JURIST Guest Columnist Mahmudul Hasan of University of Development Alternative discusses how international environmental law can be influenced by indigenous orders…

In the realm of international environmental law, we have seen how various conceptions of international law; ideas about sovereignty and human rights come into play and add further dimensions and challenges to the existing structure of law. However, much of international environmental law assumes Eurocentric values with particular assumptions regarding nature and society divides—in many ways, this causes rifts between the intended effects of environmental law and the way it may be interpreted. In the face of the global legal regime, in particular the international environmental law regime and its associated infrastructures and processes, the discourse surrounding indigeneity and indigenous collective rights present crucial challenges to the manner in which law sees the world in different silos of “economic rights”, “human rights” and “environmental rights”. Further integration of indigenous worldviews, even outside the purview of indigenous collective rights, may yield solutions to contemporary environmental problems with complex legal implications.

The United Nations General Assembly formally recognized the unique nature of indigenous societies and their relationship to the environment through the Declaration on the Rights of Indigenous Peoples (UNDRIP) in September 2007 (United Nations General Assembly 2007). As Costa explains:

“This declaration of the General Assembly of the United Nations provides a new global paradigm upon which Indigenous peoples can draw to…and assert their autonomy. It is an elaborate and comprehensive statement of the entitlements of Indigenous peoples, one that implicitly acknowledges the histories and global breadth of Indigenous dispossession and the variety of contemporary Indigenous aspirations. It recognizes the following: general principles of self-determination, equality, and freedom from discrimination…. [t]he need for Indigenous people to participate in economic and social decision-making processes within nation-states; rights to lands, waters, and other resources; and self-government arrangements. It notes the obligation of states and the international community to recognize Indigenous rights and to implement them.”

While this declaration covers areas that have overarching implications for the governance of and by indigenous peoples by individual states and the international legal order, there is little in terms of consistent processes implemented across all countries to enforce indigenous rights. However, having the formal recognition of indigenous rights by the United Nations has had implications in legal paradigms of environmental governance in international and regional levels.

Much of indigenous people’s claims in national and international arenas have had to do with the justification based on “their distinctive claims on the uniqueness of their cultures and the gravity of their situation [that requires] a different approach.” Firstly, indigenous people, in contrast to many minorities, identify with their special relationship to the land, its ecology and its environmental and cultural histories. According to many, this makes indigenous societies especially suited to be the rightful owners and stewards of their traditional lands. Since much of indigenous rights are based on the idea of the collective and collective governance of society, this makes indigenous legal systems and international recognition of the special status of indigenous peoples an especially potent influence in the development of international environmental law.

However, despite more recent proclamations of the rights of indigenous peoples and their positionality within civil society, state and international legal infrastructures, their potential for creating large-scale and effective changes to legal regimes and local paradigms about human-environment relations is ultimately impeded by their marginalization within larger society. As Khoday and Natarajan explain:

“A central feature of indigenous history is the process of social exclusion they have suffered for centuries, often intimately connected to the process of exploiting the environment. Indigenous peoples have been affected by displacement, toxicity, and land and water degradation. In many instances, their relationship with and understanding of the natural environment meant that environmental degradation was accompanied by profound socio-cultural loss and damage.”

This is to say that while indigenous societies, thanks to their traditional knowledge and relationship to the environment, are very well-situated to make decisions about their land governance, the fact that this right has not been historically afforded to them has certainly held them back. When there is resource extraction, there is also a magnified impact on the agency and environmental health of indigenous societies. Historical exclusion from decision-making therefore is still a potent barrier to indigenous participation in sustainable and equitable governance of their lands and their natural resources.

The nature-culture dichotomy ever-present in European Enlightenment thought was part of the colonial project in the global south, and Bangladesh was, and remains, a site ripe with its contradictions. Even after independence, Eurocentric view of nature and a Eurocentric teleology of development was part and parcel of the discourses of modernization and development throughout the Indian subcontinent. Inherent in these ideals was the notion that development would occur as societies are able to control and harness the powers and resources of nature in more effective ways. An increasing level of control over nature, and accordingly, an increasing separation between the so-called distinct realms of “society” and “nature” was seen to be integral to socioeconomic progress. Working within this paradigm of a stringent separation between nature and society, progress and traditional lifestyles, post-independence in this region reified these norms as a way to catch up to Western developmental regimes. As Khoday and Natarajan elaborate:

“Post-colonial Indian leaders chose to pursue an economic path of industrialization as mapped out by European ideas of development. As being modern, developed, and cultured was tied to efficient exploitation of the natural environment, either legal concepts and systems that allow for this were maintained from colonial times or new laws were instituted. As such, modern Indian law has to some extent been complicit in creating the inequity and ecological decay in which communities find themselves today and against which social movements seek change.”

