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A Political Ecology of Sovereignty in Practice and on the Map: The Technicalities of Law, Participatory Mapping, and Environmental Governance

Published online by Cambridge University Press:  24 July 2014

TYLER MCCREARY  and
VANESSA LAMB
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Abstract

This article examines the relationships between representations and operations of sovereignty in natural resource governance. We advance a ‘political ecology of sovereignty’, examining the participation of non-state actors in resource governance processes. We particularly argue that processes of integrating subaltern populations through mapping local ecological knowledge can modify effective governance practices while nonetheless reproducing the legibility of state sovereign authority and its territorial boundaries. Exploring the Enbridge Northern Gateway pipeline in Canada, we suggest that state jurisdictional authority is secured through incorporating indigenous interests as a delimited geography of tradition. Examining the Hatgyi hydroelectric development along the Thai–Burmese border, we argue that the territorial boundaries of those nation-states are rearticulated through the governance of this transboundary development. Through these cases, we demonstrate how the insertion of local knowledge works not only to reconfigure effective governance processes but also to reinforce the effect of state sovereignty in new ways.

Keywords

natural resource governanceparticipatory mappingpolitical ecologysovereigntytechnicalities of law
Type
INTERNATIONAL LEGAL THEORY: Symposium: Locating Nature
Information
Leiden Journal of International Law , Volume 27 , Issue 3 , September 2014 , pp. 595 - 619
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

1 We borrow this imagery from M. Biggs, ‘Putting the State on the Map: Cartography, Territory, and European State Formation, (1999) 41 CSSH 374.

2 Ibid., at 374.

3 Ibid.

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5 There is, however, an informative discussion of the role of maps in international law, and particularly the problems associated with the continued use territorial boundaries mapped through processes with suspect legitimacy in the present (colonial cartographies, Soviet administrative geographies, etc.). See, especially Mutua, M., ‘Why Redraw the Map of Africa: A Moral and Legal Inquiry’, (1995) 16 Mich J Intl Law 1113Google Scholar; S. R. Ratner, ‘Drawing a Better Line: Uti Possidetis and the Borders of New States’, (1996) 90 AJIL 590; V. Nesiah, ‘Placing International Law: White Spaces on a Map’, (2003) 16 LJIL 1.

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8 See Pahuja, supra note 6, at 402.

9 Resolution on Permanent Sovereignty Over Natural Resources UN Doc. A/RES/1803 (XVII) (1962). There is, of course, a complex relationship between this principle and investor rights protections that is beyond the scope of this article. See Anghie, supra note 7; Hossain, K. and Chowdhury, S. R. (eds.), Permanent Sovereignty over Natural Resources in International Law: Principle and Practice (1984)Google Scholar; N. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (1997).

10 See Fox, G. H., ‘The Right to Political Participation in International Law’, Yale J. Int’l L. 17 (1992) 539Google Scholar; Chambers, R., ‘The Origins and Practice of Participatory Rural Appraisal’, (1994) 22 World Dev 953CrossRefGoogle Scholar; S. Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (2003).

11 See Torres, R., ‘The Rights of Indigenous Populations: The Emerging International Norm’, (1991) 16 Yale J Int’l L 127Google Scholar; Y. Henderson, Indigenous Diplomacy and the Rights of Peoples: Achieving UN Recognition (2008).

12 See O’Faircheallaigh, J. C., ‘International Recognition of Indigenous Rights, Indigenous Control of Development and Domestic Political Mobilisation’, (2012) 47 Aust J Polit Sci 531CrossRefGoogle Scholar. In Canada this push has been extensively litigated domestically in relation to a fiduciary obligation of the government to consult indigenous peoples – see D. Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (2009); Sossin, L., ‘The Duty to Consult and Accommodate: Procedural Justice as Aboriginal Rights’, (2010) 23 CJALP 93Google Scholar.

