3 - In the Shadows of the Operational Development Project

Summary

Having defined the field, Chapter 3 critically analyses the surrounding contemporary formal legal framework for indigenous peoples’ land rights that speak to development projects. This chapter examines jurisprudential strands and structural gaps such as poor accountability of private actors and the fragmented due diligence in this field. Emerging from this analysis are identifiable themes that matter for rights in development project contexts. The point is to assess the existing coping strategies of formal law in this setting, to give hard law context to the private mechanisms explored and to appreciate judicial and non-judicial mechanisms as part of an ecosystem of remedies in this field. The chapter asks why, despite the array of indigenous rights cases and legal declarations, international and domestic norms rarely pierce the highly regulated veil of private mechanisms that secure a transnational development project – failing to work as a legal threat. Whilst later chapters illustrate other reasons such as power and short-term behaviour that contribute to law’s overshadowing, my aim here is to show how the law endogenously contributes to insecurity for indigenous communities in development contexts.