Indigenous Peoples, Customary Law

and Human Rights – Why Living Law

Matters

This highly original work demonstrates the fundamental role of customary law for
the realization of Indigenous peoples’ human rights and for sound national and
international legal governance.The book reviews the legal status of customary law
and its relationship with positive and natural law from the time of Plato up to the
present. It examines its growing recognition in constitutional and international law
and its dependence on and at times strained relationship with human rights law.
The author analyzes the role of customary law in tribal, national and international
governance of Indigenous peoples’ lands, resources and cultural heritage. He explores

DRAFT
the challenges and opportunities for its recognition by courts and alternative dispute
resolution mechanisms, including issues of proof of law and conflicts between
customary practices and human rights. He throws light on the richness inherent in
legal diversity and key principles of customary law and their influence in legal prac-
tice and on emerging notions of intercultural equity and justice. He concludes that
Indigenous peoples’ rights to their customary legal regimes and states’ obligations to
respect and recognize customary law, in order to secure their human rights, are prin-
ciples of international customary law, and as such binding on all states.
At a time when the self-determination, land, resources and cultural heritage of
Indigenous peoples are increasingly under threat, this accessible book presents the
key issues for both legal and non-legal scholars, practitioners, students of human
rights and environmental justice, and Indigenous peoples themselves.

Brendan Tobin (Ashoka Fellow, Ashoka Innovators for the Public) a

Research Fellow at the Law School, Griffith University,Australia, has over 20 years
of experience working on environmental law and human rights around the world.
He has previously been a lecturer at the National University of San Marcos, Peru,
a researcher at the United Nations University, Japan. As a legal consultant he has
worked for a range of clients including the World Intellectual Property
Organization and Central University of Minorities in Beijing, China. He was the
Coordinator and Founding Member of the Asociación para la Defensa de los
Derechos Naturales (Association for the Defence of Natural Rights) based in Peru
and an NGO representative on the Peruvian national delegation to the Convention
on Biological Diversity. He has a PhD from the Irish Centre for Human Rights,
National University of Ireland, Galway, and practised as a barrister in Dublin,
Ireland. He holds dual Irish and Peruvian citizenship.
“I have been waiting for a book like this for a long time. It makes customary law
more accessible to experts and generalists alike. Comprehensively researched, the
book summarizes major themes and frameworks associated with customary law in
the world today. It is an impressive work.” – John Borrows, Professor and Canada
Research Chair in Indigenous Law, University of Victoria, Canada.

“Dr Tobin’s incisive and authoritative account convincingly and expertly demon-
strates why customary law still matters for us all. It tells exactly how both the
pursuit of social justice and a healthier relationship between humans and nature can
be advanced by an enhanced appreciation and accommodation for what indige-
nous peoples call ‘the living law’.” – Graham Dutfield, Professor of International
Governance, University of Leeds, UK.

“Tobin has compiled a very important work that demonstrates an extraordinarily

in-depth understanding of the dynamic evolution of indigenous rights and the role
of customary laws in national and international standards and policies. A must read
for legal practitioners, policy makers, and researchers interested in indigenous
rights, customary law and international processes.” – Aroha Te Pareake Mead, Chair,
IUCN Commission on Environment, Economic and Social Policy and Senior Lecturer and
Director of Maori Business,Victoria University of Wellington, New Zealand.

DRAFT
“Tobin provides a unique and timely analysis of customary law and its importance
as one of the principal sources of law for good national and global legal gover-
nance. This work will be an invaluable resource for all those wishing to understand
the role of customary law as a fundamental basis for realising indigenous peoples’
human rights and self-determination.” – Victoria Tauli-Corpuz, UN Special
Rapporteur on the Rights of Indigenous Peoples.

“Tobin has written a tour de force on the living law that places custom in a lengthy
tradition reaching back to Plato.The sensitive, vivid writing sweeps across cultures
and continents to illuminate our understanding of law’s deep structure. A remark-
able work that will interest specialist and non-specialist readers alike.” – Patrick
Thornberry, Emeritus Professor of International Law at Keele University and Fellow of
Kellogg College, University of Oxford, UK.
Indigenous Peoples,
Customary Law and
Human Rights –
Why Living Law Matters

Brendan Tobin

DRAFT
First published 2015
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Routledge
711 Third Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2015 Brendan Tobin

The right of Brendan Tobin to be identified as author of this work has been
asserted by him in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or

utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in writing from the
publishers.

Trademark notice: Product or corporate names may be trademarks or registered

trademarks, and are used only for identification and explanation without intent
to infringe.

DRAFT
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Tobin, Brendan, author.
Indigenous peoples, customary law and human rights – why living law matters /
Brendan Tobin.
pages cm — (Routledge studies in law and sustainable development)
Includes bibliographical references and index.
1. Indigenous peoples—Legal status, laws, etc. 2. Customary law. I.Title.
K3247.T63 2014
340.5’2—dc23
2014012186

ISBN: 978-1-138-01968-3 (hbk)

ISBN: 978-1-315-77879-2 (ebk)

Typeset in Bembo
by FiSH Books Ltd, Enfield
 “All My Relations”

For
my parents
Seán and Lois

my children

DRAFT
Luna and Liam

In memory of
Eugene
Peter
Samantha
Cover design: Lorraine Barclay www.DigitalLamp.co.uk

Cover image credits:

Front cover, top left (clockwise) to bottom:
Image of Ranger Keith Nadjamerreck. Photo: Tim Alewood for United Nations
University/Warddeken Land Management.
Hand painted Piro Kushma from community leader Raul Sebastian. Photo: Louis Lim.

DRAFT
Ngarra Law Painting. Gupapuyngu Clan in Northern Eastern Arnhem land, James
Gaykamangu. Photo: Danial Kelly.
Sacred Moriori rakau momori (tree memorial) depicting an ancestor displaying
hands free of weapons, Rekohu (Chatham Islands). Photo: Maui Solomon.
Extract from Early Irish Law Text.The Board Trinity College Dublin
Coole Park home of Lady Gregory. Photo: Ciaran Tobin

Back cover, top left (clockwise) to far right:

Todos Somos Bagua. Photo: Louis Lim.
Healing trees: Esker, Galway, Ireland. Photo: Brendan Tobin.
Vision de Ayahuasca (Ayahuasca vision) Shoyan Sheca/ Roldan Pinedo l. (2004)
Peru. Photo: Louis Lim.
Detail of woman's face (untitled) Sibeal Foyle, (1982) Ireland. Photo: Louis Lim.
Luna and Liam: Galway meets Machu Picchu. Photo: Brendan Tobin.
Ayahuasca, Elena Valera Vasquez (2004) Peru. Photo: Louis Lim.
Arariwa 'community conservationists' of the Potato Park, Paru Paru, Peru
December 2011. Photo: Asociacion de Comunidades del Parque de la Papa-
Asociacion ANDES.
Contents

Table of cases ix
Acknowledgements xiii
In opening: Ever living law xvi

Introduction 1
Indigenous law and customary law 6

DRAFT
1 Customary law in context 14
The historic status of custom 15
Papal bulls and doctrinal shenanagins 20
The nature of Indigenous peoples’ customary law 29

2 Self-determination in practice 33
The path to self-determination 34
The right to self-identification 39
Participation and prior informed consent 45

3 Where custom is the law 52

International recognition of Indigenous peoples’ legal systems 52
UN initiatives on Indigenous peoples’ rights 54
Constitutional recognition of customary law 57
Tribal courts and restorative justice 66
Where custom is the only law 73

4 In search of the living law 77

Sources of Indigenous peoples’ customary laws 78
Tribal law and tribal courts 81
Proof of customary law 85
Recognition and proof of custom in common law jurisdictions 87
Repugnancy and decolonizing legal regimes 89
Judicial ascertainment of customary law 91
Living law 97
viii Contents

5 Ancestral rights recovered: lands and traditional territories 100

Indigenous peoples’ rights to land 101
The doctrine of discovery, native title and its extinguishment 109

6 Natural resources or essences of life? 120

Indigenous peoples’ rights over natural resources 120
Native title and tribal justice 126
Traditional resource management: farmers, livestock keepers and fisherfolk 129

7 Right to culture and cultural heritage 141

Right to a ‘way of life’ 141
From cultural property to cultural heritage 145
Recovering funerary remains, cultural and sacred objects 149
Rights to sacred sites 151
From ownership to stewardship 154

8 Traditional knowledge 156

Towards sui generis forms of protection of traditional knowledge 156
International protection of traditional knowledge 158

DRAFT
Regional and national approaches to protection of traditional knowledge 170
Native title to traditional knowledge 173
Biocultural protocols and prior informed consent 175

9 Intercultural equity and justice 180

Reconciling customary law and human rights 180
Customary justice and cultural genocide 184
Customary lawmaking and Intercultural Justice 193

In closing: traditions for the future 207

Notes 211
Bibliography 261
Index 290
Table of cases

Alexkor Ltd & Another v. the Richtersveld Community & Others, BCLR
(12 BCLR 1301 CC, 2003) ...................................................58, 113, 127, 128
Amodou Tijani v.The Secretary Southern Nigeria, (1921) 2 AC 399 ..............107
Angu v. Attah (1916) (Privy Council) Reports, 1874–1928, 43 ....................87-88
Assembly Resolution No. 01-2004: Resolution on the Decision
Pertaining to the Composition and Legitimacy of the Siocon Council
of Elders and the Official Position on the Issue of Leadership and
Representation of the Canatuan Subanön Community, 3rd Assembly of

DRAFT
the Gukoms, Rio Hondo, Zamboanga City, Mindanao, Philippines,
7–10 June, 2004. Para 4.......................................................................128 n.86
Aurelio Cal and the MayaVillage of Santa Cruz v. Attorney General of
Belize; and Manuel Coy and MayaVillage of Conejo v. Attorney
General of Belize, (consolidated) Claim Nos 171 & 172, 2007,
Supreme Court of Belize (18 October 2007) 46 ILM 1022 (2007) .......49, 113
Bear Lodge Multiple Use Association v. Babbitt, 175 F.3d 814 (10th Circuit
1999) ...............................................................................................155, n.140
Beanal v. Freeport McMoran Inc., No. 98-30235., 29 November 1999 –
US 5th Circuit ...................................................................................188 n.88
Bhe v. Magistrate Khayelitsha, Shibi v. Sithole, and South African Human
Rights v. President of the Republic of South Africa, (2005) (1) B.C.L.R.
1 (CC) .........................................................................................................97
Bodney v. Bennell, (2008) 167 FCR 84. .........................................................111
Bulun Bulun v. R &T Textiles Pty Ltd., (1998) 41 IPR 513 ..................174 n.145
Calder et al. v. Attorney General of British Colombia, (1970), 74WWR
481 (B.C.C.A) ........................................................................................25, 27
Centre for Minority Rights Development (Kenya) and Minority Rights
Group International on behalf of Endorois Welfare Council v. Kenya,
African Commission on Human Rights, Communication 276/2003,
May 2009 (Endorois Case) ..................................................................124-125
Chapman v. Luminis Pty Ltd., (No.5) FCA 1106 (21 August 2001).................153
Cherokee Nation v. Georgia, 30 US (5 Peters) 1 (1831)...............................28-29
City of Sherill, NY v. Oneida Indian Nation of NY, 544 US 197, 203
No. 1 (2005) ..............................................................................27, 28, 37, 110
x Table of cases

Complaint by Timuay Jose Anoy against TVIRD. Gukom of the Seven

Rivers (2004) (unreported) ................................................................128, n.89
Decision 35/PUV-X/2012, Constitutional Court of the Republic of
Indonesia (Traditional Forest Community Case) (26 March 2012) ..............138
Decision 35/PUU-X/2012, reviewing Law 41 of 1999 on Forestry,
Constitutional Court, Indonesia, 20 March 2013 (2012) [Traditional
Forest Community Case]............................................................................138
Decision number 2003-0003, Provincial Court of Sucumbíos in Nueva
Loja, Ecuador (14 February 2011) ..............................................................129
Delgamuukw v. British Colombia, [1997] 3 SCR 1010 (S.C.C.)
...........................................................................38, 49, 112, 116–17, 126, 127
De Rose v. South Australia, (2003) 133 FCR 325 ...........................................111
Diergaardt et al. v. Namibia, Human Rights Committee, Communication
No 760/1997, UN Doc. CCPR/C/69/D/760/1997 (2000) ..............145 n.38
Eleko v.The Officer Administering the Government of Nigeria & Anor,
(1928) 6 NILR, 19, [1931] A.C., 662 ......................................................19, 87
Fisher v. Lane, (1777) 3Wils 298; 95 ER 1065...........................................85 n.65
Francis Hopu & Bessert v. France, CCPR/C/58/D/671/1995, Case No.
671/1995 ...................................................................................................145
Indigenous Communities of the Xingu River Basin, Para v. Brazil, [2011]

DRAFT
Inter-American Commission on Human Rights (PM-382-10)...........124, n.38
Island of Palmas Case, (Scott, Hague Court Reports 2d 83 (1932), (Perm.
Ct.Arb. 1928), 2 UN Rep. Intl.Arb.Awards 829) .........................................101
Johnson v. Clark [1908] 1 Ch 303.....................................................................86
Johnson v. McIntosh 21 US (8Wheat.) 543 (1823)................26, 37, 109, 114, 115
Jouni E. Länsman et al. v. Finland, Communication No. 671/1995,
U.N. Doc. CCPR/C/58/D/671/1995 (1996).....................................104, 144
Kaldak v. Minister of Sustainable Development (Nunavut) [2001] NUCJ 1.....117
Kichwa Indigenous Peoples of Sarayaku v. Ecuador, Judgment,Merits and
Reparations, Judgment of 27 June 2012, IACtHR Series C, No. 245 ..........125
Kitok v. Sweden, Communication No. 197/1985 (27 July 1988), UN Doc.
Supp. No. 40 (A/43/40) at 221 (1988)........................................................183
Kokomlemle Consolidated CasesW.A.C.A, No. 106/53, 4 March (1953)...........88
Länsman Ilmari v. Finland, Communication No. 511/1992, Human
Rights Committee, UN Doc. CCPR/C/52/D/511/1992 (1994)
............................................................................................104, 144, 145, 183
Länsman Jouni E. et al. v. Finland, Communication No. 671/1995,
U.N. Doc. CCPR/C/58/D/671/1995 (1996).....................................104, 144
Le Case de Tanistry, (1608) Davis 28. [Tanistry Case] ...................................23, 86
Lewis v. Masters, (1695) 5 Mod Rep 75-76; 87 ER 528–529 ............................86
Lovelace v. Canada, Communication No. R.6/24 Human Rights
Committee (29 December 1977), UN Doc. Supp. No. 40 (A/36/40)
at 166 (1981) ................................................................................44, 220 n.93
Lubicon Lake Band v Canada, Communication No 167/1984
(26 March 1990): UN Doc. Supp. No. 40 (A/45/40) at 1 (1990).........104, 144
 Table of cases xi

Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 US 439, 453

(1988).........................................................................................................152
Mabo v. Queensland (No. 2) (1992), 107 A.L.R. 1 ...........................110–111, 114
Mabuza v. Mbatha, 2003 (4) SA 218 (C) .................................................226 n.77
Mahuika, Apirana, et al. v. New Zealand, Communication No. 547/1993,
U.N. Doc. CCPR/C/70/D/547/1993 (2000).....................................104, 144
Mayagna (Sumo) Awas Tingni Community, 2001 Inter-Am. Ct. H.R.
(ser. C) No. 79 ............................................................................102, 123 n.28
Mayitenga and Mamire v. Chinamura & others 1928 – 1962 SRN
829 (1958) .........................................................................................89 n.100
Maynas Carijano v.Occidental Petroleum (US Court of Appeals 9th
Circuit) 31 May 2012 .........................................................................129 n.94
Miles v. Benet, (1401)YB Trin 2 Hen, 4 f.24, Pl.20 ...........................................85
Mitchel v. United States, 34 US (9 Pet.) 711 (1835) ........................................115
Moore v Attorney General [1929] I.R. 191 and [1934] I.R. 44 [The Erne
Fishery Case].................................................................................................xi
Navajo Nation v. United States, 535 F.3d, at 1072 ...........................................152
Neowarra v.Western Australia [2003] FCA 1402......................................174–175
Nor Anak Nyawai et al. v. Borneo Pulp plantation Sdn Bhd, [2001] 2
current L.J. 769 (Malaysia) – Sabah and Sarawak High Court .............111 n.87

DRAFT
Northern Territory v. Arnhem Land Trust (2008) 248 ALR 195 ..........................
[Blue Mud Case] ........................................................................................127
Oliphant v Suquamish Indian Tribe, 435 US .....................................................66
Orissa Mining Corporation v Ministry of the Environment and Forests
and Others .......................................................................................242 n.170
Port Elizabeth Municipality v.Various Occupiers (12) BCLR 1286 (CC)..........60
Poma Poma, Angela, v Peru Communication No. 1457/2006.
UN Doc. CCPR/C/95/D/1457/2006 (24 April 2009)......................66 n.141
The Presbyterian Church of Sudan, Rev. John Gaduel, Nuer Community,
Development Services and Others v.Talisman Energy Inc., 244
F. Supp. 2d 289; 2003 US Dist. LEXIS 4085........................................188 n.88
Prosecutor v. Krstić, Case No. (IT-98-33-T) Judgment, 2 August 2001 ............189
Prosecutor v. Krstić, Case No. (IT-98-33-A) Judgment, 19 April 2004.............189
Prosecutor v. Blagojević, Case No. (IT-02-60-T) Judgment, 17 January
2005 ...................................................................................................189, 190
Prosecutor v Blagojević (Case No. IT-02-60-A), Judgment, 9 May 2007
.........................................................................................................190 n.113
Prosecutor v. Krajišnik, Case No. IT-00-39-T, 2006, Judgment, 27 September
2006...........................................................................................................190
Question
R v. Gladstone [1996] 2 SCR 723 ........................................................112 n.110
R v. Pamajewon [1996] 138 D.L.R. (4th) 204 (SCC) ......................................112
R v. Smokehouse Ltd [1996] 2 SCR 672..............................................112 n.110
R v. Sparrow [1990] 1 SCR 1075. 27......................................................112, 116
R v.Van der Peet [1996] 2 SCR 507 .......................................................112, 166
xii Table of cases

Re Certified Question II: Navajo Nation v. McDonald 16 ILR 6086

(1989) .............................................................................................78–79, 208
Re: Southern Rhodesia (1919) AC 210 (PC) ....................................................25
Richtersveld Community and Others v. Alexkor Ltd and Another, (488/2001)
[2003] ZASCA 14; [2003] 2 All SA 27 (SCA).....................111 n.86, 112, 113
Risk v. Northern Territory [2006] FCA 404 [Larrakia Case] ...........................111
Samotsoko v. Palane, 1958 H.C.T.L.R. 75 .................................................94, 112
Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172
(28 November 2007)....................................................................49, 57, 123-4
Sawhoyamaxa Indigenous Community v. Paraguay. Inter-Am. Ct. H.R.
Merits Reparations and Costs. Judgment of March 29, 2006.
Series C No 146 .................................................................................108, 112
Sentencia Constitucinal Plurinacional 0300/2012 (TIPNIS) Tribunal
Constitucional Plurinacional (19 June 2012).......................................64 n.125
Sentencia T-188/93, Constitutional Court, Colombia (12 May 1993)......69 n.170
Sentencia T-380/93, Constitutional Court, Colombia (13 September
1993)..................................................................................................69 n.174
Sentencia SU-039/97, Constitutional Court, Colombia (3 February
1997)..................................................................................................69 n.175
Sentencia T-769/09, Constitutional Court, Colombia (29 October

DRAFT
2009)..................................................................................................47 n.126
Sesana v. Attorney General (Botswana) [2006] BWHC 1 (13 December
2006)..........................................................................................................113
The Social and Economic Rights Action Centre for Economic and Social
Rights v. Nigeria,African Commission on Human and Peoples’ Rights,
Comm. No. 155/96, (2001) [Ogoni Case] ..................................................124
Tabitha Chiduku v. Chidano, 1922 SR 55, 6 .............................................89 n.99
Tee-Hit-Ton Indians v. United States, 348 US 272 (1995)...............................114
US v.Wheeler, 435 US 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978).................37
Warrick v. Queen’s College,Oxford, (1870) 10 LR Eq 105. ..............................86
Western Australia v.Ward, [2002] 191 ALR 1 (8 August
2002) ...........................................................................110 n.76, 118, 174–175
Western Sahara Case, (Advisory Decision) 1975 ICJ Reports ..........................114
Wik Peoples v. Queensland, (1996) 187 CLR 1 ..............................................111
Worcester v. Georgia, 31 US (6 Pet.) 515 (1832) ................................26, 110, 115
Yakye Axa Indigenous Community v. Paraguay, Inter-Am. Ct. H.R.Merits,
Reparations and Costs. Judgment of 17 June 2005. Series C No. 125,
Para 151 .......................................................................................................49
Yanner v. Eaton, [1999] HCA 53 (7 October 1999) ........................................126
Yarrimir v. Northern Territory, (2001) 208 CLR1...........................................126
YortaYorta Aboriginal Community v.Victoria, (2002) 214 CLR 455...............111
Acknowledgements

I wish to acknowledge the Jagera and Dhurubul peoples on whose lands this book
was written and Indigenous peoples around the world whose culture, laws and
rights, are the subject this work. I am indebted to the Indigenous peoples of Peru
in particular the Ashaninka, Awajun, Machiguenga, Piro, Shipibo and Yanesh
peoples from the Amazon and the Quechua and Aymara peoples of the Andes, who
welcomed me into their communities and into their struggle. My understanding
of customary law has been greatly enriched in meetings with Indigenous peoples
in many parts of the world for which I am extremely grateful. Heartfelt thanks to

DRAFT
Alejandro Argumedo, Aroha Mead, Juan Reategui, Cesar Sarasara, Raul Sebastian,
Maui Solomon and the late Del Wihongi, who have had a great influence on my
work. I am also grateful to Merle Alexander, Chistine Black, Rodrigo de la Cruz,
Violet Ford, Brian McDonald, Terri Janke, Clark Peteru, Ralph Regenvanu and
Terry Williams, for their friendship and willingness to help me grasp the intricacies
of customary law. Special thanks go to Preston Hardison for always being ready
share from his own vast knowledge. I am indebted to the Peruvian Environmental
Law Society (SPDA), the Ashoka Foundation, the Asocaición para la Defensa de los
Derechos Naturales (ADN) and the United Nations University Institute of
Advanced Studies, and more recently the Griffith University Law School and
Australian Centre for Intellectual Property in Agriculture (ACIPA) which have all
supported my work with Indigenous peoples and on customary law.
The National University of Ireland, Galway (NUIG) and the Irish Centre for
Human Rights provided an excellent home for my PhD studies, which this book
draws upon heavily. The generous support of Irish Research Council for the
Humanities and Social Sciences made possible much of my research. Special thanks
go to Professor William Schabas who challenged me to embark on the extremely
wide range of issues reflected in this work. I owe thanks to many people who in
one way or other have influenced this work including Christoph Antons, Joshua
Castellino, Claudio Chiarollo, Christine Cuskelly, Sach Domenech, Miranda
Forsyth, Rosa Giova,Vinodh Jaichand, Evanson Kamau, Ilsa Kohler-Rollefson, Paul
Kuruk, Regis Lafarge, Jaques Mabit, Simon Morgan, Ray Murphy, Gurdial Nijar,
Siobhan O’Donnell, Paul Oldham, Ruchi Pant, Gerard Quinn, Manuel Ruiz,
Krystyna Swiderska, Emily Taylor and Gerd Winter. Special thanks to Cathal
Doyle, Michael Halewood, Patti Moore, Flavia Noejovich, Melissa Tatum, Tony
xiv Acknowledgements

Taubman, Patrick Thornberry, Janine Ubink, Saskia Vermeylen and Maria Wilkie
whose influence has been particularly important. I am especially indebted to Chip
Barber, Jorge Cailluax, Simon Gillings, Sam Johnston,Adrian Mannering and A.H.
Zakri who gave me the start that made this all possible. My research has benefitted
greatly from the excellent access to materials and support of staff at NUIG library,
Griffith University Library and the School of African Studies in Leiden.
I want to acknowledge all those who have commented upon specific areas of
this work including Kjell Anderson, Martin Chanock, Berris Charnley, Jennifer
Corrin, Graham Dutfield, Preston Hardison, Charles Lawson, Aroha Mead, Dáibhí
Ó Cróinín, Angela Riley, William Schabas, Brad Sherman, and Maui Solomon.
Although, the final work has been enhanced by their input, the final content
remains my responsibility alone. Special thanks are owed to Lorraine Barclay who
gave freely of her time and skill to design the cover and to Griffith Art College,
Louis Lim and Ciaran Tobin for help with the artwork. Thanks too to Senior
Lawman James Gaykamangu, and the Gupapuyngu Clan in Northern Eastern
Arnhem land for the right to use the photo of the painting of Ngarra law, to the
Maui Solomon and the Moriori people for the photo of their sacred tree carving,
Citt Williams for securing the fire shot and Keith Nadjamerrek for permission to
use his image.Thanks to the communities of the Potato Park for the great shot of
their seed collection.Thanks to Routledge and in particular Tim Hardwick,Ashley

DRAFT
Wright, Karl Harrington and Damian Penfold for making this happen.Thanks to
Tania Dazell for enthusiastic research support and Karen Hart without whose help
I’d never have got all the editing and indexing done. Above all I want to thank
Professors Brad Sherman and Leanne Wiseman, the Australian Centre for
Intellectual Property in Agriculture (ACIPA), and Griffith University Law School
for the wonderfully supportive work environment which has made it possible for
me to give the book the attention it needed and I trust deserved.
I would like to thank all those too numerous to mention who have helped me
over the years in my research and in life, to one and all my sincere thanks. Special
thanks are owed to Aine,Vincent, Patricia, Ann, Imelda, Peter and Margaret Scally,
whose support goes way back. I am also grateful for fellowship and friends around
the globe in particular Nicholas, Cathal, Marcelo, Fuji, Arn, Indrei, Coco, Liliana,
Armando, Teresa, Don, Francis, Jude, Keith, Padraic, Mark Mc, Mark O., Robert,
Tom, Brian, Doug, Jason and Patrick.Thanks to Tatiana and Tulio for looking after
Luna and Yuri and Emma for the home from home. I’m grateful for good friends
who supported me during my research especially Jimmy, Ann, Dave, Herman,
Polanco, Patrick, Rocio Steven, Mercedez, Joan, La Mama, Ivan,Alberto, Benjamin,
Tommy, Ray, Eileen, Daniel, Des, Lucho, David, Rocio, Leonor, Marie, Hilda,
Pascuala, Mattildhur, Lika, Ham, Mirko, Jessica, Humberto, Clelia, Dori, Chicho
and Ellie. For Pat King, Dan Taheny and Charlie Hurley there will always be a place
by the fire.To Leslie, Lucho and Emilia thanks for taking such good care of Liam.
I also want to acknowledge absent friends and family whose lives have enriched
mine including Mick and Katherine Tobin, Dorothy and Cyril Brown, Ned
Coonan,Teresa Duignan, Mick King,Alberto Berger, Jaun Torres, El Flaco, Brendan
Foyle, Gerry Casabourne, Vincent Heaney, Michael O’Connor, Mick Taylor,
 Acknowledgements xv

Mickey Finn, Corky, Peter Galligan, Pat Flood, Tony Small, Tommy Tyrell and
Madeleine Coogan.
My siblings have been a great support during the writing of this book Siobhán
for her healing ways,Adrian and family for making me take a break, Ciaran for the
photos and Mike for his wordsmithing. For Orna, Liam, Des and Kieran, Phillip
Atkins and all my relations, thanks for being there. Above all I want to express my
gratitude to my parents Seán and Lois for their unconditional love and support
through thick and thin (including some proof reading), you’re a hard act to follow.
My children Luna and Liam have been wonderful throughout the last seven years
accepting long periods of absence during my PhD studies and the subsequent writ-
ing of this book. Now that its finally finished I get to spend more time with them
that is the best reward. I want to be there the next time Luna takes to the ring in
search of another Muay Thai title. I want to walk to school with Liam, play foot-
ball in the park and make plans to see the next world cup together. Last but not
least I want to thank Leslie who has supported me across the years.Thank you for
your love, your support and your smile.
I hope this work may in some small way help to repay all the patience, trust and
belief shown me by so many people along the way.

DRAFT
Explanation of Ngarra Law Painting of the Gupapuyngu Clan in Northern Eastern
Arnhem land:
The painting is a Ngarra law document. Ngarra is the Aboriginal customary law of
Arnhem Land.This law painting is based on the honey bee (Niuda gugu) ceremony.
The black part at the top is the hole where the honey bee goes in and makes the
honeycomb. The story for this painting is about that honey bee. The honey bee
flew over the saltwater and made a diamond design on the back of a whale.Then
the honey bee flew to ganalbingu country which is around the Arafura swamp area.
Instead of landing on a tree the honey bee landed on a rock and out of the rock
came running fresh water. After this happened the honey bee flew to butgari
country and then flew back to the DjiluirriYirralka home country.This Niuda gugu
landed in Warrayngu and Bunggu clan groups. Niuda gugu flew to different places
to invite them to become peaceful tribal people and to recognise each other as
being part of the Niuda gugu law. From this painting we have much law. It teaches
Yolngu how to live properly. (James Gaykamangu)
In opening: Ever living law
Céad Mile Fáilte (A Hundred Thousand
Welcomes)

It is the best of laws it is the worst of laws, it is a law of the past, it is a law for the
future, it is a living law it is a dying law. Depending on your perspective, custom-
ary law may be seen as a dynamic living body of unwritten law dispensing
restorative justice free of the retributive scourge of western legal regimes.
Alternatively, it may be viewed as a largely patriarchal system, oppressive to women
and children and susceptible to bias and abuse by elder elites. Considered a relic of
the past by many, for others it is the only functioning system of law they have ever
known. For most people – and here I include most lawyers, judges and legislators

DRAFT
– customary law, in particular the customary laws of Indigenous peoples, is a largely
unknown and unappreciated quantity. My own legal training within the inherited
common law system still practiced in Ireland provided little preparation for
research into customary law. In hindsight this seems incredible considering the fact
that Early Irish Law (commonly referred to as Brehon law from the Old Irish word
brithemain ’judges’), was one of the primary sources of law for most of Ireland up
to the seventeenth century, making it the longest lasting customary legal system in
Europe.1 Although Brehon law underwent a brief resurgence in the years immedi-
ately preceding Irish Independence and was successfully pleaded in at least one post
Independence case2 it has subsequently failed to find favour with the courts.3 It was
only by going abroad and working with Indigenous peoples that I came to under-
stand the importance of customary law as an instrument for decolonizing inherited
common and civil law regimes.This in turn has led me to view Brehon law as the
more natural home within which to find my own culturally specific legal roots.
The importance of Indigenous peoples customary law was first brought home
to me in 1993 when I met Quechua activist Alejandro Argumedo who argued that
in order to secure Indigenous peoples’ rights it was necessary to build a bridge
between “your legal regimes and ours”. Ever since, my work and research has been
directed in some form or fashion towards investigating how that might best be
achieved. Early on my research showed that Indigenous peoples’ legal regimes
already interfaced with national and international law and with one another on
numerous levels. These interfaces and the relationships they engender form a
central part of an intertwined system of global legal governance, which also
includes aspects of natural law and human rights.This intertwining has been going
on since earliest times and it continues today as countries such as Bolivia, Ecuador,
 In opening: Ever living law xvii

Papua New Guinea, South Africa and the Philippines give greater recognition to
customary law in the process of decolonizing their legal regimes.4 This is being
done through the incorporation of values and legal principles drawn from their
traditional legal systems into constitutional and national law rather than by whole-
sale rejection of inherited common and civil law. These include the African
traditional legal principle of ubuntu (humaneness), the Navajo concept of hozho
(harmony) and ‘reciprocity’ a principle common to the systems of many
Indigenous people all around the world.These are not esoteric concepts.They are
substantial and time tested. Confucius, for instance, claimed there is only one word
that can serve as a practical rule for our whole life, and that word is ‘reciprocity”.5
To come to know and understand customary law is an enlightening though at
times frustrating task. Customary law does not lend itself to easy definition, iden-
tification and codification. It is ephemeral, constantly open to change and resistant
to the constraints of written legal systems. A study of customary law is a study of
living law on a number of fronts. In the first place it is informed by natural law in
the observed laws of nature of the living planet. Secondly, it is an evolving body of
lived practice adapting to the conditions of the time in an organic fashion, creat-
ing law as it adapts to the lived reality of those bound by it. Third customary law
operates in constant proximity to and at times overlapping with positive, natural
and human rights law, which together form the continually evolving living corpus

DRAFT
of national and international law.
What has proven particularly refreshing in the study of customary law is the
discovery of underlying principles of customary law that precede and at times
surpass western notions of human rights. A prime example of this is found in the
resurgent customary law of the Moriori people of the Chatham Islands, who were
almost completely wiped out by Maori invaders in the early part of the 19th
century.6 A revival at the beginning of the present century has seen Moriori return
to the Chatham Islands and reassert their forefathers commitment to Pacifism.This
has included organising international conferences on peace and taking as their
most treasured symbol an image of a man with no weapons inspired by sacred carv-
ings in their historic forest lands on the Chatham Islands, a picture of which graces
the cover of this book. This symbol of peace, literally rising from the ashes of a
culture that for a long time was thought to be extinct, highlights the importance
of legal diversity. For many indigenous peoples and colonised peoples around the
world peace means more than freedom from war; it also means freedom from
displacement to make way for dam building, oil, mining and logging activities.
Peace includes freedom to protest for recognition of their human rights. It means
access to adequate food and nutrition, to bilingual education and respect for their
cultural heritage, traditional knowledge and legal regimes. Peace of this kind is
requisite if Indigenous peoples are to continue their role as the custodians of the
vast majority of legal, linguistic, cultural and biological diversity. Lack of peace is
increasingly driving Indigenous peoples in to direct conflicts with the state, mining
companies, paramilitaries and one another. In Peru, for instance, 33 people died in
clashes in Bagua in 2009 over failure to protect Indigenous rights. While 53
Indigenous defendants now face charges for crimes some of which carry life
xviii In opening: Ever living law

imprisonment, no charges have been made against those who recklessly sent in raw
recruits to dislodge the Awajun. A campaign “Yo Soy Bagua” (I am Bagua) by the
National Human rights Coordinator utilises the famous yellow, red and white,
feathered headdress of the Awajun (see back cover) as the symbol of solidarity with
the defendants. The challenge in this case is to provide solidarity without in any
way condoning the killings by the Awajun of police offices some of which were
already disarmed and in their custody, at times separating these issues becomes
exceedingly hard.
Awakening to the power and potential of customary legal regimes is like taking
off legal blinkers. It broadens the legal horizon and the possibilities for envisioning
an evolution of the law conducive to the realisation of intercultural justice and
equity in a balanced and respectful relationship with the Earth. It opens the way to
consideration of the role of customary law not only as a tool for the recognition
and protection of Indigenous peoples human rights, but also as part of the solution
to help recover a fragmented global legal order, which has become lopsided under
the domination of positive law.This has been a juridical, geographical, cultural and
spiritual journey.This is hardly surprising as customary law is intrinsically entwined
with the spiritual, environmental and cultural lives and mores of Indigenous
peoples and their symbiotic relationship with their traditional lands and all living
things, which some Indigenous peoples evocatively refer to as “all my relations”.

DRAFT
What is particularly inspiring to see is where customary law and traditional knowl-
edge systems are being recognised as vital systems for present day land and resource
management. A striking example of this are the fire management practices of
aboriginal peoples from Northern Australia which are now being exported to
other countries as part of a global project to help reduce uncontrolled savannah
fires which amount for up to 10% of greenhouse gas emissions. Rangers such as
Keith Nadjamerrek (front cover) employ traditional skills to manage controlled
burning of lands bringing nourishment to the soil, clearing scrub to allow wildlife
to prosper and capturing large amounts of carbon. These skills are now being
sought for the training of local communities in improved fire management in
countries around the world.7 Customary law also plays a vital part in the protec-
tion of agrobiodiversity an iconic example of which is the Potato Park in the
Peruvian Highlands where local communities conserve up to 1,500 different vari-
eties of potato. Access to even a little of this diversity might have saved millions of
lives in the great Irish Famine in the middle of the 19th Century when blight
destroyed the potato harvest upon which the colonised Irish population were
totally dependent. It is a example to keep well in mind as our capacity to prevent
future famines may prove intimately linked to the protection of farming commu-
nities’ autonomy to govern their own affairs under their own legal regimes.
One of the intriguing things about Indigenous peoples’ legal regimes and their
various cosmovisions or worldviews is not so much the diversity, which is a given,
but the level of commonalities found among peoples living on different continents
with little if any known prior contact. A recurring image, for instance, is the two-
headed snake (as portrayed in the Ayahuasca painting on the back cover) or
entwined snakes which have been interpreted as depicting the link between earth
 In opening: Ever living law xix

and cosmos and in which Narby finds reflections of the double helix structure of
DNA.8 This world of spirits, natural law and karmic justice is not a familiar ground
or one in which many western trained lawyers are likely to feel comfortable.The
spiritual, holistic and sometimes mystical aspect of customary legal regimes cannot
however be denied, nor should it be. The link to the spiritual informs customary
law and has served as an important basis for the development of the underlying
philosophical principles of law that help to make it such a rich source of legal
diversity. Considering the strong spiritual ties Indigenous peoples maintain with
their traditional territories, it is not surprising to hear that the law is linked to the
land. According to senior Yolngu lawman James Gaykamangu from Arnhem Land
in Northern Australia law is not only linked to the land it comes from the land.9
The notion that the law may be learnt from the land evokes a notion of law as
experiential and makes it easier to comprehend how the law can be depicted in
dance or in a visual representation. This is indeed the case for the Yolngu people
who presented a painting of Ngarra law (reproduced on the front cover this book)
to the Supreme Court of the Northern Territory of Australia. Customary law may
also govern the use of designs on garments, such as the hand painted Piro Kushma
(see front cover) an treasured gift from community leader Raul Sebastian.
One of the first examples I had of traditional decision making in a customary
law context involved discussions of representatives of Awajun and Huambisa

DRAFT
communities in what was presented as a traditional meeting or IPAAMAMU.The
event had been organised in the Amazonian town of Santa Maria de Nieva on the
Rio Maranon to consider whether to participate in negotiations for the use of their
traditional knowledge and resources in the development of new pharmaceutical
products with Washington University and the then US pharmaceutical subsidiary
of Monsanto.The second experience involved Matsiguenga and Piro communities
in the central Peruvian Amazon during capacity building activities to strengthen
the defence of their interests during Shell’s exploratory activities in the Camisea
Region, in 1996.These two cases quickly brought home the limitations of the law
to protect Indigenous peoples in the face of corporate power and governmental
incapacity, disinterest and at times overt opposition, to their interests. They also
highlighted the dangers of good intentions and the need to ensure that provision
of legal support does not serve to legitimise asymmetrical negotiation processes.
Viewed from this perspective, the importance of securing recognition of custom-
ary law goes beyond recognition in contractual agreements. Effective recognition
is both necessary for and dependent upon the realization of Indigenous peoples
rights to self-determination.
If encounters between positive and customary legal traditions are to prosper
they will need to be informed by Indigenous peoples’ world visions that directly
link all living things, the earth and the cosmos. In Latin America this link between
spirituality, nature and the earth is expressed in laws and constitutional provisions
recognising the rights of Pachamama (Mother Earth) and championing the notion
of buen vivir (right living). Interweaving of state law and Indigenous legal princi-
ples is not a process of assimilation as much as of infiltration creating the bases for
a new form of Natural Contract between humankind and the Earth. In the view
xx In opening: Ever living law

of the French philosopher Michel Serres our future is dependent upon just such a
contract and our decision to choose ‘… peace among ourselves to protect the
world and peace with the world to protect ourselves.10 One of my abiding memo-
ries of the euphemistically described “troubles” in Northern Ireland were the
images of bereaved parents sending out messages of forgiveness on television and
asking that the killing stop there. Remembering these images on September 11th
after I saw the bombing of the trade towers I suggested to incredulous friends in
Hawaii that the best response would be forgiveness, when all they could see was
the need for revenge. The route of revenge has seen the US mired for decades in
wars it can never win a victim of its own descent into torture and terror while the
constitutional court in South Africa applies the traditional African value of ubuntu
(humaneness) to resist calls for the death penalty for murderers of the apartheid
regime. It is ironic that traditional restorative justice systems considered to conflict
with human rights may demonstrate a greater capacity for forgiveness and peace
than is found in western states espousing a human rights ethos.
Would that I could with this short work place the reader in the jungles, moun-
tains, steppes, deserts, traditional territories, reservations, shantytowns and urban
environments where living customary legal regimes are today to be found. Not in
books but in the ways and doings of a myriad of Indigenous peoples whose actions
maintain, nurture and develop their laws.To appreciate customary law we need to

DRAFT
appreciate the lawmakers the peoples who have sustained an incredible diversity of
legal regimes across centuries of marginalization, denigration and genocidal attacks.
One of the main challenges, for those unversed in customary law is to accept the
notion that Indigenous peoples are empowered by law to make Law. Indigenous
peoples have been making and enforcing laws for centuries and passing this law on
from generation to generation primarily by oral means. Laws passed on in the
forms of poems, stories, dances and art shared at campfires, waterholes and sacred
places. Recreated at feasts, auspicious occasions, initiation rites and sacred cere-
monies, law has been passed on, revised, moulded and created in response to
internal and external pressures and opportunities. Appreciation of the strength,
resilience and faith, necessary to sustain customary law in the face of concerted
efforts, by both colonial and post-colonial governments, to bring about its demise,
must in itself bring respect for such regimes and the people that have sustained
them. Growing respect for cultural diversity has begun to change attitudes towards
Indigenous peoples, this change is, however, slow and irregular and discrimination
and abuse of Indigenous peoples continue unabated in many areas.
Driven forward by advances in human rights law and in national constitutional
law, powered by a wide range of constituent groups the balance of power within
the law and the recognition of a wider range of sources of law offers a promise for
legal recovery. Recovery of a legal order out of tune with the wishes of the people
and the needs of the planet the living earth on which our lives and those of our
descendants depend.To come to this new law we must first shake off the ingrained
belief that prescribed state law is in some way immutable. That trade agreements
adopted under duress and intellectual property regimes serving primarily corpo-
rate interests are written in stone. That economic, social and cultural rights can
 In opening: Ever living law xxi

continue to be treated as aspirational while binding trade agreements negotiated in

secret may force states to adopt policies that deprive their peoples of their means
of subsistence. It is time to take a new look at the law, to approach the law from
outside the constraints of our western legal training and be open to finding a new
legal philosophy to ground our relationships with one another and with the planet.
A philosophy of life not profit that fosters community rather than the individual-
ity that has driven us to the brink of potentially irreversible planetary harm, one
that acknowledges and is grounded in our dependence on the Earth for all our
needs. This is not some new age legal theory it is pure practical reality. Either we
develop a new basis to guide our relationship with the earth or we will destroy its
capacity to sustain us. It doesn’t take a genius to realise that Indigenous peoples
whose legal regimes have helped them to successfully sustain life for centuries in
often fragile environments may have something to teach us about the underlying
philosophical bases for developing and maintaining a symbiotic relationship with
the earth. 200 years of domination by legal positivism has not eradicated custom-
ary law from among the primary sources of law, that in itself is salutary. Perhaps
now we can take off the blinkers of legal superiority and begin to decolonize our
individual and collective legal vision so we can recognize the gifts that lie within
customary legal diversity and begin to secure the rights it circumscribes.
This work is informed as much by those things that did not work out as hoped

DRAFT
as those that advanced somewhat. Indeed advanced somewhat is about as good as it
seems to get when working to inch forward the recognition and effective protec-
tion of Indigenous rights. With hindsight I get to see the places and times where
powered promotion of legal “solutions” to perceived problems and needs of
Indigenous peoples may have done as much harm as good, if not more. I hope in
some small way this work may serve as an amends for any harm caused with that
kind of lawyering. It has been my good fortune along the way to have had mentors
and others not too shy to pull me up when I was in full flow. Three occasions in
particular come to mind and I share these for those of passion, good intentions and
heads full of solutions to take note, and as reminder to me to listen.The first of these
took place during negotiations for the use of genetic resources and traditional
knowledge of Awajun communities in 1995 where I was fixated on securing the
perfect contract and Cesar Sarasara then president of CONAP said “you have to
allow us to make mistakes or we’ll never learn”.The second came from the inspi-
rational David Hathaway who cautioned me in my early days to “beware you don’t
find the money and nobody wants to work with you.”Third and the one that has
taken me longest to digest was from Jannie Lasimbang, (who years later went on to
sit on the Expert Mechanism for Indigenous Issues) who took me aside in Jakarta
after I presented for a mandatory international disclosure of origin system in 1996
and said to me “you shouldn’t be so convincing”. At the time I thought it was all
about being convincing only now am I starting to grasp what she meant. If an idea
is worthy of itself there should be no need to try to force people to believe it and
if it doesn’t secure support by attraction, promotion is pointless.
In writing this book I have tried to provide as dispassionate a view as possible of
the issues – I am however passionate about this subject and I expect it will come
xxii In opening: Ever living law

through so I hope you’ll take my opinions and suggestions for what they are, and
that it will be the attraction of customary law and not its promotion by me that will
prove the enduring impact of this work.While it has taken me time to slow down
and unpack the legal toolbox I was provided in good faith by many patient and a
few not so patient educators in law, I am now I hope just about ready to start to
discerningly begin to draw on all the four primary sources of law as the basis for my
future practice of the law. I expect to meet some of you along this network of paths
so ably tread by the host of legal anthropologists and legal adventurers who set forth
to encounter new visions of law and who have built awareness of the promise and
importance of legal pluralism. What is most inspiring is that Indigenous lawmen,
scholars, legal professionals and activists have brought a whole new level of aware-
ness and understanding to the dialogue between systems. Perhaps between us we can
help to make peace with one another and with the world a reality.
Before entering the study proper I want to recognise all those whose work has
been responsible for the development, recording and protection of Brehon law and
those providing training in Early Irish law as part of our cultural legal legacy. I also
want to recognise the storytellers far and wide and all those whose work serves to
conserve, perhaps unwittingly, this legal legacy. In that vein it pleases me greatly to
recognise my father’s role in exposing me to Brehon law in the tales of old Ireland
he so vividly told me as a child. Stories such as that of Fionn Mac Cumhaill and the

DRAFT
Fianna the greatest of Irish warriors.As the story goes, to be accepted in the Fianna
aspirants had to pass a series of almost impossible tests.11 These included running
full speed through the forest and ducking under a branch at knee height and jump-
ing another branch at chest height without ever losing speed. As a final task they
had to stand in a pit armed only with a shield and a hazel rod and defend them-
selves against nine warriors with nine spears firing spears at them. If they suffered
even a scratch they would not make the grade. Enthralled by this tale I was some-
what confused by one of the tasks, which required learning 12 books of poetry by
heart. While proud at the notion that elite Irish warriors were highly educated I
failed to appreciate what prowess could come from a head full of so much poetry
– my apologies to poets near and far. It was only as I studied more about custom-
ary law that I began to understand that in an unwritten system law is passed on in
stories, poems, dance and painting. It was then I realised the Fianna were trained
not only as men of arms but as men of law.
Equally gratifying is the recognition of the role my mother has played sustain-
ing the legacy of Lady Gregory who lovingly gathered up and published stories
from local people in Galway and West Clare in the 1890s.12 Born in England my
mother is one of those immigrants who has in many ways become more Irish than
the Irish themselves. For almost as long as I have been researching customary law
she has been working to bring eminent authors and historians of Irish culture
together at the Autumn Gathering in Coole Park in a celebration of living Irish
culture. Maybe sometime in the not too distant future we may also gather to
celebrate the identification and recognition in Irish law of principles of Early Irish
law. Principles found in codified Brehon law texts like the Senchas Mor or in the
stories, poems, and songs that remain portals to what was once our living law.
Introduction

Customary law has been an integral part of national and international legal gover-
nance since earliest times. In fact, customary law born of habitual practices may
have been the first body of law known to man. Customary law is not generally well
understood or well liked. States don’t like the challenge it makes to statute law, and
many Indigenous peoples reject the notion of customary law as a colonial imposi-
tion. The truth is somewhat different. Customary law serves to bind and strengthen
communities and acts as a foil to the erratic toss and turn of statute law, often born
of expediency or want rather than of need and utility.

DRAFT
Indigenous peoples’ legal regimes, which are largely but not solely of a custom-
ary law nature, have survived centuries of marginalization, repression, disdain and
attempts at their destruction by colonial and settler state governments. Although
distorted and discredited during colonial times, Indigenous peoples’ legal regimes
have survived, experiencing a resurgence in post-colonial countries, and an
emphatic rise following the recognition of Native Title, grounded on customary
law, in Canada and Australia in the 1980s.1 This resurgence of customary law has
accompanied major advances in international human rights law. In a period of
little more than twenty years, spanning the end of the twentieth and start of the
twenty-first century, international law relating to Indigenous peoples’ human
rights has been completely transformed. New international instruments, national
constitutions and legislation have expanded the scope and enforceability of their
human rights. Meanwhile, far reaching decisions of treaty bodies, national courts
and regional human rights bodies have demonstrated judicial willingness and
preparedness to interpret and apply Indigenous peoples’ human rights in an
expansive fashion. This includes recognition of rights to their lands, traditional
territories, natural resources, cultural heritage and most importantly self-determi-
nation. An extremely significant but oft-times overlooked aspect of this
renaissance has been the recognition of Indigenous peoples’ rights to their own
legal regimes and institutions and the fundamental role they have to play in the
realisation of their human rights.
Recognition of Indigenous peoples’ rights to their own legal regimes and insti-
tutions is clearly set out in international instruments such as the International
Labour Organization Convention 169 on Indigenous and Tribal Peoples in
Independent Countries,2 and the United Nations Declaration on the Rights of
2 Introduction

Indigenous Peoples.3 These instruments affirm the status of customary law as a

source of law that must be taken into consideration by states in the development
of any law and policy affecting the rights or well-being of Indigenous peoples.
Despite the changed fortunes of customary law and its recognition in international
human rights instruments many people, including many Indigenous peoples, view
the term ‘customary law’ as connoting something less than law.4 Overcoming that
misconception is vital for the realization of Indigenous peoples’ human rights and
the protection of cultural diversity.
Recognized as a source of law by legal philosophers since the time of Plato,5
customary law has played a significant role in the formation of a majority of the
world’s dominant legal traditions.6 It was the pre-eminent source of law in
Medieval Europe,7 it provided the basis for the development of English common
law8 and its influence is also visible in Shari’a,9 Hindu and civil law systems.10 In
some countries it works alongside national and religious law as a fully functioning
part of national legal governance, as is the case with adat in Indonesia and
Malaysia,11 xeer in Somalia, and the customary regimes of scheduled tribes in the
north eastern Indian states of Nagaland and Mizoram.12 It has been held to sit
alongside the common law in South Africa13 and it supersedes inherited British
common law and French civil law in Papua New Guinea, Vanuatu and the
Solomon Islands. In the recently independent country of South Sudan customary

DRAFT
law is seen as the source from which to develop a common law of Sudan.
There are around 5,000 distinct Indigenous peoples in more than 70 countries.14
The Secretariat to the United Nations Permanent Forum on Indigenous Issues
claims that there may be as many distinct legal regimes as there are distinct
Indigenous peoples.15 Many national minorities, local communities and ethnic
groups that resist adopting the cloak of indigenousness also jealously maintain their
own customary legal regimes.16 Customary law may likewise be found in munici-
pal and national law and in court practices. At the local level it provides internal
regulation for communities, clubs, associations, groups of farmers and other coop-
erative groups. Its influence is to be found in many areas of law including contract,
tort, family law, and private and public international law.17 It plays a vital role in
defining land and resource rights and has increasing relevance for areas of formal
law such as the rules of evidence, equity and criminal law. It plays a crucial part in
governing international commercial relations under the ley marchant, which arose
from the practice of merchants.18 It also forms the basis for a highly influential and
universally binding body of international customary law, which arises from the
practice of states and what is known as opinio juris (i.e. a sense of legal obligation to
comply with a rule of law requiring it).Woodman has suggested six headings under
which customary law may be categorized:

1. customs that people observe in particular localities;

2. some elements of the English common law, which judges have historically
stated to be ‘the common custom of the realm’;
3. customary laws of indigenous minority peoples, the best publicized
instances being in North and South America,Australia and New Zealand;
 Introduction 3

4. customary laws of the various ethnic groups that constitute the popula-
tions of states in sub-Saharan Africa;
5. observed religious laws, significant in many parts of the world;
6. customary norms of international law as well as lex mercatoria, the
customary norms of the worldwide commercial community.19

While Woodman’s reference to Indigenous minority peoples should be modified

to reflect the current notion of Indigenous peoples as self-identified peoples, the
general areas he suggests remain valid. As can easily be seen, customary law is no
mere ‘souvenir of bygone law’, to quote Bederman, it is ‘an integral and coherent
part of any healthy functioning contemporary legal system’.20 Together with other
informal and non-state law it has the power to shape and influence the vast major-
ity of human behaviour.21 For many in the legal profession, however, Woodman’s
sixth category, customary international law, is likely to be the only body of custom-
ary law they have ever studied or ever expect to encounter. Considering the many
manifestations and wide applicability of customary law it is time for lawyers, judges
and legislators and all those whose activities may affect Indigenous peoples, to
make themselves aware of the scope, nature and applicability of customary law.
In most countries where Indigenous peoples reside their customary laws and
practices are given direct or indirect recognition, which may range from formal

DRAFT
constitutional recognition to tolerance of customary practices that at times run
counter to national law. For Indigenous peoples living in voluntary isolation in the
Amazon and the Congo, or those living in remote areas outside the reach of
national law, custom is the only law they know. Likewise in post-conflict coun-
tries,22 failing states,23 and states with no formal functioning government or
juridical system,24 customary law may prove the preferred, if not the only, system
of law to which the populace can turn in their search for justice.25 The 2006 World
Development Report claims that in 2003, 85 per cent of the population in Sierra
Leone were primarily reliant upon customary law.26 In Somalia and Sudan it is now
widely accepted that no Rule of Law program can function unless it takes custom-
ary law into consideration.27 In many areas, customary law is the principal
mechanism for regulating land rights.Traditional tenure regulates over 80 per cent
of land rights and significant marine areas in Pacific Island countries,28 while 75 per
cent of land in Africa is subject to some form of customary tenure.29
Customary law regimes of Indigenous peoples and national minorities are given
varying degrees of recognition throughout Africa, Asia, Latin America, Pacific
Island states and in the main common law settler states (Australia, Canada, New
Zealand, United States), as well as in many countries of the Russian Federation,
South-East and Central Asia as well as in Scandinavian countries and a number of
European states, including Spain and Italy. Indigenous peoples’ rights to autonomy,
to their customary legal regimes, traditional authorities, customary lands, resources,
and/or cultures are recognized in many national constitutions.30 Where constitu-
tional recognition does not exist, national laws and judicial bodies may still
recognize rights based upon customary law. Even where states deny the existence
of Indigenous peoples on their territories they frequently recognize substantial
4 Introduction

differentiated rights for tribal groups, national minorities and other groups. In
India, for example, measures to prevent interference with the land rights and
customary laws of scheduled tribes are given constitutional protection.31 In
Bangladesh the Chittagong Hill Tribes are governed by a mixture of state law and
customary law,32 while, nomadic tribes in Eastern Tibet have found means to use
the power of the Chinese State to support customary dispute settlement proce-
dures.33
At the international level, the United Nations Declaration on the Rights of
Indigenous Peoples recognizes Indigenous peoples’ right to self-determination,
from which flows a wide range of social, cultural, economic, civil and political
rights. Most importantly, Article 34 of the Declaration, provides 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.

The World Bank, the Convention on Biological Diversity and the World
Intellectual Property Rights Organization are just a few of the numerous interna-
tional bodies that have recognized the importance of customary law for the

DRAFT
implementation of their mandates.34 The transition from recognition on paper to
recognition in practice has however proven more challenging.
At the national level, a majority of countries home to indigenous or tribal
peoples have, in varying degrees, recognized their rights to be governed by their
own customary laws. Customary law is also playing a key role in the identification
of Indigenous peoples’ rights to land and resources; re-defining their relationships
with the state and third parties; scoping and informing their participation in deci-
sion-making processes; and guiding decisions on the approval or otherwise of
projects for the exploitation of resources on or under their lands and of applica-
tions to access their resources and knowledge. Although primarily relevant for the
achievement, regulation and exercise of Indigenous peoples’ rights in their own
jurisdictional territories and the countries in which these territories are located,
respect and recognition of their customary laws has a significant international
dimension, which has yet to be tested.
One of the most high profile debates on customary law has taken place within
the framework of international negotiations on the protection of traditional
knowledge at the Convention on Biological Diversity and the World Intellectual
Property Organization. In both forums, Indigenous peoples have consistently
argued that any system for the protection of their traditional knowledge must be
based upon their customary laws. In October 2010 the Conference of the Parties
to the Convention on Biological Diversity (the body responsible for the imple-
mentation of the Convention) adopted the ‘Nagoya Protocol on Access to Genetic
Resources and the Fair and Equitable Sharing of Benefits Arising from their
Utilization to the Convention on Biological Diversity’ (Nagoya Protocol), which,
under Article 12(1), requires all parties to ‘take into consideration’ the customary
 Introduction 5

laws and protocols of indigenous and local communities in adopting measures to

implement the Protocol’s provisions. In so doing, the Nagoya Protocol has recog-
nized the international dimension of Indigenous peoples’ customary laws. It is now
only a matter of time until courts find themselves tasked with interpreting obliga-
tions relating to traditional knowledge or genetic resources based upon the
customary laws of Indigenous peoples from foreign countries.This is, however, just
the beginning.
Human rights law, which has been at the forefront of the process to secure
recognition of customary law, has itself been transformed in the process. Changes
have already been seen in shifts from a traditionally individualistic focus to one that
embraces the notion of collective rights and recognizes Indigenous peoples as
‘peoples’ entitled to self-determination. In times gone by, issues of Indigenous
peoples’ human rights and responsibilities of states to respect and recognize their
legal regimes would have been confined to the national jurisdiction in which
Indigenous peoples reside. It would have had little relevance for foreign states and
little if any impact on proceedings in a foreign jurisdiction. That is no longer the
case. Indigenous peoples’ rights over their land, resources, cultural patrimony,
human remains and sacred objects, traditional knowledge and cultural expressions,
wherever they are found, require respect and recognition of their customary laws.
Obligations requiring consultation in good faith, free prior informed consent,

DRAFT
and/or participation by Indigenous peoples in decision-making processes, have the
ability to bring the customary law of Indigenous peoples into courtrooms far
beyond the national jurisdiction of the countries in which they reside.
Issues of customary law may arise in relation to commercial or scientific use of
genetic resources and traditional knowledge; carrying out of mining and subsur-
face resource extraction activities; forestry activities and the establishment of
REDD+ carbon sequestration programmes; establishment of protected areas and
national and international conservation programmes; land conversion policies; fish-
ing in coastal waters and freshwater sites; leasing of indigenous lands; purchase by
foreign investors and countries of massive swathes of agricultural lands in develop-
ing countries; and the storage of hazardous waste. Identification of the legitimate
representatives of Indigenous peoples, confirmation of their right to approve or
deny permission to carry out specific activities and of the appropriate procedures
to be followed to ensure compliance with traditional decision-making practices, are
examples of matters governed by customary law that may prove crucial to demon-
strating compliance with human rights obligations.
Despite its importance, the customary law of Indigenous peoples remained, until
relatively recently, largely unexplored except by social anthropologists.35
Stavenhagen claimed that the issue of customary law had excited little interest
among legal experts whom he saw as solely interested in written and codified ‘posi-
tive’ law.36 While a background paper for the 2006 World Development Report
describes the lack of attention to customary law ‘as striking, even if not surpris-
ing’,37 this situation is changing rapidly with an ever-increasing body of research
and literature on a wide range of legal issues.This includes studies on the nature of
customary law,38 its role as a source of law,39 the relationship between customary
6 Introduction

law and protection of specific human rights,40 the role of customary law in secur-
ing sustainable development,41 customary justice,42 conflict resolution,43 culture as a
defence44 and fresh approaches to investigation of Indigenous peoples legal regimes
and their influence on national and international law.45 There are ever more stud-
ies on the role of customary legal principles in the development of state law,46 the
sources of customary law,47 its nature and applicability48 and its recognition in
national courts49 and tribal courts,50 while numerous publications on the issue of
legal pluralism and non-state law have brought discussion of the role of customary
law ever more to the fore.51 The educational field has also seen a major shift in stud-
ies of Indigenous peoples’ legal regimes. For example in the United States, where
no university offered studies in indigenous law in 1992, there were at least 30
university level programmes for indigenous legal studies by 2011.52 In Canada there
have been various attempts to advance training on indigenous law but there is as
yet no stand-alone degree programme focusing specifically on indigenous legal
traditions.53 Australia has one indigenous law centre, based at the University of New
South Wales. There is still, however, a long way to go to build awareness among
decision makers, the legal profession and the populace at large regarding the nature,
scope and importance of Indigenous peoples’ laws and of international legal obli-
gations to secure respect and recognition for their enforcement. Interestingly, it is
countries such as Namibia and South Sudan that are starting to lead the way in the

DRAFT
development of national education programmes to introduce customary law to
secondary school students, make it a compulsory part of legal training in third level
institutions and establish centres for customary law as part of national institutional
structures.54 These and other such initiatives will be key to changing widely held
perceptions among the legal profession and the wider society that customary law
is not really law at all but merely habitual customs; building awareness of the histor-
ical and continuing place of customary law in legal governance; and promoting
changes to customary legal regimes to help secure increased respect for individual
human rights without undermining communal rights fundamental for the protec-
tion of Indigenous peoples’ cultural and territorial integrity.

Indigenous law and customary law

Although an important source of law in its own right, customary law is widely seen
as being subordinate to human rights law.55 It is also frequently subordinated to
national constitutions, laws and regulations, making the relationship between
customary law and positive (statutory) law a fraught one. A tendency to focus on
the real or perceived distinctions between customary law and positive legal regimes
masks the many similarities between these sources of law. It also masks the fact that
customary law is binding law for those who submit to its rule. Bederman, who
takes the view that ‘[a]ll law begins with Custom’,56 claims that custom’s status in
law today lies in two positive constructs: domestic legal systems and international
law, arguing that ‘customary norms [are] a potent and robust form of positive law
making’.57 Woodman, in contrast, argues that there is no basis ab initio for treating
customary laws as subordinate to other laws, claiming that ‘all law, including state
 Introduction 7

law is in the last resort customary’.58 The contradictions in their approaches, with
Bederman viewing customary law as positive law and Woodman viewing positive
law as a product of custom, should not overshadow the important synergies in their
positions with both claiming that all law begins in custom, making it a crucial
source of law.
Cicero viewed custom as resting somewhere between natural law and positive
law.59 Porter follows in a similar vein arguing that, ‘the customs of a people medi-
ate between natural right and written law’ and that while written law ‘will
normally supersede and override customary law … because [written laws] find
their context and point within a broader framework of customary law, the customs
of the people will provide the necessary context for their interpretation.’60 This
leads her to conclude that written law will have no purchase on a community,
unless it reflects the practices of that community in some way; even a law that sets
out to correct custom will necessarily reflect other aspects of the customary prac-
tices of a community, or it will lack the purchase in the community for which it is
intended. Far from being a minor adjunct to the law properly so called, custom is
seen from this perspective as the one essential component of any legal system, suffi-
cient to sustain a rule of law under some circumstances, and one essential
component of the rule of law under any and every circumstance.61
Gaining a sense of customary law’s importance is crucial for dispelling the myth

DRAFT
that it is something short of law. Customary law is Law, what is more it is binding
law for those who submit to it, and its influence is growing not receding. It
remains, however, on the periphery of national and global legal governance, as
much due to the ignorance of the legal profession in general and the wider soci-
ety as to its status, nature and content. Denigration of their legal regimes and their
classification as customary law by colonial and post-colonial governments has led
many Indigenous peoples to reject the utilization of the term to describe their legal
regimes.This is very understandable, especially when taking into account the many
different sources of law that go to make up Indigenous peoples’ legal regimes.
Professor John Borrows stresses the fact that customary law is not the root of all
indigenous law, which may also be ‘positivistic, deliberative, or based on the theo-
ries of divine or natural law.’62 Although customary law is just one source of
indigenous law, it is a vital part of all indigenous legal regimes providing both the
flexibility and continuity through which sacred teachings, the conclusions of delib-
erative practices and the knowledge drawn from naturalistic observations, may be
applied and enforced in community governance and traditional resource manage-
ment systems. Customary law may also play a role in the development, review,
enforcement or desuetude63 of positivistic proclamations.
Although not all indigenous law has a customary root, the term customary law
has often been used as an all-embracing term to refer to Indigenous peoples’
regimes.This approach is widely rejected by Indigenous peoples. Quechua activist
Alejandro Argumedo argues that the term ‘customary law’ is inappropriate to
describe contemporary indigenous legal regimes, which often incorporate
elements drawn from non-indigenous sources.64 For this reason he favours use of
the term ‘Indigenous law’,65 a term Borrows also adopts to speak of the full range
8 Introduction

of laws that make up Indigenous peoples own legal regimes.66 The use of the term
indigenous law is itself not without ambiguities, referring as it may do to national
laws applying to Indigenous peoples as well as to laws adopted and maintained by
Indigenous peoples themselves. In Colombia, Indigenous peoples use the all-
encompassing term ‘our own laws’ to refer to their legal regimes.67 While in
Australia, aboriginal peoples are highly resistant to the use of the term customary
law, preferring instead to refer to the laws of specific named aboriginal peoples.
Adopting a different approach, the Navajo Nation has adopted the notion of
‘Navajo common law’ to describe their system of Peacemaking,68 which former
Chief Justice Yazzie claims incorporates traditional Navajo concepts into modern
legal institutions.69 References to ‘Indigenous common law’ has the potential to
more readily convey the credentials of Indigenous peoples’ legal systems as a solid
body of law rather than a mere collection of habitual practices.70 Interestingly, the
term has been co-opted in South Sudan, where there has been concerted efforts
to ‘develop the customary laws into a common law of Sudan’.71 This may prove
somewhat confusing as what is being described is the development of a national
common law system grounded on customary laws of many different Indigenous
peoples a process which will need to be sensitively applied if it is to avoid harmo-
nization and negation of some aspects of custom.
There have been various efforts to promote a shift away from the use of the

DRAFT
term customary law by researchers. Alison and Alan Dundes viewed the link
between customary law and the notion of ‘custom’ as suggestive of a wide range of
traditional behaviours some of which ‘have nothing whatever to do with law’.72 In
its place they proposed use of the term ‘folk law’ saying that ‘[a]ll folk law is
customary in the sense that it is traditional, but not all custom is law!’73 The term
folk law is itself, however, ambiguous and Glenn suggested as an alternative the
term ‘chthonic law’.74 Based on the word autochthonous, the term describes the
laws of peoples ‘living in or in close harmony with the earth’.75 This approach is
seen as beneficial for its recognition of a distinct indigenous ‘chthonic legal tradi-
tion’, placed alongside the world’s dominant legal traditions.76 Perry has proposed
the use of the term ‘customary law systems’ to distinguish Indigenous peoples’ legal
regimes from mere collections of habits and customs.77
To further muddy the waters there is no consensus on the terminology to
describe Indigenous peoples’ legal regimes at the international level. The United
Nations Declaration on the Rights of Indigenous Peoples, for instance, does not
use the term ‘customary law’ at all. Instead, it refers in Article 34 to the ‘laws,
customs and traditions’ of Indigenous peoples. ILO Convention 169 takes a differ-
ent approach, referring to state obligations to give due regard to Indigenous
peoples ‘customs and customary laws’78 and requiring states to recognize and
protect their ‘social, cultural, religious and spiritual values and practices’ and to
respect the integrity of their institutions.79 The rights of Indigenous peoples to
their legal regimes as set out in both the Declaration and ILO Convention 169
clearly encompass, but are not limited to, their customary laws.80
Despite the difficulties associated with its use, the term ‘customary law’ contin-
ues to be utilized extensively by Indigenous peoples’ representatives and academics
 Introduction 9

to refer to Indigenous peoples’ legal regimes. It is also widely used in international

and national forums and it is increasingly referred to in national, regional and inter-
national reports, negotiations and legislation. Indeed, so widespread is its use that
scholars and others that had previously leaned towards use of the term ‘indigenous
law’ have in recent years felt obliged to use the term ‘customary law’.81 If the term
customary law is so unpopular among Indigenous peoples and researchers why
does it continue to play such a significant role in national and international discus-
sion of the rights and legal regimes of Indigenous peoples? Part of the answer may
be that, while the term may not fully encompass every aspect of Indigenous
peoples’ legal regimes, it does provide the foundations and backbone of the vast
majority of such regimes. It is also the one aspect of indigenous legal regimes that
courts have recognized as providing the basis for recognition and enforcement of
ancestral rights over their traditional territories, lands and resources.As such it plays
a vital role in the definition and protection of the rights of all Indigenous peoples.
Although indigenous legal regimes may vary greatly the one true constant amongst
almost all such regimes is their grounding on principles of customary law.
While too narrow to cover all aspects of every variation of legal regime adopted
by Indigenous peoples, the term ‘customary law’ is broad enough to encompass a
wide range of law, traditions and customs generated by Indigenous peoples in
accordance with their own decision-making practices. For instance, many elements

DRAFT
of indigenous legal regimes described by Borrows, including deliberative and natu-
ral or divine law may come to constitute elements of customary law of Indigenous
peoples. Customary law may even include laws or elements of laws recorded in
written format. For instance, while customary law would not normally be deemed
to incorporate statutory instruments adopted by a tribal government, the substance,
application and interpretation, of tribal statutory law may rest upon and require
compliance with customary law principles. Furthermore, where tribal law incor-
porates elements of national or other external legal regimes the aspects adopted, to
the extent they are adopted within the framework and under the overview of
customary legal principles, may be considered for all intents and purposes part of
the customary laws of the relevant people. The fact that they are based upon or
indeed mirror legal principles and maxims drawn from other sources does not of
itself exclude them from being subsumed within the dynamic body of customary
law. This of course is not the case where such external influences are in effect
forced upon Indigenous peoples, whether by the state or other external forces.
The purpose of this book is to throw light on the nature, scope, application and
importance of Indigenous peoples’ ‘customary laws’. Most importantly, it is hoped
the information provided may help dispel some of the prejudices that foster the
notion that ‘customary law’ is some form of second-rate law, a ‘law of the subjected’
as Chanock terms it.82 The notion that Indigenous peoples laws are something less
than law is a myth that must be dispelled if lawyers, judges, and parliamentarians
are to support rather than prevent its recognition and growth.83 Judges, lawyers,
legislators and administrators must, in so far as their activities affect Indigenous
peoples, be aware of their rights.This includes rights to respect and recognition for
their legal regimes, including those aspects of their legal regimes that are customary.
10 Introduction

Indigenous peoples need to be aware of the fact that aspects of their legal regimes
are customary and identify the benefits and drawbacks of customary aspects of their
legal regimes. Third parties, including researchers, corporate bodies, international
institutions and private investors all need to be aware of the place customary law
plays in the local, national and global legal orders. Developments in international
law and slow but steady increments in national and regional implementation of
human rights obligations mean that failure to identify, respect and comply with
customary law may have significant financial implications and may also lead to
criminal sanctions. This book hopes to help build that awareness by providing an
overview of many ways in which customary law interfaces with national laws and
the international legal governance of human rights. Particular attention is given to
key areas affecting Indigenous peoples’ rights to their lands, traditional territories,
natural resources, cultural heritage, traditional knowledge and self-determination.
This book focuses specifically on those aspects of Indigenous peoples’ legal
regimes that may be considered customary, their recognition under national and
international law, and their role in securing protection of human rights. It will
therefore speak of customary law rather than the more all-embracing term indige-
nous law or indigenous legal regimes.That said, it is important to constantly bear
in mind that while customary law is a central aspect of all indigenous legal regimes,
not all the laws of Indigenous peoples are customary. The notion of Indigenous

DRAFT
peoples’ customary law is utilized here to refer to that body of customs, norms and
associated practices, which have been developed or adopted by Indigenous people
or local communities, whether maintained in an oral or written format, to regu-
late their activities and which they consider to be binding upon them without the
need for reference to national or other temporal authorities.
This study examines the treatment of customary law in a wide variety of legal
contexts, historical periods and diverse perspectives. In reading the text it is impor-
tant to be aware that the use of the term ‘customary law’ has varied greatly across
time, location and legal settings, and has been variously interpreted by indigenous
and non-indigenous scholars, state and tribal courts and international organizations
and law. This diversity of meaning further complicates analysis of customary law.
The intent here is not, however, a linear study of a clearly defined singular notion
of customary law.The purpose of this book is to build awareness of the legal status
of customary law, the rich nature and diversity of customary legal regimes and its
importance for securing sound national and international legal governance.
The current analysis adopts the premise that ‘customary law’, along with natu-
ral law and positive law, is one of the fundamental pillars of the legal order and
crucial for balanced legal governance. It is further premised on the view that the
rise of positivism has brought disequilibrium to the international legal order,
undermining its capacity to respond to the needs of a multicultural, environmen-
tally threatened, global community. The interdependence and permeability of
customary, natural and positive law is such that strict boundaries cannot easily be
drawn between them. Both custom and positive law are, for example, the means
through which natural law may be given ‘practical meaning’,84 while natural law
may be identified from universal custom.85 At times, custom may also take the form
 Introduction 11

of positive law86 and may even be reduced to writing while positive law may on
occasion be little more than the articulation of custom.87 Considering the interre-
latedness of these three aspects of the law the marginalization or exclusion of any
part is bound to bring about disharmony in the legal system as a whole.
Considering the breadth and diversity of existing customary law regimes, a
comprehensive analysis of all systems is impossible. Conversely, a focus on any one
country, region, or dominant legal regime (e.g. common law countries), would not
provide the global perspective sought. Although, the work frequently returns to
examination of customary law in a number of key countries including Australia,
Canada, Peru, South Africa and the United States, it draws upon a wide range of
national and local experiences from all continents. The aim is to show the wide-
spread applicability and recognition of customary law in relation to a series of key
topics that have dominated the international debate on Indigenous peoples’ human
rights.These include issues such as self-determination and autonomy; land, territo-
rial and resource rights; rights to culture and cultural heritage; access to genetic
resources and protection of traditional knowledge; the conflicts between human
rights and customary law; and, the future of customary law within national and
international legal pluralism. Attention will be given to issues such as: proof of
customary law; its role in failing states; its application to address conflicts with
private sector actors; its role in regulation of contractual arrangements; and its

DRAFT
influence on dominant legal regimes.The objective will be to show that custom-
ary law, far from being an archaic system of law existing on the margins and of little
interest and less importance to the mainstream legal system, is a vibrant and
dynamic body of law playing an active and important role in national and interna-
tional jurisprudence.
The principal objectives of this research are to demonstrate the importance,
legitimacy and durability of Indigenous peoples’ legal regimes, their rights to regu-
late their internal affairs in accordance with their own laws, customs and traditions
and the central role that customary law has to play in securing the realization of
their human rights. It also presents evidence of state obligations to secure
Indigenous peoples’ rights to their own legal regimes in order to secure their
human rights.Throughout the book attention will be drawn to the recognition of
these rights and obligations in treaties and customary international law, which is
identified through consideration of state practice and opinio juris (i.e. the existence
of a sense of legal obligation to comply).88 Unlike treaties, which are only binding
upon states that have ratified them, customary international law may bind states
without any formal acquiescence on their part, unless they have clearly and persist-
ently objected to the emerging concept as it develops.89
The research set out herein demonstrates the necessity for recognition of
customary law and indigenous jurisdiction in order to secure Indigenous peoples’
human rights, including rights to their lands, resources, culture, traditional knowl-
edge and self-determination. It also demonstrates how failure to give due respect,
recognition and consideration to the customary laws of Indigenous peoples will
bring into question the legality of national laws and policies affecting them, as well
as, of land sales, development projects, licencing of extractive industries, access to
12 Introduction

and use of genetic resources, traditional knowledge and traditional cultural expres-
sions, etc. In other words, legal certainty cannot be achieved without due respect,
recognition and enforcement of Indigenous peoples’ legal regimes. The challenge
for states, Indigenous peoples and those whose activities may threaten or support
realization of their human rights will be to identify the opportunities and chal-
lenges posed as national, regional and international legal orders adjust to the
re-emergence of customary law as one of the primary pillars of legal ordering.
For centuries positive law has displaced and dominated customary law and
consigned natural law to the margins of the national and international law. The
resultant disequilibrium has manifested itself in massive abuses of individual and
communal rights, and most recently in the failure of the legal system to prevent a
global economic meltdown brought about through rampant corruption and fiscal
abuse. This disequilibrium in the global legal order has served as a catalyst for the
emergence of a fourth source of law, human rights, which seeks to control the
abuse of the legal system to the detriment of individual and collective well-being.
These four areas of law constitute the pillars of the new legal order that is rising
or, as Borrows might term it, resurging from the ashes of the old.90 The interplay,
tensions and interdependence between these four areas of law is the unifying
thread running through the current study and provides the basis for discussion of
the need and potential for development of a system of intercultural justice and

DRAFT
equity that may better serve the needs of a pluricultural world, and our collective
need for a new relationship with the earth, with nature, with each other, and with
law as a tool for growth rather than repression, for well-being rather than greed,
and for recovery rather than retribution.
Chapter 1 looks at the historic status of customary law, alongside natural law and
positive law as the three pillars of the legal order, its marginalization and modifica-
tion during the colonial period and in post-colonial states, and provides an
overview of the nature of Indigenous peoples legal regimes today. Chapter 2 exam-
ines Indigenous peoples’ rights to self-determination, including their rights to their
legal regimes, to self-identification as indigenous and to participate in decision-
making processes affecting their rights. Chapter 3 explores the current status of
customary law under international law and in national constitutional law, its appli-
cation in tribal legal regimes and its role in rule of law programmes in post-conflict
states. Chapter 4 discusses the traditional sources of customary law and the chal-
lenges and opportunities associated with ascertainment and proof of customary law
before national courts. Chapter 5 describes the role customary law plays in the
adjudication of Indigenous peoples’ rights to their lands, with particular attention
to the issue of native title and emerging jurisprudence of regional human rights
bodies. It also takes a look at the challenges Indigenous peoples have faced in secur-
ing their rights over their sacred sites. Chapter 6 addresses the relationship between
customary law and the regulation and protection of Indigenous peoples’ rights to
natural resources on and under their lands.This includes discussion of the relation-
ship between self-determination and the realization of natural resource rights, the
impact of the extractive industries on the enjoyment of human rights and the use
of traditional courts to adjudicate conflicts with mining companies. Attention is
 Introduction 13

also given to the issues of access to genetic resources, farmers’ and livestock keep-
ers’ rights and the protection of agrobiodiversity. Chapter 7 examines Indigenous
peoples’ rights to culture and to their way of life, and the shift in emphasis from a
discourse of cultural property to a focus on cultural heritage. Consideration is
given to the role of customary law in securing the restitution of cultural artefacts
and funeral remains.The chapter closes with discussion of proposals for the wider
application of Indigenous peoples’ notions of stewardship for the protection of
rights over aspects of cultural heritage. Chapter 8 focuses on international regula-
tion of Indigenous peoples’ rights over traditional knowledge, with particular
attention to the development and implementation of international instruments by
the Convention on Biological Diversity and the World Intellectual Property
Organization. This chapter examines states’ international legal obligations ‘to take
into consideration’ Indigenous peoples’ customary laws and the challenges and
opportunities they face in meeting these obligations. Chapter 9 takes a look at the
changing face of custom, with particular attention to the relationship between
customary laws and human rights law. It goes on to consider the nature of custom-
ary justice systems, the experience in Rwanda with the Gacaca courts and the role
of customary law and international law in the prevention of genocide and cultural
genocide.The chapter closes with discussion of the need for a pluralist approach to
the law drawing on customary, natural, positive and human rights law for the devel-

DRAFT
opment of systems of intercultural justice and equity and the rehabilitation and
reframing of the fragmented global legal system. In a closing section the book
reflects on the important role customary law plays in linking humankind in a rela-
tionship of reciprocity with the Earth and all its bounty. It highlights the potential
importance of customary law even in cases where it has lain dormant for a long
time as is the case with Brehon law in Ireland which is contrasted with the renais-
sance of Moriori custom on the Chatham Islands. It concludes that Indigenous
peoples’ rights to be governed by their own customary laws and the obligation of
states to recognize and respect customary law in order to secure the human rights
of Indigenous peoples are principles of customary international law. It calls upon
the legal profession and the wider society to look to customary law to see what it
can add to the legal order rather than what it takes away. It proposes that in a world
focused on the realization of intercultural justice and equity we all may be made a
little richer.
1 Customary law in context

As humans began to band together the emergence of systems of incentives such as

security, access to food and companionship, and of sanctions including violence and
expulsion, will have proven necessary to ensure cohesion of larger social groupings.
Through habitual practice these customs came to define the nature of social rela-
tions and to be viewed as obligatory. Custom was the primary building block for
normative development whether by family groupings, tribal and Indigenous
peoples, local communities, and later city states or nations.When habitual customs
become customary conventions and obligatory rather than merely persuasive is at

DRAFT
the heart of determining when custom becomes customary law.1
Human society its survival and development depends upon the capacity to
establish social structures providing the structure for realization of our natural
instincts for society, security and procreation. Nature having provided these
instincts needed to provide humans with the means to temper individual demands
for their satisfaction in order to secure collective wellbeing.The notion that nature
inscribed humankind with such internal ordering is at the basis of western theo-
ries of natural law, which viewed natural law as the source of universal truths
common to all. Natural law is a key source of law for Indigenous peoples, their
notion of natural law is, however, somewhat distinct. Indigenous peoples tend to
see natural law as the law of nature, which is to be observed and complied with if
the Earth is to sustain us.Viewed from this perspective, natural law is a guide on
how to relate to nature and underlies notions of reciprocity between humans and
the Mother Earth. Natural law is not of itself binding and its enforcement is
dependent upon customary law and positive law. For some natural disasters and
harms arising from disruption of life forces of nature may be seen as the cost of
failure to comply with natural law.
As societies became more developed and power began to be centralized the law
became a tool for the control and ordering of ever-larger social groupings.
Emanating from a centralized power rather than arising from the practices of the
people the law did not have the legitimacy of historical adherence by the popu-
lace. It was necessary therefore to establish a common understanding of the law
and to establish compliance mechanisms capable of securing its enforcement.
Written law served this purpose, recording and disseminating the will of the regu-
latory power, whether secular or religious, and whether or not based upon a
 Customary law in context 15

democratic or monarchical system of governance. This written law came to be

known as stipulated law or ‘positive law’.
These three sources of law, customary, natural and positive law, are the bedrock
of legal ordering and, in some form or fashion, all three are ever present in the
international legal order and most national legal systems, though they may not
always be recognized as such.2 Furthermore, these three sources of law have influ-
enced the development of the internal legal systems of most local communities,
Indigenous peoples and tribal peoples, other than those still in voluntary isolation.
The interrelationship between these three sources of law shaped the world legal
order and that of most nation states, and it has a direct bearing on the recognition
and protection of Indigenous peoples’ legal rights.While this study focuses prima-
rily on the status of customary legal regimes and their relationship to positive legal
orders, the influence and presence of natural law will frequently be apparent. One
of the primary aims of the book will be to raise awareness of the need for balance
between these three areas of law and human rights in the search for intercultural
justice and equity, which is discussed in detail in Chapter 9.

