“A shift in the playing field”: Indigenous sovereignty and the philosophy of Jacques Ranciѐre

Introduction

The objective of this article is to consider Indigenous people as political actors in their quest for sovereignty within the liberal democracies of Canada, Australia, Aotearoa New Zealand and the USA (the CANZUS nations). I aim to show that, despite the structures of settler colonialism that both resist and then co-opt dissent, seeking sovereignty is, as political philosopher Jacques Ranciѐre outlines, an act of Indigenous politics that challenges and shifts these structures. While the fundamental colonising logic of the nation state does not change, through the Indigenous sovereign voice, a reframed understanding of democracy is revealed which in turn creates an enlarged space for Indigenous peoples.

My interest in addressing this issue is borne of my own experience as a member of a tribe that while settling our long dispute (New Zealand Government, 1998) always recognised that this was a compromise enforcing us to conform to an external structure, even in the way that we accounted for our own people (Carter, 2003). Despite our cultural resurgence, were we in fact complicit in the ongoing structure of colonialism that has as its objective “the elimination of the native” (Wolfe, 2006)? To tackle this conundrum, I first consider the different contexts of Indigenous dissent in the CANZUS nations, outlining the tactics used to deny Indigenous sovereignty. Second, I consider Ranciѐre’s notion of dissensus and how through subjectivisation, or the coming into political being of a part of society that has not been recognised as having a “voice”, democracies can be re-shaped towards an equality that “hears” and acts on this voice. Finally, I consider some recent legal cases that exemplify this re-shaping.

Sovereignty struggles

Benedict Anderson has described a nation as “an imagined political community—and imagined as both inherently limited and sovereign.” (Anderson, 1983, p. 49), but as Partha Chatterjee has rightly asked, “Whose imagined community?” (Chatterjee, 1993). Within the CANZUS nations, Indigenous sovereign struggles mostly seek to either maintain “nation-to-nation” relationships or seek forms of autonomy or self-government (Keal, 2008), with attempts at secession rare (Levy, 2003). However, whenever the idea of Indigenous sovereignty is mooted, it often raises the “specter of destabilization and even violent turmoil” (Anaya, 2004, p. 98) with any suggestion that there might be “multiple and overlapping sovereignties” (Keal, 2008, p. 316) at odds with a liberal democratic ideal of “one standard of citizenship” (Bennett, 2004, p. 203). Indigenous nations have to acquiesce to nation state legal and political frameworks as to do otherwise “is to ask for special rights, which is not compatible with a democratic nation-state of politically equal citizens” (Champagne, 2013, p. 20).

This is true of all CANZUS countries, even in the USA where there are 566 federally recognised Indian nations whose sovereign rights although diminished have not been terminated (Kalt & Singer, 2004, p. 4). While the US Supreme Court has substantially curtailed these tribal nations’ powers, the USA does recognise these pre-existing governments, which Singer argues is “not only compatible with the ideals of democracy but may even be required by it” (Singer, 2013–2014, p. 13). However, there still remains a view that tribal sovereignty is an “outdated relic” which, because it confers tribal citizenship based on ancestry, is racially discriminatory (Singer, 2013–2014, p. 4) and hence contrary to “one nation”. In Canada, which, through the Royal Proclamation of 1763, shares with the USA the same initiating declaration of colonial control, all land was assumed to belong to the Crown with Aboriginal peoples being likewise subject, despite the treaties that in theory recognised sovereignty (Vicaire, 2011). It was not until Calder v. Attorney-General British Columbia (1973) that it was acknowledged that Aboriginal peoples had rights of self-determination which in turn led to the Constitution Act, 1982, where in section 35(1), aboriginal and treaty rights were recognised. While this and other legal decisions have led to limited forms of Aboriginal self-government, this has meant in some cases extinguishing Treaty rights, as in the case of the Nisga’a Nation (Tully, 2003).

