From Individual to Collective Consent: The Case of Indigenous Peoples and undrip

2019 ◽  
Vol 27 (2) ◽  
pp. 251-269
Author(s):  
Richard Healey
Keyword(s):  
Decision Making ◽  
Informed Consent ◽  
Indigenous Peoples ◽  
Indigenous Communities ◽  
The State ◽  
Self Determination ◽  
Sexual Ethics ◽  
The Third ◽  
Collective Decisions

Much of the debate around requirements for the free, prior, and informed consent of indigenous peoples has focused on enabling indigenous communities to participate in various forms of democratic decision-making alongside the state and other actors. Against this backdrop, this article sets out to defend three claims. The first two of these claims are conceptual in nature: (i) Giving (collective) consent and participating in the making of (collective) decisions are distinct activities; (ii) Despite some scepticism, there is a coherent conception of collective consent available to us, continuous with the notion of individual consent familiar from discussions in medical and sexual ethics. The third claim is normative: (iii) Participants in debates about free, prior, and informed consent must keep this distinction in view. That is because a group’s ability to give or withhold consent, and not only participate in making decisions, will play an important role in realising that collectives’ right to self-determination.

The Right to Self-Determination under the Ethiopian Constitution: A Legal Tool for Indigenous Peoples’ Protection against Land Alienation?

2019 ◽  
Vol 63 (3) ◽  
pp. 359-383
Author(s):  
Tilahun Weldie Hindeya
Keyword(s):  
Decision Making ◽  
Indigenous Peoples ◽  
Indigenous Communities ◽  
Self Determination ◽  
Land Resources ◽  
Discretionary Power ◽  
The People ◽  
Constitutional Right ◽  
The Government ◽  
The Right

AbstractSince 2008 the Ethiopian government has allocated vast tracts of land, particularly in the Gambella and Benishangul-Gumuz regions, to agricultural commercial actors with little or no participation from indigenous communities. The marginalization of indigenous peoples in this process primarily emerges from the government's very wide legislative discretionary power regarding decision-making in the exploitation of land. The government has invoked constitutional clauses relating to land ownership and its power to deploy land resources for the “common benefit” of the people, to assert the consistency of this discretionary power with the Ethiopian Constitution. This article posits that the legislative and practical measures taken by the government that marginalize these indigenous peoples in decisions affecting the utilization of land resources are incompatible with their constitutional right to self-determination. Further, it posits that the government's use of the constitution to justify its wide discretionary power in the decision-making process relating to land exploitation is based on a misreading of the constitution.

Enhancing the Participation of Indigenous Peoples at the Intergovernmental Level to Strengthen Self-Determination: Lessons from the Arctic

2018 ◽  
Vol 87 (1) ◽  
pp. 26-55
Author(s):  
Dorothée Cambou
Keyword(s):  
Decision Making ◽  
Indigenous Peoples ◽  
State Level ◽  
The State ◽  
Regional Level ◽  
Self Determination ◽  
The Arctic ◽  
Policy Goal ◽  
The Future ◽  
The Right

With a focus on the right of indigenous peoples to self-determination, and an eye on Arctic practices, this article analyses the right of indigenous peoples to self-determination and its exercise at the intergovernmental level. While the exercise of self-determination necessarily implies the right of indigenous peoples to autonomy in their internal and local matters and their involvement in decision-making at the state level, this article argues that self-determination additionally includes the right of indigenous peoples to be represented and to participate in the international arena: the intergovernmental aspect of self-determination. Although this analysis determines that it is yet too early to indicate the existence of a fully-fledged right, this article also evidences that there is a new policy goal at the un level, accompanied by practices at the arctic regional level, which could support the emergence of such a right in the future.

scholarly journals Settler Colonial Pseudo-Solidarity: Indigenous Peoples and the Occupy Movement in Canada

2017 ◽  
Vol 2 (2) ◽  
pp. 20-24
Author(s):  
Evan MacDonald
Keyword(s):  
Decision Making ◽  
Social Justice ◽  
Indigenous People ◽  
Indigenous Peoples ◽  
Indigenous Communities ◽  
Self Determination ◽  
Occupy Movement ◽  
Decision Making Processes ◽  
Indigenous Voices

As a reaction to neoliberalism, the Occupy movement in Canada presents a radical argument for a just economy. However, it does not engage in any meaningful way with decolonization. Through settler moves to innocence — equating the struggles of indigenous people within colonization with the plight of settlers — Occupy fails to support the cause of indigenous self-determination. Without both effectively centering decolonization within a social justice cause and including indigenous voices within decision-making processes, there can be no long-lasting solidarity created between progressive settlers and indigenous communities. Neoliberalism as a modern face of colonialism is a worthy target of social justice action, but the negation of settler history and treaties provide a roadblock to solidarity. The process of decolonization asks the settler to accept less, but the rhetoric of Occupy focuses on reclaiming wealth and resources that have been seized from their natural owners: working Canadians. The colonial attitudes of most Occupy camps in Canada have resulted in a breakdown in potential alliances, and provide a warning for the next universalizing social justice cause.