The historic status of custom

Aristotle (Rhetorica Ad Herrennium II, 19) believed that law (ius) could arise by

DRAFT
nature (natura), by statute (lege) and by custom (consuetudine), as well as by other
ways.3 Greek philosophers did not clearly distinguish natural law and other forms
of unwritten law applying the term nomos agraphos, primarily to describe ‘innate
“laws”, natural law in a most elementary and not exclusively juristic sense’,4 and
less frequently ‘customary law’.5 This indistinct line between custom and natural
law is reflected in Artistotle’s apparent view of customary law as a manifestation of
natural law and therefore immutable, making it superior to positive law.6
Unlike the Greeks, the Romans made a clear distinction between natural law
and unwritten law, ius non scritpum.7 Cicero saw customary law as falling some-
where between natural and positive law, in his words, ‘[l]aw [ius] initially proceeds
from nature, then certain rules of conduct become customary by reason of their
advantage; later still both the principles that proceeded from nature and those that
have been approved by custom received the support of religion and the fear of
legislation [lex].’ 8 The notion that law finds its roots in the order intrinsic to human
nature, becomes habitual through informal social practices and moves inexorably
towards recorded legislation lends itself to perceptions of customary law as a step
along a continuum towards the ultimate goal of pure legislative order found in
positive law. This is not however what Cicero is saying, rather the tone of his
message is one in which positive law is seen as a support for the enforcement of
natural law principles that have been distilled through customary practices. In this
role, custom is a source of law, not merely a stage in the legal development of soci-
eties. Although Roman jurists did not develop a theory of customary law, much
has been made of comments by Julian that custom had the force of law because ‘as
all laws rested on the tacitus consensus of the people, this must apply to unwritten
law as well’. Meanwhile, Justinian famously said that ‘[f]rom the unwritten comes
16 Customary law in context

the law which is sanctioned by use, because long lasting customs, which are
approved by agreement of those who are used to them, resemble laws’.9 The influ-
ence of custom in Roman law is found in a number of key areas, including ius
gentium (law of the people) and ius civilis (civil law).10 Based on his research of
historical records Smith argues that, while the ius civile may be equated with
custom, it was the custom of the law-finders not of the wider populace that
grounded Roman civil law.11 The notion that the lawmakers, rather than the wider
populace, were the arbiters of custom is one that will be continually returned to
through this work, appearing as it does in early debates on the source of custom in
English common law12 and in current debates regarding the search for ‘living’
customary law of the people as opposed to ‘official’ recorded custom in South
Africa.13
During the Middle Ages customary law came to dominate the European legal
landscape with local custom abrogating regional custom and both being considered
superior to national law. Its predominant position in the legal system required the
development of a theory of customary law, the key elements of which were drawn
from the most influential of Roman law texts: the Digest of Julian and the Code
of Constantine.14 These included:

1. long-standingness of a practice;

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2. flowing from the tacit agreement of the people;
3. unwritten;
4. it may or may not prevail over a contrary lex;
5. it must not be contrary to reason, ratio.15

Bartholus, a leading fourteenth century Italian jurist on medieval Roman civil law,
claimed that the ‘causa proxima’ of enforceable customary law in medieval Europe
was its ‘foundation in the consent of the people’, with long usage being the ‘causa
remota’.16 According to Ibbetson, who discusses the writings of Bartholus at length,
the Italian jurist placed greater emphasis on the issue of consent of those subject to
the law than on the period for which it had been in force, he still, however, found
that a period of at least ten years was required for crystallizing custom.17 Bartholus
(Repetitio) considered it important that custom be proved as a fact and felt it should
be evidenced in writing by at least two witnesses, except where a custom was so
notorious that the judges would have been aware of it.18 He also took the view that
as custom ‘existed on the interface between formal law and popular practice it
would be a mistake to rely on juristic writings and ignore what was actually going
on’.19 This supports the proposition that the dynamic nature of custom requires the
courts to seek out ‘living custom’, an issue central to current debates on the iden-
tification of applicable customary law.20
The compilation of Gratian’s Decretum, in the first half of the twelfth century,
sought to bring together the various strands of canon law.The Decretum presented
natural law as God’s law, thereby, shifting the emphasis from the notion of natural
law as universal law to a law circumscribed by theology.21 Both custom and canon
law remained, however, subordinate to natural law. Interestingly, Thomas Aquinas
 Customary law in context 17

took a line similar to Cicero, arguing that laws contrary to natural law were not
truly laws but rather a corruption of the law.22 The compilation of the Decretum was
part of a process of transition in Europe from a legal system based largely on
custom to a codified system of written law.23 This shift responded to the growth of
the modern nation state and the notion of sovereignty vested in an absolute
monarch, who could not allow custom to override their actions or ‘deny his sover-
eignty and make his power merely governmental’.24 That most people accepted the
replacement of custom by a codified system of law was a mark of their antipathy
towards the customary legal regimes open to systematic abuse by local elites.25
There are parallels here with present day abuses of customary authority that bring
Indigenous peoples and local communities’ customary legal regimes into disrepute.
While in continental Europe during the Middle Ages countries were seeking to
develop codified systems of law, in England centralization of political power had
occurred much sooner and was accompanied by the development of the King’s
Courts, which applied and developed the common law.26 As with the Greeks and
Romans, English law was made up of separate Lex Scripta, the written law, which
referred to statute, and Lex non Scripta, the unwritten law, which ‘obtain’d their
Force by immemorial Usage or Custom’.27 A distinction between general and
specific customs is central to the development of English law and its relation with
custom. In the first place, the English common law system is itself considered to be

DRAFT
unwritten or customary law.28 In the second place, the English courts recognize the
existence of local customs, which can in certain circumstances abrogate common
law. A further distinction may be drawn between the customs of a people and the
customs of the courts.29 Sir William Blackstone, perhaps the most famous of English
common law jurists, describes these three types of custom:

1. General customs, which are the universal rule of the whole kingdom and
form the common law in its stricter and more usual signification.
2. Particular customs, which for the most part affect only the inhabitants of
particular districts.
3. Certain particular laws, which by custom are adopted and used by some
particular courts, of pretty general and extensive jurisdiction.30

Although, by the time of Hale and Blackstone the notion of common law as
customary law was widely accepted, earlier common-law writers, ‘denied it was
customary law at all’.31 Both Ganvill (c. 1190), and Bracton (1225–60) took the
view that unwritten law obtained its status as law due to the will of the King or
prince.32 Bracton recognized, however, that ‘the English have many things by consus-
teudo [custom], which they do not have by lex’.33 He further acknowledged that ‘the
authority of consuetudo and long use is not slight’ and may, in certain instances,
abrogate the common law.34 The result is a tension between the notion of the King
as lawmaker and law as deriving from the will of the people. St. Germain, adopts a
more populist view of the common law in his treatise Doctor and Student, published
in 1528, where he defined the common law as ‘divers general customs of old time
used through all the realm: which have been accepted and approved by our
18 Customary law in context

sovereign lord the king and his progenitors and all their subjects’.35 The notion of
common law emanating from both the populace and the king blurs the lines
between positive and unwritten law, raising the question as to what distinguishes
customary law from positive law, or if indeed such a distinction exists.Writing on
a study of Saami customary law,Woodman argues that all law is customary as even
the legislature rely for their legitimacy on ‘social acceptance of its power to make
law’.36 Bederman approaches the issue differently saying that customary laws are in
fact ‘a robust form of positive law’.37 The key issue is that both recognise custom as
a primary source of law.
Besides being referred to as customary and unwritten law the common law has
also been described as case law, judiciary law, and judge made law.38 If common law
may at one and the same time be seen as an articulation of custom and as a sepa-
rate system of law from custom, it becomes necessary to distinguish between those
customs which form part of the common law and customs which may stand in
opposition to it. For the English jurists common law based on custom expressed
the law of the land applicable to all. Customs on the other hand were localized and
specific to an identifiable sector of the population. Any custom which applied to
all mankind was therefore not an enforceable custom, though it may have been
deemed part of the common law. The distinction between a general and local
custom was set out in a standard reference book of law for local government coun-

DRAFT
cillors, which says:

If a right is given to or an obligation imposed upon all the Queen’s subjects, it

must be established by authority of a general law. A local custom can therefore
never be general and a customary claim in the name of the general public will
fail. Similarly a custom must be capable of definition, and so the courts will not
uphold a claim on behalf of a class whose membership cannot be ascertained.39

The separation of custom into general custom which fell within the common law
and became the sole province of the judiciary to further define and delimit, and
specific custom restricted to localities and specific groups severely reduced the
capacity of custom to play any significant role in the continuing development of
English law. Rather custom became the exception to the rule rather than the rule.
Appropriated by the king’s court custom became the tool of the legal profession
and a convenient cloak for judicial law making.40
Brown identifies four classes of popular or local custom that might be seen as
customs of the people:

1. customary habits, unlikely ever to become law;

2. customs which do not meet the criteria for acceptance by the courts as
law, but may do so in the future;
3. customs adopted by the courts, and considered to be part of the law of
the land; and
4. customs, which appear to satisfy judicial tests for determining the exis-
tence of custom, but have not yet been taken up by the courts.41
 Customary law in context 19

With regard to this latter group the question arises as to whether such custom may
be said to be law and therefore of itself binding upon the court or whether it only
becomes law as a result of its adoption by the courts.42 This is a matter of much
importance going to the heart of the legal standing of custom. For Austin, a cham-
pion of positivist legal theory, custom can only become law when adopted by the
courts.43 A contrary view is taken by Professor Salmond who argues that ‘[c]ustom
is law not because it has been recognized by the Courts, but because it will be so
recognized, in accordance with fixed rules of law if the occasion arises’.44 The key
question is who is empowered to fix the rules by which custom is to be identified;
an issue of much importance with regard to the status of customary law of
Indigenous peoples and local communities today.
In order to determine what makes law custom it is necessary to distinguish
customary habits from customary laws. Murphy argues that ‘[c]lear and careful
thinking about custom and its relation to law requires us to follow Aristotle’, who
makes it clear that habit naturalizes our conventions to such an extent that our
second nature becomes almost indistinguishable from and largely replaces our orig-
inal nature.45 Thus the habitualization of conventions and conventionalization of
habits may be seen as crystallizing customary law, based upon practice and a sense
of obligation in adherence which some would refer to as opinio necessitatis.46 This is
one of seven tests, for identifying a custom set out by Blackstone in his eighteenth

DRAFT
century work, Commentaries on the Laws of England. Under his tests, in order to
override a contrary principle or tradition of common law it was necessary that a
custom be shown to be immemorial, continuous, peaceable, reasonable, certain,
compulsory and consistent. Over time these criteria have been whittled down.
Halsbury’s Laws of England now sets out four essential attributes of enforceable
custom: immemorial origin, reasonableness, certainty of locality and persons, and
continuity without interruption since its immemorial origin.47 These include the
most highly litigated of Blackstone’s criteria the tests of immemorial origin,
reasonableness and certainty.48 Widely disseminated during the colonial period,
English Blackstonian style rules for the identification of enforceable custom have
been variously interpreted and applied in common law jurisdictions. Consideration
of their impact and continuing influence on the recognition of customary law
today will be discussed in more detail in Chapter 3.
Returning to the role of a test of compulsivity or opinio necessitatis, in identify-
ing custom the Privy Council in the Nigerian case of Eleko v. The Officer
Administering the Government of Nigeria & anor. took the position that ‘[i]t is the
assent of the native community that gives a custom its validity and, therefore,
barbarous or mild, it must be shown to be recognized by the community whose
conduct it is supposed to regulate.’49 This decision supports Indigenous peoples’
rights to determine their own legal regimes which is vital for the realization of self-
determination and autonomy, an issue at the heart of the recognition and
protection of indigenous rights. As we will see in subsequent chapters, the recog-
nition of Indigenous peoples’ rights to their own legal systems and the obligation
of states to respect and recognize them are now enshrined in international law. The
challenge for identifying customary law remains, however, and the issue of whether
20 Customary law in context

the courts are applying custom or making custom and whether the custom the
court finds ‘represents the custom of the people’ has much bearing on the recog-
nition and protection of Indigenous peoples’ human rights.50 Indigenous peoples’
struggle to realize their human rights today may be seen as the continuation of
their struggle for recognition of their own legal regimes and customary laws which
has been going on since the outset of the colonial period.

Papal bulls and doctrinal shenanagins

Cloaked in the language of missionary and civilizing endeavour, colonialism was
first and foremost a land and resource grab. Facilitated by the colonial powers’
unlimited capacity for legal invention and their complete disregard for the rule of
law and sanctity of treaties, law served as ‘the cutting edge of colonialism, an instru-
ment of power and coercion’.51 While colonial activity by non-European powers
had been widespread, international laws of conquest and treatment of colonized
peoples were devised largely by European powers.52 From the outset, colonial
powers sought to legitimize their activities under the quasi-legal veil of papal bulls.
The most notorious of these was Inter caetera II, which presumed to divide the
‘new world’ between Spain and Portugal by the mere drawing of a line across the
globe.53 The English also sought and obtained a papal bull, Laudabiliter, to give

DRAFT
‘legitimacy’ to their colonial ambitions in Ireland. Looking first at Spanish modes
of legitimizing colonization and its impacts on Indigenous peoples up to the
period of the rubber boom in the early 1890s, we turn later to the English colo-
nial experimentation in Ireland and the transfer of its programs of subjugation of
Indigenous peoples to the Americas.
The Spanish colonization of the New World began in earnest with the over-
throw of the Aztec and Inca empires by the conquistadores. Infamous for their
brutality, Bartolome de las Casas (c. 1484–1566) estimated that the conquistadores
were responsible for the deaths of upwards of 15 million natives.54 In his influen-
tial History of the Indies de Casas criticizes the Spanish ecomienda system, which
presumed to grant lands and the labour of the native population living on them to
Spanish colonists.55 This expropriation of lands ran counter to the papal bulls
which, though granting a right to colonize in the name of Christianity, did not
grant any right of the conquerors to abrogate the ancestral rights of native peoples.
This is clear from the recognition by Pope Innocent IV, in the mid thirteenth
century, that infidels – he was referring to Muslims who were considered to be at
a comparable level of civilization with Christians – could have ‘dominium, posses-
sion and jurisdiction’.56 De las Casas went further arguing for recognition of
Indigenous peoples as a distinct category of peoples entitled to protection under
international law and to ‘dominium’ over their lands.57
Francisco DeVitoria (c. 1492–1546) of the Salamanca school shared de las Casas’
view regarding indigenous rights to dominium and rejected Aristotle’s view that
barbarians were natural slaves and that Indigenous peoples are irrational, and could
not be the subject of rights.58 As perhaps the most influential legal scholar of the
period, he took the view that no one was a slave by nature and rejected the
 Customary law in context 21

proposition that rights of dominium might be lost by sinners.59 This led him to
conclude that Indigenous peoples were ‘rightful rulers and owners’ of their own
lands.60 For Vitoria dominium vested in all humans on the basis of natural law, and
‘the communities they had established as well as the properties they divided among
themselves were rightly theirs on the basis of the ius gentium’.61 Vitoria says of
‘discovery’ that ‘[b]y itself it gives no more support to a seizure of the aborigines
any more than if it had been they who had discovered us’.62 Despite recognizing
Indigenous peoples’ rights to their freedom and lands,Vitoria went on to interpret
ius gentium as requiring native peoples to allow the Spaniards to trade freely with
them, to cross and settle upon their lands, as well as to search for gold.63 In case of
refusal the Spaniards were, in his mind, entitled to wage ‘just war’ and to take the
lands of native peoples failing to concede these rights.64 Vitoria had, in effect,
constructed a secular theory of the Law of Nations based on natural law sources,
which provided a legal theory to support Spain’s right to rule in the New World.65
His theory was based on recognition of a natural law right of dominium in favour
of Indigenous peoples, and a contesting natural law duty to allow the colonizing
power – in this case Spain – to enter onto their lands for the purposes of commerce
and the spreading of Christianity. Hugo Grotius (1583–1645) also argued in favour
of recognition of Indigenous peoples’ dominium, taking the view that discovery was
not a legal basis for obtaining legal title of ownership.66 Grotius was espousing a

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naturalist framework in which ‘basic rights inhere in men as men, not by reason of
their race, creed or colour, but by reason of their humanity’.67 Despite this concern,
Grotius likeVitoria before him also developed a theory, albeit less expansive, of ‘just
war’, which served to legitimize the usurpation of this same dominium.68 The result,
Anaya claims, is ‘enduring support for patterns of colonization and empire that
exerted control over Indigenous peoples and their lands’.69
The impact of colonization on Indigenous peoples in Latin America and the
further impact of independence from Spain on their rights is described byYrigoyen
with reference to three distinct groups.70 The first of these were indigenous nations
previously integrated into the Inca, Aztec and Mayan empires, who were more
susceptible to colonization.These became the subjects of special legal regimes that
protected their territories from colonists, imposed colonial taxes, forced labour, and
special sanctions, while giving them a limited level of autonomy to apply their own
‘usos y costumbres’ so long as they did not contradict the church or colonial law.71
Following independence, programs of assimilation were adopted that saw the lift-
ing of the colonial rules and the loss of their collective rights to their lands,
authorities, customs and usages, etc.72 A second group were those Indigenous
peoples such as the Mapuche, Pehuenque and Ranqueles that had not been
conquered by the Incas and with whom the Crown entered into treaties, leaving
them free to regulate their affairs in accordance with their own customary law.
Following independence, the new republican states of Argentina and Chile refused
to recognize these treaties, and waged a ‘campaign of military occupation and
extermination’, and as a result, these fiercely independent Indigenous peoples lost
a majority of their territories.73 The third group were the Indigenous peoples of
the Amazon, Orinoco and Guajira forests who had avoided colonization due to
22 Customary law in context

their capacity to disappear into the forests. Missionaries serving as the vanguard for
colonial and military incursions into their lands during the republican period, were
the key to bringing these peoples under colonial rule.74 This paved the way for the
economic plunder of Amazonia beginning in earnest with the rubber boom in the
latter part of the nineteenth century.
Although, the period of the rubber boom stands out for the horrific abuse,
torture and murder of Amazonian Indigenous peoples, their humiliation, trade and
murder ‘began before and were to continue after the economic basis for the extrac-
tion of rubber had disappeared’.75 The horror of the rubber trade is graphically
recorded in the diaries and reports of the Irishman Roger Casement who, in 1911,
travelled to the Amazonian Putumayo region, on behalf of the British Crown, to
investigate the abuse of the native people by the Peruvian Amazon Rubber
Company.76 In his précis on the confidential report by Dr Romulo Paredes for the
Peruvian government he writes, ‘[c]rime swelled in proportion to the rubber
returned, and mounted step by step with the number of kilogrammes of rubber
obtained. Thus, the larger the number of murders, the higher the production,
which is to say that a large proportion of the rubber was produced out of blood
and corpses.’77 A hundred years on from Casement’s trip most Latin American
countries have adopted constitutional and/or legislative recognition of Indigenous
peoples’ rights to their lands, territories and resources, and to apply their own

DRAFT
customary laws to their internal affairs.78 A majority of countries of the region are
also parties to the International Labour Organization Convention 169 on
Indigenous and Tribal Peoples in Independent Countries, which among other
things obliges states to consult with Indigenous peoples prior to granting any rights
to exploit resources on their traditional lands.79 Despite these advances, widespread
failure to establish meaningful consultation procedures has led to numerous and at
times bloody confrontations across the region as Indigenous peoples struggle for
recognition of their rights to their lands, resources and self-determination.
As with the Spanish experience, the English also sought legitimacy for their
colonial ambitions, behind a papal bull. Laudabiliter was granted, in 1154, to Henry
II by the newly elected English Pope Adrian IV for the ostensible purpose, of
bringing the ‘renegade church’ in Ireland ‘into conformity with Gregorian
reforms’.80 Influenced by the Spanish model of colonization in the New World and
their natural law discourses, the English sought to subjugate the Irish ‘whom reason
and duty cannot bridle’81 by ‘establishing plantation colonies by military
conquest’.82 Part of the rationalization of the right to colonize Ireland was the
supposed under-utilization of its lands.83 Their colonial policies included expropri-
ation of the native peoples’ lands and territories, introduction of a system of
exploitation of native labour similar to the Spanish ecomienda system, and their
treatment as ‘inferior, dependent peoples’.84 The English also applied the Spanish
colonial institution, the Requirimiento, giving ‘All Irishmen … which commonly be
called churles’ a choice to submit to English rule or be put to the sword.85
When the English arrived in Ireland they found a comprehensive legal system
developed over centuries whose ‘essentials’ may be traced back to the Common
Celtic Period (c.1000 BC).86 Commonly referred to as the Brehon Laws, the Old
 Customary law in context 23

Irish law was extensively recorded in written form in the seventh and eighth
centuries.87 The position of the English at the time of colonization was founded
upon the Roman model ‘which recognized and worked through the indigenous
polities and laws’.88 Hale, writing at the time, took the view that although the
conqueror had the right to abolish or change the laws and customs of the
conquered, ‘a change of the Laws of the conquered country was rarely universally
made, especially by the Romans … unless they were such as were foreign and
barbarous, or altogether inconsistent with the Victor’s Government.’89 The English
would, however, have expected English lords in Ireland to abide by the common
law. Instead they demonstrated a tendency to observe the Irish Brehon law, which
Hale cites as one of the reasons why common law was slow to take root in
Ireland.90 Over time, however, English common law began to chip away at Irish
custom and in Le Case de Tanistry (the Tanistry case)91 the court applied rules on
recognition of common law custom in what became the first case to consider how
the common law might supplant a foreign legal system in a colonial context.92
The Tanistry case, is described by Elias as the ‘locus classicus on the subject of
customary law in English law’ in which ‘common law tests of custom … [were
used] … to break up the social organization of the Irish nobility’.93 The central
aspect of the court’s judgement was to declare as void the ancient Irish custom of
tanistry that established a system of succession of the eldest and worthiest male rela-

DRAFT
tive of ‘the blood and name of the deceased’.This custom frequently led to ‘bloody
physical confrontation’.94 The court found the custom failed to meet tests of
reasonableness (its promotion of physical valour and bloodletting), certainty (the
heir to succeed an estate was uncertain) and submission to Crown prerogative (it
was disruptive of the royal peace).95 The court held, however, that ‘certain parts of
Brehon law might still apply to Irish property’.96 In time the Brehon law was
replaced by the common law and the memory of the old laws slipped from the
consciousness of the majority of Irish people.97 Its demise was inevitable in the face
of extreme British repression, in which the conqueror’s laws – most infamously the
penal laws described by Montesquieu as ‘conceived by demons, written in blood
and registered in Hell’ – played a dominant role.98 The destruction wreaked by
English colonialism on the Irish by the middle of the seventeenth century was so
total it led one French traveller of the time to comment:

I have seen the Indian in his forests and the Negro in his chains, and thought,
as I contemplated their pitiable condition, that I saw the very extreme of
human wretchedness; but I did not then know the condition of unfortunate
Ireland.99

England began its colonial enterprise in the Americas armed with Spanish-influ-
enced colonizing techniques ‘nurtured in the soil of Ireland’.100 This included
extensive experience, in ‘negotiating and making pacts with ‘barbarous’ chieftains
and of establishing procedures and justifications for acquiring or seizing their
lands’.101 A vision of Indigenous peoples as uncivilized and as lacking the laws and
means to manage their own interests did not prevent the British Crown from
24 Customary law in context

concluding numerous treaties with them.This included over one hundred treaties
and formal agreements in Africa, more than forty treaties with First Nations in
North America,102 forty more in Arabia and the Persian Gulf, two dozen treaties in
Malaysia,103 and numerous treaties in India. In New Zealand the British entered
into just one treaty with Māori, while in Australia it made no treaties with
Aboriginal peoples, applying the concept of terra nullius or ‘uninhabited territory’
as the basis for assuming all rights over the territory. Settler states that succeeded
colonial states have also turned to treaties to regulate relations with Indigenous
peoples. The United States for example concluded some 400 treaties with First
Nations.104 In both colonial and settler state settings the goal has been the same: to
secure sovereign rights over the colonized territory.
Establishing sovereignty did not of itself signify acquisition of proprietary land
rights, which originate either from practice (customary law) or enactment (posi-
tive law).105 What was to shape the colonial experience and the recognition of
customary law and associated communal land rights in British colonized territo-
ries was the manner in which the Crown presumed to award itself sovereignty and
the extent to which pre-existing indigenous sovereign rights were recognized or
denied. Asch describes four ‘primary means’ under English law for states to justify
the ‘acquisition of new territories’:

DRAFT
conquest, or the military subjugation of a territory over which the ruler
clearly expresses a desire to assume sovereignty on a permanent basis; cession,
or the formal transfer of a territory (by treaty for example) from one inde-
pendent political unit to another; annexation, or the assertion of sovereignty
over another political entity without military action or treaty; or the settle-
ment or acquisition of territory that was previously unoccupied or is not
recognized as belonging to another political entity.106

This final precept was to serve as the basis for both the doctrine of discovery and
that of terra nullius, which would be widely applied in British colonial territories.
In what would later become Canada, the British entered into a series of treaties
with Indigenous peoples during the seventeenth and eighteenth centuries involv-
ing the exchange of gifts including wampum belts.107 For the Indigenous peoples
these ceremonies and agreements defined relationships in indigenous terms, which
Walters suggests ‘worked Europeans into the web of kinship relations that defined
[Indigenous peoples’] … own legal and political order’.108 In 1763, by royal procla-
mation, the King recognized the land rights of ‘the several Nations or Tribes, with
whom We are connected’.109 The proclamation also referred to the Crown’s
assumed ‘Sovereignty’ and ‘Dominion’, which conflicted with First Nations vision
of their relationship as ‘allies’ rather than subjects.110 Sir William Johnson, the
Crown’s representative, who was of Scottish descent, was sensitive to the indige-
nous position.111 In 1764 at Niagara, at the largest ever council of tribal leaders with
the Crown, he presented the Indian Nations with two wampum belts in an attempt
to conclude agreement with the Indian Nations in their own form.112 One of these,
the Gus-Wen-Tah or Two-Row Wampum, resembled the form of the peace and
 Customary law in context 25

friendship agreement made by the Haudenosaunee Confederacy113 when they first

came in contact with Europeans.114 The Haudenosaunee described its significance,
as follows:

There is a bed of white wampum, which symbolizes the purity of our agree-
ment. There are two rows of purple, and those two rows have the spirit of your
ancestors and mine.There are three beads of wampum separating the two rows
and they symbolize two paths or two vessels, travelling down the same river
together. One, a birch bark canoe, will be for the Indian people, their laws,
their customs and their ways. The other, a ship, will be for the white people
and their laws, their customs and their ways.We shall travel the river together,
side-by side, but in our own boat. Neither of us will try to steer the other’s
vessel.115

The belt clearly expresses the Indian Nations’ vision of harmonious coexistence
and respective legal autonomy. By the 1820s, the British had consolidated their
military hold on the territory and securing the support of First Nations was no
longer a priority, their interests had now turned to the land.116 For the British the
Indian nations had, McHugh claims, ‘gone from “Allies” with a measure of recog-
nized autonomy to “Subjects” amenable to English law’.117

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The notion of Indigenous peoples holding sovereign power to enter into treaties
granting or recognizing the sovereign power of the Crown was crucial to the
British colonial effort.Treaties with Indigenous peoples served to consolidate colo-
nial holdings vis-à-vis other colonial powers.There would have been a significant
downside for the colonists, however, if these treaties were to be considered bind-
ing under international law. Conveniently, the colonial powers were the arbiters of
international law, and they defined the subjects of international law to be ‘civilised
states’, a club that did not recognize ‘organised wandering tribes’.118 Having utilized
international law as the basis for entering into treaties with Indigenous peoples
colonial powers proceeded to write them out of international law.119 The result was
that treaties with Indigenous peoples were simply ignored for the purposes of
international law.120 Indigenous peoples having been lulled into a sense of security,
however fragile, by treaty-making processes found themselves at the mercy of colo-
nial masters who denied the validity of these instruments by claiming that
Indigenous peoples were too ‘primitive’ to enter into agreements or to have ‘a form
of sovereignty and underlying title that required recognition by colonial authori-
ties’.121 This position suffuses the 1919 decision of the Privy Council, in Re:
Southern Rhodesia, where the Law Lords held ‘some tribes are so low in the scale of
social organization that their usages and conceptions of rights and duties are not to
be reconciled with the institutions or legal ideas of civilised society’.122 As late as
the 1970s the enduring nature of such racist beliefs was apparent in Calder et al. v.
Attorney General of British Colombia (the Calder Case).123 In that case Chief Justice
Davey of the British Colombia Appeals Court, in deciding on the Nisga’a peoples’
claim for recognition of their pre-colonial rights, held ‘[t]he Indians on the main-
land of British Colombia … were undoubtedly at the time of settlement a very
26 Customary law in context

primitive people with few of the institutions of civilised society, and none at all of
our notions of private property…’124 Overcoming such beliefs has been a slow
process.
The usurpation of Indigenous peoples’ land rights by colonial powers and settler
states rested upon a series of now discredited doctrinal machinations, the most
notorious of which are the doctrines of discovery and terra nullius. These two
fictions provided the legal basis for dispossession of Indigenous peoples throughout
the world. Described by Sheleff as a ‘self-serving legal construct of the European
colonial powers’,125 the doctrine of discovery provided that whichever colonial
power first discovered new territories would be recognized as having sovereign
control over them, no matter how such control was achieved. The application of
the doctrine by the British denied Indigenous peoples the normal protection of
the law and imposed English law without any recognition of Indigenous peoples’
own customary legal regimes. The normal rule under British colonial law would
have been the application in the colonized territory of either the ‘doctrine of
continuity’ or the ‘doctrine of recognition’. Under the ‘doctrine of continuity’ the
‘local inhabitants’ laws, customs and attendant rights’ were presumed to continue
in force in the conquered territories, at least until such time as it had been over-
ridden by legislative enactments.126 In the case of the doctrine of recognition,
annexation would result in the abolition of all pre-existing rights. Neither doctrine

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was applied in the case of Indigenous peoples.127
In the United States, Chief Justice Marshall applied the doctrine of discovery in
Johnson v. McIntosh holding that the United States is entitled to ‘maintain, as all
others have maintained, that discovery gave an exclusive right to extinguish the
Indian title of occupancy, either by purchase or by conquest’.128 In order to legit-
imize the application of the doctrine it was first necessary to deny the application
of the normal laws applicable to conquered territories. Marshall sets the scene for
this in McIntosh by claiming that ‘the tribes of Indians inhabiting [the United States]
were fierce savages’ whom it was impossible to govern as a distinct people because
they were ‘ready to repel by arms any attempt on their independence’.129 This leads
him to the conclude:

[t]hat law which regulates, and ought to regulate in general, the relations
between the conqueror and the conquered, was incapable of application to a
people under such circumstances.The resort to some new and different rule,
better adapted to the actual state of things was unavoidable.130

Indigenous peoples’ resistance to the US colonial enterprise was utilized to legit-

imize depriving them of their rights under international law to the recognition of
their own legal regimes and laws of the rights they enjoyed under them.This was
the same policy applied by the English to the Irish and by the Spanish to
Indigenous peoples in Latin America. Ironically, Marshall’s decision in McIntosh and
in the later Cherokee cases described fairly extensive sovereign rights in favour or
First Nations.131 This included the right to their customary self-government, from
which flowed the concept of ‘domestic dependent nations’ applied by Marshall in
 Customary law in context 27

the Cherokee Nations case.132 These rights are, however, held at the sufferance of
Congress, a status totally at odds with indigenous sovereignty and legally indefen-
sible in the light of advances in international human rights law.133 In the words of
Martha Montour:

sovereignty was the basis of the original understanding between the newcom-
ers and the First Nations.The issue of sovereignty remains unsettled, therefore
any negotiations on Indigenous legal rights are fruitless until the issue of sover-
eignty is settled.134

For North American First Nations, resolution of the issue of sovereignty is funda-
mental to the realization of their rights to self-determination.
Returning to the Calder case, the Supreme Court of Canada, on appeal, recog-
nized that the Nisga’a were not a primitive people but lived in organized societies
prior to the time of colonization.135 Despite this recognition, less than twenty years
later the Supreme Court in the case of R v. Sparrow 136 decided that Crown sover-
eignty and underlying title arose ‘from the outset’ of colonization.137 This is clearly
contradictory. As there had been no conquest, annexation or cession of indigenous
lands, and they were obviously not uninhabited at the time of colonization, the
British had not acquired sovereignty in accordance with any of the prescribed

DRAFT
forms for doing so under English law. This in effect means the court was treating
Canadian lands prior to colonization as terra nullius and applying the ‘doctrine of
discovery’ to legitimize Crown assumption of sovereignty and the historic appro-
priation of indigenous lands.138
The legal basis for the doctrine of discovery has been widely challenged, not
least for the fact that there was no ‘genuinely international agreement establishing
it as a working principle of Native American–European relations’.139 Williams, in a
seminal study of the doctrine’s genesis and imposition in the United States, argues
that the application of the ‘doctrine of discovery’ gave the sanction of the rule of
law to a ‘medievally derived ideology – that normatively divergent “savage” peoples
could be denied rights and status equal to those accorded to the civilized nations
of Europe’.140 In his view, rejection of the doctrine is a prerequisite for the decol-
onization of legal systems, which, ‘[permit] the West to accomplish by law and in
good conscience what it accomplished by the sword in earlier eras: the physical and
spiritual destruction of Indigenous peoples’.141
As a measure of the level of concern felt by Indigenous peoples with regard to
the historic and continuing impact of the doctrine of discovery, the United
Nations Permanent Forum on Indigenous Issues (UNPFII) set as the theme for its
11th session in 2012: the Doctrine of Discovery and its enduring impact on
Indigenous peoples and the right to redress for past conquests.142 A paper prepared
for the UNPFII on the issues described the doctrine of discovery as ‘the historical
root of ongoing violations of Indigenous peoples’ human rights … which for
centuries served as “legal” rationale for stealing land and dehumanizing aboriginal
peoples’.143 Its continuing impact has been identified by Special Rapporteur Tonya
Gonnella Frichner in the 2005 case of City of Sherill v. Oneida Indian Nation of New
28 Customary law in context

York,144 where ‘the Supreme Court’s reference to the Doctrine of Discovery places
the context for the Court’s decision … within the Framework of Dominance,
dating back to the era of the Vatican papal bulls.’145 Despite frequent requests from
Indigenous peoples to do so, the Vatican has still not rescinded these bulls. This
demonstrates just how far the international community still has to go to decolo-
nize the international legal order and begin the necessary process of developing a
new approach to the law; one that not only respects and recognizes diversity among
legal regimes but which actually welcomes such difference. But to go forward it
will first be necessary to look back and see the effect of colonial and post-colonial
states on Indigenous peoples own legal regimes.
The approach taken by colonial powers to the recognition or non-recognition
of custom was far from uniform.A comprehensive study of state and non-state law
prepared by the International Council on Human Rights Policy notes that nine-
teenth-century Russian colonisers allowed customary courts in Central Asia to
decide on ‘minor issues’; the French preferred to impose codified law to one and
all, a practice suspended in part in colonial territories where chiefly collaboration
was required; while Muslim law allowed for recognition of customary practices.146
The British generally varied their approach with the terrain. In India, for instance,
Hindu and Muslim law were ‘acknowledged by leading British jurists to be system-
atic regulation by “great” religions’147 These lent themselves easily to the British

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strategy of governing the Empire through recognition of the laws of the colonised
peoples so long as they did not run foul of the ‘principle of repugnancy’.148
In Africa, unlike India, colonial powers were less inclined to recognize the exist-
ing legal regimes.The reason for this was the apparent lack of ‘laws’ in the sense of
codified regimes such as existed in India.149 African custom was taken as something
‘lesser’ than law, it became identified as the law of the subjugated the colonized.150
Chanock describes this ‘customary law’ as the product of a colonial mindset that
separated the colonized from the colonizer resulting in ‘the construction of a new
realm of law that was not common law, nor custom nor statute. It was customary
law – a law of and for subordinates – racially and culturally, which was seen as suit-
able to their state of evolution.’151 While recognizing the colonial influence on
customary law Spear is of the view that colonial authorities’ reliance on local inter-
mediaries to ‘legitimate their rule’ limited their power leaving them ‘subject to local
discourses of power that they neither fully understood nor controlled’.152 British
‘indirect rule’ was, he says, a ‘contradiction in terms’.153 On the one hand, in order
to benefit from the ‘illusion of traditional authority’ their rule had to be limited if
local chiefs were to maintain their legitimacy.154 On the other hand, ‘once colonial
administrators acknowledged the sovereignty of traditional discourse, they too
became subject to it’.155 Spear concludes that the effect of colonialism may be seen
as ‘leading out of earlier eras as well as leading into later ones in an endless process
of becoming, deploying both old and new means to do so’.156 From this perspective,
customary law may be seen as a system of indigenous law continuously recon-
structing itself in response to internal and external forces. It is a body of law capable
of adaptation to meet the needs of the times. Key to that adaptation is the flexibil-
ity inherent in an oral system of law, something absent from written law.
 Customary law in context 29

As the colonial period slips further into the, not so distant, past the perception
of customary law as a colonial construct is fading as customary legal regimes
receive increased recognition in many parts of the world. Customary law is now
for instance given direct or indirect recognition in more than 100 national consti-
tutions. In some countries customary law is the predominant law as is the case in
South Sudan where significant efforts have been made to ‘develop the customary
law into a common law of the Sudan’.157
Despite positive advances in some areas, Chanock warns that recognition of
custom is still prone to use for self-serving state ends,158 and as in the colonial situ-
ation, it may be expropriated and reframed to meet the sustainable development
discourse of non-governmental organizations.159 Notwithstanding these threats and
the distortion of custom during colonial and early post-colonial times, Chanock is
clear that custom has an important role to play in the protection of Indigenous
peoples’ rights in national and international governance, in his words:

one should … not underestimate the legitimacy of the language of the

customary in the tactics of representation of local interests. Likewise, while one
should not overestimate “custom” as representative of the interests of all
involved in a group or locality, one should not underestimate its necessary role
in defending localities against state and private predation in the mobilization

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for development.160

The nature of Indigenous peoples’ customary law

Indigenous peoples’ worldview or cosmovision and distinct epistemologies under-
lie their systems of law, custom and tradition, which are rooted in land, spirituality
and culture. In the words of an unnamed Aboriginal respondent in a study for the
Law Reform Commission of Western Australia, aboriginal peoples’ law ‘connect[s]
people in a web of relationships with a diverse group of people; and with our
ancestral spirits, the land, the sea and the universe; and our responsibility to the
maintenance of this order’.161 Referring to the divine source of custom, the
Honourable Robert Yazzie, former Chief Justice of the Navajo Nation describes
beehaz’aanii the Navajo word for ‘law’, as ‘the essence of life’, something funda-
mental and absolute existing from the beginning of time.162 In terms that resonate
with Thomist notions of natural law, he says:

Our religious leaders and elders say that man-made law is not true ‘law’. Law
comes from the Holy People who gave the Navajo people the ceremonies,
songs, prayers and teachings to know it. If we lose our prayers and ceremonies,
we will lose the foundations of life. Our religious leaders also say if we lose
those teachings we will have broken the law.163

The infusion of law with spirituality is described as ‘an inevitable consequence of

indigenous cosmovision, which sees the natural world as ‘sacred’; it is in essence,‘a
divine legal tradition.’164 It is not surprising therefore that the terms Indigenous
30 Customary law in context

peoples associate with their normative regimes do not easily equate with western
notions of ‘law’. Cane describes the term Tjukurrpa as it is utilized by the Spinifex
Aboriginal people of Western Australia, which is distinct from the western notion
of law as:

[conveying] something more than Europeans might associate with conven-

tional legislation.The Spinifex perception of law incorporates elements of fear,
power, complexity, reason and authority but also conveys something universal
and metaphysical. It is, in both practice and content, more spiritual than judi-
cial. Spiritual beings are described as belonging to ‘the Law’ and country is
seen as part of ‘the Law’. Sacred boards are said to be ‘the Law’ and ceremo-
nial acts are conducted as expressions of ‘the Law’. Senior holders of Tjukurrpa
are ‘Law men’. When travelling through country people will often point to
physical features and describe it as ‘Law’ or they might not speak at all, whis-
pering, ‘big Law’.165

The focus of Indigenous peoples’ legal regimes tends to be towards the restoration
of community well-being rather than retribution. Both sanctions and dispute reso-
lution mechanisms have the overall objective to resolve conflicts,166 when arising,
as quickly as possible.167 Zion describes the Cree [Native American] law as ‘struc-

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tural and procedural, rather than substantive and rule-oriented … [dealing] with
relationships, mutual obligations and the ways in which the particular tribe and its
people survive’.168 This focus on structure and process rather than fixed rules gives
customary law its flexibility to address specific cases on their merits; it may also,
however, leave itself open to abuse at the hands of dominant members of a commu-
nity or people.
Roy presents a view of customary law as a dynamic process rather than as a
strictly defined set of rules and regulations. In support of his view he cites Bekker’s
definition of customary law as:

an established system of immemorial rules which had evolved from the way of
life and natural wants of the people, the general context of which was a matter
of common knowledge, coupled with precedents applying to special cases,
which were retained in the memories of the chief and his counsellors, their
sons and their son’s sons (sic), until forgotten, or until they became part of the
immemorial rules.169

This notion of customary law evolving over time from a people’s ‘way of life’,
recognises the manner in which Indigenous peoples’ legal regimes are encapsulated
within and help to define the boundaries of their culture. An alternative way of
viewing customary law is to consider its purpose, rather than its content. Mayéns
description of Mayan law for instance, states:

Indigenous law consists of a series of unwritten oral principles that are abided
by and socially accepted by a specific community. Although these norms may
 Customary law in context 31

vary from one community to another, they are all based on the idea of recom-
mending appropriate behaviour rather than on prohibition … Customary
indigenous law aims to restore the harmony and balance in a community; it is
essentially collective in nature, whereas the Western judicial system is based on
individualism. Customary law is based on the principle that the wrongdoer
must compensate his or her victim for the harm that has been done so that he
or she can be reinserted into the community, whereas the Western system seeks
punishment.170

The nature and diversity of customary legal regimes makes it both impossible and
undesirable to seek a universal definition of customary law. Efforts to do so have
been largely discarded in favour of identification of the characteristics of custom-
ary law.171 One of the principal characteristics of customary law is that it relies on
the buy-in of those considering themselves bound by the law. As Hamnett puts it,
customary law ‘emerges from what people do, or – more accurately – from what
people believe they ought to do, rather than from what a class of legal specialists
consider they should do or believe.’172 Identification of what people believe they
ought to do requires that distinctions be made between habitual practices and
customary law, which carries with it moral authority and legitimacy not accorded
to ‘practice or usage as a whole.’173 Hamnett argues that customary law is to be

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found in ‘concrete principles, the detailed application of which to particular cases
is flexible and subject to change.174 The process that transforms custom (i.e. what
people do) into norms (i.e. what people ‘ought’ to do) has been described as an
‘enigmatic process that has never been fully understood’.175 Considering the enor-
mous diversity of customary legal regimes it is not surprising that the process is
enigmatic.The internal workings of customary legal regimes and the content and
nature of customary laws may be subject to strict rules governing the sharing of
specific knowledge with identifiable groups within the relevant Indigenous peoples
and with third parties. What is important for those wishing to ensure respect and
recognition for customary law is not to know how the process works or what the
content of the laws are as such, but rather to identify the parameters of indigenous
jurisdiction, the interface with state and other legal regimes and the level of over-
sight (if any) required to ensure compliance with fundamental human rights.
Despite wide variance among customary law regimes,Tsosie identifies underly-
ing similarities, including communal and collective aspects of ownership, a mix of
rights and responsibilities grounded in a spiritual value system, and a central ethic
‘that resources must be used in a way that is productive and beneficial to all
members, including future generations’.176 While specific customary laws vary
considerably, in a multi-country study, coordinated by the International Institute
for Environment and Development (IIED), project participants concluded that
‘there are many commonalities in the underlying values or principles, of diverse
ethnic groups’.177 These include ‘respect for nature or Mother Earth; free/open
sharing of resources; reciprocity or equal exchange of resources; and solidarity or
brotherhood, i.e. helping those in need and serving the common good’.178 These
principles, while not unknown to western legal regimes, stand in stark contrast to
32 Customary law in context

current western focus on maximum exploitation of resources and the enforcement

of property rights, which, in Blackstone’s words, may be exercised ‘in total exclu-
sion of the right of any other individual in the universe’.179 In contrast, Indigenous
peoples’ legal regimes adopt a more nuanced approach to interests in land and
resources, recognizing both collective and communal rights, which are not the
same thing. As Tsosie describes it:

Tribal property systems tend to be group oriented and may have aspects of
both collective and communal ownership. Collective ownership systems place
ownership in the community, but may allow individuals to acquire superior
rights to or responsibilities for part of the collective property. Communal
ownership systems, on the other hand, do not permit individuals to acquire
special rights to any part of the property vis-à-vis other community
members.180

The frequent failure by dominant legal regimes to recognize the reality of

Indigenous peoples’ internal relationships, their ways of ordering their own affairs
and of rights associated with collective versus communal property, can cause much
hardship. If Indigenous peoples’ rights are to be respected it is crucial that their own
legal regimes and decision-making processes be duly recognized, respected and

DRAFT
enforced. To this end, it is of great importance that Indigenous peoples be given
the opportunity to participate in and influence the adoption and implementation
of laws and policies likely to affect them and their legal regimes. Participation along
with rights to self-identification are crucial for self-determination, the ultimate
goal of autonomous legal governance by Indigenous peoples.
2 Self-determination in practice

For centuries Indigenous peoples have resisted the creeping advance of colonial
powers, national authorities, landless peasant farmers, cattle barons, drug lords,
rubber, oil and mining companies, timber merchants and land-grabbers, with vary-
ing levels of success. In the process they have lost much of their lands, resources,
culture and people, but they have continued to resist. Indigenous peoples have
repeatedly framed this resistance in the form of a demand for self-determination.
A mark of their success in this approach was the adoption, in 2007, of the United
Nations Declaration on the Rights of Indigenous Peoples, which formally recog-

DRAFT
nizes their right to self-determination.1 The Declaration, which is not of itself
legally binding, is in essence a restatement of Indigenous peoples’ rights under
international law, as found in treaties and unwritten customary international law. It
is in these sources that the legal foundations of Indigenous peoples’ rights to self-
determination, under international law, may be found.
For Indigenous peoples, recognition of their rights to self-determination does
not amount to the grant of new rights but is more a recovery of rights denied by
states that have assumed power over their affairs; whether these be colonial powers,
settler and other post-colonial state authorities or states that deny the existence of
Indigenous peoples in their territories. Indigenous peoples view the struggle for
self-determination as first and foremost a struggle for recovery of their ancestral
sovereign rights.That is not all it is however. In the words of Walter Echo-Hawk,
staff attorney to the Native American Rights Fund for over 35 years:

Supported by the pillars of self-government and autonomy, indigenous insti-

tutions, and cultural integrity, self-determination provides the framework and
foundation for all the other human rights set out in the Declaration.2

These include rights to their lands and traditional territories, natural resources,
culture, cultural heritage and ‘way of life’, as well as to self-identification and to
participation in decision-making processes affecting them.This chapter begins with
a discussion of the concept of self-determination, its characteristics and modalities
for its realization. It then goes on to look at issues of self-identification and
participation in decision making that are fundamental to securing effective self-
determination. Subsequent chapters will examine the extent to which
34 Self-determination in practice

self-determination may be and is realised through the recognition of autonomy and

rights to and enforcement of customary law, and its role in securing lands,
resources, culture and cultural heritage.

The path to self-determination

The principle of self-determination has provided the legal basis for international
relations since the founding of the League of Nations in 1919. With the creation
of the United Nations in 1945 this principle, which is enshrined in the UN
Charter, has evolved into a ‘right’ of ‘peoples’ that is set out clearly in the interna-
tional covenants on civil and political rights (ICCPR) and economic, social and
cultural rights (ICESCR). These binding legal instruments, adopted in 1966,
include a Common Article 1 which provides:

All peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development.

At the outset this right was seen as applying primarily to the whole populations of
colonial states, and was not viewed as applying to Indigenous peoples.3 The United

DRAFT
Nations was slow to address the issue of Indigenous peoples and where interna-
tional law did develop it tended towards assimilation rather than protection of
cultural diversity and ancestral sovereignty.
The first international instrument specifically dedicated to Indigenous peoples’
rights was International Labour Organization Convention 107 Concerning the
Protection and Integration of Indigenous and other Tribal and Semi Tribal
Populations in Independent Countries.4 Adopted in 1957, Convention 107 recog-
nized the rights of indigenous populations to ownership of the lands they
traditionally occupy5 and to retain their own customs and institutions.6 It also
required states to give ‘regard’ to the customary laws of indigenous populations in
defining their rights and duties under the Convention.7 The Convention was not,
however, well received by Indigenous peoples owing to its focus on protection of
human rights through assimilation. In 1993 the International Labour Organization
adopted Convention 169 on Indigenous and Tribal Peoples in Independent
Countries,8 which superseded ILO Convention 107 for all but a small number of
countries.9 ILO Convention 169 focuses on securing Indigenous peoples’ cultural
integrity10 and the protection of their rights to their lands, territories and
resources.11 The Convention requires states to ensure the participation of
Indigenous peoples in decision making,12 and to recognize their rights to their own
customs, institutions and legal regimes13 as well as to education, language and
culture.14 Convention 169 stopped short, however, of giving formal recognition to
their rights to self-determination. That task fell to the two treaty bodies;15 the
Human Rights Committee and the Committee for Economic, Social and Cultural
Rights, which both recognized Indigenous peoples’ rights to greater political,
economic, social and legal autonomy, within the framework of the nation state in
 Self-determination in practice 35

which they reside.16 By the late 1990s both treaty bodies were recognizing
Indigenous peoples’ rights to a level of autonomy that amounts to what is widely
termed ‘internal’ self-determination.17 The United Nations Committee on the
Elimination of Racial Discrimination (CERD) describes internal self-determina-
tion as:

the rights of all peoples to pursue freely their economic, social and cultural
development without outside interference. In that respect there exists a link
with the right of every citizen to take part in the conduct of public affairs at
any level, as referred to in Article 5 (c) of the International Convention on the
Elimination of All Forms of Racial Discrimination. In consequence,
Governments are to represent the whole population without distinction as to
race, colour, descent or national or ethnic origin.18

In contrast, the external aspect of self-determination:

implies that all peoples have the right to determine freely their political status
and their place in the international community based upon the principle of
equal rights and exemplified by the liberation of peoples from colonialism and
by the prohibition to subject peoples to alien subjugation, domination and

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exploitation.19

The United Nations Declaration on the Rights of Indigenous Peoples adopts a

somewhat ambiguous approach. First it recognizes Indigenous peoples as ‘peoples’,
which entitles them to self-determination under Common Article 1 of the 1966
Covenants. Article 3 of the Declaration provides that:

Indigenous peoples have the right to self-determination. By virtue of that

right they freely determine their political status and freely pursue their
economic, social and cultural development.

The Declaration does not stop there however. During the negotiation of the
Declaration concerns were expressed that recognition of Indigenous peoples’ rights
to self-determination might be viewed as granting a right of secession. To over-
come such fears the Declaration includes Article 46, which seeks to exclude any
right of secession and limit Indigenous peoples to internal self-determination only.
This express rejection of a right of external self-determination is considered by
some to have been ‘unnecessary’ as during the negotiation most Indigenous
peoples had expressed the view that independence is ‘neither desirable nor a possi-
ble option’.20 That said, recognition of Indigenous peoples as ‘peoples’ means that a
right to secession will still subsist where substantive self-determination for a group
cannot otherwise be assured.21 The possibilities of any Indigenous people being in
a position to secede and of receiving recognition by the international community
should they seek to do so are extremely remote.They are not, however, negligible.
Sustained threats to the livelihoods, health, lands, lives and cultural integrity of
36 Self-determination in practice

forest peoples; failures to give due recognition to Indigenous peoples and their
rights to autonomy and self-governance; and, programs of assimilation, ethnic
cleansing and cultural genocide may potentially be used as grounds to call for the
exercise of the ultimate manifestation of rights to self-determination, the right to
secede.22
Indigenous peoples argued for the inclusion in the UN Declaration of provi-
sions prohibiting ‘cultural genocide’ or ‘ethnocide’23 through actions such as
destruction of their community, dispossession, forced relocation, or population
transfer.24 Although included in an earlier draft, no mention of either cultural geno-
cide or ethnocide appears in the final Declaration.25 Gilbert and Doyle suggest that
Article 8 of the Declaration, which recognizes that ‘dispossession of land is a threat
to Indigenous peoples cultures and could be an act of forced assimilation’ may be
seen as a compromise.26 In the absence of recognition of cultural genocide and
ethnocide as crimes under international law,27 Indigenous peoples may find at least
partial relief in human rights law relating to their cultural, land and economic
rights, as well as their rights to self-determination and not to be deprived of their
‘means of subsistence’. However, the lack of effective enforcement mechanisms to
ensure state compliance with decisions of treaty bodies and regional courts under-
mines the capacity of human rights law to provide relief for cultural destruction.
As states and multinational corporations are frequently the principal actors respon-

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sible for placing Indigenous peoples’ culture in danger there is a clear need for
some international mechanism to adjudicate on and enforce judgments in cases
whose intent or consequence involves or threatens the destruction of Indigenous
peoples cultures. Although the Genocide Convention does not include a crime of
cultural genocide per se, Bartolome Clavero has argued that the definition of geno-
cide in the Convention is sufficiently ample to cover cases of Indigenous peoples’
cultural destruction.28 We return to this issue in Chapter 9.
The UN Declaration’s long period of gestation, the numerous statements by
states regarding their understanding of Indigenous peoples’ rights and the almost
total global acceptance of its provisions supports claims that it reflects the status of
customary international law.29 The Declaration has already been relied upon by
international treaty bodies,30 national courts31 and regional human rights organiza-
tions.32 All of which supports claims that Indigenous peoples’ rights to
self-determination, to their territories and culture,33 as well as to their own laws34
have crystallized as principles of customary international law.
Implementation of rights to self-determination may take a variety of forms. Shin
Imai suggests four categories of self-determination: sovereignty and self-govern-
ment, self-management and self-administration, co-management and joint
management, and participation in public government.35 Of these, he says:

[t]he ‘sovereignty and self-government’ option leads to more autonomy for the
Indigenous community to control its own social, economic and political
development. The ‘self-management and self-administration’ option leads to
greater control of local affairs and the delivery of services within a larger settler
government legislative framework. The ‘co-management and joint
 Self-determination in practice 37

management’ model institutionalizes indigenous participation in the manage-

ment of lands and resources. The ‘participation in public government’ option
provides a means to influence the policies of the settler governments through
Indigenous-specific institutions.36

Each of these four categories signify different levels of interaction with external
authorities and differing levels of recognition, promotion and enforcement of
customary law. At the highest level, autonomy offers significant freedom from
external governmental interference. The United Nations Declaration on the
Rights of Indigenous Peoples recognizes Indigenous peoples’ right to autonomy or
self-government over their internal and local affairs, in the exercise of their right
to self-determination.37 It also recognizes their rights to maintain and strengthen
their distinct political, legal, economic, social and cultural institutions, while retain-
ing their right to participate fully, if they so choose, in the political, economic, social
and cultural life of the state.38 A good example of autonomy in practice is the
government of Greenland in which a majority of parliamentarians are de facto
Inuit.39 Another example of autonomy is Nunuvut in Canada where Inuit put aside
claims of sovereignty to secure significant autonomy and political control over the
lands and resources in their jurisdiction.40 The Nunuvut experience has been
described as ‘a form of racial and regional reconciliation’ that is underway across

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Canada and various other countries.41 In South Africa, reconciliation has been
aided by the application by the courts of the traditional African concept of ubuntu,
expressed ‘through a collectivist [emotion] of communal caring and humanism, and
of reciprocity and caring’.42 Through the application of ubuntu, South African
courts have begun the development of a body of intercultural equity that draws
upon both state and indigenous legal traditions. Aboriginal peoples in the
Northern Territory of Australia exercised significant levels of autonomy prior to
the so called ‘intervention, by the Federal Government in 2007, which has severely
undermined their self-government.43 In the USA, First Nations have extensive
power to govern their own affairs but are at the same time treated as ‘dependent
nations’ whose rights and responsibilities may be unilaterally changed by
Congress.44
The notion of Indigenous peoples as ‘domestic dependent nations’ is a concept
developed by Chief Justice Marshall in Cherokee Nation v. Georgia,45 which has been
described as one of the ten worst Indian Law cases ever decided.46 Marshall also
delivered the Supreme Court’s decision in the earlier case of Johnson v. McIntosh,
which converted Indian landowners into mere tenants of the federal government.47
While Indigenous peoples’ rights to their lands, resources, legal regimes and culture
are maintained at the whim of national governments, their rights to self-determi-
nation, as guaranteed by the 1966 International Covenants, will remain largely
unrealized.
Neither sovereignty nor self-determination, as it has been defined under the
UN Declaration on the Rights of Indigenous Peoples, necessarily equate with the
existence of an independent state. In the United States case of US v. Wheeler the
court held that tribal sovereignty:
38 Self-determination in practice

exists only at the sufferance of Congress and is subject to complete defeasance.

But until Congress acts, the tribes retain their existing sovereign powers. In sum,
Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or
statute, or by implication as a necessary result of their dependent status.48

The notion that sovereignty exists at the ‘sufferance’ of Congress is a denigration

of indigenous sovereign rights recognized in treaties entered into first with the
British and later with the US government. There is no reason, however, why the
purported negation of indigenous sovereignty by colonial powers and settler states
should prove any more binding than declarations of continuing sovereignty by
Indigenous peoples, which are surely more morally defensible.49 Many Indigenous
peoples argue that they have never lost their sovereignty and that they have not
‘relinquished or ceded any powers to the state’.50 Amongst the submissions by the
Gitskan and Wet’suet’en people in the landmark Canadian Supreme Court case
Delgamuukw v. British Colombia,51 there appears the statement that, ‘[t]he land, the
plants, the animals and the people all have spirit – they all must be shown respect.
That is the basis of our law’ as evidence of the strength of Indigenous peoples’
conceptions of sovereignty and its spiritual basis.52
The statement makes clear the spiritual nature of indigenous concepts of sover-
eignty. A spirituality that infuses Indigenous peoples’ laws and their relations with

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the land, biological diversity and culture.This spiritual link and the sense of belong-
ing, responsibility and duty of care it infuses, distinguishes indigenous and Western
notions of sovereignty. An indigenous perspective underlies criteria for self-deter-
mination drawn from the proceedings of a meeting of experts at Nuuk, Greenland,
in September 1991.These include:

a. the exercise of adequate powers and self-government within the tradi-

tional territories of Indigenous peoples as a prerequisite for the
development and maintenance of traditional indigenous cultures and for
the survival of Indigenous peoples;
b. a redefinition of the relationship between Indigenous peoples and the States
in which they now live, in particular through the negotiation process;
c. self-government as a means of promoting better knowledge about
Indigenous peoples vis-a-vis the wider society;
d. the assumption that the exercise of self-government presupposes indige-
nous jurisdiction, that is, the right of Indigenous peoples to establish their
own institutions and determine their functions in fields such as lands,
resources, economic, cultural and spiritual affairs;
e. the possibility to establish relations with other ethnically similar peoples
living in a different region or State;
f. the establishment of mechanisms for joint control by an indigenous
autonomous institution and the central government;
g. the necessity to delimit clearly areas of competence in order to avoid
conflict; and
h. the establishment of conflict resolution mechanisms.53
 Self-determination in practice 39

The new approach to self-determination that Indigenous peoples seek is not only
required to conform to international human rights law, it is required if intercultural
legal justice is to be achieved. We will return to this issue throughout this work.
Indeed, the whole work may be seen as a discourse on the challenges associated
with achieving true autonomy, self-governance and self-determination for
Indigenous peoples through the exercise and realisation of their rights to their own
legal regimes.
Effective realization of Indigenous peoples’ rights to self-determination is
closely linked to their rights of self-identification, involvement in decision-making
processes and implementation of requirements for their free, prior informed
consent under international human rights law.54 Self-determination also entails
recognition of the inextricable link between Indigenous peoples’ human rights and
the protection of their natural environment and their cultural and economic ‘way
of life’. In each case customary law plays a substantial and vital role in ensuring that
Indigenous peoples’ rights to determine their own internal affairs and defend their
interests against external actors are consolidated and enforced.

The right to self-identification

Historically the term ‘indigenous’ was used primarily to refer to the descendents of

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native non-European populations in New World settler states colonized by
European powers. The notion of Indigenous peoples as a distinct category of
peoples entitled to protection under international law may be traced back to the
writings of Bartolome de las Casas. During the colonial period the term ‘indige-
nous’ was, according to Kingsbury, associated with the practice of establishing
special laws and policies for ‘distinct non-majority groups’.55 In the era of decolo-
nization it was applied to non-European majority populations of European
colonies in Asia and Africa.56 While, in the early post-colonial period it was seen as
applying solely to the descendants of pre-colonial populations in settler states who
were, following the blue water doctrine,57 seen as distinct from native populations
in Third World countries in which settler communities are no longer the dominant
political force.58 The concept of ‘Indigenous peoples’ has continued to evolve over
time to encompass groups that would not fall within the blue water doctrine, such
as the Sami in Scandinavian countries and Arctic peoples of the Russian
Federation, as well as minority and non-dominant tribal groups of Africa and Asia.59
After centuries of largely pejorative use the concept of ‘Indigenous peoples’ has
attained significant normative power making identification as indigenous increas-
ingly attractive to minority groups.60 For Kymlicka, one of the major effects of the
United Nations Declaration on the Rights of Indigenous Peoples has been to
distinguish Indigenous peoples from other minorities, which he says has occurred
in three ways.61 First, through recognition of rights to self-determination, legal
pluralism and autonomy; second in its form as a ‘targeted’ instrument applying to
a defined group in contrast to ‘generic’ minority rights norms that apply to all
groups; and, third in its drafting process, which provided ‘the objects of interna-
tional law a chance to become its subjects’.62
40 Self-determination in practice

The recognition of more expansive human rights, and in particular rights of

self-determination, has made the identification of Indigenous peoples an issue of
increasing importance.63 There is, however, no universally accepted definition of
the term and there is unlikely to be one any time soon. Kingsbury argues that the
‘experience of international agencies and associations of Indigenous peoples
demonstrates that it is impossible to formulate a single globally viable definition [of
Indigenous peoples] that is workable and not grossly under – or over inclusive’.64
This would seem problematic; however, a report prepared in 2004 for the United
Nations Permanent Forum on Indigenous Issues argues that ‘the prevailing view
with regard to the concept of ‘Indigenous peoples’ … is that no formal universal
definition is necessary for the recognition and protection of their rights’.65 This
accords with the position of Indigenous peoples themselves who have consistently
argued that self-identification should be the principal criteria for identification of
indigenousness. Lack of a definition is not, however, without difficulties. On the
one hand, it opens the doors for myriad groups to auto-define themselves indige-
nous, thereby threatening the cohesion of the international indigenous movement.
On the other hand, it creates uncertainties regarding who are indigenous peoples,
uncertainties that may be exploited by countries that deny the existence of any
Indigenous peoples on their territories. In the face of such uncertainties, their
representative organizations, the indigenous movement as a whole, as well as

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national and international courts, treaty bodies and other international bodies, all
have an important role to play in recognition of indigenousness.
Over the years international law has made various attempts to define indige-
nousness. ILO Convention 107 distinguishes indigenous populations on the basis
of ‘descent from the populations which inhabited the country, or a geographical
region to which the country belongs, at the time of conquest or colonization’.66 It
goes on to distinguish them, disparagingly, from the wider population stating that
‘irrespective of their legal status, [they] live more in conformity with the social,
economic and cultural institutions of that time [pre-colonial] than with the insti-
tutions of the nation to which they belong’.67 An interesting aspect of the
Convention’s definition is its recognition that the status of tribal or semi-tribal
populations (which may include Indigenous people) may be determined by taking
into account their ‘customs and traditions’,68 in essence allowing for a modicum of
self-identification as indigenous. It also provides for identification of tribal and
semi-tribal status based upon the existence of special national laws or regulations
pertaining to them.69 Daes argues that the rights under the Convention arise not
as a result of ‘a people’s history of being conquered, colonized or oppressed, but its
history of being distinct as a society or nation’.70 While all ‘indigenous’ peoples are
considered ‘tribal’, under the Convention, not all ‘tribal’ peoples are, she says,
considered ‘indigenous’.71 The distinction is largely cosmetic as both tribal and
Indigenous peoples enjoy the same rights under the Convention. It has more
importance when viewed in light of subsequent advances in recognition of indige-
nous rights in international treaties and customary international law. Though
largely superseded by ILO Convention 169, Convention 107 is still in force in 18
states including countries such as India and Bangladesh, which together are home
 Self-determination in practice 41

to a large percentage of the global population of Indigenous peoples. Although

India does not formally accept the denomination of specific groups as ‘Indigenous
peoples’, both constitutional law and national law recognize what are termed
‘scheduled tribes’ who may ‘benefit from a whole host of affirmative action poli-
cies’.72 Indigenous peoples in Bangladesh, in particular the Chittagong Hill Tribes,
have also secured significant concessions regarding their rights to autonomy.
A major advance in the recognition of Indigenous peoples’ interests came in
1972 when the United Nations Sub-Commission on Prevention of Discrimination
and Protection of Minorities entrusted Special Rapporteur Martinez Cobo, with
responsibility for the preparation of a study on the problem of discrimination
against indigenous populations. The study, carried out between 1972 and 1986,
contains a widely cited definition, which sets out a range of cultural, institutional,
and legal characteristics distinguishing Indigenous groups from other sectors of
society.The definition states:

indigenous communities, peoples and nations are those which, having a histor-
ical continuity with pre-invasion and pre-colonial societies that developed on
their territories, consider themselves distinct from other sectors of the societies
now prevailing on those territories, or parts of them. They form at present
non-dominant sectors of society and are determined to preserve, develop and

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transmit to future generations their ancestral territories, and their ethnic iden-
tity, as the basis of their continued existence as peoples, in accordance with
their own cultural patterns, social institutions and legal system.73

A key element of the Cobo definition is the reference to ‘historical continuity’,

which the study explains:

… may consist of the continuation, for an extended period reaching into the
present of one or more of the following factors:

a. Occupation of ancestral lands, or at least of part of them;

b. Common ancestry with the original occupants of these lands;
c. Culture in general, or in specific manifestations (such as religion, living
under a tribal system, membership of an indigenous community, dress,
means of livelihood, lifestyle, etc.);
d. Language (whether used as the only language, as mother-tongue, as the
habitual means of communication at home or in the family, or as the
main, preferred, habitual, general or normal language);
e. Residence on certain parts of the country, or in certain regions of the
world;
f. Other relevant factors.74

Though widely used, the inclusion of the requirement for historical continuity
with pre-invasion and pre-colonial societies limits the utility of this definition.75
The definition fails, for instance, to cover Indigenous peoples who may have been
42 Self-determination in practice

displaced from their lands and/or impeded, directly or indirectly, from continuing
to maintain their cultural practices, institutions, traditional dress, languages, etc. It
also fails to acknowledge the existence of Indigenous peoples in areas which have
not experienced colonialism or conquest, or who have migrated into a country
after its borders have been established. To its merit, the definition includes provi-
sions for self-identification and recognizes the sovereign right of communities ‘to
decide who belongs to them, without external interference’.76
In the mid 1970s an emerging international indigenous movement began to
develop its own definitions of indigenousness based upon historical priority and
lack of control over the national government in the state in which they live. A
working definition prepared as a guide for the identification of potential delegates
to the World Council of Indigenous Peoples (WCIP) in 1975 reads:

[t]he term Indigenous people refers to people living in countries which have
a population composed of differing ethnic or racial groups who are descen-
dents of the earliest populations living in the area and who do not as a group
control the national government of the countries in which they live.77

Similarly in the 1984 a draft International Covenant on the Rights of Indigenous

Peoples prepared for the WCIP describe an Indigenous people as, a people:

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who lived in a territory before the entry of the colonizing population, which
colonizing population has created a new state or states or extended the juris-
diction of an existing state or states to include the territory, and who continue
to live in the territory and who do not control the national government of the
state or states within which they live.78

This definition, which closely mirrors the UN working definition prepared by

Martinez Cobo, links indigenousness with colonization and lack of control over
national government.79 Although, both WCIP definitions referred to Indigenous
‘people’, this position was changed as the indigenous movement began to recog-
nize the importance of being seen as ‘peoples’ falling within the scope of Common
Article 1 of both 1966 International Covenants and as such entitled to the right to
self-determination.
Anaya has defined the term ‘indigenous’ broadly to embrace ‘the living descen-
dants of pre-invasion inhabitants of lands now dominated by others … culturally
distinctive groups that find themselves engulfed by settler societies born of forces
of empire and conquest’.80 Daes, in a paper for the Working Group on Indigenous
Populations, also includes the notion of domination among four factors which, she
says, ‘modern international organizations and legal experts … consider relevant to
the understanding of the concept of ‘indigenous’.81 These, she says, include: prior-
ity in time, voluntary perpetuation of cultural distinctiveness, self-identification,
and an experience of subjugation, marginalization, dispossession, exclusion or
discrimination, whether or not these conditions persist.82 While these factors
include territorial continuity they also include cultural distinctiveness, subjugation
 Self-determination in practice 43

and self-identification, all of which may be relevant not only to Indigenous peoples
within the territories they traditionally possess, but also among those dispossessed
of their lands or forced to migrate across national borders. To condition recogni-
tion as indigenous on continuous occupation of traditional territories would
amount to further discrimination against many groups displaced during periods of
colonialism or conquest, as well as those which have migrated to avoid conquest,
war or environmental degradation. If the condition of historical continuity with
land is removed from the equation, the distinction between Indigenous peoples still
occupying their traditional territories and those displaced from their traditional
lands may be far from obvious.
According to Eide, discussions at the WCIP in 1990 ‘marked a shift in focus
from the notion of Indigenous peoples as being groups subjected to colonialism by
European powers and identification of indigenousness based upon historical prior-
ity, towards other groups, identifiable based on criteria including cultural
distinctiveness, land use, and self-identification’.83 As the criterion for recognition
of indigenousness became more inclusive, groups previously excluded from a
narrow definition of ‘Indigenous peoples’, such as the Masai, who cannot assert any
anteriority over their territories vis-à-vis other groups in the countries in which
they reside, came to fall within the definition. The adoption of ILO Convention
169 in 1992 saw the recognition of an untrammelled right of self-identification for

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Indigenous peoples. Article 8 of the Convention states:

Indigenous peoples have the collective and individual right to maintain and
develop their distinct identities and characteristics, including the right to iden-
tify themselves as indigenous and to be recognized as such.

