Resistance in spaces of triple exception: between mining, conservation, and exceptional people

ABSTRACT

‘Green’ mining may produce what Le Billon calls ‘spaces of double exception’ – spaces where people are stripped of their rights to give way to both mining and biodiversity offsetting. However, this article highlights that resistance movements can also use the ‘exception’ by claiming that ‘exceptional people’ have special rights to remain on their lands. By drawing on two landmark cases, the article argues that ‘spaces of triple exception’ provides a more suitable picture of the stakes and power battles involved, considering the ambivalent resistance and exclusionary risk of indigenous or tribal claims.

KEYWORDS:

• Resistance
• exception
• mining
• conservation
• indigenous

1. Introduction

People are regularly deprived of their lands. Philippe Le Billon (2021), though, has argued that there is growing production of ‘spaces of double exception’: spaces where people are stripped of their rights to give way for both extractive activities and nature conservation. This doubling is an effect of the paradoxical but increasing convergence between extraction and conservation regimes, which pivots on extractive companies needing green credentials and conservation organisations needing finance and political leverage.

But what does it really mean to call something ‘spaces of double exception’ and what are the implications for resistance? Conventionally, we might think of the colony, the camp, or the clandestine prison when referring to spaces of exception; spaces devoid of law where people are stripped of their rights to protect the rest of society. However, Achille Mbembe (2019), andAgamben and Attell (2005), and others have argued that the exception is gradually becoming the norm. Spaces of exception are normalised, extended, and made permanent through ‘ordinary’ spaces where the law is suspended based on some ‘necessity’. The climate crisis and the urgent need for critical minerals is increasingly used to circumvent ordinary procedures to lay claims to land. People’s land rights can also be suspended based on a perceived necessity to protect exceptionally rich nature from human interference.

By ‘spaces of double exception’, Le Billon (2021) refers to the ways extraction and conservation regimes proliferate and reinforce one another, such as when conservation areas are created to limit, offset, or compensate biodiversity losses caused by extraction. This generates a twinned pressure for land that works at the expense of two categories of people: those whose lands are being directly affected by extractive activities and those whose lands are turned into protected areas to offset these activities, a kind of ‘double land grab’ (Huff & Orengo, 2020, Le Billon, 2021). People may become displaced, like internal migrants or refugees. When a project’s ‘right of way’ overrides the ‘right to stay’ in this way, it reveals how different rights clash and compete, often resulting in evictions or restrictions on people’s lives and livelihoods in the name of the nation (Cernea & Schmidt-Soltau, 2006, Kabra & Das, 2022).

However, spaces of exception also have a deeper theoretical meaning in its reference to the theory of state of exception. Le Billon (2021) draws briefly on Achille Mbembe (2001, 2019) to argue that the growing convergence between extraction and conservation creates a politics of affinity and enmity, a pitting of ‘us’ against ‘them’. In this scheme of friend and foe, frontline environmental and land defenders are the ones cast as ‘public enemies’ by the state. Labels such as ‘radicals’, ‘extremists’, and ‘terrorists’ are frequently used to stigmatize, intimidate, and criminalize those who oppose either mining or conservation (Brock & Dunlap, 2018, Menton et al. 2021, Scheidel et al., 2020). The state of necessity, on which the exception is founded, justifies that certain groups are criminalised or excluded from legal recourse and political power, and this particularly concerns the way mining and conservation laws often trump people’s rights, albeit in uneasy and contested ways. Yet I believe it is important to pay attention to how resistance movements may also mobilise the exception, to reclaim people’s rights to their lands. Many scholars have pointed out that the state of exception is not a very conducive concept for the study of resistance and change, considering the portrayal of people devoid of rights, voice, and choice. However, while the state might strive to squash resistance in places such as camps, these are also social and political spaces from which a politics of alternate living and citizenship can emerge (Isin, 2009, Isin & Rygiel, 2007, Rygiel, 2011, Sigona, 2015).

In this article, I wish to highlight how spaces of exception may be used as resistance to push back on both mining and conservation, specifically by making legal claims that ‘exceptional people’ have special rights to remain on their lands. By exceptional people, I refer to the collective rights of distinct people, such as tribal or indigenous peoples who frequently mobilise identity politics to claim special rights as stipulated in constitutions, laws, or international conventions. I draw on two landmark cases where resistance movements have managed to block mining and conservation by invoking ‘exceptional people’: the win by the Dongria Kondh over bauxite mining in Niyamgiri Hills in India and the win by the San over conservation in the Central Kalahari Game Reserve in Botswana. These cases are well-documented, and the published literature tellingly reveals the ways in which the recognition of exceptional people can be mobilised to thwart mining and conservation and how such performances may generate contentious relationships and contradictions. People may decide to articulate ‘tribal’ or ‘indigenous’ identities to gain political and legal traction, but groups of people can also be stereotyped in ways that limit their rights to choose the life they want to live, while others are not considered ‘tribal’ or ‘indigenous’ enough to fit the category (Li, 2000). Spivak (1988) has also noted that such ‘strategic essentialism’ is not freed from contestation.

Building on a two-case analysis from India and Botswana, I suggest the concept of ‘spaces of triple exception’. Through this concept, I mean to give attention to the ways the laws and the exceptions for mines, protected areas, and peoples intersect with each other, hoping it can inspire others to continue the investigation on how exceptionality is performed, its power, and the potential drawbacks of exceptional claims for those not deemed exceptional enough.

