natural resources in the Circumpolar North. It also enabled networking among researchers and made it clear that resource extraction was a main driver impacting Indigenous rights to land and resources. Several adjunct professor positions were affiliated to FPN, including research professor Monica Tennberg, one of the editors of this book. An outcome of these networks and discussions was the project Arctic governance triangle: government, Indigenous peoples and industry in change (TriArc) which was funded by the Research Council of Norway.
The goal behind the TriArc project was to examine challenges between large industrial development projects and traditional uses of land and other natural resources, and to study the governance arrangements which were to regulate the relationship. Among the starting points was an observation of conflicts and challenges of legitimacy, but also cases where industries and Indigenous peoples had managed to find platforms for reciprocal cooperation. A question was how the development of new regulations and mechanisms worked, and if Indigenous peoples were included in the processes. The project members also wanted to analyze the ways in which Indigenous involvement in processes of natural resource development was guided by international and national political and legal realities, the behavior of various corporate actors and Indigenous peoplesâ own institutions. To what extent could we identify forms of governance that promoted Indigenous engagement with natural resource development and management?
The intent then was to study institutional solutions at the local level, to clarify whether decisions were decentralized and had an element of inclusion and participation, and ifâand howâframeworks at different levels (national or international) mapped out the development of the different institutions. In addition to studying the linkage between different levels, we aimed at a comparison between countries to grasp how different settings affected projects involving industry and Indigenous peoples.
The theoretical framework came from governance theory and the idea that governance processes involving actors in government (state), market and civil society could be illustrated in a (governance) triangle. We recognized that Indigenous peoplesâ governance was undergoing major changes: many premises were emerging from international processes and arenas, governments were increasingly including Indigenous institutions and organizations in decision-making, and there might be a move from governance by state (hierarchy and coordination) to other types of governance by market and civil society. The project defined civil society as local communities in general and Indigenous peoples as rights holders in particular. The use of several terms for market actorsâbusiness, company, business organizations, industriesâreflects the variety of actors and also the multidisciplinary approaches in the project.
The rest of this chapter is organized into three main parts. The first, on Indigenous governance, covers some of the main elements in the development of Indigenous rights during the last decades. The second part discusses Professor of Public Organization and Management Jan Kooimanâs governance theory, and the third section introduces the different case studies presented in this book.
Indigenous governance
A turn from definitive rights
According to legal scholar James Anaya (2004), Indigenous peoplesâ rights are part of the development of human rights after World War II, with a shift from individuals to rights for groups. While former colonies became new independent nation states, it was the framework of established nation states in which most Indigenous peoples had to secure their rights as peoples. Early attempts at recognition of Indigenous rights were characterized by one-way processes in the sense that rights were âgivenâ from the top, by state authorities. Another element was that the rights were considered as final and represented a definitive solution settling the relationship between the majority and minority groups.
Political theorist James Tully (2004), however, postulates that there has since been a change, a turnaround where rights develop in stagesâand that they are fluid and changing in the midst of societal processes. When a group receives recognition, others will mobilize to oppose this or to achieve rights themselves. This can lead to a decline, but also to a gradual and continuous development and extension of rights. Furthermore, the processes are characterized by interaction: rights are not granted from above, but are developed in various forms of dialogue between actors so that those who fight for recognition are also involved (Tully, 2004). Such an understanding implies that other types of processes are required to ensure legitimacy, that the legitimacy of rights can be challenged, and that rights and institutions will undergo changes so that, for example, the content of self-determination will change.
Tullyâs point can be perceived to apply within a nation state through, for instance, political decision-making and court decisions. At the same time, increased activity in international arenas and the development of rights by international organizations is also a dynamic feature. In the United Nations, Indigenous peoplesâ rights are interpreted and reinterpreted by committees, which have created new premises in the domestic discussions of rights.
Turning to multilevel governance
For decades, Indigenous peoples from different parts of the world have worked to develop alliances, with researchers as key players, to gain recognition. Central issues were related to self-determination, protection of culture and to securing the basis for traditional industries. The most prominent of these processes led to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007. While the declaration is not binding on individual states, it is nevertheless important given the strong support by the UN and is valued as an important symbol of the recognition of Indigenous peoplesâ position.