One of the difficulties with self-identification, Kingsbury argues, is that ‘[t]he

imprecision of the category and expanding array of groups involved in the
“Indigenous peoples movement” could eventually … provoke sustained demands
for precision.’84 This was noticeable during negotiation of the UN Declaration,
with African countries seeking assurances that the use of the term would not deny
the right of other groups to identify as indigenous to Africa or to their country.85
Strong opposition to the use of the concept of ‘Indigenous peoples’ in the
Declaration also came from China, India, Bangladesh, Myanmar and Indonesia.86 In
response to African concerns, which threatened at one stage to derail the process
of adoption of the Declaration, attention was drawn to the position of the African
Commission Working Group on Human Rights, which distinguished between the
literal meaning of the term, which views ‘all as indigenous to the continent’ and its
meaning with regard to ‘sections of various African populations that remained
behind after colonization and continue not to enjoy all rights on the same footing
with the rest of their fellow citizens’.87
The UN Declaration on the Rights of Indigenous Peoples is seen by some as
providing for ‘unrestricted self-identification’ by Indigenous peoples.88 The relevant
Article 9 of the Declaration reads:
44 Self-determination in practice

Indigenous peoples and individuals have the right to belong to an indigenous

community or nation, in accordance with the traditions and customs of the
community or nation concerned. No discrimination of any kind may arise
from the exercise of such a right.

While, at first glance this article may appear to establish an unrestricted right to
self-identification, it is not without ambiguity. First, Article 9 presumes the exis-
tence of an indigenous community or nation to whom ‘Indigenous peoples and
individuals’ have a right to belong. As neither an indigenous community nor an
indigenous nation is defined in the Declaration, the provision is open to restrictive
interpretation by national authorities in countries denying the existence of
Indigenous peoples. This may prove particularly problematic in the case of coun-
tries in which the majority population may lay claim to be indigenous.89 Second,
the right to ‘belong’ is circumscribed by the right of a particular indigenous
community or nation to exclude any individual(s) from the benefits of self-identi-
fication in accordance with their own traditions and customs. Third, the
Declaration provides no guidance on how Indigenous peoples are to be distin-
guished from other national minority groups and local communities, leaving the
door open to continued dilution of the notion of indigenousness.
Among the difficulties associated with the identification of indigenousness in a

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period of increased recognition of indigenous human rights are the challenges
associated with equitable benefit sharing and rights to self-identification versus the
rights of collective determination of group membership. New land claims and
massive infusions of state financial aid has appeared at the same time as states have
divested to Indigenous peoples the right to decide issues of group membership.
This has led some Indigenous peoples to define more formal rules for membership
and criteria for sharing in benefits which have tended to favour traditional terri-
tory-based aboriginal polities.90 What it did not do was to clarify the position and
rights of urban aboriginal groups, of members of Indigenous peoples who had
married outside their groups or who had voluntarily or involuntarily left the land.
Indigenous peoples’ rights to define their own internal membership are
constrained by requirements that these rights may not be used to deprive an indi-
vidual of their basic human rights.91 In the well-known case of Sandra Lovelace v.
Canada (the Lovelace case),92 it was held that that denial of her right to reside on the
Indian Tobique Reserve, in Canada, due to her marriage to a non-Indian, violated
her right ‘in community with the other members of her group’ to enjoy her own
culture as guaranteed by Article 27 of the International Covenant on Civil and
Political Rights.93 Lovelace was a landmark on two fronts. First, it recognized the
rights of Indigenous peoples and their members to define themselves.94 Second, it
restricted that right to the extent that it was exercised in a manner contrary to the
‘key individualistic values’ enshrined in the 1966 international covenants such as
non-discrimination and fundamental rights recognized by constitutional law.95 In
effect it gave recognition to Indigenous peoples’ rights to be governed by their own
customary laws subject to application of the same human rights standards as would
be held applicable to state law.
 Self-determination in practice 45

Setting aside the merits of Lovelace, it is interesting to note the relationship

evolving between international human rights law, national statutory law (positive
law) and customary law. To some extent, human rights law appears to be adopting
the place once held by natural law as the arbiter of conflicts between customary
law and positive law. Human rights law is of course itself largely positive law – it
also arises, however, through customary international law – and the product of the
combined exercise of legislative power of states. The same power that rode
roughshod over customary law in the past. Securing Indigenous peoples’ trust and
commitment to the realisation of human rights, will, therefore require confidence
building and due respect and recognition for their own legal values, customary laws
and institutions. Customary law and human rights may, however, prove to be far
closer in spirit than is often perceived, with both finding their source in notions of
natural law, rights and justice, although their interpretations of the sources and
nature of such norms may differ greatly.

Participation and prior informed consent

The rights of Indigenous peoples to participate in decision-making processes and
State obligations to consult and seek their prior informed consent are grounded on
the right to self-determination set out in Common Article 1 of the two

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International Covenants. Rights to participation and requirements to consult and
obtain free prior informed consent are set out in ILO Convention 16996 and the
UN Declaration on the Rights of Indigenous Peoples.97 These rights and obligations
may be divided into four categories. First, Indigenous peoples have rights to partic-
ipate in the political, economic, social and cultural life of the State;98 in
decision-making in matters which would affect their rights;99 and in processes to
recognize and adjudicate their rights over their lands, territories and resources;100
which must be done with due recognition for their own laws, traditions, customs
and land tenure systems.101 Second, states have general obligations to consult
Indigenous peoples regarding: issues of discrimination;102 education;103 protection of
indigenous children from economic exploitation;104 use of their lands or territories
for military activities;105 rights to maintain and develop contacts, relations and coop-
eration with Indigenous peoples in other countries;106 and, the taking of appropriate
measures to achieve the ends of the Convention and Declaration.107 Third, and most
importantly, Indigenous peoples’ prior informed consent is required for their relo-
cation;108 before adopting and implementing legislative or administrative measures
that may affect them;109 as a precondition for storage or disposal of hazardous waste
on their territories;110 and, for any project affecting their lands or territories and
other resources, particularly in relation with the development, utilization or
exploitation of mineral, water or other resources.111 Fourth, redress through effective
measures, including restitution where possible, is required where their ‘cultural,
intellectual, religious and spiritual property [have been] taken without their free,
prior and informed consent or in violation of their laws, traditions and customs’.112
Redress and restitution is also required for the ‘lands, territories and resources which
they have traditionally owned or otherwise occupied or used, and which have been
46 Self-determination in practice

confiscated, taken, occupied, used or damaged without their free, prior and
informed consent’.113 Taken together these rights and obligations offer numerous
opportunities for Indigenous peoples to promote and indeed to require recognition
and compliance with their customary laws and practices.
ILO Convention 169 sets out binding legal obligations for states to consult with
Indigenous peoples.The right to self-identification as indigenous in Article 1 of the
Convention is in Thornberry’s opinion, ‘a powerful contribution to the idea of
participation since it plays a role in determining the whole applicability of the
principles to the peoples concerned’.114 The Convention requires states to consult
with Indigenous peoples ‘through appropriate procedures and in particular through
their representative institutions’ regarding legislative or administrative measures
which may affect them and to afford them at least the same opportunities to partic-
ipate in ‘all levels of decision-making’ as other sectors of the population.115 ILO
Convention 169 recognises Indigenous peoples’ rights to participate in the ‘formu-
lation, implementation and evaluation of development plans and programs which
may affect them directly’.116 Consultation is also required wherever Indigenous
peoples’ capacity to alienate their lands outside the community is considered.117
One of the most frequently cited and often disputed provisions of ILO Convention
169 is Article 15(1), which recognizes the rights of Indigenous peoples over natu-
ral resources pertaining to their lands, and their rights to participate in their use,

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management and conservation. Article 15(2) of the ILO Convention 169 requires
that even where the state retains rights to ‘mineral or sub-surface resources or …
other resources pertaining to lands’ they are obliged to establish or maintain proce-
dures for consultation with Indigenous peoples, ‘with a view to ascertaining
whether and to what degree their interests would be prejudiced’ this consultation
must take place ‘before undertaking or permitting any programmes for the explo-
ration or exploitation of such resources pertaining to their lands.’
International human rights law has, to date, a relatively poor record in securing
consultation of Indigenous peoples in regard to activities that threaten their land,
resource and cultural rights. This is most notable with regard to highly sensitive
areas such as the grant of oil and mining leases, dam construction and the sale or
lease of extensive lands for foreign agricultural interests.118 Anaya, in his role as
Special Rapporteur, finds the lack of adequate implementation by states of their
duty to consult with Indigenous peoples in decisions affecting them, is a common
problem around the world.119 In Latin America, the Inter-American Commission
on Human Rights has found a tendency by countries to transfer their responsibil-
ity to conduct prior consultation with Indigenous peoples to private companies
generating a ‘de facto privatization of the State’s responsibility’.120 Anaya argues that
the state’s responsibility cannot be abdicated by assigning it to private sector
actors121 and notes that ‘lack of consultation leads to conflictive situations, with
indigenous expressions of anger and mistrust, which in some cases, have spiralled
into violence’.122A case in point is that of Peru where, during the four years of the
government of Alan Garcia (2006–11), over 190 people, including 153 civilians and
38 members of the police and military, lost their lives in social conflicts, which were
primarily related to natural resource exploitation.123 The most serious single
 Self-determination in practice 47

incident in June 2009 involved clashes between police and members of the Awajun
people of the northern Amazon. The Awajun, as part of a long series of demon-
strations in Amazonian areas, had blocked a road in the northern town of Bagua in
an effort to force the state to enter into meaningful dialogue with them. Police
efforts to break the blockade by force led to violent clashes in which 24 police and
10 civilians, mainly Awajun, lost their lives. The Awajun, who remained uncon-
quered throughout the Inca and colonial periods, were demonstrating against the
adoption of a range of executive orders that threatened their ancestral rights and
their rights under national law over their traditional forests. In the aftermath of the
Bagua incident the Peruvian government established a series of working groups
with the participation of representatives of Indigenous peoples to address issues
such as resource rights and consultation processes. On 23 August 2011, the newly
elected Peruvian Parliament unanimously adopted the ‘ley de consulta’ (consulta-
tion law), which was approved by the incoming President Humala and signed into
law on 6 September.The law states that securing consent is to be the objective of
consultations.124 It provides that where consent is not forthcoming it can be over-
ridden by the state, in which case the state is obliged to give a justification for its
decision, which may be subject to judicial review.125
The Peruvian ‘ley de consulta’ has significant implications for state actors and all
companies, research institutions, missionary groups and non-governmental organ-

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izations planning activities that may impact on Indigenous peoples. It is of
particular importance for companies intending to invest in mining and subsurface
resource exploitation, hydroelectric energy projects, logging and other agroindus-
trial activities.As part of due diligence, studies will now be necessary to ensure that
there has been adequate consultation by the state with Indigenous peoples, prior
to bidding for any licences for exploration or exploitation of natural resources or
involvement in development projects. Such due diligence studies will need to
ensure that consultations were carried out with due respect for Indigenous peoples
customary laws, authorities and institutions.
In the years following its adoption the ‘ley de consulta’ has become a beacon for
resistance by Indigenous peoples to the incursions of oil and mining companies
onto their traditional territories. Unfortunately, compliance has been patchy and
the Peruvian experience has shown the difficulty in overcoming the entrenched
practices of governments accustomed to granting licences over indigenous lands
without prior consultation or approval. The Peruvian experience has been repli-
cated across Latin America. Even countries such as Bolivia and Ecuador, which
have adopted strong constitutional protection for Indigenous peoples and the envi-
ronment have seen obligations to consult with Indigenous peoples subverted in the
state’s rush to secure foreign investment and markets. One sign of hope has come
from the proactive stance taken by the constitutional court in Colombia.The court
has adopted a number of far reaching decisions recognizing the state’s obligations
to comply with ILO Convention 169 and to consult with Indigenous peoples
prior to granting rights for exploration or exploitation of resources in their tradi-
tional territories.126
In some cases the duty to consult may be linked to an obligation to secure free,
48 Self-determination in practice

prior informed consent of Indigenous peoples.The notion of free, prior informed

consent first emerged in the area of medicine where it became necessary to obtain
a patient’s consent prior to invasive surgery. It is now a well-established principle
of international law that where applying to Indigenous peoples requires their freely
given informed consent (i.e. based upon full information of the potential impacts,
benefits, opportunities and dangers associated with a specific activity, project
programme or legislative or administrative act, provided in a format and language
understandable to the relevant Indigenous people) in advance of the promulgation
of any relevant law, the taking of any administrative decision or the commence-
ment of any project or other activity which may affect them.
The United Nations Declaration on the Rights of Indigenous Peoples sets out
four areas in which Indigenous peoples’ consent is mandatory (relocation, adoption
of legislative and administrative measures, depositing hazardous waste on their lands
and for projects affecting their lands or resources) and two areas in which redress or
restitution is required where consent has not been obtained (cultural, intellectual reli-
gious or sacred property and lands, territories and resources). ILO Convention 169
obliges states to ensure that consultations are to be ‘undertaken in good faith and in
the form appropriate to the circumstances with the objective of achieving agreement
or consent to the proposed measures’.127 This has the effect of ‘hardening’ the duty to
consult, in effect establishing a duty to seek prior informed consent.128 Under the

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Convention, relocation requires the free and informed consent of Indigenous
peoples, however, it may still be forced upon them if their consent is not forthcom-
ing.129 The Nagoya Protocol on Access to Genetic Resources and the Sharing of
Benefits Arising from their Utilization established binding legal obligations for states
to adopt measures requiring prior informed consent for access to and use of
Indigenous peoples’ genetic resources and traditional knowledge.130 The Protocol also
requires countries into which such genetic resources and or traditional knowledge
are imported to adopt measures to ensure compliance with the relevant laws of the
country from which the resources or knowledge were sourced.131 In meeting their
obligations under the Protocol, state parties are obliged to ‘take into consideration’
the customary laws and protocols of Indigenous peoples.132
Free, prior informed consent has been affirmed as a right of Indigenous peoples
in a diverse range of hard and soft legal instruments, codes of practice and funding
guidelines. Provisions of free, prior informed consent are found in international
human rights and environmental law treaties, codes of practice on cultural impact
assessment,133 decisions of treaty bodies and jurisprudence of regional human rights
organizations,134 reports of international commissions135 and international funding
organisations136 as well as voluntary industry guidelines.A wide range of industries,
development activities and environmental management have recognized obliga-
tions for free, prior informed consent.137 Free, prior informed consent is widely
seen as obligatory for the oil, gas and mining industries, logging, forestry planta-
tions, palm oil, protected areas, climate change mitigation programs, energy and
dam-building activities, as well as access to genetic resources, traditional knowledge
and other aspects of cultural heritage of Indigenous peoples.
Amongst treaty bodies the Committee on Elimination of Racial Discrimination
 Self-determination in practice 49

(CERD) has been the ‘most active and innovative’ in addressing obligations to
consult with Indigenous peoples, frequently raising the issue in its concluding
observations to states.138 It has also used its Early Warning Urgent Action procedure
to raise questions regarding failures to carry out consultations and seek consent in
relation to, among other countries, Belize, Brazil, Chile, Panama, Botswana,
Canada, Niger, the Philippines, Peru, India and Indonesia.139 In its General
Recommendation No. 23 on the Rights of Indigenous Peoples, the Committee
calls upon states parties to ‘[e]nsure that members of Indigenous peoples have equal
rights in respect of effective participation in public life and that no decisions
directly relating to their rights and interests are taken without their informed
consent’.140 The Human Rights Committee has also found obligations to secure
free, prior informed consent of Indigenous peoples where the impacts of an activ-
ity would ‘substantially compromise or interfere with culturally significant
economic activities’ linking the issue of consent with the protection of cultural
integrity.141 Special Rapporteur James Anaya has emphasized the need for the
consent of Indigenous peoples in the case of extractive industry projects that may
have significant social, cultural or environmental impacts on Indigenous peoples.142
In a landmark decision the Inter-American Court of Human Rights in
Saramaka v. Suriname held that Indigenous peoples:

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must be consulted, in accordance with their own traditions, and traditional
methods of decision-making. Where large-scale development or investment
projects would have a major impact the duty to consult is complemented by
a requirement to obtain free, prior, and informed consent, according to their
customs and traditions.143

With regard to the issue of relocation of Indigenous peoples, the Inter-American

Court has held that ‘pursuant to a comprehensive interpretation of ILO
Convention 169 and of the American Convention,144 there must be consensus with
the peoples involved, in accordance with their own mechanism of consultation,
values, customs and customary law’ with regards to the ‘selection and delivery of
alternative lands, payment of fair compensation or both’.145 In a similar fashion, the
African Commission on Human and Peoples Rights in the 2009 case of Endorois
v. Kenya held that the standard to be met for obtaining free, prior informed consent
was a requirement for compliance with the custom and traditions of Indigenous
peoples.146 At the national level Chief Justice Lamer giving the decision of the
Supreme Court of Canada in Delgamuukw v British Colombia held that even in cases
of minor infringements of Indigenous peoples’ land rights what will be required in
most cases is something ‘significantly deeper than mere consultation. Some cases
may even require the full consent of an aboriginal nation.’147 The knock-on effect
of the Delgamuukw decision was felt in 1999 when the British Colombia Ministry
of Forests was forced to withdraw its Sunshine Coast forestry development plan
due to lack of consultation with the Klahoose First Nation.148 In the case of Maya
Villages of Santa Cruz and Conejo v. the Attorney General of Belize and the Department
of Environment and Natural Resources, Chief Justice Conteh, presenting the decision
50 Self-determination in practice

of the Supreme Court of Belize, ordered the defendants (agents of the government
of Belize) to ‘cease and abstain from any acts that might … affect the existence,
value or enjoyment of the property located in the geographic area occupied and
used by the Maya people of Santa Cruz and Conejo unless such acts are pursuant
to their informed consent’.149 The collective impact of the foregoing decisions is to
strengthen Indigenous peoples’ control and promote the realization of their rights
to self-determination and to apply their own laws to the governance of their lands
and resources.
The World Bank has not adopted the standard of free, prior informed consent
but has gone for the less onerous but still significant obligation requiring lenders
to engage in ‘a process of free prior and informed consultation’ with Indigenous
peoples who may be affected by the relevant project.150 The term ‘Indigenous
peoples’ is not defined by the World Bank but is applied in a broad manner to
include groups referred to as ‘indigenous ethnic minorities’, ‘aboriginals’, ‘hill
tribes’, ‘scheduled tribes’, or ‘tribal groups’ some of whom may not be recognized
as indigenous in their country of origin, as for example with ‘scheduled tribes’ in
India and ‘national minorities’ in China.151 With regard to lands it requires atten-
tion to both individual and collective customary rights, described as ‘patterns of
long-standing community land and resource usage in accordance with Indigenous
peoples’ customary law, values, customs, and traditions, including seasonal or cycli-

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cal use, rather than formal title to land and resources issued by the State’.152 Other
international financial institutions including the International Finance Corporation
(IFC), Inter-American Development Bank (IDB), European Bank for
Reconstruction and Development (EBRD) and the Asian Development Bank
(ADB) have adopted somewhat similar requirements.153
Carino and Colchester warn of the dangers that institutional procedures for
obtaining free, prior informed consent may be reduced to a mere box-ticking exer-
cise to identify that consultations took place.154 The true verifier, they suggest:

is not whether such a sequence of actions was followed out but whether the
affected people agree that decisions were genuinely inclusive and respectful of
self-determined development. The spirit of [free prior informed consent] is
that development should become accountable to peoples’ distinctive cultures,
priorities, and unique paths to self-determination, not endanger their
survival.155

Indigenous peoples are increasingly developing their own protocols and contrac-
tual agreements based upon principles of customary law, which define the manner
in which consent may be sought. Companies, research institutions and their legal
advisers will need to be increasingly aware of the rights of Indigenous peoples to
grant or deny consent for a wide range of activities. Commercial investors, the
World Bank and other lending agencies are all increasingly likely to require
evidence that consent of Indigenous peoples, in accordance with their own
customs laws and traditions has been obtained, as a condition for funding of pro-
jects. Attention to customary law and its role in consent procedures are a must for
 Self-determination in practice 51

states and the private and research sectors. Ignorance of that law will be no defence.
For Indigenous peoples’ prior informed consent procedures offers a great oppor-
tunity to require that those seeking consent agree to be bound by customary law
rules. Where dealing with third parties Indigenous peoples will be advised to
enshrine, to the greatest extent possible, the principles they wish to guide any
agreement in writing.This is not to suggest that customary law should be codified
but that any agreement will need to be clear about the conditions under which
customary law will apply, the jurisdiction if any of traditional courts or decision-
making authorities, and the application of customary law where appropriate in
alternative dispute resolution procedures. Prior informed consent is, therefore, a
two way street. It provides rights but it also creates responsibilities for Indigenous
peoples. This includes the responsibility to prepare themselves to make decisions,
to agree upon modalities for considering matters requiring their consent and estab-
lish, where not already existing, the necessary internal procedures for dealing with
complex consent-related decision-making in areas not historically covered by
customary law.156
Where prior informed must be obtained from Indigenous peoples the oppor-
tunity to require compliance with customary law is implicit, if not always
achievable in practice. Procedures requiring free, prior informed consent create
obligations for states and rights for Indigenous peoples, thereby directly linking

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customary law to human rights. Adoption of national law and policy establishing
consultation and consent procedures is, therefore, part of an evolving body of state
practice providing recognition and respect for customary law and its role in secur-
ing human rights. Taken together with rights of self-determination and
self-identification, rights of participation and free, prior informed consent establish
a firm basis upon which Indigenous peoples can build respect and recognition for
their autonomy, their legal regimes and their sovereign rights over their lands,
resources and cultural heritage.
3 Where custom is the law

Indigenous peoples’ right to self-determination would mean little if it did not

allow them the freedom to govern their affairs in accordance with their own laws,
customs and traditions. International recognition of such rights would in turn be
meaningless absent a commitment at the national level to recognize Indigenous
jurisdiction.This chapter examines the status of Indigenous peoples’ rights to their
own legal regimes under international law and the recognition of custom as a
source of law in national constitutions. It also examines the recognition of tribal
courts and jurisdiction and concludes with consideration of situations where

DRAFT
customary law is the only or principal form of law at the national level.

International recognition of Indigenous peoples’ legal

systems
According to the United Nations Declaration on the Rights of Indigenous
Peoples, Indigenous peoples are entitled, by virtue of their rights to self-determi-
nation, to autonomy or self-government over their internal affairs.1 This includes
the right to maintain and strengthen their distinct political, legal, economic, social
and cultural institutions,2 and 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.3 Amongst the key
indicators for determining the effectiveness or otherwise of measures to promote
indigenous rights to self-determination will be the extent of recognition of their
own decision-making authorities, the level of respect shown for their jurisdictional
powers and the support given for the enforcement of their own legal regimes in
accordance with their own customs and practices.
Indigenous peoples’ rights under international law to their own laws and legal
institutions have both an internal and external aspect. On the one hand, states are
obliged to recognize Indigenous peoples’ rights to govern their own affairs in
accordance with their own law. On the other hand, states are obliged to consult
with Indigenous peoples regarding the development of national laws, policies and
programmes or the negotiation of international laws and policies that may affect
them. These rights and obligations are clearly set out in ILO Convention 169,
which recognizes indigenous and tribal peoples’ rights to the full measure of
 Where custom is the law 53

human rights and fundamental freedoms, without hindrance or discrimination.4

ILO Convention 169 also requires states to adopt special measures for ‘safeguard-
ing their persons, institutions, property, labour, cultures and environment in a
manner which does not run counter to their expressed wishes’.5 The Convention
creates a duty for states to consult, in good faith, with Indigenous and tribal peoples
‘through appropriate procedures and in particular through their representative
institutions, whenever consideration is being given to legislative or administrative
measures which may affect them directly’ and to establish means for their partici-
pation in all levels of decision making, to at least the same extent as other sectors
of the population.6 It recognizes Indigenous peoples’ rights to decide their own
development priorities,‘as it affects their lives, beliefs, institutions and spiritual well-
being and the lands they occupy or otherwise use, and to exercise control, to the
extent possible, over their own economic, social and cultural development’.7 The
Convention requires that in applying national laws and regulations to indigenous
and tribal peoples ‘due regard’ be given to their customs or customary laws and to
their rights to retain their own customs and institutions.8 These rights are not
enforceable in the case of customs and institutions ‘incompatible with fundamen-
tal rights defined in national law or internationally recognized human rights’.9 The
binding nature of the obligations under ILO Convention 169 means that countries
party to it will need to ensure that national laws are developed with due regard to

DRAFT
the customs and customary law of relevant indigenous and tribal peoples.
As noted earlier, the United Nations Declaration on the Rights of Indigenous
Peoples does not use the term ‘customary law’ at all but refers instead to Indigenous
peoples’ ‘customs, laws, traditions and land tenure systems’.10 Article 34 of the
Declaration recognizes Indigenous peoples’ rights ‘to promote, develop and main-
tain … their distinctive customs, spirituality, traditions, procedures, practices and, in
the cases where they exist, juridical systems or customs’ in accordance with inter-
national human rights standards.11 The Declaration gives specific recognition to
Indigenous peoples’ rights to self-determination,12 including rights of autonomy or
self-government in matters of economic, social and cultural development.13 It
requires states to give legal recognition and protection to Indigenous peoples’ rights
over their traditional lands, territories and resources.14 This is to be done with due
respect for their customs, traditions and land tenure systems.15 States are obliged to
establish fair, independent, impartial, open and transparent processes, giving due
recognition to customary law in order to adjudicate Indigenous peoples’ land and
resource rights.16 This is to be done in conjunction with Indigenous peoples.17
States are required to consult with Indigenous peoples through their representative
organizations in order to secure their free and prior informed consent for any pro-
jects that might affect their lands, territories or other resources, in particular where
this involves resource development, use or exploitation.18 States are obliged, there-
fore, to confer with Indigenous peoples’ prior to granting any lease, licence or
other rights for the exploration or exploitation of natural resources, including sub-
surface, biological or genetic resources on their lands or territories. Indigenous
peoples are free to decide whether or not to give or withhold their consent in
accordance with their own laws and practices.This does not necessarily amount to
54 Where custom is the law

a right to veto a project; at the same time states cannot treat obligations to consult
with Indigenous peoples as a mere box-ticking exercise.Where any projects cause
adverse environmental, economic, social, cultural or spiritual impacts, the
Declaration also requires states to provide effective mechanisms for mitigation and
for just and fair redress.19 Determinations of cultural or spiritual impact are likely
to be guided by attention to customary law.
Both individually and collectively ILO Convention 169 and the UN
Declaration on the Rights of Indigenous Peoples establish a solid basis for the
recognition of customary law as a source of law. In order to comply with each
instrument states are obliged to respect Indigenous peoples’ rights to be governed
by their own laws and institutions. States must ensure that due recognition be given
to customary law in national courts and that Indigenous peoples’ rights to regulate
access to and use of their lands and resources, in accordance with their customary
laws and practices, be secured. The comprehensive treatment given to customary
law in the UN Declaration is a clear indication of the importance it holds for the
realization of Indigenous peoples’ human rights. It has been widely claimed that
the UN Declaration on the Rights of Indigenous Peoples reflects customary inter-
national law regarding Indigenous peoples’ human rights.20 If this is so then
Indigenous peoples’ right to their customary laws and the concomitant obligation
of states to give due respect and recognition to such customary laws may be seen

DRAFT
to have crystallized into binding principles of customary international law. This
book examines this proposal through an extensive examination of national and
international law and state practice regarding the rights of Indigenous peoples to
apply their own legal regimes to regulate their own affairs and control the activi-
ties of third parties that may conflict with their rights and interests.
Historically, the jurisdiction of Indigenous peoples has been limited to their
recognized territories. In many cases the application of their customary laws has been
considered to be restricted to the members of the relevant Indigenous people who
consider themselves bound by it.This situation has, however, been radically changed
with the adoption in 2010 of the Convention on Biological Diversity Nagoya
Protocol on Access to Genetic Resources and Benefit Sharing.21 The Protocol
requires all countries to ‘take into consideration’ the customary laws and protocols of
indigenous and local communities in the implementation of their obligations.22 In so
doing, the Protocol became the first binding international instrument to formally
recognize the extraterritorial effect of Indigenous peoples’ customary law and the
fundamental role of Indigenous peoples’ customary laws in securing their human
rights. In the short term at least, extraterritorial recognition is likely to prove depend-
ent upon the level of recognition given to customary law in national jurisdictions in
which Indigenous peoples reside. Of much importance, in this vein, is the level of
recognition given to customary law in national constitutions and laws.

UN initiatives on Indigenous peoples’ rights

Though slow to begin, the United Nations has now established a number of
important institutions to support the realization of Indigenous peoples’ rights. In
 Where custom is the law 55

2001 the Commission on Human Rights appointed a Special Rapporteur on the

Rights of Indigenous Peoples, Rodolfo Stavenhagen, with a mandate: (a) to gather,
request, receive and exchange information and communications from all relevant
sources, including governments, Indigenous peoples themselves and their commu-
nities and organizations, on violations of their human rights and fundamental
freedoms; (b) to formulate recommendations and proposals on appropriate meas-
ures and activities to prevent and remedy violations of human rights and
fundamental freedoms of Indigenous peoples; and (c) to work in close relation with
other special rapporteurs, special representatives, working groups and independent
experts of the Commission on Human Rights and of the Sub-commission on the
Promotion and Protection of Human Rights.23 The Special Rapporteur reports
annually on his activities to the Human Rights Council and also makes country
reports24 and thematic reports.25 While the work of the Special Rapporteur is
receiving ever more coverage in the press and online media, it is still questionable
how effective this post is in bringing about change. Professor Stavenhagen points
out that the time given for debate of his reports by the Council was usually only
a few minutes and to the best of his knowledge there has been no follow-up on
his reports and recommendations by the Council.26 He also expresses frustration at
not being able to follow-up on his country reports, and the general feeling that
things remained largely as they were before his visits and reports.27 In March 2014,

DRAFT
Victoria Tauli Corpuz, former chair of the United Nations Permanent Forum on
Indigenous Issues, succeeded Professor Anaya, Stavenhagen’s successor, as the new
Special Rapporteur and the first woman to hold this position.
The United Nations Permanent Forum on Indigenous Issues was established in
2000 as an advisory body to the Economic and Social Council (ECOSOC) with
a mandate to discuss indigenous issues related to economic and social development,
culture, the environment, education, health and human rights.The Forum is made
up of 16 experts, 8 nominated by governments and 8 nominated by Indigenous
organizations and appointed by the President of ECOSOC to represent the seven
socio-cultural regions determined to give broad representation to the world’s
Indigenous peoples.28 The Permanent Forum’s mandate requires it to: provide
expert advice and recommendations on indigenous issues to the Human Rights
Council, as well as to programmes, funds and agencies of the United Nations; raise
awareness and promote the integration and coordination of activities related to
indigenous issues within the UN system; and prepare and disseminate information
on indigenous issues.29 The Forum, which has met once a year since May 2002, is
open to delegates from indigenous organizations and NGOs working on indige-
nous issues. The Forum has organized the preparation of numerous reports to
inform its deliberations including reports on the role of customary law in securing
protection of traditional knowledge30 and a report in 2014 on the Doctrine of
Discovery and its impact on indigenous rights.31 These reports demonstrate the
important place customary law continues to hold for the identification, protection
and realization of Indigenous peoples’ rights to their lands, resources, culture
heritage and traditional knowledge. The latter report, for example, highlights the
need for intercultural justice to permeate state courts, arguing that:
56 Where custom is the law

there is a need for indigenous perspectives in judicial decision-making,

through the appointment of indigenous justices and the maintenance, support
and development of indigenous courts with jurisdiction to make decisions in
accordance with indigenous laws, cultures and international human rights
standards.32

In 2007 the Human Rights Council established the Expert Mechanism on the
Rights of Indigenous Peoples. The Expert Mechanism is made up of five inde-
pendent experts on the rights of Indigenous peoples appointed by the Human
Rights Council, which is to give due regard to experts of indigenous origin as well
as to gender balance and geographic representation. At the request of the Council
the Expert Mechanism is preparing a study on restorative justice and indigenous
juridical systems, particularly as they relate to achieving peace and reconciliation,
including an examination of access to justice related to indigenous women, chil-
dren and youth, and persons with disabilities.33 This study will be submitted to the
Council’s session in September 2014.
UN bodies have also come together in a collaborative manner to establish the
UN–Indigenous Peoples’ Partnership (UNIPP), a joint rights and results based
initiative between the International Labour Organization (ILO), the UN Office of
the High Commissioner for Human Rights (OHCHR), the United Nations

DRAFT
Development Programme (UNDP), the UN Children’s Fund (UNICEF) and the
UN Population Fund (UNFPA). The purpose of the initiative is to facilitate the
implementation of international standards on Indigenous peoples, in particular the
United Nations Declaration on the Rights of Indigenous Peoples. UNIPP is
governed by a policy board made up of indigenous experts and representatives of
the collaborating UN organizations. UNIPP’s strategic framework for 2011–2015
declares its aim as being to contribute to the effective implementation of recom-
mendations and studies undertaken by the three UN mechanisms dealing with
Indigenous peoples, complemented by General Comments and country specific
Observations and Recommendations of UN Human Rights Treaty Bodies, the
Human Rights Council’s Universal Periodic Review (UPR) process, various UN
Special Procedures mandates and ILO Supervisory Mechanisms.34
For the period 2011–2015 UNIPP is concentrating its efforts in Africa, Asia-
Pacific and Latin America. In Africa UNIPP is focusing on building awareness and
understanding of Indigenous peoples as well as on building support for the adop-
tion of legal and policy frameworks ‘that are conducive to the realization of the
rights of Indigenous peoples in Africa’.35 In the Asia-Pacific region UNIPP is
supporting regional policy dialogues on indigenous rights and promoting a
human-rights based approach to development.36 In Latin America UNIPP is focus-
ing on promoting effective participative and consultative mechanisms that support
the participation of women and youth, with a particular focus on the extractive
industries and conflict prevention.37 At the outset, UNIPP is focusing its work on
a small group of countries that offer opportunities for potentially rapid advances in
the recognition and protection of indigenous rights.These are the Central African
Republic, the first African country to ratify ILO Convention 169; Cameroon,
 Where custom is the law 57

which is considered to have the conditions for the development of draft national
legislation; the Republic of Congo, which has adopted legislation on Indigenous
peoples; Bolivia, which has ratified ILO Convention 169 adopted the innovative
‘ley de la Madre Tierra’ (Law of Mother Earth)38 and extensive recognition of
indigenous rights in the national constitution; Nicaragua a party to Convention
169, was the respondent in the Inter-American Court of Human Rights decision
in the Saramaka case, which requires state action to secure Indigenous peoples’ land
rights; and Nepal, the first Asian country to ratify Convention 169.
In 2014 The United Nations convened a World Conference on Indigenous
Peoples in the form of a high-level plenary meeting of the 69th session of the UN
General Assembly. Supported by the UN Permanent Forum on Indigenous Issues,
the aim of the Conference was to share perspectives and best practices on the real-
ization of the rights of Indigenous peoples and to pursue the objectives of the
United Nations Declaration on the Rights of Indigenous Peoples.39 In the months
immediately preceding the Conference relations between the General Assembly
and Indigenous peoples deteriorated following the decision by the Assembly
President, Ambassador John Ashe, not to reappoint Indigenous co-facilitator for
the organization of the conference. The President of the 66th session of the
General Assembly had appointed Mr. John B. Henriksen, the international repre-
sentative of the Sami Parliament of Norway and H. E. Luis Alfonso de Alba,

DRAFT
Permanent Representative of Mexico, to facilitate the modalities and arrangements
for the World Conference, including the substantive participation of Indigenous
peoples.40 Ambassador Ashe explained his actions by reference to the opposition of
Russia, China, India, Malaysia and Indonesia who argued that the conference
should be run by UN state members, particularly as it was being held as a high-
level meeting of the General Assembly.41 The conflict seriously undermined the
process, with some Indigenous peoples declaring their intention not to participate
in the Conference and calling for it to be delayed or cancelled altogether.42 The
conflict also demonstrates the intention to resist the growing recognition and
power of Indigenous peoples in international forums and in the development of
international law.

Constitutional recognition of customary law

Constitutional recognition of Indigenous peoples’ rights to their legal regimes and
to autonomy has been on the rise since the early 1990s. In a study of national
constitutions from 190 countries Cuskelly found at least 115 to have provisions
relevant to recognition of customary law.43 Specific forms of recognition include:
definition of customary law;44 establishment of procedures for proof of customary
law;45 recognition of customary law as forming part of national law;46 recognition
of traditional authorities and traditional practices for their establishment and/or
election;47 declaration of rights to autonomy and self-governance;48 guaranteeing,
promoting and/or recognizing rights to culture and/or cultural integrity;49
establishment of requirements regarding application of customary law by the
courts;50 establishment or maintenance of traditional or local courts;51 recognition
58 Where custom is the law

of traditional territories and land as inalienable, imprescriptible and immune from

seizure;52 recognition of natural resource rights;53 requirements for courts to include
judges versed in customary law;54 creating advisory bodies or Councils of Chiefs
formed by traditional authorities to directly participate in decision making and/or
advise on national law and its effect on customary law;55 defining the relationship
between customary law and common law, constitutional law and/or national law;56
recognition of customary rules relating to marriage and family law issues; and
recognition of customary law which does not conflict with human rights.57
Recognition of customary law is frequently qualified by provisions limiting its
applicability where it conflicts with the constitution,58 national law59 and regula-
tions,60 human rights,61 in particular women’s rights,62 public order and morals,63
fundamental rights of the person64 or where repugnant to natural justice.65 The
scope of recognition has in some cases been further limited by temporal restric-
tions. Namibia, for example, recognizes ‘all customary law in force on the date the
Constitution was adopted’.66 Restrictions of this nature would appear to freeze
customary law at a specified date, potentially undermining its dynamic nature and
the right of Indigenous peoples to continue to develop it. In contrast, Malawi gives
recognition to ‘customary law in force on the applicable date’ thereby promoting
the living law as opposed to some fossilized version of the law.67
Despite many national constitutions giving direct or indirect recognition to

DRAFT
customary law only seven make any attempt at definition. The Constitutions of
Ghana (1992) and Sierra Leone (1991), in a somewhat circular manner, provide
that customary law is to be defined by recourse to ‘the rules of law, which by
custom are applicable to particular communities’.68 The Constitution of Zimbabwe
(1979) distinguishes ‘African customary law’, which it defines as ‘the tribal law and
custom of Africans of a particular tribe’.69 Requirements for legislative or judicial
recognition of custom are set out in the Constitution of Samoa.70 The Constitution
of Fiji (1997) obliges the parliament to take action to recognize customary law,71
raising a question as to whether customary law maintains its validity in the face of
legislative inaction. In the Marshall Islands customary law is defined as including
‘any Act declaring the customary law’.72 While, Section 154 of the Constitution of
Lesotho (1996) recognizes customary law ‘subject to any modification or other
provision made in respect thereof by any Act of Parliament’.73 A number of consti-
tutions limit recognition of customary law to those customs and/or usages, which
have the ‘force of law’ in their respective territories.74 Determining the point at
which a custom acquires the ‘force of law’ is of much importance for its wider
recognition and application, and is closely linked to issues of proof of customary
law. The question as to whether a custom has obtained the ‘force of law’ may be
variously interpreted depending upon whether it is the community, the courts or
the legislature, which has the power to identify when a custom becomes law.
In South Africa a series of cases have made it clear that the status of customary law
is to be determined by the constitution not by the common law. The courts are,
according to Bennett, now conscious of the need to free themselves from ‘common-
law preconceptions when analyzing’ customary law.75 This position is made clear in
Alexkor Ltd & Another v. Richtersveld Community & Others,76 where the court held, that
 Where custom is the law 59

[w]hile in the past indigenous law was seen through the common law lens, it
must now be seen as an integral part of our law. Like all law it depends for its
ultimate force and validity on the Constitution. Its validity must now be deter-
mined by reference not to common law, but to the Constitution.77

South African courts have not only revised the status of customary law vis-à-vis
common law, they have embraced traditional legal principles to guide constitu-
tional interpretation. Writing in his personal capacity, Judge Albie Sachs of the
constitutional court asks how the future of customary law is envisaged in South
Africa’s new constitutional democracy. He answers:

Here I think it is vital that we focus not on this particular institution or those
special rules but on the core values and principles of traditional African law …
These deep values, which derive from centuries-old African experiences and
are of significance for all of us, whatever our origin, have not changed, even
though the institutional arrangements made for realizing them in practice have
altered substantially.We need to distinguish between these deep enduring and
foundational principles, which affirm orderly social cohesion and the more
ephemeral judicial institutions and legal rules, which ensure meaningful day-to-
day law enforcement in the concrete circumstances of the time.78

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Sachs sees customary law as one of a number of sources of law that must serve
together to secure the well-being of all sectors of society within the framework of
a new constitutional order. This offers both opportunities and challenges for
customary legal orders. On the one hand it ensures significant possibilities for the
exercise of autonomy by Indigenous peoples and local communities; on the other
hand it places constraints on the exercise of such authority where it would conflict
with fundamental human rights under the constitution. Sachs alludes to the
dynamism and flexibility of customary law, proposing that its future lies in its abil-
ity to align community values with those of the constitution. In his words:

The strength of customary law lay in its original connection with the lives and
culture of the people. If customary law is to be revitalized it must accordingly
link itself up to the new energies of a people in transition and be sensitive to
the real nuances and contradictions of daily life. Its anchor must be the sense
of justice and fairness of a community and its star the broad values of the
Constitution.79

The key principle from African traditional law to which Sachs alluded is the prin-
ciple of ubuntu, which is increasingly referred to and relied upon in South African
jurisprudence.80 Justice Mokgoro defined the scope of ubuntu in the case of S v.
Makwanyane,81 a case dealing with the death penalty, as follows:

Generally, ubuntu translates as humaneness. In its most fundamental sense, it

translates as personhood and morality. Metaphorically, it expresses itself in umuntu
60 Where custom is the law

ngumuntu ngabantu, describing the significance of group solidarity on survival

issues so central to the survival of communities. While it envelops the key
values of group solidarity, compassion, respect, human dignity, conformity to
basic norms and collective unity, in its fundamental sense it denotes humanity
and morality. Its spirit emphasizes respect for human dignity, marking a shift
from confrontation to conciliation.82

Stating that ‘human dignity is generally considered the fountain of all rights’, Justice
Mokgoro highlights the preamble of the International Covenant on Civil and
Political Rights where it makes references to ‘the inherent dignity of all members
of the human family’ and concludes ‘human rights derive from the inherent dignity
of the human person’.83 This she says ‘in my view, is not different from what the
spirit of ubuntu embraces’.84
The constitutional court has applied the principle of ubuntu to a wide variety of
cases. In the case of Port Elizabeth Municipality v. Various Occupiers85 which involved
actions to dislodge squatters and destroy their homes, Justice Sachs applied the
concept of ubuntu saying:

In a society founded on human dignity, equality and freedom it cannot be

presupposed that the greatest good for the many can be achieved at the cost

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of intolerable hardship for the few, particularly if by a reasonable application
of judicial and administrative statecraft such human distress could be avoided.86

The willingness of the South African courts to draw upon the underlying princi-
ples of traditional African law bodes well for the development of a legal system
based on legal pluralism as it develops towards a system of intercultural justice and
equity.The South African courts, have however, been more restrained in develop-
ing customary law through their decisions and in embracing the concept of Native
Title based on customary law, issues which will be returned to in later chapters.
While the Constitution of South Africa elevates customary law to sit alongside
common law as a source of law, the 1975 Constitution of Papua New Guinea, has
been described as, representing the ‘transmutation of the legal system from one
clearly rooted within the common law tradition to one which is rooted firmly in
the customs, values and traditions of the people’.87 The Constitution of Papua New
Guinea provides the most expansive definition of customary law of any national
constitution describing it as:

the customs and usages of indigenous inhabitants of the country existing in

relation to the matter in question at the time when and the place in relation
to which the matter arises, regardless of whether or not the custom or usage
has existed from time immemorial.88

This definition escapes the English common law constraints on the recognition of
custom and ensures that it will continue to develop and form part of the legal
system.89 In so doing it recognizes and embraces the dynamic nature of customary
 Where custom is the law 61

law and elevates it in the hierarchy of laws.While the Constitution of Papua New
Guinea recognizes the continuing applicability of British common law it sub-
ordinates it to customary law.90 This reversal of fortune establishes customary law as
the superior source of law. Despite the categorization of customary law as superior
to common law the courts of Papua New Guinea continued, until relatively
recently, to rely on common law as the favoured source for judicial decision
making. The application of customary law is also restricted to the extent that it
conflicts with the constitution, statute, or is repugnant to the general principles of
humanity.91
Increasing recognition of customary law brings with it a need for development
of functional interfaces between customary and positive legal regimes. The
challenges associated with building functional links between national law and
customary law are undoubtedly more pronounced in countries with high cultural
diversity. In Papua New Guinea, with over 700 language groups, the challenges are
most acute. Goldring, referring to language groups, claims:

if each of these does not have a totally separate body of rules, there are differ-
ences between the customs of each group, some of which may be significant;
and if in some groups the customs are a fairly settled body of norms, in others
they are flexible to the extent that the way in which disputes arising out of

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similar fact situations will be determined in different ways according to a vari-
ety of circumstances.92

Given this diversity the application in Papua New Guinea of ‘Papua New Guinea
ways’ through the empowerment of village courts and subordination of common
law to custom is both a challenging and a ‘fascinating’ practical experience in the
operation of customary law.93 Decentralization has been a key tool for enabling the
recognition and functioning of a national legal order capable of recognizing and
empowering local legal diversity. For decentralization to be successful, sufficient
recognition must be given to the wards and clans who are ‘the real masters of
indigenous laws’.94 Establishing functional interfaces between local government
decision-making authorities and customary authorities has proved more effective
where there is respect for Indigenous peoples’ rights to self-governance.95 Despite
its positive approach to customary law, Papua New Guinea’s constitution has been
criticized for sweeping aside many good customs, a result due in part to a lack of
preparedness of customary authorities to champion their interests before the
national authorities.96
In Canada, the 1982 Constitutional Act has recognized and affirmed the exist-
ing aboriginal and treaty rights of the aboriginal peoples of Canada.97 This has had
a significant effect on the recognition of Indigenous peoples’ inherent rights to self-
government, including rights to administration and enforcement of aboriginal
courts and laws.98 It has also served as a catalyst for the settlement with Indigenous
peoples of more than a dozen ‘significant agreements’ and scores of minor settle-
ments on land claims and self-governance since the mid 1970s.99 Of these the
Nisga’a Agreement of British Colombia goes furthest, creating constitutionally
62 Where custom is the law

recognized rights of self-government that cannot be overridden by ordinary legis-

lation.100 Borrows notes that the Nisga’a agreement required Nisga’a to accept
restrictions on their rights to the free use and disposition of their lands.101 It also
required them to accept their land agreement as full and final resolution of any
other outstanding territorial claims they might have had.Although the jurisdiction
granted to the Nisga’a is not as wide as that granted to the Navajo in the United
States, their rights are more secure as they cannot be overturned by a mere act of
parliament, as Congress is free to do in the case of First Nations rights in the
United States.102
A large majority of the countries party to ILO Convention 169 come from
Latin America. During the 1990s many countries of the region ratified the
Convention and modified or adopted new constitutions or national laws recogniz-
ing Indigenous peoples’ land and resource rights, as well as their rights to their
customs and institutions.An important element of these new constitutions was the
shift in focus from one of assimilation towards recognition of the pluricultural and
multi-ethnic nature of the state. The experience of countries of the Andean
Community is particularly interesting.103 The Colombian Constitution of 1991
grants Indigenous peoples wide-ranging powers to exercise autonomy in their
territories, subject to the constitution and national law.This includes rights to exer-
cise jurisdictional functions in accordance with their own norms and procedures;104

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administer and govern their territories;105 and to be governed by their own author-
ities and administer their interests, in accordance with their own customs.106 The
Peruvian Constitution of 1993 gives legal recognition to campesino and native
communities and entitles them, subject to law, to exercise autonomy with regard
to their organization, economy, administration, communal work and in the free
disposition of their territories.107 They are also entitled to exercise judicial functions
within their territories in accordance with their customary laws, as long as they do
not violate the fundamental rights of the person.108
Some Constitutions have gone beyond merely recognizing Indigenous peoples’
rights to their own legal regimes and ways of life and have begun to incorporate
aspects of Indigenous cosmovision and legal principles. A case in point is Ecuador
which in 2008 adopted the first national constitution to recognize the rights of
Pachamama (Mother Earth). Inspired by Indigenous peoples’ relationship with the
Earth, the constitution in Article 71 provides that:

Nature, or Pacha Mama, where life is reproduced and occurs, has the right to
integral respect for its existence and for the maintenance and regeneration of
its life cycles, structure, functions and evolutionary processes.109

The Ecuadorian constitution also recognizes Nature’s rights to restoration apart

from any obligations to compensate individuals and communities dependent on
affected natural systems.110 It obliges the state to take preventative measures to
control activities that might lead to the extinction of species and the destruction of
ecosystems and the permanent alteration of natural cycles.111 The Ecuadorian
constitution embraces the Quechua traditional concept of sumac kawsay (right
 Where custom is the law 63

living) or buen vivir to give it its Spanish name,112 which serves as a guiding force
towards alternative development models conducive to protection of the human,
ethical and holistic dimension of human relationships with their own history and
their natural surroundings.113 The concept of buen vivir is difficult to translate into
English; according to Gudynas:

It includes the classical ideas of quality of life, but with the specific idea that
well-being is only possible within a community. Furthermore, in most
approaches the community concept is understood in an expanded sense, to
include Nature. BuenVivir therefore embraces the broad notion of well-being
and cohabitation with others and Nature. In this regard, the concept is also
plural, as there are many different interpretations depending on cultural,
historical and ecological setting.114

The Constitution of Ecuador empowers Indigenous peoples’ own authorities to

exercise judicial functions, applying their own laws and procedures for the solution
of internal conflicts in accordance with their customs and customary laws, to the
extent that this does not conflict with the constitution and national law.115 Perhaps
most importantly, the Ecuadorian constitution gives special recognition to the need
to protect Indigenous peoples living in voluntary isolation and prohibits all extrac-

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tive activities in their traditional territories. Chapter 4 of the constitution provides:

The territories of the peoples living in voluntary isolation are an irreducible

and intangible ancestral possession and all forms of extractive activities shall be
forbidden there.The State shall adopt measures to guarantee their lives, enforce
respect for self-determination and the will to remain in isolation and to ensure
observance of their rights.The violation of these rights shall constitute a crime
of ethnocide, which shall be classified as such by law.116

The recognition of rights of Mother Nature and buen vivir are not confined to
Ecuador alone; the Bolivian Constitution of 2009 also incorporates the concept of
buen vivir.
The Bolivian Constitution of 2009 is of particular interest, having been adopted
following the coming to power of Evo Morales, the first indigenous president in
the country’s history. Article 2 of the constitution recognizes the pre-colonial
historical presence of indigenous farmer nations and people and their ancestral
domain over their territories. It also guarantees their rights to self-determination
within the framework of the state, and defines this to include their right to auton-
omy, to self-government, to their culture, to the recognition of their institutions
and to the consolidation of their territorial entities.Article 2 conditions exercise of
these rights on conformance with the constitution and the law. Bolivia’s previous
constitution (1967), as amended up to 2004, recognized the multicultural and
pluricultural nature of the state and specifically recognized the rights of Indigenous
peoples to apply their own laws as an alternative form of dispute resolution, subject
to compliance with the constitution and national laws.117 The present constitution
64 Where custom is the law

goes much further, restating the status of Indigenous peoples’ legal regimes in the
national legal system. The constitution itself includes precepts from indigenous
customary law:‘ama qhilla, ama llulla, ama suwa’ (‘don’t be lazy, don’t lie, don’t steal’),
which implies the obligations to respect others and their properties, hard work, and
responsibility to the community. The constitution recognizes a long list of rights
specific to Indigenous peoples, including rights to exercise their political, legal and
economic systems in accordance with their cosmovision; to be consulted on
legislative or administrative measures that may affect them; and to prior good faith
consultations regarding the exploitation of non-renewable natural resources.118 The
constitution places explicit limits on the jurisdiction of community justice, restrict-
ing it to matters affecting indigenous communities.119 Article 410 of the
constitution places customary law on a par with national law and as superior to
executive decrees, regulations and other resolutions.The constitution requires that
‘negotiation, subscription and ratification of international relations’ is carried out
with due respect for indigenous rights.120 The constitution also requires that consul-
tations regarding decisions that may affect Indigenous peoples’ environment be
carried out with respect for indigenous norms and procedures.121 Article 399
recognizes Indigenous peoples’ rights to prior informed consultation and to partic-
ipation in the benefits associated with exploitation of non-renewable resources
located in their traditional territories. It also recognizes their rights to use their

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own norms and forms of representation to define their development in accordance
with their culture and harmonic relation with nature.122 According to Article 389,
rights to exploit and manage forests within indigenous territories is vested in
Indigenous peoples and campesino communities in accordance with the law.
In 2010 Bolivia adopted the ‘ley de la Los Derechos de la Madre Tierra’ (Law
of the Rights of Mother Earth).123 In 2012 this was complimented by the adoption
of Law 300, a framework law for Mother Earth and development for Bien Vivir
(right living)124 which promotes a vision of development based on cultural values
as an alternative for capitalism.125 The law is premised on the compatibility and
complementarity of rights and duties and the interdependence of the:

• rights of Mother Earth as a subject of collective public interest;

• collective and individual rights of Indigenous peoples and nations, native
campesinos, intercultural communities and Afro-Bolivians;
• fundamental economic, civil, political, social, economic and cultural rights of
the Bolivian people to Vivir Bien through integral development;
• the rights of the urban and rural population to live in a just, equitable and soli-
darity-based society without material, social or spiritual poverty; as well as its
articulation in the obligations of the pluri-national Bolivian state and the
duties of the society and individuals.126

The Ecuadorian and Bolivian constitutions and the ‘ley de Madre Tierra’ of
Bolivia are good examples of intercultural law making in practice. Enshrining
fundamental principles of customary law within the constitution and national law
provides clear guidance for the courts on the extent to which traditional values
 Where custom is the law 65

must be taken into account in securing individual and collective rights. This is
particularly important in civil law systems where the judiciary is unlikely to find
and make law as easily as their common law brethren are wont to do.The expe-
rience with the incorporation of the principle of ubuntu into South African
juridical practice, is a clear example of how the courts can rely on aspects of
customary law to guide decision making. Recognizing principles of customary
law in national law is a necessary step, securing its faithful implementation is
another thing altogether.
Despite the obvious good intentions of politicians in Ecuador, to secure
Indigenous peoples’ rights at time of adoption of their ground-breaking national
constitution, the dream of a new era of solidarity with Indigenous peoples is now
starting to unravel. In August 2013 the President withdrew his support for an
initiative designed to prevent the exploration and exploitation of hydrocarbons
in the Yasuní rainforest, the most biologically diverse habitat in the western
hemisphere.127 One hectare of the national park contains more species of trees
than all of North America, but hidden beneath this Garden of Eden lies billions
of dollars of oil.128 The Yasuní–ITT Initiative, which sought to retain the oil in
the ground, is well and truly buried and with it the lone exception to the relent-
less expansion of hydrocarbon projects into the most remote tracts of the
Amazon. Opening the park to drilling not only threatens the pristine environ-

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ment but also puts in danger the lives and cultures of two groups of the Hourani
Indigenous people living in voluntary isolation.129 Those opposing the president’s
decision have been dealt with harshly; this has included the dissolution of
Fundacion Pachamama, an organization working to protect indigenous rights
and environmental conservation.130 Bolivia has also had its problems and in 2011
the government of Evo Morales was forced to back down on plans to build a
road through the protected lands of the Indigenous peoples of the Territorio
Indígena y Parque Nacional Isiboro Sécure (TIPNIS). A constitutional challenge
in 2012 to the government’s proposals to hold a consultation with Indigenous
peoples failed131 and there have been serious questions regarding the subsequent
consultation process, with the organization Somos Sur raising doubts about its
nature and legitimacy.132 The problems facing Indigenous peoples in Ecuador and
Bolivia are replicated in many countries around the world. An indicative sample
of cases involving threats to Indigenous peoples in March of 2014, when this
book was going to print, include:

• In Venezuela upwards of three thousand miners, many of them foreign and

armed, were overrunning an area along the Upper Caura river, which the
government had long ago agreed to set aside for the Sanema and Ye’kwana
Indigenous peoples.133
• Peru’s Ministry of Energy and Mines formally approved the Camisea gas
project’s expansion plans within the Kugapakori, Nahua and Nanti Reserve
after the Ministry of Culture finally gave its endorsement of the project.This
threatens the lives and traditional territories of some of the world’s last
Indigenous peoples living in voluntary isolation.134
66 Where custom is the law

• The Kenyan government has sent Kenya Forest Service guards, with police
support, to Embobut Forest in the Cherangany Hills to forcibly and illegally
evict thousands of Sengwer Indigenous people from their ancestral forest lands
and burn their homes and belongings to the ground.135
• In Ethiopia the government has forcibly resettled indigenous communities
from land earmarked for commercial agricultural development, rendering
them food insecure and fearful for their survival.136
• In Brasil the Belo Monte Dam, which will be the world’s third largest dam
nears 50 per cent of completion amid continuing conflict with the region’s
Indigenous peoples, fearful for their lands and livelihoods.137
• In Sarawak in Borneo the Indigenous Penan people blocking roads to the
construction site for Murum Dam have been subject to violent attacks. The
dam will flood 24,500 hectares of native land, forcing the resettlement of seven
indigenous communities.138

The forces threatening realization of Indigenous peoples’ rights are indeed multi-
ple. Securing their rights requires effective enforcement of their territorial,
environmental, cultural and economic rights, as well as their rights to participation
in decision making and to consultation prior to the granting of licences for
resource extraction.Where these are not secured the fine words of states in inter-

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national forums and the value of constitutional protection are likely to have a
hollow ring. A key factor in securing these rights is the recognition of Indigneous
peoples’ own legal regimes and institutions and empowerment to regulate and
ensure compliance with tribal law.

Tribal courts and restorative justice

States have adopted various approaches to recognition of Indigenous peoples’ legal
regimes, judicial authorities and conflict resolution procedures. Indigenous people
have also taken to securing recognition and where possible the extension of their
jurisdiction. At the highest level, explicit state recognition has been given to indige-
nous jurisdiction over defined territorial areas and/or over defined persons or groups
of persons. In the United States First Nations Tribal courts exercise extensive juris-
diction over civil and criminal matters.139 This jurisdiction had been considered
territorial, however, in the 1978 case of Oliphant v. Suquamish Indian Tribe140 the US
Supreme Court held that tribes, by submitting to the ‘overriding sovereignty’ of the
United States in return for protection, had, except to the extent permitted by
Congress, given up their power to try non-Indian citizens.141 This marked a shift from
traditional notions of territorial jurisdiction to jurisdiction solely over tribal
members. Dussais argues that the Court utilized the ‘domestic dependent nation’
status of First Nations in the United States as the basis for curtailing their tribal
authority.142 This is a departure from traditionally recognized territorial principles of
sovereignty in respect of criminal jurisdiction.143 No one would for example contend
that a foreigner visiting the US cannot be tried for criminal actions; federal and state
laws are routinely applied to foreigners.144 The Supreme Court in Oliphant, and in a
 Where custom is the law 67

series of cases dealing with zoning of land, has undermined the scope of First
Nations’ rights to self-determination by negating their geographical-based sover-
eignty and replacing it with membership-based sovereignty.145 Interestingly, Congress
restored tribal authority to try non-members for criminal acts carried out on their
territories, demonstrating the conservative nature of the court and its failure to accept
the growing recognition and scope of Indigenous jurisdiction.146
Preparedness to compromise on the strict adherence to customary law and to
adopt the form and substance of adjudication necessary to maintain at least a
modicum of tribal jurisdiction has been a crucial part of Indigenous peoples’ strug-
gle for self-determination. First Nations in the United States have designed their
tribal courts in a manner reflective of the state’s judicial system. This has been
described as part of a strategy for protection of their legal independence.147 In the
words of former Chief Justice Robert Yazzie of the Navajo Supreme Court:

[t]he [courts of the Navajo Nation] were created out of a fear of a State take-
over of criminal and civil jurisdiction, and as a defense.They were designed to
look like justice of the peace courts with the hope that, with the appearance
of The Law Way, the state would leave us alone.148

As has been seen, the national courts did not in fact leave tribal courts systems

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alone and the US Supreme Court has consistently sought to curtail the rights of
First Nations’ tribal authority.This does not bode well for the expansion of tribal
law, and there is a clear need to re-educate the judiciary to be aware of indigenous
rights under international law and the obligation to respect and help enforce their
customary laws as appropriate. While the Navajo court system resembles the state
system in its structure, its underlying ethos is firmly grounded in customary law
principles149 and notions of restorative justice rather than the adversarial ‘all or
nothing’ system equated with the Anglo-American judicial system. Former Chief
Justice Yazzie sees the national legal system as obsessed with hierarchies, power and
‘the truth’, in which ‘the side that represents the truth as it is perceived by the court
wins, while the other side loses.“Truth” becomes a game where people attempt to
manipulate the process, or undermine it where it does not suit their advantage.’150
Yazzie takes the view that ‘any definition of “law” must contain an emotional
element: one of spirit and feelings’.151 In this he breaks with all notions of positive
law, which is not only devoid of spirit and feelings but also rejects the very notion
that morals should have any bearing upon legal interpretation. His solution, based
upon Navajo notions of justice, is what he calls a horizontal model, which may be
better portrayed as a circle:‘perfect, unbroken and a simile of unity and oneness’.152
What the Navajo call ‘peacemaking’ is ‘a system of relationships where there is no
need for force, coercion or control’.153 The process involves bringing the parties and
their relatives together in a relaxed atmosphere, without formal rules of procedure
or evidence in order to encourage people to ‘talk to each other to reach a consen-
sus’.154 Restorative justice has as its aim to return people to good relations, the issue
of ‘intent, causation, fault or negligence’ are of no concern to the victim who must,
he says, be compensated.155
68 Where custom is the law

Navajo justice is guided by three foundational Dine law principles, Hozho

(harmony), K’ei (clan system) and K’e (kinship solidarity).156 Probably the most
important doctrine in Navajo philosophy is Hozho,157 a term used interchangeably
with ‘harmony’ by the Navajo Nation courts.158 The doctrine is so all encompass-
ing and pervasive; even the Navajo Nation courts have refrained from attempting
to define it in their written decisions.159 Raymond Austin, a former justice on the
Navajo Nation Supreme Court, describes the parameters of hozho, which:

[e]ncompasses everything that Navajos consider positive and good; positive

characteristics that Navajos believe contribute to living life to the fullest.These
… include beauty, harmony, goodness, happiness, right social relations, good
health, and acquisition of knowledge.

At a higher level of philosophical complexity, or, more appropriately called the

universal level here, hozho describes a state (in the sense of condition) where every-
thing, tangible and intangible, is in its proper place and functioning well with
everything else, such that the condition produced can be described as peace,
harmony and balance (for lack of better English terms).160
Hozho is the state to which the Navajo courts seek to return families, the commu-
nity when disrupted by (anahoot’i’) disharmony. Navajo justice is also guided by the

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notion of distributive justice, which ‘abandons fault and adequate compensation …
in favour of assuring well-being for everyone in the community’.161 A form of
absolute liability, distributive justice takes the victim’s feelings and the perpetrators
capacity to pay into account in determining the level of compensation.162 Marrying
notions of distributive and restorative justice to a court based on the vertical model
led to the establishment in 1982 of the Navajo Peacemaker Court.163 The court
incorporates what former Chief Justice Yazzie refers to as Navajo common law, into
‘modern legal institutions’ in a manner that allows Peacemakers (who guide the
process) to ‘apply the values of spiritual teachings to bond disputants together and
restore them to good relations’.164 In so doing, the Navajo have transcended the limits
of a judicial system adopted to defend their rights to self-determination by shifting
its focus to reflect their ‘Life Way’.165 This is a vivid demonstration of the dynamic
nature of customary legal regimes and their capacity to adopt and adapt institutional
and procedural systems to accommodate their living laws and cosmovision. Former
Navajo Nation Supreme Court Justice Austin considers the Navajo Way fundamen-
tal for securing Navajo sovereign status. In his words:

Traditional Navajo ways, including philosophy, language, customs, traditions

and sense of place, must significantly affect all aspects of government for the
Navajo Nation to maintain its distinct group character, continue its culture,
develop a culturally compatible economy, and maintain its sovereign Indian
nation status.166

The benefits from the retention and application of tribal customs and traditions in
governance is the exercise of effective ‘sovereignty, which is integral to preserving
 Where custom is the law 69

the distinct group character and independent Indian nationhood’. In this context
‘distinct’ refers to the use of customary laws to distinguish the Navajo law from the
laws of the United States and individual states.167
In Latin America, Indigenous peoples are widely recognized as having ‘special
jurisdiction’ enabling them to apply their own customary laws to the regulation of
their internal affairs.168 This special jurisdiction creates ambiguous overlapping juris-
dictions between national law and customary laws that were already the de facto law
for many communities.While, on the face of it, Indigenous peoples have a signifi-
cant level of autonomy, a lack of implementing regulation in most countries makes
the boundaries of indigenous autonomy extremely porous. In Peru, for example,
judicial authorities have until very recently, had little, if any, contact with Indigenous
peoples with a view to examining the interfaces and boundaries between their
customary laws and jurisdiction and that of the formal judicial system. In Bolivia,
extensive constitutional recognition of Indigenous peoples’ rights and the adoption
of national legislation implementing the United Nations Declaration on the Rights
of Indigenous Peoples have yet to translate into effective judicial recognition and
protection of Indigenous rights to their laws and autonomy.
In Colombia, the situation has been markedly different and the judicial system
has been increasingly active with the constitutional court in particular taking a
number of key decisions defending Indigenous rights based on customary law.169 In

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1993 the Colombian Constitutional Court held that the exploitation of natural
resources on the territories of Indigenous peoples must be carried out without
impairment of the cultural, social and economic integrity of indigenous commu-
nities.170 It also held that in making decisions regarding such exploitation, the
government must facilitate participation of relevant indigenous communities.171
Thanks to its progressive approach the rights set out in the constitution have not
remained a vague expression of good intentions but have been applied to specific
cases where Indigenous peoples’ rights have been breached.172 This has helped to
build the awareness among Indigenous peoples of their rights. The Court’s delib-
erations have been helped by the organization of in situ hearings, the use of field
case studies and reliance on the testimonies of experts in the fields of anthropol-
ogy, biology, geology, etc. In one of its most important cases, decision T-380/93, a
case involving the illegal felling of timber by a private company MADARIEN in
the territory of the Embera-Katio of Chajeradó, the court found an indigenous
community to be, in itself, the holder of fundamental rights. These rights are
grounded in Articles 1, 7 and 8 of the constitution, which recognize the pluralist
nature of the state and its obligation to protect the country’s rich cultural diversity.
The court also found that personal rights of members of the indigenous commu-
nity were largely realized through the group.173 The importance of the group’s own
decision-making practices, and by implication their laws is apparent in the courts
decision, where it holds, referring to Articles 1 and 7, that:

The defence of diversity cannot be carried out with a paternalist attitude, nor
be held victim by the actions of individual members of the community, when
it is the very community that may find its sphere of vital interests negatively
70 Where custom is the law

affected. For this reason the community must assume the protection of its own
rights and the defence against damage or threats that could lead to its
extinction.174

Perhaps the greatest impact of the constitutional court has been its insistence that
the state comply with international obligations to consult with Indigenous peoples
prior to granting rights for exploration and exploitation of resources on their terri-
tories as required by ILO Convention 169. In one of its most far-reaching
decisions, the court held that the right of the U’wa to prior consultation was a
fundamental right due to its importance for the protection of their cultural, social
and economic integrity.175 Merely informing the U’wa of the intention to explore
for natural resources in their territories was not enough, what was required is a
process undertaken in good faith providing Indigenous peoples with sufficient
information to make an informed decision on whether to approve or reject the
project.176 We will return to the issue of consultation and resource exploitation in
more detail in Chapter 6.
In some countries, such as Australia and Cambodia, Indigenous peoples’ laws are
acknowledged in practice but not in law. In Cambodia indigenous forms of dispute
resolution play an important role in local conflict resolution, without any formal
government recognition.177 In Australia there has been no statutory recognition of

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customary law despite the recommendations of the Australian Law Reform
Commission (ALRC),178 the law Reform Commission of Western Australia and
the Northern Territory Law Reform Commission. The courts have, however,
recognized the existence of native title based on subsisting customary law.
Recognition of native title, which will be addressed in detail in Chapter 5, has
revolutionized the recognition of Indigenous peoples’ land rights, but not always to
the good. Native title claims are important steps towards autonomy and self-deter-
mination. Despite the lack of official recognition of customary law, the approach
of the judiciary in the Northern Territory to cases of customary punishment has
led to the development of a kind of soft legal pluralism, where judges may take into
account the proposed punishment without formally condoning it.179 This is still a
long way from recognition and protection of Indigenous peoples’ rights to auton-
omy envisaged in the Declaration on the Rights of Indigenous Peoples; a level of
recognition Australia and other countries home to Indigenous peoples are obliged
to comply with under customary international law.
An extensive study among Indigenous peoples of North East Cambodia, carried
out by Backstrom et al. in 2007, found that although their regimes were not
formally recognized by the state, Indigneous peoples ‘overwhelmingly support their
traditional legal system and wish to keep practicing it’.180 The study by Backstrom
et al. describes highly developed conflict resolution practices that may be summa-
rized as follows: an aggrieved party commences the process by confronting the
‘defendant’, either directly or by engaging a kanong (investigator or mediator) to do
so.181 The defendant may also get a kanong to represent their interests. The role of
the kanong is to broker a settlement and reconciliation. If this is not possible then
the kanong informs an adjudicator in the case of the Jarai, Tampuen and Kachok
 Where custom is the law 71

peoples, while the Brao, Kreung and Kavet may allow the aggrieved party to select
one or more adjudicators or alternatively allow both parties to identify one adju-
dicator each. The parties are kept apart ‘to avoid conflict, violence or making the
problem worse’ while the kanong(s) and adjudicators travel back and forth as often
as necessary between the two sides, which may include elders and family members
depending on the gravity of the situation. Once responsibility has been ascertained
the issue turns to the question of restitution and compensation. For the Brao,
Kreung and Kavet the amount of the fine is established by the adjudicators and the
parties then negotiate to seek an agreed level of compensation a process that may
be assisted by the wider community.182 A key aspect of the dispute resolution
process is the search for consent of the parties to the conflict and of the elders
before making a final decision. In the words of Pa Dol villagers, cited in the study:

The arbitrators cannot make decisions based on what he wants or thinks; they
must seek consent from the two parties to the conflict and the elders, so that
the decision would be acceptable by both sides. In the judgment the adjudi-
cators have to think carefully and ensure justice and the fine should be
appropriate. They must ensure that the two parties have no revenge or anger
in the future and they can be friends again.183

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In contrast to Cambodia, in Sabah all courts apply customary law. At the lowest
level native courts, presided over by three members, normally ‘resident native chiefs
or head people’, have jurisdiction over personal law cases ‘between “native” and
“native”, and [subject to the approval of the District Officer] between “native” and
“non-native”.184 A layer above is the district native courts, presided over by the
district officer and two other members ‘appointed from among district chiefs or
native chiefs’.185 Above these are the native courts of appeal, again made up of a mix
of a judge and two other members (district or native chiefs). Legal representation
is not allowed in the native and native district courts and the majority of cases dealt
with relate to personal law and property rights grounded on customary law.186
There is concurrent jurisdiction between native and state courts on criminal issues
and native courts have, according to Roy, resisted transfer of criminal jurisdiction
to the state courts other than for grave offences such as rape and murder.187
In the Chittagong Hill Tracts in Bangladesh, customary, regional and national
law is applied concurrently.188 Although state courts have concurrent jurisdiction
over ‘indigenous justice administration’ this is rarely exercised and most cases are
resolved before the village karbari, who ‘usually sits with a council of influential
social leaders and other village elders – usually men’.189 Processes are, Roy says,
more akin to mediation and arbitration and the tendency is to try to bring about
‘reconciliation’ rather than trying to get to the truth.190 However, a more inquisi-
torial approach may be taken, where ‘there is strong community interest in getting
to the heart of the matter’.191 Issues that cannot be resolved by the karbari and his
council move on to be dealt with by the headman where they are tried in a simi-
lar fashion, though somewhat more formally.192 Evidence is almost always given
orally and a record of the case is only made in writing if it is going to go on appeal
72 Where custom is the law

to the circle chief.193 Where the circle chiefs’ courts record cases they keep infor-
mation of the parties to the proceedings the nature and basis of the claim,
supporting evidence, the decision and the grounds upon which it was made.194
Although an appeals process from the circle chiefs decisions has existed since 1989
Roy claims that:

the Indigenous peoples of the [Chittagong Hill Tracts] prefer to confine their
conflict resolution processes to indigenous institutional set-ups.This perhaps is
a clear indication that despite the increasing socio-economic plurality within
indigenous society, traditional indigenous integrity on personal law matters is
still strong.195

Roy identifies four reasons why Indigenous peoples in the Chittagong Hill Tracts
have not utilized the state appeals system, including: confidence in the chief ’s deci-
sions; the alien nature of the state courts; a culturally reinforced aversion to litigation,
which is regarded as socially demeaning; and, the complicated and costly nature of
the state litigation system.196 Further advantages are, he says: the flexible nature of
traditional court procedure; officials in the traditional courts are more readily conver-
sant with customary law; and there are higher possibilities of reconciliation. While
noting the dangers of bias in traditional courts, they are, he says, to be preferred and

DRAFT
the bias can, he argues, be overcome in ‘judicial review by invoking the legal princi-
pal of natural justice’.197 In a somewhat similar vein, an extensive study carried out by
Backstrom et al. found Indigenous peoples of North East Cambodia ‘overwhelmingly
support their traditional legal system and wish to keep practicing it’.198 Popular
support for customary justice systems may hide inherent bias and inequalities, espe-
cially for women confronting the bedrock of patriarchy underlying many Indigenous
legal regimes.199 In one case, for instance, a village court in Papua New Guinea
handed down a prison sentence to a woman for entering into a new relationship after
her husband had died, her immediate release was ordered by the National Court of
Appeal.200 It would be wrong, however, to view village courts as inherently discrim-
inatory. In his research of decision-making practices in a number of village courts
in Papua New Guinea, Goddard found women ‘confident and reasonably successful
disputants’ with a majority of decisions tending to be in their favour.201 Goddard
warns against the tendency to vilify village courts as mistreating women based on
questionable research arguing that the courts serve as ‘a community-level resource
which appears on … evidence [to] be increasingly useful to women’.202
Although diverse, Indigenous peoples’ judicial systems demonstrate significant
similarities in their practices and underlying concepts of fairness and purpose.They
appear to generate a strong sense of community loyalty and to hold widespread
legitimacy amongst the people who consider themselves bound by village and
tribal courts.The practice of restorative justice appears to survive into more formal
tribal court systems such as that of the Native American tribes, where it may be the
subject of more nuanced application. The widespread recognition of Indigenous
peoples’ jurisdiction to apply their own laws to conflict resolution in areas such as
land and resource rights, minor criminal matters and family law issues, supports the
 Where custom is the law 73

proposition that: (a) state practice demonstrates acceptance of the right of

Indigenous peoples to their customary laws; and (b) there is an obligation upon
states to give due respect and recognition to Indigenous peoples’ customary law in
order to secure their human rights. This supports a claim that these rights and
obligations have crystallized as principles of customary international law.