In the following, I will outline the state of exception for mining and nature conservation and detail how Le Billon (2021) frames spaces of double exception. My contribution here is to expand on spaces of exception in a legal context and work toward a third dimension, which relates to how the exception is not merely mobilised by the state and interpreted by the court, but also how it is performed by people and their advocates, such as lawyers and non-governmental organisations (NGOs) beyond the state.

2. Spaces of double exception for mines and nature

Le Billon (2021) describes the spaces of double exception for extraction and nature conservation as two exclusionary regimes reinforcing one another, such as when protected areas are created to limit, offset or compensate extraction’s damage on nature, or when protected areas are downsized to give way to extraction. The convergence can manifest in many forms, from mining companies funding conservation research to the creation of national parks, and it does not necessarily take place at the same time and in the same places. It can include compensating the destruction of a national park in one place with more funding for already protected parks, thus potentially excluding more people from their lands and livelihoods as a result (Sullivan, 2013). Hence, the concept of spaces of double exception draws attention to the that risk ‘facilitating the opening up of lands to large-scale extraction, while closing others to traditional livelihoods and communities’ (Le Billon, 2021, p. 879).

Many scholars have noted the increasing imbrication of extraction and conservation regimes, which seemingly operate as ‘two sides of the same coin’ (Norris, 2017). Mining, gas, and oil concessions often overlap or are located close to protected areas (Durán et al., 2013, Osti et al., 2011, Sonter et al., 2018). This overlap is expected to intensify with the growing demand for ‘green’ minerals which are commonly found in biodiverse areas (Sonter et al., 2020). Protected areas are frequently curtailed to make way for mining concessions – an overtaking which is occurring at a rapid pace (Golden Kroner et al., 2019, Mascia et al., 2014). However, it is not merely that mining and conservation make a shared claim to the same spaces but they increasingly support each other and use similar neoliberal logics, both seeking to make value out of ‘nature’, whether out of extraction, rewilding, or ecotourism (Büscher & Davidov, 2013, Enns et al., 2019, Huff & Orengo, 2020, Norris, 2017, Purwins, 2022, Symons, 2018, Watson Jimenez & Davidsen, 2022).

This trend can be detrimental for communities who live in areas rich in minerals and/or biodiversity. While mining is widely known to displace people and nature, protected areas can similarly lead to eviction and exclude local livelihoods and knowledges. This especially occurs when discourses of ‘pure nature’ or ‘wilderness’ are deployed and with fortress conservation, when conservation is coercive and boundaries are strictly policed (Brockington et al., 2008, Duffy et al., 2019, Hazen & Harris, 2007, Peluso, 1993). The affinities between fortress conservation and extraction share colonial histories and ‘rest on a readiness to dispossess in the name of a “greater cause”’ (Le Billon, 2021, p. 879). If mining displaces people and creates ‘domestic migrants’, then protected areas can equally strip people of their land and generate ‘conservation refugees’ who must move and pay the price of conservation (Dowie, 2009, Hazen & Harris, 2007). While the ‘fortress ideal’ has largely withered away from the conservation discourse, boundaries still allow certain peoples, animals or things to cross while others are restricted (Fall, 2018).

Hence, it is not that spaces of exceptions are void of law, but the law applies differently to different groups and relies on the exception to strip certain people of their regular rights. For Agamben, spaces of exception emerge not out of a pure lawlessness but in relation to a legal infrastructure which accommodate the state of exception (cf. Hussain & Ptacek, 2000). The state can expel people from their lands marked for mining or conservation based on a justifiable necessity, and not necessarily because they are cast as enemies or criminals but merely because they are positioned at the margins of the political and legal existence, as homo sacer, a figure who can be banned, treated badly, or killed without repercussion (Agamben 1998). Agamben (1998) originally conceived of exceptional spaces as tools to analyse the ways in which the state and citizens interact and enact their relationships at the intersection of law and the exception (Wetterich, 2023, p. 78). Agamben’s (1998, 2005) theory of the state of exception particularly focuses on the politico-legal device that transforms the rule of law into a state of exception, and what this means for the relationship between law and politics and the state and its citizens.

As one starts to look closer into the politico-legal entanglements of the state’s right to expropriate or take over land due to eminent domain or national interests, it can give the impression that ‘the exception can no longer be eliminated’ (Fusco et al., 2021, p. 5). The notion that the law has increasingly sought to normalise the exception illustrates that it is not that ‘necessity has no law’ but that some laws are more important than others (Agamben and Attell, 2005). As Alden Wily (2011, p. 752) writes, sometimes the law is to blame: while perhaps not the driver of dispossession, the law can be ‘the culpable handmaiden or enabler’ of policies which foster ‘conventional dispossessory routes’. This exemplifies a ‘lawfare’ that relies on the violence inherent in the law; lawfare works by ‘lawful’ means and may reiterate colonial hierarchies of rights and preserve the tools by which colonial subjects were construed, ethnicized, and racialized (Comaroff, 2001, p. 309). The law and courts can be a straitjacket in many regards since these institutions tend to not properly protect indigenous rights and customary land users. Yet, as Comaroff and Comaroff (2007, p. 145) write, ‘lawfare might also be a weapon of the weak, turning authority back on itself by commissioning courts to make claims for resources, recognition, voice, integrity, sovereignty’. While ‘lawfare’ is primarily waged by the state, resistance movements may challenge the interpretation of law and claim that certain peoples have rights that override the state’s right to mine or conserve nature.

3. The other side of the exception: resistance as exceptional people

As Agamben and Attell (2005, p. 10) argues, ‘the problem of the state of exception presents clear analogies to the right of resistance’. Both the state and resistance movements can draw on extrajudicial grounds to act outside the law, and there might be provisions within the law activists can creatively interpret to claim the necessity to protect the nation, lands, natures, cultures, and peoples and to justify civil obedience. To oppose exceptionality, resistance movements can react with different tactics and actions. Legal activism, litigation, and utilization of the court system to challenge the state of exception seem to be growing in scale, possibly since legal action is a logical response when the stripping of rights is at stake.