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17 See Braun, B. and Castree, N. (eds.), Remaking Reality: Nature at the Millennium (1998)Google Scholar; Tsing, A., ‘Becoming a Tribal Elder, and Other Green Development Fantasies’, in Li, T. (ed.), Transforming the Indonesian Uplands: Marginality, Power and Production (1999), 159Google Scholar; T. Forsyth, Critical Political Ecology: The Politics of Environmental Science (2002); T. Li, The Will to Improve: Governmentality, Development, and the Practice of Politics (2007).

18 T. Forsyth, Critical Political Ecology (2003); P. Robbins, Political Ecology: A Critical Introduction (2012); P. Vandergeest and R. Roth, ‘A Southeast Asian Political Ecology’, in P. Hirsch (ed.), Routledge Handbook of the Environment in Southeast Asia (forthcoming).

19 This includes work in science studies such as T. Mitchell, Rule of Experts: Egypt, Techno-Politics, Modernity (2002); S. Jasanoff, States of Knowledge: The Co-Production of Science and Social Order (2005), S. Jasanoff and M. Long Martello, Earthly Politics: Local and Global in Environmental Governance (2005), B. Latour, Reassembling the Social (2005).

20 While the conversations and debates around the divide between ‘local’ and ‘scientific’ knowledge are long-standing, emerging work is less concerned with the ‘divide’ and engages scholarship in science studies in order to better understand practices of making ecological knowledge and the implications for how we understand the relationships between ecologies, individuals, and institutions. See Agrawal, A., ‘Dismantling the Divide between Indigenous and Scientific Knowledge’, (1995) 26 Dev Change 413CrossRefGoogle Scholar; Agrawal, A., ‘Indigenous Knowledge and the Politics of Classification’, (2002) 54 Int Soc Sci J 287CrossRefGoogle Scholar; Berkes, F., ‘Indigenous Ways of Knowing and the Study of Environmental Change’, (2009) 39 J R Soc NZ 151CrossRefGoogle Scholar.

21 See Goldman, M. J., Nadasdy, P., and Turner, M. D. (eds.), Knowing Nature: Conversations at the Intersection of Political Ecology and Science Studies (2011)CrossRefGoogle Scholar; A. Mathews, Instituting Nature: Authority, Expertise, and Power in Mexican Forests (2011); Vandergeest and Roth, supra note 18; S. Gururani and P. Vandergeest, ‘Introduction to Special Issue: Ecologies on the Edge’, (forthcoming) Conservat. Soc.; Forsyth, supra note 18.

22 Peluso, N., ‘Whose Woods are these? Politics of Mapping Forests in Kalimantan’ (1995) 27 Antipode 383CrossRefGoogle Scholar; Vandergeest, P. and Peluso, N., ‘Territorialization and State Power in Thailand’, (1995) 24 Theor Soc 385CrossRefGoogle Scholar; Brosius, J. P., ‘Green Dots, Pink Hearts: Displacing Politics from the Malaysian Rainforest’, (1999) 101 Am Anthropol 36CrossRefGoogle Scholar; Brosius, J. P., ‘Analyses and Interventions: Anthropological Engagements with Environmentalism’, (1999) 40 Curr Anthropol 277Google Scholar; Dove, M., ‘Indigenous People and Environmental Politics’, (2006) 35 Annu Rev Anthropol 191CrossRefGoogle Scholar; Vandergeest and Roth, supra note 18.

23 Abrams, P., ‘Notes on the Difficulty of Studying the State’, (1988) 1 J Historical Sociology 58CrossRefGoogle Scholar; Agnew, J., ‘The Territorial Trap: The Geographical Assumptions of International Relations Theory’, (1994) 1 RIPE 53Google Scholar; Mitchell, T., ‘Society, Economy and the State effect’, in Sharma, A. and Gupta, A. (eds.), The Anthropology of the State: A Reader (1999)Google Scholar.