Where custom is the only law

Customary law is in many cases the only law Indigenous peoples, in particular
remote or isolated peoples, may ever know. Even within Indigenous peoples whose
societies are linked into the national legal system, many members of the commu-
nity may have little if any dealings with the national authorities and state laws,
while their leaders and educated youth interact more fully with the state and its
agents, moving between two legal worlds. Customary law may play its most impor-
tant role where other legal systems are inoperable or where countries are exiting
from periods of sustained political violence and undergoing rule of law
programmes. It has an important role to play in states with weak, corrupt or non-
existent governments, as in the case of Somalia following the effective abolition of
their government in 1991.203 The system subsisting in Somalia at that time has been
described as kritarchy, a term applying to legal and political systems that most

DRAFT
closely approximate the institutional structures of traditional societies based on
customary rather than statutory law.204 Although the picture presented to the
outside world by journalists was one of lawlessness,Van Notten claimed there was
in fact ‘an elaborate indigenous law system that “is basically sound”’, with:

hundreds if not thousands of mini-governments, each wholly independent of

the others. These governments operate on a basic set of principles, many of
which are harmonious with the concept of natural law. Indeed, but for a few
exceptions, the Somali nation is structured such that it comes very close to
what in philosophy might be called ‘the natural order of human beings.205

This justice system was based on property rights, with police and judges chosen on
an ad hoc basis from the extended families of the parties to a conflict.206 Crimes are
compensated rather than perpetrators punished, with re-education left up to fami-
lies.207 While whole families guarantee to compensate victims for criminal damage
to their property.208
In 2002 a workshop on the judicial system in Somaliland presented a picture of
a hybrid system in which, although shari’a law was recognized as the dominant law
regime, it was rarely observed, with judges leaning towards the application of
codified positive law drawn from the Anglo-Indian common law and Italian law.209
Participants, which included members of the legal profession and judiciary as well
as civil society organizations, agreed that in the absence of a strong central govern-
ment authority customary law was pervasive with judges feeling compelled to
tolerate it, ‘since to do otherwise may lead to confrontation or conflict and
undermine public safety’.210
74 Where custom is the law

Under xeer, responsibility is generally borne by the clan rather than the individ-
ual and the influence of clan decisions are such that courts may find themselves at
times merely rubber-stamping decisions made by tribal authorities.211 In some cases
courts may even find themselves having to relinquish jurisdiction in favour of
xeer.212 The courts may also be called upon to release offenders where mediation
under customary law has occurred.213 Some perceived weaknesses of xeer include
the distribution of fines and other payments among all members of the victim’s
extended family or jilib; possibility of pressure on victims to forego compensation
for the good of inter-clan relations; tendency not to condemn fraud; reluctance of
courts to provide remedy unless victims seek immediate redress; the law makes
clansmen virtual prisoners of their clan; insults may be treated as criminal breaches;
foreigners are only entitled to legal protection if taken under the protection of a
particular clansman and his jilib; and there is no centralized system for collation of
major verdicts as a source of jurisprudence.214
Women and the young are particularly vulnerable and xeer includes many prac-
tices that run counter to accepted international human rights standards.This includes
the practice of widow inheritance or dumaal (where a widow is forced to marry a
male relative of her deceased husband), higsiian (where a widower is given the right
to marry his deceased wife’s sister) and godobtir (the forced marriage of a girl into
another clan as part of a compensation payment or inter-clan peace settlement); plac-

DRAFT
ing victims of rape under significant pressure to marry the perpetrator; sanctioning
revenge and honour killings; denying women rights of inheritance; and denying basic
legal protections for children.215 Victims of sexual violence may be pressurized to
forfeit their legal rights under statutory law and shari’a following a settling of
accounts by relatives.216 Even where women do commence cases in the courts they
may find that elders petition judges to return the case to the customary level.217
The existence of customary laws that not only fail to prevent, but actively
promote activities that constitute breaches of the fundamental human rights to
equality, non-discrimination, to life and human dignity, amongst others, serves to
bring customary legal regimes into disrepute. Bringing about change, however,
poses many challenges, especially where the state is not in a position to ensure the
enforcement of human rights.
Despite its failings customary law is widely seen as having prevented Somalia
from falling into complete anarchy. A more recent study carried out by Vargas
Simojoki notes that Somali customary law (xeer):

represents an integral component of the Somali way of life and continues to

be the preferred and most used legal system in all Somali regions, applied in
up to 80–90 percent of disputes and criminal cases. Xeer is also regarded as
fundamental to maintaining social relations within clans. During the conflict
and its aftermath, traditional structures (xeer and the elders who regulate it)
gained elevated importance due to their ability to provide some level of secu-
rity. Today, the elders are regarded as the guarantors of peace and stability, and
xeer “the glue that prevents a collapse into anarchy”.218
 Where custom is the law 75

However, while xeer may have served to prevent anarchy, it does so at a heavy price
for the country’s forgotten minorities.219 Somalia’s four dominant clans, the Darod,
Hawiye and Dir (nomadic pastoralists) and the Rahanweyn (agro-pastoralists) regu-
late the application of xeer to the detriment of minority groups, including the ‘Bantu
(descendants of imported or runaway slaves and indigenous farmers); Occupational
groups (including Midgan (hunters and leatherworkers) Tumal (blacksmiths) Yirbo
(ritual specialists)); Benadiri (mercantile communities of Arab origin); and religious
minorities’.220 In a study carried out for Minority Rights Group International, Hill
lists serious human rights abuses suffered by the country’s minorities including:
exclusion from political participation and employment; limits on their access to
justice where abuse has been perpetrated against them or they stand accused of a
crime; denial of rights to development, education and sustainable livelihoods; and
restrictions on inter-marriage between majorities and minorities.221 Furthermore,
minority women suffer not only from national political processes and male social
attitudes, but also within their own communities.222 Minority women are also
reportedly subjected to systematic gender-based violence in camps for internally
displaced persons.The result is a tension between customary law and its recognition
as a fundamental tool for securing order and preventing total anarchy and its role as
a system of law utilized to subjugate both clan members, in particular women and
minority groups.What seems clear from the research to date is that without custom-

DRAFT
ary law there would be no order in Somalia.At the same time, customary law alone
cannot bring order in conflict situations fuelled by political and religious ideologies
inspired, promoted and financed by external forces. Furthermore customary law
may serve as a tool of oppression and has proved unable alone to secure peace and
human rights. It is still, however a key part of any solution.
In an interesting development, in 2003 a small group of traditional elders in
Toghdeer in Somaliland proposed a project to bring their customary law more into
line with shari’a and international human rights standards.223 This project,
supported by the Danish Refugee Council, was later extended to Awdal, Maroodi
Jeex, Sahel, Sool and Sanag, with each area adopting its own declaration on xeer,
which was then used as the basis for the adoption of a national declaration for
Somaliland in 2006.224 The project was replicated in Puntland, where local declara-
tions again led to the adoption of a National Declaration in 2009.225 Among the
issues dealt with in the declarations were:

• limiting communal responsibility in cases of revenge or intentional killing;

• protecting the right of widows to inherit according to shari’a principles;
• protecting the right of widows to marry men of their choice (eliminating the
practice of dumaal);
• increasing protection for vulnerable groups such as orphans, street-children,
persons with disabilities and internally displaced persons;
• formation of committees to resolve conflicts that threaten peace and security.226

In some areas the impact was immediate and startling.Vargas Simojoki reports, for
example, that within five months of the signing and dissemination of the Declaration
76 Where custom is the law

of the Toghdeer House of Aquils there was a 90 per cent reduction in murder cases,
and at least five cases of widows marrying men of their own choice had been
recorded.227 In cases of rape, however, there was still evidence of traditional elders
mediating cases rather than sending them forward to the formal justice system,228
demonstrating that the goodwill of the elders was not enough to ‘overcome broader
issues of gender and social discrimination deeply entrenched in Somali norms and
culture’.229 The project’s success, such as it was, was due primarily to the fact that it
was driven from within the community itself. In Vargas Simojoki’s words:

These elders – who represented both the interface with the state justice system
and the gatekeepers of access to justice at the customary level – were
supported and empowered with the hope of improving the operations of xeer
and offering better protection to vulnerable groups.Through this process, the
elders committed themselves to referring serious criminal acts to the courts,
thus breaking the cycle of impunity inherent in the functioning of xeer and
group compensation mechanisms. Critically, the impetus for revising custom-
ary law came from within the xeer membership rather from external actors.
Consequently, it was argued, the process of revision was more likely to be
regarded as legitimate and hence sustainable.230

DRAFT
As of 2011 the elders were still awaiting ratification of both National Declarations
by the government of Somalia and the country continues to be ruled by three
disjointed systems of law, statutory, shari’a and xeer.231
The diversity of legal regimes in Somalia, in which local variations of xeer
abound, mirrors to some extent the multiplicity of regimes seen in Papua New
Guinea. One of the key aspects of the Papua New Guinea approach to bringing
such legal diversity under a national framework has been the place given to
customary law, which is now constitutionally recognized as superior to the inher-
ited common law.232 It is a case of placing the local and traditional over the
inherited and imported law, with the constitution placed over both. For Somalia,
any future national legal framework will need to give due recognition and respect
to customary law. Building up from customary law rather than trying to impose
democracy from above may be the key to establishment of a functional national
legal order. Customary law alone cannot, however, bring peace to Somalia which
in 2014 grimly held on to its place at the head of Peoples under Threat index,
prepared by the Minority Rights Group International.233
Where customary is the only law, then promotion of human rights will be
dependent upon its uptake by Indigenous peoples’ own authorities. International
organizations, states and other bodies who seek to promote human rights in coun-
tries or areas where customary law is the only or the predominant law will need
to give due respect and recognition to such law and related conflict resolution and
other enforcement mechanisms. At the same time, commentators, Indigenous
peoples and all those interested in promoting customary law will need to overcome
a marked tendency to gloss over the inherent failings of customary law regimes, in
particular the aspects of such regimes that conflict with fundamental human rights.
4 In search of the living law

There are an estimated 350 million Indigenous people worldwide, with around
5,000 distinct peoples in more than 70 countries, speaking over 4,000 different
languages.1 The Secretariat to the United Nations Permanent Forum on
Indigenous Issues claims that it is ‘not unreasonable to assume that there are at least
as many legal systems’ as there are distinct Indigenous peoples.2 In most countries
where Indigenous peoples reside their customary laws and practices are given
direct or indirect recognition, which may range from formal constitutional recog-
nition to tolerance of customary practices that on the face of it run counter to

DRAFT
national law. For some peoples, such as those living in voluntary isolation in the
Amazon3 and other Indigenous peoples living in remote areas outside the reach of
national law, customary law is likely to be the only law they know. This is similar
to the situation in some post-conflict countries,4 failing states,5 and states with no
formal functioning government or juridical system as discussed in the previous
chapter.6 In such cases customary law may prove the preferred, if not the only,
system of law to which the populace can turn in their search for justice.7
Whether customary law is the sole applicable law or it forms part of a legally
pluralistic regime, its effective implementation will depend upon the identification
and enforcement of relevant customary norms and principles. This is the case in
village forums and in formal courts.The procedures for identifying the applicable
law may vary and the consequences of failing to secure acceptance of a specific
custom as applicable may be distinct, but the underlying principles are the same. In
some cases the relevant laws and principles will be well known to those who
submit themselves to customary jurisdiction and to the relevant customary and/or
state authorities responsible for their implementation. On occasion, however, there
will be differences of opinion as to the content of customary law and the validity
of its sources, which may include not only oral testimony but also written records
and codified versions of the law. Identifying the correct customary law in any
particular situation has the potential to turn into a complex and conflictive under-
taking. Indigenous peoples’ own authorities and legal regimes would seem the
most appropriate forum for identifying the relevant applicable law, however, even
here the issue is not without challenges. Matters become even more complicated
when customary law finds its way into state courts and alternative dispute resolu-
tion proceedings at the national and international level. In such cases the courts and
78 In search of the living law

dispute resolution mechanisms will require procedural guidelines to facilitate their

identification and appropriate application of custom. In common law jurisdictions
the courts themselves may develop such guidelines. Indigenous peoples’ own
procedural guidelines for the identification of customary laws and legal principles
would seem, however, the most appropriate place to start. Identifying applicable
law is one thing, applying it appropriately is quite another thing. To do so it is
necessary to understand the nature of customary law, its primary sources and the
objectives and modalities for its implementation in indigenous societies.To this end
courts applying customary law need to be informed as to its nature, import and the
manner in which it is traditionally applied, if they are to apply it correctly.
This chapter begins with a consideration of the traditional sources of custom-
ary law and legal principles. It then goes on to examine the role of customary law
in tribal courts jurisprudence before turning to the complex issues surrounding
proof, ascertainment and application of customary law in state courts. The chap-
ter concludes with discussion of emerging jurisprudence relating to the
identification of ‘living custom’ as experienced by Indigenous peoples in their
daily lives and its displacement of ‘official (codified) custom’ in forward looking
jurisdictions.

DRAFT
Sources of Indigenous peoples’ customary laws
Indigenous peoples’ customary legal systems are generally perceived to be dynamic,
largely oral in nature and focused on securing community harmony rather than
retribution. Being informal and primarily oral, customary law needs to be easily
memorable.8 It is not surprising therefore that the primary sources of custom are
to be found in the stories, songs and ceremonies of Indigenous peoples. In ancient
Ireland, poetry and ‘the just poets of the men of Erinn (Ireland)’ were among the
primary sources of customary law relied upon for the purposes of codification of
Early Irish law.9 The process of codification, carried out between AD 438 and 441
during the reign of King Laeghaire (Leary), required attention to ‘the judgements
and all the poetry (literature) of Erinn, and every law which prevailed amongst the
men of Erinn, through the law of nature, and the law of the seers, and in the judge-
ments of the island of Erinn, and in the poets’.10 Professor John Borrows, one of
the foremost scholars of indigenous law, claims that custom:

originates in the political, economic, spiritual and social values expressed

through the teachings and behaviour of knowledgeable and respected individ-
uals and elders.These principles are enunciated in the rich stories, ceremonies,
and traditions within First Nations. Stories express the law in Aboriginal
communities, since they represent the accumulated wisdom and experience of
First Nations conflict resolution.11

By way of example, he recounts how the Navajo courts in Re Certified Question II:
Navajo Nation v. McDonald 12 applied the story of the ‘Hero Twins’, to ascertain
whether their tribal chairman had a fiduciary obligation to the nation.13 The court’s
 In search of the living law 79

judgement describes the Navajo traditional concept of fiduciary trust of a leader

(naat’aanii), as found in the story, saying:

[a]fter the epic battles were fought by the Hero Twins, the Navajo people set
on the path of becoming a strong nation. It became necessary to elect
naat’aanii by consensus of the people. A naat’aanii was not a powerful politi-
cian nor was he a mighty chief.A naat’aanii was chosen based on his ability to
help the people survive and whatever authority he had was based upon that
ability and the trust placed in him by the people. If naat’aanii lost the trust of
his people, the people simply ceased to follow him or even listen to his
words.14

Based on its reading of customary law, as encapsulated in the story of the ‘Hero
Twins’ the Navajo court held that ‘[t]he Navajo Tribal Council can place a chair-
man or Vice Chairman on administrative leave if they have reasonable grounds to
believe that the official seriously breached his fiduciary trust to the Navajo
people’.15 It is interesting to compare the decision in this case with the Irish situa-
tion following the collapse of the economy in the 2000s when the bankers, brokers
and developers responsible for the destruction of the economy walked away liter-
ally scot free. Although many of the sources of Brehon law have been lost, the

DRAFT
codified laws and the voluminous literature on old Irish stories, myths and legends
is likely to prove a rich store of legal principles that underlay the Brehon system of
law. These sources are an invaluable starting point for the identification of tradi-
tional Irish ways and legal principles to inform and inculcate the Irish legal system
with principles of solidarity, community and friendship so germane to the Irish
character and so absent in the inherited common law.
While stories may be the conduit of customary law it has been proposed that
the law itself stems not from the minds of men so much as from the land itself.16
In Australia, Senior Aboriginal Law Men with extensive knowledge of the episte-
mology, ecology, languages, oral literature and esoteric knowledge of their people
are seen as the vehicles for the transmission of the ‘narratives of Land and Law’.17
In a break with tradition Senior Law Men are, according to Black, moving out of
the traditional exclusively oral conveyance of law, in order to ‘move the paradigm
of Aboriginal law from that of a “Genesis” story of Aboriginal lore to a story of the
genesis of aboriginal Law’.18 Law Men also use art to articulate their law and
evidence to support Native title claims is often obtained by in situ visits, where
songs, dances, ceremonies and paintings, may all be used as sources of Indigenous
law and custom.19 These songs dances and ceremonies are considered a fundamen-
tal part of the link between aboriginal peoples and their lands and by association
their laws.According to Senior Aboriginal Law Women the law comes out of ritual
life:

When the sacred is revealed, the imagination is infused with creative power –
Living Culture – but when life is devoid of ritual, the connection with one’s
soul is lost and life begins to lose its meaning. When the soul is neglected,
80 In search of the living law

humanity loses its spiritual sensibility and is alienated from the Tujkurrpa and
thus from the self.The secularisation of life is one of the most effective forms
of repression.20

The importance of ritual and spiritual links to the land infuses the customary legal
regimes of Indigenous peoples around the world, and it is only natural therefore
that stories infused with nature and spirituality have been employed as the most
efficient way to ensure the transmission of the law.
If law is to be found in the stories of Indigenous peoples, then an ability to
interpret their symbolism and imagery is crucial for the correct application of the
law. In contrast with positive law, which eschews the notion that law is anything
other than fact based, the normative quality of customary law rests in the princi-
ples it enshrines and not in any specific rules. Based on this reading customary law
may be seen as a body of principles amenable to interpretation according to the
contemporaneous moral, ethical and equity-based standards of the relevant society.
These principles may be applied and modified by Indigenous peoples over time.
Principles taken from stories and other sources of customary law may be applied
in any specific case without changing the principle, preserving flexibility while
maintaining continuity over time.
We have discussed earlier the role of ubuntu as a guiding principle of African

DRAFT
traditional law and its place in South African constitutional jurisprudence. Similar
legal principles underlie many if not all indigenous legal regimes. Navajo law is
grounded on ‘two dynamic forces … k’é and k’ei. K’é translates into English as
compassion, cooperation, friendliness, unselfishness, peacefulness, and all the other
positive values that create an intense diffuse, and enduring solidarity.’21 These values
and principles of solidarity are reinforced through Navajo ceremonies, stories and
traditions.22 Ayuukhl an ancient legal code ‘founded on the principles that recog-
nize the supremacy of God and the rule of law’ has guided the social, economic
and political relationships of the Nisga’a people of British Colombia, in Canada,
from ‘time of memory’.23 The Nisga’a entered into an agreement with the
Canadian and British Colombian governments in 1999 giving them control of
approximately 2,000 square kilometres of land. In its preamble, the agreement
references Ayuukhl as the source of Nisga’a law and its embededness in their stories:

WHEREAS the Parties acknowledge the ongoing importance to the Nisga’a

Nation of the Simgigat and Sigidimhaanak (hereditary chiefs and matriarchs)
continuing to tell their Adaawk (oral histories) relating to their Ango’oskw
(family hunting, fishing and gathering territories) in accordance with the
Ayuuk (Nisga’a traditional laws and practices).24

Barsh and Youngblood Henderson, drawing on Dworkin’s ‘The Model of Rules’

explain the importance of principles in Western Law: 25

[w]estern legal systems are characterized by a combination of rules (black-

letter law) and principles (custom or convention). Principles provide a
 In search of the living law 81

necessary logical framework for interpolation within the spaces between rules,
for resolving conflicts and inconsistencies among rules, and for clarifying the
meaning of ambiguous rules … they lend a consistency and predictability to
adjudication that would otherwise not exist.26

As can be seen, principles play an important role in decision making in both

indigenous and western legal regimes.The difference is that in Indigenous peoples’
oral legal regimes, principles are the primary guide for decision making whereas in
western legal regimes they play a secondary role to enable decision making in the
gaps left by positive statutory laws. Due recognition and respect for customary law
and its role in national and international legal governance requires that customary
legal principles be fully considered in the development of national and global
systems of intercultural justice and equity. Customary legal principles may, for
example, be called upon to bring ‘consistency and predictability’ to the implemen-
tation of tribal, national and international law, in order to secure Indigenous
peoples’ ancestral and human rights. Exercise of such a role is dependent, however,
on the effective recognition of customary law’s inherent status as a primary source
of law, a goal impeded by the historic tendency to place it on the lowest rung of
the legal hierarchy.27

DRAFT
Tribal law and tribal courts
Indigenous peoples’ rights to autonomy, self-determination, to their way of life and
to their customs, traditions and laws, would mean little if they were unable to regu-
late their affairs in accordance with their own laws. Realization of such rights
requires that they be entitled to create, implement and enforce their own laws
through their own socio-cultural decision-making mechanisms, practices and insti-
tutions. Enforcement may take place at the family or kinship level, through
community assemblies, chiefly courts, clan ad-hoc tribunals, or other quasi-judicial
or judicial forums. In certain cases, effective enforcement may require its applica-
tion in national and international courts and dispute resolution mechanisms. This
highlights the importance of developing functional interfaces between Indigenous
peoples’ legal regimes and national and international legal systems.While much of
the debate on the recognition of indigenous legal regimes focuses on the actions
to be taken by states, the actions of Indigenous peoples’ own authorities and courts
in developing and maintaining their customary laws and practices is vital to their
effective implementation.
There are literally thousands of customary legal regimes each one of which has
developed according to its own specific set of cultural, political, economic, social
and spiritual conditions.Within that diversity it is possible to identify general areas
of application and categories of law, which largely reflect areas of law known to
dominant legal regimes. Former Special Rapporteur on the Rights of Indigenous
Peoples, Rodolfo Stavenhagen lists nine areas of ‘legal or juridical’ ordering by
societies governed by customary law:
82 In search of the living law

1. General norms of public behavior;

2. Maintenance of internal order;
3. Definition of rights and obligations of members;
4. Regulation of access to and distribution of scarce resources (for example,
water, lands, forest products);
5. Regulation of the transmission and exchange of goods and services (for
instance, inheritance, work, products of hunting, marriage dowries);
6. Definition and typification of offences, generally distinguishing offences
against other individuals and offences against the community or public
good;
7. Sanction of individual’s criminal conduct;
8. Management, control and resolution of conflicts and disputes; and
9. Definition of the duties and functions of public authorities.28

Stavenhagen emphasises that this list is by no means exhaustive and suggests it may
be divided into norms and rules, on the one hand, and rights, transgressions and
sanctions on the other.29 Woodman, a leading voice on issues of customary law,
describes four broad categories of customary norms:

• imperatives, such as prohibitions on murder or dietary requirements;

DRAFT
• facilitative or power-conferring norms, relating to voluntary forms of
conduct, for example the ‘conduct necessary to form a marriage’;
• norms ‘specifying legal consequences of natural events, such as the rules of
succession on death’;
• those defining legal concepts such as ‘family’ or ‘father’.30

Woodman stresses the importance of bearing in mind all sources of customary law
when carrying out research and even more so when states are adopting laws giving
‘recognition’ to customary law. 31
Tribal jurisprudence in the USA evidences the use and recognition of a wide
range of customary-law based rules and rights.32 Based on analysis of tribal court
cases and utilizing western legal concepts, Rosser identifies rules relating to: right
to notice; due process rights; jurisdiction and standing; subject matter jurisdiction;
rules of evidence; role of judge and juries; representation and practice rules for
lawyers; equity and power of courts.33 Rosser also identifies rights in areas such as:
marriage, children and divorce; restitution; employment; death and inheritance;
land; government and government officials.34 The breadth of issues addressed by
tribal and village courts demonstrates a significant level of autonomy in many areas
of law, and evidences state practice in the recognition of the role of customary law
in areas of law relevant for the realization of Indigenous peoples’ human rights.
One area in which national authorities have generally tended to assume control
over the internal affairs of Indigenous peoples is that of major crimes, including
murder and rape.
Where Indigenous peoples have recognized rights to govern their own internal
affairs, customary law has at times been supplemented and in some cases
 In search of the living law 83

superseded by tribal statutes, indigenous bylaws and other forms of legal enact-
ments. Tribal law, as it is known in the United States, has evolved to deal with the
challenges of regulating an ever-increasing variety of social, economic and cultural
issues. The merging of customary law and positive legal instruments is part of a
process of transition from a purely oral legal system into a mixed oral and written
legal system and reflects in part the historic relationship between unwritten custom
and written law in ancient times.What is crucial about this relationship, however,
is the status given to customary law by tribal law systems. Matthew Fletcher, an
Appellate Judge of the HoopaValley Tribe, in a study of customary law in tribal law
jurisprudence found that: ‘[t]ribal court litigation, especially litigation involving
tribal members and issues arising out of tribal law, often turns on the ancient
customs and traditions of the people’.35 For example, the White Earth Band of
Chippewa Indians Judicial Code places tribal law on a par with ‘other laws’.36 The
Oglala Sioux Tribe Law and Order Code provides that the tribal courts are to ‘give
biding effect to any … applicable custom or usage of the Oglala Sioux Tribe’ to
the extent it does not conflict with tribal statutes and federal law.37 Under the tribal
court code of the Stockbridge-Munsee Community of Mohican Indians,
‘[w]henever there is uncertainty or a question as to the interpretation of certain
provisions of this code, tribal law or custom shall be controlling’.38 While the Bay
Mills Indian Community Tribal Court Code places customary law ‘on a par with

DRAFT
tribal statutes and federal statutes, so long as the custom does not conflict with
federal law’.39 The HoopaValley Tribal code requires that customary law be applied
by tribal courts ‘where tribal statue is silent’.40 The fact that customary law forms
part of a hierarchy of legal sources does not, Rosser argues, diminish its important
role in tribal jurisprudence, on the contrary ‘customary law’s unique ability to be
both an independent authority and a tool for interpreting federal and state law
gives it even greater significance’.41 Rosser goes on to say:

The true meaning of customary law comes across not only from cases decided
upon it alone but from cases in which custom is used by tribal courts to decide
whether state and federal laws should be applied or used as reference points.42

Despite the clear importance given to customary law by tribal codes, Fletcher finds
‘precious few tribal court cases cite to custom as persuasive or controlling author-
ity’.43 He claims that most tribal courts are unable to apply customary law, as they
are either ‘unaware of it or if they are aware of it, no customary law they are aware
of applies to the fact pattern in issue’.44 Fletcher suggests that a roadmap for ‘find-
ing, understanding, and applying customary law’, beginning with sources of
custom, is required if customary law is to play the role envisaged by tribal court
codes.45 These sources include, the parties to the litigation, the judges ‘inherent
knowledge’, secondary literature about customary law by anthropologists, histori-
ans and other scholarly researchers, elders knowledgeable about their people’s
customs and traditions, and ‘written work of tribal community members’.46 A clear
understanding of the relevant indigenous language, with all its nuances and
complexities, is essential to finding tribal customs and traditions.47 Discussing the
84 In search of the living law

difficulties tribal courts face in applying customary law, Fletcher notes: the resist-
ance tribal members have to the use of scholarly works of non-Indian researchers;48
the difficulties associated with adjudicatory style proceedings in which opposing
expert opinions on customary law may preclude the court from applying custom-
ary law at all;49 and the difficulties associated with tribal courts announcing law
which is to serve as precedent. With regard to this latter point he cites Professor
Watson, who asks ‘[s]uppose that once the custom is known to be law and is
accepted as law, the practice changes. Does the law cease to be law, and the new
practice become law?’ 50 The answer to such questions is far from clear.
If Indigenous peoples’ own judicial authorities have trouble identifying custom-
ary law the challenges facing national courts and courts in foreign jurisdictions in
identification and application of customary law are likely to be even greater.
Capacity building at all levels of the judiciary regarding sources of customary law
and processes for the taking of evidence is therefore crucial to effective recognition
and enforcement of relevant customary law.51 There is also a clear need for partic-
ipatory processes for the development of a road map as proposed by Fletcher. Any
such process should involve judicial and administrative authorities and Indigenous
peoples to determine issues such as the sources of customary law and the design of
functional processes for the taking and giving of expert evidence, including
evidence of community members on customary law.

DRAFT
The extent to which Indigenous peoples are governed wholly or in part by their
legal regimes depends upon numerous factors including: the extent of national and
international recognition of customary law; proximity of Indigenous peoples to
centres of state power or influence; the extent to which customary law is applied
by traditional, tribal and national courts; and, the level of perceived legitimacy for
Indigenous peoples of such courts and the customary law they apply. Indigenous
peoples’ customary legal regimes are not in the main isolated from positive legal
regimes. Consequently, any notion of a traditional body of ‘pure’ indigenous law
derived from a pre-colonial past is unlikely to reflect the reality of customary law
regimes diluted, and in some cases distorted by colonial and post-colonial rule.
Stavenhagen claims, Indigenous peoples’ customary laws in Latin America are not
necessarily ‘ancestral’ and contain elements derived from the colonial and contem-
porary periods.52 Chanock, finds ‘little purity about custom in Africa which has
always been open to many influences’.53 While, Maria Teresa Sierra writing on the
customary law of the Nahuas in the Sierra de Puebla in northern Mexico, warns
against the idealization of customary law, saying:

Customary law does not exist as a separate and isolated set of norms. Rather
it is embedded in mutually constitutive relations with state law.The dominant
legal order plays a central role in the lives of Indian communities, sometimes
even helping community members resist oppressive relations within their
group. Power relations are embedded in legal processes, not only in the
confrontation between local customs and national processes but also within
communities, in the very practice of customs.54
 In search of the living law 85

Despite the influence of external forces on the purity of custom, Indigenous

peoples generally tend to defend their customary law regimes and their rights to
apply them.
Even where custom has been officially ignored as a source of law by the state,
as occurred in Ethiopia after decolonization, the result can be to delegitimize state
law rather than a renunciation by Indigenous peoples of their customary regimes.55
Whatever the perspective of external actors, it is the right of Indigenous peoples
to determine what constitutes their legitimate laws, traditions and customs, a right
now unequivocally enshrined in international law. The continuing legitimacy,
functionality and durability of customary law as the primary body of law for many
Indigenous peoples and their demonstrated desires to retain their legal regimes
signals the need for greater efforts by national authorities to support its continuing
application, while promoting progressive conformance with international human
rights standards.Although Indigenous peoples have the right to their legal regimes,
enforcement of their laws at the national level and in foreign jurisdictions will
require not only identification of relevant customary law but also some measure of
proof that this is indeed custom.

Proof of customary law

DRAFT
Blackstone, in his Commentaries on the Laws of England set out a seven-stage test for
determining whether a custom can override a contrary principle or tradition of
common law.56 To succeed under this test a custom must be shown to be imme-
morial, continuous, peaceable, reasonable, certain, compulsory and consistent.57
Over time these have been whittled down with Halsbury’s Laws of England now
recognizing just four essential attributes of enforceable custom: immemorial origin,
reasonableness, certainty of locality and persons, and continuity without interrup-
tion since its immemorial origin.58 Of these the most highly litigated have been the
tests of immemorial origin, reasonableness and certainty.59
By accepted legal definition to be considered immemorial under common law a
custom had to be traceable back to the coronation of Richard I in 1189. However,
even in Blackstone’s time the courts were exercising considerable discretion and by
the middle of the nineteenth century it had been reduced to a presumption that
‘once established, shifted the burden to the one attacking the custom to show by
evidence that it was not immemorial’.60 The issue of reasonableness had been central
to securing the recognition of custom since long before Blackstone wrote his
Commentaries.61 One of the earliest recorded cases, Miles v. Benet,62 reported in 1401,
helped establish the principle that ‘a custom that subjects the multitude to the whim
of an individual is bad and unreasonable’.63 Based on comprehensive analysis of the
early case law, Callies comes to the conclusion that in determining the reasonable-
ness of a custom the issue of reciprocity and the public good must also be taken into
account.64 It is interesting to note that reciprocity and public good are also funda-
mental tenets of many Indigenous legal regimes.
While a custom may run contrary to common law the courts have decided that
‘a custom contrary to the first principles of justice can never be good’.65 In the
86 In search of the living law

words of Holt J, in Lewis v. Masters, ‘it is one thing if a custom be different from
the law, and another thing if it be repugnant … for customs that overthrow the
principles of law, and which are unreasonable, are to be rejected’.66 The repugnancy
rule, derived from the notion of reasonableness, became one of the most contro-
versial elements of colonial governance. It was seen as an arrogant and unwarranted
interference in the affairs of native peoples, used as it was to determine what aspects
of customary law would or would not be recognised in colonial territories, as
occurred in Tanistry case in Ireland, discussed earlier. Callies cites at length from the
judgment in the 1908 case of Johnson v. Clark,67 where the court places the collec-
tive interest above that of the individual, holding:

a custom which is for the advantage of an individual only and is prejudicial to

the public, or a class of the public, is bad; for the common law, in principle
imposes obligations on the individual for the benefit of the public, and not on
the public for the benefit of the individual.68

This notion of the communal good superseding individual benefits conforms more
closely with Indigenous peoples’ rights regimes than do exclusive individualistic
property rights normally equated to western legal regimes.
Continuity is a key requirement for enforceability of custom under English

DRAFT
common law, as any interruption may be taken as a cessation of the custom.
According to Blackstone:

an interruption of the possession only, for ten or twenty years, will not destroy
the custom. As if I have a right of way by custom over another’s field, the
custom is not destroyed, though I do not pass over it for ten years; it only
becomes more difficult for me to prove: but if the right be any how discon-
tinued for a day, the custom is quite at an end.69

Requirements for continuity have been a major impediment for Indigenous

peoples seeking to secure recognition of land rights following dispossession by
colonial powers and settler states.Where continuity is broken by coercion or other
pressure, however, this does not necessarily serve to void the custom as law.70
Where rights to lands and resources are contested, custom has been frequently
raised as a defence to accusations of trespass. Under English law, proving custom was
critical to such a defence and to do so it was necessary to demonstrate certainty relat-
ing to the practice (i.e. the actual activities that may take place, and the manner in
which they are to be enjoyed), locale (it must be specific to an identifiable area) and
persons (it can apply to all the members of a community but cannot apply to the
population of the country as a whole).71 This is of much significance for Indigenous
peoples where custom has an important part to play in securing access to,among other
things, sacred sites and traditional hunting and fishing grounds. These rights were
denied to Indigenous peoples for much of the colonial and post-colonial periods.
One of Blackstone’s criteria that has rarely been the subject of litigation is the
notion of compulsivity, commonly referred to as opinio necessitatis. Callies takes as
 In search of the living law 87

self-evident that a custom must be binding if it is to be law, saying ‘a law is not a

law if it is not obligatory on the parties’.72 The issue at stake is whether custom is
to be considered law prior to its adoption by the courts or only after such adop-
tion, as Austin thought.73 Professor Salmond would turn Austin’s argument on its
head arguing that ‘[c]ustom is law not because it has been recognized by the Courts,
but because it will be so recognized, in accordance with fixed rules of law if the
occasion arises’.74 The question remains however as to who is empowered to fix the
rules by which custom is to be identified.The Privy Council in the 1931 Nigerian
case of Eleko v. The Officer Administering the Government of Nigeria & anor., took the
position that‘[i]t is the assent of the native community that gives a custom its valid-
ity and, therefore, barbarous or mild, it must be shown to be recognised by the
community whose conduct it is supposed to regulate’.75 This appears to demon-
strate support for a test of opinio necessitatis, there is, however, as yet no hard and fast
rule in this area and the English common law rules for the identification of
enforceable custom have been variously interpreted in those countries falling
under the rule of the common law.
Blackstone’s criteria, in particular the requirement of continuity, continue to
play an influential role in governing issues of recognition of custom in many parts
of the world today, often serving to legitimize the historic dispossession and ongo-
ing denial of Indigenous peoples’ ancestral rights to their lands and resources. 76 The

DRAFT
definition and implementation of appropriate rules for the identification and
enforcement of customary law is therefore crucial for securing the recognition and
respect for Indigenous peoples’ legal regimes and their rights to self-determination.

Recognition and proof of custom in common law

jurisdictions
Two central questions have dominated the issue of recognition of custom in colo-
nial and post-colonial common law countries, outside England. First of these is the
issue of proof of customary law and the second is the conformity of customary law
with the notion of natural justice and moral values of the dominant regime, the so-
called ‘repugnancy rule’.Turning to the former issue, Zorn and Corrin outline two
diametrically opposed views.77 The first requires parties to prove customary law as
any other matter of fact by calling evidence, which may, they say, be a costly affair,
involving complicated rules of evidence and adversarial processes foreign to
Indigenous peoples.78 It may even require the submission of the issue to a jury.79 The
opposing view is ‘that custom is a question of law, and therefore can be found by
the court without requiring the production of evidence as to its existence.’ 80 The
Privy Council in Angu v. Attah set down the relationship between these two forms
of proof,81 where the court stated:

[a]s is the case with all customary law, it has to be proved in the first instance
by calling witnesses acquainted with the native customs until the particular
customs have by frequent proof in the courts become so notorious that the
courts will take judicial notice of them.82
88 In search of the living law

The decision in Angu v. Attah represented an advance from the earlier view that
custom should be treated like foreign law and always be proven by evidence.
Writing in 1958, Hannigan contrasted the application of rules for finding custom
in Ghana and India with common law tests for enforceable custom.83 He found
immemorial antiquity was not considered essential in either Ghana or India and
was just ‘one of the methods which can be used to prove a custom’.84 In support
he cites the West Africa Court of Appeal in Kokomlemle Consolidated Cases,85 where
the court held ‘[s]uch native law or custom … must not be the native law or
custom or usage of ancient times, but existing law and custom’.86 In this case the
court showed a clear preference for identification of the living law, rather than
fixating on the length of a custom’s observance.
A detailed research paper on proof of Aboriginal customary law, prepared for the
Australian Law Reform Commission, identified a trend in African countries to
move beyond the restrictions of Angu v. Attah.87 The report points to statutory
changes in Ghana, which provide that customary law is to be determined as a
matter of law.88 Similarly, the Botswana Law Act of 1969, which drew on the
Ghanaian experience, provided in Section 11 that if the court, having taken
submissions from the parties, is in doubt regarding the existence or content of
customary law, it may ‘consult reported cases, textbooks and other sources and may
receive opinions either orally or in writing to enable it to arrive at a decision’.89

DRAFT
Section 11 helps to overcome the problem of having dual systems of law – a prob-
lem common to African countries – by making ascertainment of customary law a
matter of law in both customary courts (where it has always been so) and the ordi-
nary courts.90 We will return to the question of ascertainment of customary law a
little later, for now it is worth noting that ‘customary law is law’ and should be
recognized as law by the courts and not as a fact to be proved through evidence.91
A report for Australian Law Reform Commission examined the challenges asso-
ciated with the taking of Aboriginal evidence, including the need to comply with
customary law rules regarding ‘authority to speak on a particular matter’; the likely
exclusion of Aboriginal opinion evidence of customary law, even when based upon
specific examples of how it was applied in similar circumstances in the past; rejec-
tion by the Australian courts of the rule in Angu v. Atta regarding proof of custom
by those acquainted with it; and, the difficulties of fitting Aboriginal evidence of
customary law within narrow exceptions to the hearsay rule.92 The Australian Law
Reform Commission has proposed changes to Australian law to ensure the admis-
sibility of Aboriginal evidence regarding customary law. It suggests, in particular,
the adoption of a provision to allow the courts to treat as admissible evidence given
by ‘persons having special knowledge of ’ customary law as provided for in Section
48 of the Indian Evidence Act of 1872 and Section 56 of the Nigerian Evidence
Act of 1945.93 The Commission recommended that evidence regarding a matter of
Aboriginal customary law or traditions, which might otherwise be declared
inadmissible as hearsay and opinion evidence, be considered admissible where the
person giving the evidence has ‘special knowledge or experience of the customary
laws of the community in relation to that matter; or, would be likely to have such
knowledge or experience if such laws existed’.94 The Commission also drew
 In search of the living law 89

attention to the fact that under ‘Aboriginal tradition’ it may be necessary ‘to allow
two or more members of an aboriginal community to give evidence pertaining to
the customary laws of that community together’.95 It calls for special procedures to
protect the confidential nature of secret Aboriginal knowledge, including in camera
hearings, and exemptions from provisions of sex discrimination legislation, to allow
for exclusion of members of the opposite sex to witness proceedings.96 It also
recommends that courts be given the power to adjourn ‘to enable a pre-sentence
report to be obtained where consideration of Aboriginal customary laws and tradi-
tions are relevant in sentencing’.97

Repugnancy and decolonizing legal regimes

Conflict of laws may apply to cases involving two or more competing customary
law regimes and/or between customary laws and positive law.98 This issue is also
linked to the question of repugnancy, which derives from the notion of reason-
ableness as outlined by Blackstone and which was to become a standard element
of colonial law and its treatment of customary law. The scope and focus of the
repugnancy rule is discernible in a number of judgments from what was then
Rhodesia.99 These state that the repugnancy rule ‘excludes laws that “inherently
impress us with some abhorrence or are obviously immoral in their incidence”’,100

DRAFT
or so outrage ‘acceptable standards of ethics as to create a sense of revulsion’.101
Sheleff summarizes five main areas where repugnancy provisions have been
applied, these are: ‘procedural matters where there has been a deficiency in the
manner in which a trial had been adjudicated (for example not hearing both sides);
in denying slavery or even a customary set-up reminiscent of slavery; in property
claims where too long a period has elapsed to justify a claim against another’s
possession; in various matters relating to marriage; and in actions dealing with vari-
ous aspects of witchcraft.’ 102 For Elias, determinations on the issue of repugnancy
posed a constant dilemma for the judiciary who had to ‘strike a nice balance
between what is reasonably tolerable and what is essentially below the minimum
standard of civilised values in the contemporary world’.103 In his view the applica-
tion of the repugnancy rule and the public policy rule reflected an inherent failure
of the British legal system,‘its incapacity to look both ways in order to provide an
equitable balance between custom and colonial law.’104
Following decolonization, the notion of repugnancy was considered incompat-
ible with respect for customary law. Rejection of the common law notion of
‘repugnancy’ does not, however, equate with blanket acceptance of customary law.
In place of ‘repugnancy’ there is now a wide range of measures by which custom
may be held inapplicable. At the national level its applicability has been made
conditional upon compatibility with constitutional law,105 national law106 and regu-
lations,107 human rights,108 public order and morals,109 fundamental rights of the
person110 and natural justice.111 At the international level, ILO Convention 169
recognizes Indigenous peoples’ rights to ‘their own customs and institutions where
these are not incompatible with fundamental rights defined by the national legal
system and with internationally recognised human rights’.112 Article 34 of the
90 In search of the living law

United Nations Declaration on the Rights of Indigenous Peoples adopts a less

restrictive position, stating:

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.113

Article 34 does not seek to subordinate customary law to human rights but rather
defines the right to ‘promote, develop and maintain’ customary law as being a
human right in itself, which is constrained by the boundaries of human rights law.
This is of much importance for the status of customary law, which can no longer
be seen as coming at the bottom of a legal hierarchy. Indeed, constitutional changes
and decisions of the courts are increasingly seeing customary law as on a par with,
if not superior to, common law.114 Although the spectre of the repugnancy rule has
receded, courts in post-colonial countries have often been slow to recognize the
new status of custom; a case in point is that of Papua New Guinea.
Papua New Guinea has over seven hundred language groups, each with their
own customary laws and land tenure systems, woven ‘from a complex web of
traditional norms, kinship relations and social obligations’.115 The complexity of

DRAFT
recognizing such a vast diversity of laws was largely avoided by the colonial courts
up until the adoption of the Native (Recognition) Ordinance in 1963.116 The
Ordinance required custom to be proved as matters of fact, but allowed the courts
to dispense with strict technical rules of evidence and to accept hearsay and
expressions of opinion.117 The situation was radically changed by the new consti-
tution of 1975, which elevated the status of custom, which was henceforth to be
‘applied and enforced, as part of the underlying law’.118 The underlying law was
conceived as a new Papua New Guinea common law drawing on customary law
and English common law and equity. Where conflicts arise between customary
law and common law or equity, customary law is to prevail.The Constitution has
in essence inverted the roles of custom and English common law within the
national legal system. In 1976, the Papua New Guinea Law Reform Commission
proposed changes to the law to enable the courts to take judicial notice of
customary law.119 The courts proved resistant however, preferring, to the obvious
frustration of the Commission, ‘to re-adopt pre-Independence legal rules or the
English common law rules rather than developing new rules to suit the conditions
in our country’.120
The reluctance of the courts in Papua New Guinea to give greater attention to
custom may be seen as a hangover from the colonial period and its message that
custom was something less than law.121 This inertia began to lift in the late 1990s,
a shift that was consolidated by the adoption of the Underlying Law Act 2000,
which makes proof of custom a matter of law122 and requires ‘the courts and coun-
sel to try to find an applicable rule from custom before even considering imported
common law’.123 The Law Reform Commission proposed that ‘[i]f the post-
Independence Courts are to be free to develop a truly Papua New Guinea law they
 In search of the living law 91

must not be fettered by outside decisions which reflect the perceptions and world-
views of other societies’.124 The Underlying Law Act permits the courts to look at
cases from any foreign jurisdiction but rules out their use as ‘precedential or even
as persuasive’.125 The Act is, to borrow Smith’s terminology, an important step in
the ‘decolonizing [of judicial] methodologies’.126 The Act requires the courts to
apply customary law where it exists and it is not in conflict with national law and
the constitution, and common law where it is not in conflict with customary law,
national law and the constitution.The idea being that over time a new specifically
Papuan ‘underlying law’ will evolve, in essence drawing the best from all legal
sources.127 The Act is a revolutionary approach to the development of law and the
decolonization of national legal systems. It is not, however, without its difficulties.
In implementing the Law Reform Commission’s recommendations it opens the
door for judicial activism by the courts, which could, it has been suggested, lead to
the development of ‘a “customized” form of general law, different from any single
system of customary law in Papua New Guinea’.128 As Weisbrot sees it, ‘it may be
that the wide diversity of local custom will have to be sacrificed in part for the
expedience of legislating on customary matters’.129 Amongst the dangers of such an
approach is the likelihood that a homogenized form of general custom is likely to
reflect primarily the values and customary norms of dominant groups, to the
potential detriment of more isolated groups and the weaker sectors in indigenous

DRAFT
societies. It would be sadly ironic indeed if the very process of recognition should
result not in greater protection of rights but the further distancing of those most
in need from the realization of their cultural, social, and economic human rights.

Judicial ascertainment of customary law

One of the key challenges for those seeking recognition of customary law relates
to the identification of what customary laws, customs, traditions and land tenure
systems, states are obliged to recognize, respect and give due regard to.
Identification of the applicable customary law in any specific situation may often
prove problematic. This is particularly so where there are conflicting bodies of
custom among Indigenous peoples or distinct versions of custom within a specific
Indigenous people. Ubink, while agreeing with von Benda-Beckman that it is
futile to search for ‘the’ customary law in any specific instance,130 notes that the
judiciary is consistently faced with the task of ascertaining the relevant law.131
Ascertainment of customary law is, to quote Professor Hinz, a process through
which ‘the act of ascertainment awards the ascertained version of customary law
legal qualification’.132 Ascertainment may come through codification, restatements of
customary law, development of case law, and in a relatively new departure through
self-statements of the law produced by Indigenous peoples themselves.133 In
Namibia ascertainment is regulated in the Community Courts Act which empow-
ers the courts to consult cases, text books and other sources, where doubt exists as
to the existence or content of a rule of customary law.134 The Namibian Traditional
Authorities Act defines ascertainment as any kind of transfer of orally transmitted
customary law into a written form.135 Ascertainment under the Namibian Act is the
92 In search of the living law

responsibility of traditional authorities who are required to consult with members

of their community and assist in the codification of their laws.136
Codification of custom was not widely practiced during the colonial period.
Pressure for codification increased, however, in the period leading up to and imme-
diately following decolonization.137 The British pushed codification via the
Restatement of Africa Law Project,138 and the 1960 London Conference on the
Future of Law in Africa promoted moves to freeze customary law and turn it into
a body of ‘certain and applicable rules’.139 In Chanock’s view, the obsession with
rules reflects the ‘continuing failure’ throughout the colonial period to understand
customary law.140 The British had, he says,‘looked for rules, and Africans, as this was
realised, emphasised that the claims they were putting forward were in fact rules to
be applied, not positions to be negotiated’.141 Shadle rejects the notion of custom-
ary law as a purely colonial invention, arguing that even where codification did
occur there was considerable flexibility as ‘African court elders continued to
employ law situationally’.142 Despite the apparent contradictions between Chanock
and Shadle’s views on the matter there is little doubt that African male elites clearly
utilized the opportunities associated with codification processes to advance their
own interests in order to turn flexible aspects of custom into more binding law. At
the same time their continuing control over application of custom gave them the
flexibility to apply the law with a certain amount of discretion. Customary law

DRAFT
seen from this perspective is not so much a construction of colonialism as a recon-
struction of pre-existing law by African male elites facilitated and at times
orchestrated by colonial powers.
Upon decolonization the newly independent states inherited a mixed body of
customary law composed of ‘official’ codified custom, court custom and the ‘living’
custom of tribal and Indigenous peoples. On top of this they were faced with a
major dilemma. On the one hand, they were largely desirous of ensuring respect for
customary law, on the other hand they wanted to do away with distinctions and
secure one law for all. The result has been the adoption of solutions that almost
always involved some form of codification of all or part of the legal system.143
Bennett andVermeulen identify two principal approaches adopted by African codi-
fication commissions to customary law. Some countries, such as Ethiopia, opted for
radical reform and the ‘almost total abolition of customary law’.144 This approach was
inspired by the view of David, the drafter of the Ethiopian code, that customary law
was responsible for the undeveloped nature of African society.145 A contrasting
approach was that adopted by countries such as Madagascar, where customary law
was taken as the basis for codification as the system that best reflected the needs,
traditions and social values of the populace.146 Even where codification is based on
customary law the process is bound to do harm to the very nature and substance of
custom as the basis for the ordering of communities and peoples.
Once codified customary law is enshrined by statute it is in effect converted into
positive law. Where there are varied customary legal regimes codification will
usually tend towards harmonization, whether through the identification of
common underlying traits or the recognition of one rule in preference to another.
In all events modification and change of customary law will occur with codified
 In search of the living law 93

law, either undermining its traditional application, or falling into desuetude where
the populace boycott and ignore the code. Pimentel, writing with regard to
customary law regimes in present day South Sudan, argues that:

If customary law is codified … it becomes for all meaningful purposes, the

property of the state.The legislature may adopt such codes, but only the legis-
lature is then fully empowered to amend it. The tribal communities that
produced that law, and the tribal elders who apply it, are then deprived of their
role in shaping such law; the customary law ceases to be a living law that adapts
to suit the community it serves.147

Codification is also problematic due to the multiple versions of customary law prac-
tised in South Sudan, with ‘at least 60 customary law systems, [and] conflicting value
sets’ in the region.148 Where pressures to codify customary law exist Indigenous
peoples will need to be increasingly judicious about what (if anything) to codify.
Any documentation of customary law will need to be approached with care avoid-
ing the establishment of rules that impose an inflexible structure onto the ‘living
law’ of Indigenous peoples. It will also need to avoid presenting a target for govern-
mental extinguishment, central to the discussion of native title in Chapter 5.
The development of restatements of customary law were seen by their chief

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instigator, Anthony Allot, as a means towards the production of ‘accurate and
precise statements’ of custom short of codification.149 Restatements tend to be seen
as a wiser policy than codification of customary law.150 Africans are ‘normally fully
cognisant of their law’, and restatements are likely to be of greater value as a means
to educate administrators of justice who may be less familiar with it.151 The
perceived benefit of restatements lies in the possibility of obtaining a clear enunci-
ation of the status of customary law without interrupting its dynamic evolution.
Restatements of law, addressing both custom and positive law and taking into
consideration the perspectives of dominant sectors of society, Indigenous peoples
and minority groups, offer opportunities to identify points of cohesion and
comparative principles of equity. Thornberry describes this as part of a process
required to achieve the reciprocity he sees as requisite for democratic self-deter-
mination, something he suggests cannot be achieved without control by
Indigenous peoples over the process for ‘articulation and interpretation of their
laws, customs and traditions’.152 Although not as destructive as codification, restate-
ments of law also have the power to freeze the development of custom both at the
local level and more importantly in the minds of the legal profession and legisla-
tors. In the words of the Paramount Chief of Kailahuan in Sierra Leone:

My fear is that … with this restatement the local customary law is simply taken
away from the people and here in Freetown, one begins to dismantle that law,
one starts to split off in several sections and simply decides which parts have
to be declared as invalid, because they conflict with international human rights
standards or with national law. But my people will not accept that, the local
customary law is their law, they grew up with it, it was always there and they
94 In search of the living law

will not understand the process and the rationale of the decision makers here
in Freetown.153

Restatements can be very influential and unless truly representative of each partic-
ular Indigenous peoples and every sector of indigenous society they are likely to
primarily reflect the views of dominant Indigenous peoples and their elites. If
customary law is to be found in stories and other audio visual representations then
a restatement of the law in written format is ‘not simply another version of
customary law it is a substantial transformation of the points of reference for the
collective memory’.154
The third traditional avenue of ascertainment, found in the decisions of the
courts, is likewise problematic. In the first place common law courts are great
respecters of precedent and can easily find themselves bound by previous deci-
sions.155 The other major problem with reliance on previous court decisions is the
danger that customary law ascertained to apply to a specific Indigenous people may
later be assumed to be applicable to another or to all Indigenous people. A case in
point is that of Samotsoko v. Palane,156 where Professor Schapera’s opinion ‘as to the
rule of customary law was adopted without consideration of the fact that the case
involved people of the Batawana tribe whilst Professor Schapera had been
concerned with the law of the Ngwato’.157

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A research paper prepared to inform the Australian Law Reform Commission
(ALRC) study on recognition of customary law argues that judicial recognition of
customary law in Australia would pose a ‘real risk of Aborigines losing control over
their own customary law’.158 The Commission identified numerous evidentiary
hurdles that make it difficult to ensure that customary law will be properly identi-
fied and properly applied.With regard to recognition of Aboriginal customary law
it considered a range of possibilities including:

• codification or specific enforcement of customary laws;

• specific or general forms of ‘incorporation’ by reference;
• the exclusion of the general laws in areas to be covered by customary laws;
• the translation of institutions or rules for the purposes of giving them
equivalent effect (e.g. marriage or adoption);
• accommodation of traditional or customary ways through protections in
the general legal system.159

The Commission considered codification or direct enforcement of customary law

and exclusion of the general law inappropriate in most circumstances.160 It favoured
specific forms of recognition rather than general ones, and leaned towards forms of
recognition that ‘avoid the need for precise definitions of Aboriginal customary
laws’, a notion the Commission says, is to be understood ‘broadly rather than
narrowly.’161 In 2009 the Native Title Amendment Act adopted more flexible rules
with regard to hearsay and opinion evidence. This facilitates the taking of oral
evidence regarding customary laws of Aboriginal peoples. The changes make it
easier for the Court to take evidence of traditional laws and customs, which is of
 In search of the living law 95

particular importance in native title cases.As part of the sensitizing of the Australian
courts, evidence may now be taken ‘on country’ in recognition of the fact that the
ability and authority of witnesses to speak about certain places ‘may literally
depend on their being physically present’.162 In the words of Chief Justice Black of
the Federal court ‘some evidence can only be given on country, and … there will
be cases in which it would be quite wrong to expect claimants to talk about their
relationship to country by reference to maps prepared by non-Indigenous
people’.163
Relying on codifications, restatements and previous decisions of the courts as to
the applicable customary rule in any particular case may result in injustice due to
its failure to identify the actual custom applicable in a specific case.164 Furthermore,
all three forms of recording may result in deliberate as well as unintended alter-
ations of customary law, resulting in a large gap between recorded versions and the
locally observed ‘living’ customary law.165 An alternative form of ascertainment,
which escapes some, if not all, the difficulties associated with the production of
formalistic written records of custom, is what is being termed self-statements or
self-recording of customary law. Self-statements of law are the product of internal
processes through which communities or peoples decide themselves ‘what part of
their law is to be consolidated in writing’.166 Self-statements are intended to be
binding on relevant members of the community or people to whom they apply.167

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They are not, however, set in stone and may be amended by the relevant commu-
nity or people, as and when they see fit. According to Hinz, who has been
instrumental in facilitating ascertainment processes in Namibia and Sudan:

Ascertainment by self-stating is a process. This statement is not a mere

academic interpretation, but mirrors practice. What happens in processes to
self-state these laws is in line with approaching to democracy as a system of
communication.
One may say this in an idealistic, utopian view, unrelated to practice, but it
is not. We are fully aware of the fact that power-hungry, old, conservative, or
male persons may do their best to manipulate the self-statement process.
However, we have also learnt that the people – only some at first, but many
after some time – in the various communities are not prepared to accept what
some ‘would-be kings’ try to do.168

Ubink provides a detailed case study of the impact of self-recording of customary

laws carried out by the Owambo Traditional Authority in Namibia, which led to
harmonization of fines and the modification of laws relating to widows in order to
conform with Namibia’s constitution.169 Ubink analyses the impact of this process
in one of the Owambo Traditional Authorities, the Uukwambi, and came to the
conclusion that:

the process of self-recording created both deliberate and unintentional alter-

ations to the justice system of the Uukwambi Traditional Authority. Most
notably, the inclusion of norms for the protection of widows constituted a
96 In search of the living law

change in Uukwambi’s substantive customary law, and the unification of

penalties reduced the discretion of traditional leaders in dispute settlement
processes. Despite these alterations, the written laws of Uukwambi seem to
enjoy a large measure of local legitimacy, at least among the people that partic-
ipate in traditional court meetings. These people almost unanimously agreed
that traditional court cases are decided on the basis of the “written laws of
Uukwambi”, and a large majority stated that they find decisions based on the
written laws easier to accept and more fair.170

Self-recording by the Owambo Traditional Authority facilitated both certainty

within communities and adaptation of the law to reflect human right principles.
Above all it reflects the dynamic nature of customary law and the role of traditional
leaders as law makers. In the words of Professor Hinz ‘[c]ustomary law of today is
not the customary law of yesterday’.171 As he sees it:

[t]raditional authorities make law and their law is being implemented in the
communities, upheld by the courts and eventually forms part of the commu-
nity’s customary law.172

This community law making process is crucial for the development of ‘living’

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customary law. Recent case law in South Africa promotes the recognition of
‘living’ custom as opposed to ‘official (codified) custom’.173 The importance of this
approach is made clear, by Claassens and Mnisi, in a study showing the advances
being made by indigenous women in securing changes of custom that respond to
their demands for increased equality and reflect changing realities in rural societies
in particular.174 Addressing the issue of abuses of chiefly power over the sale of lands
in peri-urban Kumasi in Ghana, Ubink describes the situation where customary
law is contested, noting that judges tend to find themselves obliged to select one
of the versions provided by litigants.175 For a rule to qualify as customary law before
African courts it must, she posits, fulfil two requirements. First it must demonstrate
a ‘fixed line of behaviour’ what Ubink terms usus.176 While this does not equate
with the Blackstonian notion of continuity, it does require some period of time to
evolve or the law would be constantly susceptible to change at the whim of any
substantial group.177 Second, it must have the sense of obligation (opinio necessitatis),
so that behaviour is followed not only as a ‘matter of practice, but must be followed
as a matter of law’.178 Ubink claims that in cases of contested customary law, the
courts can approach the matter from another angle, applying the widely shared
opinion that ‘a chief should act in the interest of his community’.179 This leads her
to the conclusion that:

where a new rule of customary law is in its formation stage – and a fixed line
of behaviour and a normative moment will necessarily be absent – they need
to be informed by fixed lines of behaviour and normative moments with
regard to related issues, as new rules are path-dependent and not isolated from
the wider customary normative framework.180
 In search of the living law 97

Therefore, judges do not, in her opinion, have absolute discretion with regard to
which customary law to apply but rather must seek out the living law with due
attention to the surrounding customary legal landscape.181

Living law
As recognition of customary law has increased, the challenge facing the courts has
been to identify ‘living’ customary law and to determine the extent to which the
courts should play a role in developing custom to ensure it complies with consti-
tutional law and human rights. The question as to whether the courts can and
should take action to develop customary law, in the event that it conflicts with
constitutional law, was central to the decision of the Constitutional Court of South
Africa in the joint cases of Bhe v. Magistrate Khayelitsha, Shibi v. Sithole, and South
African Human Rights Commission v. President of the Republic of South Africa.182 These
three cases addressed the issue of women’s rights to inherit under Section 23 of the
Black Administration Act of 1927. Section 23 provided that intestate succession
would be governed by ‘black law and custom’, which in effect meant the applica-
tion of the principle of male primogeniture. In Bhe Mrs Bhe and her two daughters
were faced with being left homeless when her ex-partner’s father was appointed
sole heir of the deceased’s estate, while in the case of Shibi the plaintiff ’s brother

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had died intestate and a male cousin had been appointed sole heir.183 In the third
case the South African Human Rights Commission challenged the whole basis of
Section 23 arguing, in Grant’s words, that ‘the very basis of determining the appli-
cability of customary law and compelling its application to a particular racial group,
was discriminatory and violated human dignity’.184 The court found both Article
23 and the customary law rule of male primogeniture to be unconstitutional.The
court split, however, on the nature of the remedy to be applied.The majority of 10
judges took the view that the legislature should assume responsibility for remedy-
ing the ‘incompatibility of customary law with the right to equality’.185 In the
meantime, the court decided to apply a modified version of the Intestate
Succession Act (which covered all estates not governed by the Black
Administration Act).186 In a separate dissenting opinion, Justice Sandile Ngcobo
held that the court should exercise its powers under Section 39 (2) of the consti-
tution to develop customary law in order to ‘promote the spirit, purport and
objects of the Bill of Rights’.187 He argued that the Court had an obligation to
‘participate in the development of customary law’,188 a position supported by
Section 211 of the South African Constitution, which requires the courts to ‘apply
customary law when that law is applicable’.189 Higgins, who together with a team
of researchers carried out a year of research into gender equality and customary law
marriages in South Africa,190 found the decision in Bhe had little impact on the
manner in which customary law was applied ‘in rural and semi-urban communi-
ties where knowledge of the Bhe decision is virtually nonexistent’.191 Higgins takes
the view that the court’s decision undermined democratic reform, reducing pres-
sure for legislative action and ‘characterizing gender equality as irreconcilable (in
this context anyway) with the norms of customary law’.192 By declining to follow
98 In search of the living law

the decision of Justice Ngcobo and actively participate in the development of

customary law the court, in Higgins’ view,‘conveyed the message that custom must
be sacrificed in favour of constitutional values’.193
Grant explores the decision in Bhe from a different angle highlighting the recog-
nition in both the majority and minority judgments ‘that official customary law
had ossified and that African society was changing and with it customary law prac-
tices’.194 Official customary law refers to that body of custom that is to be found in
‘official’ sources, such as ‘statute, case law or government documents’.195 It is, says
Grant, ‘widely accepted to be a distortion of … the law as lived in the commu-
nity.196 Despite consensus regarding the applicability of living custom neither the
majority nor the minority in Bhe sought to apply it. The majority dismissed the
proposal that ‘the court should sanction the evolution of customary law in accor-
dance with constitutional principles’, taking the view that a case-by-case
development would be too slow and lead to varied outcomes due to the lack of
clarity over living customary law.197 In contrast Ngcobo J took the position that the
court was required to bring the customary law into line with the equality provi-
sions in the constitution, rather than determine the applicability of the living
customary law. Ngcobo J’s solution was to propose modification of the rule of
primogeniture to allow the eldest surviving child, whether male or female, to
succeed ‘to the position of family head’.198 A solution Higgins felt would,‘preserve

DRAFT
the valuable function of the customary successor while eliminating the gender
discriminatory aspects of the rule’.199
For Grant the Bhe decision leaves development of customary law poised
‘between the Scylla of legislative ossification and the Charybdis of case-by-case
development with all its attendant difficulties’.200 The South African Law Reform
Commission has proposed a median route that would allow the courts to seek
proof of customary law or foreign customary law from both written and oral
sources, including: cases, textbooks and other authoritative sources; expert opin-
ions, and assessors.201 The increasing use by Indigenous peoples of partial
codification of customary law may also have a role to play here, establishing guide-
lines and portals for the discovery of custom. Developing avenues of exchange,
areas in which trust may be built and spaces for the discovery of living law draw-
ing upon customary frameworks of dialogue may prove more productive than
relying upon adversarial-style procedures to ascertain custom. As Fletcher noted in
his study of First Nations tribal court systems, the adoption of an adversarial
approach ended in deadlock frustrating the court’s attempts to identify and apply
customary law.202 Based upon his experience as staff attorney and later appellate
judge for the Hoopa courts he argues that adoption ‘of an arbitration-style hearing
involving a battle of tribal elders as expert witnesses has … prevented the applica-
tion of any customary law in Hoopa courts’.203 At the same time, overly protracted
processes may equally frustrate the search for equitable solutions. Some form of
compromise in the working practices of both the customary and national legal
systems will likely be needed if they are to work together in a functional manner.
As Grant puts it,‘in the long term, creative ways must be found of reconciling the
practical needs of a modern legal system, the cultural heritage of the society it
 In search of the living law 99

serves and the observance of internationally recognised human rights norms’.204

Any attempts to force changes on Indigenous peoples who have only recently
secured recognition of their rights to their customary laws are bound to fail.Trust
will need to be built first and trust will only come if there are concerted efforts to
demonstrate due respect and due recognition for their legal regimes.
The expanding remit of customary law and of state obligations to secure its
recognition and enforcement demonstrates the need for clear guidance to the judi-
ciary on the status of customary law. Legal certainty and judicial commitment to
the enforcement of the law are two sides of the same coin. As has been seen in the
case of regional human rights institutions, decisions in one forum provide the
support for those in other regions. It will, therefore, be important to ensure that
cases brought before the courts to establish precedent in the area of recognition of
customary law are chosen with care.

DRAFT
5 Ancestral rights recovered
Lands and traditional territories

The relationship between Indigenous peoples and their traditional lands is on one
level the most tangible aspect of customary law. Under customary law, occupation
and possession, whether exclusive or shared, is demonstrative of rights and interests
associated with a defined territorial area and its resources. Boundaries, often fluid
and porous, are defined by the relationships between neighbouring families,
communities, clans and peoples.Whether hunting, fishing, tilling the land, harvest-
ing its bounty, celebrating sacred rites or other cultural ceremonies, Indigenous
peoples are involved in a relationship with their lands that is imbued with law and

DRAFT
custom. Observation of practices circumscribing each relationship is in essence an
observation of customary law. During the colonial period, Indigenous peoples’
ancestral land rights were largely ignored, negated or revoked by the application of
a variety of legal doctrines including terra nullius, discovery, conquest and adverse
possession. Over the years, all these doctrines have been discredited as the legal basis
for unilaterally dispossessing Indigenous peoples of their lands.1 In some cases this
has led to the recovery by Indigenous peoples of their land rights but in many cases
it has not.
During the period of decolonization an opportunity existed to secure recogni-
tion of Indigenous peoples’ rights over the lands and traditional territories, many
of which had been severed by arbitrary boundaries between states established by
colonial powers. Any hopes such Indigenous peoples might have had of reuniting
their traditional territories following decolonization were shattered by the applica-
tion of the doctrine uti possidetis, which was used to fix national boundaries on the
basis of borders inherited at the time of independence.2 Once again a doctrine was
conjured up to legitimize the continuing negation of Indigenous peoples’ ancestral
rights. Considering that at the time of decolonization the doctrines of discovery
and terra nullius had been discredited serious questions exist over the legitimacy of
applying the doctrine of uti possidetis to lands that had not been the subject of
conquest and are, in accordance with the doctrine of continuity, still subject to
customary law.The issue is further complicated by the lack of clarity over another
legal construct; the so-called ‘intertemporal rule’ which, according to D’Amato, sets
out the general principle that ‘with respect to title and treaty questions arising in
the distant past, the rules of international law that are applicable are those contem-
poraneous with the acts in question’.3 If the doctrine of continuity were applied,
 Ancestral rights recovered 101

the status of the law at the time of colonial division of the borders would include
customary law. This, however, has not been the outcome. Indigenous peoples who
have been dispossessed of their lands through the application of the discredited
doctrines of discovery and terra nullius and precluded from reunifying their lands
through the application of the doctrine of uti possidetis are deprived of any mean-
ingful avenue for redress through the misapplication of the intertemporal rule. If
that wasn’t enough, the doctrine of discovery establishes a plenary state power to
extinguish native title.Therefore, even if Indigenous peoples do secure recognition
of their ancestral land rights it continues to hold them at the sufferance of the state.
An alternative interpretation of the intertemporal rule was given in the 1928
Palmas Island Arbitration4 where Max Huber raised the possibility that the validity
of title should be adduced according to the state of law at the time of the relevant
act, which in the case in question would be the date of decolonization. If this were
the case then the rule would need to be applied taking into consideration that the
doctrines of discovery and terra nullius had been discredited, as a result of which the
purported rights of colonial governments over their colonial territories were ab
initio void. Any acts taken by the colonial government to establish borders and to
transfer the relevant territory to an incoming government in newly independent
states would then have questionable validity. The illegally established borders of
colonial territories would not therefore have the legitimacy to sustain subsequent

DRAFT
acts including the establishment of state borders based on uti possedetis.The estab-
lishment of national frontiers of newly independent countries by the international
community, incoming governments and retreating colonial powers could not then
have been validly carried out without the prior informed consent of Indigenous
peoples whose traditional territories spanned the imposed national borders.
Advances in human rights law have begun to address the inequities in the historic
treatment of Indigenous peoples’ land rights, they have not as yet, however, resolved
the conundrums associated with the recognition of sovereign rights and title over
lands acquired in blatant contradiction to international law itself. A significant body
of case law at the national and regional level, as well as before treaty bodies and
regional human rights institutions, has radically altered the extent of recognition and
protection of indigenous land rights, mostly, but not always, in their favour.5 This
chapter begins with an analysis of Indigenous peoples’ spiritual and cultural links to
their traditional territories, the status of their land rights and the role of customary
law in their recognition and protection at the international and national level. It
then goes on to examine in detail the issue of native title and its extinguishment,
with particular attention to the experience of Australia, Canada and South Africa.