In Australia, there is quite a different situation where there has always been and continues to be a refusal to entertain the idea of Aboriginal sovereignty despite the acceptance that the nation’s claimed sovereignty through terra nullius had not extinguished Native title under common law (Miller, Ruru, Behrandt, & Lindberg, 2010; Schaap, 2009). As Irene Watson (2012) notes, while Mabo (No. 2) rejected terra nullius, it remains embedded in the legitimating principle of the Australian state. This is also the experience of Māori in Aotearoa New Zealand who since 1840 have consistently argued that they retained sovereignty as expressed in the Māori version of the Treaty of Waitangi. For many years, the Treaty was deemed “a simple nullity” (Ruru, 2011, p. 972); however, as in the other CANZUS nations, activism led to legal processes to address Māori concerns through the setting up of a permanent commission of enquiry in 1975, the Waitangi Tribunal, to investigate and make recommendations on breaches of the Treaty. Since its establishment, the Waitangi Tribunal has settled a number of tribal claims including a finding that Māori did not cede sovereignty (Williams, 2014).

This attenuated summary introduces some of the different contexts in which demands for Indigenous sovereignty play out across the CANZUS nations. While it is not my intention to provide a treatise on Indigenous sovereignty and autonomy, both concepts that as Kalt and Singer (2004, p. 5) observe might fill volumes, it is important to show that there has been unceasing Indigenous dissent against “steamrolling settler” states (McHugh, 2011) that have used legal, anthropological and philosophical arguments to refuse Indigenous people such recognition (Coulthard, 2007; Miller et al., 2010; Muthu, 2003; Tuori, 2015; Wolfe, 2006). Sometimes the struggle has been to maintain sovereignty as an independent nation, even if that is as a dependency within the larger nation state. At other times, it is to gain forms of governance over tribal resources, and sometimes, as in the case of Aboriginal Australians, it is the struggle to be recognised as being a people at all, let alone a sovereign one.

The 2007 United Nations Declaration on the Rights of Indigenous Peoples has recognised that Indigenous people do have “the right to self-determination” (United Nations, 2008), an advance in terms of international law which had seen self-determination as only available to whole populations of states (Xanthaki, 2014). However, as the Declaration is non-binding unless it becomes part of a nation’s legal system through statute (Davis, 2009), its impact is indirect with Indigenous peoples using its moral if not legal force to act as a “springboard” to argue for the justice of their cases (Beidelschies, 2008). These springboards of action to address Indigenous claims for sovereign rights within the CANZUS nations may explain why these countries failed in the first instance to endorse the Declaration in 2007, as the domestic political and legal bargains negotiated between tribal and settler officials to address Indigenous claims came under scrutiny from a competing international human rights perspective that was in “conflict with the liberal premises that structure the liberal democratic state itself” (Gover, 2015, p. 373). Such bargains may, from one perspective, be viewed as sensible and rational ways to address wrongs done to Indigenous peoples to bring about “reconciliation” and to “remove the sense of grievance” (Gover, 2015, p. 372). From another viewpoint, these bargains are a form of ongoing “internal colonization” using “techniques of government” (Tully, 2003, p. 274) to continue the “domination and exploitation at the hands of state entities from which Indigenous nations have been struggling to free themselves” (Churchill, 2011, p. 526).

To summarise, Indigenous peoples have argued and continue to argue that they are sovereign peoples with specific rights that flow from this, despite claims that this sovereignty is incompatible with the democratic notion of a “one” nation. While many bargains have been struck (Indigenous Studies Programme, The University of Melbourne, 2011), this can present itself as a dilemma for Indigenous peoples who, like my own Ngāi Tahu tribe, have been caught between the “sensible” pathway of accepting compromise settlements and the reality that in doing so leaves intact the very structures and modes of domination that have been called into question in the first place. In response to this dilemma, a number of Indigenous writers have urged action “away from a politics . . . of settler-state recognition” (Coulthard, 2014, p. 24) to instead practice Indigenous forms of “resurgence” that “envision life beyond the state” (Corntassel, 2012, p. 89) based on Indigenous peoples’ “own political, intellectual and cultural traditions” (Simpson, 2014). For these and other writers such as Taiaiake Alfred (1999, 2015), Indigenous resurgence moves beyond Tully (2003) and Wolfe’s (2006) understanding of how settler colonialism structures itself to eliminate Indigenous people through “a continuing relationship of inequality” (Veracini, cited Svirsky, 2016, p. 6) to ways that Indigenous people can re-imagine and re-enact themselves as autonomous peoples, some of whom have sovereign rights. Such practices form a counterpoint to Dale Turner’s assertion that Indigenous intellectuals “carve out a community of practitioners within [italics added] the existing dominant legal and political communities” (Turner, 1997, p. 191), because, as Coulthard (2008) argues, while these practitioners, or “word warriors” as Turner describes them, might aim to “transform the ‘legal and political discourses of the state’ into something more amenable to indigenous perspectives,” they run the risk of being assimilated by that very state which has its own set of logics antithetical to Indigenous aspirations.