Legal claims to indigenousness or tribalness have become a central strategy to fight both mining and conservation. The legal basis and discourse differ between countries, but national and international processes tend to shape each other. Indigenous or non-indigenous rights to land and culture may find support in international conventions and stipulate the rights to self-determination, free, prior, and informed consent, and fair compensation. Groups of people may self-position themselves as ‘indigenous’ or ‘tribal’ to gain this collective rights-based traction, but the identity may also be imposed upon people, forcing them to act out assigned roles (Idrus, 2022, Karlsson, 2003, Li, 2000). As Li (2000, p. 151) writes, ‘a group’s self-identification as tribal or indigenous is not natural or inevitable, but neither is it simply invented, adopted, or imposed’. It is, rather, a positioning and articulation which is shaped by inherited, often colonial, structures and may be realigned to strategically sway the court and public opinion. Tensions and contradictions emerge in litigation processes and raise the question of who speaks for whom. Who frames exceptionality and for whose purpose? These questions are always contextual and there is a unique dynamic when exceptions for mining, conservation and people are discussed in relation to each other.

This brings to mind the proposition by Przemysław Tacik (2021) to look at ‘the other side of the exception’ – exceptions which are siding with the marginalised population, often on the basis of international law. Instead of merely tracing the interest of the sovereign state of exception, it directs attention to the triad of exception-based conditions based on local, national, and international rights-based instruments that oblige states to safeguard rights of individuals or groups, such as Indigenous peoples. It is based on establishing an ‘alliance between the two zones of exception, international and sub-sovereign’ (Tacik, 2021, p. 71). There are multiple tensions and contradictions, though, in the space where the recognition of peoples’ right to self-determination collide with state sovereignty, specifically since states can opt out from voluntary international law and norms. For instance, while international law forbids genocide and crimes against humanity, it ‘relies on the power of the main perpetrators of these crimes – states—whose cooperation with international bodies is the primary condition of human rights protection’ (Tacik, 2021, pp. 68–69). As Tacik writes, ‘Internationally guaranteed human rights are therefore built upon the same disguise of exception’ (Tacik, 2021, p. 71). This politico-legal dynamic will be apparent in the case studies.

The remainder of this article turns its focus to how exceptionality may be formed and performed by resistance movements, such as by affected individuals and other activists, NGOs, and lawyers, and the tensions and contradictions that emerge from framing exceptionality. By drawing on two cases, I analyse how the category of exceptional people and their rights have been mobilised to thwart mining and conservation. I will begin with the case of the Dongria Kondhs in India, and then turn to the Basarwa in Botswana, after which I conclude with some reflections on what I call spaces of triple exception.

4. Resistance for exceptional peoples in India: the Dongria

In India, a plethora of laws generally protects the state’s right to mine and conserve nature, although there are exceptions to this rule. In general, though, the Indian Constitution grants the state the ownership of minerals lying beyond six inches under the surface. Many legal provisions give mining priority over all other land uses. This has been particularly devastating for the Adivasis. Adivasi is a Hindi name, literally meaning ‘original dwellers’, often referring to Indigenous peoples in India, or the Scheduled Tribes as they are known within the Constitution. The rights of Scheduled Tribes are protected under the Fifth and Sixth Schedules of the Indian Constitution. Listed tribes are subject to affirmative action, such as special protection under the law, entitlements to welfare and development schemes, and to special quotas in educational institutions, legislative bodies, and government jobs (Baviskar, 2007, Moodie, 2015).

However, even with these rights, the Adivasis have been evicted and dispossessed in masses because of industrial projects and conservation. When national parks were created for the protection of trophy species, many Adivasis became ‘conservation refugees’ and ‘encroachers’ on forest land in the colonial and state efforts to create ‘human-free wilderness zones’ (Dowie, 2009, Kumar & Kerr, 2012, Ramesh, 2017). These processes were met with massive public resistance, from peaceful sit-ins to armed protest and litigation, including appeals to remove the status of protected areas and acts of poisoning wildlife to eliminate the raison d’être of the reserves (Dowie, 2009, p. 126). Adivasi land has also been the internal frontier for an expanding Indian economy – a source of minerals and timber and a site for mines, dams, and heavy industries (Baviskar, 2007). Following massive resistance, the Recognition of Forest Rights Act was introduced in 2006 with the promises to undo the historical injustice of forest alienation and guarantee forest land for the Adivasi (Baviskar, 2007). In practice, though, there are many exceptions to rights-based laws in India. Nielsen and Nilsen (2015, p. 213) write that these ‘have inflicted huge misery on tribal populations in mineral-rich states’ including various attempts to do away with the free, prior, and informed consent requirement to reclaim the state’s right of way in the name of the eminent domain. India’s legal infrastructure is complex, though, and permits more self-rule over natural resources by indigenous communities in the Sixth Scheduled States, making them literal ‘States of exception’ (Lahiri-Dutt, 2017). However, this is not the case in Odisha State where the Adivasi group Dongria Kondhs of Niyamgiri hills live.

