THE MATERIAL COSTS OF CLAIMING INTERNATIONAL HUMAN RIGHTS: AUSTRALIA, ADANI AND THE WANGAN AND JAGALINGOU

This article presents a materialist account of Indigenous peoples' international legal human rights claims. It argues that appeals to the global legal system as well as pluralistic approaches to Indigenous peoples' rights depend on international law to make a convincing case and yet fail to account for the material construction of human rights claimants as subjects of international law. To explain this intervention, this article theorises that when international human rights law and national laws clash, human rights claimants constitute and transform themselves into international legal subjects and become identifiable Indigenous peoples. In support of this international legal constructivist approach to Indigenous peoples' human rights claims, this article re-articulates the development of Indigenous peoples as subjects that emerged from international law and then examines the development of Australia's native title regime. An exposition of international and then state laws reveals that the codification of different standards for participation enables those who subject themselves to international law as Indigenous peoples to claim human rights. It then provides a case study on the Wangan and Jagalingou Family Council, which constructed itself as Indigenous peoples to assert human rights, as they engage with Australia's native title regime in the case against Adani Mining Pty Ltd's Carmichael Coal Mine and Rail Project. A central aspect of this argument is that becoming identifiable Indigenous peoples through claiming human rights provides benefits as well as potentially deleterious political, economic and legal costs.