The observation of the respected Kanien’kehá:ka scholar cited by Cliff Alteo that “every movement gets co-opted” (Alteo, 2014) explains the frustration and anger often expressed against tribal leaders who appear to have “sold-out” in reaching a settlement. Comments that describe such leadership as elites embracing “industrial-era capitalist imperialism” (Sykes, 2010, p. 5), or “putting an Indian face to corporate capitalism” (Weinberg, 2014) or engaging in “an act of treason” against their own people (“Indigenous Leaders Debate Australia’s Constitution,” 2015) are not uncommon. Co-option of Indigenous movements by the settler state has been described as “distraction” from the real politics of Indigenous struggle (Hingaroa-Smith, 2000) and as the latest “shape-shifting” methods “to erase Indigenous histories” (Alfred & Corntassel, 2005, p. 601) ensuring “central government control over what Indigenous nations do” through “adoption of Western organisational and cultural templates” (Cornell, 2015). This is, according to Altamirano-Jiménez (2004), the market system displacing Indigenous forms of social citizenship.

It is at this point that I wish to turn to political philosopher Jacques Ranciѐre whose response to such disappointment, disillusionment, anger and frustration might very well be “And what else were you expecting?”

Indigenous voice

As the previous section has shown, advancing claims for Indigenous sovereignty, no matter how limited, requires constant struggle whether, as Tully (2003, pp. 279–280) describes, the struggle for freedom such as through national and international legal challenges, or the struggle for freedom of manoeuvre such as activities of Indigenous resurgence and resistance. As has also been explained, despite this struggle, the making of bargains always involves some form of Indigenous co-option and conformity to the structures of the “shape-shifting” liberal democratic settler state.

However, if the liberal democratic settler state shifts its shape to accommodate Indigenous demands within a pre-defined set of terms to maintain settler colonialism intact, in turn might it also be shifted to re-imagine and re-define the meaning and nature of liberal democracy that makes room for the Indigenous? This is the space that Algerian-born political philosopher Jacques Ranciѐre opens up for Indigenous political thinking and action. Despite the liberal democratic nation state’s ability to accommodate and co-opt Indigenous dissent, within that very act of political manoeuvring, there is a change, a shift and a redefining of what is meant by “the democratic nation state”. This is more than the recognition of a past wrong that needs to be righted but rather the recognition of a wrong that cuts to the very heart of what constitutes politics in a democracy. For Ranciѐre, the wrong at the heart of liberal democracies is due to the faulty originating assumptions of what constitutes true democracy that continues to play out in the modern day inheritors of those assumptions which include, among others, the CANZUS nations.

Ranciѐre’s concern is to understand what constitutes “the political” through which democracy and its underlying assumption of the equality of peoples can be assessed. To investigate this question, he considers the concepts of democracy as espoused by Greek philosophers such as Plato and Aristotle who recognised that while the demos or common people had attained a theoretical state of political equality with their “betters” once debt slavery had been abolished, this was in fact an illusory sort of equality “hardly equal to the wealth” of the oligarchs, aristocrats and plutocrats of that time (Hamblet, 2009, p. 7). More problematic is that only “free” people qualified to take part in ruling society. However, it cannot be assumed that because the “people” are free (of debt slavery) that the “virtue” of freedom is an attribute that adheres automatically to any community. Associating the broader mass of community with the demos and therefore with freedom and equality is a false analogy on the part of these ancient thinkers. Rather inherent to the demos, and by extension to the modern democracy, is not freedom (to choose who rules) and equality (one people one law), but the “contention” to be free and thus bring about equality when a “wrong” has been identified (Ranciѐre, 2004, p. 9). Such wrongs are inevitably only noticed by “the part of those with no part”, as Ranciѐre describes them, groups who have been unable to participate fully as equals in society, for why would those who are “perfectly happy with the current state of things” (Rancière, 2007, p. 92) wish to change? This state of things, for example, the idea that sovereignty is indivisible and cannot be shared in a nation state, becomes part of the fabric of society, unseen and taken-for-granted as the “natural” and “common-sense”.