Indigenous peoples’ rights to land

Land tenure is perhaps the most problematic issue in customary law.6 Special
Rapporteur Erica Irene Daes argues that lack of effective recognition and protec-
tion of indigenous land rights and discriminatory treatment of their ‘aboriginal
title’,‘accounts for the overwhelming majority of human rights problems affecting
Indigenous peoples’.7 Securing land rights is, therefore, central to achievement of
102 Ancestral rights recovered

Indigenous peoples’ rights to life, health, education, to their resources, traditional

knowledge, cultural integrity and self-determination as well as the protection of
cultural diversity. Securing Indigenous peoples’ rights to their lands requires more
than mere identification of occupancy; it requires an understanding of the special
nature of Indigenous peoples’ social, cultural and spiritual relationship with their
traditional land, territories and freshwater and marine areas.8 The need to under-
stand this relationship is clearly set out by Special Rapporteur Martinez de Cobo
in his 1983 report, where he says:

for Indigenous peoples, land does not represent simply a possession or means
of production. It is not a commodity that can be appropriated, but a physical
element that must be enjoyed freely. It is … essential to understand the special
and profoundly spiritual relationship of Indigenous peoples with Mother
Earth as basic to their existence and to all their beliefs, customs, traditions and
culture.9

Recognition of this special cultural and spiritual relationship is found in Article

13(1) of ILO Convention 169, which also recognizes the collective nature of such
rights. Article 13 is couched in mandatory language, which leads Thornberry to
conclude that when other considerations are evenly balanced ‘a weighting in favour

DRAFT
of the special indigenous relationship with land [should be applied] in any contest
with State authorities on the interpretation or application of the [Convention’s]
specific provisions [on land]’.10 At the regional level the African Commission on
Human and Peoples’ Rights has recognized the fundamental importance of
Indigenous peoples’ special attachment to and use of their traditional land ‘for their
collective physical and cultural survival as peoples’.11 In a similar vein, the Inter-
American Court of Human Rights in the case of The Mayagna (Sumo) Awas Tingni
Community v. Nicaragua12 held that:

For indigenous communities, [their relationship with] the land is not merely a
matter of possession and production but a material and spiritual element,
which they must fully enjoy … to preserve their cultural legacy and transmit
it to future generations.13

The UN Declaration on the Rights of Indigenous Peoples captures the historic,

current and intergenerational aspects of Indigenous peoples’ relationships with
their land, territories and resources.14 Article 25 of the Declaration recognizes
Indigenous peoples’ right to maintain and strengthen ‘their distinctive spiritual rela-
tionship with their traditionally owned or otherwise occupied and used lands,
territories, waters and coastal seas and other resources and to uphold their respon-
sibilities to future generations in this regard’. Article 25 captures the nature of that
relationship as one of both rights and responsibilities.These responsibilities, framed
in relation to future generations, are inherent in Indigenous peoples’ spiritual and
cultural relations with the land, based as it is on notions of reciprocity encompassed
by their customary law regimes.
 Ancestral rights recovered 103

Indigenous peoples’ rights over the lands they occupy and control was recog-
nized in the Cobo report,15 which called for immediate transfer of ‘all indigenous
reserved land to relevant Indigenous peoples to be controlled and owned by them
in accordance with their laws and customs’.16 The Cobo report also called for
proactive titling and registration of Indigenous peoples customary land and water
rights17 and for international and national recognition of the rights of Indigenous
peoples ‘to own their lands communally and to manage them in accordance with
the their own traditions and culture.’18 Both ILO Conventions 107 and 169 estab-
lish binding legal obligations upon states to recognize ‘collective’ rights of
‘indigenous populations’ and ‘Indigenous peoples’, respectively over the lands they
traditionally occupy.19 Although ILO Convention 107 applies to only 18 of the
countries, those states include Bangladesh and India, which are home to a very
significant proportion of the world’s Indigenous peoples.20 With regard to ILO
Convention 107, the ILO Committee of Experts on the Application of
Conventions and Recommendations has taken the view that ‘[t]raditional occupa-
tion, whether or not it has been recognised or authorised, does create rights under
the convention’.21 While recognizing that the term ‘traditional occupation’ is
imprecise, the Committee is of the opinion that ‘it clearly [covers] lands … whose
use has become part of their [the peoples] way of life’.22
ILO Convention 169 provides more explicit recognition of the rights of

DRAFT
Indigenous peoples to ownership and possession of the lands they traditionally
occupy. Article 14(1) of the Convention requires states to adopt measures to safe-
guard their rights to use lands ‘not exclusively occupied by them, but to which they
have traditionally had access for their subsistence and traditional activities’. It also
requires states to take necessary steps to identify and protect lands traditionally
occupied by Indigenous peoples23 and to establish adequate procedures to resolve
indigenous land claims.24 The state must carry out these obligations with attention
to the cultural, religious and spiritual values and practices of Indigenous peoples as
set out in Article 5. Article 8(1) of the Convention requires states to give ‘due
regard’ to Indigenous peoples’ ‘customs or customary laws’ in the application of
national laws and regulations to them. Based on his reading of Articles 5 and 8,
Ulfstein suggests that, in order to qualify as occupation necessary for the recogni-
tion of title, indigenous acquisition of ‘ownership’ should not necessarily require
‘exclusive control [over lands] to the same extent as under ordinary national prop-
erty law’.25 Similar arguments have been made with regard to interpretation of the
provisions on land rights in the UN Declaration on the Rights of Indigenous
Peoples.26
The UN Declaration on the Rights of Indigenous Peoples establishes distinct
levels of protection for land traditionally held but no longer occupied by
Indigenous peoples and lands and territories they still occupy. Article 26 of the
Declaration recognizes Indigenous peoples’ rights to the lands and territories
which they have ‘traditionally owned or occupied or otherwise used or acquired’,
without defining the extent of such rights. This is an, ‘ambiguous compromise’
recognizing indigenous rights but leaving it to national jurisdictions to interpret
the scope of those rights.27 Article 26 recognizes Indigenous peoples’ rights of
104 Ancestral rights recovered

ownership and occupation as well their rights to use, develop and control the lands
and territories they ‘possess’. The extent of Indigenous peoples’ ownership rights
over their lands and territories under the Declaration will depend upon the inter-
pretation given to the term ‘possess’. In Åhrén’s view:

the term has to be customized to an Indigenous peoples’ rights context. In

other words, one cannot necessarily expect and demand the same level of
intensity and exclusivity with regard to land utilization in indigenous cultures
compared to non-indigenous cultures.28

In support of his position he cites McNeil for the view that ‘possession’ in the
context of Indigenous peoples should be seen as ‘possession in fact’, giving rise in
turn to a presumption that Indigenous peoples also have ‘possession in law’.29 From
the perspective of those claiming continuing indigenous title based upon subsist-
ing sovereign rights,‘possession’ of itself raises a presumption of ‘customary tenure’
sufficient to ground recognition of rights under Article 26 of the United Nations
Declaration on the Rights of Indigenous Peoples. Åhrén argues that the generic
reference to ‘rights’ in Article 26 when read in the context of Article 25 of the
Declaration must be presumed to refer to both ‘cultural and property rights’.30 This
is reflected in the position of the Human Rights Committee in its General

DRAFT
Comment 23,31 and in its decisions in the Lubicon Lake Band, Mahuika, and the first
and second Lansmann cases, where the Committee recognizes state obligations to
take ‘positive legal measures’ to protect the material basis for Indigenous peoples’
culture.32 General Comment 23 notes that Indigenous peoples’ culture may mani-
fest itself as a ‘particular way of life associated with the use of land resources …
includ[ing] such traditional activities as fishing or hunting and the right to live in
reserves protected by law’.33 The Committee takes the view that Article 27 of the
International Covenant on Civil and Political Rights establishes an absolute barrier
to measures that would amount to a denial of the right to culture. The Committee
is clearly advocating recognition of Indigenous peoples’ rights to their ‘way of life’,
which includes their rights to their customary legal regimes.
The central role of customary law in the recognition, protection and adjudica-
tion of Indigenous peoples’ land rights is clearly recognized in the UN Declaration
on the Rights of Indigenous Peoples.Article 26(3) of the Declaration obliges states
to give legal recognition and protection to Indigenous peoples’ lands and territo-
ries in a manner which gives ‘due respect’ to their ‘customs, traditions and land
tenure systems.’ Article 27 obliges states to give ‘due recognition’ to Indigenous
peoples’ customary laws in the recognition and adjudication of their rights pertain-
ing to their lands, territories and resources, including those which they have
traditionally owned or otherwise occupied or used. To achieve this end, under
Article 27 states are obliged ‘in conjunction with Indigenous peoples’ to establish,
‘a fair, independent, impartial, open and transparent process’ to adjudicate their land
rights.Although stopping short of a requirement that recognition and adjudication
of land rights be solely based on customary law, the UN Declaration places custom
at the heart of the process for identifying and delimiting rights over their lands and
 Ancestral rights recovered 105

for the adjudication of any disputes that may arise in relation to them. This has
ramifications beyond the relationship between Indigenous peoples and the state,
bringing customary law into the process of adjudication of disputes between
Indigenous peoples and third parties. This is highly significant as it recognises the
role customary law has to play beyond the confines of Indigenous peoples’ own
internal affairs in the search for ‘intercultural justice’.34 It also marks an important
step towards the reincorporation of custom within the body of legal pluralism
governing land rights from which it has been illegitimately excluded through the
discredited policies of colonial and post-colonial legal governance.
The extreme diversity of indigenous cultures and customary law regimes mili-
tates against any assumptions of homogeneity in their systems for defining their
land rights. In a study of Minankabau of West Sumatra, where tensions exist
between state, Islamic, and adat law (customary law), Franz and Keebet von Benda-
Beckmann concluded that:

Treating’ communal rights’ as a more or less homogenous category and theo-

rizing over how people are likely to deal with property under a ‘common
property’ regime, without detailing the kind of communal property and the
very different possible constellations of concretised rights, is bound to fail.35

DRAFT
Similarly, a study of land rights in Vanuatu found the formal legal system had
distorted the practice of customary land tenure giving powers to customary chiefs
to alienate lands that are at odds with customary law.36 Constitutionally protected
customary land rights have in the past been easily, and frequently, overridden by
ministerial grants of leases to expatriate tourism and land development companies.
In the 30 years since independence, over 20 per cent of the 6,803 rural leases
granted were signed by the minister, as lessor. By 2010 over 50 per cent or 121 kilo-
metres of coastal Efate was the subject of leases; a figure that has probably increased
significantly in the subsequent years.37 Vanuatu’s constitution recognizes ‘customary
ownership’ of all land in Vanuatu (Articles 73 and 75). It also requires consultation
with the Malvatumauri (National Council of Chiefs) for the enactment of land law,
a practice that has never been formalized.38 As a result the constitutional provisions
designed to ensure customary oversight of land dealings have never been given full
effect. McDonnell argues that land law in Vanuatu has rendered ‘kastom’ interests in
land, legally and practically unimportant.39 Kastom remains however at the heart ‘of
peoples lives inVanuatu; it dictates the nature of relationships, gender and status, ways
of mediating disputes, ceremony and meaning, beliefs and being, hierarchy and
process’.40 As is the case among other Indigenous peoples, customary law inVanautu
is grounded on key legal principles. This is evident in the Raga term alenan vanua
used by Sia Raga of North Pentecost Island in place of kastom.41 According to Taylor,
alenan vanua refers not only to cultural practices but also to ‘a more deeply felt senti-
ment of correctness of human behavior and thought, one that is importantly merged
with place … [meaning] all the correct ways and ideas belonging to a place’.42 This
notion of correctness stands in stark contrast to the flagrant abuse of land law by
powerful interests to dispossess customary owners of their lands.
106 Ancestral rights recovered

Vanuatu’s constitution recognises both communal and individual rights of

ownership of land. This has provided the door for adoption of legislation that
enabled land sales by key figures in the Vanuatu state, including the Minister of
Lands.43 A National Land Summit convened in 2006 brought together hundreds of
chiefs from across Vanuatu in addition to representatives of the state, women and
youth groups as well as estate agents and others.44 The summit recommended that
land law in Vanuatu be modified to reflect communal ownership. In 2013 Ralph
Regenvanu, the incumbent Minister of Lands, initiated a programme to review
existing land laws in order to ensure more effective conformance with customary
law, the prevention of abuses of state and chiefly power and protection of the
customary land rights of community members.45 As part of this process the minis-
ter’s office arranged a wide participatory process culminating in a National Land
Law Reform Summit in 2013. On 20 February 2014, Vanuatu took a major
forward step with the adoption of a new Customary Land Management Act and
significant reform of the existing Land Reform Act. These new legislative instru-
ments rescind ministerial rights to grant leases on behalf of disputing land owner
groups, which was the basis for land grabs, and to lease state land without approval
of the Council of Ministers.The new laws are bolstered by constitutional changes
making it mandatory for the legislature to consult with the Malvatumauri regarding
any changes to land law (Article 30), and empowering customary courts to make

DRAFT
final and binding legal decisions regarding customary ownership of lands (Article
78). Article 78 (3) of the revised constitution provides that ‘the final and substan-
tive decisions reached by customary institutions or procedures … after being
recorded in writing, are binding in law and are not subject to any appeal or any
review by any Court of law’. In the words of Minister Regenvanu:

The new laws bring determination of custom owner groups back to custom-
ary institutions, it removes the power from courts and the government to
determine who the custom owners are and puts it back under rules of
custom.46

The transfer from the state courts to customary institutions (nakamals) is not
without danger. Nakamals are by and large dominated by Chiefs – the concept
of the ‘chief ’ originally introduced by missionaries has replaced or incorporated
traditional systems of governance in Vanuatu47 – opening the door to potential
abuse of customary authority. For this reason the new Customary Land
Management Act includes limited rights of appeal in the case of improper
process.48 It is too early to ascertain the extent to which the new land regime can
in fact secure equitable and just management of land rights in Vanuatu. Building
on the support of the National Land Law Reform Summit and of the
Malvatumauri, it is to be hoped the law may put an end to land grabs of custom-
ary owned land.
Fragmentation of communal property in order to promote its commodification
is a key factor leading to dispossession of Indigenous peoples. In New Zealand such
practices reportedly led to the transfer of a majority of Māori lands to the hands of
 Ancestral rights recovered 107

colonists in the fifty or so years following the signing of the Treaty of Waitangi.49
In Peru, indigenous lands previously viewed as inalienable, imprescriptible and not
subject to embargo, lost all but the latter protection in the constitution of 1993.
This constitutional change was all the more disturbing in the light of an earlier
finding by an ILO Committee of Experts that Peruvian legislation, which sought
to change communal indigenous lands to individual title,50 violated ILO
Convention 169.51 The ILO Committee warned in this case that:

when communally owned indigenous lands are divided and assigned to indi-
viduals or third parties, this often weakens the exercise of their rights by the
community or the Indigenous peoples and in general they may end up losing
all or most of their land, resulting in a general reduction of the resources that
are available to Indigenous peoples when they own their land communally.52

Attempts to frame Indigenous peoples’ land rights within notions of ‘ownership’

that are incompatible with indigenous interests in land is seen as a key failing of
the existing legal system in South Africa.53 The inappropriateness of applying
English notions of property rights to native title were recognized in the 1921 Privy
Council case Amodou Tijani v. The Secretary Southern Nigeria,54 where Viscount
Haldane states:

DRAFT
The title such as it is, may not be that of an individual as in this country it
nearly always is in some form, but may be that of a community. Such a
community may have a possessory title to the common enjoyment of the
usufruct, with customs under which its individual members are admitted to
enjoyment, and even to a right of transmitting the individual enjoyment as
members by assignment inter vivos or by succession. To ascertain how far this
latter development of right has progressed involves the study of the particular
community and its usages in each case.Abstract principles fashioned a priori are
of but little assistance, and are as often as not misleading.55

The Inter-American Court of Human Rights has established that ‘the right to
property protected under Article 21 of the American Convention, interpreted in
light of the rights recognized under Common Article 1 and Article 27 of the
ICCPR’ entitles Indigenous peoples to ‘enjoy property in accordance with their
communal tradition’.56 In doing so it does not impose communality on Indigenous
peoples but entitles them within the framework of their communal customs, laws
and traditions to organize their land holdings as they see fit. Based on the forego-
ing the court in the case of Saramaka v. Suriname held that:

the members of the Saramaka people make up a tribal community protected

by international human rights law that secures the right to the communal
territory they have traditionally used and occupied, derived from their long-
standing use and occupation of the land and resources necessary for their
physical and cultural survival, and that the State has an obligation to adopt
108 Ancestral rights recovered

special measures to recognize, respect, protect and guarantee the communal

property right of the members of the Saramaka community to said territory.57

The jurisprudence of the Inter-American Human Rights system has found indige-
nous communal land rights to stem from ‘ancestral use or occupancy’ and not from
any act of the state.58 It also recognizes the continuation of these rights where
Indigenous peoples have been dispossessed of their lands. In the words of the Inter-
American court in the case of the Sawhoyamaxa Indigenous Community v. Paraguay:

The members of Indigenous peoples who have unwillingly left their tradi-
tional lands, or lost possession thereof, maintain property rights thereto, even
though they lack legal title, unless the lands have been lawfully transferred to
third parties in good faith.59

A recent Report by the Inter-American Commission on Human Rights (IACHR)

takes the view that recipients of land under large land grants or where the state has
sold off indigenous lands are ‘unlikely to qualify as good faith innocent
purchasers’.60 Referring to the decision in Sawhoyamaxa Community the IACHR
Report claims that ‘neither the loss of material possession, nor prohibitions on
access to traditional territories by the formal owners are obstacles to the continu-

DRAFT
ous territorial rights of indigenous communities’.61 This is in direct contrast with
the position taken by the courts in Australia where a break in continuity for what-
ever purpose has been taken to extinguish native title, and raises questions
regarding the conformance of judicial approaches to native title in Australia with
international human rights law.
The issue of relocation of Indigenous peoples from their traditional lands is
highly controversial. ILO Convention 169 allows for forced relocation ‘as an
exceptional measure’,62 where the state has been unable to secure Indigenous
peoples’ ‘prior informed consent’. Under Article 16(3), Indigenous peoples are,
where possible, to be given an opportunity to return to their traditional lands, fail-
ing which, under Article 16(4), they are to be given commensurate lands except
where they express a preference for monetary or in kind compensation. The UN
Declaration on the Rights of Indigenous Peoples goes further, providing for redress
in cases in which Indigenous peoples’ lands and/or territories have been ‘confis-
cated, taken, occupied or damaged without their free, prior informed consent’.63
Redress is to take the form of restitution where possible and where this is not
possible ‘just, fair and equitable compensation’.64 The Committee on the
Elimination of Racial Discrimination (CERD) takes a similar position in its
General Recommendation No. 23 promoting a return where possible to their
lands saying compensation should be a remedy of last resort.65
The inherent difficulties associated with attempts to describe indigenous legal
concepts utilizing the technical vocabulary of dominant legal regimes were at the
forefront of a series of exchanges between Paul Bohannan and Max Gluckman,
pioneers of the study of customary legal regimes.66 Bohannan argued in favour of
the use of native terms to articulate indigenous legal principles and concepts,
 Ancestral rights recovered 109

whereas Gluckman felt that where it was practical to use English terms it was
preferable to do so.67 A compromise of sorts was proposed by Allott, who argued
for the use of ‘a simple, non-technical vocabulary … stripped of legalism’.68
Bennett describes how under indigenous legal regimes ‘two or more interest-hold-
ers may, simultaneously, exercise rights and powers over the same tract of land’, in
contrast with the situation under common law notions of ‘ownership’ that ‘tend to
represent the [interests in land] as if one person, or body of people, holds a plenary
right out of which fractions are given to others’.69 Like Allott before him, Bennett
seeks to escape the restraints of dominant legal traditions in general in order to take
a new look at customary rights to land and resources based upon the perspective
of Indigenous peoples themselves. What he proposes is a restructuring of notions
of property rights and ownership in order to accommodate and show respect for
Indigenous peoples’ concepts of land interests.Without such understanding, efforts
to promote Indigenous peoples’ land rights run the risk of imposing foreign
notions of ownership and erroneous perceptions of the structure of Indigenous
land rights, rather than securing empowerment of customary law and the enforce-
ment of ancestral land rights. Even more problematic is the use of foreign doctrinal
fictions to first recognize and then dispossess Indigenous peoples of their land
rights based customary law. This is the sadly ironic experience of native title
through which the courts have given recognition to Indigenous peoples’ land

DRAFT
rights, with one hand, and taken them away with the other.

The doctrine of discovery, native title and its

extinguishment
In the United States of America, Chief Justice Marshall, in the 1823 case of Johnson
v. McIntosh,70 developed the doctrine of residual tribal sovereignty over the lands.71
The notion of residual sovereign rights was restricted by Marshall’s application of
the discovery doctrine and the notion that indigenous rights were held at the
sufferance of the state. Describing the establishment of relations between the
discoverer and Indigenous peoples the US Supreme Court held:

[t]he rights of the original inhabitants were, in no instance, entirely disre-

garded; but were necessarily, to a considerable extent impaired. They were
admitted to be the rightful occupants of the soil, with a legal as well as a just
claim to retain possession of it, and to use it according to their own discretion;
but their rights to complete sovereignty, as independent nations, were neces-
sarily diminished, and their power to dispose of the soil at their own will, to
whomsoever they pleased, was denied by the original fundamental principle,
that discovery gave exclusive title to those who made it.72

Seen as a compromise between the rights of settlers and Indigenous peoples, the
limited sovereignty granted to Indigenous peoples over their lands was held subject
to the plenary right of Congress to extinguish such rights.The doctrine of discov-
ery, as applied in the influential case of Johnson v. McIntosh continues to undermine
110 Ancestral rights recovered

Indigenous peoples’ rights up to the present day.73 At the same time, the notion of
Indigenous peoples as ‘domestic dependent nations’ as Marshall characterised them
in the later cases of Cherokee Nation v. Georgia (1831)74 and Worcester v. Georgia
(1832),75 recognized the right of Indigenous peoples to self-government ‘except to
the extent diminished by treaty’.76 This was a level of recognition far beyond what
was granted Indigenous peoples in many other colonial jurisdictions, which were
happy to appropriate and apply the doctrine of discovery as laid out in Johnson v.
McIntosh but were less willing to recognize Indigenous peoples’ rights to govern
their own affairs according to their own laws and practices.
Variously referred to as native title, traditional title and aboriginal title,
Indigenous peoples’ rights over their traditional lands has been recognized in differ-
ing ways in many common law countries, including Australia,77 Canada, Malaysia,
Tanzania, New Zealand and South Africa.78 The influence of the notion of
common law aboriginal title may also be seen in non-common law jurisdictions
such as Norway and the Philippines.79 Up until the early 1970s most of these coun-
tries resisted the notion of Indigenous land rights derived from an underlying title
based on customary law. Since then there has been at first a steady increase in native
title jurisprudence, which has dramatically changed the fortunes of Indigenous
peoples and the recognition of their land rights.The greatest part of this jurispru-
dence has come about in Australia and Canada.80 Their respective approaches to

DRAFT
identification of native title have, however, diverged. According to McHugh,
Australia has adopted an acknowledgement approach that places emphasis on the
‘normative continuity of Indigenous customary law’.81 While Canada has adopted
a translation approach that views traditional use and occupation as providing the
requisite possession required by the common law to identify the existence of
aboriginal title at the time of Crown sovereignty.82 One common denominator
across the board is that customary law plays a central role either in the identifica-
tion of aboriginal title or in the identification of the rights and obligations relating
to the exercise of rights over lands arising from aboriginal title. A key factor in
determining the extent and application of customary law to the identification and
administration of native title is its relationship with the common law.
In Australia native title, first recognised in Mabo v. Queensland (No.2),83 is
deemed to rest on customary law of Aboriginal peoples and ‘though recognized by
the common law, is not an institution of the common law’.84 In the words of
Brennan J.:

Native title has its origin in and is given its content by the traditional laws
acknowledged by and the traditional customs observed by indigenous inhabi-
tants of the territory. The nature and incidents of native title must be
ascertained as a matter of fact by reference to those laws and customs.85

In Canada, aboriginal title has been viewed as a sui generis right; something that
‘cannot be completely explained by reference either to the common law rules of
real property or to the rules of property found in aboriginal legal systems’.86 In
South Africa, traditional title derives not by virtue of the common law but by
 Ancestral rights recovered 111

virtue of the Constitution which places customary law alongside common law as
a source of law.87 While the Sabah and Sarawak High Court has held that ‘native
title is not dependent upon any legislation, executive or judicial declaration’ as it
existed long before any legislation and ‘legislation is relevant only to determine
how much of those native customary rights have been extinguished’.88
Whatever form it has taken, common law aboriginal title has, McHugh claims,
‘changed and redirected irreversibly the course of race relations and, ultimately,
constitutional identity in all those jurisdictions’.89 The 1992 Mabo decision, for
example, gave an immense boost to the indigenous rights movement.90 The adop-
tion of the 1993 Native Title Act and the decision of Wik Peoples v. Queensland,91
which held that a grant of a pastoral lease over a given area does not necessarily
extinguish native title over the same area, were also widely welcomed.The limita-
tions of the Mabo decision for Aboriginal peoples were not, however, lost on
Aboriginal peoples. Dodson for example, warned that:

the decision by the High Court [in Mabo, does not recognize] our land rights
as we understand them … We know that the High Court attempted to accom-
modate indigenous law and custom within the colonial common law but it
was only able to understand our law and custom from within the framework
of Eurocentric colonial legacy and political systems.92

DRAFT
For Mansell the decision in Mabo, was designed ‘effectively … [to] quell any
Aboriginal thoughts of sovereignty’,93 and he prophetically warned that ‘what the
gods give, they can taketh away’.94 That the warning was well made became all too
apparent with the adoption in 1998 of the Native Title Amendment Act which
rolled back previous advances in the law and increased possibilities for extinguish-
ing native title. In YortaYorta Aboriginal Community v. Victoria,95 the first case to deal
with native title following adoption of the Native Title Amendment Act, the court
established two key requirements for the proof of native title: society and continu-
ity.96 Yorta Yorta in effect decided that where Indigenous peoples have failed, for
whatever reason, to maintain their community and/or the practice of their tradi-
tional customs and laws, their native title cannot be resuscitated. In Barcham’s
words Indigenous peoples were required to match an ‘impossible standard of
authentic traditional culture’.97 Although the Court in De Rose v. South Australia98
recognized the compatibility of ‘evolutionary traditional law’ with the requirement
for continuity, subsequent cases such as Risk v. Northern Territory99 (the Larrakia
case),100 and Bodney v. Bennell 101 have shown Australian courts to have little interest
in the reason for any interruption in the observance of traditional law and
custom.102 The irony is that the state having promoted and facilitated the dispos-
session of indigenous lands and the prevention thereby of the continuing practice
of relevant customary law now relies on the breakdown of custom to deny
Aboriginal peoples their ancestral land rights. In the words of the Australian Social
Justice Commissioner in the Native Title Report 2009 ‘those who have been most
dispossessed by white settlement have the least chance of establishing native title’.103
This is clearly at odds with the direction being taken by the Inter-American Court
112 Ancestral rights recovered

for Human Rights in its decision in Sawhoyamaxa Indigenous Community v.

Paraguay,104 where the court recognized subsisting rights over lands even where
there was a loss of material possession, a decision with far reaching significance for
common law aboriginal title.105
In Canada, Indigenous peoples’ native title rights were significantly strengthened
by the adoption of Section 35 of the Constitutional Act 1982, which created obli-
gations to recognize ‘existing’ aboriginal and treaty rights, including ‘rights that
exist by way of land claims agreements or may be so acquired’.106 The extent of this
obligation with regard to aboriginal rights was fleshed out in R v. Sparrow,107 which
‘confirmed the existence of free-standing aboriginal rights apart from aboriginal
title’.108 These rights arose, explain Barsh and Youngblood Henderson, where ‘a
“practice” existed prior to accession of Crown sovereignty and had not been prop-
erly extinguished by the Crown prior to the Constitutional Act of 1982’.109 This
was not, however, recognition of the doctrine of continuity, which would have
required the state to recognize all un-extinguished rights as subsisting native title.110
Any optimism Indigenous peoples might have had that the Supreme Court would
prove sympathetic to indigenous issues, were dashed in a series of judgments
including the Van der Peet trilogy111 and R v. Pamajewon.112 The Van der Peet deci-
sion adopted a controversial test for identification of indigenous rights,113 which
requires that not only must a practice be shown to be pre-colonial but also it must

DRAFT
be shown to have been ‘integral to a distinctive culture’.114 The so-called ‘integral
to a distinctive culture’ test, which the court has applied to rights protected by
Article 35(1) of the Constitution Act may be distinguished from the wider range
of common law rights arising under the doctrine of continuity, only some of which
will meet the Van der Peet test.115 Halewood argues in favour of a policy providing
for recognition of both the doctrine of continuity and the ‘integral to a distinct
culture’ test, saying this would lead to ‘a wider range of aboriginal rights … [being]
protected’.116 In the leading case of Delgamuukw v. British Colombia the Supreme
Court distinguished recognition of rights from recognition of title and established
a separate test for the latter.117 In the words of Lamer CJ,‘under the test for aborig-
inal title, the requirement that the land be integral to the distinctive culture is
subsumed by the requirement of occupancy’.118 The Supreme Court clearly did not
want to be the arbiter of what any final agreement on land rights would look like
and it has consistently pushed states to negotiate with Indigenous peoples rather
than to enter into litigation.119
Recognition of traditional title in South Africa arose within the framework of
Indigenous peoples’ invocation of their rights to restitution of lands under the
constitution and the Restitution of Land Rights Act.120 The 1994 Restitution Act
is significantly different from the Australian Native Title Act (1993), in that it breaks
with the notion of establishing continuity as a condition for recognition of title.121
It is, to quote Choudree and McIntyre, ‘dealing with rights which have been
acknowledged to have been “taken away” and are being “given back”’.122 This
difference in focus was to have a significant impact in the case of the Richtersveld
Community and others v. Alexkor Limited and Another.123 In that case Vivier ADP, at
the Supreme Court of Appeal, found that the Richtersveld Community’s
 Ancestral rights recovered 113

customary right of ownership, which had survived the annexation by the British
Crown, constituted a ‘customary law interest under their indigenous customary law
entitling them to exclusive occupation and use of the subject land and that its
interest was akin to the right of ownership held under common law’,124 that is a
‘right in land’.125 Although the court found it was unnecessary to decide on the
issue of whether or not the doctrine of native title forms part of South African
common law, its decision has been described as ‘akin to’, or an ‘implied’ application
of the doctrine of native title.126 On appeal the Constitutional Court emphatically
divorced the recognition of traditional title based on indigenous law from the
common law, holding:

While in the past indigenous law was seen through the common law lens, it
must now be seen as an integral part of our law. Like all law it depends for its
ultimate force and validity on the Constitution. Its validity must now be deter-
mined by reference not to common law, but to the Constitution … [T]he
Constitution acknowledges the originality and distinctiveness of indigenous
law as an independent source of norms within the legal system …
[I]ndigenous law feeds into, nourishes, fuses with and becomes part of the
amalgam of South African law.127

DRAFT
This decision takes custom out from under the heel of common law and, it is
posited, distances Indigenous peoples’ traditional title from the powers of extin-
guishment associated with the notion of ‘residual right of occupancy’ delineated by
Marshall in McIntosh,128 almost two centuries ago. The Richtersveld case drew upon
the Canadian application of native title to recognize exclusive ownership rights, the
Australian practice of grounding those rights on customary law and extended rights
further to include sub-soil minerals and precious stones.129 Despite the high profile
given the Richtersveld case the doctrine of native title has not led to the level of activ-
ity seen in both Canada and Australia.130 The Richtersveld case has, however, proved
influential elsewhere. It has, for example, been relied upon in a landmark decision
by the Supreme Court of Belize, in the case of Cal v. Attorney General,131 where the
court found that the Maya communities of Conejo and Santa Cruz had communal
title to their lands based upon ‘Maya customary land tenure’.132 In his judgement,
Chief Justice Abdulai Conteh opined ‘it is my considered view that both customary
international law and general principles of international law would require that
Belize respect the rights of Indigenous peoples to their lands and resources’.133 The
Richtersveld case also inspired actions by the Basrwa people to recover their rights to
follow their traditional lifestyle within the Central Kalahari Game Reserve, from
which they had been relocated. In Sesana v. Attorney General (Botswana)134 the
Botswana High Court held in their favour saying their aboriginal title based on
customary law subsisted the creation of the game reserve.135
The widespread recognition of native title demonstrates a clear state practice of
recognizing customary law as the basis for the identification and adjudication of
Indigenous peoples’ rights over their lands.The recognition of ancestral land rights
is at one and the same time acceptance of Indigenous peoples’ rights to their
114 Ancestral rights recovered

customary laws and to the lands they describe. It is also recognition of the role of
customary law in securing Indigenous peoples’ human rights. Native title comes,
however, with a sting in the tail in the form of what Erica-Irene Daes describes as
an ‘illegitimate assumption of State Power to extinguish such title’.136 The notion
of native title delineated by Chief Justice Marshall in Johnson v. McIntosh is a
double-edged sword, providing limited rights to Indigenous peoples over their
own lands and territories while vesting plenary power in the state to unilaterally
override and extinguish their ancestral title.137 A relatively recent application of this
principle occurred in the case of the Tee-Hit-Ton Indians v. United States,138 where
the US Supreme Court held that (subject to some limited exceptions) the United
States may ‘confiscate the land or property of an Indian tribe without due process
of law and without paying just compensation’.139 This amounts to racially discrim-
inatory treatment of Indigenous peoples’ land rights by the court, which in its
‘wisdom’ excluded lands held under native title from the protection granted to all
other forms of property under the constitution.140 This discrimination unfortu-
nately continues despite the discrediting of the various doctrinal fictions utilized in
the great colonial land grab.
In 1975, the International Court of Justice in its Advisory Opinion in the
Western Sahara Case,141 firmly debunked the theory of terra nullius, which underlay
much of the colonial acquisition of indigenous lands. In the words of Judge

DRAFT
Ammoun,Vice-President of the Court, ‘the concept of terra nullius, employed at
all periods, to the brink of the twentieth century, to justify conquest and coloniza-
tion, stands condemned’.142 In Australia, the High Court in Mabo, while accepting
this view, took the position that it had no power to take any decision that would
‘fracture the skeletal principle of our legal system’.143 The Court’s dilemma was how
to recognize indigenous land rights without undermining property rights granted
to settlers and immigrants across Australia. For Anaya, the court was ‘bowing to
political considerations akin to those prevalent in Johnson v. McIntosh’,144 and the
notion of native title as devised by Marshall served the purpose well. Brennan J,
described native title as a residual right that having survived ‘the Crown’s acquisi-
tion of sovereignty, burdens the Crown’s radical title’ and was as such extinguishable
by specific acts of the legislature.145 For Mansell, Mabo demonstrates the racist posi-
tion that ‘Indigenous peoples’ interests in land are something less than the interests
of Europeans’.146 Despite the inherent limitations of the decision, Mabo raised
significant expectations for recognition of indigenous land rights. These were
dashed with the adoption of the 1998 Native Title Amendment Act and trampled
on in cases such as a YortaYorta Aboriginal Community v. Victoria,147 which set the bar
for recognition of native title at an almost impossible level.148 In 2005, the
Committee on the Elimination of Racial Discrimination recommended that
Australia review the requirement of such a high standard of proof,‘bearing in mind
the nature of the relationship of Indigenous peoples to their land’.149
In the view of Aboriginal leader and barrister Noel Pearson, ‘[a] horrendous
burden of proof … [has been] placed upon native claimants purely through the
misconception of title arising from misapplication of the common law’.150 This
misconception he argues derives from an erroneous assumption that native title
 Ancestral rights recovered 115

springs from the rights and interests established under traditional laws and
customs.151 For Pearson, evidence of customary law is relevant only with regard to
the exercise of rights or interests arising from possession. In his words:

Where there are questions about the rights of native title holders in relation
to one another, then they are to be settled by reference to Aboriginal law and
custom.Where there are questions concerning the rights of native title hold-
ers in relation to those outside the aboriginal system of law and custom, then
they must be determined by the common law.152

Pearson argues that neither common law nor Aboriginal law defines native title.153
It is, he says, in the space between the two systems that recognition of native title
occurs. Extinguishment of native title does not, he argues, extinguish Aboriginal
title but rather extinguishes recognition of Aboriginal title in relation to the land.154
He goes on to argue that lawyers and judges have been too quick to assume that
‘a so-called extinguishment event is fatal to the recognition of Aboriginal entitle-
ment to land’.155 Pearson respectfully takes a different position from McNeil on the
issue of possessory title, arguing that the ‘common law on possession applies to native
title’.156 To build his argument he refers back to the decisions of Chief Justice
Marshall in Johnson v. McIntosh,157 Worcester v. Georgia158 and Mitchel v. the United

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States,159 all of which he points out grounded native American title in occupation
of the land, not ‘in a primary sense on their traditional laws and customs’.160 He
goes on to quote McNeil, who concluded:

The Crown (and hence the States or the United States as the case might be)
… acquired the ‘naked fee’, which it could grant, subject always to the Indian
right of occupancy … That right, it seems, is generally the same throughout
the United States: it depends not on the particular customs or laws of indi-
vidual tribes (the existence of which has none the less been acknowledged) ...
but on their actual occupation of lands from what has been said to be ‘time
immemorial’.161

Pearson’s point is that native title should always be found where there was occu-
pation by the predecessor native community at the time of sovereignty.162 This
would accord with the doctrine of continuity and the presumption of ownership
arising from possession under common law. Pearson concludes that it is the right
of occupancy in accordance with traditional laws and customs that subsisted after
the Crown assumed sovereignty, rather than the rights established under custom-
ary law and practice; a subtle but crucial distinction.163 In his view the laws and
customs of Indigenous peoples are only relevant in the following ways:

• They identify which Indigenous people are entitled to the right to occu-
pation of the land, and they govern the descent of this entitlement
through the generations;
• They identify the territory to which Indigenous people are entitled; and
116 Ancestral rights recovered

• They govern the internal allocation of rights, interests and responsibilities

amongst members of the indigenous community and regulate how
members of the community exercise these.164

By restricting Indigenous peoples’ rights over their lands to the rights adduced by
the courts to have existed under customary law at the time of sovereignty the
Australian courts have, in Pearson’s view, accorded indigenous Australians a lesser
form of ownership than someone who was squatting the land.165 If that’s not racist,
what is?
In language reminiscent of Brennan J’s dictum in Mabo, the Canadian Supreme
Court in Delgamuukw described aboriginal title as a ‘burden’ on the ‘Crown’s
underlying title’, that crystallized at the time of sovereignty. In Borrows’ words, the
notion that ‘Aboriginal title is a burden on the Crown’s underlying title’ is the
magic like incantation, the mantra of sovereignty, which by its mere assertion ‘is
said to displace previous Indigenous titles by making then subject to and a burden
on, another people’s higher legal claims’.166 The decision, in Delgamuukw he argues,
subordinates aboriginal peoples’ legal systems167 and asks Aboriginal peoples to
accept ‘the notion that they are conquered’168 and submit to treatment in a fashion
‘analogous to serfs, dependent on their lord to hold the land in their best inter-
ests’.169 For Borrows, the inherent presumption of a Crown right to subordinate

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aboriginal title as part of the doctrine of residual title is of itself wrong in law and
can never be the basis for reconciliation.170 He asks, very pertinently, ‘if the rule of
law cannot be relied upon to overcome the political and economic exploitation of
Aboriginal peoples, what assurances do we have that it will not be equally vulner-
able in situations involving non-aboriginal Canadians?’171
The Canadian Constitution Act of 1982 in effect terminated the Crown’s
unilateral right to extinguish aboriginal title. In R v. Sparrow,172 the Supreme Court
established a ‘justification test’ requiring the government to show a ‘substantial and
compelling’ legislative objective in cases where Indigenous peoples’ rights over
their lands were ‘infringed’ contrary to the Crown’s fiduciary obligations towards
First Nations under the 1982 Act.173 In Delgamuukw the Chief Justice took the
opportunity to set out a list of ‘legislative objectives’ that might be read as
‘compelling and substantial’ saying:

The development of agriculture, forestry, mining, and hydroelectric power, the

general economic development of the interior of British Colombia, protec-
tion of the environment or endangered species, the building of infrastructure
and the settlement of foreign populations to support those aims, are the kind
of objectives that are consistent with this purpose and, in principle, can justify
the infringement of [A]boriginal title.174

The Chief Justice’s list includes all of the most threatening development activities
from the perspective of Indigenous peoples, including dam building, mining, oil
and gas exploration, the lumber and cattle ranching industries and associated
colonization, as well as the imposition of protected areas. Labelling such potentially
 Ancestral rights recovered 117

devastating threats to the cultural integrity and land rights of Indigenous peoples
as merely ‘infringements’ is, says Borrows, ‘an understatement of immense propor-
tions’.175 Xanthaki claims the Chief Justice’s long list falls below international
standards requiring that ‘limitations on human rights must be interpreted and
applied restrictively’.176 In 1999, the Human Rights Committee in its Report on
Canada recommended that ‘the practice of extinguishing inherent aboriginal rights
be abandoned as incompatible with Article 1 of the Covenant’.177
According to Morse, where rights of Indigenous peoples have been recognized
under Section 35 of the Canadian Constitution, Indigenous peoples may in appro-
priate circumstances be entitled to exercise a right of veto in relation to initiatives
infringing their constitutionally protected rights.178 A series of cases between 2004
and 2005 have, he claims, placed a ‘legally enforceable duty’ upon federal and
provincial governments to consult with Indigenous peoples whenever they are
contemplating ‘initiatives that could infringe upon aboriginal or treaty rights’.179
This obligation exists whether or not those rights are potentially entitled to recog-
nition under law or have in fact been confirmed by law.180
Native title, for all its weaknesses, has had a significant impact on land rights; in
Australia, for example, the indigenous estate including native title lands now accounts
for almost 30 per cent of the total land mass.181 A large percentage of the lands are,
however, in more remote areas of the continent, and the majority of lands are held

DRAFT
under titles granted by statute and not native title.182 Justice Douglas Lambert,
discussing the legacy of Delgamuukw notes the increased openness shown by the
court to reception of evidence in the form of oral histories.183 He also notes the
‘extensive core of aboriginal self-government rights’ that are inherent in recognition
of ‘aboriginal title’, rights he suggests may at some point be deemed to include the
right to ‘an integrated aboriginal justice system’ under Section 35(1) of the Canadian
Constitution.184 Lambert suggests that a more sympathetic reading of the whole
notion of residual title would provide ample opportunities for greater equity in
recognition of indigenous rights. With regards to indigenous land holdings in
Canada, Morse has set out in detail the comprehensive land claims of First Nations,
Inuit and Métis peoples based upon their subsisting title within the framework of the
federal government’s Comprehensive Land Claims Policy.185 Of these, the Nunavut
land claim is by far the largest settlement, at 1,900,000 square kilometres.The settle-
ment establishes Nunavut as a separate State within the Canadian Federal system,
with its own territorial government rather than an Inuit system of self-government.
This strategy is not without risks as McHugh notes,186 citing the case of Kadlak v.
Minister of Sustainable Development (Nunavut)187 for the view that:

Political and economic equality will replace the values of consensus decision-
making, respect for the wisdom of elders, the extended family, sharing and
land-based subsistence which are the hallmarks of Inuit community life.188

The Kadlak case notes that ‘[n]ationally Inuit Tapirisat of Canada have indicated a
willingness to consider having the charter of rights and freedom apply to Inuit
self-government’.189 The challenge for the Nunavut legislature and courts will be
118 Ancestral rights recovered

to find a way to recognize and support collective customary law values while
promoting realization of individual human rights in accordance with the Charter.
Canadian settlements have included a mixture of monetary payments and land
and resource rights, including rights to share in benefits of resource exploitation.
The benefits secured in each case were, Morse says, dependent on factors, such as
‘[t]he relative bargaining strength of the parties, the quality of the leadership
involved, national politics that determine the party in power, its location in rela-
tion to urban centres, the evolution in negotiations and changes in legislation and
case law’.190 Similar conditions are noted by McRae et al. with regard to land rights
negotiations involving Aboriginal peoples in Australia where 99.7 per cent of
native title areas and 99.8 per cent of non-native title areas, forming part of the
indigenous estate, are located in remote parts of the country.191 The more isolated
the area claimed the more likely Indigenous peoples are therefore to secure recog-
nition of their ancestral rights.
While native title has undoubtedly played an important role in forcing reluctant
federal and state governments to negotiate with Indigenous peoples for recogni-
tion of their ancestral rights, the process has not been pretty and has fallen far short
of an equitable solution for the historic expropriation of lands. A question for the
future will be whether native title was the best deal Indigenous peoples could have
got. Borrows highlights by way of example, the significant inroads into indigenous

DRAFT
sovereignty in the Nisga’a Final Agreement, which required the Nisga’a to relin-
quish all future claims over traditional territories not included within the
framework of the final agreement.192 They were also required to submit their courts
to the discipline of the British Colombia Supreme Court, with its questionable
history towards Indigenous peoples’ rights.193
Extinguishment although presumed by the state to void aboriginal title does not
erase aboriginal people’s views of their links to the land. Wayne Bergman,
Executive Director of the Kimberly Land Council, commenting on the decision
by the Australian High Court in Ward and his sense that ‘each time we go back to
court we lose a little more’, claims that:

even though this extinguishment of our rights is deemed to have taken place
in Australian Law, it is not as if that part of the Miriuwung Gajerrong peoples’
traditional country has gone away. Nor have the people with responsibilities
to care for the country gone away. People do not give up on their law and
culture just because Australian law is incapable of recognising it. In this way
the decision changes nothing.194

Gilbert suggests three areas in which human rights law may intervene with regard
to extinguishment.195 These include judicial oversight of the justifications for extin-
guishment, examination of the relationship between indigenous title and
non-indigenous title and the existence or otherwise of discrimination regarding
their recognition, and progressive realization of rights to participation and
consent.196 Advances in human rights law may not only strengthen native title but
may also replace it with a more solid and less malleable right over traditional lands
 Ancestral rights recovered 119

and territories. Such a right would be based upon occupancy and customary law,
and would not be so easily overturned, diminished or ignored by the legislature,
Crown or other plenary power.
The widespread recognition of indigenous title based upon subsisting rights
grounded in customary law is a clear recognition of the role of customary law in
securing Indigenous peoples’ human rights. The very notion of indigenous terri-
torial rights is itself a declaration of customary law and the extensive recognition
and titling of Indigenous peoples’ lands across the world is the strongest manifesta-
tion of respect and recognition for their customary legal regimes to date.There can
be little, if any, doubt that Indigenous peoples’ rights to recognition of their tradi-
tional land rights has crystallized into a norm of customary international law. If
recognition of traditional territory amounts to recognition of customary law then
it is safe to claim that the obligation for states to recognize and respect customary
law of Indigenous peoples and apply it for the enforcement of their human rights
is by extension a norm of customary international law.

DRAFT
6 Natural resources or essences of
life?

Indigenous peoples’ rights to self-determination and cultural survival are both

dependent upon and threatened by natural resource use. On the one hand,
Indigenous peoples’ daily subsistence, development, spiritual and cultural well-
being is intertwined with the natural environment and biodiversity. On the other
hand, natural resource exploitation is the single biggest threat to their territorial
and cultural integrity and in some cases to their very existence. Effective and sensi-
tive control of resource use is, therefore, crucial for the realization of their human
rights and the protection of their territorial, environmental and cultural integrity

DRAFT
and enjoyment of their way of life. Despite significant advances in national and
international law, overwhelming pressures continue to be placed upon Indigenous
peoples by industrial and state exploitation of oil, gas, mineral, fisheries, forestry and
freshwater resources. At the same time, Indigenous peoples’ local seeds and breeds,
including medicinal plants and genetic resources, are threatened by agricultural
concentration, environmental destruction, biopiracy and their lack of secure land
tenure and political influence.
This chapter examines Indigenous peoples’ resource rights under international
law, with particular attention to the right to permanent sovereignty over natural
resources. It continues with consideration of the role of customary law in the
recognition and enforcement of resource rights both in the form of claims to native
title and the use of traditional courts to resolve conflicts over mining activities. It
then turns to the issue of regulation of access to genetic resources and prevention
of biopiracy and the related issues of farmers’ and livestock keepers’ rights and the
conservation of agrobiodiversity.The chapter concludes with a brief consideration
of threats to Indigenous peoples’ rights to forests, including those posed by climate
change mitigation programs involving carbon sequestration in forests.

Indigenous peoples’ rights over natural resources

Indigenous peoples’ rights over their natural resources is firmly grounded in
Common Article 1(2) of the two 1966 international covenants, which states that
‘All peoples may, for their own ends, freely dispose of their natural wealth and
resources … [and that] … no people may be deprived of their means of subsis-
tence’. Common Article 1 does not protect a right to subsistence, but to ‘the means
 Natural resources or essences of life? 121

of subsistence’ which for Indigenous peoples must embrace their ‘way of life’ and
access to the resources necessary to meet food, housing, clothing and other needs
vital for subsistence, which must mean more than mere survival.
As most Indigenous peoples’ ‘way of life’ is inextricably linked to the natural
environment – forest dwelling peoples depend on the forest, nomadic livestock
herders depend on traditional grazing sites, while fisherfolk need access to tradi-
tional freshwater and marine areas – protection of that environment is a crucial
factor in ensuring the protection of their means of subsistence.This makes the link
between Indigenous peoples’ rights to self-determination in Common Article 1(1)
of the 1966 covenants and their rights to the resources necessary for their subsis-
tence under Common Article 1(2) patently clear. Ted Moses, Grand Chief of the
Grand Council of Crees, describes this link as follows:

When I think of self-determination, I also think of hunting, fishing and trap-

ping. I think of the land of the water, the trees, and the animals. I think of the
land we have lost. I think of all the land stolen from our people. I think of
hunger and people destroying the land … the end result is too often identical:
we Indigenous peoples are being denied our own means of subsistence … our
right to self-determination contains the essentials of life – the resources of the
earth and the freedom to continue to develop and interact as societies as

DRAFT
peoples.1

One of the defining aspects of self-determination is its recognition of the princi-

ple of permanent sovereignty over natural resources and of the associated right to
freely dispose of natural wealth and resources. Special Rapporteur Erica-Irene Daes
argues that ‘the right of permanent sovereignty over natural resources was recog-
nized because it was understood early on that without it, the right to
self-determination would be meaningless’.2 The Human Rights Committee has
emphasized that the right to self-determination requires that all ‘peoples’ must be
able to freely dispose of their natural wealth and resources and that they may not
be deprived of their means of subsistence.3 In a similar vein, the 1986 United
Nations Declaration on Development provides that:

The human right to development also implies the full realization of the right
of peoples to self-determination, which includes, subject to the relevant provi-
sions of both International Covenants, the exercise of their inalienable right to
full sovereignty over all their natural wealth and resources.4

Article 15(1) of ILO Convention 169 requires special safeguard be given to

Indigenous peoples’ rights to natural resources pertaining to their lands, including
rights to participate in their use, management and conservation. Although, the
Convention’s provisions on rights to resources do not talk of ‘ownership’ but rather
of rights of ‘use’, these rights are extensive, applying to ‘the total environment of
the areas which the peoples concerned occupy or otherwise use’.5 This may
include, for instance, traditional land or marine territories used for hunting and
122 Natural resources or essences of life?

fishing,6 as well as areas used by pastoral nomadic peoples for watering or pastur-
ing their herds or flocks, whether or not under their ownership or possession.7
Article 15 (2) of ILO Convention 169 addresses the controversial issue of natural
resources over which the state exercises control, in particular mineral and sub-
surface resources. In such cases the state is obliged to consult with Indigenous
peoples in advance of undertaking or permitting any programmes for the explo-
ration or exploitation of resources on their lands.8 Indigenous peoples are to
participate in benefits of such activities and to receive fair compensation for any
damage arising.9
Under Articles 26 and 27 of the UN Declaration on the Rights of Indigenous
Peoples, Indigenous peoples are entitled to the same level of protection of their
rights over their resources as apply to their lands and traditional territories.10 This
includes rights to own, use, develop and control the resources they possess by
reason of traditional ownership or other traditional occupation or use or which
they have otherwise acquired.11 These rights must be adjudicated with due respect
for their customs, laws and land tenure systems.12 States are obliged to establish and
implement ‘in conjunction with Indigenous peoples’ fair, impartial, independent,
open and transparent processes to recognize and adjudicate their rights over their
resources, including those they have traditionally owned or otherwise occupied or
used.13 This is to be done with ‘due recognition’ for their ‘laws, traditions, customs

DRAFT
and land tenure systems’.14 The UN Declaration gives specific recognition to
Indigenous peoples’ rights over human and genetic resources, seeds, medicines and
knowledge of the properties of fauna and flora.15 It requires states to provide redress
including compensation when there has been breach of Indigenous peoples’
resource rights.16 It also requires that they have access to prompt, just and fair
procedures to resolve disputes with states or other parties, and effective remedies
for breaches of their individual and collective rights.17 These procedures and any
decision taken under them must give due regard to Indigenous peoples’ customary
laws and traditions and to international human rights.18 Taken together the provi-
sions of ILO Convention 169 and the UN Declaration on the Rights of
Indigenous Peoples provide a solid basis for the recognition of Indigenous peoples’
rights over natural resources, they stop short however of recognizing their exclu-
sive rights to the resources on or under their lands and territories.
Daes claims that Indigenous peoples have a collective right to ‘use, own, manage
and control the natural resources found within their lands and territories.’19 These
resources can, she says, include ‘air, coastal seas, and sea ice as well as timber, miner-
als, oil and gas, genetic resources, and all other material resources pertaining to
indigenous lands and territories’.20 This view is not shared by all. Errico, in an
examination of the status of Indigenous peoples’ rights over subsurface resources,
draws attention to the negotiating history of the UN Declaration in coming to the
conclusion that states are entitled to reserve rights over subsurface resources.21
Errico stresses, however, that ‘denial of Indigenous peoples’ control over subsoil
resources does not mean these people are deprived of all rights with regard to the
subsoil resources existing in their lands and territories’. While debate over the
extent of Indigenous peoples’ rights to permanent sovereignty over subsurface
 Natural resources or essences of life? 123

resources under international law is likely to continue into the future, a certain
level of clarity is discernable from the provisions of ILO Convention 169 and the
UN Declaration. In the first place it is clear that Indigenous peoples are entitled,
at a minimum, to recognition of their rights over the resources they have owned,
used or acquired.22 They are also entitled to a ‘fair, independent, impartial, open and
transparent process’ for the adjudication of their rights over subsurface resources.23
Implementation of these provisions must be done with due respect and recogni-
tion for their customary laws, traditions and land tenure systems, respectively.24
Furthermore, states are obliged to consult with Indigenous peoples and/or obtain
their free, prior informed consent in advance of granting any rights to exploit their
resources or adopt any laws, programmes, policies or projects, that will affect them.
Indigenous peoples are increasingly sceptical of state commitments to implement-
ing meaningful consultation processes applying international standards of free, prior
informed consent.25 The USA, Canada, Australia and New Zealand, reportedly
sought to block the inclusion of the term in the work of the Commission on
Sustainable Development Working Group on Mining.26 While in Canada, banks
touting their application of free prior informed consent are merely applying a stan-
dard of free, prior informed consultation.27
At the regional level the Inter-American Court of Human Rights views the
cultural and economic survival of Indigenous and tribal peoples as dependent upon

DRAFT
their access to and use of the natural resources in their territory ‘that are related to
their culture’.28 In Saramaka People v. Suriname the court concluded that the
Saramaka people are entitled ‘to use and enjoy the natural resources that lie on and
within their traditionally owned territory and that are necessary for their
survival’,29 and that:

Members of tribal and indigenous communities have the right to own natu-
ral resources they have traditionally used within their territory for the same
reasons that they have a right to own the land they have traditionally used and
occupied for centuries. Without them, the very physical and cultural survival
of such peoples is at stake.30

The court went on to reason that the right to territory would be meaningless if
not connected to the natural resources that lie on and within the land.31 The court
took the view that its jurisprudence regarding the property rights of Indigenous
peoples extends to tribal peoples due to their ‘similar characteristics’ including
having distinct social, economic and cultural traditions from other sectors and
regulating themselves at least in part, by their own norms, customs and traditions.32
Holding that both individual and communal property rights are protected under
Article 21 of the American Convention,33 the court set out three safeguards the
state must follow to ensure that issuance of concessions within the Saramaka
peoples’ territory does not amount to a denial of their survival as a people.

First, the state must ensure effective participation of the members of the
Saramaka people, in conformity with their customs and traditions, regarding
124 Natural resources or essences of life?

any development, investment, exploration or extraction plan (hereinafter

‘development or investment plan’)34 within Saramaka territory. Second, the
State must guarantee that the Saramakas will receive a reasonable benefit from
any such plan within their territory. Thirdly, the State must ensure that no
concession will be issued within Saramaka territory unless and until inde-
pendent and technically capable entities, with the State’s supervision, perform
a prior environmental and social impact assessment.35

With regard to the third obligation, compliance with the Akwé: Kon guidelines
would now also require the carrying out of cultural impact assessment, with due
attention to Indigenous peoples’ customary laws and practices.36 For impact assess-
ment processes to gain legitimacy they will need to ensure meaningful
opportunities for Indigenous peoples’ participation in their development, during
their evaluation and in monitoring the implementation of any mitigation plans.To
date, states and the private sector have been slow to respect such rights of partici-
pation. Attempts to bypass consultation obligations and fast track development
projects may result in action by international human rights bodies as occurred with
the proposed Belo Monte Dam project in Brazil.
In June 2011 the Brazilian government rushed through approval for what would
be the world’s third largest dam.The dam, which had originally been proposed in

DRAFT
2006, if built will flood an area of approximately 516km2.37 A filing by non-govern-
mental organizations of a case before the Inter-American Commission on Human
Rights requesting it to take ‘precautionary measures against Brazil’, resulted in the
commission requesting the Brazilian government to ‘suspend the licensing process
for the Belo Monte hydroelectric project and prevent the implementation of any
material works’.38 The Brazilian government has refused the Commission’s request
and its intransigence leaves the Indigenous peoples of the Xingu region with very
few options. Rather than protecting their rights the state is threatening the region’s
Indigenous Peoples with physical and cultural annihilation.39
Indigenous peoples have also been active in Africa where the African
Commission on Human and Peoples’ Rights has recognized their rights to
resources on their ancestral lands.40 In the 2002 Ogoni case the Commission
decided that the right to natural resources contained within their traditional lands
vested in the Indigenous people.41 The Commission also found that the
Government of Nigeria had violated the rights of the Ogoni under Article 21 of
the African Charter on Human and Peoples’ rights, by giving ‘the green light to
private actors, and the oil companies in particular, to devastatingly affect the well-
being of the Ogonis’.42 It held that ‘with regard to a collective group, the resources
belonging to it should be respected, as it has to use the same resources to satisfy its
needs’.43 In the landmark Endorois case,44 the African Commission took the view
that the Endorois have the right to freely dispose of their wealth and natural
resources in consultation with the respondent state.45 A key element of the case was
the Commission’s recognition of the Endorois’ right to development under Article
22 of the African Charter. The Commission noted the need for consultation and
not merely for informing Indigenous peoples of a fait accompli.46 The Commission’s
 Natural resources or essences of life? 125

decision relies heavily on the UN Declaration on the Rights of Indigenous Peoples

and the jurisprudence of the Inter-American Court. According to Korir Sing’oei,
the decision also borrows from the UN Declaration on the Right to Development
to describe five criteria that must be complied with in order to ensure the right to
development is achieved: equitability, non-discriminatory, participatory, accounta-
bility and transparency.47 The Endorois case breaks new ground in Africa and
globally by recognizing Indigenous peoples’ rights to development.The combina-
tion of the right to consultation and the right to development offer Indigenous
peoples a good opportunity to promote respect for their own customary laws and
their traditional land and resource management strategies.
In 2012 the Inter-American Court found that the State of Ecuador had
infringed the rights of the Kichwa people of Sarayaku by awarding oil exploration
and exploitation licences on their lands without prior consultation and without
their prior informed consent.48 There was undisputed evidence that the private
concessionary Compania General de Combustibles S.A. (CGC) had attempted to
influence members of the Sarayaku people with gifts, jobs, cash payments and offers
of medical assistance in return for signing a letter supporting the company’s activ-
ities.49 In May 2000 the General Assembly of Sarayaku rejected the company’s offer
of US $60,000 and 500 jobs for their men and turned to the Ombudsman for
relief.50 The Sarayaku people had full title to their lands and the case focused on

DRAFT
whether the state had failed to respect their right to be consulted prior to approval
of extractive activities on their lands. In its decision in favour of the Sarayaku the
court identified five criteria which must be met for effective and appropriate
consultation: (i) it must be carried out prior to commencing the project; (ii) it must
be done in good faith, with the aim of reaching a consensus; (iii) it must respect
the customs and traditional decision-making practices of Indigenous peoples; (iv)
environmental impact assessments must take account of social and cultural impacts;
and (v) it must be a transparent and informed process.51 The court in Sarayaku also
made it absolutely clear that the state could not divest itself of its obligations to
carry out consultations by passing the responsibility to third parties, least of all the
very company that stood to gain from the concession.52 Investors in extractive
activities in the traditional territories of Indigenous peoples will need to carry out
due diligence studies to ensure the state has carried out appropriate consultations
in good faith. Without necessary studies in this area any investment will be high
risk indeed.The Sarayaku decision has raised the bar for states with regard to their
obligations to hold appropriate consultations. The decision has, to quote Lenzerini,
‘expanded the horizon of collective rights’ affirming that ‘international law …
recognizes rights to the peoples as collective subjects of international law and not
only as members of … communities or people’.53 The decision confirms that
Indigenous peoples’ collective rights are stand alone rights, which are not depend-
ent upon or bound to individual human rights.The court also highlighted that the
lack of an effective remedy for violations of human rights recognized by the Inter-
American Convention on Human Rights was in itself a transgression of the
Convention on the part of the State in which the breach took place.54
Failure to respect obligations to consult and where applicable obtain the consent
126 Natural resources or essences of life?

of Indigenous peoples and to respect and recognize the role of customary law in
determination of resource rights and prior informed consent procedures is a clear
breach of obligations under international law. The growing capacity to take their
struggle to the international level has reshaped the playing field between isolated
Indigenous peoples and governmental and private sector actors.This in turn leads
to increased opportunities to promote respect for Indigenous peoples’ customary
laws and cosmovision. The struggle to secure compliance with obligations to
consult may therefore be seen as a struggle for self-determination and recognition
and respect for Indigenous peoples own legal regimes.

Native title and tribal justice

Finding ways to mediate between state and customary law in order to secure
Indigenous peoples’ ancestral rights over natural resources has frequently proven
more problematic than securing native title over land. MacKay argues that rights
to subsurface resources in common law countries should be seen to subsist in
accordance with the notion of native title and doctrine of continuity, where they
have not been expressly extinguished by statue.55 The tendency has, however, been
to limit native title to cases where Indigenous peoples can demonstrate a historic
and continuing use of the relevant resources.

DRAFT
In Australia there are very few cases recognizing native title over natural
resources. One of the few cases of note is that of Yanner v. Eaton.56 In this case,
Murandoo Yanner was prosecuted for ‘taking and keeping without a permit’ two
juvenile estuary crocodiles he had caught using a traditional form of harpoon.The
High Court found that the permit system and the vesting of property in fauna in
the Crown did not extinguish native title. According to McRae et al., the majority
found Section 211 of the Native Title Act 1993 ‘effectively gave Indigenous people
immunity from a permit scheme when they were exercising a native title right to
hunt’.57 The court recognized the ‘totemic significance and spiritual belief ’ associ-
ated with the hunting of juvenile crocodiles and their fundament in ‘the beliefs,
customs and laws of the community’.58 Subsequently, in Yarrimir v. Northern
Territory59 the majority of the High Court upheld the decision of Olney J that
‘named clans’ had non-exclusive native title rights to possession, occupation, use
and enjoyment of the sea and sea-bed.60 Olney J. rejected claims by the clans for
recognition of exclusive rights over their traditional marine areas.61 Native title
does not provide Aboriginal peoples with a veto over mining activities it does,
however, provide them with a right to negotiate benefit-sharing agreements.62 This
right was greatly reduced by the provisions of the Native Title Amendment Act of
1998.63
In Canada, a majority of the principal native title cases were linked to the rights
of aboriginal peoples to fish commercially in their traditional waters. While more
proactive than Australia in recognizing native title over resources, Indigenous
peoples in Canada are, according to Lambert J, more likely to defend their use of
resources based upon their native title over lands rather than arguing for a resource
right based upon customary use.64 In spite of the decision in Delgamuukw, states
 Natural resources or essences of life? 127

were considered by Indigenous peoples to be dragging out negotiations with them

over their land and resource rights.65 In the words of Ian Dutton, Vice-Chief of the
American First Nations in British Colombia, ‘the Court’s decision in Delgamuukw
had not changed the federal and provincial approach to treaty negotiations’.66 In
1999, Dutton argued that the time had come for ‘aboriginal people to get organ-
ized around the fact of our title and then the governments will be compelled to
deal with us in a meaningful way’.67 In essence he was calling upon Indigenous
peoples to exercise their customary land and resource rights whether or not the
government had formally recognized such rights. The Westbank First Nation did
just that, and carried out unlicensed logging on Crown lands over which it claimed
title.68 This action was, Hurley reports, supported by numerous local, national and
regional aboriginal groups, and was followed by some other First Nations.69 When
the province sought a court ruling to stop the logging the court held it would have
to rule first on the conflicting issues of aboriginal and Crown title.70 In this case by
acting ‘as if ’ their ancestral title had indeed been recognized Indigenous peoples
were able to take the initiative and force a response from the state.To some extent
this may be seen as direct action to complement actions such as the development
of protocols and the commencement of administrative and legal proceedings to
secure resource rights.
In Canada and the United States, Indigenous peoples’ rights over subsurface

DRAFT
resources in their reserves and reservations have been recognized. These rights
extend to ‘royal minerals’ (gold and silver), which, MacKay notes, is not the case for
‘non-indigenous surface owners under common law’.71 In Australia the Aboriginal
Land Rights Act provides Aboriginal peoples in the Northern Territory with
communal fee simple title over their lands.Although this title cannot be sold it has
been described by the High Court in the Blue Mud Bay case72 as ‘for almost all
practical purposes, the equivalent of full ownership’.73 Land trusts and land coun-
cils have the power to ‘grant a lease, allow mining or permit road construction’
subject to the prior informed consent of traditional owners.74 Where Indigenous
peoples have been recognized as having rights over subsurface resources they have
been quick to develop their own capacity to manage and exploit such resources
and have begun to share information of successful experiences with other
Indigenous peoples.The Southern Ute Indian Tribe has, for example, provided the
Blackfeet Indian Nation with advice on gas exploration.75
The scope of communal rights over natural resources was widely defined in the
Richtersveld case where Chaskalson CJ, speaking on behalf of the South African
Constitutional Court, recognized the exclusive right of the community inherent in
communal ownership to ‘use its waters, to use its lands for grazing and hunting and
to exploit its natural resources above and beneath the surface’.76 The court referred
to the historic control of mining activities by the Richtersveld community in
deciding it had a right to control mining in its traditional territory. As part of the
final settlement of its claim the Richtersveld Community obtained a 49 per cent
shareholding in the Alexkor Corporation, which in June 2011 reported a profit for
the first time in five years.77 The challenge for the community is to see how it can
manage its share of profits and prevent internal conflicts over the distribution of
128 Natural resources or essences of life?

benefits from tearing the community apart.78 In 2009 alone the Richtersveld
Communal Property Association (RCPA) defended five legal claims taken by
disgruntled members of the community.79 The RCPA called upon the Minister of
Rural Development and Land Reform to appoint an independent mediator to
help resolve these long-running disputes.80 It is somewhat ironic that Indigenous
peoples, relying on customary law to help secure their rights against third parties,
need to turn to external authorities to secure resolution of internal conflicts
regarding the same issue.
In contrast with the Richtersveld case, in the Philippines Indigenous peoples, frus-
trated by the inordinate delays, costs and frequent lack of independence of the
formal court system, have turned to their own legal regimes to secure redress for
third party torts. A case of particular importance in this vein relates to the activi-
ties of the Canadian TVI Company and its involvement in mining on Mount
Canatuan, a mountain sacred to the Subanon people of Mindanao, in the
Philippines. The 1987 Philippine Constitution empowers Congress to recognize
customary laws governing property rights in determining the ownership and
extent of ancestral domain.81 The 1997 Indigenous Peoples’ Rights Act (IPRA)
provides in Section 3 for recognition of Indigenous peoples’ ancestral domain over
the lands that have been ‘occupied, possessed and utilized’ by them or their ances-
tors ‘since time immemorial, continuously to the present’.82 Both IPRA and the

DRAFT
1995 Mining Act require prior informed consent of Indigenous peoples prior to
mining on their ancestral lands.83 In 1996,TVI was granted a permit for operations
on Mount Canatuan without any prior consent by the Subanon.84 In 2002, the
National Council for Indigenous Peoples orchestrated the creation of a group call-
ing itself the ‘Siocon Council of Elders’, which then entered into a Memorandum
of Agreement with the company, purportedly granting it rights to carry out its
mining activities.85 The Subanon challenged the legitimacy of this group but failed
to get an adequate response from the national courts. The Subanon from the
affected area then brought their case to their highest ‘judicial authority’ the Gukom
sog Pito ko Dolungan (Gukom of the Seven Rivers Region).86 The Gukom found
the Siocon Council of elders to be ‘illegitimate, illegal and an affront to the
customs, traditions and practices of the Subanons of the Pito Ka Dolungan’ and
declared it ‘abolished and all the acts entered into by [it] … NULL and VOID’.87
In 2003 the Subanon were among the first Indigenous people in the Philippines
to be awarded a Certificate of Ancestral Domain title.88
In 2007, Timuay (traditional leader) Jose Anoy complained to the Gukom that
TVIRDI, a subsidiary of TVI, had failed to respect customary laws within the
affected area.89 The Gukom decided in his favour and fined the company, which
originally refused to recognize the Gukom or its decision.90 In 2007 the Subanon
also took their case to the Committee on the Elimination of Racial Discrimination
(CERD), claiming a failure by the Philippines to protect their rights.91 In 2009,TVI
finally agreed to recognize Jose Anoy as the traditional leader of the Subanon in
the area and entered into discussions on how to resolve their differences. On 17
May, 2011,TVIRDI took part in a cleansing ceremony in which they recognized
Mount Canatuan to be a sacred site and admitted their wrongdoing in its
 Natural resources or essences of life? 129

desecration.92 Prior to the ceremony they had reportedly paid the fines that had
been negotiated following the company’s admission of guilt.93 The decisions of the
Gukom of the Seven Rivers and the compliance by TVIRDI with their decision
creates an important precedent for the use of traditional authority in the resolution
of conflicts involving Indigenous peoples and third parties. Exercise by the
Subanon Gukom of jurisdiction over third parties is a clear expression of their
rights to self-determination, to their own laws and judicial authorities and to the
adjudication of their resource rights in accordance with their own customary laws.
It may also be seen as an exercise of rights arising under customary international
law to apply their customary laws in the defence of their human rights. It is ques-
tionable whether the enforcement of the Gukom judgment would have proved
possible had it not been for the external pressure brought to bear upon the
company and the Philippine Government through the media and CERD.
Indigenous and non-governmental organizations have shown their preparedness,
capacity and willingness to sustain protracted legal and media campaigns against
both national governments and even the largest of corporations.The struggle by the
5,000-strong U’wa Indigenous people against Occidental Petroleum and the
Colombian government is a case in point.Their campaign, which began as a strug-
gle for recognition of their collective rights to their traditional lands went on to
become a multipronged national and international campaign and legal offensive that

DRAFT
led to the abandonment by Oxy of its plans to drill for oil on their territories and
secured recognition of their collective land rights.94 In the United States, the Achuar
from Peru have been given leave to take Occidental Petroleum before the US courts
in Los Angeles.95 While in Ecuador, after 17 years of litigation an alliance of affected
communities have seen their claim upheld by the courts, which found Chevron
liable to the tune of approximately US $18.2 billion in total damages for massive
contamination in the Ecuadorian Amazon.96 On appeal, the Supreme Court of
Ecuador upheld the courts’ decision, but halved the award to US $9.1 billion.
Chevron subsequently secured a ruling by US District Judge Kaplan barring the
Ecuadorian Indigenous plaintiffs and their lawyer, Steven Donziger, who Chevron
have accused of fraud, from collecting the award in the United States. Donziger’s
lawyer called Kaplan’s decision unprecedented in that it seeks to override a decision
of the highest court of Ecuador and in the process ‘let Chevron Corporation off the
hook for decades of deliberate pollution in the Amazon rainforest’.97 This is just one
of many cases demonstrating the obstacles facing Indigenous peoples trying to
recover damages for the suffering caused by the destruction of their environment.
Although the affected communities have not as yet received any compensation,
oil and mining companies have been put on notice that Indigenous peoples’ rights
can no longer be ignored with impunity.The same goes for their laws.

Traditional resource management: farmers, livestock

keepers and fisherfolk
Traditional resource management may be seen as resting on three pillars: traditional
tenure, traditional knowledge and customary law.98 Under this view, traditional land
130 Natural resources or essences of life?

and marine tenure defines the areas traditionally controlled or used by the relevant
Indigenous people or local community. Traditional knowledge encompasses their
accumulated knowledge over biological resources, landscapes and ecosystems,
controlled or utilized by them. While customary law, guided by traditional know-
ledge regulates the use and transmission of that knowledge and the use and
management of biological resources, landscapes and ecosystems, within areas of
traditional tenure. Seen from this perspective, customary law is woven into the rela-
tionship between traditional knowledge and Indigenous peoples’ traditional lands
and marine areas and the resources, landscapes and ecosystems found within them.
As such it is less a body of norms and more part of a process, a dynamic system that
must evolve with the resources, landscapes and ecosystems it addresses, if it is to
remain relevant. Customary law is not of itself necessarily conducive to sustainable
management of resources and its capacity to serve as an instrument for sustainable
development is dependent upon factors external to the law itself, including the
quality of traditional knowledge and the capacity of indigenous authorities to
enforce their customary laws. As Bosselman puts it ‘some customary law systems
seem to produce sustainable results and some do not’.99 Three areas where
Indigenous peoples’ customary laws play a significant role in environmental
management are in the area of farming, livestock keeping and fisheries management.
Agrobiodiversity including farmers’ and livestock keepers’ local seeds and breeds

DRAFT
are the fundamental building blocks upon which local and global food security
depends.The existence of vast ex-situ collections of genetic resources obscures the
fact that the primary responsibility for maintaining crop genetic diversity and local
livestock breeds, and with it global food security, still lies with farming communi-
ties and livestock keepers, many of whom are poor and members of Indigenous
peoples and ethnic minorities.100 In developing countries, local farmers’ varieties
provide 60–90 per cent of seed planted, a figure that rises to 100 per cent if the
formal plant-breeding sector is absent.101 Up to 50 per cent of the sheep, yak,
camelid and goatherds of peoples living in inhospitable and marginal dry-land
environments in Africa, Asia, Latin America and the Near East are locally adapted
breeds.102 Ex-situ collections are dependent upon continuing access to wild and
farmers’ varieties of seed and breeds to replenish their collections, making long-
term conservation of agrobiodiversity dependent on in-situ conservation of local
varieties.103
Long-term conservation of agrobiodiversity and the realization of human rights
to food and freedom from hunger, as well as human dignity and self-determination
are dependent upon the willingness of farming communities to continue in-situ
conservation of native varieties and their wild relatives. Despite their importance,
farmers’ seeds and breeds have been marginalized in the provision of funding for
agricultural science and they continue to face erosion in the face of insensitive
agricultural extension programs, perverse seed laws, intellectual property regimes
and the impacts of climate change.104 Local seeds and breeds are endangered by
increasing reliance on monocultures and dominant breeds and the concentration
of farming and grazing lands in the hands of national elites and foreign investors.105
These threats have become so severe that the need to conserve agrobiodiversity is
 Natural resources or essences of life? 131

at least as crucial, if not more so, than the protection of wild biodiversity.106 Rice
varieties in Sri Lanka, for example, have decreased from 2,000 in 1959 to fewer
than 100 today, of which 75 per cent descend from a common stock, while in the
USA 50 per cent of the wheat crop is represented by a mere 9 varieties.107
Threats to animal genetic resources are equally severe with 21 per cent of breeds
classified as being ‘at risk’ by the Global Databank on Animal Genetic Resources.108
Scherf estimates that out of 5330 livestock mammals, over 734 breeds are already
extinct,109 with more than 60 breeds becoming extinct in the first six years of the
current century alone.110 The displacement of traditional resource management
systems and the consolidation of rights to land, water and forage in the hands of
well-off farmers, urban residents or the government, is further accelerating resource
erosion and undermining both farmers and livestock keepers’ rights and the food
security of present and future generations.111 Virchow claims that reliance on
resource-poor farmers to conserve plant genetic diversity without adequate
support demonstrates a ‘failure to internalize the value of its conservation’ and
perpetuates ‘the threat of uncontrolled extinction of agrodiversity’, which in turn
places in jeopardy the future sustainability of agricultural development.112 To add
insult to injury, this failure to internalize the costs of conservation of local seed
varieties and animal breeds means poor farmers and livestock breeders, a majority
of whom are women, are in essence subsidizing global crop conservation.113

DRAFT
Brush puts forward three reasons in favour of in-situ conservation of landraces:
first, is the continuing need for evaluation of landraces and their wild relatives in
their native environment, as well as for collection of germplasm for off-site eval-
uation and conservation; second, are the lower costs of in-situ conservation
compared to ex-situ conservation; and, third, is the role in-situ conservation plays
as a backup for ex-situ conservation.114 Farmers have their own priorities for
conservation that include the superior taste of landraces, their role as insurance
against unforeseeable events and ecological advantages such as prevention of soil
erosion.115 Alteri and Merrick argue that preservation of traditional agro-ecosys-
tems and crop diversity cannot be achieved in isolation ‘from maintenance of the
socio-cultural organization of the local people’, which includes their cultural
practices, traditional diet and ‘way of life’.116 All of which are intertwined with
their land and resource rights grounded upon their own legal regimes. For
Gonzalez the very notion of in-situ conservation itself does violence to the
worldview of Indigenous peoples which, he says, links people, land, culture and
spirituality in a bond alien to dominant development theories.117 Gonzalez argues
that if agrobiodiversity is to be successfully conserved it is crucial that ‘interna-
tional development and funding institutions as well as the state recognize, in
theory and practice, the key connections between culture (cultural diversity),
production (indigenous or capitalist agriculture), and nature (agrobiodiversity)’.118
Without this, he says, conservation objectives cannot be achieved and Indigenous
farmers will continue to be overlooked by development strategists.119 Following
his advice would require decision makers to take on board the rights and experi-
ence of farmers with traditional resource management guided as it is by
customary law.
132 Natural resources or essences of life?

