"Another one bites the dust And another one gone and another one gone"

Last week the Chilean Supreme Court held a verdict in favor of a Huilliche-Mapuche community . The community was trying to stop the company Ecopower from building 56 wind turbines on the island of Chiloé under the grounds (inter allia) that they were never effectively consulted about the project. Moreover, they argued that the said project would have a negative effect on Mapuche ceremonial sites and burial grounds.

The Supreme Court agreed that consultation had not occurred and ordered the company to stop the project until consultation has been done.

Here we can notice several arguments based on the International Labor Organization’s Convention 169 (ILO 169). Firstly, the right that indigenous peoples be consulted about development projects that directly affect them (Art 6). Secondly, according to the Mapuche community the project will affect their cultures and spiritual values – a violation on Art 13.

Chile ratified ILO 169 in 2008 and recently we posted a similar decision hold by Temuco Appeals Court regarding the same situation: indigenous peoples no being consulted in projects that may affect them.

Yet, the defendants argued that COREMA (the Regional Environmental Commission) approved the environmental impact study and so allowing the wind farm project to move forward. Moreover, it is also argued that COREMA held meetings and invited citizen participation to occur before reaching its final decision. However, the Huilliche community argued that because such consultation did not occur when it was supposed to. The Supreme Court agrees with the Mapuche community establishing that “COREMA’s actions did not amount to meaningful consultation with the Huilliche community, in part because even if the community had fully participated in such meetings they still lacked any meaningful opportunity to influence how the project would ultimately move forward.”

The title today comes from the song 'another one bites the dust' written by John Deacon and sung by Freddie Mercury...that was the feeling I got. The message that the Chilean courts are sending is pretty clear: listen and learn (but mostly consult with the right people!)

Wide Open Spaces

can you see me?

Plenty of people find London to be an invigorating and energetic space. New York is known as the “city that never sleeps”—a place that is busy and buzzy and on the go with a frenetic atmosphere that has given rise to the phrase, “ A New York minute”. And so on with many urban environments that people find satisfying and enlivening. Not me. I can think of nothing more dehumanising than the crush of humanity in a London rushhour- people filing up and down stairs in robotic fashion, crushed into the sealing cases of the underground. Me—I like wide open spaces.

In the still nascent literature on the new dawn of indigenous rights, certain mantras of prescription abound on how not to approach the writing. Do not paternalise or essentialise and do not treat cultures as if they are frozen in time. But that leaves wide open how effective academic scholarship on indigenous rights ought to be approached—and perhaps it is best that there is no prescription on what must be included. There are much debated paradigms after all on the way any law should be approached—no shortage of debate on positivism, natural law, new natural law, constructivism, legal realism, new legal realism, just for starters. If indigenous rights knock on the door of legal pluralism, then there is a entire debate that can be had on the nature of legal pluralism. So just where indigenous rights fit into the panoply of choices on how to discuss law remains—at least right now—a wide open space. And wide open spaces are energising, full of room to discover, do not require falling lock-step into a dreary queue of humanity only going through the motions. So it is that indigenous scholarship gets all the advantages ( and disadvantages if there are any) of being at least in academic discussion terms, a wide open space.

There are other academic wide open spaces, but people are not flocking to them with the enthusiasm that they do with indigenous issues. Whiteness, for example, is not an area where you see scholars racing in any great numbers. Ruth Frankenberg wrote about whiteness, some years back, saying, “whiteness is a location of structural advantage, of race privilege. Second, it is a “standpoint”, a place from which white people look at ourselves, others, and at society. Third, “whiteness” refers to a set of cultural practices that are usually unmarked and unnamed."

Perhaps a legal positivist would reject the notion of whiteness as having any bearing on how someone approaches their writing on indigenous rights. But coming from a constructivist view point, of course, the position that I come from is relevant to me—it informs my own writing. And if I take on board what Frankenberg says about whiteness, then I am writing from a place of privilege and from a place that does not name and recognise its own cultural practices when I try to write on indigenous matters. The question is, then, from such a place is it possible to not have strands (even if unwanted and guarded against) of paternalism, colonialism and essentialism in writing on indigenous matters? And if not possible to avoid these despite conscious efforts to do so, how then to approach writing on whiteness, law, indigenous matters? That discussion by itself generates plenty of wide open space. So far as I can tell it has never been had.