Contention or, as Ranciѐre describes it, “dissensus” is the means through which the demos can be heard as having a political voice. This only occurs when the taken-for-granted understanding of society is disrupted by a “quarrel, a disagreement” and a “forcing” that “challenges the incorporated, perceptible evidence of an inegalitarian logic” (Rancière, 2004, p. 5). Ranciѐre (1999) is at pains to point out that what is being contested is not only a wrong done to a certain part of the demos but also the wrong of not being recognised as a “speaking being” equal with “every other” (p. 30), equality being the foundational principle of any democracy that calls itself by that name. As the “perceptible evidence” of Indigenous people in the CANZUS nations have shown, “equality of the people” extends only so far. Furthermore, to be recognised in a political sense as a “speaking being” involves an agreement that what is being said is “understood as speech, capable of enunciating what is just” rather than “some other emission [which] is merely perceived as a noise” (Ranciѐre, 1999, pp. 22–23). And here is the crux of the matter for Ranciѐre. When the part of those with no part, for example, “slaves, women, workers, colonized peoples” (Ranciѐre, Introducing disagreement, 2004, p. 5), identify wrongs, often these wrongs are not seen as having any universal relevance beyond their particular moment because the social, gender or cultural identification of “Black”, “feminist”, “Unionist”, “Indigenous” is misidentified as a demand specific to that “pressure group” and therefore the wrongs, heard as “noise” or demands for or against something, can be managed within the accepted policies—Tully’s “techniques of government”—a form of governance Ranciѐre labels as “the police”. The correct name for this type of governing arrangement is the oligarchic state as these techniques are designed to maintain uninterrupted “the unlimited power of wealth” (Rancière, 2007, p. 77). Thus, the democratic state (really an oligarchy) can manage such pressure groups by “adjust[ing] its terms” (Deranty, 2014, p. 68) with no need to change its operating logic.

A good example of this inability to hear a “speaking being enunciating what is just” is found in Andrew Schaap’s account of the history of the Aboriginal Embassy. While not originally starting as an assertion of sovereign rights, one of the participants later recalled that the act of protest made them realise that “Sovereignty means, you know, you own the land, it’s your birthright” (Schaap, 2009, p. 212). This nascent sovereignty movement’s claims were tested in 1979 in the High Court of Australia where the concept of terra nullius was challenged on the grounds that from “time immemorial prior to 1770 the aboriginal nation had enjoyed exclusive sovereignty over the whole of the continent now known as Australia”. The claim to sovereignty was rejected as being “quite absurd and so clearly vexatious as to amount to an abuse of the process of the Court”, with Justice Gibbs finding that the annexation of the east coast of Australia and subsequent acts by which Australia became incorporated into the Crown dominion were “acts of state whose validity cannot be challenged” (Coe v The Commonwealth of Australia, 1979).

So, how do those who are “outside the count” of the oligarchic political order, an order based on “domination or some entitlement to dominate” (Rancière, 2004, p. 5), challenge the validity of these “acts of state” when the settler state views its role to be that of managing consensus of the demos through “agreements between individuals and social groups” (Rancière, Introducing disagreement, 2004, p. 102)? The answer to this question is the process of subjectivisation whereby the part of those with no part not only identify themselves as a particular group with a specific wrong but that this wrong, despite it calling to itself its particularities, also has a universal truth. For Ranciѐre, the universal truth of democracy is equality and the extent to which equality is enacted. Thus, bargains which sensibly distribute or re-distribute land, funds, services or entitlements fall into the category of “policy” or “policing” designed to shore up “political forms of justice and economic forms of production of wealth” (Rancière, 2004, p. 95). In contrast, dissenting groups, through the process of subjectivisation, create themselves both as subjects or particular identities and as “speaking beings” who, by refusing to accept the “identity given by an other” (Ranciѐre, 1992, p. 62), bring to the fore the universality of the political—that there is inequality and that there needs to be something done about it. Ranciѐre (1992) is here arguing not that there is an abstract universal “truth”, rather that if democracy is founded on equal rights, then “it is in the way of demonstrating the consequence that follow from this” (p. 60) that the universal is derived.