Women account for half the food production in developing countries and are
the main producers of the world’s staple crops, providing up to 90 per cent of the
poor’s food intake.120 Women farmers around the world have been at the forefront
of moves to rescue traditional farming practices and landraces and to exclude
genetically modified organisms from the local farming environment. The experi-
ence of the Nayakrishi Andolon, an initiative of largely poor farmers in Bangladesh
shows that women are the ones who conserve and germinate seeds, who transmit
this knowledge from generation to generation, mother to daughter, sister to sister
and mothers-in-law to daughters-in-law.121 Loss of local seeds and dependence of
farmers on market seed is seen by peasant women as being a loss of their own
power.122 Similarly, in the Peruvian Andes, women have been the power behind a
network of chalaypasa markets where exchange of crop varieties between low and
highland areas, primarily by way of barter, helps to secure access for local commu-
nities to a wider range of varieties necessary for a traditional balanced nutritious
diet.123 Marti et al., outline the customary law principles underlying the organiza-
tion and functioning of the markets which include:

(a) reciprocity based on friendship and kin relations between women from
yunga, quechua and puna zones; (b) redistribution based on social participa-
tion norms and access strategies to the different altitudinal tiers by different

DRAFT
agro-ecological zone communities; and (c) self-sufficiency based on subsis-
tence farming by each household.124

Despite their important role in resource management, less than 10 per cent of
women farmers around the world own their own land.125 In many countries custom-
ary laws designed to secure communal lands preclude women from owning or
inheriting land. Such laws are increasingly seen as discriminatory and in breach of
women’s fundamental human rights, this is particularly so where the breakdown of
extended families and the ravages of HIV/AIDS have left many women as the heads
of their household.126 Despite its failings, Indigenous women, while seeking changes
to customary law are often amongst the most strident defenders of Indigenous
peoples’ rights to be governed by their own normative structures. Research carried
out by Claassens and Mnisi with rural women, including Indigenous women, in
South Africa127 shows that women are able ‘to negotiate changes within customary
law in order to advance their own position.’128 In their words:

Rural women have no option but to grapple with issues of rights and custom
in local customary law arenas.The perils associated with the discourse should
not blind us to the democratic and transformative possibilities inherent in the
contestations taking place in these arenas. It is these contestations that, when
brought to light, are the most effective rebuttal to the distorted versions of
custom that dominate the national level discourse.129

What Claassens and Mnisi are alluding to is the dynamic nature of living custom-
ary law and the capacity of women to influence its development.The opportunity
 Natural resources or essences of life? 133

for women to bring pressure for internal change to custom would appear to be
strengthened where constitutional law conditions recognition of customary law on
compliance with fundamental human rights. For Wicomb the recognition of
customary law in the South African Constitution facilitates engagement between
custom and concepts of equality and democratic decision-making.130 The result is
a reframing of the debate requiring:

legislators, lawyers and women’s rights activists to redefine the discourse of

customary law not in terms of the rights versus custom dichotomy but as a
discourse of great emancipatory and empowering value for rural women,
including indigenous women.131

While women are struggling to secure increased recognition of their rights within
their customary legal regimes, Indigenous farmers, both men and women, are
struggling for recognition of their collective rights at the international level. In an
innovative programme to support their efforts various NGOs and aid agencies,
including IIED and ActionAid, have worked with rural farmers to help bring their
voice to national and international decision makers through hosting what are
known as citizen juries. In December 2009 one such jury was convoked in
Karnataka province in India to consider and provide a verdict on the issue of

DRAFT
democratization of agricultural research.132 Held over 5 days the jury’s final conclu-
sions were set out in a 22 point list, which included demands for ‘research on local
landraces that are adaptable to their ecosystems and drought resistant, provide qual-
ity and tasty food and fodder and produced by farmers themselves’.133 Although the
jury was not a traditional authority and was not governed by a uniform body of
customary law the process itself serves as a useful example of how community
authorities might consider and rule upon issues of genetic resource conservation
and farmers’ rights in a manner similar to the Subanon action on mining discussed
earlier.
Although the Convention on Biological Diversity did away with the notion of
common heritage over genetic resources, the Food and Agriculture Organization
(FAO) International Treaty on Plant Genetic Resources for Food and Agriculture
(International Treaty) sustains a small but highly significant global commons for a list
of specified crops, such as tomatoes, potatoes, rice, and maize (referred to as Annex 1
crops), which are considered vital to global food security.The precursor to the Treaty,
the International Undertaking on Plant Genetic Resources was the first international
instrument to recognize the concept of farmers’ rights.134 The term ‘Farmers Rights’
was later defined in FAO Conference Resolution 5/89, as meaning:

rights arising from the past, present and future contributions of farmers in
conserving, improving, and making available plant genetic resources, particu-
larly those in the centres of origin/diversity.

This language is reflected in the Preamble to the International Treaty, which recog-
nizes farmers’ fundamental rights to save, use, exchange and sell farm-saved seed,
134 Natural resources or essences of life?

and other propagating material; rights to participate in decision making; and rights
to participate in the fair and equitable sharing of the benefits arising from the use
of plant genetic resources for food and agriculture.135 The substantive provisions of
the Treaty fall short of these goals and the recognition of the ‘farmers’ privilege’ to
use farm saved seed is left to the discretion of national decision-makers.136 On a
positive note, Article 9 of the Treaty entitled ‘farmers rights’ formally extends
protection to traditional knowledge relating to plant genetic resources. The rele-
vant section of Article 9.2 provides:

The Contracting Parties agree that the responsibility for realizing Farmers’
Rights, as they relate to plant genetic resources for food and agriculture, rests
with national governments. In accordance with their needs and priorities, each
Contracting Party should, as appropriate, and subject to its national legislation,
take measures to protect and promote Farmers’ Rights, including:

a) protection of traditional knowledge relevant to plant genetic resources for

food and agriculture (PGRFA);
b) the right to equitably participate in sharing benefits from the utilization
of plant genetic resources for food and agriculture; and
c) the right to participate in making decisions, at the national level, on

DRAFT
matters related to the conservation and sustainable use of plant genetic
resources for food and agriculture.

Cary Fowler, who together with Pat Mooney first developed the idea of farmers’
rights, believes the concept has been ‘hijacked’ as a slogan for ‘advocating a form of
intellectual property rights for farmers’ varieties’ while failing to secure farmers’
rights to conserve these resources.137 Via Campesina the largest and most influen-
tial grassroots farmer’s organization in the world have rejected the approach taken
in the Treaty, which they describe as a backward step and ‘bleak lip service to what
[farmers’] rights should entail’.138 They have called for a total ban on intellectual
property over seeds and the adoption of public policies in favour of ‘living farm-
ers’ seed systems … in our communities and under our control’.139
Not only has the Treaty failed to protect farmers’ rights to farm-saved seed but
also it has totally failed to secure any transfer of benefits from the users of agro-
biodiversity to the community conservationists responsible for its protection.
Although the International Treaty establishes a multilateral benefit-sharing system
to channel benefits to farmers, no benefits have as yet accrued to the fund from
users of genetic resources. All funds to date have come from donations by a small
group of northern countries.140 A Standard Material Transfer Agreement (SMTA)
developed for the transfer of all genetic material covered by the Treaty has proved
ineffective as a tool for generating benefit sharing. Negotiations began in 2014 to
revise the SMTA in the hope of injecting new life into the Treaty. Efforts have also
been made to promote a more expansive approach to farmers’ rights. Argumedo et
al. argue that:
 Natural resources or essences of life? 135

a broad interpretation of farmers’ rights which goes beyond the right to bene-
fit-sharing … [would] include the right of farmers to continue the practices
which contribute to the conservation and sustainable use of PGRFA, and to
sustain the traditional knowledge and livelihood systems needed for this.141

To this end, they call for greater attention to state obligations under the
International Treaty to support in-situ conservation (Article 5.1), and requirements
for law and policy to support diverse farming systems (Article 6).142
The benefits of such an approach may be seen in existing initiatives of farming
communities working alone or in collaboration with state, research and/or non-
governmental bodies, on conservation and participatory plant breeding projects
with a view to the protection and improvement of local seed varieties.143 One such
experience is that of the Potato Park, a ‘Community Conserved Area’, managed by
Quechua communities in the mountains above Pisac, in the department of
Cusco.144 The Potato Park is managed by 5 local communities in accordance with
the principles of Quechua customary laws, which form the basis for a community
protocol that regulates access to their traditional knowledge, innovation systems
and associated genetic and biological resources.145 Customary law regulates both
the internal and external relations of the Park governance, covering both commu-
nal benefit-sharing arrangements and agreements with the International Potato

DRAFT
Centre in Lima for repatriation of over 400 potato varieties to the Park.The Park,
working through the Asociación ANDES, has become the first farmers group to
officially place its collection of Annex 1 germplasm within the framework of the
International Treaty.146 From the experience in the Potato Park emerged the
concept of ‘collective biocultural heritage’ described as the ‘interlinked knowledge,
bio-genetic resources, landscapes, cultural and spiritual values and customary laws
of indigenous and local communities.147 This concept links biological and cultural
diversity with traditional knowledge and spirituality and grounds Indigenous
peoples’ rights to their cultural heritage and ‘way of life’ on respect for their
customary law and the protection of the socio-economic practices that secure their
cultural integrity. For Andean communities this includes the right to protection of
their native seed varieties, a fact embraced in a draft Peruvian agrobiodiversity
law.148 Under the draft law, activities in agrobiodiversity zones would be guided by
the needs of local communities and third parties would need to secure their prior
informed consent for research and other activities.149 The draft law rejects a conser-
vation approach in favour of: securing land title for farmers; making farmers more
visible by placing agrobiodiversity areas on national maps; and establishing a fund
to support in-situ conservation in such areas.150 This approach supports farmers’
rights to govern their own affairs, lands and communal work practices in accor-
dance with their customary laws as set out in Article 89 of the Constitution of
Peru.151 While ambitious the Peruvian law has yet to be adopted and farmers’ rights
remain largely aspirational.
To date there has been a dearth of national legislative action to implement farm-
ers’ rights. One exception has been the adoption by India of the Protection of
Plant Varieties and Farmers’ Rights Act of 2001, which recognized farmers’ rights
136 Natural resources or essences of life?

to save, use, sow, re-sow, exchange, share and sell farm produce, including seeds of
varieties protected by plant breeders’ rights.152 A report prepared by IIED claims
that the vague system for registration of local varieties and benefit-sharing in the
law and the inability of farmers to apply for registration, makes it extremely
unlikely that farmers’ rights are going to be protected through the law.153
Whatever hope farmers have of seeing the adoption and implementation of func-
tional systems of farmers’ rights, livestock keepers have an even greater hurdle to
surmount. There is no official definition of livestock keepers, there is a tendency,
however, to distinguish them from specialized breeders such as private companies,
cooperatives and state-run breeding farms.154 From that perspective livestock keepers
include approximately 70 per cent of the world’s poor that keep livestock, including
100 million landless people 640 million subsistence farmers in rain fed areas and 190
million pastoralists in arid or mountainous areas.155 In contrast to the trade in seed,
transfers of livestock are primarily north–south leaving livestock keepers with mini-
mal influence over international governance of animal genetic resources. This
distinction is notable in the demands made by livestock keepers for recognition of
their rights. Rather than focusing on a sharing of commercial benefits, of which to
date there are next to none, livestock keepers have sought recognition and support
for their continued maintenance of their breeds and of their access to traditional
grazing sites.156 In 2008, livestock keepers meeting in South Africa adopted the

DRAFT
Declaration of Livestock Keepers’ Rights which sets out three key principles and 5
rights as guidance for international and national protection:

Principles:
1. Livestock Keepers are creators of breeds and custodians of animal genetic
resources for food and agriculture.
2. Livestock Keepers and the sustainable use of traditional breeds are
dependent on the conservation of their respective ecosystems.
3. Traditional breeds represent collective property, products of indigenous
knowledge and cultural expression of Livestock Keepers.

Livestock Keepers have the right to:

1. Make breeding decisions and breed the breeds they maintain.
2. Participate in policy formulation and implementation processes on animal
genetic resources for food and agriculture.
3. Appropriate training and capacity building and equal access to relevant
services enabling and supporting them to raise livestock and to better
process and market their products.
4. Participate in the identification of research needs and research design with
respect to their genetic resources, as is mandated by the principle of Prior
Informed Consent.
5. Effectively access information on issues related to their local breeds and
livestock diversity.157
 Natural resources or essences of life? 137

If erosion of livestock diversity is to be prevented action will be needed to secure

livestock breeders’ rights to both their local breeds and the grazing rights necessary
to sustain their way of life. There are significant reasons for doing so, not least the
capacity of locally adapted breeds to survive on marginal lands that are not suitable
for crop cultivation, and are the building blocks for future livestock development.158
Local breeds are key to the livelihoods and food security of vast numbers of the
world’s poor living in some of the world’s most inhospitable environments. Local
breeds also continue to breed resistance to harsh climatic conditions, pests and disease
that may well prove vital for securing long-term global food security. An interna-
tional treaty on animal genetic resources and livestock breeders’ rights is therefore
warranted.159 One of the key areas of traditional grazing for local communities are
their forests. Although Indigenous peoples manage over 11 per cent of the world’s
forests their rights and capacity to enforce them are increasingly under threat.160
Formal recognition of Indigenous peoples’ rights over forests doubled in the 15
years up to 2002 and were estimated to double again in the following 15 years.161
This promising trend did not however continue. A report in 2014 shows a slow-
down since 2008 in the recognition of Indigenous peoples’ and local communities’
land rights across the developing world’s forested countries.162 At the same time, vast
areas of forest continue to be converted into agricultural land, which is the single
main cause of forest loss.163 Government conservation policies, dam construction,

DRAFT
oil and mining extraction and other land use changes are further depriving
nomadic peoples and local communities of access to their traditional forests.164
Indigenous peoples have also been forced off their lands to make way for Protected
Areas, which were traditionally envisioned as areas free of human activity. Such
policies are now widely seen as misguided and Indigenous peoples are increasingly
seen as having a role to play in co-management of Protected Areas.
Even where laws exist recognizing the rights of Indigenous peoples and local
communities over traditional forest lands, their rights often remain unrecognized
in practice due to a lack of necessary implementing regulations. In the
Democratic Republic of the Congo, despite the existence for over ten years of
legislation establishing the basis for granting of community forest concessions, not
a single concession has been granted, due to a lack of implementing regulations.165
In what was welcomed at the time as a sign of changing policy, in 2006 India
adopted the Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, which provides for recognition of ‘individual
and common tenure over forest lands and resources’.166 The Act is being used by
Indigenous peoples and local communities to recover and consolidate their tradi-
tional territories, secure their forest resources and as a defence against mining and
industrial projects.167 Despite the promise of the Act, Dash paints a ‘discouraging
picture’ noting that by 2010 less than 3 per cent of almost 49,000 community
claims had been granted.168 Amongst the most serious hurdles faced by commu-
nities in securing forest rights has been the insistence by the authorities on the
provision of documented evidence, which Dash says is often unavailable, especially
in the case of customary rights.169 This narrow view runs counter to the Act itself,
which includes oral and physical evidence in the list of evidence that may be
138 Natural resources or essences of life?

provided to demonstrate forest rights.170 Indigenous peoples in India have turned

successfully to the courts to seek enforcement of their forest rights. In May 2013
the Indian Supreme Court decided in favour of Dongria Kondh in their struggle
with a large bauxite mine on their lands.171 Also in 2013, the Constitutional Court
of Indonesia in Traditional Forest Community Case172 held that the State’s authority
over customary law forest is:

limited by the customary law of the forest community … The members of a

traditional community have the right to clear their customary forests to be
controlled and used for the fulfilment of their individual needs and those of
their families.Therefore, it is not possible for the rights held by customary law
community members to be extinguished or frozen, provided that they meet
the requirements of a traditional community as referred to in Article 18B(2)
of the Constitution.173

Despite the positive response the decision has received, Butt argues that it is
unlikely to bring about any real practical changes in the fortunes of Indonesia’s
forest dependent peoples.174 In the first place the Constitutional Court has no
power to compel compliance by the parliament with this decision and its jurisdic-
tion does not extend to secondary legislation, furthermore, the decision does not

DRAFT
affect contracts and concessions already granted.175 In the second place, the court
did not address the practical difficulties facing traditional communities to achieve
formal recognition of their status under the constitution.176
Indigenous peoples’ rights to their traditional forest territories are also under
threat from climate change mitigation initiatives such as Reducing Emissions from
Deforestation and Degradation (REDD). REDD+ programs envisage not only
prevention of deforestation and forest degradation – deforestation accounts for 20
per cent of greenhouse gas emissions – but also include conservation, sustainable
management of forests and enhancement of forest carbon stocks. What is being
created is a new market for forests with estimates of potential markets of up to
USD $30 billion a year. The pressures to divest Indigenous peoples of their lands
in order to secure the benefits of this trade are enormous. As Galloway Mclean
explains:

as forests are given monetary value under REDD schemes, many Indigenous
communities (particularly in countries where their identities are not recog-
nized, land tenure rights are unclear, there is no culture of free, prior and
informed consent, and decision making remains top-down) report new
conflicts arising between indigenous and local communities and the state.177

Even if Indigenous peoples manage to hold on to their lands they may find them-
selves pressured into accepting REDD+ agreements that lock up their forests far
into the future.
Indigenous peoples also play an important role in the management of both
freshwater and marine resources. In Fiji they have been actively involved in the
 Natural resources or essences of life? 139

establishment of local marine management areas, which are seen as important tools
for reinvigorating traditional subsistence fisheries severely hit by large commercial
scale fishing.178 In Vanuatu the Fisheries Act requires that customary owners of
marine areas be consulted prior to declaring an area protected under the Act.This
has led to innovative collaborations, such as occurred when government represen-
tatives shared scientific information with local chiefs and communities in Malekula
on the basis of which communities placed a tabu179 upon marine areas and adjacent
mangrove forest for a year.180 This form of co-management has been described as a
step towards the incorporation of traditional management systems (i.e. customary
law) ‘into “overall fisheries strategies” and, therefore, codified law’.181 In New
Zealand the 1996 Fisheries Act recognizes the Māori concept of Kaitiakitanga,‘the
exercise of guardianship; [which] in relation to any fisheries resources, includes the
ethic of stewardship based on the nature of the resources, as exercised by the appro-
priate tangat whenua (people of the land) in accordance with tikanga Māori’182.
Under the Act, Māori experts may be appointed ‘to administer and enforce rules
in traditionally controlled areas, to assist fisheries officers and give access permis-
sion to indigenous areas’.183 Although, the state has subsequently sought to limit the
extent of customary title rights to marine areas, this remains a very important
precedent. New Zealand has also made innovative advances in the development of
a co-governance and co-management regime for the country’s longest river.184 The

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Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 provides
opportunities for Māori to influence all levels of river management and to
continue to practice traditional ceremonial and fishing activities along the river.185
New Zealand has also adopted its own form of recognition of the rights of Mother
Earth. In March 2014 the Crown and Whanganui Iwi negotiators intialled the
Whanganui River Deed of Settlement Te Awa Tupua Framework Document.186
The Settlement, if accepted by Whanganui Iwi will recognize the river as Te Awa
Tupua, ‘an integrated living whole from the mountains to the sea and which is
intrinsically connected to the Iwi, with its own legal identity’.187 For Whanganui
Iwi their relationship with the River is not viewed in terms of ownership, rather
they believe the River ‘owns’ the Iwi, meaning that the Iwi has obligations and
responsibilities toward the River.188 The agreement reflects that and the purpose in
having the river’s legal status recognized is to ensure its health and wellbeing.189
Reminiscent of the constitutional recognition of the rights of Pacha Mama in
Ecuador and the ‘ley de Madre Tierra’ in Bolivia, the Whanganui Settlement is one
more example of how traditional values and principles of law are leading to new
relationships between nations and their environment.
Indigenous peoples cannot always rely on states to define the mechanisms for
enforcement of their rights. One particularly interesting example of community
efforts to promote respect for their customary law relating to traditional manage-
ment of marine resources involved the preparation in the late 1990s of a protocol
by a local community in the Solomon Islands. The written protocol defined the
community’s customary law regulations relating to fishing on their reef, which they
presented to the local police with a request for their support in its enforcement.190
This example, along with other such community initiatives served as the basis for
140 Natural resources or essences of life?

what Alejandro Argumedo and the members of the Potato Park in Peru have
termed ‘biocultural protocols’.191 In a similar fashion, Raika pastoralists of Western
India – following a ban on traditional grazing of their livestock in the Kumbhalagh
Wildlife Sanctuary in Rajasthan – have developed a detailed protocol setting out
their biocultural rights and duties under customary, national and international law.
The Raika protocol serves, says Jonas et al., as ‘an interface for constructive dialogue
about their values and ways of life with government officials in a manner that
embodies both the resilience and vulnerabilities of their biocultural diversity.’192
Indigenous peoples’ biocultural protocols are an express manifestation of their
rights to self-determination. Progressive development of an ever wider overlapping
web of protocols based upon diverse bodies of customary law may someday serve
as a mutually supportive body of custom-based principles, rights and duties
promoting recognition and enforcement of Indigenous peoples human rights.193
Through experiences in community conservation, citizen juries and the adoption
of protocols, Indigenous peoples are taking the initiative in the design and imple-
mentation of mechanisms to secure their rights over genetic resources, regulate
access and benefit sharing, and secure the protection of traditional knowledge. In
the process, they are demonstrating the utility, vitality and flexibility of customary
law as a tool for securing human rights.
Under international law, rights over natural resources are to be governed with

DRAFT
due respect and due recognition for Indigenous peoples’ customary laws and in a
manner that secures their cultural integrity. Realization by Indigenous peoples of
their human rights is clearly dependent upon the effective exercise of their rights
to apply their customary laws in the regulation of natural resource use within their
territories and to the use of their genetic resources both within and beyond their
territorial jurisdiction. Furthermore, states are obliged to give due recognition and
respect to Indigenous peoples’ customary laws in the preparation, adoption and
implementation of natural resource law, policy and programme activities.The fore-
going propositions are indicative of rights and obligations relating to customary law
natural resource management that have crystallized or are in the process of crystal-
lization as norms of customary international law.
7 Right to culture and cultural
heritage

Indigenous peoples’ rights to their lands, traditional territories, natural resources

and self-determination are vital for protection of their cultural integrity and their
survival as distinct peoples. It is, however, their distinctive cultural identity and their
commitment to its retention that most clearly distinguishes Indigenous peoples and
underlies their struggle for respect and recognition of their ancestral and human
rights.This notion of cultural identity and the struggle to protect cultural integrity
has evolved over time as Indigenous peoples have moved from being the objects of
cultural investigation to being the arbiters of culture’s scope and nature. Gray iden-

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tifies three aspects of culture that form part of an ongoing tension: the ‘culture of
social analysis’ imposed from outside, the culture of ‘indigenous self-identification’,
and culture in which ‘imagery and information become elements in an act of self-
determination against colonisation’ and the ‘basis for demanding rights’.1 The latter
politically charged sense of culture is, Gray argues, the only one that offers the
possibility of fully incorporating culture within the indigenous rights struggle.2 As
Indigenous peoples have redefined the notion of culture to embrace a diverse range
of tangible and intangible manifestations of culture, a frequently polemic debate has
ensued regarding the nature of their cultural rights and the most appropriate means
for securing their protection. This chapter explores the rights of Indigenous
peoples to their culture and their way of life, the progressive shift in emphasis from
notions of cultural property to cultural heritage and the struggle for repatriation of
funerary remains and cultural artefacts.The following chapter will take up the asso-
ciated issue of Indigenous peoples’ rights to their traditional knowledge.

Right to a ‘way of life’

The UNESCO Universal Declaration on Cultural Diversity describes culture as
‘the set of distinctive spiritual, material, intellectual and emotional features of a
society or a social group, [which] encompasses, in addition to art and literature,
lifestyles, ways of living together, value systems, traditions and beliefs’.3 Similarly, in
Article 2(a) of the Fribourg Declaration on Cultural Rights, culture is described as
covering ‘those values, beliefs, convictions, languages, knowledge and the arts, tradi-
tions, institutions and ways of life through which a person or a group expresses
their humanity and meanings that they give to their existence and to their
142 Right to culture and cultural heritage

development’.4 This notion of culture as a ‘way of life’ first emerged through the
progressive interpretation of Article 15(1)(a) of the International Covenant on
Economic, Social and Cultural Rights, which recognizes the rights of everyone to
‘take part in cultural life’.
At the time of drafting, Article 15 was limited to the dominant national culture.5
Its interpretation was expanded to include popular culture in the late 1960s and
further expanded in the 1990s, with the adoption of an anthropological definition,
which described culture as ‘the internal frame of society … manifested in a
peoples’“way of life”’.6 The Committee on Economic, Social and Cultural Rights
has described this latter notion of culture as ‘a world view representing the totality
of a person’s encounter with the external forces affecting his life and that of his
community’.7 The Committee, in O’Keefe’s words, sees ‘Article 15 as guaranteeing
… indigenous groups the freedom to practise and the opportunity to promote
their cultures’.8 This freedom includes a ‘degree of autonomy’ to be exercised
‘within the framework of the overall national society’.9 In essence the Committee
may be seen as promoting a notion of the right to culture which accords with the
concept of internal self-determination as it has been set out in the UN Declaration
on the Rights of Indigenous Peoples.
In General Comment 21 the Committee sets out its opinion regarding the
scope, nature and core elements of the right to take part in cultural life under

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Article 15(1)(a).10 In it the Committee stresses the individual and collective rights
of Indigenous peoples to full enjoyment of all human rights and fundamental free-
doms, pointedly referring to the provisions on cultural institutions, ancestral lands,
natural resources and traditional knowledge in the UN Declaration on the Rights
of Indigenous Peoples11 and ILO Convention 169.12 The Committee makes it clear
that states are obliged to both abstain from interference with the exercise of cultural
practices and with access to cultural goods and services, and to take positive action
to ensure the ‘preconditions for participation, facilitation and promotion of cultural
life and preservation of cultural goods’.13 General Comment 21 describes ‘cultural
life’ as a living process, historical, dynamic and evolving,14 and the right to partici-
pate in cultural life as a ‘cultural choice’, which must be recognized, respected and
protected on the basis of equality.15 It refers to ‘culture’ as a broad inclusive concept
encompassing all manifestations of human existence, including:

customs and traditions through which individuals, groups of individuals and

communities express their humanity and the meaning they give to their exis-
tence, and build their world view representing their encounter with the
external forces affecting their lives. Culture shapes and mirrors the values of
well-being and the economic, social and political life of individuals, groups of
individuals and communities.16

This definition clearly embraces Indigenous peoples’ governance systems and legal
regimes relevant to the expression, development, maintenance and control of
culture, cultural identity and cultural property. The Committee, in General
Comment 21, is of the opinion that the right to take part in cultural life is
 Right to culture and cultural heritage 143

interdependent of other rights enshrined in the Covenant, including the right of

all peoples to self-determination.17 It also finds that the obligation of states to
respect the right to culture requires the adoption of specific measures.These meas-
ures are to empower peoples to:

(a) freely choose their own cultural identity … this includes the right … to
express their cultural identity freely and to exercise their cultural practices and
way of life …
(d) … maintain and strengthen their spiritual relationship with their ancestral
lands and other natural resources traditionally owned, occupied or used by
them, and indispensable to their cultural life.
(e) … take part freely in an active and informed way, and without discrimina-
tion, in any important decision-making process that may have an impact on
his or her way of life.18

These rights to self-determination, participation in decision making and respect for

culture as a way of life, imply the existence of a right to require respect for the
underlying pillars of cultural integrity, including customary law and traditional
decision-making institutions.The Committee takes the view that states’ obligations
under Article 15(1)(a), create ‘an immediate obligation to guarantee that the right

DRAFT
to take part in cultural life, is exercised without discrimination and to recognise
cultural practices and to refrain from interfering in their enjoyment’.19 This, they
say, is a ‘specific and continuing obligation’ requiring states to take ‘deliberate and
concrete measures aimed at the full implementation of the right’.20 Regressive
measures are not permitted.21 Despite the Committee’s view that the obligations to
take measures under Article 15(1)(a) are immediate, the Covenant is drafted in aspi-
rational terms potentially reducing the sense of urgency among states to take
action.
In contrast, with the position under the International Covenant on Economic,
Social and Cultural Rights, the International Covenant on Civil and Political
Rights must be implemented immediately.The Covenant sets out what Sheleff has
described as the ‘most definitive statement in an international document in regard
to group rights’.22 Article 27, which is couched in negative terms, states that:

In those States in which ethnic, religious or linguistic minorities exist, persons

belonging to such minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and
practise their own religion, or to use their own language.

The negative formulation of Article 27 has led some commentators to conclude

that states have no obligations to take positive action to secure the right to enjoy
culture.23 The Human Rights Committee leans toward an opposite view in General
Comment 23 where it states that enjoyment of cultural rights under Article 27
‘may require positive legal measures of protection and measures to ensure the
effective participation of members of minority communities in decisions which
144 Right to culture and cultural heritage

affect them’.24 The Human Rights Committee has defined the extent of state obli-
gations to take ‘positive legal measures’ to protect the material basis for Indigenous
peoples’ culture in General Comment 2325 and in the Lubicon Lake Band,26
Mahuika,27 and the first and second Lansmann cases.28 General Comment 23 notes
that Indigenous peoples’ culture may manifest itself as a ‘particular way of life asso-
ciated with the use of land resources … includ[ing] such traditional activities as
fishing or hunting and the right to live in reserves protected by law’.29 The
Committee takes the view that Article 27 of the International Covenant on Civil
and Political Rights establishes an absolute barrier to measures that would amount
to a denial of the right to culture.30 The Committee is clearly advocating recogni-
tion of Indigenous peoples’ rights to their ‘way of life’, which includes their rights
to their customary legal regimes. Weller suggests that one area in which positive
measures may be required is ‘to protect the identity of a minority, and to secure the
rights of its members to enjoy and develop their culture in community with other
members of the group’.31
Obligations to protect cultural integrity are also found in: the UN Declaration
on the Rights of Minorities, which, in Article 1(2) reframes the provisions of
Article 27 of the International Covenant on Civil and Political Rights in positive
terms; in ILO Convention 169;32 the Council of Europe Framework Convention
on National Minorities;33 and the African Charter on Human and Peoples Rights.34

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ILO Convention 169 recognizes state obligations to take positive action35 in the
form of special measures to promote the full realization of Indigenous peoples’
cultural rights with respect for their social and cultural identity, their customs and
traditions and their institutions.36 As noted earlier, the Convention also requires
consultation and participation of Indigenous peoples at all levels of decision
making. Weller takes the view that states are obliged not only to tolerate cultural
diversity but must also take measures to promote cultural pluralism including
through the adoption of policies and legislative measures.37 One possible way for
states to take action would, he proposes, be to afford autonomy to ‘cultural
communities in the management of their own cultural affairs’.38 Such an approach
would accord with and help promote Indigenous peoples’ self-determination,
albeit within the framework of the state.39
Although cultural rights have in the main been articulated as individual rights,
both the Human Rights Committee and the Committee on Economic Social and
Cultural Rights have interpreted them as having a collective quality. Article 27 of
the ICCPR has been interpreted by the Human Rights Committee as protecting
both collective and individual rights to cultural integrity40 and to ‘cover all aspects
of an indigenous group’s survival’, a position also taken by the Inter-American
Commission of Human Rights.41 The Human Rights Committee has, in a number
of important decisions, interpreted Article 27 as protecting traditional economic
activities that possess ‘non-universal and collective dimensions’.42 The approach of
the Committee has been first to seek to establish whether the relevant traditional
economic activity constitutes an ‘essential element’ of the culture in the relevant
community or Indigenous people.43 This is generally undisputed in cases involving
Indigenous peoples but is less straightforward with other minority groups.44 Once
 Right to culture and cultural heritage 145

the existence of a relationship between culture and a specific economic activity has
been ascertained the Committee proceeds to examine the extent to which a
minority’s rights to enjoy its culture has been interfered with.45 In Lansman et al. v.
Finland46 the Committee took the view that measures that have ‘a limited impact
on the way of life of persons belonging to a minority’ will not necessarily amount
to a denial of the right to enjoy culture under Article 27. The Committee was of
the view that if the level of impact was to increase it might amount to a violation.47
Anaya notes that the Committee came to its decision without addressing the
Saami’s claim to the lands, in effect accepting the state as owner of the lands.48 This
demonstrates the difficulties Indigenous peoples face in overcoming ingrained
notions of state sovereignty over lands over which they claim ancestral territorial
rights and in securing respect and enforcement of their customary laws.
The Human Rights Committee has shown a willingness to draw upon custom
and tradition in determining the extent of rights to cultural integrity. In the case
of Francis Hopu & Bessert v. France 49 the Committee adopted a broad interpretation
to the term ‘family’ as that term was understood by ‘the society in question’.50 The
Committee has not to date decided on whether and to what extent a breach of, or
failure to recognize Indigenous peoples’ rights to apply their own customary laws
would be considered a violation of Article 27. It seems likely that such a claim
would prosper in the case of customary laws essential for the realization of rights

DRAFT
to enjoy cultural identity, apply traditional land and resource management prac-
tices, and enforce customary control of the use and sharing of both tangible and
intangible aspects of culture. Such an action might, for example, be envisaged
where Indigenous peoples are impeded from practising and enforcing customary
laws governing land or resource use that are necessary to prevent over exploitation
of resources required to secure their cultural integrity and subsistence as a people.
When taken together with their rights to self-determination Indigenous
peoples’ rights to enjoy their culture and to their ‘way of life’, as outlined above,
create clear obligations for states to recognise Indigenous peoples’ rights to their
own traditions, laws and customs. States must, therefore, take legislative, policy and
administrative measures to support Indigenous peoples to maintain their own
customary legal regimes.51 States may also be obliged to repeal, amend or otherwise
modify laws, policies and administrative practices that undermine Indigenous
peoples’ customary regimes.

From cultural property to cultural heritage

The term ‘cultural property’ was first used in the 1954 Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict, which focused on
the protection of architectural monuments and works of art.52 In 1970 the
UNESCO Convention on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property established
requirements for State Parties to mutually respect and enforce their respective
‘cultural property export controls and related legislation’.53 The Convention left
each State Party with the discretion to adopt its own definition of cultural property
146 Right to culture and cultural heritage

and made exportation without an obligatory certificate illegal.54 Neither

Convention gave any specific recognition to the rights or interests of Indigenous
peoples. Since the 1980s the notion of cultural property has expanded to include
not only movable works of art and architectural monuments but things ‘as disparate
in their scale and characteristics as human remains, art genres, and regional land-
scapes’,55 as well as traditional knowledge and traditional cultural expressions.
Indigenous peoples have proposed an even wider notion of culture to include such
things as human genetic material and ‘all documentation of Indigenous peoples’
heritage in all forms of media’56 as well as ‘biological species as distinct from plant
or animal populations’.57
The fusion of notions of culture and property has seen rights to land and
resources grounded upon Indigenous peoples’ sacred and cultural links to their
traditional territories;58 development projects brought to a halt to avoid desecration
of sacred sites;59 museums required to repatriate human remains and cultural objects
to Indigenous peoples based on proven or presumed links with burial remains;60
redefinition of rights to access and utilize traditional knowledge found in the
public domain;61 and international documentation of iconic forms of intangible
cultural heritage.62 Legal and administrative measures adopted to secure Indigenous
cultural heritage include full property rights, sui generis regimes, co-management
schemes and establishment of obligations to consult and/or seek prior informed

DRAFT
consent from Indigenous peoples for access to, holding of or use of elements or
aspects of their cultural heritage.This evolving body of law has been described as
‘unique’, traversing as it does the boundaries between real, personal and intellec-
tual property and those between international, domestic, customary and tribal law.63
Although framing their struggle within the language of human rights, Indigenous
peoples’ efforts to protect their cultural patrimony have been drawn inexorably
into the realm of cultural and intellectual property rights. Applying the concept of
‘cultural property’ to aspects of Indigenous peoples’ tangible and intangible culture
is highly controversial.This is the case for a number of reasons, including the inher-
ent conflicts of legal vision between customary law and positive legal regimes.64
These include conflicts of perception regarding individual versus collective rights,65
property ownership versus stewardship responsibilities66 and cultural sovereignty
versus ‘cultural internationalism’.67 Brown and others have warned that granting
property rights over traditional knowledge poses a threat ‘to free flows of know-
ledge’,68 a view some see as favouring the protection of the public domain over
cultural survival.69 Brown draws attention to a curious paradox facing those
defending Indigenous peoples’ rights over their culture as a form of property.This
is that while criticizing corporate capitalism they are ‘espousing capitalism’s
commodifying logic and even pushing it to new extremes’.70 His claim is not with-
out substance. While proponents of Indigenous rights over traditional knowledge
tend to reject the use of intellectual property as a means for its protection, at the
same time they have called for the recognition of rights in perpetuity, a much
greater level of control and monopoly right than that applied to intellectual prop-
erty grants under existing law.
Barsh, a strident opponent of a property rights approach, argues it is a slippery
 Right to culture and cultural heritage 147

slope that will lead to ‘a distortion of the very nature of indigenous cultures, and
of the relationship between Indigenous peoples and their lands’. 71 The danger lies,
he says, in the distinction in Western thought between nature and culture ‘reflected
in the assumption that nearly all cultural and intellectual property can be
completely detached from the landscapes in which they arose’.72 This fails to recog-
nize that land and knowledge rights are ‘so closely intertwined that the use of
property based terms such as “land tenure” completely distorts indigenous concep-
tions of law’.73 Daes describes the relationship between indigenous culture and the
land as so strong that ‘it is inconceivable that … any element of the people’s collec-
tive identity could be alienated permanently or completely’.74 A case in point is that
of the Kainai Blood tribe, which has their own ‘fully functioning system of cultural
property protection’, and any transfers occurring without adherence to that system
are considered illegal.75 The spiritual nature of the tribe’s relationship with their
cultural heritage is apparent in the words of a member of the tribe:

Ownership in our community, in our way, is different from a white man’s

ownership and view. We believe that we don’t own thing[s] that they belong
to the Creator and bundles are given to our people for specific purposes.76

The ‘ideological baggage’ associated with the term ‘cultural property’77 has led many

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authors to embrace the concept of cultural heritage,78 a term Prott and O’Keefe
believe embraces areas ‘“property” does not, and should not, try to cover’.79 The gist
of their argument is that the notion of ‘property’, viewed as a possessory right, is
inappropriate to describe the full range of relationships associated with heritage
objects.80 Daes utilizes the term ‘collective heritage’81 of Indigenous people to cover
both their cultural and intellectual property, defining ‘heritage’ as:

everything that belongs to the distinct identity of a people and which is theirs
to share, if they wish, with other peoples. It includes all of those things, which
international law regards as the creative production of human thought and
craftsmanship, such as songs, stories, scientific knowledge and artworks. It also
includes inheritances from the past and from nature, such as human remains,
the natural features of the landscape, and naturally occurring species of plants
and animals with which a people has long been connected.82

It is now common to see the term cultural heritage utilized as an umbrella term
to cover all aspects of indigenous culture, including traditional knowledge, tradi-
tional cultural expressions as well as their intellectual and cultural property. In the
process of redefining the notion of culture the use of the term cultural property is
itself undergoing a makeover.Tsosie, for example, distinguishes cultural property by
which she means:

items that are part of the cultural heritage of a tribal government or native
people and which are significant to the native nation’s survival as a distinctive
people and culture from commercial products, which are items intentionally
148 Right to culture and cultural heritage

manufactured and created by native artists for the purpose of economic devel-
opment.83

Although international law is increasingly accommodating itself to the use of the

term ‘cultural heritage’, the legal framework for protection of aspects of culture is
still primarily property based.As Indigenous peoples have been drawn ever further
into a property rights dialogue the challenge they face is how to reframe the debate
from within. As part of this process they are seeking recognition of a range of
cultural heritage rights conducive to enforcement of their own customary laws and
practices. Janke, in her influential 1999 study of Indigenous peoples’ cultural and
intellectual property in Australia, sets out a comprehensive list of the type of
heritage rights Indigenous peoples are seeking.These include rights to:

own, control and define what constitutes Indigenous Cultural and Intellectual
Property and/or Indigenous heritage; have protection based on self-determi-
nation; be recognized as guardians and interpreters of their culture; collective
ownership of cultural and intellectual property rights; authorize or refuse
rights for commercial use in accordance with their own customary law;
require prior informed consent for access and use; and maintain secrecy over
Indigenous knowledge and other cultural resources.84

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Recognition and enforcement of these rights would empower Indigenous peoples
to control access to and use of their cultural property, as they may define it, in
accordance with their rights to self-determination and in conformance with their
own customary laws and practices. For Daes the fact that Indigenous peoples do
not view their heritage ‘in terms of property at all’ highlights the importance of
giving voice and recognition to Indigenous peoples’ own legal regimes as the legit-
imate arbiters of their rights over cultural heritage.85 While recognizing the
diversity and complexity of Indigenous peoples’ legal regimes Daes identifies vari-
ous similarities in them, including, the communal nature of rights over heritage86 –
despite which individuals may be the practical caretaker or custodian of specific
aspects of heritage87 – and, the need for group consent for sharing of heritage
(specific decision-making procedures may differ depending upon the nature of the
subject matter, e.g. traditional medicines, songs, stories).88
Based on her 1993 study, in her role as Special Rapporteur Daes elaborated draft
principles and guidelines for the protection of the heritage of Indigenous peoples.89
The principles specified, among other things, that effective protection of
Indigenous peoples’ heritage should be based broadly on self-determination and
Indigenous peoples’ ownership and custody should be collective, permanent and
inalienable or as prescribed by their own customs, rules and practices.90 In 2000 the
proposed principles and guidelines were reviewed and submitted to the Working
Group on Indigenous Populations with the suggestion that the Group might
consider at some stage seeking to transform them into a convention on Indigenous
peoples’ cultural heritage.91 Weissner and Battiste, who chaired the review session,
identified three major ideas arising from Daes’s earlier study: the need for a holistic
 Right to culture and cultural heritage 149

and expansive view of cultural heritage, deference where possible to indigenous

customs, laws and practices, and effective legal protection at the national and inter-
national level.92 The adoption of ILO Convention 169, UN Declaration on the
Rights of Indigenous Peoples, the UNESCO Convention for the Safeguarding of
the Intangible Cultural Heritage (2003)93 and UNESCO Convention on the
Protection and Promotion of the Diversity of Cultural Expressions (2005)94 are
important steps in this direction. They do not, however, obviate the need for a
specific convention on Indigenous peoples cultural heritage providing a holistic
approach to the articulation and protection of their rights in contrast to the current
fragmented and ad hoc approach of the United Nations. International regulation
needs to be supported by action at the national level and by Indigenous peoples
themselves to secure recognition of their own legal systems and their capacity to
deal with challenges associated with the protection, development, sharing and trade
of aspects of culture. In this vein, Tsosie notes the importance of tribal codes on
cultural heritage such as the Code of the Confederated Tribes of the Warm Springs
Reservation in Oregon and the Code of the Eastern Band of Cherokee Indians,
which reflect the reality of Indigenous peoples perspectives on culture, which are
comprehensively defined to include the ‘lifeways values and histories’ as well as
traditional medicines, sacred sites and associated places of tribal culture, as well as
graves and funerary remains.95

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Recovering funerary remains, cultural and sacred objects
Taken together, Article 27 of the ICCPR, Article 15 (1) (a) of the ICESCR, and
the relevant provisions of ILO Convention 169 and the United Nations
Declaration on the Rights of Indigenous Peoples establish a firm basis for members
of Indigenous peoples to claim their right to enjoy, together with other members
of their people, those aspects of their culture that are inherently and inextricably
associated with their way of life. In order to secure such rights states need to respect
the inviolability of Indigenous peoples’ rights to family, religion and privacy. States
will also need to address Indigenous peoples claims for respect and protection of
ancient burial grounds and for the repatriation of disinterred human remains and
sacred and cultural objects, whether held in private or public collections.
Both the International Law Association and the Working Group on Indigenous
Peoples have suggested the United Nations consider drafting a convention on
indigenous culture including the repatriation of cultural heritage across national
borders.96 At present international law does not, however, give specific recognition
to the rights of sub-national groups to restitution of cultural heritage. Repatriation,
therefore, depends upon the status of national law. Measures governing repatriation
have been adopted in, among other countries, Australia, New Zealand and the
United States. Of these the US legislation has received the greatest attention to date.
The US Native American Graves Protection and Repatriation Act has been
described as the ‘keystone in the legal framework for protecting and repatriating
indigenous heritage’.97 The Act regulates four categories of Native tangible cultural
heritage including, ancestral human remains, funerary objects, sacred objects and
150 Right to culture and cultural heritage

objects of cultural patrimony.98 It establishes criminal sanctions for illegal traffick-

ing in Native American human remains and cultural objects,99 and sets down
procedures for repatriation of human remains and cultural items by museums and
federal agencies. Nafziger et al. describe the Act as ‘essentially human rights law’,100
which draws upon the international ‘regime of human rights and self-determina-
tion that emerged after the Second World War’.101 It is the first US statute to
recognize collective rights over cultural property, thereby providing Native
American tribes with a new legal avenue to pursue their cultural claims.102 The Act
recognizes the inalienable nature of Indigenous peoples’ cultural patrimony, an
approach that finds resonance in other countries’ laws for the protection of aspects
of cultural heritage, such as traditional knowledge.103 Most importantly, the Act
defers to tribal customary law for the purposes of determining ‘the legal question
of alienability at the time the item was transferred’.104 The Act also defers to custom
and tradition on sacred objects, by considering ‘the vital role of indigenous beliefs
(an ‘intangible’ aspect of culture) in establishing what is ultimately considered a
tangible cultural resource’.105
In some instances conflicts may arise between or within Indigenous peoples
with regards to rights over funerary remains and cultural artefacts. An example of
such a conflict is that between the Hopi and Navajo peoples over links to the
Anasazi Culture who constructed magnificent cliff dwellings in the Chaco Canyon

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Mesa Verde in northwestern New Mexico.106 While the Hopi claim, to what they
term the ‘ancestral Puebloans’, is supported by both scientific evidence and their
own oral histories, the National Park Service has concluded that the Navajo
peoples have a ‘natural affiliation’ with the Anasazi culture, and hundreds of ances-
tral puebloan graves now lie inside the Navajo reservation. Where conflicts arise
between communities, the Native Graves Act requires the resolution of such
disputes in a court of law as a precondition for disbursing disputed objects.107
Ensuring the full and effective participation of traditional decision-making author-
ities in any such dispute resolution procedure will be fundamental to ensuring an
appropriate resolution of conflicts between alternative customary law regimes or
interpretations of custom.
The US Native Graves Act refers to ‘custody and possession’ rather than ‘title
and ownership’ of cultural artefacts and funerary remains, a reflection at least in part
of indigenous notions of stewardship rather than western notions of exclusive
proprietary rights108 The adoption by the Act of the language of stewardship and
deference to customary law in identification of rights over cultural artefacts
empowers tribes as peoples to regain access to and custody of Indian remains and
artefacts in a manner consistent with their own life ways and beliefs.109 Despite
what many had feared, the Act has not led to the ‘plundering of American muse-
ums by Indian tribes’.110 On the contrary, Indigenous peoples have shown
themselves to be pragmatic ‘often leaving in museums those items they have deter-
mined they cannot properly house or care for’.111
Although, the US Native Graves Act is primarily applicable to Native American
and Hawaiian groups it has encouraged the return of remains to foreign
claimants.112 In such cases, it is to be hoped that the same respect and recognition
 Right to culture and cultural heritage 151

given to First Nations will be shown to foreign Indigenous peoples and their rights
to identify their cultural patrimony in accordance with their own customary laws
and traditions. Attempts by First Nations to recover items in European museums
and private collections have not been so fortunate. The Kanai Blood Tribe, for
example, faced numerous difficulties in their attempts to recover items they
believed were illegally held in European collections. This included having to
provide ‘written documentation to verify ownership’ and meet Western evidentiary
standards relating to the acceptance of oral testimony while their own laws and
protocols are ignored.113 Coombe argues that recognition of other conceptual
understandings of the relationship between people and aspects of their culture is:

a form of mutual respect and recognition that arguably continues to elude

most theorists of both property and culture. Effectively, it is to acknowledge
that cultural property is just one dimension of cultural rights a category of
human rights that puts enhanced emphasis on moral rights, collective cultural
identity, cultural integrity, cultural cooperation, cross cultural communications,
and intercultural exchange.114

The recognition of a central role for customary law in defining rights to transfer
human remains and cultural and sacred objects, as provided for in the US Native

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Graves Act, is a specific example of regime collaboration rather than competition.
By establishing modalities that allow customary law to define rights over cultural
heritage the Act empowers Indigenous peoples and helps to ensure that historical
acts contrary to their rights are not perpetuated. In doing so it provides a clear
example of how national and international law can promote wider application of
customary law.

Rights to sacred sites

Access to and enjoyment of sacred sites is an issue of concern for Indigenous
peoples in many parts of the world. Sacred sites may include mountains, lakes, rivers
and streams and other landscapes.The control and maintenance of these sites may
have fallen outside the control of the relevant Indigenous peoples as a result of
colonization, forced displacement, war and/or resource exploitation. Sacred sites
may also be the subject of competing use brought on by commercial enterprise,
tourism, national conservation policies and development policies. UNESCO has
sponsored a number of international meetings to examine the links between sacred
sites and protection of cultural and biological diversity.At one of these, an interna-
tional symposium in Tokyo in 2005, participants adopted a Declaration on the
Role of Sacred Natural Sites and Cultural Landscapes in the Conservation of
Biological and Cultural Diversity, which calls upon:

governments, protected area managers, the international system, governmental

authorities and non-governmental organizations and others to respect, support
and promote the role of Indigenous peoples and local communities, as
152 Right to culture and cultural heritage

custodians of sacred natural sites and cultural landscapes, through the rights-
based approach.115

The Declaration does not, however, address the issue of Indigenous peoples’ rights
to restitution of ancestral rights over sacred sites. The reluctance to address this
thorny issue in international fora appears to be grounded upon concerns regard-
ing conflicts over heavily disputed sacred sites, such as Jerusalem, which pose a
threat to world peace.116 The result, however, is a failure to address Indigenous
peoples’ legitimate claims for international support to secure their rights to their
places of worship.
In the United States the courts have shown a marked reluctance to take action
to recognize Indigenous peoples’ rights over their sacred sites, or to protect those
sites from harm, even in the face of activities that may destroy indigenous religion.
In what Brown refers to as a particularly ‘mean-spirited’ decision,117 the US
Supreme Court in Lyng v. Northwest Indian Cemetery Protective Association118 refused
an application to stop the building of a logging road and issuing of logging licences
in Chimney Rock, a place that served as ‘an integral and indispensable part of
Indian religious conceptualization and practice’.119 Despite recognizing that the
‘logging and road-building projects at issue … could have devastating effects on
traditional Indigenous religious practice’ Justice O’Connor presenting the court’s

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decision held that ‘[w]hatever rights the Indians may have to the use of the area …
those rights do not divest the Government of its right to use what is, after all, its
land’.120 Justice Brennan in a dissenting opinion, joined by Justices Marshall and
Blackmun, sees the case as ‘another stress point in the longstanding conflict
between two disparate cultures – the dominant Western culture, which views land
in terms of ownership and use, and that of the Native Americans, in which
concepts of private property are not only alien, but contrary to a belief system that
holds land sacred’.121 In their dissenting opinion they denounce as ‘indefensible’ the
abdication by the court of ‘all responsibility for balancing these competing and
potentially irreconcilable interests’ and views its decision to turn the task over to
the federal legislature as effectively bestowing ‘on one party to this conflict the
unilateral authority to resolve all future disputes in its favour, subject only to the
Court’s toothless exhortation to be ‘sensitive’ to affected religions’.122
In another landmark case, that of Navajo Nation v. US,123 several tribes took an
action to prevent the use of recycled water containing human waste for snow-
making on the San Francisco Peaks. Their claim asserted that a decision by the
Forest Service to approve the contested activity would lead to desecration of one
of their most sacred sites in violation of the Religious Freedom Restoration Act.124
The Ninth Circuit Court rejected the tribe’s claim demonstrating, according to
Carpenter et al., a ‘familiar fear that if the law were to protect Indian religious and
cultural interests, Indians effectively would acquire “ownership” of the public
lands’.125 The case highlights the lack of sensitivity applied to indigenous rights
where the courts are focused on protecting the idealized western notion of invio-
lable property rights, despite the cultural harm this may occasion. It also fails to take
into consideration possibilities of shared occupancy rights and indigenous notions
 Right to culture and cultural heritage 153

of custodianship and stewardship as opposed to the exclusionary notions of prop-

erty, which dominate western law.
The relationship between sacred lands and commercial development has also
proven controversial in Australia. In the Hindmarsh Bridge Controversy, members
of the Ngarrindjeri people opposed construction of a bridge at Hindmarsh Island
near the mouth of the Murray River in South Australia, concerned it would
damage a site central to their well-being.126 The Ngarrindjeri viewed the bridge
linking the Island to the Mainland as an ‘unacceptable affront to the spiritual iden-
tity which the Aboriginal community has with the land of its forebears’.127 Their
claims were based upon ‘secret women’s business’, knowledge of which was
included in confidential affidavits only for viewing by women.128 In 1995 a Royal
Commission came to the conclusion that the secret women’s knowledge was a
fabrication and permission for the bridge’s construction was given.129 Subsequently,
however, Justice von Doussa in Chapman v. Luminis Pty Ltd (No.5) took the view
that it had not been proven that the knowledge was fabricated and that:

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
did not require the Minister to understand and accept the reasoning why use
of an area would cause harm in terms of Aboriginal spiritual belief and tradi-
tion. Rather, it required that the beliefs were genuinely held and that in terms

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of those beliefs the proposed activity gave rise to a threat of injury or dese-
cration.130

Although the Chapman decision vindicated the women elders who were the source
of the relevant ‘secret women’s business’, it failed to prevent the construction and
opening of the bridge in 2001.131 Just how widespread knowledge has to be in
order to be considered sufficient to demonstrate the existence of a sacred site or
other indigenous right is one of the questions posed by Brown in his analysis of
the case.132 Diane Bell, an anthropologist who spent five years investigating the
Hindmarsh case, argues that:

In an oral culture knowledge is restricted to certain persons; for the system to

work, those who are not privy to the ‘inside knowledge’ must accept the
authority of those persons who are privy, and the wisdom of the restrictions.
They must be willing to believe without ‘knowing’, but be prepared to partic-
ipate in the system nonetheless.133

However close to the truth Bell’s description of oral cultures may be, the more
restricted the distribution of knowledge is regarding issues such as sacred sites,
traditional land and resource use patterns and customary law, the harder it is likely
to be for Indigenous peoples to secure its recognition without corroborating
evidence.
The Hindmarsh case highlighted another challenging issue for Indigenous
peoples regarding requirements to disclose secret knowledge as part of judicial or
other proceedings. In that case evidence of ‘women’s business’ was originally
154 Right to culture and cultural heritage

provided on the basis that it would only be accessible to women. Following a

change of government, the Ngarrindjeri request that their further evidence be
taken by a female judge and reviewed by a woman minister was denied. The
women decided that the confidential parts of their story could not be protected
and refused to give any further evidence.134
Although judicial relief has frequently been denied to secure indigenous rights
over sacred sites, a variety of alternative options including the promotion of volun-
tary measures to restrict contested activities,135 co-management programmes and
the development of international guidelines on cultural impact assessments136 may
provide some relief. These measures do not, however, secure indigenous rights or
give recognition to the customary rights and laws that bind Indigenous peoples to
their sacred places. Lack of such recognition continues to undermine Indigenous
peoples’ rights to practice their religions and pass on their sacred and other tradi-
tional knowledge, in time-honoured rites linked to the land.

From ownership to stewardship

In a truly intercultural pluralistic legal environment customary law and positive law
will need to interact and draw upon their respective strengths, principles and equi-
table instruments. Carpenter et al. have argued cogently for the adoption of a

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stewardship model of property based in part on Indigenous peoples’ own custom-
ary laws and traditions.Their proposal is for a ‘customised’ view of cultural property
adopting what they term a ‘more relational vision of property law’ where the order-
ing of interests is based upon ‘various human and social values, including nonmarket
values.’137 They propose the application to indigenous cultural property of a concept
of what they call ‘Peoplehood’, a concept, which they say,‘dictates that certain lands,
resources, and expressions are entitled to protection as cultural property because
they are integral to the group identity and cultural survival of Indigenous peoples’.138
They construct their notion of peoplehood upon the concept of personhood devel-
oped by Mary Jane Radin, whom they say, would view it as legitimate ‘to make
exceptions to the prevailing “universal commodification” standard for property that
is nonfungible, incommensurable and inalienable, as some indigenous cultural prop-
erties surely are’.139 Based upon the ‘pervasive view that property is a bundle of
relative, rather than absolute, entitlements, including limited rights to use, alienate
and exclude’140 Carpenter et al. embrace the language of ‘custody, care and trustee-
ship’ to articulate the ‘relationship and obligations’141 which ‘independent of title –
lies at the heart of cultural stewardship’.142 This notion of cultural stewardship is
formulated with a close eye to the experience of the corporate, indigenous and
environmental spheres, incorporating notions of: fiduciary obligation of care or
loyalty;143 prioritization of service to the group over individual self-interest; involve-
ment of the steward as part of a collective enterprise;144 and recognition of a duty of
care for the Earth of itself and for future generations.145 The model they propose is
seen as a complement to existing property, liability, and inalienability, rules for
describing indigenous non-owners rights alongside those of owners.146
The notion of peoplehood and the rights associated with it breaks out of the
 Right to culture and cultural heritage 155

indigenous versus other cultures debate and places indigenous rights alongside the
rights of other peoples. In doing so it offers a means for enabling the extension of
customary or tribal law to the regulation of cultural property beyond the immedi-
ate jurisdiction of the relevant Indigenous people. It could for example be applied
to sites of significant importance for Indigenous peoples, which they do not
control due to dispossession, removal or illegal transfer.147 It might likewise be
applied to other tangible and intangible property held in museums, databases, and
ex-situ collections of biological and genetic resources; building a fiduciary rela-
tionship between Indigenous peoples and institutions holding aspects of their
cultural heritage.148 Carpenter et al. distinguish between notions of static and
dynamic stewardship, the former applying to sacred and other intangible property,
while the latter is applied to rights of commodification, control and use of down-
stream goods and rights of Indigenous peoples to make and market cultural
artefacts.149 In this way they attempt to develop a notion of heritage rights protec-
tion which caters both to indigenous concerns to prevent commoditization of
sacred and significant elements of culture, while recognizing the growing involve-
ment and desire by Indigenous peoples to control the market in their cultural
goods. Commenting on Mezey’s arguments that cultural property will impede
cultural hybridization of culture,150 Carpenter et al. argue the contrary saying that
cultural property will facilitate ‘the dynamic process of cultural evolution, change

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and survival, by allowing Native peoples to share in decisions regarding the way
their indigenous cultures are displayed in the world’.151
Developing frameworks for the application of customary law principles in the
interfaces between customary and positive law and the cross fertilisation of legal
regimes may be seen as the implementation in practice of Indigenous peoples’
human rights, grounded on customary law. By taking the initiative and defining the
criteria for the recognition of their cultural and intellectual property rights
Indigenous peoples are bringing pressure upon states to respect and recognize the
role of customary law in securing their human rights. In essence they are helping
to define the parameters of customary international law by the very fact of forcing
a reaction by states to their initiatives. Although customary international law arises
from state practice it is not hard to see Indigenous peoples vying for a role in its
definition. Having been written out of international law for so long, Indigenous
peoples are unlikely to sit quietly on the sidelines of international law-making
processes now that they have regained recognition of their sovereign status as
peoples entitled to self-determination. Having secured their place in international
forums for the drafting of the United Nations Declaration on the Rights of
Indigenous Peoples, the Nagoya Protocol and the new international instruments
on genetic resources and traditional knowledge at the World Intellectual Property
Organization, Indigenous peoples have every reason to expect their laws, customs
and practices to influence the emergence and crystallization of customary interna-
tional law.
8 Traditional knowledge

Indigenous peoples’ struggle for protection of their rights over traditional know-
ledge is intimately linked to their struggle for realization of their rights to
self-determination and to their own laws, customs and traditions.1 Indigenous
peoples have described the importance of conserving and protecting their tradi-
tional knowledge as being ‘just as important as the struggle for self-determination’2
Traditional knowledge plays a role in guiding decision making, it underlies cultural
and spiritual ceremonies and practices and acts as a bond securing community
cohesion. For Indigenous peoples the notion of traditional knowledge incorporates

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both the intangible aspects of knowledge and the tangible manifestations of its
application including local seed varieties, traditional medicinal products and farm-
ing practices. It is an extensive body of informal science in areas such as agriculture,
fisheries, ecosystem management and is now recognised as having an important
role to play in mitigation of climate change.3 It has also been widely sought after
as an input for scientific and commercial research. Its value lies both in its individ-
ual elements and in the sum of its parts, which make up a dynamic and consistently
evolving knowledge system that nurtures ongoing innovation to meet changing
needs.4 Despite the great importance of traditional knowledge for Indigenous
peoples and local communities, as well as the wider society, it remains largely
unprotected.
This chapter begins with a discussion of traditional knowledge and the need for
a sui generis (of its own kind) approach in the development of mechanisms for its
protection. It goes on to examines current law and emerging measures for the
protection of traditional knowledge and their interrelationship with customary forms
of governance at the international, regional and national levels. It considers the appli-
cability of Native title to traditional knowledge and closes with a discussion of
biocultural protocols, prior informed consent and shared traditional knowledge.

Towards sui generis forms of protection of traditional

knowledge
In the words of Aroha Mead, a champion of Māori and indigenous rights:

Traditional knowledge is the knowledge that we’re born with, that we’ve
 Traditional knowledge 157

inherited, that we contribute to in our lifetime and pass on to future genera-

tions. Its whole function is survival and the development of a culture, of a
people.5

This definition, based upon Māori concepts of Mataruanga Māori, captures the
collective, personal, intergenerational, cumulative and dynamic nature and proper-
ties of traditional knowledge and it’s holistic and tradition based focus. It highlights
its centrality to culture and its fundamental role as the basis of subsistence and
development strategies of Indigenous peoples and local communities.6 Protection
of traditional knowledge is, therefore, vital for the realization of Indigenous
peoples’ human rights, including rights to: food, education, health, culture, human
dignity, development, and self-determination, as well as to their lands and
resources.7 Its long-term protection is dependent upon realization of many of the
self-same rights.8
Traditional knowledge is subject to numerous internal and external threats.9
Internal threats include, among other things: changing cultural values; loss of
control over land and resources; failure to transmit knowledge between genera-
tions; and loss of language.10 While external threats include: national policies
promoting cultural assimilation; forced removal from lands and misappropriation of
resources; restrictions on freedom to continue nomadic lifestyles; war and conflict;

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discriminatory or inappropriate government policies; lack of recognition of tradi-
tional customs and institutions; globalization and exposure to the market economy;
inappropriate educational and health systems; as well as centralised and insensitive
agriculture and fisheries extension programs; incursion of extractive industries; the
influence of organized religion; and biopiracy.11 Addressing these threats requires a
coordinated and multisectoral response involving Indigenous peoples, national
governments and the international community.
There is a widespread distrust amongst Indigenous peoples of the ‘intellectual
property system’ which is viewed as ‘a new form of colonization’12 which legit-
imises ‘misappropriation’ of traditional knowledge.13 The existing trade and market
based intellectual property regime, has been described by Indigenous experts, as
‘inherently incompatible’ with the way Indigenous peoples view their genetic
resources, traditional knowledge and traditional cultural expressions.14 In the words
of Special Rapporteur Mick Dodson:

Attempting to alter intellectual property law so that it accommodates tradi-

tional knowledge, knowledge that is completely different in essence, is
reminiscent of the proverb, ‘You can’t fit a round peg in a square hole’. No
matter how one tries, it just does not fit. It is for this reason that a completely
new and customized approach is needed.15

Professor Graham Dutfield, a pioneer of research on intellectual property and

rights over genetic resources and traditional knowledge,16 makes the point that
patents essentially fragment incremental collective creative processes into separate
‘pieces’ that can be attributed to an individual person or a few people working
158 Traditional knowledge

together, whilst excluding all other contributors, anonymous or otherwise.17 This

means there are conceptual and cultural incompatibilities related to the use of
patents, beyond their nature as tools for commoditization, which make them inap-
propriate for purposes of protecting Indigenous peoples’ rights over aspects of their
cultural heritage.18
The incompatibility of patents and most other forms of intellectual property as
means for protecting Indigenous peoples rights, has led to the search for alterna-
tive forms of protection capable of preventing unapproved and or uncompensated
access and use of their genetic resources, traditional knowledge and traditional
cultural expressions. Proposals have included a framework for holistic global regu-
lation of ‘traditional resource rights’,19 community rights legislation,20 disclosure of
origin in patent application procedures,21 model laws,22 national sui generis
regimes23 and the development by Indigenous peoples and local communities of
biocultural protocols.24 All of these proposals have been implemented in varying
degrees under international, national and/or regional law and policy and/or by
Indigenous peoples and local communities. In each case customary law is viewed
as playing a fundamental role in the regulation and protection of traditional know-
ledge rights.While no one mechanism is of itself sufficient, taken together they can
provide a solid framework of protection based on a mixture of state, regional and
international law as well as tribal law, customary law and community protocols.

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International protection of traditional knowledge
More than a dozen international instruments give direct or indirect recognition to
Indigenous peoples’ rights to protect and enjoy their traditional knowledge.25 Of
these the Convention on Biological Diversity holds the primary mandate for
addressing issues regarding protection of traditional knowledge relevant for the
conservation and sustainable use of biological diversity.26 It draws this mandate from
the provisions of Article 8(j) of the Convention, which provides that each contract-
ing party shall promote wider use of the knowledge, innovations and practices of
indigenous and local communities.
Issues relating to traditional knowledge under the Convention fall primarily
within the mandate of the Working Group on Article 8 (j) and related provisions
of the Convention.The Working Group has adopted unique working practices in
which representatives of Indigenous peoples and of states jointly chair proceedings.
Amongst its primary achievements have been the preparation of the Akwé: Kon
Voluntary Guidelines for the Conduct of Cultural, Environmental and Social
Impact Assessments27 and the Tkarihwaié:ri Code of Ethical Conduct to Ensure
Respect for the Cultural and Intellectual Heritage of Indigenous and Local
Communities.28 The Code, which covers both secret knowledge and traditional
knowledge that has fallen into the public domain, provides guidance on issues such
as the role of customary law, protection of the integrity of Indigenous peoples’
collective rights and the ethical principles of Indigenous peoples.
The Working Group on Article 8(j) has prepared draft elements for sui generis
systems for the protection of traditional knowledge, which focus primarily on
 Traditional knowledge 159

issues of prior informed consent and recognition of customary law and its role in
governing access and use of traditional knowledge and genetic resources.29 The
importance of customary law is also highlighted in a detailed paper on sui generis
issues prepared by the Secretariat to the Convention, which states:

[f]or sui generis systems to be effective there will likely be a need for measures
at local, national and international levels. It is highly desirable that local meas-
ures be based closely on the relevant customary laws of the indigenous and
local communities concerned and developed with their full and effective
participation and their prior informed consent. In fact, traditionally, there may
already be sui generis protection in place, through customary law and such
measures require formal recognition by the State and support to ensure their
effectiveness and continuity.30

The adoption of the Nagoya Protocol on Access to Genetic Resources and Sharing
of Benefits Arising from their Utilization in October 2010 cemented international
recognition of the inextricable link between customary law of Indigenous peoples
and the protection of their rights over their traditional knowledge.31 The Protocol
obliges all Parties to take measures, as appropriate, to secure Indigenous peoples’
traditional knowledge rights.32 Although the Protocol does not grant any new

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property rights over traditional knowledge it does create a series of obligations for
Parties which, if implemented in accordance with the letter and spirit of the
Protocol, will provide Indigenous peoples with extensive rights to control access
to and use of their knowledge.Article 7 of the Protocol creates obligations for both
countries in which Indigenous peoples reside and into which their traditional
knowledge may be imported to adopt measures to secure their rights’ over their
traditional knowledge. The system is crafted in such a way that customary law
governs both the point of access, where prior informed consent of Indigenous
peoples is a condition for access,33 and the point of use, where states are obliged to
‘take measures’ to ensure that any access and use has been made subject to prior
informed consent and of mutually agreed terms.34 Article 16 of the Protocol
requires states to take appropriate measures to ensure that ‘traditional knowledge
associated with genetic resources’ utilized within their jurisdiction has been
accessed in accordance with prior informed consent and mutually agreed terms, as
required by the Party where such Indigenous peoples are located.35 It is important
to clarify that this provision is complementary to and does not obviate require-
ments for states to adopt measures to ensure the existence of prior informed
consent and mutually agreed terms under Articles 6.2 and 7 of the Protocol.36
Under the Nagoya Protocol, obligations to seek prior informed consent of
Indigenous peoples for access to their traditional knowledge and genetic resources
are mandatory and are not qualified by the need for adoption of national legislation
in the countries in which they reside.This is in marked contrast with the treatment
of genetic resources in general for which prior informed consent and mutually
agreed terms are required only to the extent legislated under national law in the
country of origin or a country entitled to provide genetic resources in accordance
160 Traditional knowledge

with the Convention on Biological Diversity.37 Various reasons maybe put forward
for this contrast in treatment.38 In the first place, Indigenous peoples’ rights over
their genetic resources and traditional knowledge are a form of native title that
springs from Indigenous peoples’ and local communities’ own ancestral laws and
international legal instruments rather than any act of government.39 In the second
place, obligations under international human rights law require states to protect the
rights of Indigenous peoples and local communities over their resources and know-
ledge, in a manner that respects and recognizes their own legal regimes.40 Third,
Indigenous peoples and local communities cannot always rely on national govern-
ments to secure their interests against foreign corporations and users of their
resources and knowledge. It is therefore necessary that each country take measures
to prevent misappropriation and utilization of Indigenous peoples’ resources and
knowledge within their jurisdiction and secure their rights to equitable participa-
tion in sharing of benefits arising from its utilization.
In implementing the Protocol, states are required by Article 12 to ‘take into
consideration’ Indigenous peoples’ customary law and community protocols.41 This
provision of the Protocol reflects international legal requirements for states to show
due respect, recognition and regard for Indigenous peoples, customs, laws and
traditions.42 The Protocol is the first binding international legal instrument to
formally recognize the extraterritorial remit of Indigenous peoples’ customary law.

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A precedent that is likely to be replicated in many other areas of law in the future.43
Obligations under the Nagoya Protocol, to take into consideration customary
law, are applicable to states when adopting national laws and regulations but also in
the process of any judicial proceedings relating to traditional knowledge. The
Protocol explicitly requires Parties to provide access to a system for resolving
disputes.44 In order to comply with Article 12 of the Protocol and with interna-
tional human rights law, any system for resolution of disputes involving Indigenous
peoples’ resources or traditional knowledge will need to provide for consideration
of their customary laws and protocols. Implementing these obligations poses many
legal and practical challenges for national legal systems.These include questions of
proof, interpretation and application of customary law, rights of action and rules of
evidence, as well as practical questions of court procedure and rights and modali-
ties for securing access to justice. One of the main challenges will be to establish
effective interfaces between customary laws and positive law at legislative, judicial
and administrative levels in order to protect traditional knowledge from unautho-
rized use, ensure fair and equitable transactions among Indigenous peoples and
non-indigenous researchers and corporations, as well as guarantee that court deci-
sions are based on an adequate and fair interpretation and implementation of
different sources of law and understanding of these laws by the authorities and
parties involved. While complex these issues are not insurmountable and must be
addressed if states are to secure Indigenous peoples’ rights, prevent biopiracy and
bring legal certainty to both providers and users of genetic resources and traditional
knowledge.
Experience to date shows a reluctance by some states to take the necessary
actions required to enforce traditional knowledge rights and recognize the role of
 Traditional knowledge 161

customary law in its protection. European Union legislation for the implementa-
tion of the Nagoya Protocol, adopted on 11 March 2014,45 for example, makes no
mention of customary law and provides no guidance for members states on how
to meet their obligations under Article 12.46 The most problematic aspect of the
European law is that it only protects traditional knowledge, the subject of an access
agreement, and then only to the extent that national legislation regulating access
to traditional knowledge exists in the country in which the relevant Indigenous
peoples reside.47 The European law offers no protection for traditional knowledge
that has been misappropriated providing a veritable carte blanche for biopiracy.48 The
irrelevance of the law for protection of traditional knowledge is apparent in a press
statement by the European Federation of Pharmaceutical Industries and
Associations49 welcoming the new law and an article by industry lawyers criticis-
ing it50 neither of which made any reference to traditional knowledge.
In Australia a draft proposal for the implementation of the Nagoya Protocol makes
positive noises about the recognition of traditional knowledge of Indigenous peoples
from foreign countries.51 The Australian proposal follows a similar approach to that of
the European Union. It would only protect traditional knowledge and genetic
resources of Indigenous peoples from states where there are ‘measures regulating
access to their genetic resources and traditional knowledge of Indigenous peoples
within their jurisdiction [and] where the requirements of those measures have been

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made publicly available on the Access and Benefit-sharing clearing house’.52 The draft
does even less to address obligations requiring the adoption of measures to ensure that
prior informed consent and mutually agreed terms have been secured with Australia’s
Aboriginal peoples for access to their genetic resources and traditional knowledge.
The Australian proposal would leave responsibility to adopt such measures with its
various states, leaving a large part of the Aboriginal peoples of Australia without effec-
tive protection for their rights over their traditional knowledge.The European Union
legislation also leaves responsibility to individual states for the establishment of
national measures to regulate access to traditional knowledge of Indigenous peoples
and local communities. This runs counter to the obligations under the Protocol,
requiring states to adopt measures to ensure compliance with the provisions of Article
7 of the Nagoya Protocol in so far as it applies to Indigenous peoples whose traditional
lands and territories fall within their jurisdiction. For the European Union this may
be explained in part by the principle of subsidiarity and the fact that each European
country will itself become a signatory to the Nagoya Protocol. In Australia the situa-
tion is more problematic. Individual states are not parties to the Protocol and the draft
Australian proposal creates no incentives or pressure for states to adopt measures to
ensure that access to traditional knowledge and genetic resources of Indigenous
peoples is obtained with their prior informed consent and mutually agreed terms.
Unless countries implementing the Protocol begin to take more positive measures to
secure the Protocol’s measures protecting the rights of Indigenous peoples the early
promise of the Nagoya Protocol will quickly dissipate.
The Nagoya Protocol establishes a system for monitoring the utilization of
genetic resources, which centres on a proposed international system for the certifi-
cation of compliance with relevant national access and benefit-sharing legislation.53
162 Traditional knowledge

The system is, for now, limited to genetic resources and does not envisage certifica-
tion of the origin and existence of prior informed consent for use of traditional
knowledge.54 This significantly reduces the capacity of the Protocol to serve as the
basis for monitoring and enforcement of traditional knowledge rights. If a certifica-
tion system for traditional knowledge were to be adopted, this would need to
involve some form of independent or Indigenous peoples’ certification body. This
would be particularly valuable in relation to countries where no national access
regulations or legislation governing rights to traditional knowledge exist.
Regulation of trade under the Nagoya Protocol focuses primarily on contrac-
tual agreements and does not provide any mechanisms to monitor and enforce
Indigenous peoples’ rights in cases of misappropriation or where there has been
leakage of knowledge following contractual breaches. This question of misappro-
priation has been largely left for regulation in other forums with the Convention
in essence abdicating its position as primary body responsible for the protection of
traditional knowledge associated with biological diversity. A further issue of some
concern is the lack of any clarity regarding the scope of the term ‘traditional
knowledge associated with genetic resources’. In the absence of any official defini-
tion of this term it is suggested that recourse may be had to customary law and the
actual practices of Indigenous peoples in order to ascertain the nexus between rele-
vant resources and their traditional knowledge.

