BIO-CULTURAL COMMUNITY PROTOCOLS - Portal do Professor

PART III / CHAPTER 7
2. Free, Prior and Informed Consent
Within the context of the Convention on Biological
Diversity (CBD), there is a tendency by parties to equate
the idea of FPIC of ILCs only with the notion of consent
in contract law. This perception is unduly limited. The right to
FPIC in Article 8(j) in the context of bio-cultural communities
rests on the twin foundations of the right to self-determination
and customary law. The FPIC that Article 8(j) refers to is a
consent that at its core affirms and furthers a bio-cultural
way of life. Such consent stems from the bio-cultural values
of ILCs, constituting an act of self-determination and affirming
customary law. Article 8(j) indicates that the current
environmental emergency is not a result of the inability of
ILCs to freely alienate their ‘physical and intellectual property’
to the highest bidder but stems from their diminishing ability
to use and share their TK, lands, territories and natural resources
in accordance with their bio-cultural values - values that have
ensured the conservation and sustainable use of biological
diversity through history.
We turn briefly to explore each of the twin foundations of
FPIC, namely, the right to self-determination and respect for
customary laws and practices, and highlight their importance
for ILCs to be able to secure their way of life.
2.1 Self- Determination
At the heart of the right to self-determination lies the challenge
of articulating the ‘self’ that needs to be determined. The ‘self’
that gives consent in contract law is rooted in property
jurisprudence, which at a fundamental level splits the world
into legal subjects and objects that can be traded and alienated
by such subjects. This begs the question of whether the
determining ‘self’ of bio-cultural communities that Article 8(j)
refers to is the same ‘self’ that gives consent in contract law
and whether such consent can ensure a way of life that has
conserved and sustainably used biodiversity.
The nature of the legal subject or the self in property
jurisprudence is conceived of as an enclosed entity and the
role of law is to resolve conflicts that arise out of competing
rights between such entities and to safeguard their rights
BIO-CULTURAL JURISPRUDENCE
over objects which include land, property, knowledge etc.
The legal subject is therefore separate from the thing s/he has
rights over and ‘Nature’ for e.g. is separate from the ‘self’ or the
legal subject who has rights over it. The legal subject has no
obligations towards Nature nor does Nature have
corresponding rights over the legal subject. Nature in property
jurisprudence is a commodity over which legal subjects
exercise different sets of competing rights.
The legal subject as separate from Nature emerges when a
part of experience is cut from the general stream of experience
and classified as the separate self. This allows for a different
kind of relationship - one of self and other. Our ability to
discriminate between self and Nature is merely one function
of consciousness of splitting up our conscious universe into
parts. But this ability to discriminate provides us with endless
possibilities and not just a self/Nature binary.
The state of duality between self/Nature and the state of unity
where Nature becomes an extension of the self is a tension
that constantly needs to be maintained to have a holistic
picture of reality. This tension is crucial since it comprehends
the essence of our consciousness that cuts up the
undifferentiated stream of experience into a variety of binary
combinations of subject/object, thought/thing, knower/known
etc. The problem of the legal subject is the privileging of the
subject/Nature binary at expense of its interconnectedness -
the legal subject as separate from Nature is not an absolute
but a functional category and this functional separation from
Nature should not deny our integral connectedness. 2
Article 8(j) poses a challenge to the classical notion of the
legal subject as an insular bearer of property rights by
juxtaposing it with the understanding that ILCs have of the
‘self’ as a bio-spiritual relationship with the ecosystem. The ILCs
that Article 8(j) refers to are bio-cultural communities whose
cultural practices and spiritual beliefs are integrally tied to the
ecosystem. The wellbeing of the community is contingent on
the wellbeing of the ecosystem and the cultural rituals and
spiritual foundations of the community continually make
sacred and affirm the self’s connectedness to the land, its flora
and fauna.
2. James, William, ‘Does Consciousness Exist’, Essays in Radical Empiricism (1904) ; Nishida, Kitaro, An Enquiry into the Good, New Haven: Yale University Press,
1990 and Banoobhai, Shabbir, If I Could Write,
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