The rights for the Dongria Kondhs to stay on their lands were challenged in 2003, when a UK-based mining and metals corporation called Vedanta Aluminium signed a Memorandum of Understanding with the state-owned Orissa Mining Corporation to extract bauxite, the ore from which aluminium is produced. By 2004, Vedanta and the Odisha State had agreed to run the mine as a joint venture, and when these plans began to materialise on the ground, it prompted local resistance (Kraemer et al., 2013). Arpita (2020) writes that the hills are highly susceptible to violations given that the marginalized Adivasi communities might be ‘unaware’ or ‘deprived of’ their constitutional rights (p. 140). The Niyamgiri struggle, however, quickly grew into a broad, transnational anti-mining movement, attracting local activists and affected villagers, nearby movements, researchers, politicians, conservation organisations, human rights and indigenous rights networks, and international NGOs (Kumar, 2014).

By 2002, the resistance movement initiated a chain of litigation. In 2004, a legal petition was filed against the proposed mine with the Supreme Court on the grounds that it violated the Indian Constitution, the Environmental Protection Act, and the Forest Conservation Act and trampled the ‘Fifth Schedule’, which guarantees tribal people certain fundamental rights, especially the non-alienability of their lands (Padel & Das, 2010a). The proposed mining area was situated on various forest reserves and protected forests, and activists figured that biodiversity could be leveraged to take legal action on conservation grounds and mobilise support from environmental and conservation organisations (Environmental Protection Group Orissa, 2004, Kumar, 2014). When environmental grounds seemingly failed, the exceptionality of the Dongria Kondhs became the main basis for the litigation, especially by 2006 when the Forest Rights Act came into force. Human rights charges were later added to the anti-mining campaign, such as assaults and intimidations associated with the attempts to counter resistance. This litigation turned out to be a ‘paralysing dispute’ (Oskarsson, 2018). The project was held up in court for more than ten years.

In 2013, the Supreme Court passed the landmark judgement which upheld several constitutional provisions regarding the protection of Scheduled Tribes in Indian law, ordering the State to place customary rights over the right to mine and to grant the decision-making power to the village councils. The Court leaned on a committee report stating that under the Forest Rights Act, the local tribes have rights – and so the Supreme Court ordered twelve village councils in the area to hold a referendum. The state did not, in other words, decide on the issue of mining. Instead the Supreme Court chose to see the community as being ‘in charge of its own “culture” and, by extension, in charge of “preserving” the local habitat and ecology’ (Krishnan & Naga, 2017, p. 892). The village councils unanimously rejected the mining project, which effectively stopped the mining plans (Arpita, 2020).

4.1. Performing exceptionality

Many scholars argue that the Dongria became the central group through which this battle was waged because of their special features and connection to the land. The Dongria belong to the ‘Particularly Vulnerable Tribal Groups’ and are entitled to apply for what is called habitat rights based on ‘their unique association with the territories that they inhabit, and the intertwining nature of their lives with the land on which they live and derive sustenance’ (Ramesh, 2017; Tatpati et al., 26 May 2015). That the hills are a ‘treasure chest’ of bauxite was opposed through a life-giving hills discourse that centred their vital role for sustainable livelihoods (Oskarsson, 2017). Some resisters even refused to draw a strict distinction between ecology and economy and between the human and nonhuman to reinforce the idea that the hills were basically life-giving, ‘full stop’ (Krishnan & Naga, 2017, p. 885).

It is believed that the bauxite in the hills plays an important role in maintaining the rich biodiversity of the area and providing the mountains and agricultural planes with water throughout the seasons (Padel & Das, 2010b, Ramesh, 2017). The biodiverse forests are part of a discontinuous mountain range bound by the Karlapat Wildlife Sanctuary on the north-west end and Kotgarh Wildlife Sanctuary on the north-east (Saxena et al., 2010, Tokita-Tanabe & Tanabe, 2014). In this case, however, it was not primarily ‘exceptional biodiversity’ that held back bauxite mining companies but the tribalness and special rights of the forest-dwelling community, Dongria Kondh, who were deemed eligible for special protection under the Forest Rights Act. This articulation became an issue, specifically to those who saw it as internationally imposed.

The international organisations involved, ActionAid and the Survival International, were accused of misrepresenting the tribe and imposing a charismatic indigeneity upon the Dongria Kondhs. Survival built their campaign on the discourse of indigeneity, which essentialized the Dongria Kondhs by dressing and scripting an ‘authentic’ performance while elevating certain group members as the iconic faces of the struggle (Kraemer et al., 2013, Kumar, 2014). When Time Magazine published an article quoting an activist lawyer calling the Dongria the modern-day Avatar, it inspired international supporters to suit up in blue customs with funny ears, urging people ‘to save the real Avatar tribe’ (Borde & Bluemling, 2021, Survival International, 2023).

The stereotyping was not invented from scratch. The Ministry of Tribal Affairs defines the Dongria as ‘ideally hospitable, exceptionally candid and remarkably simple, the Dongrias live amid Nature’ (Ota & Mohanty, 2007). This framing sedimented who the Dongria could be and become. However, such descriptions, like the hospitable character, for instance, should not be taken for granted. According to the reports and films that showcased the struggle, the local Adivasi would stop at nothing to defend their lands (Amnesty International, 2010, 2011, Survival International, 2010, 2011). As a Dongria woman said, ‘We won’t give our forest to anybody, even if you kill us, even if you hang us’ (Survival International, 2010). The woman even calculated the costs that the state of exception would imply: ‘All us women will go to jail. How many people can they keep in jail? How long can the police keep us for? They will give me rice and meat, so I’ll live in jail. I’m not going to leave my Niyam Raja until I die’ (Survival International, 2010). Dark poetry was also invoked to communicate that the Dongria have deep connections to the land. As one individual self-declared: ‘the Dongrias are like fish in a pond. If you take them out of Niyamgiri, they will die like fish out of water’ … ‘if we don’t fight, we’ll become nomadic like birds. We’ll die like fish without water’ (Survival International, 2010).