Khoday and Natarajan’s observation equally reflects in other regions in Indian subcontinent such as Bangladesh, Nepal and Pakistan. For instance, after modern reforms, Bangladeshi laws have sought to give more power to local governance to make decisions about regional issues. This is originally based on the traditional form of governance that was widespread in Indian subcontinent since the medieval era, for instance, the Village Court Act of 1976 for village areas and Conciliation of Disputes (Municipal Areas) Ordinance of 1979 which empowered localized village councils in making decision about resource use and development in their jurisdictions. This was an attempt on part of the Bangladesh government to address the overwhelming colonial narratives in its legal infrastructure and decentralize social, economic, political and environmental governance by giving more power and agencies to gram shalish, or the village councils. However, the implementation of such systems proved to be difficult, as the enactment of village court or local council requires systemic changes within the overall system of governance and widespread changes in paradigm that empower grassroots decision making. Since this has not been successfully achieved, it shows us the extent to which, localized and indigenous paradigms of governance are held back to this day due to historical exclusion.

Nonetheless, small successes have served as exemplars as the potential for equitable localized and indigenous governance when conditions exist for the rightful empowerment of the village councils. A remarkable personal achievement can be noted down as an example of local governance. Khurshida Begum, a union parishad (local council) member of Teknaf upazila of Cox’s Bazar, has been working in the field of afforestation and conservation of environment through forming a female Community Patrol Group (CPG) with 28 women at Kerontali. The Daily Star reports on September 16, 2012 that, “along with the forest guards, she took upon the challenges of sharing the responsibilities of conserving the sanctuary against poaching and illegal logging. She made the local people aware about biodiversity conservation for future generation.” As the recognition of her contribution for environment, she was awarded the prestigious Wangari Mathai International award in 2012 for protecting forests in Bangladesh. Khoday and Natarajan once again provide us with an example of success story of localized and indigenous governance:

India’s largest foreign direct-investment project, Posco is a planned US $12 billion steel and iron export project in Odisha state on land inhabited by a tribal population that has vigorously disputed the acquisition…with layers of clearance provided in 2007 and 2009, the Posco group began a process for land acquisition in 2010 but tribal social movements succeeded in halting the process, claiming a lack of prior consent for use of land and resources.

While it remains true that processes for this kind of localized governance empowering indigenous peoples have not yet been perfected, it is also true that the indigenous challenge to the Eurocentric development of international environmental law is one whose potential is promising and remains yet to be realized. Traditionally, much of the global environmental discourse has been staged as debates between relatively privileged western environmentalists. The mere acknowledgement at international levels presents a real challenge to the status quo of western environmental thought and the implicit nature-society dichotomies that come with it. Moreover, the western systems of international environmental law are wrought with loopholes, inconsistencies and contradictions, as domains of human rights, environment, economy and politics are seen as distinct silos. Because of the very positionality of indigenous identities as connected to land and culture simultaneously, indigenous legal paradigms can provide a potent antidote to the follies of Eurocentric international environmental law. Khoday and Natarajan additionally claim that:

Greater local engagement and integration of local knowledge into IEL will help address perceptions of unfairness. Implementation of IEL is not just about co-operation between inter-state systems. Implementation largely depends on how environmental principles and legal regimes are negotiated and play out at the local level.

Perhaps with the infusion of indigenous legal paradigms within international legal regimes, international environmental law may finally be able to provide comprehensive social and environmental justice, not based on the western norms of distinct divisions in legal regimes, but through a holistic approach where community development is not divorced from environmental concerns.

As learners of environmental law, we have observed how the ad hoc approach to creating the environmental law regime has created multiple loopholes and conflicts that often can go against the original aims of environmental justice. Sometimes, answers for such complex situation cannot be found in the fragmented realms of western legal paradigms and the answer must be sought from multi-system considerations that are inherent in many aspects of indigenous legal orders. The recognition of the unique collective rights of indigenous people by international bodies, although long overdue, is still in some cases disrupting the status quo of environmental affairs around the world. Further consideration of implementing policies inspired by indigenous laws may prove to further aims of environmental and social justice in the future.

Mahmudul Hasan is Lecturer of Law at the University of Development Alternative (UODA), Bangladesh.

Suggested citation: Mahmudul Hasan, Indigenous Legal Orders as a Challenge to the Mainstream International Environmental Law Regime, JURIST – Forum, July 25, 2016, http://jurist.org/academic/2016/07/mahmudul-hasan-indigenous-orders.php.