24 See Mitchell, ibid.

25 Ibid., at 185.

26 This framework has been informative to subsequent efforts to retheorize sovereignty and territory, See also Painter, J., ‘Rethinking Territory’, (2010) 42 Antipode 1090CrossRefGoogle Scholar; Lund, C., ‘Fragmented Sovereignty: Land Reform and Dispossession in Laos’, (2010) 38 J Peasant Studies 885CrossRefGoogle Scholar.

27 See Dove, M., ‘Theories of Swidden Agriculture and the Political Economy of Ignorance’, (1983) 1 Agrofor. Syst 85CrossRefGoogle Scholar; Roth, R., ‘Two-Dimensional Maps in Multi-Dimensional Worlds: A Case of Community-Based Mapping in Northern Thailand’, (2007) 38 Geoforum 49CrossRefGoogle Scholar.

28 Walker, P. and Peters, P., ‘Maps, Metaphors, and Meanings: Boundary Struggles and Village Forest Use on Private and State Land in Malawi’, (2001) 14 Soc’y & Nat Resources 411CrossRefGoogle Scholar.

29 Hodgson, D. and Schroeder, R., ‘Dilemmas of Counter-Mapping Community Resources in Tanzania’, (2002) 33 Dev & Change 79CrossRefGoogle Scholar.

30 On the fraught practices of counter-cartography, see Wainwright, J. and Bryan, J., ‘Cartography, Territory, Property: Postcolonial Reflections on Indigenous Counter-Mapping in Nicaragua and Belize’, (2009) 16 Cult. Geogr. 153CrossRefGoogle Scholar. On the mapping as performance, see Perkins, C., ‘Cartography: Mapping Theory’, (2003) 27 Prog in Human Geog 341CrossRefGoogle Scholar.

31 For example, Joel Wainwright and Joe Bryan draw upon ‘counter-mapping’ experiences in the courts to complicate ‘the celebratory descriptions of the ‘power of maps’ for indigenous peoples made by geographers and activists’. Wainwright and Bryan assert that efforts to use counter-cartographies of indigenous land holdings to push for state recognition have the unintended effect of normalizing relations to land as property, thereby deepening the capitalist social relations entrenched within the architecture of state law. They express concern that struggles of indigenous self-determination articulated through counter-cartographic assertions before the courts may in fact have the perverse effect of increasing state authority vis-à-vis indigenous peoples, see J. Wainwright and J. Bryan, ibid., at 154.

32 The 1,177 km Northern Gateway project would deliver an average of 525,000 barrels of diluted bitumen per day to a port. The pipeline would open markets in the Pacific Rim to Canadian oil exports, supplying roughly 200 tankers yearly.

33 The Salween River forms the political border between Karen State, Burma, and Mae Hong Son Province, Thailand. The dam will be located around 40 km from the point where the Salween river border ‘ends’ and the border continues along a tributary of the Salween called the Moei River. The precise details of dam planning and engineering are regularly revised in the planning phases.

34 There was a Thai government subcommittee established in 2009 to examine the Hatgyi dam project, of which the Thai state electricity authority (EGAT) was a part. It was formally referred to as the ‘Sub-committee to Study Information and Present Comments on the Various Impacts Including Human Rights Abuses in the case of Electricity Generating Authority of Thailand's proposed Hatgyi Dam Project on the Salween River in the Republic of the Union of Myanmar [Burma]’. Informally, it was referred to as ‘the Hatgyi subcommittee’. There were 18 members, including government officials, civil society, EIA consultants, and EGAT staff.

35 The concept of analysing texts and ethnographic moments as fragments of global processes from Anna Tsing, who argues that the global is an aspiration that must constantly mobilized through the friction of the encounter with local politics. A. Tsing, Friction: An Ethnography of Global Connection (2005), 271.

36 See Newman, supra note 12; Sossin, supra note 12.

37 Calder v. British Columbia (Attorney General), (1973) SCR 313; Delgamuukw v. British Columbia, (1997) 3 SCR 1010; Haida Nation v. British Columbia (Minister of Forests), (2004) 3 SCR 511.