ActionAid, in turn, emphasised the threat to sacred spaces considered an abode of God (Arpita, 2020). For instance, the Dongria changed their religious practices to appeal to mainstream Hindu culture, such as by sacrificing goats instead of buffaloes, and staged ceremonies at the top of the mountain to claim that the locus of religiosity was precisely where the lion’s share of bauxite was. A crux of this staging was that the mining ban that came as a result of the court case only involved the mountain top and did not extend to the entire mountain range, even though its entirety is considered sacred by the tribe (Borde & Bluemling, 2021). Such interference led to tensions among the different groups of the resistance movement. While ActionAid’s event was seen as ‘externally imposed’, more localised movements also performed resistance on the mountain top, but they in turn banned international actors from appearing, partly with the motive that they acted like ‘another extractive industry’ (Kraemer et al., 2013, p. 840, 843). Scholars in turn reinforced the idea that international actors were imposing tribalness upon the Dongria, whereas the involvement of Indian activists were depicted in a more favourable light for connecting the Dongria Kondh to a network of political struggles attempting to change government policy on mineral investment and extraction (Kraemer et al., 2013, Kumar, 2014).

4.2. Ambivalent resistance

The exclusive focus on the Dongria Kondhs had some unfortunate consequences. By anointing some people as exceptional, others are excluded. The mining resistance built on indigenous tropes in the way that it chose to portray Dongria Kondh as uniquely ‘tribal’ and excluded other overlapping and potentially alternative claims to the hill. According to some reports, the Dongria had wanted the hills to belong to all of the communities that inhabit the area (Tatpati et al., 26 May 2015; Tokita-Tanabe & Tanabe, 2014). The mobilisation, litigation, and verdict, though, placed nearly all its focus on the Dongria, who became the empowered group, leaving others excluded despite the possibility for these groups to make similar claims to the land. As Krishnan and Naga (2017) point out, by privileging one tribe, other agrarian and fishing communities failed to access power and legitimacy for their ecological narratives: they were not as successful, not ‘indigenous’ or ‘photogenic’ enough to be recognised within the ambit of law (p. 892, 889). This narrow gaze would soon prove problematic as the mining company turned to bauxite-rich neighbouring areas to feed the alumina refinery already in place (Padel & Das, 2010a, Temper & Martinez-Alier, 2013).

Who framed this exceptionality is a muddy question. To some, the representational strategies of the Niyamgiri Movement created space for the Dongria ‘to voice themselves – in opposition to oppressive power structures and beyond the strategic narratives delineated by the activists who represented them’ (Borde & Bluemling, 2021, p. 68). Indeed, scholars report that individuals used indigeneity creatively, such as a subject best avoided when they tried to source compensation or jobs from the mining company (Krishnan & Naga, 2017). But to historize the case as a unique form of local resistance, an ‘environmentalism of the poor’ might be an overstatement (Arpita, 2020, Martinez-Alier, 2002). Scholars highlight the ambiguity of the win, particularly for how indigeneity was used in an overzealous way to block the mine and the international pressure to perform certain essentialised or state-endorsed categories of belonging (Kraemer et al., 2013, Ramesh, 2017). The indigenous question was heavily debated in India at the time, and Survival International, an organisation working for international tribal rights, brought its own agenda to the cause. Overall, the Dongria were portrayed ‘as a community under siege, as authentic nature-loving Adivasis who have a deep and spiritual bond with the mountain eco-space’. This categorisation proved quite strategic as it resonated with the governmental interests at the time: it provided the Congress with a convenient political opportunity to side with the anti-miners and at the same time ‘bolster its credentials as a party “concerned” with Adivasis and their lives’ (Krishnan & Naga, 2017, p. 891).

However, the win curtailed who the Dongrias could ‘be’ and the lives they could live. On the one hand, the Dongria had to adhere to state and popular expectations of what makes a group ‘tribal’ and in need of protection: ‘they have to perform their marginality, their vulnerability, and, ultimately, their Otherness’ (Ramesh, 2017, p. 173). On the other hand, they now firmly belonged to the group of modern rights-bearing citizens, with all its bureaucracy and limitations. This made it an ambivalent resistance, as the people were caught in-between modernity and the traditional to benefit from their exceptional recognition to land (Ramesh, 2017). What this case tells us is that occupying the tribal category is fraught with difficulties; yet performing exceptionality and litigating based on exceptional peoples’ rights can be a powerful way to challenge the otherwise dominant right to mine. I move on to explore these issues as they unfold in the case of the Basarwa.

5. Resistance for exceptional people in Botswana: the Basarwa

The Basarwa case in Botswana resembles that of the Dongria in several respects. It has been portrayed as a classic David and Goliath story and historic victory for the ‘powerless’ Basarwa, also referred to as the San or Bushmen, who successfully took on the state and reclaimed their rights to stay in the Central Kalahari Game Reserve. From 1997 onwards, the Basarwa had been relocated to settlements outside the reserve, allegedly to protect wildlife and to give the Basarwa a dignified life. In 2002, a new wave of removals prompted organised resistance and a lawsuit was filed with the support of international actors. Like the Dongria, the Basarwa had Survival International in its corner, a UK-based NGO which worked up a campaign that gave the impression that the land rights for all ‘Bushmen’ in Botswana were at stake (Solway, 2011). The ambivalent resistance in this case pertains to the fact that it only involved the rights of the 243 individuals who had been acknowledged as applicants, seeking to regain the rights to live on their ancestral land in the reserve (Sapignoli, 2015, p. 295). It became the longest and largest court case in Botswana history. By 2006, the judges ruled that the relocation by the government had been ‘unlawful and unconstitutional’, and that the Basarwa have the right to live inside the reserve, to hunt and gather in the reserve, and should not have to apply for permits to enter it.