One might argue that lumping together dissenting groups under the category of subjectivisation fails not only to differentiate among these political identities in the cause of universalism but also assumes a political speaking voice that shares “the same sense of [Western] history” (Déotte & Lapidus, 2001, p. 88). Ranciѐre (2015) is sensitive to this and admits that “universalism is always the universalism of a determinate group of humans”, although he also defends universal principles stressing that they should not be a “a one-way street” used as a “a mask for exploitation or domination”. I agree with Leanne Simpson’s observation that “non-Indigenous critical theoretical frameworks . . . are fundamentally limited in their ability to provide insight into what a culturally grounded alternative to colonialism might look like for Indigenous nations” (Simpson cited in Coulthard, 2014, p. 148). But I also believe that Ranciѐre offers insight into how an enlarged thinking about democracy positions Indigenous agency as emancipatory, something that Turner (1997) engages with and that Singer (2013–2014) states is in fact constitutive of democracy. Similarly, Ivison, Patton, and Sanders (2000) observe that liberal universalism and Indigenous rights are not necessarily mutually exclusive.

To conclude this section, it is my contention that Ranciѐre opens a “space for thinking democracy” (Deranty, 2014, p. 68) and Indigenous agency within it. While it is true that the policy or police order quickly moves to co-opt and accommodate Indigenous dissent through its various governing structures, true politics, which is a set of emancipatory practices (Ranciѐre, 1992, p. 58), does occur and can effect change in that structure. As Ranciѐre shows, it is contention that creates democracy, a view of democracy not as a fixed state of being (“this is a democratic state but that is not”) but a state of becoming.

In the last section, I shall examine some recent cases that despite the “uneven playing field” are allowing Indigenous people to “even things up” (H. Atkinson, 2004).

“A shift in the playing field”: Indigenous sovereignty as democracy

In the first section of this article, I described the different contexts that affect claims of and for Indigenous sovereignty within the CANZUS nations. The second section outlined Ranciѐre’s understanding of the political, showing that contrary to popular understanding, democracy is not a form of governance but rather the enactment of equality that only comes to the fore when those who have been discounted call a wrong to attention in a way that can be heard. Shifting settler states from their “natural” oligarchic tendencies to create space for Indigenous notions of an equal relationship is always a struggle. However, Ranciѐre (1999) contends that “through the mechanisms of subjectivization” when the demos identifies both the particular wrong to itself and the wrong to equality, this can lead to “an alterable relationship between the parties . . . a shift in the playing field” (p. 30). It is this shift in the uneven playing field that enables Indigenous articulations of their sovereignty to be first heard as an intelligible argument, and then understood, and then enacted in some form.

A similarity in a number of CANZUS jurisdictions is the way in which the notion that Indigenous people have unextinguished rights and just claims often begins as something unthinkable, ludicrous even, and then through Indigenous dissensus become understood. Claims for “native” or “aboriginal” or “customary” title are an example of this. Such claims are most often hard fought and, if settled, compromise with the process viewed as “technically laden” and “microscopic” (Finn, 2012). In the more disheartening cases, such as that of the Yorta Yorta people, their native title claims were entirely rejected (Members of the Yorta Yorta Aboriginal Community v Victoria & Ors, 1998).

However, ongoing dissensus around these cases challenges and in some cases changes this mode of operation. Thus, while the Yorta Yorta people were denied native title through a “morally wrong judgment” (H. Atkinson, 2004), 6 years later, they had signed a Joint Land Management Agreement with the Victorian State Government outside of the federal system in which the claim was first heard (The State of Victoria, 2004). In other words, the “wrong” has had to be addressed because it was “heard”, even if the means by which it was addressed lay in another part of the same structure and in a form that, while not granting native title, allowed the Yorta Yorta to move some way beyond a “state of internal colonialism” (W. Atkinson, 2001).