Economic Development through Treaty Reparations in New Zealand and Canada

2018 ◽  
Vol 33 (01) ◽  
pp. 61-83 ◽  
Author(s):  
Myra J. Tait ◽  
Kiera L. Ladner
Keyword(s):  
Economic Development ◽  
New Zealand ◽  
First Nations ◽  
Indigenous Communities ◽  
The State ◽  
Self Determination ◽  
Legal Analysis ◽  
Treaty Of Waitangi ◽  
Socio Economic Development ◽  
Law Making

AbstractIn Canada, Treaty 1 First Nations brought a claim against the Crown for land debt owed to them since 1871. In 2004, Crown land in Winnipeg became available that, according to the terms of the settlement, should have been offered for purchase to Treaty 1 Nations. Similarly, in New Zealand, the Waikato-Tainui claim arose from historical Crown breaches of the 1840 Treaty of Waitangi. In 1995, a settlement was reached to address the unjust Crown confiscation of Tainui lands. Despite being intended to facilitate the return of traditional territory, compensate for Crown breaches of historic treaties, and indirectly provide opportunity for economic development, in both cases, settlement was met with legal and political challenges. Using a comparative legal analysis, this paper examines how the state continues to use its law-making power to undermine socio-economic development of Indigenous communities in Canada and New Zealand, thereby thwarting opportunity for Indigenous self-determination.

New Help or New Hegemony? The Transnational Indigenous Peoples' Movement and ‘Being Indian’ in El Salvador

2002 ◽  
Vol 34 (3) ◽  
pp. 525-554 ◽  
Author(s):  
VIRGINIA Q. TILLEY
Keyword(s):  
European Union ◽  
El Salvador ◽  
Indigenous Peoples ◽  
Indigenous Communities ◽  
Political Authority ◽  
The State ◽  
The Political ◽  
The European Union ◽  
Indigenous Activism ◽  
Political Leverage

The transnational indigenous peoples' movement (TIPM) can convey important political leverage to local indigenous movements. Yet this study exposes a more problematic impact: the political authority gained by funding organisations who interpolate TIPM norms into new discourses regarding indigeneity, and deploy that discourse in local ethnic contests. In El Salvador the TIPM has encouraged the state to recognise the indigenous communities and has opened a political wedge for indigenous activism. Yet TIPM-inspired programmes by the European Union and UNESCO to support indigenous activism paradoxically weakened the Salvadorean movement by aggravating outside impressions that Salvadorean indigenous communities are ‘not truly Indian’.

scholarly journals Evolving Legal Protections for Indigenous Peoples in Africa: Some Post-UNDRIP Reflections

2018 ◽  
Vol 26 (3) ◽  
pp. 339-365
Author(s):  
Derek Inman ◽  
Dorothée Cambou ◽  
Stefaan Smis
Keyword(s):  
Human Rights ◽  
Informed Consent ◽  
Indigenous Peoples ◽  
Regional Level ◽  
Self Determination ◽  
African Continent ◽  
African Context ◽  
United Nations Declaration ◽  
Human Rights Norms ◽  
The Right

Prior to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) many African states held a unified and seemingly hostile position towards the UNDRIP exemplified by the concerns outlined in the African Group's Draft Aide Memoire. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the aforementioned Draft Aide Memoire and highlight how these concerns have been addressed at the regional level, effectively changing how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. The purpose of this article is to do just that: to examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa and how indigenous peoples' right to free, prior and informed consent has been interpreted at the regional level.

