BIO-CULTURAL COMMUNITY PROTOCOLS - Portal do Professor

PART III / CHAPTER 7
body with the authority to interpret the ICCPR – and the UN
Committee on Economic, Social and Cultural Rights have
held that to the extent that an indigenous group constitutes
a “people,” it does have the collective right to
self-determination. 12
Article 3 of the Declaration of the Rights
of Indigenous Peoples (UNDRIP) reinforces this view with its
assertion that “[i]ndigenous peoples have the right to selfdetermination.”
13
Article 3 of UNDRIP further states that by virtue of the right
to self-determination, indigenous peoples “freely determine
their political status and freely pursue their economic, social
and cultural development,” while Article 4 adds that indigenous
peoples “have a right to autonomy of self government in
matters relating to internal affairs,” and Article 5 asserts that
indigenous peoples have the right to maintain and strengthen
their distinct political, legal, economic, social and cultural
institutions.” 14 In 1984 the IV General Assembly of the World
Council of Indigenous Peoples ratified the Declaration of
Principles of the World Council of Indigenous Peoples, the
second principle of which declares, “All Indigenous Peoples
have the right to self-determination. By virtue of this right
they can freely determine their political, economic, social,
religious, and cultural development.” 15
If the right to self-determination is going to have any
significance, it must be accompanied by an expansion of
States’ recognition of ILCs’ customary laws. In fact, the right
of ILCs to their customary legal systems is also recognized in
the system of international human rights. Article 8 of the
International Labour Organization Convention No. 169
concerning Indigenous and Tribal Peoples (ILO 169) specifies
that in applying national laws and regulations to indigenous
peoples, “due regard shall be had to their customs or customary
laws.” 16 The UNDRIP expands on this with Article 34, which
asserts that indigenous peoples “have the right to promote,
develop and maintain their institutional structures and their
distinctive customs, spirituality, traditions, procedures, practices
and, in the cases where they exist, juridical systems or customs,
in accordance with international human rights standards.” 17
BIO-CULTURAL JURISPRUDENCE
Of course, recognizing the importance of ILCs’ rights to selfdetermination
and to the recognition of their customary legal
systems to the protection of their way of life is not sufficient
to ensure these rights are respected. As lawyer and author
Brendan Tobin notes:
Legal pluralism cannot be envisaged as mere acceptance of
co-existence of legal regimes, with customary law applicable
only to indigenous peoples within their territories and in
relation to their own internal affairs. Rather it will require
incorporation directly or indirectly of principles, measures and
mechanisms drawn from a customary law within national
and international legal regimes for protection of TK.
Achieving such an end makes it imperative that full and
effective participation of indigenous peoples is secured from
the outset in the development, implementation, monitoring
and enforcement of relevant law and policy. 18
As the preceding chapters show, ILCs are through their BCPs
already doing what Tobin suggests. They are actively
developing bio-cultural jurisprudence by using their BCPs as
tools to read their bio-cultural values into environmental laws
and policy, thereby exercising control over the interpretation
and implementation of such laws and policy. The BCP at its
core is a tool that ILCs have developed in an attempt to speak
for themselves from their value position rather than be spoken
for in laws that affect their cultures and their lands. More
importantly however, BCPs are just one manifestation of a biocultural
jurisprudence that seeks to stem the direct application
of property jurisprudence into environmental law and policy.
The growth of support for BCPs internationally and the high
possibility of the forthcoming IRABS providing legal
recognition to BCPs is a jurisprudential landmark. If the law
is a site of struggle where different interest groups lobby
for space, then BCPs mark the emergence of ‘bio-cultural
jurisprudence’ as a serious attempt at genuine legal pluralism.
12. Merle Alexander, Preston Hardison, Mathias Ahren, et. al., “Study on Compliance in Relation to Customary Law of Indigenous and Local Communities, National Law,
Across Jurisdictions, and International Law,” Consultancy Paper, p. 14.
13. Declaration of the Rights of Indigenous Peoples, United Nations document A/61/L.67, adopted by vote of the United Nations General Assembly on September 13, 2007.
14. UNDRIP, supra note 13.
15. The Declaration of Principles of the World Council of Indigenous Peoples, ratified by the IV General Assembly of the World Council of Indigenous Peoples in
Panama on September 23-30, 1984.
16. International Labor Organization Convention No. 169 concerning Indigenous and Tribal Peoples (C169), adopted on June 27, 1989, by the
International Labor Organization General Conference at its 26th session.
17. Supra note 13.
18. Brendan Tobin “Setting TK Protection to Rights: Placing Human Rights and Customary Law at the Centre of TK Governance,” draft article on file with author.
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