PART III / CHAPTER 7
BIO-CULTURAL JURISPRUDENCE
body with the authority to interpret the ICCPR – and the UN
Of course, recognizing the importance of ILCs’ rights to self-
Committee on Economic, Social and Cultural Rights have
determination and to the recognition of their customary legal
held that to the extent that an indigenous group constitutes
systems to the protection of their way of life is not sufficient
a “people,” it does have the collective right to
to ensure these rights are respected. As lawyer and author
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self-determination. Article 3 of the Declaration of the Rights
Brendan Tobin notes:
of Indigenous Peoples (UNDRIP) reinforces this view with its
assertion that “[i]ndigenous peoples have the right to self13
determination.”
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
Article 3 of UNDRIP further states that by virtue of the right
relation to their own internal affairs. Rather it will require
to self-determination, indigenous peoples “freely determine
incorporation directly or indirectly of principles, measures and
their political status and freely pursue their economic, social
mechanisms drawn from a customary law within national
and cultural development,” while Article 4 adds that indigenous
and international legal regimes for protection of TK.
peoples “have a right to autonomy of self government in
Achieving such an end makes it imperative that full and
matters relating to internal affairs,” and Article 5 asserts that
effective participation of indigenous peoples is secured from
indigenous peoples have the right to maintain and strengthen
the outset in the development, implementation, monitoring
their distinct political, legal, economic, social and cultural
and enforcement of relevant law and policy.
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institutions.” In 1984 the IV General Assembly of the World
Council of Indigenous Peoples ratified the Declaration of
As the preceding chapters show, ILCs are through their BCPs
Principles of the World Council of Indigenous Peoples, the
already doing what Tobin suggests. They are actively
second principle of which declares, “All Indigenous Peoples
developing bio-cultural jurisprudence by using their BCPs as
have the right to self-determination. By virtue of this right
tools to read their bio-cultural values into environmental laws
they can freely determine their political, economic, social,
and policy, thereby exercising control over the interpretation
religious, and cultural development.”
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and implementation of such laws and policy. The BCP at its
core is a tool that ILCs have developed in an attempt to speak
If the right to self-determination is going to have any
for themselves from their value position rather than be spoken
significance, it must be accompanied by an expansion of
for in laws that affect their cultures and their lands. More
States’ recognition of ILCs’ customary laws. In fact, the right
importantly however, BCPs are just one manifestation of a bio-
of ILCs to their customary legal systems is also recognized in
cultural jurisprudence that seeks to stem the direct application
the system of international human rights. Article 8 of the
of property jurisprudence into environmental law and policy.
International Labour Organization Convention No. 169
concerning Indigenous and Tribal Peoples (ILO 169) specifies
The growth of support for BCPs internationally and the high
that in applying national laws and regulations to indigenous
possibility of the forthcoming IRABS providing legal
peoples, “due regard shall be had to their customs or customary
recognition to BCPs is a jurisprudential landmark. If the law
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laws.” The UNDRIP expands on this with Article 34, which
is a site of struggle where different interest groups lobby
asserts that indigenous peoples “have the right to promote,
for space, then BCPs mark the emergence of ‘bio-cultural
develop and maintain their institutional structures and their
jurisprudence’ as a serious attempt at genuine legal pluralism.
distinctive customs, spirituality, traditions, procedures, practices
and, in the cases where they exist, juridical systems or customs,
in accordance with international human rights standards.”
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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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