Biocultural Rights, Indigenous Peoples and Local Communities

Protecting Culture and the Environment

Fabien Girard, Ingrid Hall, Christine Frison, Fabien Girard, Ingrid Hall, Christine Frison

• Verlag: Routledge
• Jahr: 2022
• ISBN:
  9781000593655
• Auflage: 1
• Thema: Law
• Thema: Environmental Law

This volume presents a comprehensive overview of biocultural rights, examining how we can promote the role of indigenous peoples and local communities as environmental stewards and how we can ensure that their ways of life are protected.

With Biocultural Community Protocols (BCPs) or Community Protocols (CPs)being increasingly seen as a powerful way of tackling this immense challenge, this book investigates these new instruments and considers the lessons that can be learnt about the situation of indigenous peoples and local communities. It opens with theoretical insights which provide the reader with foundational concepts such as biocultural diversity, biocultural rights and community rule-making. In Part Two, the book moves on to community protocols within the Access Benefit Sharing (ABS) context, while taking a glimpse into the nature and role of community protocols beyond issues of access to genetic resources and traditional knowledge. A thorough review of specific cases drawn from field-based research around the world is presented in this part. Comprehensive chapters also explore the negotiation process and raise stimulating questions about the role of international brokers and organizations and the way they can use BCPs/CPs as disciplinary tools for national and regional planning or to serve powerful institutional interests. Finally, the third part of the book considers whether BCPs/CPs, notably through their emphasis on "stewardship of nature" and "tradition", can be seen as problematic arrangements that constrain indigenous peoples within the Western imagination, without any hope of them reconstructing their identities according to their own visions, or whether they can be seen as political tools and representational strategies used by indigenous peoples in their struggle for greater rights to their land, territories and resources, and for more political space.

This volume will be of great interest to students and scholars of environmental law, indigenous peoples, biodiversity conservation and environmental anthropology. It will also be of great use to professionals and policymakers involved in environmental management and the protection of indigenous rights.

The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license

1 Community Protocols and Biocultural Rights Unravelling the Biocultural Nexus in ABS

Fabien Girard, Ingrid Hall, Christine Frison¹

DOI: 10.4324/9781003172642-1

To introduce this collection of chapters, we explore the “biological diversity/cultural diversity” nexus against the backdrop of biocultural community protocols (BCPs) and biocultural rights. BCPs and biocultural rights signal the development of biocultural approaches in biodiversity conservation. However, by no means, they can be confined to the sphere of conservation. They speak to the heart of sovereignty and the politics of identity, as much as they have a bearing on land claims and touch upon issues that we may venture to place under the heading of political ontology. The coming together of BCPs and biocultural rights, the success of which is in large part credited to the lawyer and activist Kabir Bavikatte (Bavikatte, 2014), shows that we are treading new ground. In the Mo’otz Kuxtal Voluntary Guidelines, (Biocultural) Community Protocols (CPs) are broadly defined as a

[…] term that covers a broad array of expressions, articulations, rules and practices generated by communities to set out how they expect other stakeholders to engage with them. They may reference customary as well as national or international laws to affirm their rights to be approached according to a certain set of standards. Articulating information, relevant factors, and details of customary laws and traditional authorities helps other stakeholders to better understand the community’s values and customary laws. Community protocols provide communities an opportunity to focus on their development aspirations vis-a-vis their rights and to articulate for themselves and for users their understanding of their bio-cultural heritage and therefore on what basis they will engage with a variety of stakeholders. By considering the interconnections of their land rights, current socio-economic situation, environmental concerns, customary laws and traditional knowledge, communities are better placed to determine for themselves how to negotiate with a variety of actors.²

While these guidelines address “prior and informed consent”, “free, prior and informed consent”, or the “approval and involvement” of Indigenous peoples and local communities (IPLCs) in order to access their knowledge, innovations, and practices, the expansive acceptance of CPs shows the extent to which theoretical work on biocultural rights has percolated into the framing of BCPs/CPs. Bavikatte conceived of biocultural rights as a “bundle” encompassing (i) the right to land, territory, and natural resources; (ii) the right to self-determination, principally understood here in its “internal” dimension, i.e. the right of communities to autonomy and self-administration; and (iii) cultural rights. Additionally, “stewardship” (or “guardianship”), which Bavikatte saw as the cornerstone of biocultural jurisprudence (Bavikatte & Bennett, 2015), is now enshrined in another document emanating from the Convention on Biological Diversity³ (CBD), the Tkarihwaié:ri Code of Ethical Conduct.⁴ It is also reflected in the first decision to build on biocultural rights and BCPs, the Atrato River Case from the Constitutional Court of Colombia (Macpherson et al., 2020).⁵

The remaining part of this introductory chapter investigates the popularisation of BCPs within the Access and Benefit-Sharing (ABS) context, linking it to the rise of biocultural jurisprudence and against the short history of the interlinkages between cultural diversity and biological diversity in conservation. It begins with the context, marked by the high profile which has been progressively gained by “traditional” communities at the end of the last century. It situates this progression within an institutional and political context markedly concerned with North-South imbalances in access to genetic resources and the shifting ground in conservation which saw a dramatic reappraisal of the role of IPLCs and peasants/farmers in the management of biodiversity. This series of shifts, to which biocultural approaches gave decisive impetus, have gone so far as to open fresh, sweeping debates on self-determination and sovereignty over resources for IPLCs.

