Diversity and the Law

Diversity and the Law

Indigenous peoples and local communities face a number of inter-related challenges when engaging with positive (State) legal systems. Three in particular have ramifications for communities seeking to assert their rights to self-determination and well-being:

A. Laws compartmentalize the otherwise interdependent aspects of biocultural diversity by drawing legislative borders around them and addressing them as distinct segments. While communities manage integrated landscapes, the State tends to view each resource and associated traditional knowledge through a narrow lens, implementing corresponding laws through agencies that separately address, for example, biodiversity, forests, agriculture, and Indigenous knowledge systems.

B. Law affects the very nature of whom or what is defined as ‘community’. In general, people have a variety of ways of establishing who is a member of a family or community and who is an outsider. Communities may define themselves in a number of different ways and in different contexts, based on multiple factors such as heritage, ethnicity, language, geographical proximity, and shared resources or knowledge. State law, however, is insensitive to local, adaptive conceptions of community and tends to impose an over-generalized and homogeneous classification as a static and rigidly defined entity. This contradicts local realities and can further divide and weaken local institutions and social structures.

C. Positive law (both international and State) may conflict with the customary laws that govern communities’ sustainable use of natural resources. For example, the understanding of ‘property’ under positive law is based on the private rights of a person (human or corporate) to appropriate and alienate physical and intellectual property. In contrast, communities’ property systems tend to emphasize relational and collective values of resources. Furthermore, the implementation of positive law tends to overpower and contravene customary law. A system that denies legal pluralism has direct impacts on communities’ lives, for example, by undermining the cultural practices and institutions that underpin sustainable ecosystem management.

These three challenges, among others, highlight the fact that the imposition of international and national environmental laws has the potential to undermine the interconnected and adaptive systems that underpin biocultural diversity. The implementation of such laws compounds these challenges by requiring communities to engage with disparate stakeholders according to a variety of disconnected regulatory frameworks, many of which may conflict with their customary laws and traditional governance structures.



Across the Great Divide: A Case Study of Complementarity and Conflict Between Customary Law and TK Protection Legislation in Peru (Tobin and Taylor, 2009)
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Biocultural Community Protocols and Conservation Pluralism (Jonas et al., 2010)
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Legal Pluralism, Indigenous People and Small Island Developing States: Achieving Good Environmental Governance in the South Pacific (Techera, 2010)
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Study on Compliance in Relation to the Customary Law of Indigenous and Local Communities, National Law, Across Jurisdictions, and International Law (Alexander et al., 2009)
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The Future of Tradition: Customary Law, Common Law and Legal Pluralism (Sheleef, 2000)
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Chapter 5 in Global Environment Outlook 5 (UNEP, with contributions from Natural Justice, 2012)
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Biocultural Community Protocols: Articulating and Asserting Stewardship (Moving Images & Natural Justice, 2012)
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Rooibos Robbery: A Story of Bioprospecting in South Africa (Steps Southern Africa, 2012)
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Maldhari Biocultural Community Protocol Photo Story (Sahjeevan & Natural Justice, 2012)
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