The game reserve is in the central Kalahari Desert and is one of the largest in the world: 52800 square kilometres in a region that is generally considered the ancestral land of the Basarwa and simultaneously one the world’s richest gem diamond fields (Survival International, 2006). It was created in 1961 by the British Protectorate with the intention to establish a game reserve to conserve African flora and fauna, as well as to provide a place where Basarwa may reside and hunt freely (Sapignoli, 2015, p. 291). The reserve has its origins in earlier dispossessions since the British colonialists turned a large part of the Basarwa land into South African farms, which in turn cast the Basarwa as ‘squatters’, ‘beggars’, and ‘thieves’; hence, a land reserved only for the Basarwa was to resolve this ‘nuisance’, even though the root of the problem was the shrinking of the Basarwa hunting and gathering territories (Mbaiwa & Thakadu, 2022, p. 142). The purpose of the reserve was important, given that the ‘game reserve’ category might suggest that the Basarwa should not live or hunt there. Scholars, however, claim that the British colonialists had proposed that the reserve be called a ‘Bushmen Reserve’ but it was changed to a ‘game reserve’ to not appear to contribute to racial segregation and provoke an international outcry as experienced in the neighbouring, apartheid South Africa (Mbaiwa & Thakadu, 2022, p. 142). That the state had continuously exempted the Basarwa from the ordinary rules of a game reserve by allowing them to stay, traverse, and hunt was, however, taken as an indicator that the state had de facto recognised their special status and customary rights to the land. The most progressive judge reasoned that ‘Parliament would hardly facilitate that which is unlawful’ (Ruling, p. 216).

Why the Basarwa were moved was a matter of dispute, though. The court and many other observers reckoned that the Basarwa had become a problem for the protection of wildlife and tourism. Their changing lifestyle was increasingly seen as incompatible with the reserve’s status. A decisive factor was the shift in the 1980s when the discourse changed from people to nature, which put pressure on guards to be more proactive and arrest people for illegal hunting. Then came the governmental decision to make the reserve a ‘people-free zone’. When the President of Botswana was asked to comment on the issue in the UK, he bluntly said that the reserve ‘is for animals, not people’ and that he, as a fellow countryman, understood that people want modern lifestyles (Survival International, n.d.). The state defended the relocation in these terms, that all citizens of Botswana should live by the same standards. In contrast to the Indian case, Botswana has not afforded indigenous peoples any special rights but considers them ‘citizens of the Country as everyone else’ (Sapignoli, 2009). This discourse also played into the removal of the Basarwa from the reserve since a concern was that they were ‘not being treated in the same way as other people in the country, or even simply as human beings’ (Sapignoli, 2015, p. 290). According to the Court judgement, the then Minister of Local Government had written one of the human rights organisations to affirm that the Government had the interests of the Basarwa at heart: ‘We as a Government simply believe it is totally unfair, to leave a portion of our citizens underdeveloped under the pretext that we are allowing them to practice their culture. … All we want to do is treat Basarwa as humans not Game’ (cited on p. 243–244, access at FPK, n.d.). Scholars uniformly report that this was the state rationale: the reserve was not considered a proper place for a life of human dignity, seeing that it was far too remote to enjoy state services and support packages (Boonzaier, 2011; Sapignoli, 2009; Solway, 2009, 2011).

5.1. Performing exceptionality

The Basarwa advocates had to challenge this discourse by raising the tribal exception. Like in India, the indigenous question is difficult because most people originate from the place, or they have equally been displaced and forced to migrate for colonial or other reasons. This latter precarious condition might be what defines indigeneity, however. In Botswana, exclusionary and discriminatory processes and practices have particularly pertained to minorities, such as the Basarwa as they are known in Botswana, or the San or the ‘Bushmen’ as they are also called (Solway, 2011). These names are originally derogatory terms used by the dominant ethnic groups who saw them ‘as part of the ‘bush’, in other words, part of nature; the “inhuman others’’’ (Sapignoli, 2015, p. 287). Today these labels are used interchangeably, even in affirmative ways to self-claim indigeneity. The Basarwa group comprise around 65,000 persons who tend to call themselves by their own group names and have only recently started to self-identify as belonging to the political and legal categories of San and indigenous peoples (Bocongo and BWO, 2023, IWGIA International Work Group for Indigenous Affairs, 2019).

There are no specific laws on indigenous peoples’ rights in Botswana nor is the concept of indigenous peoples included in the Constitution. The Botswana government maintains that all citizens of the country are equally indigenous. A conceptual problem in Southern Africa is that the indigenous ‘would include the vast majority of the population – all but those of European descent’ (Boonzaier, 2011, p. 97). The privileging of the Basarwa above other ‘indigenous’ citizens was problematic from this perspective. Following the international declarations, though, indigenous rights organisations argue that the state should recognise and protect the rights of those who identify as belonging to indigenous groups, and acknowledge that they need to give free, prior, and informed consent (FPIC) if relocated (Bocongo and BWO, 2023). Botswana is a signatory of the United Nations Declaration on the Rights of Indigenous Peoples but not the International Labour Organization Convention 169 on Indigenous and Tribal Peoples. Like other countries who have not signed but consider themselves to be righteous, Botswana is a so-called neutral state that thinks it is wise to not segregate, or more cynically, risk that indigenous people can veto industrial projects. To the Botswana state, it wasn’t that the Basarwa lacked rights, but that these were merely limited to equal citizenship (Sapignoli, 2018)