Being “heard” as a speaking being is key to making change within democracies. Ranciѐre places stress on the emancipatory agency of the speaking being to create the initial breakthrough of understanding, the Mabo declaration of 1992 being just such a breakthrough, but it is less clear whether there is equally a “democratic politics of listening” (Feola, 2014, p. 516) that “demonstrates the consequence that follow” from that hearing. I will give two examples from recent legal cases in Australia and New Zealand to tentatively posit that this may in fact be occurring.

Almost 10 years after the Yorta Yorta signed their Agreement in 2013, the Dja Dja Wurrung entered an agreement that recognised them as the traditional owner group on approximately 266,532 ha of public land in Central Victoria. The agreement which settled four native title claims in the Federal Court dating back to 1998 has been described as the first “comprehensive settlement of a native title determination application pursuant to dedicated native title framework legislation in Australia” (McLean & Testro, 2013, p. 7). The settlement saw native title granted over six parks and reserves and a negotiated settlement payment, although like the Nisga’a, as a condition of settlement under the Victorian Traditional Owner Settlement Act 2010, the Dja Dja Wurrung also had to agree to “surrender, and consent to the surrender to the State of any and all Native Title rights and interests over areas that are subject to a Future Act” (The State of Victoria, 2013b).

While both the Yorta Yorta and the Dja Dja Wurrung achieved agreements from the State of Victoria, the shift in understanding from the 2004 to the 2013 settlement is seen in the language of their agreements. In the Preamble to the Yorta Yorta Agreement, the State in a mere three short sentences “recognises the cultural connection of the Yorta Yorta People to the Designated Areas,” agrees to “facilitate the development of a sustainable partnership based on recognition, mutual respect and agreed goals” and accepts that the Yorta Yorta have a right to “to retain their identity and intellectual property” (The State of Victoria, 2004). This can be contrasted with the over two-page Recognition Statement that opens the Dja Dja Wurrung Agreement which recounts the history of the Dja Dja Wurrung; their kinship, language, spirituality and traditional law; highlights the “rupture in the spiritual, environmental, political and economic order” brought about by European settlers; and acknowledges that the “policies and practices of successive governments, their agencies, other organisations and individuals substantially obstructed the ability of Dja Dja Wurrung ancestors to practice their traditional law and customs and to access their country and its resources” (The State of Victoria, 2013). As Mick Dodson (2013) notes, the settlement is a “giant leap” with the Recognition Statement “remarkable” in that it is the first time since 1992 that “any government leader in Australia, state or federal, put his or her name to such a statement about the severance of Aboriginal peoples from their traditional lands”. Such leaps continue in Victoria with Treaty discussions underway in 2016 and with the Victorian Aboriginal Affairs Minister going as far to state that it was disappointing that a Commonwealth country like Australia didn’t have a national arrangement with its First Peoples (Treaty Republic, 2016).

This reference to the other Commonwealth nations that do have treaties includes Aotearoa New Zealand where the Waitangi Tribunal process has been underway since the mid-1970s with 60 settlements since the mid-1990s (Office of Treaty Settlements, 2016). Two settlements in particular stand out among these because of the way they reposition sovereignty to acknowledge and then act on how Indigenous people view their relationship to the land by bypassing the question of who owns land. The first of these cases is the 2014 settlement of the Whanganui River claim which will see New Zealand’s longest navigable river recognised in legislation as not only an “indivisible and living whole” but also as “a legal person” with “its own legal personality with all the corresponding rights, duties and liabilities of a legal person”. Additionally, a two-person body selected from the Crown and interested tribes will be the “human face” of the river to “act and speak” on behalf of the River and to promote and protect its health and wellbeing. In exercising its functions, it must recognise the inalienable interconnection between the tribes of the Whanganui River and the river itself (New Zealand Government, 2015).

In a similar vein, the Tūhoe tribe’s settlement has seen its ancestral forest, Te Urewera, become through an Act of Parliament “a legal entity” with “all the rights, powers, duties, and liabilities of a legal person” with a Board whose activities must be “exercised and performed on behalf of, and in the name of, Te Urewera” (New Zealand Government, 2014). The Act is seen as “legally revolutionary” both in Aotearoa New Zealand and globally (Ruru, 2014), giving Te Urewera forest its own legal identity and protected status for its intrinsic worth and its distinctive natural and cultural values both to the Tūhoe tribe and to the people of Aotearoa New Zealand. As in the Whanganui and Dja Dja Wurrung settlements, the Act acknowledges the inextricable link of place to tribal culture, language, customs and identity.