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was in 2007 seen as a landmark in the work to strengthen the role of Indigenous peopleâs vis-Ă -vis the government and to define important means for self-determination. The Indigenous and Tribal Peoples Convention (ILO Convention No. 169) and the International Covenant on Civil and Political Rights (ICCPR), in particular Article 27, also have a significant bearing on the premises for Indigenous peoplesâ rights. These conventions and declarations illustrate the efforts made by Indigenous peoples to âseek justice in international lawâ (Barelli, 2016).
International law can be loosely linked to nation states and the policies they choose to pursue. A distinctive feature of the Indigenous sphere is a clearer institutionalization of governance that binds different institutional levels and institutions together. One is a political dimension, with an emphasis on participation and involvement. The UN is a central arena where Indigenous peoples can meet: not only are they members of nationsâ delegations, but they also meet as independent (Indigenous) peoples, as is the case in the UN Permanent Forum on Indigenous Issues (Dahl, 2012). A parallel development has led to the establishment of other forums that strengthen the legal aspects through monitoring and development of guidelines for international conventions and declarations. This gives Indigenous peoples a stronger position than if the implementation were left to nation states alone.
Clarifications and interpretations are not without significance. It is through international work that Indigenous peoplesâand nation statesâhave agreed on key mechanisms for their involvement. Based on the premise that Indigenous peoples are equal âpeoples,â the point of consultations and schemes such as âfree, prior and informed consentâ (FPIC) is to ensure that Indigenous peoples have the opportunity to exert real influence. Consultations signify a breach of traditional hierarchical management and entail that the authorities give Indigenous peoples a genuine opportunity to participate in decisions that affect them. Also, consultations âshall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measuresâ (ILO C169, Article 6.2). Consultations take place between two peoples: Indigenous peoples and the majority peoples represented by the state.
Consultations are an important tool in the UN Declaration on the Rights of Indigenous Peoples too, and although the declaration is non-binding, the geographical scope is larger than ILO-C 169 (1989), which has been ratified by relatively few countries. The description of consultations primarily points to the responsibility of states to facilitate and implement, and the implications are not necessarily easy to detect. The principle of FPIC is more visible, more easily understood, and has to a greater extent than consultations emerged as a visible signal of the necessary premises for the involvement of Indigenous peoples in decision-making. So, in addition to governmental processes, FPIC has gained access to business organizations and, for example, environmental groups.
Implementation gap and local variations
The clear focus on international processes and arenas suggests standardization and equality between Indigenous peoples in different parts of the world, but the actual situation is different. While it is true that several states have implemented consultation schemes, Indigenous peoplesâ opportunities to participate and influence differ a great deal (Pirsoul, 2019). The UN Declaration on the Rights of Indigenous Peoples is admittedly highlighted as a central premise and requires domestic implementation, but real changes are easily counted, and efforts for implementation have been met with critique and opposition. Moreover, even if Indigenous peoplesâ rights are linked to developments in human rightsâthemselves widely supportedâthere is a considerable gap between any awareness and real support. The status of Indigenous peoplesâ rights in Sweden, for example, has been described as âorganized hypocrisyâ (Mörkenstam, 2019), nor have the Nordic countries been able to agree on a joint SĂĄmi convention.
An important point in all of this is that the implementation of Indigenous peoplesâ rights that does take place varies significantly, and a range of actors have assumed leading roles in such implementation. Such variation stems from the different institutional features of the nation states, where there may be clear differences between unitary states such as Norway, Sweden and Finland and federal states such as Australia and Canada. In federal states, courts have played an important role in promoting implementation of Indigenous peoplesâ rights, while political processes have so far been the central path in the Nordic countries. Perhaps this is about to change through new court processes and decisions, as recent rulings in Sweden have demonstrated. At the same time, there are also differences in the legal and institutional position of Indigenous peoples. In contrast to the Nordic countries, for example, Canadian Indigenous peoples have had better control over territories through agreements with the authorities and security from the courts. In combination with the federal structure, this has facilitated land claim agreements unlike unitary states without local resource control.
Business and human rights
The business community is increasingly being challenged to respect human rights, and this is important in the context of Indigenous peoples too. The use of FPIC in business guidelines is an example (Wilson, 2016), but similarly relevant are corporate social responsibility (CSR) and social license to operate (SLO). Corporate social responsibility refers to companiesâ own ethical guidelines and principles to which adherence is expected, while SLO has a dynamic element in that businesses establish a relationship with local communities in order to gain acceptance for their operations. The degree of acceptance can v...