There was one exception, though, which the lawyers took advantage of. The Constitution provides protection for ‘Bushmen’ areas, which are specially protected in that others may be excluded on the grounds that the freedom of mobility is reasonably restricted for the protection or well-being of Bushmen. Hence the Bushman identity was important to occupy, and a key issue was whether the two different ethnic groups, the Basarwa and the Bakgalagadi, could both be considered Bushmen. According to Sapignoli (2018, p. 220), several questions were raised in court, including ‘Who are the Bushmen present in the Constitution? Do they exist today? Are they part of the peoples who have been recognised internally as indigenous? Are they indigenous to the reserves?’ The lawyer maintained that the Basarwa were ‘exceptional in that they were still practicing a lifestyle that was essentially that of traditional hunter-gatherers’ which was deemed ‘exceptionally traditional and pristine’ (Boonzaier, 2011, p. 97). Sapignoli (2018) reveals, though, that the lawyer argued that the Basarwa and the Bakgalagadi are indigenous to the reserve and ‘that there was no need to make a distinction between them because both are ‘Bushmen people’ (p. 219). Sapignoli (2018) also reveals that the same lawyer later took on the Niyamgiri case and, like in India, it was one group of people – the Basarwa (San) – who received most of the limelight. Boonzaier (2011) argues we should perhaps not view the court case as a win for the Basarwa but look critically at the media circus and somewhat obscene publicity orchestrated by mainly foreign NGOs and pay attention to ‘the other side of the story – the minority one that did not receive much support’ (p. 98). Unfortunately, there is not much literature capturing this side.

5.2. Ambivalent resistance

Sapignoli (2018) writes that the justice campaign ticked many of the boxes of a successful movement. It was fronted by charismatic people who were affected by the removals, made use of reputable experts, and built broad alliances with international NGOs and movements of indigenous peoples. It managed to attain global media exposure and drew attention to the hypocrisy of removing indigenous peoples to sustain tourism or diamond mining in the reserve. The ruling acknowledged that the residents had been forced to leave and they were indigenous peoples, which offered an unprecedented ruling in Botswana history.

Yet, the legal win was ambiguous in similar ways to the Dongria case. Even as the court recognised the constitutional rights of Bushmen, change was curtailed as the state had other ways to empty the reserve of people and the return to reserve was obstructed by a government that had been forced to lose face. Only the remaining 189 Basarwa plaintiffs were allowed to return to the reserve, and while they were allowed to hunt without permits, they were not permitted to hunt other than as they had done traditionally. Under the heading ‘We just want to go home’, the First People of the Kalahari (FPK, n.d.) appealed online that, ‘despite the judgment, the government won’t let us hunt and is stopping us using the water borehole on our land. It has also refused to help us with transport home. Because of this, most of us have not yet been able to return’. The state made it clear that if people moved back, they would not enjoy state services as ordinary citizens; not even drilling a borehole or carrying water into the reserve was permitted (Solway, 2009, 2011).

The Basarwa likely became the punching bag for a state accused of genocide and trafficking in blood diamonds. These ‘false’ accusations of state violence and corruption were interpreted as an attack on sovereignty and threat to the diamond and tourism industry (Solway, 2009, 2011, p. 234). The international pressure for Botswana to recognise the Basarwa as indigenous peoples, and secure their rights as such, probably aggravated this situation. As Emile Boonzaier (2011) points out, ‘not all legislatures and governments are equally amenable to efforts to privilege particular sections of their populations’ (p. 101). To claim indigenous rights in Southern Africa was perceived as an imported discourse, as taking sides against the state, as challenging sovereignty. Sapignoli (2018, p. 332) adds that ‘When the San and their allies crossed the line, when they used their leverage with international publics to go after the country’s diamonds and tourism, the gloves came off and the government took punitive measures’. This included a strict control of the movement of people, animals, water, food, and hunting gear in and out of the reserve. While the listed applicants were allowed to live within the reserve, subsistence practices were banned and criminalized and unlisted family members had to go through a tedious permit process to visit. Over time, the reserve was expected to be emptied of people. When new members of listed families turned eighteen, they were excluded from the reserve. This constrained ‘victory’ achieved by the Basarwa and Bakgalagadi and their legal team provoked a chain of litigation to regain life, to hunt justice (Sapignoli, 2018). This suggests that the case was perhaps not merely tainted by postcolonial myths of the unchanged Basarwa, who were expected to remain static in an almost ‘timeless’ scenario (Mbaiwa & Thakadu, 2022, p. 137). Rather, the future of the Basarwa was at risk as the state tried to restrict coming generations to live in the reserve.

6. Conclusion: spaces of triple exception

The aim of this article has been to contribute to the understanding of resistance and change in spaces of double exception brought on by mining and conservation regimes. In these states of exception, concessions and protected areas can strip people of their rights based on the state’s right to mine and conserve nature. As Le Billon (2021) noted when coining the ‘double exception’, many mining companies and conservation organisations have become odd allies; but it can be a dangerous collusion, considering the common politics of enmity directed at local communities and groups who are generally considered nature-caring. This imperils the possibilities for bottom-up resistance since the interests in protecting mineral and nature reserves easily stack up against the people and laws that protect indigenous or smallholder rights. Both mining and nature conservation has long trumped collective and customary land rights in most jurisdictions, and it is important to trace how resistance to rights stripping works and to document the hurdles and successes. In the analysis, I highlighted how the state’s exceptional rights to mine and conserve nature may be opposed by a rival exception: that of exceptional people who may, by articulating tribal or indigenous membership, occupy space and articulate, substantiate, and defend claims to land.