Autonomy and Paternalism

1982 ◽  
Vol 8 ◽  
pp. 47-66 ◽  
Author(s):  
Robert Young
Keyword(s):  
Decision Making ◽  
The State ◽  
Self Determination ◽  
Adult Individual ◽  
Voluntary Consent ◽  
Human Autonomy

Paternalism has generally been thought of as forcible or coercive interference with a person's liberty of action which is (believed to be) justified because it will prevent harm to that person's welfare interests or the like. Opposition to paternalistic interference with adults, whether it involves the intervention of the state (legal paternalism) or another adult individual, has usually been based on a concern to preserve human autonomy or self-determination. More strictly it is opposition to so-called ‘strong’ paternalism - interventions to protect or benefit a person despite the person's informed voluntary consent to the contrary- which has been grounded on such a commitment to self-determination. ‘Weak’ paternalism involves interference where there is (or is believed to be) a defect in the decision-making capacities of the person interfered with (or to ascertain whether the person's behaviour is fully reflective). It is claimed to be justifiable insofar as consent to the interference would be forthcoming were these capacities restored.

scholarly journals The Duty to Consult the Sámi in Norwegian Law

2020 ◽  
Vol 11 (0) ◽  
pp. 233
Author(s):  
Øyvind Ravna
Keyword(s):  
Decision Making ◽  
Informed Consent ◽  
International Law ◽  
Indigenous Peoples ◽  
General Review ◽  
Decision Making Processes

This article deals with the duty to consult indigenous peoples and the obligation to involve these peoples in decision-making processes in matters that concern them. After a general review of international legislation and obligations, particularly the ILO Convention no. 169 on Indigenous and Tribal Peoples, the article focuses on how these obligations are implemented towards the indigenous Sámi in Norwegian law. Here, the consultation agreement from 2005 and the Sámi Rights Committee’s 2007 draft are still central. The review includes an analysis of the extent to which these duties meet international law requirements, and a deliberation on the concept of free, prior and informed consent.

‘Voluntary’ and ‘involuntary’ child welfare: Challenging the distinction

2016 ◽  
Vol 18 (3) ◽  
pp. 253-272 ◽  
Author(s):  
Tarja Pösö ◽  
Elina Pekkarinen ◽  
Susanna Helavirta ◽  
Riitta Laakso
Keyword(s):  
Decision Making ◽  
Informed Consent ◽  
Child Welfare ◽  
Critical Points ◽  
Family Life ◽  
Self Determination ◽  
Involuntary Care ◽  
Decision Making System

Summary Finnish child welfare divides care orders into voluntary and involuntary care orders, based on the consent or objection of different parties. When giving consent to a care order, the parties allow their rights to family life and self-determination to be restricted. This article examines how the voluntary care order differs in practice from the involuntary one and how voluntarism and involuntarism are represented in these two types of care order. Findings The analysis of 37 care orders highlights different shades of voluntarism and involuntarism as well as formal and informal spheres of consent and objection. The binary distinction between voluntarism and involuntarism becomes problematic. Instead, new forms and arenas for consent and objection, e.g., resistance, become topical in child welfare. Applications The spectrum of voluntarism and involuntarism should be recognised in every type of child welfare. The study points out several critical points in the dual decision-making system in Finland, in particular informed consent.

scholarly journals "Anishinaabe time": temporalities and impact assessment in pipeline reviews

2020 ◽  
Vol 27 (1) ◽  
Author(s):  
Sakihitowin Awasis
Keyword(s):  
Decision Making ◽  
Political Ecology ◽  
Indigenous Communities ◽  
Self Determination ◽  
Kinship Relations ◽  
Decision Making Processes ◽  
The Rich ◽  
Temporal Modes ◽  
Indigenous Geographies ◽  
And Function

Indigenous ways of living that embrace multiple temporalities have been largely supplanted by a single, linear colonial temporality. Drawing on theoretical insights from Indigenous geographies and political ecology, this article considers how pipeline reviews come into being through contested temporalities and how dominant modes of time dispossess Indigenous peoples of self-determination in energy decision-making. In particular, Anishinaabe clan governance – a form of kinship that provides both social identity and function based on relations to animal nations – is undermined in colonial decision-making processes. Through analysis of documents from Canada's National Energy Board and interviews with Anishinaabe pipeline opponents, I explore tensions between Anishinaabe and settler temporalities reflected in the 2012-2017 Line 9 pipeline dispute in the Great Lakes region. These include divergent understandings of periodicities, timeframes, kinship relations, and the role of nonhuman temporalities in decision-making. Colonial temporal modes that have been imposed on Indigenous communities foreshorten timescales, depoliticize kinship relations, and discount nonhumans in decision-making – resulting in narrower and more short-sighted project reviews than Anishinaabe temporalities would support. I argue that the rich concepts of kinship, queerness, continuity, and prophecy embedded in Anishinaabe temporalities can inform strategies for decolonizing energy review processes and open possibilities for Indigenous self-determination in energy decision-making.Keywords: Anishinaabe studies, Two-Spirit, Indigenous geographies, temporalities, Indigenous knowledge, energy governance, pipeline, National Energy Board

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