Commentary on the Te Urewera legislation is instructive, with the Minister of Māori Affairs seeing it as “a profound alternative to the human presumption of sovereignty over the natural world” (Sharples, 2014), and the Minister for Conservation observing that in the 1990s, people were “unable to imagine that Māori are perfectly capable of conserving New Zealand treasures at least as well as Pākehā [European New Zealanders] and departments of State” (Smith, 2014). More revolutionary is the way that both the Whanganui and Urewera settlements side-step the issue of ownership of land and water, instead promoting a widely held Indigenous worldview that “the land belongs to past generations, to the yet-to-be-born, and to the plants and animals” (Reid, 2010, p. 337). The massive transfers of land from Indigenous peoples to settler states that occurred in the 19th century took place across all the CANZUS nations (Tuori, 2015). The cases above and similar settlements in the CANZUS countries attempt to address this transfer, even if the scale is small, uneven and localised. Moreover, the Whanganui and Tūhoe settlements, borne of years of ongoing dissent, with the wrongs done to the Tūhoe tribe in particular requiring a 40 paragraph acknowledgement, are opening another vista: the idea that nature has legal rights concomitant to humans. Already environmental activists, taking their lead from the New Zealand legislation, are seeing a universally applicable approach that might “radically shift how we protect ecosystems” (O’Neill, 2016) with the hope that in an age of environmental crisis, “the Indigenous worldview reflected in the novel concept of ‘legal personhood’ may have arrived just in time to point the way down a regenerative path” (Mitchell, 2016).

These legal case studies exemplify Svirsky’s thesis that despite the historical legal closures that have attempted to suppress dissent to maintain a settler colonial status quo, shift occurs through a corresponding “structural struggle” in opposition to those closures (Svirsky, 2016). The cases in both Australia and Aotearoa New Zealand show a shift in “democratic hearing”, from viewing claims for sovereignty as “absurd” or “unimaginable” to enacting settlements that in turn presage something larger: the possibility of a Treaty with Aboriginal people in Victoria and a legal approach to the sovereignty of nature that already is being applied in Ecuador, Bolivia and India (O’Neill, 2016).

Conclusion

Claiming sovereignty and being sovereign as Indigenous people is always within the prescribed conditions dictated by the settler state. As Ranciѐre shows, so-called democracies—modern settler states being but the latest form of these—have always had a logic embedded into their structural DNA to maintain the status of the few over the many. However, this oligarchic DNA is not necessarily rigid and impenetrable but is amenable to democratic hearing caused by the speaking subjects who identify the wrong done both to them in their own name and to the equality on which true democracies are based. In such a way, Indigenous dissensus can be seen not just as a minority group’s noisy demands for sovereign rights but as the very stuff of democracy itself, or as Ranciѐre terms it, the true “political” that “rejects[s] the passivity that comes with being ruled in an oligarchy and embrace[s] the activity required to rule themselves democratically” (Purcell, 2014, p. 168).

Does this mean then that asserting sovereignty, and in some cases having that accounted for through legal affirmation, leads to the equality of Indigenous people with others in the CANZUS nations? It does not, and hence both the critical analysis that the structures of the settler state are inherently stacked against and co-opt Indigenous people (they are and they do) and a politics of resurgence that focuses less on “state affirmation and recognition” and instead chooses to embrace “a daily existence conditioned by place-based cultural practices” (Corntassel, 2012). What Ranciѐre adds to these understandings is not that there are structures of oppression but that these structures are porous and that through dissensus, they can be forced to change, even if only momentarily, by pointing out the illogic of inegalitarianism. This is a universalism that does not seek to diminish Indigenous people’s specific and just claims, but to link them to those others whom Coulthard identifies as also subject to economic, social or cultural marginalisation: the labour and women’s movements; those who call for gay, lesbian and transgender rights; and those in the environmental movement (Coulthard, 2014, p. 173). Thus, Indigenous acts of asserting and seeking sovereignty both challenge and enlarge how we think about the liberal nation state and, more fundamentally, the nature of democracy itself. From this perspective, far from being the unreasonable demand of a minority pressure group, Indigenous sovereign struggle is democracy in action.