In this article, I focused on two ‘historic wins’ by resistance movements and described how they pushed back on the double ‘Goliaths’. In many ways, the Dongria and Basarwa cases are success stories that can stimulate global imaginaries for legal resistance; yet performing exceptional – indigenous or tribal – peoples leave a difficult residue for those who must live under the fraught conditions the categorisations engendered. Groups like the Dongria Kondh and Basarwa did not choose all the terms under which they would be marked and recognised by the state or their own advocates. By performing the role of exceptional people, certain rights were reclaimed. The other side of the coin was that their lives and lifestyles were legally recognized as different in relation to other citizens and may need to remain so or their status and special rights might be lost.

Political-legal devices like these are likely to continue to constrain as much as they enable and exclude as much as they include (Moodie, 2015). Boundary making is one of the dangers of creating spaces of exception for tribal or indigenous peoples or based on ethnic or origins. They may end up excluding the non-indigenous, ethnic others and reinforce a society of enmity (Karlsson, 2003, Li, 2002, Mbembe, 2019). Indigenous claims may be twisted to justify violence and exclusion since entitlements grounded in certain people’s attachments to place may create ‘radical insecurities for others who find themselves “out of place”, and subject to violent exclusion’ (Li, 2002, p. 365).

We need to be wary, therefore, of legal action in spaces that are not accustomed to legal pluralism. Legal activism requires attention to the historical and structural injustices ingrained in institutions such as law and legal practice. These institutions are often founded upon colonial-era legislation and court systems that curtail what can be claimed, by whom, and through which mode of expression and testimony (Temper, 2019). In contexts where norms and regulations reproduce racial difference, economic inequalities, or violent insecurities, these institutions cannot be treated as existing outside of systems of exploitation (Galvin, 2021). Rather, they belong to the regime of exclusion. Sapignoli (2009) points out that the courtroom can ‘impose identity categories, recognize them, build them, or make them invisible’. In these court cases, it matters who is called in as an expert or witness to different people’s authenticity and indigenousness, who speaks on behalf of whom, and how identities are formed, performed, and represented.

These questions are not new but are a moving target, and, while change is slow, it is not absent. How indigeneity and tribalness are performed today differs from the past, and new lines of inclusion and exclusion are drawn. Exceptional spaces will continue to unfold differently for people alongside intersectional distinctions, such as ethnicity, nationality, gender, religion, sexuality, age and ability (cf. Wetterich, 2023). I have presented two historical cases on this matter to signpost ‘the other side of the exception’ (Tacik, 2021) in Le Billon’s (2021). Newer cases would help illustrate the power of occupying space through the figure of exceptional people – against the state of exceptions that are working for mining and nature conservation.

In conclusion, I propose to expand Le Billon’s (2021) to a triplet. By tracing the ways through which the exceptionality of people is made to matter, and how the exceptions for mines, parks and peoples intersect with each other and create new lines of inclusion and exclusion, I propose ‘spaces of triple exception’. Through this concept, we may critically address how exceptionality is performed by diverse actors and direct attention to the battle between different kinds of exceptions, including those raised in the name of exceptional people, indigeneity, or other labels and self-labelling used as resistance. This encompasses ‘the other side of the exception’ (Tacik, 2021), how resistance movements push back on the state of exception for mining and conservation by drawing from the realm of human and indigenous rights protection based on international law. Not only are the spaces of exception placed in a different light when we look at them from the side of resistance, but it contributes to a better understanding of the triad of the state of exception. The state does not have a monopoly on crafting exceptions in the law, but so can exceptional populations and indigenous and human rights advocates. This has implications for how we understand the practices that can lead to spaces of exception as well as how we understand the relationship between the state, citizens, and exceptional people. Spaces of triple exception further hints at the potential backside that we need to be wary off; how the approach unfolds for those who are not deemed exceptional enough. Indigenous and tribal rights discourse can take a dark turn toward violence and exclusions, such that the trope and legal entitlements of common citizenship should not be abandoned (Li, 2002).

In the Niyamgiri hills and in the Kalahari Desert, the battles continue. Both mining and conservation players persist in their agenda to either extract or conserve the areas in ways that contradict the wins of the resistance movements. Over time, the mining ‘conspiracy theory’ that people were removed from the reserve to make way for mining in Botswana seems true. By 2015, there was a diamond mine in the southeast of the reserve, a planned copper – silver mine in the northwest, and several mining prospects pending (Sapignoli, 2015, p. 294). Today, there is scramble for oil, gas, coal, minerals, and ‘green’ metals in the area, including an exploration licence for natural gas and petroleum over a series of blocks amounting to almost 45,000 square kilometres, most of them in the reserve (Stoddard, 2023). These developments are most likely underpinned by new rules and exceptions, which in turn triggers new forms of resistance and allies and enemies. Sapignoli (2018, pp. 284–285) however noted that none of the international NGOs that acted in support of the residents were prepared to advocate for their right to benefit from the mines and tourist lodges. This suggests that while mining and conservation regimes converge, there is still firm resistance against both.

Acknowledgments

I would like to thank Anders Burman and Patrik Oskarsson for their encouragement and feedback that helped strengthen the arguments of this article, as well as two reviewers for their critical guidance on an earlier draft. Any errors are mine alone.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by Formas under Grant 2021-01874.

Notes on contributors

Marie Widengård

Marie Widengård is a researcher in the environmental social sciences, focusing on the politics of nature and natural resources.