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Abstract
Free, prior and informed consent (FPIC) is an internationally recognised right of Indigenous peoples. FPIC appears to provide Indigenous peoples with the ability to choose how non-Indigenous decisions will influence them, make choices about how to self-govern, develop their culture, economies, territories, and otherwise exist. Under this view, Indigenous peoples are natural subjects who wield a sovereign-juridical power that can be used to control and oppose states and natural resource developments. This thesis challenges that view. It argues those who maintain that view adopts to perpetuate a legal model of power, which leads to an overestimation what FPIC can achieve and an underestimation what it takes to be identifiable as an FPIC claimant.
This thesis contributes to the discourse on Indigenous peoples and international law through a methodology called legal performativity. Legal performativity borrows from Michel Foucault’s approach to discourse and power and Judith Butler’s approach to performativity. A method based on legal performativity excavates the emergence of Indigenous peoples, how FPIC claimants become identifiable as Indigenous peoples, as well as some effects of claiming FPIC. There may be multiple uses of the signifier ‘Indigenous peoples’ and FPIC may be one part of a multi-pronged strategy of resistance. However, to be identifiable as an FPIC claimant requires claimants to performatively enact as Indigenous peoples – a subjectivity that emerged from and uses power as a subject of the international legal discourse.
Rather than viewing Indigenous peoples as natural subjects who use the law to protect their freedoms, this thesis follows Michel Foucault’s and Judith Butler’s conceptions of freedom, agency and subjectivity. Claiming FPIC is an expression of claimants’ freedom, agency and self-determination which is also disciplined, limited, and regulated by the discourse of international law. Those who advocate for greater recognition of Indigenous peoples’ rights and FPIC, without appreciating how FPIC claimants become identifiable as Indigenous peoples and the effects of performatively claiming rights, further naturalise the presupposed foundational structures of empire and colonialism without so intending. As a diagnostic project, the questions raised in this thesis can facilitate strategic re-iteration of Indigenous peoples’ FPIC for insurrectionary or perhaps emancipatory projects.