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While the Convention on Biological Diversity through its Ad Hoc Working
Group on Access and Benefit Sharing focused on regulating ‘physical access’ to
genetic resources and traditional knowledge the World Intellectual Property
Organization (WIPO) through its Intergovernmental Committee on Intellectual
Property, Genetic Resources, Traditional Knowledge and Folklore (IGC), became
responsible for the intellectual property side of the debate.55 Established in 2000,
the IGC has taken significant steps towards the development of international
instruments for the protection of genetic resources, traditional knowledge and
traditional cultural expressions (TCEs). In October 2013 the WIPO General
Assembly called upon the IGC to:

continue to expedite its work with open and full engagement, on text-based
negotiations with the objective of reaching an agreement on a text(s) of an
international legal instrument(s) which will ensure the effective protection of
genetic resources, traditional knowledge and TCEs.56

The Committee is to present its work to the General Assembly for its considera-
tion in September 2014, at which stage the Assembly will decide whether or not
to convene a Diplomatic Conference to finalize negotiation of any International
instrument(s).57
At an early stage of its work the IGC adopted a very broad definition of tradi-
tional knowledge, which incorporated both knowledge relevant to biological and
genetic resources as well as cultural expressions. Over time its position evolved and
the idea of holistic protection, as sought by Indigenous peoples, began to fade.
While recognizing the crucial links between traditional environmental knowledge
 Traditional knowledge 163

and traditional cultural expressions, the IGC considered it more convenient and ‘in
the interest of achieving tangible outcomes’ to treat the issues separately.58 As a
result the IGC has separated the drafting of articles for the protection of traditional
knowledge of a technical nature59 from draft articles for the protection of arts, crafts
and rituals, which it treats under the banner of traditional cultural expressions.60
Despite treating these issues in separate working documents, the IGC has main-
tained a common approach on a number of key issues. For example, both sets of
draft articles create exemptions for any act permissible under the national law of a
contracting party, for knowledge protected by patent and trade secrecy laws in the
case of traditional knowledge61 and for material protected by copyright law in the
case of traditional cultural expressions.62 This clearly subordinates Indigenous
peoples’ laws and customs relating to their traditional knowledge to intellectual
property law. Both sets of draft articles, however, contain a common proviso limit-
ing these exemptions in cases where it is necessary to protect secret traditional
knowledge from disclosure. This is an important concession to customary laws of
Indigenous peoples. Further concessions based on the nature of Indigenous cultural
heritage are found in the proposed term of protection in each document which
allow for indefinite protection as long as traditional knowledge and traditional
cultural expressions conform to the terms of eligibility set out in the respective
documents.63 An important advance has been the incorporation of the term

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‘Indigenous people’ as opposed to ‘indigenous and local communities’ across both
documents.This makes a break with the terminology adopted in the Convention
on Biological Diversity and the Nagoya Protocol, which refer to ‘indigenous and
local communities’. This is an important distinction for Indigenous peoples as it
highlights their rights as peoples to self-determination and to rights not recognized
for other minority groups under international human rights law.
The IGC draft articles on protection of traditional knowledge define traditional
knowledge as ‘know-how, skills, innovations, practices, teachings and learnings of
[Indigenous [peoples] and [local communities]]/[or a state or states] that are
dynamic and evolving, and that are intergenerational/and that are passed on from
generation to generation, and which may subsist in codified, oral or other forms.’
The proposed definition if read without attention to the brackets64 provides for
recognition not only of Indigenous peoples and local communities but also of states.
Antons sees this as a resuscitation of the notion of ‘national folklore’ (or in this case
traditional knowledge) incorporated in the 1976 Tunis Model Law on Copyright.65
The Tunis Model law, drafted for developing countries by a Committee of
Governmental Experts convened by the Tunisian Government and assisted by
UNESCO and WIPO, focused on folklore primarily as ‘national folklore’ with a
national authority representing the people that create the protected material.66 The
Model Laws did not take hold and ten years later a joint committee of UNESCO
and WIPO found that ‘legal protection of folklore by copyright laws and treaties
does not appear to have been particularly effective or expedient’.67 The incorpora-
tion of the notion of states as holders of traditional knowledge and the same
inference in the draft article on traditional cultural expressions, is likely to cause
much concern to Indigenous peoples, particularly those living in countries, such as
164 Traditional knowledge

India and Bangladesh, that either view their whole population as indigenous or
deny the existence of Indigenous peoples within their territory.68 Similarly,
Indigenous peoples in China, where there has been a massive amount of patenting
of traditional medicine, must be worried at the notion that the Chinese state could
declare and be recognized as the holder of all traditional Chinese medicine from
whatever source.
The draft articles as set out in 2014 show significant changes from the draft
documents being negotiated within the IGC up to October 2009, when the
General Assembly called upon the IGC to move towards the finalizing of interna-
tional instrument(s) for the protection of genetic resources, traditional knowledge
and folklore. Prior to the onset of negotiations proper the IGC could be seen to
be moving to accommodate the holistic, spiritual and cultural reality of Indigenous
peoples’ traditional knowledge systems and their governance under customary laws
and practices. According to Lewinski, while customary law is the best tailor-made
solution for regulating traditional knowledge there are various difficulties to secur-
ing its application even if countries or the international community were prepared
to do so:

• the lack of written records of customary law;

• very little information is available on the valid customary law;

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• some tribes may not be ready to disclose their customary law to
Westerners documentation.69

Lewinski sees two possibilities for securing a greater role for Indigenous peoples’
customary law: taking it into account in the field of conflict of laws (i.e. having
national courts implement customary law, including customary law from foreign
jurisdictions, where appropriate) and by integrating some of the elements of
customary law into sui generis or other protection systems to be established.70
Considering the difficulties associated with either approach she argues that a
protection regime with a far more realistic chance of implementation would be a
sui generis regime ‘inspired by intellectual property rules and influenced by human
rights, customary law, heritage laws, protection against blasphemy and the like’.71
This latter approach reflects in part the approach taken in the WIPO IGC negoti-
ations, at least up until the end of 2009, which were focusing on the development
of a sui generis misappropriation regime.
Early versions of the WIPO IGC draft articles described the scope of protection
of traditional knowledge as including the content or substance of knowledge
resulting from intellectual activity in the traditional context, passed between
generations, in any field including agricultural, environmental and medicinal
knowledge associated with genetic resources.72 Legal remedies were to be provided
where fair and equitable benefit sharing does not take place,73 access was to depend
on prior informed consent,74 and an exemption was made for customary use and
exchange of traditional knowledge.75 The draft presented a traditional knowledge
regime built upon concepts of misappropriation defined as:
 Traditional knowledge 165

any acquisition, appropriation or utilization of traditional knowledge by unfair

or illicit means; deriving commercial benefit from the acquisition, appropria-
tion or utilization of traditional knowledge when the person using that
knowledge knows or is negligent in failing to know, that it was acquired or
appropriated by unfair means; and other commercial activities contrary to
honest practices that gain inequitable benefit from traditional knowledge.76

One of the key elements of the draft proposal was that any regime be developed
with appropriate recognition and respect for customary law and its role in protec-
tion of traditional knowledge.77 To this end the draft provided that:

The application, interpretation and enforcement of protection against misap-

propriation of traditional knowledge, including determination of equitable
benefit sharing and distribution of benefits, should be guided, as far as possi-
ble and appropriate, by respect for the customary practices, norms, laws and
understandings of the holder of the knowledge, including the spiritual, sacred
or ceremonial characteristics of the traditional origin of the knowledge.78

The text prepared by the IGC acknowledged that key terms such as ‘unfair trade’
might need to be defined with attention to concepts of unfair under customary

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law.79 It envisioned that legal protection for traditional knowledge may be secured
by one or more of a range of measures, including a special law on traditional
knowledge, intellectual property laws, law of contracts, laws concerning Indigenous
peoples, national access and benefit-sharing laws and sui generis traditional know-
ledge regimes based upon customary law.80 The proposal required prior informed
consent as a condition for access to and use of traditional knowledge, thereby
enabling Indigenous peoples and local communities to exercise control over their
knowledge in accordance with their customary law and practices. A revised draft
in 2011 provided that protection should be extended to traditional knowledge,
which is considered:

integral to the cultural identity of an indigenous or traditional community or

people which is recognized as holding the knowledge through a form of
custodianship, guardianship, collective ownership or cultural responsibility.This
relationship may be expressed formally or informally by customary or tradi-
tional practices, protocols or laws.81

This formulation immediately brings to mind the ‘integral to a distinctive culture’

test, developed in Van der Peet,82 which has proved a significant hurdle for aborigi-
nal peoples seeking to secure recognition of their resource rights in Canada. The
key question here is who does the deciding on what is integral to cultural identity.
Anthony Taubman, who as head of the secretariat for the IGC played a highly
instrumental role in the development of the draft documents, suggests that tradi-
tional knowledge should be considered integral to a community based upon
factors that may be described by customary law.83 These include: definition of
166 Traditional knowledge

custodianship or the nature of community ownership; the rights and responsibili-

ties associated with custody, access rights, means of dissemination and preservation
of knowledge; and the customary mode of defining modalities for prior informed
consent, benefit-sharing mechanisms, dispute settlement and sanctions for infringe-
ment of customary law.84 Taubman sees a role for tribal elders in identifying
traditional knowledge as against some ‘objective, culturally neutral conception of
traditional knowledge’, which he says is needed at the level of national or interna-
tional law if the system is to be workable.85
The inclusion of the notions of ‘custodianship, guardianship, collective owner-
ship or cultural responsibility’ was a welcome move towards indigenous concepts
of stewardship.The IGC has described the term ‘custodian’ in the context of tradi-
tional knowledge as referring to:

those communities, peoples, individuals and other entities, which, according to

customary laws and other practices, maintain, use and develop the traditional
knowledge.’ It expresses a notion that is different from ‘ownership’ as such,
since it conveys a sense of responsibility to ensure that traditional knowledge
is used in a way that is consistent with community values and customary law.86

The 2011 version of the IGC draft Objectives and Principles provided that enti-

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tlements to share in benefits should be guided by the customary protocols,
understandings, laws and practices of Indigenous peoples and local communities.87
It also recognized that within local communities customary laws may play an
important role in regulating benefit sharing.88 The importance given to customary
law in the IGC process in 2006 led WIPO to prepare an issues paper on custom-
ary law that described both the challenges and opportunities for securing its
recognition as the basis for protecting Indigenous peoples’ rights over their tradi-
tional knowledge.89 The issue paper described a variety of ways in which customary
law had been drawn upon in intellectual property related cases as well as in national
legislation.90 These include: establishing the legal standing of a collective entity;
settlement of disputes between or within traditional communities; to assert an
equitable interest in intellectual property, or a more general fiduciary relationship
between traditional owners and an individual IP right holder; to sustain a claim of
breach of confidence relating to secret sacred material; to confer legal identity on
a community as the basis of collective ownership of an intellectual property right;
as the basis of a general right over biological resources and traditional knowledge;
to enshrine a distinct right for continuing customary use; as the basis for a claim to
determine entitlement for damages based on ‘personal and cultural hurt,’ including
establishing the basis for and quantum of damages; and to determine the status of
a claimant as a member of an Indigenous or other traditional community, to iden-
tify a community as being an eligible local or traditional community, or to establish
a specific Indigenous or aboriginal right.91
Although the WIPO customary law issues paper was a draft document it
provided an important signal of the key role customary law plays in protection of
traditional knowledge rights. It also demonstrated the potential for significant
 Traditional knowledge 167

expansion of this role through effective development of the capacity of national

courts and administrative bodies to receive evidence of customary-law based rights
and duties, and provide adequate recognition and support for the enforcement of
such rights. While clearly convinced that customary law has a prominent role to
play in defining rights over traditional knowledge, Taubman suggested that ‘it
would be ‘self-defeatingly burdensome to require proof of customary law at the
community level as a prerequisite for triggering legal protection of traditional
knowledge’.92 To support its work on customary law WIPO joined with the United
Nations University Institute of Advanced Studies (UNU-IAS) in the promotion of
a series of studies and workshops on customary law and governance of access to
genetic resources and benefit sharing and protection of traditional knowledge in
Andean and Pacific Island countries.This included the preparation of a report on
customary law and traditional knowledge in Andean Countries93 and a report on
the role of customary law in governance of access and benefit sharing and the
protection of traditional knowledge in Andean and Pacific Island Countries.94
Interestingly,WIPO waited until 2013 to formally release both this report and the
issues paper prepared in 2006.95 By the time of their release in April 2013, just days
before IGC 24, all references to customary law and its role in defining traditional
knowledge, guiding benefit sharing and delimiting rights of custodianship, had
already been deleted from the negotiating texts.

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The text of traditional knowledge that came out of IGC 24 relied primarily on
the development of a system of exclusive proprietary rights for protection of tradi-
tional knowledge to be granted by states. The draft articles envisioned states
conferring ‘[exclusive] [collective] rights’ on ‘beneficiaries’, which might include
states.96 There was little sui generis about the proposal, which in essence proposed a
new form of intellectual property protection, the very thing Indigenous peoples had
opposed from the outset.The draft articles also provided an alternative proposal in
the form of a misappropriation regime based upon state obligations to prevent
unapproved and uncompensated use of traditional knowledge in certain specific
instances.97 This either/or deal was a no win situation for Indigenous peoples. On
the one hand, the proprietary route runs counter to Indigenous peoples’ perspec-
tives regarding traditional knowledge and if adopted as drafted it would
undoubtedly change the nature of their traditional knowledge systems.
Furthermore, the notion that rights would be conferred by states would make
protection dependent upon the capacity and willingness of the state to recognize
Indigenous peoples’ rights. A regime of this nature is also likely to prove largely
unworkable for Indigenous peoples who are unlikely to be in a position to police
the use of their knowledge, identify infringements of their rights and prosecute
them before the courts. For Indigenous peoples their rights stem from the existence
of their traditional knowledge, not from any act of government.This was recognized
in Peru’s national law on traditional knowledge, which recognizes that Indigenous
peoples’ rights over their traditional knowledge does not require any act of govern-
ment. On the other hand, adoption of a misappropriation regime would rely heavily
on state preparedness to legislate, police and prosecute abuses. A misappropriation
regime without recognition of a property right vested in Indigenous peoples or of
168 Traditional knowledge

a right to initiate an action on their own behalf, would leave Indigenous peoples
and local communities dependent on the good will and commitment of their
national authorities and the authorities in countries in which their traditional
knowledge is accessed or used, to take action to secure and enforce their rights.
Neither a proprietary regime nor a misappropriation regime alone can fully
secure Indigenous peoples’ rights. Even together they will not achieve this end
without adequate recognition of the role of customary law. What appears to be
needed is a regime that includes proprietary aspects governing rights to grant or
refuse permission to make use of traditional knowledge and misappropriation
aspects requiring proactive measures by governments to prevent unapproved access
and use of resources and traditional knowledge. Coupled to these will need to be
recognition and enforcement of customary law. Just such a hybrid proposal
emerged from the negotiations on traditional knowledge at IGC 27 in
March/April 2014.98 Based upon a proposal by the chair of IGC, Ambassador
Wayne McCook of Jamaica, the negotiations have led to the preparation of a
proposed system of graded rights set out in three levels. At the highest level states
would be responsible to ensure the beneficiaries of sacred or secret traditional
knowledge are entitled to maintain, control and develop traditional knowledge,
discourage unauthorized disclosure, authorize or deny access to and use of their
knowledge based on prior informed consent, and to be informed of access through

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a disclosure mechanism in intellectual property applications.99 Users would be
required to attribute traditional knowledge to beneficiaries and provide fair and
equitable sharing of benefits based on mutually agreed terms.100 They would also
be obliged to use the knowledge in a manner that respects the cultural norms and
practices of the beneficiaries and their inalienable moral rights.101 At a second level,
where knowledge is publicly available but not widely known, the state would be
obliged to ensure the beneficiaries are acknowledged as the source of the knowl-
edge and participate in fair and equitable benefit sharing.102 Where knowledge is
publicly available and widely known states are to promote attribution and respect
for the cultural norms and moral rights of the beneficiaries, no benefit sharing is
envisaged in this instance.103 This proposed hybrid system would only entitle
Indigenous peoples to control use of their knowledge where it is still secret or
sacred, everything else would be free for commercial or other use, subject to
requirements for sharing of benefits. Furthermore, there is a proposal to exclude
from protection traditional knowledge that is widely known or used outside the
community of the beneficiaries, or where it is in the public domain or is subject
to intellectual property rights.104 The proposal also provides a range of exclusions
to protect rights previously acquired by third parties.105
The proposal is a definite improvement on the draft prepared in IGC 24. It is
still, however, largely informed by intellectual property concepts and bereft of
Indigenous peoples’ perspectives, remaining a technical solution to a cultural and
human rights problem. One of the major dilemmas facing Indigenous peoples in
their search for the optimum model for protection of their rights over their tradi-
tional knowledge is the limitations of enforceability of their own customary laws
absent the recognition and support of national and international law.106 Similar
 Traditional knowledge 169

difficulties exist with regard to the protection of traditional cultural expressions.

For this reason Indigenous peoples are dependent upon national and international
law regimes to ensure recognition and protection of their rights to regulate their
resources and knowledge in accordance with their own laws. Although the draft
articles fail to give due recognition to Indigenous peoples’ legal regimes, require-
ments for prior informed consent in the proprietary rights proposal would allow
them to make access and use dependent on compliance with aspects of customary
law. Under the latest proposal this would only apply to sacred or secret traditional
knowledge. Even there asymmetries in negotiating power will make it difficult to
ensure acceptance and enforcement of customary law but it does not make it
impossible.
The nature of the negotiations at the IGC has been significantly changed by
efforts to expand the definition of beneficiaries to include states. Countries includ-
ing India, China, Algeria and Egypt have all described themselves as holders of
traditional knowledge. Interestingly, all of these states deny the existence of
Indigenous peoples in their countries; China, however, recognizes its cultural
minorities and India recognizes scheduled tribes. Recognition of states as benefi-
ciaries has the potential to facilitate disenfranchisement of the true custodians of
traditional knowledge in countries denying the existence of Indigenous peoples.
There is also a danger that recognition of states as beneficiaries will result in

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increased resistance by developed nations to the recognition of customary law and
its role in governance of traditional knowledge. All of this makes it even more
unlikely that anything truly sui generis will emanate for the negotiation process.This
raises the question as to whether a weak and potentially disruptive regime is better
than no regime at all.
Without a regime there is always the possibility of relying on ILO Convention
169 and the UN Declaration on the Rights of Indigenous Peoples to secure recog-
nition of Indigenous peoples’ rights over their resources and traditional knowledge
and obliging states to regulate these rights with attention to their laws, customs and
practices. Recognition has also been given in numerous national constitutions and
laws and in regional legislation as well as in the jurisprudence of treaty bodies and
regional human rights institutions. Indigenous peoples already have, therefore, a
strong basis for demanding that national measures for protection of their rights be
based on customary law. They are unable, however, to require that their textual
proposals be included in the IGC negotiating texts or in national laws.This has been
at the back Indigenous peoples’ demand for enhanced status in the negotiation
process to enable them to participate on an equal basis with states in order to ensure
their voice is properly heard and to be allowed to fully participate in the drafting
process.107 Deprived of meaningful opportunities for participation Indigenous
peoples may well ask what benefit there is in remaining in a process they have had
such difficulty in influencing and that is quite clearly moving ever further away from
the adoption of a regime for protection of traditional knowledge based on their
laws, customs and practices. Indigenous participation in the IGC negotiations is
minimal.The voluntary fund for Indigenous participation had dried up by IGC 27
in March 2014, further reducing the participation of Indigenous representatives. If
170 Traditional knowledge

Indigenous peoples decide to stay in the negotiations a more concerted effort will
be needed to secure their full participation in negotiations and to ensure their most
experienced negotiators in this area are present. Conversely if Indigenous peoples
were to decide to retire as a block from the IGC process it is hard to see how states
could legitimately adopt any regime over Indigenous peoples’ traditional know-
ledge. This may not be a bad outcome.
The slide towards Western-style property rights for the protection of traditional
knowledge has led Coombe to argue for a more expansive approach to the notion
of property saying, ‘[t]he very topic of cultural property demands greater critical
reflexivity with respect to property’s diverse forms as well as enhanced scrutiny of
Western proprietary prejudices’.108 While recognizing certain advances in emergent
fields of law, transnational politics and institutions, Coombe takes the view that
state-based efforts ‘lag far behind traditional customs, contemporary mores, and
particularly, the new practices, protocols, ethics, relationships of mutual respect and
recognition that have been provoked by cultural property claims’.109 One possibi-
lity for Indigenous peoples to contemplate is the development of their own
instruments for guiding international traditional knowledge governance. This
might take the form of an Indigenous peoples’ convention or charter on traditional
knowledge, developed wholly by Indigenous peoples themselves. This could even
take the form of a global indigenous biocultural protocol setting out a procedural

DRAFT
model for engaging with Indigenous peoples and seeking their permission to
access and use their genetic resources, traditional knowledge and other materials.
One thing is clear, leaving the regulation of traditional knowledge and traditional
cultural expressions in the hands of states alone is a sure way to ensure the breach-
ing of Indigenous peoples’ human rights.

Regional and national approaches to protection of

traditional knowledge
While the development of International regulations has proven extremely labori-
ous, regional economic cooperation unions and national authorities have been
busy developing practical experience in the adoption and implementation of
regimes for the protection of traditional knowledge and traditional cultural
expressions. At the regional level, the Andean Community has pioneered the
development of measures for protection of traditional knowledge rights. Andean
Community Decision 391, adopted in 1996, requires prior informed consent of
indigenous, local and Afro-American communities as a pre-condition for approval
of bioprospecting agreements, where such agreements involve the collection of
resources on their land or use of their traditional knowledge.110 Countries of the
region have included requirements in Decision 486 requiring applicants for
patents utilizing genetic resources or traditional knowledge from the region to
disclose its origin and show that prior informed consent has been obtained for its
use.111 The cumulative effect of these Decisions creates a framework within which
Indigenous peoples may promote compliance with their own customs, laws and
traditions as a condition for access to and use of their traditional knowledge.The
 Traditional knowledge 171

Decisions specifically exclude from their remit traditional knowledge sharing

according to Indigenous peoples’ own customary laws and time honoured prac-
tices, which are crucial to maintaining the vitality and integrity of traditional
knowledge systems. Countries of the region have consistently championed the
debate on disclosure of origin at both the World Intellectual Property
Organization and the World Trade Organization. In 2004 the Secretariat of the
Andean Community together with the Comision Andino de Fomento instigated
a research program on regional protection of traditional knowledge.The result of
this research, led by a number of respected indigenous experts, was published in
2005 in the form of draft elements for a sui generis regime on protection of tradi-
tional knowledge.112 The report, which presents an indigenous perspective on
traditional knowledge protection, states that:

given the collective and integral characteristics of traditional knowledge of

Indigenous peoples, it is recommended that Indigenous peoples’ own ances-
tral systems based on customary law and their own cultural practices be
applied for their protection, thus allowing communities to further consolidate
their traditional structures.113

In 2010 the African Intellectual Property Organization (ARIPO) adopted the

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Swakopmund Protocol on the Protection of Traditional Knowledge and
Expressions of Folklore.114 The Protocol reflects many provisions of the 2009 draft
IGC documents on protection of traditional knowledge and traditional cultural
expressions. Its stated purpose is to protect traditional knowledge holders against
infringement of their rights under the Protocol and to protect expressions of folk-
lore against misappropriation.115 Protection is to be extended to traditional
knowledge that is:

(i) generated, preserved and transmitted in a traditional and intergenerational

context;
(ii) distinctively associated with a local or traditional community; and
(iii) integral to the cultural identity of a local or traditional community that is
recognized as holding the knowledge through a form of custodianship,
guardianship or collective and cultural ownership or responsibility. Such a
relationship may be established formally or informally by customary prac-
tices, laws or protocols.116

Traditional owners are granted the exclusive right to authorize exploitation of

their traditional knowledge.117 Exploitation is defined as including manufacturing,
importing, exporting, offering for sale, selling or using beyond the traditional
context.118 Protection is not to affect traditional use and accessibility of know-
ledge.119 The duration of protection is unlimited as long as the criteria for
recognition of knowledge as traditional are maintained.120 Protection against misap-
propriation, misuse and unlawful exploitation121 is given to expressions of folklore,
which are:
172 Traditional knowledge

(a) the products of creative and cumulative intellectual activity, such as collec-
tive creativity or individual creativity where the identity of the individual
is unknown; and
(b) characteristic of a community’s cultural identity and traditional heritage
and maintained, used or developed by such community in accordance
with the customary laws and practices of that community.122

Under the Protocol customary law has a central role to play in identifying tradi-
tional knowledge and expressions of culture,123 in determining rights holders124 and
in resolution of local and transboundary conflicts over ownership rights.125
Adoption of the Swakopmund Protocol increases pressure on negotiators at the
WIPO IGC to bring to a close the negotiations on international instruments for
the protection of traditional knowledge and traditional cultural expressions.
Work on the development of a model law for protection of traditional know-
ledge in the South Pacific has been going on for a number of years, and has been
the subject of numerous regional, sub-regional and national workshops. An early
version of the draft model law applied a novel approach to the issue of traditional
knowledge in the public domain, suggesting that rights over such knowledge
should be determined not on the basis of where information was found but on
how it got there.126 Later versions of the model law have retreated from this inno-

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vative attempt to redefine the application of the public domain to traditional
knowledge. In 2010 the Pacific Islands Forum Secretariat published an extremely
comprehensive set of guidelines for the development of legislation for the protec-
tion of traditional knowledge, based upon the Traditional Biological Knowledge,
Innovations and Practices Act, commonly referred to as the TBKIP Model Law.127
The TBKIP Model Law requires that a licence be obtained for use of traditional
knowledge, thereby, providing opportunities for Indigenous peoples to require
conformance with customary norms and practices. The Model Law guidelines
address the issue of customary law in many areas of traditional knowledge gover-
nance including identification of traditional knowledge, determining rights of
ownership, resolution of disputes, and distribution of benefits.128
To date the most comprehensive national regime for protection of Indigenous
peoples’ rights over their traditional knowledge is to be found in Peru. In August
2002 Peru adopted Law 27811 for protection of the collective rights of Indigenous
peoples over traditional knowledge relating to biological diversity.129 The law is
declaratory in nature recognizing that rights over traditional knowledge spring not
from any act of government but from the existence of the knowledge itself.The law
recognizes traditional knowledge to be the cultural patrimony of Indigenous
peoples,130 thereby recognizing both intergenerational and intragenerational rights
and responsibilities relating to such knowledge.131 Access to and use of traditional
knowledge requires prior informed consent and a licence for commercial use.132
Benefits arising from use of traditional knowledge are to be shared not only with
contracting indigenous communities but also with the wider indigenous community
through an Indigenous Development Fund, managed by Indigenous peoples.133
Communities are required to notify other affected communities and seek their
 Traditional knowledge 173

support for negotiations relating to shared traditional knowledge and are entitled to
resort to their own customary law and practice as a means for resolving disputes.134
The Peruvian law adopts an interesting position regarding traditional knowledge in
the public domain. It recognizes that such knowledge is subject to a right of
Indigenous peoples to be compensated for its use, and proposes a form of knowledge
tax be imposed on all commercial sales of products, directly or indirectly utilizing
traditional knowledge.135 This is an important precedent, in essence supporting the
proposition that the rights of Indigenous peoples over their traditional knowledge are
not necessarily exhausted by the fact that such knowledge has made its way into the
public domain.136 The law does not, however, recognize any right for Indigenous
peoples to prevent or otherwise control use of knowledge that has fallen into the
public domain.The result has been to define rights over knowledge on the basis of
where the knowledge is found, not on the basis of how it got there.
An alternative approach has been taken in New Zealand in a new patent act
passed in August 2013 and entering into force in September 2014. One of the
purposes of the act is to address Māori concerns relating to the granting of
patents for inventions derived from Indigenous plants and animals or from Māori
traditional knowledge.137 The Patent Act excludes from patentability any inven-
tion where commercial exploitation of the invention is contrary to ordre public
(public order) or morality. The Act establishes a Māori Advisory Committee to

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advise the Commissioner of Patents on whether a claimed invention is derived
from Māori traditional knowledge or ‘indigenous plants or animals’ and, if so,
whether the commercial exploitation of the relevant invention is likely to be
contrary to Māori values.138 Though hailed in some quarters as a significant step
forward for protection of Māori traditional knowledge rights, Lai notes that it
did not take into consideration the outcome of the Waitangi Tribunal Decision
in the Wai 262 case which specifically addressed issues of ordre public and moral
harm arising from unapproved use of Māori traditional knowledge and
resources.139 Despite this the Patent Act does signify a change in direction and
demonstrates willingness, however slight, to open the way for Māori to challenge
the use of their resources and knowledge in the development of patentable
subject matter. It remains to be seen if this will result in increased actions to
impede the granting of patents on grounds of ordre public and or ‘morality’,
and/or to increased opportunities for Māori to negotiate mutually agreed terms
based on prior informed consent.

Native title to traditional knowledge

Another potential means for securing protection of traditional knowledge rights is
through the notion of native title as a subsisting right grounded upon customary law.
Halewood, based upon a comprehensive study of the relevant law argues that ‘in
Canada, under certain conditions, aboriginal peoples enjoy collectively held rights,
recognised in common law, to preclude others from using, reproducing, and dissem-
inating their knowledge’.140 He claims that the advantages of applying both the
‘integral to a distinctive culture’ test – which, he says, enjoys the ‘full approbation’ of
174 Traditional knowledge

the Supreme Court of Canada – and the doctrine of continuity – not formally recog-
nised per se by the Supreme Court – is that both rights can, in his words, ‘(1) vest
collectively in aboriginal peoples or nations per se (2) be of indefinite duration, and
(3) be subject to internal regulation of the peoples holding the right.’141 He notes an
added advantage of the doctrine of continuity; it would define the content of the
right over traditional knowledge through deference to customary laws of the rele-
vant peoples.142 Halewood views the foregoing characteristics of ‘aboriginal
knowledge protection rights’ as having ‘significant advantages over existing intellec-
tual property laws’.143
Attempts to extend the concept of native title to cultural property have, to date,
found little traction with the courts. Arguments against such recognition in
Australia have centred on the existence of copyright laws, which override any
common law basis for recognition of a form of native title right over cultural prop-
erty.144 But cultural property susceptible to copyright is only a small fraction of
indigenous traditional knowledge, and in a dissenting opinion in Western Australia
v. Ward,145 Kirby J held that:

Recognition of the native title right to protect cultural knowledge is consis-

tent with the aims and objectives of the Native Title Act, reflects the beneficial
construction to be utilised in relation to such legislation and is consistent with

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international norms declared in treaties to which Australia is a party. It recog-
nizes the inherent spirituality and land-relatedness of Aboriginal culture.146

In the 2003 Federal Court decision in Neowarra v. Western Australia,147 Justice

Sundberg made his decision on native title rights to land based in part on the cultural
knowledge of the Wanjina-Wungurr community.148 The community’s claim included
possession of painted images including Wanjina images on rock surfaces. In his
evidence, Paddy Neowarra helped explained his responsibilities towards these images:

We just got to come along and renew him again when he falling to – when
everythin and paint coming off.That’s our law and tha’s how we keep it. And
that’s what was given to us from the old people.You’ve got to take care of it
and look after it and always remember that.149

Justice Sunberg notes the central place Wanjin images play in Wanjina-Wungurr
culture and law:

Wanjina is the source of the laws and customs of the society … Painting or
repainting a Wanjina in a cave on one’s country is not seen as an activity in
respect of a painting site alone. Rather it is seen as part of the law or custom
of looking after one’s country.150

Despite being sensitive to the community’s claim the court followed Ward in
deciding that a claim for a right to restrain ‘visual or auditory reproductions of
what was found [on the land] or took place there’ could not be recognized as a
 Traditional knowledge 175

native title right and interest. However, Justice Sunberg found that ‘In my view
claimants with a traditional right to freshen or repaint a particular painting site may
have access to pastoral land in order to exercise that right. Neither the access nor
the freshening or repainting is inconsistent with the pastoral lease’.151 Rimmer
argues that though weaker than intellectual property the native title rights recog-
nized ‘represent a significant advancement in existing jurisprudence’ with respect
to recognition of native title over ‘cultural knowledge’.152
Halewood, whose research supports calls for recognition of native title rights
over traditional knowledge for Canadian First Nations claims that ‘to date … no
aboriginal knowledge protection rights appear to have been extinguished.153
Similarly, Preston Hardison, advisor to the Tulalip Tribes, argues that Indigenous
peoples in the United States, at least, have not relinquished sovereignty over their
genetic resources or traditional knowledge.This, he says, is clear from the fact that
at the time of entering into treaties Mendel had not yet discovered the genome.154
For the Tulalip Tribes the position is clear, as they have not relinquished their rights
and their rights have not been extinguished they are entitled to exercise sovereign
rights over their traditional knowledge.155 These sovereign rights are, however,
threatened by lack of respect for their customary laws. In a statement to the fifth
meeting of the WIPO IGC they put it thus:

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Indigenous peoples have generally called for protection of knowledge that the
Western system has considered to be in the ‘public domain’ as it is their posi-
tion that this knowledge has been, is, and will be regulated by customary law.
Its existence in the ‘public domain’ has not been caused by their failing to take
steps necessary to protect the knowledge in the Western [intellectual property]
system, but from a failure from governments and citizens to recognize and
respect the customary law regulating its use.156

In order to address conflicts between intellectual property regimes and Indigenous

peoples’ traditional knowledge rights states will need to adopt a human rights based
approach. In so doing they have an opportunity to redress the imbalance between
positive laws instruments and customary law principles. Indigenous peoples do not
intend to remain passive actors in this endeavour.They have instead begun to take
action to enforce their own laws, customs and practices, through the development
and dissemination of what have come to be known as community or biocultural
protocols.

Biocultural protocols and prior informed consent

Customary law, as we have seen, is constantly reformulating itself in the face of new
challenges and opportunities. It is influenced by and in turn influences national law
and policy and is shaped by and is now also reshaping international law. Its greatest
influence has to date been in the development of the United Nations Declaration
on the Rights of Indigenous Peoples and of law and policy relating to protection
of traditional knowledge. For much of the time Indigenous peoples have focused
176 Traditional knowledge

their attention on securing recognition of their interests in international instru-

ments negotiated by states. Enormous amounts of time and effort have been spent
trying to influence instruments such as the Nagoya Protocol and the negotiating
documents at the WIPO IGC. Attention is now turning to the actions Indigenous
peoples can take unilaterally to protect their interests. One area of particular inter-
est has to do with the development of biocultural protocols to protect cultural
heritage.
Codification of customary law as a means for securing its recognition has raised
many concerns amongst Indigenous peoples and local communities who feel this
may begin the process of turning it into positive law, undermining its flexibility,
continuity and legitimacy. A multi-year programme of research into the role of
customary law in the protection of traditional knowledge in Andean and Pacific
Island countries found resistance to codification was most strident in the Andean
region.157 There was some mild support for the idea in the Pacific region, but only
for codification of underlying principles or ethics of customary law as had occurred
in New Zealand.158 Lack of codification of customary law was not seen as an insur-
mountable impediment to governments and the international community
engaging with Indigenous peoples and local communities with a view to develop-
ing mechanisms to give force to customary law.159
One means to bridge the gap with positive law without recourse to codifica-

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tion of customary law is the development of community protocols.The notion of
Indigenous peoples’ protocols has been around for a long time; towards the end of
the 1990s and the start of the twenty-first century it became associated with a vari-
ety of measures adopted to protect Indigenous rights over their traditional
knowledge. This included contracts incorporating customary law principles and
values, rules for conducting research, codes of conduct for researchers and proce-
dures for seeking access to and use of traditional knowledge without requiring that
customary law itself be codified. Protocols may be seen as form of partial codifica-
tion of custom to the extent that they lay down procedures defining steps to be
followed in accordance with custom in order to process applications to carry out
research, and collect and/or use traditional knowledge, biological and genetic
resources. Protocols of this nature enable the custodians of biocultural heritage to
define conditions for prior informed consent and benefit sharing, and place restric-
tions on access and use of resources and knowledge. Protocols may include
information on the relevant law and the scope of the rights claimed by Indigenous
peoples. It may provide details on the material covered and may establish areas of
knowledge and resources and even geographical areas that are off limits, as may for
example be the case in protection of sites with significant sacred and/or cultural
importance.160 Community protocols may be seen as a bridge between customary
law and positive law regimes.As such their development is an aid to effective regu-
lation of traditional knowledge and biocultural issues at all levels.This is recognised
in Article 12(3) of the Nagoya Protocol which requires states to support the
development by Indigenous and local communities of community protocols in
relation to access to traditional knowledge and sharing of benefits.
Community protocols may prove particularly influential where developed by
 Traditional knowledge 177

Indigenous peoples whose traditional territories span one or more national bound-
aries, or where they involve more than one Indigenous people or local community
within a single state. In 2002 the Awajun Indigenous people in Peru proposed the
development of a protocol amongst all Jibaro peoples (Shuar, Achual, Awajun,
Huambisa and Candoshi) whose territories span the Peruvian Ecuadorian border.
They also proposed that a series of workshops should be held with Indigenous
peoples throughout Peru to promote the development of a canopy of overlapping
protocols to regulate access to resources and knowledge across their traditional
territories. Similarly, proposals were made for development of an Inuit-wide
BioCultural Protocol on traditional knowledge governance during the fourth
General Assembly Inuit Circumpolar Conference in Barrow,Alaska in 2006.161 The
Inuit Circumpolar Conference Canadian office later produced a project proposal
with local, national and international components. Although a lack of funding has
to date impeded implementation of the proposed activities, these proposals for
development of people-wide protocols have much merit. In the first place they
could provide a uniform framework for regulating the rights of specific Indigenous
peoples in relation to shared resources and knowledge, while allowing for locally
specific arrangements for endemic resources. Development and implementation of
such protocols would have the potential to significantly influence the design of
national, regional and international law and policy.162 They would send a strong

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message to international bodies, negotiating forums and to national governments
and other actors regarding Indigenous peoples’ view of how prior informed
consent procedures should work.163
Empowering Indigenous peoples and local communities to develop community
biocultural protocols will in the long-run assist national and regional authorities and
the international community to develop appropriate mechanisms for protection of
Indigenous peoples’ rights while giving due regard for customary law. Protocols may
address issues such as traditional resource management, access to lands and territo-
ries. Protocols may provide guidance on applying for approval to carry out research,
resource extraction, REDD+ climate change projects, as well as access to and use of
traditional knowledge and genetic resources. The Global Environment Facility,
international aid agencies, governments and international institutions as well as the
research and private sector should all be called upon to make funding available to
support the development by Indigenous peoples and local communities of such
protocols. In the long-run this may prove one of the most effective tools for secur-
ing effective protection of Indigenous peoples’ cultural, resource and knowledge
rights and appropriate respect and recognition for customary law.
To assist this process, the UN Permanent Forum on Indigenous Issues and the
Working Group on Article 8 (j) could usefully work in collaboration with relevant
international organizations, governments, and Indigenous peoples to analyse the
effectiveness of community protocols already in existence. Indigenous peoples of
Australia, Canada, New Zealand, Panama and the USA have been amongst the
leaders in the development of community protocols.Their experience and similar
experiences from around the world might usefully be examined with a view to the
development of model protocols. Indigenous peoples and local communities
178 Traditional knowledge

around the world could use these in the development of locally appropriate proto-
cols to govern traditional knowledge and ABS issues. Provision of support to
Indigenous peoples and local communities to develop such protocols will assist not
only traditional knowledge custodians but also international, regional and national
efforts to regulate traditional knowledge. In the long run empowering the custo-
dians of traditional knowledge may in the long-run prove the most effective means
for securing development of a functional international system to respect and
protect traditional knowledge.
Indigenous peoples participating in a series of regional and sub-regional work-
shops on the role of customary law in the protection of traditional knowledge in
Andean and Pacific Island countries, took the view that any research into the
nature and body of customary law should be designed from the ground up in
collaboration with Indigenous peoples and should, to the greatest extent feasible,
be carried out by Indigenous peoples themselves.164 This reflects concerns that
legislative recognition of customary law and of obligations to secure prior
informed consent for access to and use of traditional knowledge may not of itself
ensure the enforcement of customary law. The Pacific Islands Model Law on
Traditional Knowledge and Expressions of Culture, for example, makes numerous
references to recognition and application customary law,165 but despite these refer-
ences Forsyth argues the law is not ‘truly (or deeply) pluralistic’.166 In support of

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her view she notes that customary law is not given primacy under the model law
nor are customary institutions given any state enforcement powers.167 Even where
customary legal regimes are granted primacy by national and/or regional law, they
will, unless supported by state law, be unable to ensure the application of their laws
beyond their own limited jurisdiction. This highlights the need for functional
interfaces between customary, state and international, law and their respective judi-
cial or quasi-judicial and administrative authorities.168
One means to help implement obligations related to the recognition of custom-
ary law would be to establish some form of verification system to certify
compliance with prior informed consent of Indigenous peoples, which in many
cases will be based on customary law. Determining just who is empowered to
verify compliance and the basis upon which any certificate of compliance might
be granted are challenging questions. In a perfect scenario the issue would be one
for Indigenous peoples themselves to determine. One possibility would be the
establishment of some form of biocultural certification system overseen by an
international body representing Indigenous peoples, or an international ombuds-
man.169 An indigenous certifying system might be established with links to the
United Nations Permanent Forum on Indigenous Issues.170 Such a body could help
Indigenous peoples establish their own certification processes at a local and/or
national level. It might also hold information on certifying bodies for those seek-
ing to access traditional knowledge or genetic resources in accordance with the
rights of Indigenous peoples.
A key challenge in securing rights over traditional knowledge relates to
knowledge shared by various communities or Indigenous peoples and which may
also be known in varying degrees by non-indigenous communities and the wider
 Traditional knowledge 179

population. Such knowledge may be subject to a diverse body of customary laws

and national jurisdictions. In a report on widely distributed traditional knowledge,
Ruiz suggests the most equitable means to share benefits arising from access to and
use of shared traditional knowledge may be through a multilateral benefit-sharing
fund.171 Drawing on Vogel’s work on information economics,172 and the proposed
multilateral benefit-sharing fund provided for in the Nagoya Protocol,173 Ruiz
proposes the establishment of a multilateral fund for sharing of benefits derived from
the utilization of traditional knowledge. This, he suggests, may be funded through
the collection and distribution of some form of levy on the natural resources,
cosmetics and biotrade sectors.174 One potential drawback to such a proposal is the
possible transfer of control over traditional knowledge to the state, further margin-
alizing customary institutions, as Forsyth argues has occurred under the Pacific
Island Model law.175 To avoid such an end it would be important that any multilat-
eral fund, if established, be managed by Indigenous peoples themselves and be
dedicated to the strengthening of their traditional knowledge systems. Increasingly,
Indigenous peoples and researchers working on Indigenous rights are turning their
attention to non-legislative approaches to secure protection of traditional knowl-
edge. The reasons are multiple, including not least the slow pace of legislative
development and implementation and a sense that the effort involved in legislative
development is a distraction from the real threats to traditional knowledge176 and the

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adoption of practical local measures to strengthen traditional knowledge systems.177
Customary law is widely recognized as having a central role to play in the
protection of Indigenous peoples rights over all aspects of their cultural heritage.
International and national law have given particular recognition to the importance
of customary law for protection of Indigenous peoples’ rights over their traditional
knowledge. The adoption of the Nagoya Protocol, of regional traditional know-
ledge laws, and of national sui generis laws creates an extensive body of state practice
recognizing Indigenous peoples’ rights to apply their own customary laws to
protect their interests and of a related obligation of states to recognize and respect
Indigenous peoples’ customary laws in order to secure their human rights. This
state practice supports the contention that these rights and obligations have
become or are in the process of becoming norms of international customary law.
9 Intercultural equity and justice

Customary law is, above all, not static.1 This is both a weakness and a strength. On
the one hand, an orally based system of law, dependent upon the honesty, wisdom
and impartiality of informal judges will always be open to the possibility of corrup-
tion and bias in favour of the powerful over the weak. On the other hand, flexibility
allows for the crafting of case-by-case solutions, and provides decision makers with
greater discretion to search for equitable solutions than that afforded by formal
court procedures.This adaptability also provides Indigenous peoples with the free-
dom to formulate new laws and discard old laws as the need occurs.This chapter

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adopts this notion of changeability as the basis for examination of how customary
legal regimes interface with, influence and are in turn influenced by, other major
sources of law. It begins with consideration of the tensions between cultural rela-
tivism and universal human rights, and the increasing agency of women in
changing customary law from within. Analysis of customary justice systems, the
experience of the Gacaca courts and the prevention of cultural genocide follows.
The chapter goes on to discuss the role of Indigenous peoples as makers of law and
the manner in which customary law is helping to shape an emerging body of inter-
cultural legal pluralism. The chapter concludes with discussion of the
interrelationships between customary, positive, natural and human rights law and
their collective role in reviving and restructuring our fragmented legal order.

Reconciling customary law and human rights

The relationship between customary law and human rights may be addressed from
a number of fronts.The right of Indigenous peoples to their legal regimes and judi-
cial systems is itself a fundamental human right. Customary law in turn plays an
important role in securing Indigenous peoples’ human rights to, among others
things, their lands, resources, cultural heritage and self-determination. From this
perspective, customary law and human rights may be seen as mutually supportive.
This is not, however, the full picture. There are numerous instances where
Indigenous peoples’ customary practices may find themselves in conflict with
human rights. Examples of such conflicts – exclusion of women from land owner-
ship, forced marriages and abuse of chiefly power to deprive individuals of their
land rights – have been highlighted in earlier chapters. More problematic still, from
 Intercultural equity and justice 181

a human rights perspective, are customary laws that sanction honour killings,2
violent punishment, inhuman and degrading treatment, trial by ordeal, spearing,
female genital mutilation,3 and the dangers associated with accusations of witch-
craft. The existence of such practices may give the impression that customary law
is inimical to the realization of human rights. It would be wrong, however, to treat
all customary laws and practices as negative on the basis that some regimes
continue to employ discredited practices that conflict with human rights.4
International law is quite clear on two things: first that Indigenous peoples have
a right to maintain and most importantly strengthen their own legal regimes,5 and
second, that rights to practice customary law must be carried out in a manner that
conforms with and does not lead to a breach of universal human rights.6 Article 34
of the United Nations Declaration on the Rights of Indigenous Peoples entitles
Indigenous peoples to ‘promote, develop and maintain their institutional structures
and … in the cases where they exist, juridical systems or customs, in accordance
with international human rights standards’. Article 21 of the draft American
Declaration on the Rights of Indigenous Peoples recognizes Indigenous peoples’
rights to their legal regimes in very similar terms.7 Although both Articles 34 and
21 appear to establish a hierarchy subordinating customary law to human rights,
the issue is not so clear-cut. Cultural relativism and universal human rights are not,
to quote Cowan, Dembour and Wilson,‘alternatives which one must choose, once

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and for all, one should see the tension between the positions as part of a continu-
ous process of negotiating ever-changing and interrelated global and local norms’.8
Donnelly examines this relationship along a continuum between radical cultural
relativism and radical universalism, coming to the conclusion that a form of ‘weak
cultural relativism’ would secure the optimum balance between these opposing
forces.9 Weak cultural relativism would recognize the inalienability of certain
universally accepted human rights (e.g. life, liberty and security of the person)
while allowing a certain level of divergence based on cultural arguments for some
personal rights (e.g. private property, marriage, participation in decision making,
religion).10 Dundes Rentlen proposes a more flexible ‘no-harm principle, construed
as prohibiting irreparable physical harm’.11 Addressing the issue of ‘cultural defence’
in common law jurisdictions, she argues that ‘unless cultural traditions … involve
irreparable harm, they should be allowed’.12 Irreparable harm would include such
things as ‘honour’ related crimes including both killings and acid attacks. Dundes
Rentlen would also include female genital mutilation,13 though she recognises that
those who believe the practice is a necessary rite of passage for girls would take
issue with her interpretation.14
Merry warns against demonizing culture in the quest to protect individual
rights, noting that ‘many who write about women’s rights to protection from
violence identify culture and tradition as the source of the problem’.15 Female geni-
tal mutilation is, she claims, the poster child for this understanding of culture.16 In
a statement sharply criticizing the crusading approach adopted by some Westerners,
the Association of African Women for Research and Development (AAWORD)
argued that, in order to successfully fight against genital mutilation ‘it is necessary
to understand the context of ignorance, obscurantism, exploitation, poverty, etc.,
182 Intercultural equity and justice

[and] the structures and social relations which perpetuate the situation’.17 The prac-
tice is so deeply embedded in local cultural values that legislation alone cannot
eradicate it. Education and the development of symbolic rituals to replace the
mutilation procedure while retaining the celebration of the rite of passage have a
greater chance of success.18
The demonization of culture, Merry warned against, is reflected in the
Convention on the Elimination of All Forms of Discrimination Against Women,
(CEDAW), which – with the exception of Article 13 addressing women’s right to
enjoy culture – treats culture as a ‘uniformly negative influence on women’s lives’.19
The United Nations Declaration on the Rights of Indigenous Peoples provided an
opportunity for international law to address gender issues from the perspective of
Indigenous women.The Declaration however only mentions women in three arti-
cles, the most important of which is Article 22.2, which calls upon states ‘in
conjunction with Indigenous peoples to ensure that indigenous women and child-
ren enjoy the full protection and guarantees against all forms of violence and
discrimination’. The paucity of gender-specific references in the Declaration has
been put down to a reluctance amongst Indigenous women to promote their own
issues for fear of being accused of acting divisively in already charged political
negotiations,20 and because some states had raised the possibility of violations of
individuals rights as an argument to limit group power.21 While Indigenous women
kept their focus on the role of the Declaration in raising the colonial yoke Māori

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women for one highlighted that sexism against Indigenous women is ‘perpetrated
by [both] colonists and Indigenous men’.22 The Declaration and CEDAW both
demonstrate the significant hurdles Indigenous women face to secure recognition
of their issues in international law.
It is significant that the first international instrument to provide recognition of
both the cultural and gender-specific rights of women was developed and adopted
in Africa, traditionally seen as place where women’s possibilities to affect law and
policy are limited. The Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa (Maputo Protocol),23 which entered into
force in October 2005 disallows traditional practices that are harmful to women,24
while at the same time valuing positive aspects of culture and custom.25 Where
customary laws and gender equality come into conflict, the Protocol comes down
unequivocally in favour of equality.26 One of the most important features of the
Protocol are the procedural protections established by Article 17, which provide
women with ‘a voice in the determination of cultural policies and practices’.27
Article 17 provides:

1. Women shall have the right to live in a positive cultural context and to
participate at all levels in the determination of cultural policies’.
2. States Parties shall take all appropriate measures to enhance the participa-
tion of women in the formulation of cultural policies at all levels.28

For Banda this means women must be consulted about ‘the content of cultural
norms that are to operate within their societies’.29 For Bond the real value of Article
 Intercultural equity and justice 183

17 lies in its ‘potential to engage traditional leaders in the exploration of localized

methods of implementation of equality rights’.30 It is, she says,‘the discursive search
for localized modes of norm implementation rather than norm definition which
holds the greatest promise for promoting women’s equality rights’.31
Finding the most appropriate balance between individual and collective human
rights is key to securing adequate protection of women’s rights. How to achieve
that balance is, however, problematic. Xanthaki notes the guidance provided in this
area by the cases of Lovelace,32 Kitok,33 and Lansman,34 where the Human Rights
Committee ‘asked for evidence of a reasonable and objective justification for the
prevalence of one right over the other; consistency with human rights instruments;
the necessity for the restrictions; and proportionality’.35 The complete neglect of
one right in order to secure realization of the other would, Xanthaki argues,
‘violate the principle of necessity’.36 At the national level, this balance has not
always been achieved. Referring to the situation in Africa, Ndulo points out the
lack of clarity in many national constitutions that contain provisions guaranteeing
equality, human dignity and prohibiting discrimination based on gender as well as
provisions recognizing customary laws ‘without resolving the conflict between
customary norms and human rights provisions’.37 Even more problematic are situ-
ations where constitutional provisions exclude a range of cultural practices from
the ambit of anti-discrimination provisions.38 The idea that certain groups’ rights

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may be abrogated merely because they adhere to customary law is a form of ‘passé
cultural relativism’, which Ndulo argues has no place in ‘African theory and prac-
tice [which] have been influenced by and have become part of the global
movement for the globalization of human rights’.39 Ndulo identifies three distinct
approaches to customary law.The ‘historical approach’ adopted during the colonial
period; the constitutional recognition approach in the post-independence era; and
a third approach, in the post-democratization era, which should encourage the
courts ‘to interpret customary law in accordance with human rights norms’.40 This
may be achieved by showing that ‘the traditional social and economic relations on
which the customary norms that discriminate against women are founded, and on
which traditionalists oppose reform, have in reality been radically transformed’.41
Ndulo proposes reform of customary law on four fronts: first, encourage all African
countries to sign up to relevant regional and international human rights instru-
ments and their enforcement mechanisms; second all African national constitutions
should outlaw discrimination and remove immunity of customary law from human
rights provisions; third, both customary law and national law should be reformed
to get rid of gender discrimination; and fourth, non-discriminatory aspects of
customary law should be preserved and included in the legal reform.42
Based upon extensive fieldwork with African women, Claassens and Mnisi high-
light the influential role women are playing at the local level in changing
customary law from the inside.43 They point to the dangers associated with ‘essen-
tialised’ versions of custom and rights that inform the long-running debate
between universalism and cultural relativism and suggest that an understanding of
rights as constantly changing and shaped through struggle is a more illuminating
starting point for engaging with women’s land struggles.44 Their research found that
184 Intercultural equity and justice

changes in demographics, the large number of unmarried women with children

and their need for residential sites, is leading to changes in land distribution prac-
tices, though the land is ‘often allocated in the name of a male relative’.45 Women
are increasingly couching their claims on customary ‘values’ such as the entitlement
to land to fulfil their basic needs and support their children (by birthright).46 In the
process they are bringing principles such as equity and notions of democracy and
constitutional rights into the debate.47 Finding the living law is hampered in part
by the prohibitive costs involved and the fact that determinations of the living law,
which may vary from place to place, render expensive empirical research carried
out for earlier cases of ‘limited value’.48 Despite these drawbacks, Claassens and
Mnisi argue that:

whatever the difficulties in proving the ‘positive content’ of living law,

evidence of historical and ongoing contestation challenges distorted versions
of ‘official’ customary law by reference to arguments and actions of ordinary
people. In this sense, the living law approach contains inherently democratic
possibilities.49

The varying approaches of Ndulo (largely top-down) and Claassens and Mnisi
(largely bottom-up) are not either/or scenarios. In reality, the harmonization of

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customary law and human rights needs to come from both directions. Indeed, as
we will see later, the process of change is not merely within customary legal
regimes but involves changes to human rights and national law as well. As
Vermeylen sees it ‘For law to work it has to be living law, and in order for it to find
the space to live, it will have to find more flexibility in its practice.’50

Customary justice and cultural genocide

Customary justice systems do not tend to distinguish between civil and criminal
offences, both of which are considered primarily in terms of their disruption of
social cohesion.51 In contrast with dominant punitive justice systems the primary
goal of customary-law based justice systems is usually reconciliation and reintegra-
tion of the offender into the community and the maintenance of social order.52
Customary justice systems in the Andes, for example, rely primarily on restorative
justice, which prioritize ‘the admission of guilt, apology and atonement.’53 At times,
however, Andean justice can be harsh and retributive punishments may be
employed.These may include social sanctions such as banishment or physical sanc-
tions such as flogging or detention.54 Repeat offenders may be banished from the
community, meaning a loss of access to land, the principal source of livelihood.55
Physical punishments, such as whipping, are seen as form of moral sanction with a
disciplinary focus rather than purely retributive physical punishment.56 Robbery,
considered the most serious offence, was in the past punishable by death.57 The
death penalty, torture and cruel, inhumane and degrading treatment are not now
an option.58 This does not, however, amount to a complete ban on physical punish-
ment. In 1997 the Constitutional Court of Colombia held that a punishment of
 Intercultural equity and justice 185

sixty lashes, banishment from the community and loss of political rights, given to
someone accused of murder was not excessive ‘as it was in keeping with traditional
indigenous practice of the community in question’.59 The International Council
for Human Rights Policy takes a very different position, stating:

the implied argument that inhuman prisons justify whipping or even that
whipping is somehow less inhumane when committed by some communities
threatens to undermine the basis of human rights and represents, at best, a
moral relativism that questions a shared sense of human dignity.60

The willingness of Andean states to allow and indeed nurture the exercise of
communal justice reflects in part the state’s absence in large parts of the Andes. It
is also part of a wider process to secure Indigenous peoples’ rights to self-determi-
nation. In Bolivia the constitution recognizes Indigenous (customary) law as
having equal status as the ‘ordinary’ jurisdiction of state courts. In practice, imple-
menting legislation (Ley de Deslinde Jurisdiccional) has restricted the jurisdiction
of Indigenous peoples to rural areas.61 This fails to recognize the potential role
customary law may play in poor urban environments, primarily populated by
Indigenous peoples. In Bolivia the lack of security and absence of the state in poor
urban communities has seen some communities take the law into their own hands.

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This has resulted in numerous lynchings, at times justified – by the perpetrators –
as expressions of communal justice.62 Hammond contends that lynching is not an
expression of communal justice but of the lack of any justice system in urban
peripheries, which lack stable institutions and police protection.63 In such cases,
some form of local customary justice system drawing on traditional Indigenous
practices may offer a practical way to ensure security and bring vigilante behaviour
under control. A good example of how Indigenous peoples’ own culturally-based
justice alternatives may help respond to shared indigenous and state legal concerns
may be seen in the work of the Aboriginal Legal Services of Toronto (ALST).64 The
ALST runs a Community Council Program, which brings members of Indigenous
peoples accused of criminal behaviour before men and women trained to deal with
criminal law issues from an Indigenous legal perspective and who represent a cross-
section of Toronto’s indigenous population.65 The Council focuses on developing a
consensual plan to allow the accused person to take responsibility for his or her
actions and develops a plan to ‘address the root causes of the individual’s problem
and to facilitate reintegration into the community in a positive way’.The Program
is seen as an example of how traditional decision-making practices remain applica-
ble as a tool of restorative justice in a modern urban environment.The message we
can draw from such experiences is that Indigenous peoples’ customary legal
regimes should be looked upon by states as an asset to aid in the major challenges
being faced in sprawling cities around the world where the state is weak.
Perhaps the most ambitious attempt, to date, to draw upon customary justice
systems to support an overwhelmed state justice system is the experience with
Gacaca courts in Rwanda. In 2001 the Rwandan government established the
Gacaca courts66 to help process cases arising from the 1994 genocide that left
186 Intercultural equity and justice

approximately 800,000 Tutsis and Hutus dead. Based loosely on traditional gacaca
community justice mechanisms, the Gacaca court system included 12,000 local
courts working in parallel to process over 1.2 million suspects.67 Courts were
empowered to sentence offenders to community service, seen as a means to secur-
ing their reincorporation into the community; they were also entitled to hand
down custodial sentences that could include life imprisonment. Judges elected by
local communities were given six days training and then had to assume responsi-
bility to preside over cases ranging from theft to homicide. Lawyers were excluded
from the proceedings. Depending on the number of accused and the level of
community participation cases could last for days or be over in an hour.68 Appeals
were possible within the Gacaca system but could not be made to state courts.
From the outset, the Gacaca courts were promoted as a system of restorative
justice, which the government argued would quickly bring about reconciliation
between the perpetrators and survivors of genocide.69 In some cases reconciliation
has indeed been the outcome and the sentencing of offenders to community serv-
ice has aided reincorporation within their community. There have also been
heartening cases where individual survivors have reported that they have been
reconciled with perpetrators of genocide responsible for the killing of their loved
ones.70 However, reconciliation of the larger population has not as yet occurred,
which has led to significant criticism of the Gacaca court experience.Amongst the

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reasons given for the perceived failure of the Gacaca courts to secure reconcilia-
tion is interference by the state in the courts’ work.This included putting pressure
on individuals to attend Gacaca hearings, pushing courts to speed up cases71 and
restricting the courts’ mandate to cases associated with Hutu acts of genocide,
excluding all cases associated with the actions of the (mostly Tutsi) Rwandan
Patriotic Army.72 The primary impediment to the Gacaca courts acting as an
instance of reconciliation however, appears to stem from the government’s decision
to establish a hybrid Gacaca system employing aspects of both restorative and
retributive justice. This distinguished the Gacaca court system from traditional
gacaca as a site of restorative justice. Empowering the informal Gacaca courts to
impose severe custodial sentences was invariably going to run afoul of human
rights standards.73
The Gacaca courts have been criticized by human rights organizations for,
among other things, the lack of procedural guarantees,74 corruption among
judges,75 the potential for false accusations76 and a climate of lies, half-truths and
silence that undermined the truth-telling framework on which successful recon-
ciliation processes depend.77 All of these weaknesses in Gacaca may be seen as
directly related to the decision to modify Gacaca to include custodial sentences that
are foreign to the very nature of gacaca and of indigenous legal regimes in general.
The hybrid system of gacaca developed by the state, applying both restorative and
punitive justice, made it unlikely the Gacaca courts presided over by survivors of
the genocide would fully embrace the restorative and reconciliatory powers of
traditional gacaca. Clark, one of the principal exponents of the merits of Gacaca,78
is one of the first to recognize that ‘imprisonment renders impossible any mean-
ingful engagement between perpetrators and survivors’ thereby damaging attempts
 Intercultural equity and justice 187

at restoration or reconciliation.79 The failure of the Gacaca courts to secure ‘recon-

ciliation’ en masse is, for many, a signal of its failure. Clark takes issue with this view,
arguing that Gacaca is an important starting point not ‘The Solution’.80 The
government’s view that ‘reconciliation is a short-term process that occurs during
gacaca hearings and is likely to produce relatively fast results’ in bringing about
group (perpetrators) to group (survivors) reconciliation is ‘unsustainable’.81 Where
Gacaca could and did have an immediate impact in some cases was on individual-
to-individual reconciliation.82 Clark concludes that:

If engagement between the parties ceases at gacaca … then there is little

chance of reconciliation. Reconciliation, and the engagement that is the
bridge to facilitating it, are arduous, long-term processes. The evidence from
communities around Rwanda suggests that gacaca has at best aided some indi-
viduals and groups in embarking on the road to reconciliation.83

The experience of both the Gacaca courts and of customary justice in Andean
countries demonstrate the weaknesses of customary justice systems to prevent
abuse of fundamental human rights. This does not of itself negate the important
role customary justice systems have to play in modern times. However, these expe-
riences show that the role of customary justice systems as a source of restorative

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justice is compromised where the relevant court or traditional entity has the option
of applying long prison sentences and/or inflicting extreme physical punishments
that breach fundamental human rights to freedom from torture and inhumane and
degrading treatment. For indigenous legal regimes to survive they will, according
to Borrows, need to be ‘attentive to foundational questions of human dignity’ and
prepared to express core precepts of human rights ‘within their own distinctive
systems’.84
In considering the merits and drawbacks of the Gacaca courts it is worth
remembering that the Gacaca courts were charged with processing hundreds of
thousands of genocide cases in a ten-year period. In contrast, the international
criminal court has tried less than a dozen cases and obtained just two convictions
in the 12 years since its inception in 2002.While this says little about the compat-
ibility of the Gacaca courts with human rights standards it speaks volumes about
the international human rights system and its capacity to prosecute war crimes and
act as a deterrent to genocide. The capacity of the international human rights
system to prevent ethnocide and cultural genocide is even less.
There have been numerous claims of genocide against Indigenous peoples
around the world.85 Examples include the deaths of up to 80 per cent of the Herero
and 50 per cent of the Nama Peoples of Namibia during the period of German
colonial rule.86 In 1830 the deportation of the Cherokee people under the Indian
Removal Act led to the deaths of over 4000 Cherokee on the infamous ‘trail of
tears’.87 Wholesale killing of Aboriginal peoples in Australia and in Tasmania has
been referred to as an indelible stain on the nation.88 The sustained attacks by the
Indian army on the Naga people89 and the forced removal of Indigenous peoples
from the Chagos Archipelago to make way for a US military base90 have likewise
188 Intercultural equity and justice

been called genocide. Claims of genocide have also been levelled at multinational
corporations, in particular those involved in the oil and mining sector.91 More
recently it is claimed that systematic killing of Indigenous peoples living in the
Highlands of West Papua by the Indonesian army amounts to genocide.92 Genocide
is very difficult to prove and no claim of genocide against an Indigenous people
has ever been successfully prosecuted, nor has any country ever admitted responsi-
bility for genocidal activity directed at an Indigenous people.93 Even the systematic
killing of tribal peoples in Darfur, widely described as genocide in the media, was
found to fall short of the evidentiary threshold required for genocide.94 It was
denoted instead as ethnic cleansing and crimes against humanity.
Where the actions of the state, corporations or natural persons fall short of
genocide a practice has grown up of denouncing attacks on Indigenous peoples,
their cultures, lands, resources, languages and knowledge systems, as cultural geno-
cide.95 The notion of cultural genocide is not an Indigenous construct, it formed a
part of Lemkin’s original conceptualization of the crime of genocide.96 The initial
drafts of the 1948 Genocide Convention97 incorporated a provision on cultural
genocide described as ‘any deliberate act committed with the intent to destroy the
language, religion or culture of a national, racial or religious group on grounds of
national or racial origin or religious belief.’98 Opposition to inclusion of ‘cultural
genocide’ in the 1948 Convention came from a diverse group of countries includ-

DRAFT
ing Canada the United Kingdom, India, Peru, the Netherlands, the United States
and France.99 Primary support for provisions on cultural genocide came from
China, Lebanon, Poland, the Soviet Union and Venezuela.100 Brazil, among other
countries, argued cultural genocide should be dealt with under human rights legis-
lation,101 while Iran argued for a separate Convention on this subject.102
Attempts to secure recognition of Indigenous peoples’ rights to freedom from
ethnocide103 and cultural genocide were revived during the negotiation of the draft
United Nations Declaration on the Rights of Indigenous Peoples. Article 7 of the
draft Declaration provided that:

Indigenous peoples have the collective and individual right not to be subjected
to ethnocide and cultural genocide, including prevention of and redress for:
a) Any action which has the aim or effect of depriving them of their
integrity as distinct peoples, or of their cultural values or ethnic identities;
b) Any action which has the aim or effect of dispossessing them of their
lands, territories or resources;
c) Any form of population transfer which has the aim or effect of violating
or undermining any of their rights;
d) Any form of assimilation or integration by other cultures or ways of life
imposed on them by legislative, administrative or other measures;
e) Any form of propaganda directed against them.104

As Thornberry rightly predicted, the breadth and ambiguity of the draft article
made it unlikely it was ever going to be approved by states.105 Once again an oppor-
tunity to secure recognition of Indigenous peoples’ rights to their cultural integrity
 Intercultural equity and justice 189

had been lost.The question then arises, if there is no treaty provision recognizing
a crime of cultural genocide what is the situation under customary international

the state of the law in Radislav Krstić:

law.The International Criminal Tribunal for the FormerYugoslavia (ICTY) sets out

[C]ustomary international law limits the definition of genocide to those acts

seeking the physical or biological destruction of all or part of the group. [A]n
enterprise attacking only the cultural or sociological characteristics of a
human group in order to annihilate these elements which give to that group
its own identity distinct from the rest of the community would not fall under
the definition of genocide.106

While the emotive and political power of the term cannot be denied, as it stands,
there is no recognized international crime of cultural genocide. The lack of a
recognized crime of cultural genocide does not, however, change the reality that
the cultural integrity, lives, lands, resources, languages and future of many

existence of a crime of cultural genocide the Trial Chamber in Krstić found that
Indigenous peoples has been and continues to be threatened. While negating the

cultural destruction might be evidence of intent to destroy, holding:

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where there is physical or biological destruction there are often simultaneous
attacks on the cultural and religious property and symbols of the targeted
group as well, attacks which may legitimately be considered as evidence of
intent to physically destroy the group.107

The Appeals Chamber in Krstić confirmed that ‘the destruction of culture may
serve evidentially to confirm an intent, to be gathered from other circumstances,
to destroy the group as such’.108 While recognizing that the Genocide Convention

in a partially dissenting decision in Krstić, took a broader view of the extent to

had left out cultural genocide, Appeals Chamber Judge Mohamed Shahabuddeen,

which cultural destruction may be evidence of genocide, holding:

It is the group that is protected. A group is constituted by characteristics –

often intangible – binding together a collection of people as a social unit. If
those characteristics have been destroyed in pursuance of the intent with
which a listed act of a physical or biological nature was done, it is not convinc-
ing to say that the destruction, though effectively obliterating the group, is not
genocide because the obliteration was not physical or biological.109

The importance of Shahabuddeen’s decision is that while the listed acts of geno-

may be manifested through acts of cultural destruction.110 In Vidoje Blagojević and

cide must be physical or biological in nature the same is not true for intent, which

Dragan Jokić the ICTY Trial Chamber found that ‘[w]hile killing large numbers of
a group may be the most direct means of destroying a group, other acts or series of
acts, can also lead to the destruction of the group’.111 The Trial Chamber went on
190 Intercultural equity and justice

to define forcible transfer of a group as an act likely to lead to destruction.112 The

Trial Chamber found ‘that the forcible transfer of individuals could lead to the
material destruction of the group, since the group ceases to exist as a group, or at
least as the group it was’.113 In Prosecutor v. Krajisnik, the ICTY Trial Chamber
described the notion of ‘the group’ as something more than its members, stating:

It is not accurate to speak of ‘the group’ as being amenable to physical or

biological destruction. Its members are, of course, physical or biological beings,
but the bonds among its members, as well as such aspects of the group as it
members’ culture and beliefs, are neither physical nor biological. Hence
[under] the Genocide Convention’s ‘intent to destroy’ the group cannot sensi-
bly be regarded as reducible to an intent to destroy the group physically or
biologically.114

Drawing heavily on the ICTY jurisprudence, Hon argues that evidence of cultural
destruction during the ethnic cleansing of the Fur, Masalit and Zaghawa tribes in
Darfur, may prove vital to securing a conviction for genocide against Sudanese
President Omar Al-Bashir.115 In her view, coupling the fact of ethnic cleansing
together with evidence of cultural destruction would bring the crimes in Darfur
within the scope of genocide.116 The ICTY’s jurisprudence, while avoiding the

DRAFT
recognition of a crime of cultural genocide has opened a small window of oppor-
tunity for a more expansive approach to genocide capable of addressing the
collective attacks on the culture, lands and resource rights of Indigenous peoples
which threaten their survival as distinct cultural groups.
The issue of forced removal from their lands is one of the greatest threats to
Indigenous peoples’ cultural survival.Where forced removal is coupled with phys-
ical or biological destruction the possibility may exist to bring a case for genocide
before the International Criminal Court.117 The threats of physical destruction are
extremely high for Indigenous peoples living in voluntary isolation, where the very
fact of contact with outsiders poses a direct threat to their individual and collec-
tive survival.These threats have become ever more real as oil, mining and lumber
companies push further and further into pristine areas of rainforest in Amazonia
and the Congo basin. In Ecuador, for example, the lives of Tagaeri-Taromenane
nomadic clans of Waorani Indians living in Yasuni National Park are threatened by
government plans to grant licences for oil and gas exploration in their traditional
lands.118 Similarly in Peru, the Nanti people are threatened by the government’s
extension of exploration licences in the Nahua-Nanti Reserve. Peru has recent
experience with the devastating impacts of contact on isolated peoples. In 1984,
loggers entering along paths opened by Shell during exploration in the early 1980’s
came into ‘first contact’ with the until then isolated Nahua resulting in the deaths
of up to 60 per cent of the Nahua. In the words of Tomas, a survivor:

Many, many people died. People dying everywhere, like fish after a stream has
been poisoned. People left to rot along stream banks, in the woods, in their
houses.That terrible illness!119
 Intercultural equity and justice 191

The inevitability of large-scale death among isolated peoples upon first contact
signifies a clear obligation on the part of the state to prevent incursions onto their
lands. Failure to do so and in particular any grant of a licence to enter onto their
lands would be tantamount to a death sentence.Although proving intent would still
be problematic, the ‘knowledge’ of the almost certain deaths of a large proportion
of the isolated people upon first contact may be sufficient to meet the standard of
intent as set out in the Rome Statute establishing the International Criminal
Court.Where dealing with jus cogens norms such as genocide,Westra argues there
is an obligation to abstain from activities that may gravely harm Indigenous
peoples, both directly and through harm to their habitat/environment.120 Acts that
destroy the capacity of an isolated Indigenous people to survive as a group, whether
through their forced removal from their territories – forced removal must include
displacement of Indigenous peoples moving from their traditional territories to
avoid first contact – or as a result of the physical destruction arising from contact
with oilmen, colonists or loggers, fall arguably within the definition of genocide as
applied by the ICTY. Even if no intent to destroy isolated peoples exists, the
inevitability of the impacts of contact are so great that government decisions
permitting incursions onto their lands must be seen as blatant disregard of their
rights to life (i.e. an intent not to prevent their deaths). This amounts at least to
reckless endangerment and at the worst to a crime against humanity. Schabas

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argues that acts of omission (such as failing to provide the necessitates of life) come
close to committing genocide by omission.121 He also notes how under domestic
criminal law ‘intentional acts of omission are criminal in nature’.122 Failing to act in
such a way as to prevent first contact with an isolated people could amount to just
such a culpable omission.
The dangers faced by Indigenous peoples living in isolation demonstrates the
need for a clear definition of genocide to include cases where state development
policies or neglect proceeds with a ‘”logic”’ of elimination’123 even if the ‘intent’ is
not readily identifiable. A case in point is that of the Penan people of Sarawak
whose forest has been literally cut out from around them by a rapacious logging
industry. Surrounded by roads that carve the forest into city block size units the
Penan have struggled to prevent the systematic destruction of their environment,
to no avail. Instead, what was once primary forest teeming with life and diversity
has been converted into endless miles of palm oil plantations. For the Penan the
destruction of their forest is the same as destroying their culture, which cannot be
sustained in an artificial monocultural environment. Recognition of an interna-
tional crime prosecutable before the international criminal court – whether
described as ‘cultural genocide’ or ethnocide, or via a redefinition of the scope of
the crime of genocide – would have a significant deterrence value in cases such as
these. The likelihood of states agreeing to recognize such a crime is, however,
considered to be low.124
Indigenous peoples are turning to other avenues to prevent or prosecute acts
that threaten their survival. In Ecuador, indigenous activists raised over 850,000
signatures, 25 percent more than required by law, in order to force a referendum
on the Yasuni case.125 The National Electoral Council, however, threw out 60
192 Intercultural equity and justice

percent of the signatures leading to an appeal to the electoral tribunal.126

Furthermore, Article 57 of the Ecuadorian Constitution establishes a crime of
ethnocide and prohibits extractive industry activities in the traditional territories of
Indigenous peoples living in voluntary isolation.127 Any deaths among the Tagaeri-
Taromenane arising from extractive industry activities in, or in proximity to their
traditional territories would open the way for actions of ethnocide against those
responsible.Amongst those responsible actions might be taken against the President
and relevant legislative and administrative personnel and authorities as well as any
companies licensed to carry out the relevant exploration or extraction activities as
well as their officers. Actions may be brought both for the grant of any licences as
well as for any failure to adopt legislation to prevent such activities. Failure to adopt
implementing legislation to regulate the application of Article 57 of the constitu-
tion would itself amount to a crime. Indigenous peoples in Peru are also taking a
proactive stance to protect the Nanti people.The Inter-Ethnic Association for the
Development of the Peruvian Amazon (AIDESEP) the largest and most influential
national Indigenous Organization in Peru has brought the issue of government
approval of gas exploration in the Nanti-Nahua National Park before the Inter
American Commission on Human Rights.128
Where Indigenous peoples are unable to get relief from national and interna-
tional courts they may consider turning to their own legal regimes in the search

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for justice. International law provides Indigenous peoples with a mandate to exer-
cise jurisdictional powers through their own justice systems. As seen in the case of
the Subanon, customary justice systems already play a role in resolving disputes
involving mining companies. The gacaca experience demonstrates the utility and
flexibility of customary law as a tool to bring about reconciliation even in cases as
traumatic as genocide. While the Farmers Juries, discussed in Chapter 6, demon-
strate the moral power of communal decision making even in the absence of the
perpetrator of the harm. Building on these and other such experiences, and learn-
ing from their strengths and weaknesses, Indigenous peoples may seek to bring
cases of cultural destruction and genocide before their own customary justice
systems. Although, it may prove difficult to secure the attendance of suspects or of
corporations and their officers, the very fact of holding a customary justice trial is
likely to have its own liberating aspect and moral power. If customary justice
systems adopt appropriate safeguards for those accused of crimes this will give
greater weight to the outcome of their deliberations and increase the potential to
secure support for the enforcement of any relevant decision or act relating to the
relevant case. Indigenous peoples, in determining the scope of their jurisdiction
may wish to examine the possibility of assuming universal jurisdiction with regard
to crimes of genocide. Universal jurisdiction allows private citizens or the state to
institute proceedings against those suspected of crimes against humanity or geno-
cide even where the genocidal act occurred in a foreign jurisdiction.129 A scenario
could be envisaged where a country or territory where a majority of the popula-
tion are Indigenous peoples might assume universal jurisdiction and apply it to
cases of cultural destruction and genocide.
Indigenous peoples at a national, regional, people-wide or international level
 Intercultural equity and justice 193

may also consider the benefits of developing some form of higher indigenous judi-
cial authority, drawing on the collective jurisdiction of Indigenous peoples
submitting to its authority. Tribal court systems of First Nations in the United
States of America have adopted an appellate system with a Supreme Court, for less
numerous Indigenous peoples, a shared appellate court may be more practical.
Initiatives of this nature may provide a buffer between Indigenous peoples’ legal
regimes and state and international authorities. It would also provide Indigenous
peoples with a forum within which to address challenges between their own laws
and national and international law.This should not be seen as a challenge to domi-
nant legal regimes but rather as the legitimate exercise of Indigenous peoples’ rights
to self-determination and to decide on issues of conflict of laws. The practical
extent of Indigenous peoples’ self-determination and autonomy in legal affairs will
become apparent as they test boundaries of their jurisdiction.