38 Slattery, B., ‘The Metamorphosis of Aboriginal Title’, (2006) 85 Can Bar Rev. 255Google Scholar; Slattery, B., ‘The Generative Structure of Aboriginal Rights’, (2007) 38 SCLR 595Google Scholar.

39 This panel consisted of two members of the National Energy Board (the Canadian energy regulator) and the former president of the Canadian Aboriginal Minerals Association.

40 Report of the Joint Review Panel for the Enbridge Northern Gateway Project (2013). The adequacy of consultation, however, remains a matter of notable contestation, and numerous indigenous groups have applied for judicial review of the JRP decision.

41 Enbridge Northern Gateway Pipelines. Enbridge Northern Gateway Project Sec. 52 Application: Volume 5B: Aboriginal Traditional Knowledge (May 2010), at 4–3.

42 Ibid.

43 Ibid., at 1–4. Constraints mapping is the process of mapping any physical, technical, legal, environmental, or topographical considerations that may limit or restrict the location of the project. In addition to culturally-sensitive sites, examples of constraints would include particularly ecologically-sensitive areas or unstable topography.

44 Ibid., at 4–8.

45 Ibid.

46 This is the typical review process for a collaborative research process conducted with company Aboriginal traditional knowledge facilitators. Communities were also able to negotiate shared research goals and accept Enbridge funding to do the research independently, these communities could choose alternative review processes.

47 The Enbridge submissions included data from both the collaborative and independent work it commissioned in partnership with indigenous communities.

48 See Enbridge supra, note 41, at C-1.

49 Enbridge Northern Gateway Pipelines, Update to Sec. 52 Application: Volume 5B: Aboriginal Traditional Knowledge (June 2011).

50 See Enbridge supra, note 41, at C-11.

51 Ibid., at C-218. The company's subsequent modification of its watercourse crossing plans was cited in the report of the review panel as evidence that the company had effectively consulted indigenous communities and integrated their concerns into its planning. Report of the Joint Review Panel, supra note 40, Vol. 2 at 31.

52 Ibid., at C-229–C-262.

53 Ibid., at C-243.

54 C. Harris, Making Native Space: Colonialism, Resistance, and Reserves in British Columbia (2002); See also, P. Tennant, Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849–1989 (1990).

55 D. Culhane, The Pleasure of the Crown: Anthropology, Law and First Nations (1998); J. Borrows, Recovering Canada: The Resurgence of Indigenous Law (2002); A. Woolford, Between Justice and Certainty: Treaty Making in British Columbia (2005); T. Penikett, Reconciliation: First Nations Treaty Making in British Columbia (2006); Foster, H., Raven, H., and Webber, J. (eds.). Let Right be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (2011)Google Scholar.

56 According to the World Commission on Dam standards, this would be a large dam. See World Commission on Dams, Dams and Development: A New Framework for Decision-Making (2000).

57 See also Norman, E. and Bakker, K., ‘Transgressing Scales: Transboundary Water Governance across the Canada – US Borderland’, (2009) 99 Annals Assoc Am Geog 99CrossRefGoogle Scholar.

58 The investors for the Hatgyi dam include the international arm of the Electricity Generating Authority of Thailand (EGAT), China's Sinohydro Company, the Burmese Ministry of Hydropower, and IGE, a Burmese company.

59 The Memorandum of Agreement for the Hatgyi project was first signed in 2005, and in 2010 it was altered to include a Burmese company, IGE, in addition to the original signatory developers. The 10 per cent electricity to be sold to Burma was added in 2010; originally all electricity would go to Thailand. The domestic rationale given in Thailand for the Hatgyi project is that it comprises an important part of the nation's push to meet their energy forecasts.

