Indigenous Rights, Indigenous Law and Interlegalities
Indigenous perspectives from CICADA’s 2018 Latin American regional meeting
“There is recognition of international conventions in the Constitution, of the law of mother nature…but it’s only on paper, it isn’t upheld, it isn’t implemented. They are decategorizing protected areas in order to allow for extraction, and these are ancestral territories! The state is a puppet manipulated by transnational companies.”
– Perspective from Bolivia
“Even though there are constitutional advances, the laws that come out are unconstitutional and they violate indigenous rights recognized in the Constitution.”
– Perspective from Mexico
“It is necessary to support self-government and Indigenous law; without this, Convention 169 or the UNDRIP serve no purpose – it’s a double-edge.”
– Perspective from Colombia
This theme focuses on topics that cut across all of CICADA’s research themes and work programmes:
- Indigenous rights: Fundamental rights enshrined in international human rights frameworks, recognized nationally through state law, and defined in international and national jurisprudence;
- Indigenous law: Autonomous Indigenous rule-making that underpins self-governance; and
- Interlegalities: Namely, the encounters between Indigenous law and other legal systems.
Indigenous laws, Indigenous rights and interlegality operate in a context of extractivist economies involving a range of actors with different agendas and models of development that often clash with those of Indigenous peoples. Indigenous peoples asserting their rights and their law can experience violent opposition. In some regions, this entanglement also involves illegal armed actors who have dramatic effects on Indigenous autonomy and day-to-day survival. Legal actions are then only one option in the toolkit of approaches; even after far-reaching court wins, the battle to implement them towards territorial protection continues.
At the 2018 Americas workshop, Indigenous collaborators within the CICADA network articulated several key concerns for this theme, including inconsistencies between national frameworks and international law; implementation, or the gap between law on the books and law in practice; and the incomplete means of protection for Indigenous territorial rights and autonomous law. Despite an increasing “turn to the law,” as many put it, through reliance on the courts and legal actions, participants underscored that these often have limited results, and that other complementary strategies are needed that can be far more effective, including strengthening self-governance, taking to the streets in protest, engaging in community-based research, or networking among indigenous peoples nationally and internationally, as well as with academics.
The CICADA network fosters research not only to make states and outside actors such as companies more accountable in upholding Indigenous rights and Indigenous law, but also as an invaluable resource for Indigenous collaborators to strengthen their own analysis and responses towards autonomy and self-determination.
Since its approval in 2007 the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has come to express a global consensus on the rights of Indigenous peoples, including on the right to self-determination, by virtue of which they freely determine their economic development (Art. 3); on the right to autonomy in matters relating to their own internal and local affairs (Art.4); and on the right to determine their priorities for exercising their right to development (Art.23). As a consequence, certain state actions—such as measures affecting ancestral lands and indigenous livelihoods—are not permissible without Indigenous peoples’ Free, Prior and Informed Consent (FPIC). Research questions on this topic include: how is UNDRIP being implemented in Canada and throughout Latin America; what are the challenges of enforcing international law standards in domestic law; what are the responses of judiciaries to this challenge; is there consistency across corporate policies on FPIC; and can there be extraterritorial application of human rights or UNDRIP standards, for example, concerning Canadian corporations operating in Latin America?
Where state systems have failed to uphold Indigenous rights and recognize ancestral territories and governance systems, Indigenous peoples have nonetheless asserted their autonomy through their own legislation and governance practices. Research questions include: what are the mechanisms or approaches developed by Indigenous peoples to respond to encroachments on their territories, to appropriate or vernacularise FPIC or implement other norms, or to relate to external actors; how can Indigenous groups share lessons relating to these innovations; how is the acknowledgement of the reality of Indigenous legalities making its way into scholarly and political discourse, and into legal education?
“Interlegality” is a term coined by sociologist Boaventura Sousa Santos to describe the polycentric landscape that exists as a consequence of laws developed at different scales (local, national, international), by different actors (states, Indigenous peoples, companies, others) that interact at the same time in the same space. This interlegality results from “contact zones” where different legal systems encounter one another with a variety of effects (domination, emancipation, violence, among others), and where there is “porosity” and feedback among these legal systems, and heterogeneity within them. But, for example, where Indigenous territorial connections and responsibilities clash with rights granted to corporations over resources, conflicts triggered as a consequence of indigenous protests against developments tend to be criminalized rather than treated as an issue of jurisdiction with respect to different legal orders. In most cases such conflicts are adjudicated by state tribunals and laws with little or no consideration given to indigenous legal systems and norms. Research questions on this topic include: how do outside legal systems affect Indigenous law-making and the abilities of Indigenous peoples to uphold their aspirations for autonomy; how can state law become more responsive to Indigenous law and institutions, including through education of officials, flexible procedures such as negotiation and hybrid institutions with mandates to draw on Indigenous law; what potential is there for Indigenous ontologies to effect a shift in the conceptualization, within dominant legalities, of some of the broader issues, such as environmental degradation and climate change, that confront us all?
Theme Leaders: José Aylwin, Kirsten Anker, Viviane Weitzner
Resguardo Indígena Cañamomo Lomaprieta
Etienne Roy Gregoire