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