The chapter then moves on to introduce the scope of the book. To begin with, the first section traces the history of BCPs/CPs from the emergence of the so-called “cultural protocols” to the enshrinement of CPs in the Nagoya Protocol. BCPs/CPs are then successively assessed as legal and political tools, against the backdrop of biocultural jurisprudence, while a final note investigates the contentious concept of “stewardship” in conservation. The last section briefly outlines the content of the remaining chapters in the volume.

While this book is not devoid of Indigenous voices, it does not claim to speak on behalf of Indigenous peoples, local communities, or peasants. We do hope, at the very least, that it speaks to the depth of knowledge and perspectives shared with us by Indigenous peoples, local communities, and peasants over the course of our research.

The Context: “Traditional” Communities and Biodiversity Conservation

Since the late 1980s, the key role played by IPLCs in the sustainable management of complex ecological systems has increasingly been recognised. As early as 1987, the Brundtland Report took the view that IPLCs (referred to as “indigenous or tribal peoples”) are “the repositories of vast accumulations of traditional knowledge [TK] and experience that links humanity with its ancient origins”, and warned that “their disappearance is a loss for the larger society, which could learn a great deal from their traditional skills in sustainably managing very complex ecological systems” (Brundtland and the World Commission on Environment and Development 1987). At about the same time, the Declaration of Belém (1988), very much imbued with Posey’s tenacious work on debunking misconceptions about Indigenous peoples, emphatically declared that “[…] native peoples have been stewards of 99 percent of the world’s genetic resources” and forcefully stressed the “link between cultural and biological diversity”.⁶

In the following years, as concerns on environmental deterioration and the erosion of biodiversity were beginning to reach the broader public, and alternative, much more participative, people-centred, and place-based approaches were gaining momentum (Altieri et al., 1987; Freeman, 1989; Oldfield & Alcorn, 1987; Toledo, 1990), “attention has expanded to include a wide range of local communities, including forest peoples, farmers, fishers, herders, pastoralists, diversely manifested around the world” (IPBES, 2019). The increasing awareness to local communities is probably best captured by the CBD, Article 8(j) of which requires each contracting party to

respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices.⁷

According to estimates, there are around 5,000 groups of Indigenous peoples in the world (Hall & Patrinos, 2012), amounting to 476 million people (ILO, 2021, p. 10). Some have never been in contact with other human societies, others are isolated (sometimes voluntarily after disastrous contacts), and yet others have had brief contact. Other much larger groups can be found across the globe, including in peri-urban areas and urban centres. Local communities represent an even larger population, and are as diverse and widely distributed around the world. When considered together, IPLCs⁸ represent about 1 billion people and it is estimated that they hold, either under customary tenure or a community-based regime (formally recognised in domestic law), between half and two-thirds of the world’s lands (Wily, 2011).⁹

In recent years, much effort has been undertaken to document and appraise the role of IPLCs in shaping the ecologies and resource of vast regions of the world, for instance, in the management of forests, soil fertility, grasslands, mountains, watersheds, and coastal areas (IPBES, 2019). Furthermore, there is now ample evidence that farmer-managed seed systems have been instrumental in building viable and diverse crop types over millennia and that they continue to provide more than 70% of the seeds used around the world today (McGuire & Sperling, 2016).

In addition, after centuries of disregard or contemptuous treatment, Indigenous and Local Knowledge (ILK), also referred to as Traditional Ecological Knowledge (TEK) or simply TK, has recently stirred up a great deal of interest from conservation biologists, ecologists, “sustainability” scientists, and, of course, geographers, anthropologists, sociologists, and political scientists. TEK refers to

[…] the worldviews, knowledge, practices, and innovations embedded in the relationship between people and nature, as expressed in local knowledge about the natural world, techniques and technologies of resource management, as well as in local institutions governing social relations and relationship to nature.

(IPBES, 2019, p. 37)

TEK is placed-based, is embodied in social structures, and has a holistic dimension. In contrast to the way it was previously commonly pictured as backward, static, and self-contained, it is now commonly described as open and hybrid, dynamically evolving, as IPLCs appropriate new forms of knowledge and interact with animals, plants, and land (Berkes, 2012, p. 7; Berkes & Berkes, 2009, p. 7).

These significant changes in perspective have contributed decisively towards IPLCs being recognised as major actors in the struggle against climate change (IPCC, 2015, pp. 758, 765–766) and the erosion of biodiversity (Secretariat of the Convention on Biological Diversity, 2020, p. 115). The IPBES’ most recent Global Assessment Report on Biodiversity and Ecosystem Services underlines, in singularly forceful fashion, that:

While local in action, IPLC management of nature and biodiversity provides contributions to the larger society, in rural and urban areas alike, includi...

Inhaltsverzeichnis

• Cover
• Half Title Page
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of Illustrations
• Notes on Contributors
• Acknowledgements and Dedications
• Table of Cases and Legislation
• Acronyms and Abbreviations
• 1 Community Protocols and Biocultural Rights: Unravelling the Biocultural Nexus in ABS
• Part 1 Conceptual Insights: Biocultural Diversity, Biocultural Rights and Space Making
• Part 2 Biocultural Community Protocols, Access and Benefit-Sharing, and Beyond
• Part 3 Biocultural Jurisprudence, Sovereignty and Legal Subjectivity
• Index