BIO-CULTURAL COMMUNITY PROTOCOLS - Portal do Professor

CHAPTER 7
Bio-cultural Jurisprudence
Elan Abrell, 1
Kabir Bavikatte & Harry Jonas
1. Introduction
This book is intended to further amplify the call from
indigenous peoples and local communities (ILCs) to be
affirmed within international and national legal frameworks
as custodians of their landscapes and to enjoy secure rights
to manage their territories, natural resources and traditional
knowledge, innovations and practices (TK) according to their
values and customary laws. In the preceding chapters we
detail a variety of legal and policy frameworks such as the
international regime on access and benefit sharing (IRABS),
programme on reducing emissions from deforestation and
forest degradation in developing countries (REDD), protected
areas and payment for ecosystems services (PES) that are
being developed with the aims of delivering environmental
gains and securing social justice. Whilst acknowledging the
importance of the regulatory frameworks, we also highlight
the potential each has to further marginalize ILCs as custodians
of their landscapes.
Because the success of international regulatory frameworks
of dealing with modern global concerns such as the
appropriate use of TK, biodiversity loss or climate change
depends on their careful implementation at the local
level, ILCs are integral to the decision-making process
relating to any of those activities. The local implementation
of environmental legal frameworks is most likely to lead to
environmental and social benefits when ILCs have the right
of free, prior and informed consent (FPIC) over any activities
that affect them. FPIC in this context also includes
exercising the right to determine the types of use of their
1. Elan Abrell, Associate, Natural Justice and Doctoral Student, Department of Anthropology, City University of New York.
TK, land, territories and natural resources and to influence
the details of any intended projects or activities.
In this context, ILCs’ ability to articulate and assert their values,
customary laws and practices becomes the indispensable
condition for ensuring the local integrity of environmental law.
This book focuses on use of bio-cultural community protocols
(BCPs) by ILCs as one way in which communities can increase
their capacity to drive the local implementation of international
and national environmental laws, with reference to the IRABS,
REDD, protected areas and PES. Whilst we argue that this is a
practical and immediately available tool for ILCs to assert
their right to self-determination, we acknowledge that a more
radical paradigm shift is required within the law itself if ILCs
are to be recognized as drivers of the conservation and
sustainable use of biodiversity and the generation of
culturally appropriate livelihoods. This chapter sketches a
nascent form of legal thought, namely, bio-cultural
jurisprudence that marks a movement in that direction. It
explores FPIC’s twin foundations, namely, the right to selfdetermination
and respect for customary laws and practices,
and argues that bio-cultural jurisprudence places the values
of ILCs at the heart of environmental law, initiating a radical
rethink of the ‘facts’ of property jurisprudence that the
law takes for granted.
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