60 Villager Research is a methodology developed in Thailand at the Pak Mun dam by ‘villagers’ advocating against the dam project being developed by EGAT and also initially the World Bank (until it withdrew funding). Pak Mun drew international attention to exclusionary water governance processes in Thailand and was used as a primary case study in the 2000 World Commission on Dams report. The methodology has since circulated throughout Southeast Asia and has been used by Salween residents since 2004. Local residents and NGOs in Burma, Laos, Cambodia, southern China, and Vietnam have also initiated Villager Research projects. See World Commission on Dams, Dams and Development: A New Framework for Decision-Making (The Report of the World Commission on Dams) (2000).

61 See Agrawal, ‘Dismantling the Divide’, supra note 20; Agrawal, ‘Indigenous knowledge’, supra note 20; Leach, M. and Fairhead, J., ‘Manners of Contestation: “Citizen Science” and “Indigenous Knowledge” in West Africa and the Caribbean’, (2002) 54 Int Soc Sci J 299CrossRefGoogle Scholar; Berkes, supra note 20

62 See maps 1–3 in Figure 2 from SEARIN (Living Rivers Siam) Salween Villager Research (2005), <www.livingriversiam.org/4river-tran/4sw/sw_tb_book3map.pdf>.

63 Environmental Research Institute, Chulalongkorn University. The Environmental Impact Assessment of the Hutgyi Hydropower Project, Final Report, (July 2008), at Chap. 5 at 6.

64 To be clear, such claims are contested. For instance, research from the National Human Rights Commission of Thailand (done at the request of Thai citizens) points to cross-border impacts. Moreover, experience with and research on cross-border hydropower development in the region has demonstrated that cross-border impacts should be anticipated. This includes Wyatt, A. B. and Baird, I. G., ‘Transboundary Impact Assessment in the Sesan River Basin: The case of the Yali Falls Dam’, (2007) 23Int’l J Water Res Dev 427Google Scholar. It is also unclear why EGAT paid to have the EIA conducted in Burma by Thai consultants. Some of the implications of this move have been to bolster Thai claims to authority and expertise over the river and the project as was demonstrated in the public information hearing process.

65 By developing large dams beyond Thai borders, the Thai electric authority need not follow Thai law but can still purchase the electricity. That there have been no dams constructed in Thailand since the infamous Pak Mun project underscores this move; the construction of that large dam saw national-scale mobilization and galvanized resistance to large, state-led development projects within Thai national borders. See also Middleton, C.. ‘Transborder Environmental Justice in Regional Energy Trade in Mainland South-East Asia’, (2012) 5 Austrian Journal of South-East Asian Studies 292Google Scholar.

66 Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), s. 66–7.

67 There was confusion among the Thai subcommittee regarding what the hearings were intended for. At times, the hearings were referred to as related to constitutional rights to participate in decision-making processes. At other times, the subcommittee referred to their goals as finding out the ‘truth’ of the project, particularly about the impacts to Thailand.

68 Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), s. 190.

69 T. Forsyth and A. Walker, Forest Guardians, Forest Destroyers: The Politics of Environmental Knowledge in Northern Thailand (2008).

70 See also discussion in Harris, L. and Alatout, S., ‘Negotiating Hydro-Scales, Forging States: Comparison of the upper Tigris/Euphrates and Jordan River basins’, (2010) 29 Polit Geogr 148, at 149CrossRefGoogle Scholar.

71 On participatory development in Thailand, see Chambers, supra note 10.

72 In 1849, the British administration in Burma negotiated the Salween river border with the northern kingdom of Chiangmai, part of present-day northern Thailand. See T. Winichakul, Siam Mapped (1994), at 82–91.

73 Ibid.

74 Winichakul, T., ‘The Quest for “Siwilai”: A Geographical Discourse of Civilizational Thinking in the Late Nineteenth and Early Twentieth-Century Siam’, (2000) 59 J Asian Stud 528Google Scholar; Tennant supra note 54.

75 See Roth, supra note 27; Walker and Peters, supra note 28; Hodgson and Schroeder, supra note 29; Wainwright and Bryan, supra note 30.

76 B. Latour, We have never been Modern (1993).