Customary lawmaking and Intercultural Justice

Indigenous peoples are lawmakers and their influence on law making extends
beyond their own jurisdiction and into many areas of law, including human rights.
The West, Judge Albie Sachs stresses, has no monopoly on human rights principles,
indeed ‘[a]s far as human dignity was concerned the impact of the West on Africa

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was nothing short of disastrous’.130 The same may be said about the impact of colo-
nial and post-colonial states on Indigenous peoples and their legal regimes.
Highlighting the fact that it was black South Africans that fought hardest for
‘acceptance of universal principles, acknowledging the essential dignity for all’,131
Sachs points to the development of the Truth Commission as a reflection of:

something that is deep in the African tradition of listening, talking, bringing

everybody in, of hearing all the different points of view and affirming the
dignity of all through equality of discourse. Our continent then, is not only a
recipient of values and processes; it is a universal donor as well.
Difference. The idea of not suppressing or exploiting difference but of
welcoming diversity on the basis of equality is fundamental to our whole new
constitutional order. Equality is based upon acknowledging rather than elim-
inating difference.132

The Haudenosaunee Confederacy’s two-row wampum belt captures this notion of

difference and equality, presenting an idealistic view of two distinct worlds moving
in harmony without interrupting one another. This utopian vision of parallel
sovereignty turned out to be just that. For Indigenous peoples, legal pluralism has
traditionally meant a system where their customary law (if recognized at all) is
almost always at the bottom of the pecking order, subordinate to the constitution,
human rights, national law and even local by-laws. This is not conducive to the
realization of self-determination, it is discriminatory and in the light of develop-
ments in human rights law it is no longer acceptable.The notion of legal pluralism
as a separation of legal worlds, in which Indigenous peoples’ rights to their legal
194 Intercultural equity and justice

regimes is limited to their own internal affairs and has no bearing on third parties,
is not in tune with the needs and reality of today’s multicultural legal melange.The
pluricultural nature of societies in all parts of the world requires greater awareness
and sensitivity to the interrelationships between legal regimes. Effective interfaces
between state and non-state laws including customary laws are required on many
levels for day-to-day governance in a manner that accords with human rights law
and that is conducive to the promotion of human rights globally. To be effective
the interfaces between customary and state legal regimes cannot be imposed but
must be negotiated, tested and modulated to respond to the realities of differing
worldviews, value systems and legal vision. Building effective interfaces between
legal regimes is also an essential step in the reconstruction of our fragmented legal
order.133
The marginalization of customary law and natural law and the dominance of
positive law over the past two hundred years has undermined the balance in the
legal order, a balance critical for ensuring the well-being of humankind and the
earth upon which we depend for our existence. The issue of balance between
humans and the Earth is central to the notion of aboriginal law. Referring to the
concept known, in the Northern Territory, as Djang, the basis for the law born of
the land, Senior Aboriginal Law Man Neidji explains:

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We are all sitting on top of the Djang
This primordial energy runs through the earth.
We do not fully understand this energy.

Neidji goes on to describe how a disturbance in one country may cause a cyclone
or flood, etc. in another country, and warns that:

If you do not pay heed to this warning

You will be breaking the law – a
Primordial law which applies to all of us.134

Even if those who break the law are outsiders it affects us all.135 The law and balance
regulating man’s interaction with Mother Earth, to which Neidji alludes, is
constantly being broken by corporations and states eager to control and exploit all
possible opportunities for industrial extractive industry activity.The lack of balance
and the disassociation of law from the collective well-being became painfully
apparent to many in the developed world with the collapse of the economic order
in the opening decade of this century.The failing state of the current legal system
pervades the work of De Sousa Santos, who argues that regulation has become
‘ideologically discredited as a pillar of modernity’.136 Law has become separated
from the quest for a ‘good society’.137 We are, according to De Sousa Santos,
witnessing a ‘paradigmatic crisis of law’ arising from a massive juridicide in the form
of destruction of legal practices and conceptions that did not fit within the modern
positivist legal canon.138 The crisis in the legal system means we are entering ‘a
social, cultural and epistemological transition toward a new paradigm.’139 This new
 Intercultural equity and justice 195

legal paradigm must draw on many sources of law not least the ‘marginalized tradi-
tions’ of suppressed or marginalized peoples.140 The very struggle of Indigenous
peoples to defend and to develop their legal regimes in the quest for self-determi-
nation has transformed their legal systems, and led them to construct what De
Sousa Santos describes as ‘neo-communities’.

a complex constellation of social and political meaning, in which pre-modern,

modern and postmodern elements are tightly entwined … a social construc-
tion designed to transform a past of oppression into a future of dignity.141

The urgent need for a legal system that can transform a present of oppression, envi-
ronmental crisis and gross economic inequality into a future of dignity, stability,
equality and diversity is plainly clear. In the past twenty to thirty years the inter-
national community has adopted a wide range of binding and soft law instruments
on issues of environmental, social, cultural and human rights concern.While ambi-
tious and in some cases forward-looking, these instruments have been largely
unsuccessful in bringing about the collective psychic change necessary if we are to
stop and redress the damage already done to the planet, make positive inroads into
reducing the grave levels of poverty afflicting so many in times of abundance and
adopt a sane means of relating with the Earth in the future.Addressing these prob-

DRAFT
lems from the same stale discredited positivist legal tradition that has brought the
world to the crisis it now finds itself in is not going to work. Anghie argues that
one of the major stumbling blocks to change is the nature of the international legal
system itself, which ‘has endlessly reached out towards universality, expanding,
confronting, including and suppressing the different societies and peoples it
encountered’.142 There are he says:

few more compelling stories that power can relate about itself when expand-
ing than the great imperial narrative in which ‘we’ are civilized, peace-loving,
democratic, humanitarian, virtuous, benevolent and ‘they’ are uncivilized,
violent, irrational, backward, dangerous, oppressed, and must therefore be sanc-
tioned, rescued and transformed by a violence that is simultaneously, defensive,
overwhelming, humanitarian and benevolent. The furtherance of justice, the
promotion of humanitarianism; these are the great goals that imperialism has
traditionally set itself.143

This discourse, which has served the interests of both colonial and post-colonial
states, and has been inculcated in international law must now give way to a culture
of respect and an embracing of difference and a willingness to learn how to change
from our self-destructive path. Peoples, nations and communities, that have lost
their relationship with the land and community will need to renew that link if we
wish to pass on to future generations their inheritance: a healthy balanced Earth
and all its wondrous diversity. In seeking to regain the balance we have lost we need
to draw on all sources of wisdom and knowledge. Not least the knowledge and
wisdom of Indigenous peoples, farmers, livestock keepers and fisherfolk that have
196 Intercultural equity and justice

retained their sense of community and their spiritual links to the land and seas.The
concern aboriginal peoples feel for the land and the importance of looking after
the land is clear from the words of Chairman Galarrwuy Yunupingu of the
Northern Land Council:

Land is very close to the Aboriginal heart and we can actually feel sorry for
land, like you would feel sorry for someone who has been hurt.We give land
ceremonial names as a sign of respect and this is very important, like respect-
ing your elders. We acknowledge the land by giving it a title that is not used
every day; a special name so we can remember what it means to us. Our rela-
tionship with the land is much closer spiritually, physically mentally than any
other relationship I know of.144

The law of Indigenous peoples is designed to nurture and protect the land not to
determine who owns and can exploit it. This is apparent in a statement by
Indigenous peoples meeting in Alta, Norway, in preparation for the World
Conference on Indigenous Peoples:

As the original and distinct Peoples of our territories we abide by natural laws
and have our own laws, spirituality and worldviews.We have our own gover-

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nance structures, knowledge systems, values and the love, respect and lifeways,
which form the basis of our identity as Indigenous Peoples and our relation-
ship with the natural world.145

Indigenous peoples’ ways, laws and practices can help inform legislators, the legal
profession and the wider society in just how to build balance into the law. Getting
the judiciary, lawyers and government in general to open up to the possibility of
learning about law from Indigenous peoples is, however, likely to prove a major
hurdle. But it is one that needs to be overcome if customary law is ever going to
recover its rightful place in the legal order. Helping to overcome the resistance to
its recognition and full incorporation in national and international legal ordering
will take time, patience and commitment. Developing a new legal order requires a
willingness to share ideas and an openness to explore and seek to understand the
underlying concepts and philosophies that have sustained the legal governance
structures of Indigenous peoples for centuries through all forms of oppression.
Native culture is closely related both to native religion and the natural environ-
ment, which,Tsosie explains, is itself the ‘source of the Creator’s law (natural law)
that is intended to govern the people in their appropriate interactions with the rest
of the natural order’.146 The grounding of culture in the spiritual and legal order of
Indigenous peoples, seen as emanating from the earth itself, explains Indigenous
peoples’ concern that deconstruction or harm to any aspect of their cultural
systems may have ‘profound consequences for the cultural survival of Native
people’.147 Tsosie argues that frequent disregard of these interrelationships by
dominant society’s courts demonstrates the need for an intercultural legal frame-
work exercising ‘intercultural justice’ in order to ‘alleviate the historical and
 Intercultural equity and justice 197

contemporary grievances and harms that continue to affect’ Indigenous peoples.148

This notion of intercultural justice goes beyond a call for recognition of Indigenous
peoples’ own legal regimes and their role in internal regulation of their affairs.
Intercultural justice requires respect and collaboration with tribal court systems,
attention to the moral and ethical framework of tribal justice, including such
notions as restorative justice, ‘equal respect, group solidarity, good relations, and
compatibility with ‘natural’ (i.e. universal) principles, [which] may be used to
understand and provide redress for cultural harm’.149 Not only is this seen as neces-
sary from a moral and ethical standpoint, it is, Tsosie argues, obligatory in the
United States where ‘[t]he rights of Native nations are not purely the rights of
cultural or ethnic groups. Rather they are separate sovereigns with the right to self-
determination as peoples within the domestic federal system’.150
At the international level the concept of state sovereignty has traditionally
served to exclude the individual and non-state communities from acting as
lawmakers, sources of law, or as actors entitled to initiate actions for defence of their
rights. International human rights law has began to make inroads into this exclu-
sive domain of the sovereign state and increasingly legal pluralists are arguing for
recognition of a wide range of sources that together go to make up a hybrid body
of law with often contested jurisdiction over the same subject matter.151 Legal
pluralism tends towards the identification and recognition of parallel and/or

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contesting jurisdictional claims, rather than a blending of legal regimes. In support
of a more intercultural approach to development of law and policy in multi-ethnic
societies, it has been proposed that principles of customary law should be enshrined
alongside positive legal principles in relevant national and international law.152 One
obvious area of law for inclusion of customary law principles is the development
of a global body of rules of equity to guide interpretation and implementation of
any regime on access and benefit sharing and traditional knowledge,153 as well as to
oversee issues relating to Indigenous peoples’ cultural, land and resource rights. In
advancing such a task it will be important to find a starting point where all can
commence sharing of ideas, stories, notions and understandings of equity.We have
already identified some of those principles including: reciprocity, duality, equilib-
rium, hozho (harmony), kinship, ubuntu (humaneness), and buen vivir (right living).
Many more relevant principles are likely to be found in the great diversity of
customary laws, traditional stories, poems, songs and dances of Indigenous peoples
and other customary-law based peoples and communities.The process for identi-
fying such principles will need to ensure that the identification and interpretation
of traditional stories etc. is carried out by Indigenous peoples themselves.154
If customary law is to retake its rightful place in the legal structure it must first
be understood.Any such process will need to rely heavily on translators; translators
not just of language but also of legal concepts and their interpretation.The role of
the Waitangi Tribunal in collating evidence and preparing submissions to the courts
is a case in point.Although devoid of the ability to make legally binding judgments
the Tribunal is empowered to hear and analyse Māori claims, acting as a conduit to
the courts. Institutions such as the Tribunal serve a key role in building under-
standing of customary law across cultural boundaries. Such understanding will be
198 Intercultural equity and justice

crucial for the development of intercultural equity and justice at the national and
international level.
This understanding is likewise necessary for the development of a body of inter-
cultural law that can reflect a harmonization of ‘the interests of society as a whole
and the rights, values and laws of Indigenous people’.155 Referring to the situation
in Canada, Borrows is emphatic that:

Indigenous legal concepts must be embedded in and thereby change the very
structure of Canada’s law.They should also be recognized and affirmed in their
own terms as having force within Indigenous communities. Indigenous legal
traditions must be at the root of Indigenous governments, courts, clan organiza-
tions, family relationships,and other important institutions within these societies.
Indigenous vantage points should help shape the appropriate balance of rights
and responsibilities when judging issues of Indigenous legal traditions.156

Borrows promotes the notion of harmonization of laws as a means to promote

‘equivalence between civil law, common law and Indigenous law as equally author-
itative sources of law for property or civil rights’.157 This notion is picked up in a
study of customary law in Pakistan which stresses that harmonization is about
‘understanding and respecting customary law as a sophisticated and dynamic legal

DRAFT
system.158 Fostering equivalence requires commitment and action from both states
and Indigenous peoples. On the one hand, states will need to assume a proactive
stance towards the recognition of Indigenous peoples’ customary legal regimes. On
the other hand, Indigenous peoples will need to be prepared to work to educate
legislators, the legal profession and the wider society on the traditional legal values,
principles and forms of legal reasoning that ground their own legal regimes. If they
want to influence the legal order Indigenous peoples will need to develop a clear
perspective on how their own laws may serve to protect their rights in a state of
legal pluralism. Most challenging of all will be to describe modalities for ensuring
recognition of their laws outside their own jurisdiction.
Existing examples of measures facilitating harmonization may be found in a
wide variety of mechanisms adopted by states and Indigenous peoples that have
helped to build bridges between customary law and state legal regimes. Amongst
the most innovative experiences in this area are a project to develop a common law
for the Sudan based on customary law, adoption of legislation recognizing tradi-
tional authorities in Namibia and new land law grounded in customary law in
Vanuatu.Also important is the widespread recognition of customary law in national
constitutions with some constitutions, such as those of Papua New Guinea and the
Solomon Islands, elevating customary law above inherited common law in the
hierarchy of laws. In Ecuador, the constitution has embraced indigenous concepts
in the recognition of the rights of Mother Earth. In New Zealand the notion of
the rights of nature has been captured in the Whanganui River Settlement, which,
at the behest of Māori, invests the river with legal identity. While, in Bolivia the
‘Ley de la Madre Tierra’ grounded on the notion of Buen vivir is a leading exam-
ple of intercultural law making in practice.
 Intercultural equity and justice 199

The courts too have been busy developing customary-law based jurisprudence
in areas such as the recognition of native title in Australia and Canada, application
of traditional legal values of ubuntu to guide constitutional interpretation in South
Africa and the development of the underlying law based on customary law in
Papua New Guinea. In South Africa the courts have been instrumental in raising
the status of customary law, placing it on a par with common law under the consti-
tution. The Inter-American Court of Human Rights has also relied heavily on
customary-law based rights in its decisions over Indigenous peoples’ rights to their
lands and resources, and to free prior informed consent over extractive industry
activities in their territories.
Indigenous peoples have played an equally innovative and important role in
building bridges towards national and international law. Indigenous peoples around
the world have developed a wide range of biocultural and community protocols to
regulate research activities and access to their lands, resources and traditional
knowledge. In Namibia they have developed the notion of self-statements as an
alternative to restatements and codification of customary law. Indigenous peoples
have also shown their readiness and preparedness to assume their role as lawmak-
ers in order to address aspects of their customary laws that conflict with
fundamental human rights. Changes in xeer in Somalia have led to a massive drop
in the level of revenge killings while the Owambo of Namibia have radically

DRAFT
changed customary law to secure the rights of widows to land. Indigenous women,
often considered marginal players in the development of customary law are
increasingly recognized as important agents in bringing about change from inside,
while defending their rights to their own cultural identify and practices.
Indigenous peoples’ customary legal regimes, steeped in tradition, are in a
constant process of adjustment and re adjustment as they respond to changing
cultural practices, and a host of external social, political, economic and legal forces.
It is hardly surprising therefore that Indigenous peoples have developed significant
capacity to negotiate change while sustaining their cultural integrity.Two evolving
experiences are instructive of the depth of change that is possible and is indeed
underway with regard to customary law and its progressive immersion in and
remoulding of positive law. The first case is that of the Draft Nordic Saami
Convention being negotiated by the governments of Finland, Norway and Sweden
with the full participation of Saami.The Saami who will be the primary benefici-
aries of the Convention will not, however, be signatories to it.159 The Convention
is intended to secure increased self-determination for Saami. The draft regime
requires the signatory states to show respect for Saami people’s conceptions of law,
legal traditions and customs.160 This requires consideration of Saami legal customs
when elaborating legislation and due consideration of their legal customs in the
application of law.161 The negotiation of the Convention demonstrates the possibil-
ity for Indigenous peoples working together with states to drive forward significant
changes in the legal landscape and in the methods for protecting their rights.
The second case is that of New Caledonia, where the adoption of the Noumea
Accord in 1998 enshrined recognition of Kanak Law in the French Constitution162
Kanak assessors (versed in Kanak law) now sit alongside state judges in Noumea
200 Intercultural equity and justice

when they deal in matters covered by the Civil code.163 The Cour de Cassation (the
highest court of civil and criminal appeal in France) has held that, as the Noumea
Accord of 1998 forms part of the French constitution, customary law is of the same
rank as the rest of French law.164 This is a dramatic turnaround, overturning the
notion of the unitary nation state imposed since the French revolution. Regis
Lefargue, a Justice of the Noumea Court of Appeal, writing in his personal capac-
ity, views the decision of the Cour de Cassation as amounting to a decolonization
of the legal system through an opening up to respect for the law of the Other.165
In this case, that other is Kanak customary law.The New Caledonian case not only
signifies a resurgence of Kanak customary law it signifies another important step
forward in the development of intercultural legal pluralism. In this case, Kanak
customary law has made its way to the very heart of the old colonial power’s legal
system. Only time can tell what influence it may yet bring to the French legal
regime, and its interpretation of ‘Liberty, Equality and Fraternity’ today.
What we see is progressive evolution of law and practice within a framework of
intercultural legal pluralism.166 While legal pluralism is a reality it is a reality that is
not always readily acknowledged. Menski, a long-time scholar of legal pluralism has
adopted an interesting airborne metaphor, a kite, to help demonstrate the interde-
pendence and inherent tensions among the four primary sources of law – natural,
customary, positive and human rights law (see Figure 9.1) – which he pointedly

DRAFT
defines in expansive terms.167 Menski suggests that the four corners of the kite be
numbered and apportioned with no sense of hierarchy beginning with the oldest
forms of law, as he explains:

At the top is corner 1, natural laws/ethics/morality, notably both religious and

secular. This corner focuses (though not exclusively) on individuals and has
strong connections with psychology. On the right side is corner 2, the sphere
of socio-legal normativities at various levels, including also economic consid-
erations. This is the arena of society and customs; major law-making entities
here would be social groups/communities rather than individuals. On the left
side is corner 3, state law in various forms, closely connected to politics and
power.At the bottom, corner 4 adds international laws/human rights, another
internally plural sphere, with positivistic structures in international relations as
well as perceptions of ‘new natural law’ that underpin human rights.168

The kite image helps rewire our minds to the reality of what Menski terms the
‘plurality of pluralities’ in our legal system.169 Balance in our pluralistic legal world
must come from balance between these four areas of law. Failure to give due
respect to any specific area of the law threatens the capacity of our legal systems to
provide the basis for good global and national governance.
While, it is crucial to recognize the interdependence between the primary
sources of law, it is also important to recognize and indeed celebrate the distinc-
tiveness and diversity in the law.This calls for another metaphor, this time fluvial.170
Under this vision, custom deriving from the will of the people may be viewed as
the deep flowing waters of a river. Slow-moving and subject to gradual, progressive
 Intercultural equity and justice 201

Natural
Law

Postive Customary
Law Law

Human
Rights

DRAFT
Figure 9.1 Four primary sources of law

modifications, reflecting cautious but continuous changes in society, capable at

times of significant and abrupt change in the face of major obstacles, but conser-
vative at heart, seeking to return to a position of relative calm as soon as possible.
Stipulated or positive law may be seen as the fast-running waters on top of the
river, moving fast and sometimes furiously, undergoing constant and frequent shifts
in direction in response to changes in governments, demands of powerful interest
groups and the dictates of political and economic expediency. Prone to idealistic
and populist displays it is a process of trial and error, as ideology imposes sometimes
innovative and at times ill-conceived responses to new social, cultural, economic
and technological challenges.While natural law may be seen as the common pool
or lake into which both custom and stipulated law flow. Calm, clear, cool and
constant, patient and reasoning, mature and eternal, providing the reflective process
necessary to bring about solutions to conflicts between customary and positive law.
Solutions found not through power or might, or even persuasion, but by reference
back to a common system of universal moral principles. A filter, if you like, laying
aside purely individualistic interests, corporate greed, cultural relativism, and right-
eous indignation, in the search for the ‘self-evident common good’ as opposed to
the ‘self-serving individualistic’ demand. This presupposes the existence of some
202 Intercultural equity and justice

collective north, some common goal or vision, some shared truth(s). For Aristotle
this would have been the universal truth of natural law, which Sir Henry Maine
describes as the ‘distinct object to aim at in the pursuit of improvement’.171 A true
north to be sought progressively, but which will always likely remain somewhat out
of reach.The notion that law is pointing at some abstract moral good, as opposed
to slavishly enforcing rigid stipulated rules, points towards the notion of equity.
Equity as a procedural remedy to the slavish application of the law, suggests how
reasoned justice may defend against the insensitivity of the stipulated law.
Intercultural equity, drawing on all sources of law and legal traditions is at the heart
of securing intercultural legal justice, which also relies on human rights law.
Returning to our image of the lake of natural law into which both customary
law and positive law flow we may envision human rights as a fountain. Firing high
into the air like the Jet d’Eau, the famous fountain that rises from Lake Geneva, our
human rights fountain acts as a beacon of promise and hope. Constant and
comforting, the fountain rises and then falls back to be incorporated with custom-
ary law, positive law and natural law, where it monitors compliance in an
intermingling of law necessary to achieve intercultural legal pluralism. Unable to
ensure the realization of the rights it enshrines by itself, human rights law must
work in collaboration with customary law and positive law to achieve its enforce-
ment. A construct of human consensus-building processes, human rights is always

DRAFT
prone to the foibles of legislative construction, making it important that the heal-
ing waters of natural law be available to round off the edges of injustice that legal
systems are prone to. While the deep slow-moving waters of custom have the
power to bring about change in places human rights law cannot access directly.
Similarly, the rapid bubbling waters of positive law have the power to bring about
rapid systemic change that custom can rarely achieve. This added dimension of
human rights law, this beacon of hope, adds new dynamism to the relationship
between the other three pillars of the law.The question as to how the opportuni-
ties and the challenges associated with the intermingling of laws will be taken by
each source of law remains to be seen. There is however something comforting
about the interrelationship and promise they hold for the achievement of good
global participative governance.
While, increased recognition of Indigenous peoples’ human rights at the inter-
national level has spurred on the recognition of their rights to their laws and legal
regimes at the national level, there have been setbacks. Notable have been the
European Union’s weak implementation of the Nagoya Protocol,172 the removal of
almost all references to customary law from the WIPO IGC draft instruments on
protection of traditional knowledge, and the failure by the General Assembly to
reappoint an Indigenous co-facilitator of the World Conference on Indigenous
Peoples.The resistance to implementing fully their rights raises questions regarding
the benefits and drawbacks for Indigenous peoples of participating in international
negotiating processes over which they have only limited, if any, influence. It also
brings into perspective the limited influence of the UN bodies and mechanisms on
indigenous rights for the enforcement of their human rights. Stavenhagen has
pointed out the limitations of the role of the Special Rapporteur, arguing that case
 Intercultural equity and justice 203

reports and country visits rarely change anything.173 The Expert Mechanism on the
Rights of Indigenous Peoples and the UN Permanent Forum on Indigenous Issues
lack any enforcement mechanisms to support their activities, while UNIPP’s work
is, for now, focused on a small group of states that have demonstrated a willingness
to implement the UN Declaration on the Rights of Indigenous Peoples.
Indigenous peoples in those countries that refuse to recognize their existence or
their rights are sadly left to their own devices. Conscious of these limitations
Indigenous peoples prepared a statement for the World Conference on Indigenous
peoples recommending that the UN do four things:

1. Create a body with authority, with participation of Indigenous experts to

promote compliance and enforcement of the UN Declaration on the
Rights of Indigenous Peoples.
2. Take priority action to address the epidemic of violence against
Indigenous women and children, including convening a high-level
conference and appointing a special rapporteur.
3. Take action to protect Indigenous peoples’ rights to their religious and
cultural sites.
4. Take action to provide Indigenous peoples and in particular their consti-
tutional and customary governments a distinct permanent and

DRAFT
appropriate status to facilitate the participation of Indigenous peoples,
especially their governments, in UN activities.174

Moving states from fine statements to fine actions has proven slow.While over 190
states have signed the UN Declaration on the Rights of Indigenous Peoples,
International Labour Organization Convention 169, which is directly binding, has
only 22 ratifications to date. The capacity of the Nagoya Protocol to protect
Indigenous peoples’ rights over traditional knowledge has been seriously ques-
tioned, while draft instruments at the WIPO-IGC promote intellectual property
style proprietary rights regimes, which Indigenous peoples have opposed from the
outset.175 Considering the dwindling returns from participation in international
forums, Indigenous peoples may well consider what other avenues are open to
secure their rights to self-determination and to their legal regimes. Potentially, the
most effective form to secure these rights will be to exercise them primarily at a
local level, but Indigenous peoples can also exercise their role as lawmakers at
transnational, regional and international levels. Demonstrating self-determination
in their role as lawmakers Indigenous peoples can, for example, begin to write their
own international legal instruments and establish their own institutions and
modalities for extending their jurisdiction over actions that affect their rights and
interests. Amongst possible actions they may take are: the establishment of a perma-
nent coordinating secretariat to enhance participation in international decision
making; development of national, people-wide, transnational and international
protocols and self-statements of the law; establishment of an indigenous alternative
dispute resolution mechanism for the processing of conflicts involving Indigenous
peoples and the state and or corporate interests and colonists; establishment or
204 Intercultural equity and justice

identification of an indigenous court capable of exercising universal jurisdiction in

cases of genocide and crimes against humanity; and the establishment of a world-
wide network of indigenous and non-indigenous lawyers prepared to work on a
pro bono basis to support indigenous rights. These issues merit consideration in
turn.
First, Indigenous peoples’ participation in international law making is largely of
an ad hoc basis. Representation is often dependent on external funding and partic-
ipation of key indigenous negotiators cannot always be assured. Establishing an
institution with the purpose of coordinating and enhancing Indigenous peoples’
participation in international law and policy making could help secure greater
continuity and best use of available resources to promote the collective interests of
Indigenous peoples. This might take the form of an international coordinating
body, along the lines of the Indigenous Global Coordinating Group for the 2014
UN World Conference on Indigenous Peoples but with a permanent secretariat
and a mandate to facilitate involvement in international forums in general. Over
time such a body might assume greater responsibilities including coordinating the
development of policy papers, reports and other inputs to help influence interna-
tional decision making. One of the key tasks for an international coordinating body
of this kind would be to develop a strategy and modalities to enhance the partici-
pation of the widest number of Indigenous peoples and their individual members

DRAFT
in consultation processes relating to the development of international law. This
might include the development of a global system of information dissemination
and retrieval where information can be rapidly disseminated from the international
to the national to the local level as quickly as possible and any suggestions, criti-
cisms and proposals channelled back to those indigenous representatives
participating directly in negotiations.
Second, Indigenous peoples have extensive experience with the development of
local biocultural protocols and self-statements of the law. Development and circu-
lation of biocultural protocols tends to raise the profile of indigenous and local
community rights at the local and national level. Greater impact is likely if
Indigenous peoples were to develop protocols at the national, people-wide or
transnational level. Shifting the development of protocols to a higher level will
strengthen its place as a soft law instrument – in some cases protocols and self-state-
ments of the law may be held to be binding legal instruments – and provide states
and third parties with clear direction on what is and what is not considered appro-
priate for dealing with Indigenous peoples. Protocols and self statements also serve
to provide Indigenous peoples with a clear standard as a baseline for their dealings
with outside parties, strengthening community links and building greater awareness
of their own customary laws and practices.
In their role as international law makers Indigenous peoples might well consider
the potential merits of developing their own international legal instruments in the
form of Global Indigenous Protocols or self-statements of Indigenous law.
Developed and adopted by Indigenous peoples and nations, legal instruments of
this nature could serve as a clear statement of the rights and duties Indigenous
peoples consider they hold based on their own customary laws and underlying
 Intercultural equity and justice 205

traditional legal principles, articulated in the context of their present day reality.
Development of such a global document might draw on background work for the
World Conference of Indigenous Peoples and the earlier Working Group on
Indigenous Populations, as well as the work of the UN Permanent Forum and the
Expert Mechanism on the Rights of Indigenous Peoples. It could also draw on the
numerous indigenous declarations made in international forums over the last
twenty or thirty years, as well as on widely shared fundamental principles of indige-
nous law. Instruments of this kind could become highly influential, especially
where they are built upon common legal principles and provide clear guidance on
Indigenous peoples’ perspectives on the extent of their rights over land, resources
and cultural heritage.A protocol of this nature could serve as an invitation for states
to engage more respectfully with indigenous law in accordance with existing inter-
national and national legal obligations.
Third, Indigenous peoples have the experience and the capacity necessary to
establish their own national, regional and/or international alternative dispute reso-
lution bodies for both civil and criminal matters.The widespread failure of national
and international courts to provide any enforceable redress for Indigenous peoples
that have suffered the impacts of oil industry activities, signals the need for an alter-
native approach. Building on traditional Indigenous systems of restorative justice,
an Indigenous alternative dispute resolution body could offer binding arbitration

DRAFT
to Indigenous peoples and corporate, state, research and other bodies. Manned by
Indigenous peoples versed in customary law and experts in international arbitra-
tion a dispute resolution body of this nature could become a favoured forum for
dealing with disputes between corporations, Indigenous peoples, research institu-
tions, state bodies, etc. The potential to reduce costs and the adoption of a
non-adversarial restorative justice approach would provide a welcome alternative
to protracted litigation in the courts.
Fourth, as described earlier, Indigenous peoples may work together to identify
and support an indigenous court capable of assuming universal jurisdiction in cases
of genocide and crimes against humanity. Potential locations in which an
Indigenous court might be in a position to assume universal jurisdiction would be
Nunavut, Greenland and Bolivia. Indigenous peoples may also decide to pool their
collective jurisdiction to establish superior levels of indigenous legal hierarchy,
thereby retaining to the greatest extent possible the rule of Indigenous peoples over
their own peoples, lands, resources and culture.
Finally, for Indigenous peoples to affect the law they must be able to show they
can bring pressure to enforce it.This ability is hampered by a lack of capacity and
funding. Organizations providing pro bono legal support can help here. Examples
of collaborative networks of lawyers providing pro bono support to one another
and to Indigenous peoples include the Environmental Law Alliance Worldwide (E-
Law), which provides an avenue for exchange of knowledge, experiences and
strategies for the protection of the environment.176 The Public Interest Intellectual
Property Association (PIIPA) has created a network of lawyers prepared to give pro
bono legal advice on intellectual property issues. A similar organization might be
developed to harness existing avenues of pro bono support and to develop a new
206 Intercultural equity and justice

infrastructure bringing together both indigenous and non-indigenous lawyers, to

provide legal support to Indigenous peoples whose environmental, social, cultural
or economic security is threatened by the activities of the state, corporate bodies
or colonization. In many cases the level of support required would be based on
exchanges of experiences between lawyers on case law, strategies employed and
comparative experiences, in the defense of indigenous rights.To support such work
a website of Indigenous law and relevant case law on the protection of Indigenous
rights might be established. An organization of this nature would need to build a
fund capable of financing emergency legal support where necessary.
The notion of Indigenous peoples’ law bringing new ideas and concepts to a
tired body of positive law is not, De Sousa Santos argues:

an absurdity, it is probably mere cunning of historical reason if, as it withers

away, modernity gets its last grain of truth or future from precisely those
people whose truth and future it has savagely suppressed.

Times have, indeed changed. No longer can Indigenous peoples’ regimes be seen
as backward, uncivilized, pre-modern relics, they are now to be seen as dynamic,
adaptive systems of law resting, at least in some cases, on highly developed legal
philosophies that can illuminate international legal governance and the promotion

DRAFT
of human rights.
Custom, with its feet in nature and its head in spirit brings to the law what it
has always brought: the wisdom of the people, the knowledge of the elders, the
calm of longevity, the strength of numbers.177 Custom helps to ground legal gover-
nance in the land, in culture, in people and community. Without a sense of
community, lost in the trap of individualism, humankind is in danger of losing the
emotional and spiritual safety net that goes with belonging and can never come
from owning. Customary law, with its inherent qualities of reciprocity, hospitality
and responsibility can help to bring back the sense of responsibility and commu-
nity that grounds belonging. It is not a replacement for legislative decision making,
it is the complement without which equity, justice, and collective well-being may
forever remain beyond our collective reach.178
In closing
Traditions for the future

Despite centuries of marginalization, distortion and modification, customary law

has survived as an important and dynamic source of law in many parts of the world.
Although there may be cases where customary law regimes remain in a pristine
format these are the exception rather than the rule. In most cases, customary law
regimes have evolved in response to changing social and political realities and
needs, or as the result of modification by or in response to external forces such as
colonization, organized religion, national and international law and commercial
markets. A capacity for reflection and modification to meet new challenges and

DRAFT
respond to changing spiritual, moral, cultural, social, economic and environmental
conditions is a trait required of all legal regimes that wish to maintain their legiti-
macy and effectiveness as tools for social regulation. The continuing relevance of
customary law regimes across the centuries is a testament to their inherent capac-
ity for such reflection and modification.
Indigenous peoples’ legal regimes, which are not exclusively customary in
nature, have been and continue to be flexible systems of local governance capable
of adapting to changing needs and realities and, where necessary, incorporating
elements of national law or foreign legal principles.Their adaptability has been key
to their survival; it is also the source of their diversity. This diversity makes
Indigenous peoples’ legal regimes a rich source of living customary law, which has
evolved over centuries in response to a myriad of challenges and opportunities,
while almost always retaining a strong spiritual link to the land, to the Earth and
to the divinity in nature.This spiritual link is retained by many Indigenous peoples
through their close attachment to their sacred places and the lived landscapes and
resources that are the basis of their subsistence, and of their cultural identity. That
closeness and sense of belonging to the land and the living and inanimate ‘essences
of life’ conceived in the wonderfully evocative indigenous prayerful greeting ‘all my
relations’ is something those divorced from the land and sense of cultural belong-
ing can only imagine.
Indigenous peoples in many parts of the world have suffered under genocidal
policies that have pushed them off their lands, broken their links to location, taken
their children away and sought to undermine their cultures, destroy their beliefs
and wipe out their languages.The Irish poet and scholar John O’Donohue vividly
describes the terrible loss that befalls a people whose language is erased. In his
208 In closing

words,‘[w]hen you steal a people’s language, you leave their soul bewildered’.1 This
sense of bewilderment of soul loss is the lot of peoples displaced from their home-
lands, who have lost what Māori call their Whakapapa, the genealogy of belonging
inscribed in cultural identity and the links to land, sea and outer universe.2 It is the
lot of peoples whose lands and resources have been destroyed in the name of
progress, or who have been deprived of their means of subsistence by war, famine,
land grabs or environmental destruction. The severing of primordial links to land
and traditional resources creates a rupture in community, in cultural identity and
eventually in belonging.Without belonging that sense of duty of stewardship that
inscribes Indigenous peoples’ links to their lands and resources is absent. Restoring
a sense of individual and collective responsibility for the Earth is crucial to protec-
tion of the global environment, reducing human induced climate change and
redirecting resources to those in need. Indigenous peoples’ customary laws imbued
with notions of responsibility and stewardship can help frame the laws and policies
needed to achieve these ends.
Indigenous peoples’ customary legal regimes are not the panacea for the world’s
ills, but they must be part of the solution. Customary law has been around a long
time and it is fair to say it is going to be around for a long time to come.The sooner
the legal profession, legislators and the wider populace come to terms with that fact
and embrace the rich legal diversity of Indigenous peoples the sooner that diver-

DRAFT
sity can help enrich our national and international legal systems.
In closing I want to return to my Irish roots and reflect on the manner in which
the Irish people were left bewildered during 800 years of colonial rule that sought
to kill their language, laws and spirit. In the years following independence, Irish
literature, music, dance and song has risen to great heights, the language too has
revived. However, a majority of the nation’s population has lost Gaelic and its
mysteries from their daily lives. As the Irish people prepare to celebrate the 100th
anniversary of the 1916 Easter Rebellion, the catalyst for eventual Irish liberation,
the populace is once more bewildered. This time the soul loss has its roots in the
myth of the Celtic tiger and the truth of the Celtic economic crash. The boom
years undermined the traditional sense of community in the face of rampant indi-
vidual aggrandizement and the crash killed all illusion of accountability. In both the
boom and bust the inherited colonial legal system spectacularly failed to protect
the populace from the negative impacts of the culture of entitlement among the
politicians, bankers and developers whose actions brought about the crises.Where,
one may well ask, were the laws necessary to ensure accountability or fiduciary
responsibility to community? Where was the flexibility in the legal system to draw
on underlying principles of law to construct a notion of ‘fiduciary responsibility’ as
the Navajo courts had done through a reading of the ‘Hero Twins’ story. It is not
hard to imagine ancient Irish law providing similar customary based principles of
accountability to community.The great store of ancient Irish law found codified in
the Senchas Mor (Great Law Book) and other major texts of Irish laws are not,
however, embraced by the Irish legal system, itself largely a relic of colonial rule.
Although the Brehon laws did not support equality they do reflect notions of
equity and caring seen in the traditional regimes of Africa and First Nations of
 In closing 209

North America.3 While the codified texts that have come down to us froze the
Irish laws in a particular place and time Brehon law continued to evolve and to be
applied in different parts of the country for hundreds of years thereafter. For that
reason, it may prove even more revealing to search out the principles of law to be
found in Ireland’s rich lore, set out in tales, poems and songs of the people.
A search for decisive values and principles in traditional Irish law is not intended
as an academic historical exercise. Rather it is proposed as a necessary step in the
review of the inadequacies of the existing legal order and the identification of
traditional principles of Brehon law on issues such as community, responsibility,
accountability and unity with nature, that may be incorporated into a restructured,
decolonized Irish legal vision. This would not be the first time in recent history
that the Irish people have turned to Brehon laws as a means to decolonize the legal
system. In 1919 the Republican movement established what were known as the
Sinn Fein courts, which ran parallel to the English state courts, applying a mixture
of Brehon Law, the Napoleonic Code or Roman Law, while prohibiting any cita-
tion of English legal textbooks in the court.4 Although this tentative effort to
reinstate Brehon law as part of the Irish legal system failed, it allowed the Irish to
feel once again that they were ruled, even if for a short time, by ‘Irish ways and
Irish laws’.5
For those that question the value and the viability of visiting a distant and largely

DRAFT
forgotten legal past in the search for guidance for the future, it is hoped this book
may stimulate a willingness to put aside prejudice in favour of inquiry. In this vein,
it is inspiring to consider the experience of the Moriori people of the Chatham
Islands, in the South Pacific, who have overturned hundreds of years of oppression
and denial of their existence to recover and consolidate their own customs, laws
and traditions.6 Their leaders such as Maui Solomon, a Moriori barrister, brought
up in an educational system that denied the existence of a Moriori people, have
fought against incredible prejudice in order to secure formal state recognition of
their existence as a distinct people.Their commitment and success in doing so is a
salutary example for all those peoples who dream of decolonization at depth and
a recovery of their ancestral roots and the link with the land.When that link is lost,
the land, the source of life, loses its rights and becomes a mere resource for
exploitation, devoid of life, devoid of context, an object rather than a subject of the
law.7 That unfortunately is where many of us find ourselves now. Detached from
the land, trapped in a development model that fuels unsustainable growth8 and the
destruction of the sense of community and belonging that Indigenous peoples
fight so strongly to retain.The question for each and every one of us is do we stay
on this destructive path or do we change track. That’s both an individual and a
collective challenge.
Being prepared to change our own views towards legal governance, towards our
notions of development, of the land, of the Earth and our relationship to it, is key
to our own survival and our capacity to hand on to future generations their legit-
imate inheritance. For the legal profession and for Indigenous peoples and all those
who work with them or whose activities may affect their rights, it is crucial to get
a truly balanced opinion on the nature of customary law, its role in Indigenous
210 In closing

peoples’ legal regimes and in securing their human rights. It is also necessary to
understand that customary law is not to be got around, ignored or denigrated. It is
a formal part of the law. It is law and it is binding. Failure to accept its place in legal
pluralism and in national and international regulation can only lead to conflict.
Embracing legal diversity, albeit with qualifications where it conflicts with funda-
mental human rights, is the future of law.
This work has presented a kaleidoscopic view of Indigenous peoples’ custom-
ary legal regimes and their interfaces with national and international law and
institutions.What has been presented is a series of snapshots each one of which is
a door into a world of culture, difference, diversity, opportunity and challenges. Too
brief to plumb the depths of each regime its nature, form and underlying princi-
ples, this work can only give a glimpse of the reality and immense potential and
problematic aspects of specific customary legal regimes. What it sought to do was
to raise awareness of the significant role customary law plays in local, national and
international legal governance. The breadth of that role, the multiple forms of state
and international recognition of Indigenous and tribal peoples’ rights to their legal
regimes and of states obligations to ‘respect, protect and fulfil’ those rights, provides
strong evidence that these rights and obligations have crystallised as norms of
customary international law.
Hopefully it has also raised awareness of the hidden potential of customary law

DRAFT
for the future development on Indigenous societies and their influence on legal
governance. For some, it may also raise questions regarding the potential role
customary law has to play in the recovery of the sense of community in society and
of participative democracy, eroded by corporate and state wedding to trade over
environment and profit over humanity. The challenge now is for the legal profes-
sion and others to see just what customary law adds to the legal order rather than
what it takes away. In this way intercultural justice and equity may make us all a
little richer.
Notes

In opening: Ever living law

1 Professor Dáibhí Ó Cróinín, pers. comm, Galway, June 2010 Brehon law was success-
fully.
2 Moore v Attorney General [1929] I.R. 191 and [1934] I.R. 44 [The Erne Fishery Case].
3 Mohr (2007) 262 et Seq.
4 The Philippines has adopted groundbreaking legislation which recongises the primacy
of customary law in prior informed consent processes see s 2(f ) NCIP Administrative
Order No. 3 Series of 2012 The Revised Guidelines on Free and Prior Informed
Consent, available at (FPIC) and Related Processes of 2012. S 38 makes customary law

DRAFT
applicable to third parties. Available at: http://herbs.ph/attachments/article/
375/Revised%20guidelines%20on%20fpic%20and%20related%20processes%20of%20
2012.pdf [accessed 17 July 2014].
5 Kennedy (2001), 14 July.
6 Diamond (1999) 53 et seq.
7 See Savanna Fire Management: Mitigation and Sustainable Development Opportunities
for Developing Countries. Australian Government Factsheet
http://www.unutki.org/downloads/File/Climate%20Change%20documents/Aus%20
Govt%20Savanna%20Fire%20Management%20Initiative%20Fact%20Sheet.pdf
[accessed 126 July 2014].
8 See Narby (1999).
9 Pers. Comm. George Gaymarani Pascoe, 25 June 2014, 2nd World Indigenous Legal
Conference, Brisbane 25-27 June.
10 Serres (1990) 25.
11 See Conditions for entry into the Fianna, available at http://www.shee-eire.com/
Magic&Mythology/Warriors&Heroes/Armies/Fianna/Page1.htm [accessed 16 July
2014].
12 Lady Gregory (1970 [1920]).

Introduction
1 McHugh (2011).
2 International Labour Organization Convention 169 on Indigenous and Tribal Peoples
in Independent Countries, (ILO Convention 169), 27 June 1989. Available at
www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INST
RUMENT_ID:312252 [accessed 16 March 2014].
3 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Available at www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf [accessed 19
March 2014].
212 Notes

4 Borrows (2010), 260.

5 Murphy (2007).
6 See generally, Glenn (2000). Glen utilizes the word chthonic to describe people who
live in or in close harmony with the earth and says that since all people of the earth are
descended from people who were chthonic ‘all other traditions have arisen in contrast
to chthonic tradition’, 57–8.
7 Smith (1903), 257.
8 Callies (2005); Cromartie (2007).
9 Esmaeili (2009).
10 Glenn (2000).
11 von Benda-Beckmann and von Benda-Beckmann (2006).
12 Roy (2005), 9.
13 Richtersveld Community and others v. Alexkor Limited and the Government of the Republic of
South Africa No 488/2001 (24 March 2003).
14 UNPFII (2007), 12.
15 Ibid.
16 von Benda-Beckmann and von Benda-Beckmann (2013).
17 See generally, Bederman (2010).
18 Morgan (2010), 166–7; see discussion on custom in contracts in Bederman, (2010),
80–90, where he concludes that ‘Custom provides a realistic, although certainly not
frictionless or costless, mechanism for matching commercial expectations with
commercial realities’, 90.
19 Woodman (2007), 379; cited in Nafziger, Kirkwood Paterson and Dundes Rentlen
(2010), 166–7.

DRAFT
20 Bederman (2010), 57.
21 Chirayath, Sage and Woolcock (2005), 2.
22 ICHRP (2009).
23 Chanock (2005).
24 Van Notten (2005).
25 Ubink and van Rooij (2011).
26 World Bank (2006), 159.
27 Vargas Simojoki (2011); Pimentel (2010).
28 Tobin (2013c), 9.
29 Chirayath, Sage and Woolcock (2005), 3.
30 See generally, Cuskelly (2012).
31 Roy (2005), 7.
32 Ibid., 8–9.
33 Pirie (2005), 24–5.
34 See, for example,World Bank (2006).
35 Bennett (2006).
36 Stavenhagen (1990), 28.
37 Chirayath, Sage and Woolcock (2005), 1.
38 Perreau-Saussine and Murphy (2007).
39 Bederman (2010).
40 Perry (2011). Alexander, Hardison and Åhrén (2009).
41 Orebech et al. (2005), n.213.
42 See, for example, Isser (2011). See also three IDLO publications: Ubink (2011a); Harper
(2011a); Harper (2011b); all available at: www.idlo.int/english/WhatWeDo/
Research/LegalEmpowerment/Pages/ThreenewIDLObooks.aspx [accessed 9 January
2014].
43 Nielsen and Zion (2005); Pankhurst and Assefa (2008).
44 Dundes Rentlen (2004).
45 Cornell and Muvangua (2012); Fenrich, Galizzi and Higgins (2011).
46 Borrows (2010); Fenrich, Galizzi and Higgins (2011); Hinz (2009); Bennett (1991).
 Notes 213

47 Black (2011).
48 Australia Law Reform Commission (1986b); Law Reform Commission of Western
Australia (2006); Pankhurst and Assefa (2008).
49 Clark (2010); Zorn and Corrin Care (2002).
50 Austin (2009).
51 ICHRP (2009); Pimentel (2010), 1–28.
52 M.Tatum, pers. comm., 12 June 2011.Though still low these numbers are up from the
mere 17 law schools offering instruction in Indian law in 1996. Strickland andValencia-
Weber (1996), 166.
53 Borrows (2010), 230.
54 Hinz (2009), 116–21.
55 See, for example, UN Declaration on the Rights of Indigenous Peoples, Article 34.
56 Bederman (2010), 3.
57 Ibid., 53.
58 Woodman (1999), 19.
59 Murphy (2007), 75.
60 Porter (2007), 100.
61 Ibid.
62 Borrows (2010), 12.
63 Desuetude refers to the process whereby statutory measures become inapplicable due
to the failure of those supposedly bound by the relevant law to comply with their
provisions.
64 Tobin and Taylor (2009), 7.
65 Ibid.

DRAFT
66 Borrows (2010).
67 Tobin and Taylor (2009), referring to the comments of Gabriel Muyuy Jacanamejoy,
Director of the Colombian Presidential Program for Development of Indigenous
Peoples, 7.
68 Yazzie (2008), 49.
69 Yazzie (1994), 187.
70 Tatum (2007), 106.
71 Makec (1988); cited by Hinz (2009).
72 Dundes and Dundes (1994), 3.
73 Ibid., 4.
74 Glenn (2000), 57.
75 Ibid.
76 Cruz (2009), 317.
77 Perry (2011), 47.
78 ILO Convention 169, Article 8.
79 Ibid., Article 5.
80 See generally, Charters and Stavenhagen (2009).
81 See, for example, McRae et al. (2009), 67.
82 Chanock (2005), 342.
83 Borrows (2010), 46.
84 Porter (2007), 91.
85 Murphy (2007), 64–5.
86 Bederman (2010), 25–6.
87 Woodman (1999), 19.
88 Rosenne (1984), 55. Rosenne defines customary international law as ‘law derived from
the consistent conduct of states acting out of the belief that the law required them to
act that way’.
89 Smelcer (2006), 304.
90 Borrows (2002).
214 Notes

1 Customary law in context

1 Murphy (2007).
2 Murphy claims that philosophical jurisprudence has since the time of Plato rested ‘upon
three fundamental concepts of order and three allied concepts of law: the order intrinsic
to human nature grounds the natural law, the order found in informal social practices
grounds customary law, and deliberately stipulated order grounds enacted law’ (2007), 53.
3 Ibid., 57.
4 Van den Bergh (1994), 6.
5 Schiller (1994), 37.
6 Murphy (2007), 64.
7 Schiller (1994), 36.
8 Cicero, De Inventione 2.53.160, cited in Murphy (2007), 75.
9 Van den Bergh (1994), 7.
10 Schiller (1994), 38.
11 Smith (1903), 281.
12 See below at footnote 69 and accompanying text.
13 See Bennett (2008).
14 Ibbetson, David (2007), 151–2.
15 Ibid., 152.
16 Ibid., 156.
17 Ibid.
18 Ibid., 158.
19 Ibid.

DRAFT
20 Bennett, (2008).
21 Porter (2007), 87–91.
22 Smith (1903), 266.
23 Porter (2007), 82.
24 Smith (1903), 259.
25 Ibid., 264.
26 Ibid., 265.
27 Hale (1739).
28 Cromartie (2007), 203.
29 Brown (1905), 564.
30 Blackstone (1765–1769), vol. 1: 67.
31 Cromartie (2007), 204.
32 Ibid.
33 Woodbine (1968-78) vol. II: 19, cited in Cromartie (2007), 205.
34 Woodbine (1968-78), vol. II: 22, cited in Cromartie (2007), 206.
35 Christopher St. Germain, The Doctor and Student (1518), electronic edition (Lolang
Institute, 2006), dialogue 1, ch.7. www.lonang.com/exlibris/stgermain/ (accessed 8
December 2014).
36 Woodman (1999), 18.
37 Bederman (2010), 25.
38 Simpson (1995), vol. I: 120.
39 Arnold-Baker (1994), 35, cited in Callies (2005), 160.
40 Brown (1905), 563.
41 Ibid., 566.
42 Ibid.
43 See Watson (1984), 566.
44 Salmond (1902), 154.
45 Murphy (2007), 54–5, 61.
46 Opinio necessitatis may be likened to the notion of opinio juris (a sense of legal obliga-
tion), which is necessary for the crystallization of customary international law.
 Notes 215

47 Halsbury’s Laws of England (1998), vol. 12 (1).

48 Callies (2005).
49 (1928) 6 NILR 19; [1931] A.C., 662 at 673.
50 Cromartie (2007), 203-4.
51 Chanock (1985), 4.
52 Gilbert (2006), 4.
53 Ibid., 6.
54 Williams (1990), 173–4.
55 Anaya (2004), 16.
56 Commentaria Innocenti Quarti … super libros quinque Decretalium 3.3.4.8, cited in Tierney
(2007), 107.
57 Gilbert (2006), 4.
58 Tierney (2007), 107.
59 Ibid.
60 Ibid.
61 See Koskenniemi (2009), 10.
62 Cited in Williams (1990), 99.
63 Tierney says that Vitoria’s writings in this area demonstrate his own lack of conviction
as to the veracity of some of these arguments (2007), 109.
64 Gilbert (2006), 9.
65 Williams (1990), 103.
66 Grotius (2005 [1625]), 430.
67 Gilbert (2006), 9.
68 Anaya (2004), 19.

DRAFT
69 Ibid.
70 Yrigoyen (2006).
71 Ibid., 540.
72 Ibid., 541.
73 Ibid.
74 Ibid., 542–3.
75 Valcarcel (2004), 17.
76 Mitchell (1997) and Mitchell (2003).
77 See ‘Précis by Sir Roger Casement of the Confidential Report to the Prefect of Loreto
by Dr, Romulo Paredes, Upon the Work of the Judicial Commission Dispatched by
the Peruvian government to the Putumayo’ in Mitchell (2003), 700–1.
78 Yrigoyen notes that Argentina did not give constitutional recognition to Indigenous
peoples’ rights until 1994 (2006, 542).
79 ILO Convention 169, Article 15.2.
80 Williams,(1990), 136.
81 Walter Devereux, Earl of Essex, cited in Thornberry (2002), 70.
82 Williams (1990), 139.
83 McHugh (2004), 71.
84 Ibid., 141.
85 Ibid., 143.
86 Kelly (1988), 231.
87 Ibid., 225.
88 McHugh (2004), 72.
89 Hale (1971 [1739]), 49.
90 McHugh (2004), 72.
91 (1608) Davis 28.
92 Dorsett (2002).
93 Elias (1962), 104–5.
94 McHugh (2004), 73.
95 Ibid.
216 Notes

96 Ibid.
97 The Brehon law lives on in spirit if not in practice in the Irish Dail (parliament) where
the deputy to the Taoiseach (prime minister) is known as the Tánaiste (heir to chief-
tain).
98 MacManus (1966), 455.
99 Sowell (1981) 81; cited in Rommen (1998) n.3.
100 Williams (1990), 147.
101 McHugh (2004), 71.
102 Thornberry (2002), 79.
103 See McHugh (2004), 111; see also at 202, n. 362 referring to treaties in Africa he cites
the SCI list for the following number of treaties: Belgium 3, France 5, Germany 75,
Britain 85, Italy 327 and the Netherlands 339.
104 Thornberry (2002), 79.
105 McNeil (2009), 258.
106 Asch (2000), 149.
107 Walters (2009), 27. Wampum are “small cylindrical beads made from shells by North
American Indians as money or oranament etc.: they were of two varieties, white and
the more valuable black (or dark purple)”. www.collinsdictionary.com/dictionary/
american/wampum [accessed 17 February 2014].
108 Walters (2009), 28.
109 Royal Proclamation of 7 October 1763, in Kennedy (1930), 35–8.
110 Walters (2009), 28.
111 McHugh (2004), 106.
112 Walters (2009), 28–9.

DRAFT
113 The British referred to the Haudenosaunee as the Confederated Iroquois Nations.
114 Borrows (2002), 126.
115 Williams (1990), 327.
116 McHugh (2004),107.
117 Ibid.
118 Oppenheim (1920), 26.
119 Tobin (2010), 16–24.
120 Anaya (2004), 30.
121 Asch (2000), 151.
122 In Re: Southern Rhodesia (1919) AC 210 (PC), at 233, cited in Asch (2000), 151.
123 Calder et al. v. Attorney General of British Colombia (1970), 74 WWR 481 (B.C.C.A).
124 Asch, (2000), 152.
125 Sheleff (1999), 100.
126 Halewood (2005), 141.
127 Gilbert (2006), 18.
128 Johnson v. McIntosh 21 US (8 Wheat.) (1823) at 587, Available at supreme.justice.com/
cases/federal/US/21/543/case.html. See also Williams (1990), 314, where he refers to
Marshall’s findings that Spain, France, Portugal, England and Holland all based their
territorial rights in the New World on the basis of discovery.
129 Johnson v. McIntosh 21 US (8 Wheat.) (1823), 590. For more detailed discussion of
Johnson v. McIntosh see Robertson (2011); McHugh (2004), 142–9.
130 Johnson v. McIntosh 21 US (8 Wheat.) (1823), 591.
131 Cherokee Nation v. Georgia 30 US (5 Pet) 1 (1831); Worcester v. Georgia 31 US (6 Et.)
515 (1832).
132 Cherokee Nation v. Georgia 30 US (5 Pet) 1 (1831).
133 For discussion of issues of indigenous sovereignty see Dussias (1993); Lenzerini (2006).
134 Letter from Martha Montour of the Kahnawake Mohawk Nation to Robin Paul
Malloy (27 February 1992) cited in Dussias (1993), 97.
135 Asch, (2000), 154.
136 R v. Sparrow (1990), 1 S.C.R. 1075, at 13.
 Notes 217

137 Asch (2000), 155.

138 Ibid., 151.
139 Norgen, cited in Sheleff (1999), 102.
140 Williams, (1990), 317.
141 Ibid.
142 Frichner (2010a), 344.
143 UNPFII (2010).
144 City of Sherill, NY v Oneida Indian Nation of NY 544 US 197, 203 n.1 (2005).
145 Frichner (2010b), 32–3.
146 ICHRP (2009), 7–8.
147 Chanock (2005), 341.
148 Ibid.
149 Ibid.
150 Ibid., 341–2.
151 Ibid., 342.
152 Spear (2003), 9.
153 Ibid., 12.
154 Ibid.
155 Ibid., 13.
156 Ibid., 27.
157 Makec (1988), cited in Hinz (2009). Recognition of tribal customary law in South
Sudan was part of a strategy to secure the allegiance of different ethnic groups to the
new state. It has not however prevented the country from falling into inter-ethnic
violence ‘pitting Dinka forces controlled by the government against ethnic Nuer.The

DRAFT
NGO International Crisis Group estimated that up to 10,000 people had been killed
by January, and the UN estimated in March that over one million had been displaced.’
Minority Rights Group International (2014), 3.
158 Chanock (2005), 346.
159 Ibid., 348.
160 Ibid., 353.
161 Interview with unnamed aboriginal respondent cited in Law Reform Commission of
Western Australia (2006), 64, citing LRCWA,‘Project No. 94,Thematic Summaries of
Consultations – Manguri’ (4 November 2002), 3.
162 Yazzie (1994), 175.
163 Ibid., 176.
164 Glenn, (2000), 68.
165 Cane (2002), 69.
166 Bell (1986), Para. 37.
167 McRae et al. (2009), 9.
168 Zion (1988), cited in McRae, (2009), 96.
169 Roy (2005), 6.
170 Mayéns cited in Reynolds (2006).
171 Bennett (1991), 6.
172 Hamnett (1975), 6.
173 Ibid.
174 Ibid.
175 Bennett (1991), 6.
176 Tsosie, Rebecca (1997), 5.
177 Swiderska (2006a), 14 [emphasis in the original].
178 Ibid.
179 Blackstone cited in Tsosie (1997), 7.
180 Tsosie (1997), 397.
218 Notes

2 Self-determination in practice
1 United Nations Declaration on the Rights of Indigenous People, Article 3.
2 Echo-Hawk (2013), 82.
3 Henricksen (2001).
4 International Labour Organization Convention 107 Concerning the Protection and
Integration of Indigenous and other Tribal and Semi Tribal Populations in
Independent Countries, 26 June 1957. Available at: www.ilo.org/dyn/normlex/
en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C169
[accessed 2 May 2014]. Convention 107 is in force for Angola, Bangladesh, Belgium,
Cuba, Dominican Republic, Egypt, El Salvador, Ghana, Guinea-Bissau, Haiti, India,
Iraq, Melawi, Pakistan, Panama, Syrian Arab Republic,Tunisia.
5 International Labour Organization Convention 107, Article 11.
6 Ibid., Article 7(2).
7 Ibid., Article 7(1).
8 International Labour Organization Convention 169 on Indigenous and Tribal Peoples
in Independent Countries, 27 June 1989. Available at www.ilo.org/dyn/normlex/en/
f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312252
[accessed 16 March 2014].
9 As of June 2014, 22 countries had ratified ILO Convention 169. Argentina, Bolivia,
Plurinational State of, Brazil, Central African Republic, Chile, Colombia, Denmark,
Dominica, Ecuador, Fiji, Guatemala, Honduras, Mexico, Nepal, Netherlands,
Nicaragua, Norway, Paraguay, Peru, Spain,Venezuela, Bolivarian Republic of.
10 ILO Convention 169, Articles 2, 3, 4 and 5.

DRAFT
11 Ibid., Articles 14, 15 and 16.
12 Ibid., Article 6.
13 Ibid., Articles 8 and 9.
14 Ibid., Articles 5, 26–31.
15 Treaty bodies are responsible for monitoring state enforcement and compliance with
relevant international treaties, States are required to make national reports to the treaty
body which acts in quasi-judicial manner emitting comments, proposals and strict calls
upon states with regard to actions believed requisite to secure compliance with treaty
obligations for which the Human Rights Committee is responsible.
16 McHugh (2004), 304.
17 Human Rights Committee, Concluding observations on Canada (April 1999) UN Doc
CCPR/C/79/Add 105 at Paras 7 and 8; Concluding observations on Australia (25 April
2000) UN Doc CCPR/CO/69AUS at Para. 10. Committee on Economic, Social and
Cultural rights Concluding observations on Canada (10 December 1998) UN Doc
E/C12/1/Add31; Concluding observations on Colombia (30 November 2001) UN Doc
E/C12/1/Add74, Paras 12 and 33; see McHugh (2004), 304.
18 CERD/C/49/CRP.2/Add.7, Para. 9.
19 Ibid.
20 Xanthaki cites a Statement of the Four Directions Council, distributed during the
1995 Commission Working Group, where they say ‘Indigenous peoples are not
geographically or economically situated in a way that makes independence particularly
attractive. Most, if not all, Indigenous peoples are consequently seeking democratic
reforms and power sharing within existing states.’ (2007, 168).
21 Anaya (2004), 109.
22 A case in point is that of Indigenous peoples in the contiguous Amazonian regions
surrounding the shared borders of Peru, Brazil and Colombia, which are threatened on
all sides by creeping colonial settlement; displacement in the face of massive energy
projects; incursions of oil and mining interests and the consequent loss of environ-
mental quality; cultural erosion and commoditisation of local economies, uncontrolled
deforestation, agro-industrial activities; and political violence.
 Notes 219

23 The notion of ‘cultural genocide’ was originally conceived by Rapahel Lemkin as

forming part of the crime of genocide, which requires an intent to destroy the group;
see Lemkin (1944). According to the UNESCO Declaration of San Jose: ‘Ethnocide
means that an ethnic group is denied the right to enjoy, develop and transmit its own
culture and its own language, whether individually or collectively. This involves an
extreme form of massive violation of human rights…
(a) We declare that ethnocide, that is, cultural genocide, is a violation of interna-
tional law equivalent to genocide, which was condemned by the United
Nations Convention on the Prevention and Punishment of the Crime of
Genocide.’
UNESCO Latin – Americas Conference, Declaration of San Jose, 11 December 1981,
UNESCO Doc. FS82/WF. 32 (1982), cited in Schabas (2009), 220. The Declaration
of San Jose refers to the destruction of culture rather than of the group and would not
require the intention to destroy the group to find ethnocide.
24 Gilbert and Doyle (2011), 295.
25 See Draft Declaration on the Rights of Indigenous Peoples, Article 7:
Indigenous peoples have the collective and individual right not to be subjected to
ethnocide and cultural genocide, including prevention of and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as
distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands,
territories or resources;

DRAFT
(c) Any form of population transfer which has the aim or effect of violating or
undermining any of their rights;
(d) Any form of assimilation or integration by other cultures or ways of life
imposed on them by legislative, administrative or other measures;
(e) Any form of propaganda directed against them.
UN Doc E./CN.4/Sub.2/1994/56. Available at: www1.umn.edu/humanrts/demo/
1994min.html#199445 [accessed 2 May 2014].
26 Gilbert and Doyle (2011), 295. Stamatopolou argues that In this era where colonial-
ism and crimes against humanity are outlawed and respect for human rights is the
prevalent moral paradigm, it cannot be permissible to extinguish cultural groups,
whether this happens through physical extermination, systematic oppression and
discrimination expropriation, forced removal or forced assimilation. (2011), 409.
27 Ethnocide is prohibited under Chapter 4 of the Republic of Ecuador Constitution of
2008.
28 See Clavero Bartolomé (n.d) Genocide and Indigenous Peoples in International Law,
where Clavero argues that, ‘regarding criminal offences and in relation to Indigenous
peoples, genocide can now be defined as any attack on political, economic, social or
cultural self-determination with the intent to destroy a people, in whole or in part’
(13). Available at: www.hrcolumbia.org/indigenous/genocide-br-en-Clavero.pdf
[accessed 17 March 2014].
29 Stamatopoulou (2011), 411–2.
30 General comment No. 21: Right of everyone to take part in cultural life (Article 15,
Para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights),
E/C.12/GC/21, 2.
31 Aurelio Cal and the Maya Village of Santa Cruz v. Attorney General of Belize; and Manuel
Coy and May Village of Conejo v. Attorney General of Belize (Consolidated) Claim Nos
171 & 172, 2007, Supreme Court of Belize (18 October 2007).
32 Kichwa Indigenous Peoples of Sarayaku v Ecuador, Judgment, Merits and Reparations,
Judgment of 27 June 2012, Inter-Am. Ct. H.R. Series C, No. 245, para 215.
33 Anaya (2004), 112.
220 Notes

34 Tobin (2011); Perry (2011), 71.

35 Imai (2009), 292–306.
36 Ibid., 292.
37 UNDRIP, Article 4.
38 Ibid., Article 5.
39 UNHRC (2011), 10.
40 Jull (2001), 46.
41 Ibid., 50.
42 Chief Justice Mahomed adressing the World Jurist Association Seminar in Cape Town
(1998) in Mokogoro (2012), 317–23.
43 Amnesty International (2010) describes the Northern Territory Emergency Response
(The Intervention) as one of the most significant human rights issues in contemporary
Australia, reflecting ‘a return to the paternalistic approach of the past and policies of
“assimilation”’.
44 Batzer (2005), 289.
45 Cherokee Nation v. Georgia, 30 US (5 Peters) 1 (1831).
46 Echo-Hawk (2013), 177.
47 Ibid.
48 US v. Wheeler 435 US 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978).
49 Borrows (2002), 69–72.
50 Turner (2000), 141.
51 Delgamuukw v. British Colombia (1997) 3 SCR 1010.
52 Turner (2000), 141.
53 Henricksen (1993), 218.

DRAFT
54 Doyle and Cariño (2013), 7.
55 Kingsbury (1998), 427.
56 Ibid., 426.
57 Daes and Eide (2000) state, ‘The “blue water doctrine” holds that the indigenous are
those people beyond Europe who lived in the territory before European colonisation
and settlement, and who now form a non-dominant and culturally separate group in
the territories settled primarily by Europeans and their descendants’. (para 25).
58 Oguamanam (2004), 198.
59 Anaya, (2004), 3.
60 Kingsbury (1998), 414.
61 Kymlicka (2011), 199.
62 Ibid., 199.
63 Ibid.
64 Kingsbury (1998), 414.
65 UNPFII (2004), 8.
66 ILO Convention 107, Article 1.1(b).
67 Ibid.
68 Ibid., Article 1.1(a).
69 Ibid., Article 1.1. This convention applies to: ‘(a) members of tribal or semi-tribal
populations in independent countries whose social and economic conditions are at a
less advanced stage than the stage reached by other sections of the national commu-
nity, and whose status is regulated by their own customs or traditions or by special laws
or regulations.’
70 Daes (1996), para 22.
71 Ibid.
72 Sheleff (1999), 32–3.
73 Martinez Cobo (1987), paras 379–82.
74 Ibid.
75 Kingsbury (1998), 420.
76 Martinez Cobo (1987), 382.
 Notes 221

77 Kingsbury (1998), 422.

78 Ibid.
79 Corntassel (2003), 90.
80 Anaya (2004), 3.
81 Daes (1996).
82 Ibid. Daes, referring to these factors, says they ‘do not and cannot, constitute an inclu-
sive or comprehensive definition, but rather represent factors which may be present, to
a greater or lesser degree, in different regions and in different national and local contexts
serving therefore as general guidance to reasonable decision-making in practice’, para
70.
83 Eide (2009), 32–47.
84 Kingsbury (1992), 389.
85 Eide (2009), 82.
86 Kingsbury (1998), 417.
87 See African Group of Experts (2007), 2, referring to The African Commission on
Human and Peoples’ Rights (2005) ‘Report of the African Commission’s, Working
Group of Experts on Indigenous Populations/Communities’, where the Commission
referred to the use of the term Indigenous peoples saying:
‘[use of the term indigenous] is by no means an attempt to question the identity
of other groups or to deny any Africans the right to identify as indigenous to
Africa on to their country. In a strict sense all Africans are indeed indigenous to
Africa … it is a term fighting for rights and justice for those particular groups who
are perceived negatively by dominating mainstream development paradigms …

DRAFT
One of the misunderstandings is that to protect the rights of Indigenous peoples
would be to give special rights to some ethnic groups over and above the rights of
all other groups within a state. This is not the case … The issue is that certain
marginalised groups are discriminated against in particular ways because of their
particular culture and mode of production … The call of these marginalised
groups to protection of their rights is a legitimate call to alleviate this particular
form of discrimination.’ 86–8.
88 Corntassel (2003), 75–100.
89 The word indigenous is defined in the Oxford English Dictionary 2nd edition as ‘[b]orn
or produced naturally in a land or region; native or belonging naturally to (the soil,
region, etc.). (Used primarily of aboriginal inhabitants or natural products).’ It gives the
root as late Latin ‘indigenus “born in a country”’. In that sense all individuals may be
seen as indigenous to the place of their birth.
90 McHugh (2004), 223–4.
91 UNDRIP, Article 34.
92 Comm. No. R6/24 Human Rights Committee (29 December 1977), UN Doc. Supp.
No, 40 (A/36/40) at 166 (1981).
93 Lovelace case, annex XVIII Communication No. R.6/24, Sandra Lovelace v. Canada, in
Official Records of the General Assembly, Thirty-sixth session, Supplement No.
40(A/36/40), annex XVIII. For an analysis of the relevant views expressed by the
Human Rights Committee see Alfredsson and de Zayas (1993), 5–6.
94 McHugh (2004), 313.
95 Ibid., 314.
96 ILO Convention 169, Articles 2, 5, 6, 7, 15, 17, 23, 27 and 28.
97 UNDRIP, Articles 5, 10, 11, 15, 17,18, 19, 27, 28, 29, 30, 32, 36, 38 and 41.
98 ILO Convention 169, Article 2, 7; UNDRIP, Article 5.
99 ILO Convention 169, Article 6; UNDRIP, Article 18.
100 ILO Convention 169, Article 15; UNDRIP, Article 27.
101 UNDRIP, Article 27.
102 Ibid., Article 15.
222 Notes

103 ILO Convention 169, Articles 27 and 28.

104 UNDRIP, Article 17.
105 Ibid., Article 30.
106 Ibid., Article 36.
107 ILO Convention 169, Article 6; UNDRIP, Article 38.
108 ILO Convention 169, Article 16; UNDRIP, Article 10.
109 UNDRIP, Article 19.
110 Ibid., Article 29.
111 ILO Convention 169, Article 15; UNDRIP, Article 32.
112 UNDRIP, Article 11.
113 ILO Convention 169, Article 16; UNDRIP, Article 28.
114 Thornberry (2002), 348.
115 ILO Convention 169, Article 6.
116 Ibid., Article 7.
117 Ibid., Article 17.
118 Pearce (2012).
119 UNHRC (2009), 37.
120 Inter-American Commission on Human Rights (2010), 109.
121 UNHRC (2009), 72.
122 Ibid., at 37.
123 Associatión Pro Derechos Humanos (APRODEH) (2011).
124 Peruvian Law No. 29785, Law of prior consultation with Indigenous and tribal
peoples recognised in Convention 169 of the International Labour Organization (Ley
del derecho a la consulta previa a los pueblos indígenas u originarios reconocido en el

DRAFT
Convenio No. 169 de la Organización Internacional de Trabajo).
125 The ‘ley de consulta’ has been held up as an example of ‘best practices’ by Special
Rapporteur James Anaya in his submission to the Expert Mechanism on ‘Some exam-
ples of good practices for Indigenous peoples’ participation in decision making:
political participation, consultation standards, and participation in development proj-
ects’ (11 March 2011), cited in UNHRC (2011), Para. 63.
126 Sentencia T-769, Constitutional Court, Colombia, (29 October 2009). Available at:
www.aida-americas.org/sites/default/files/refDocuments/T-769-09%20Consulta%20
previa%20y%20proyectos%20mineria.pdf [accessed 4 April 2014], see also Olsen 2008.
127 ILO Convention 169, Article 6.2.
128 Thornberry (2002), 349.
129 ILO Convention 169, Article 16.
130 Articles 6.3 and 7.
131 Nagoya Protocol, Article 12(1).
132 Ibid.
133 Secretariat of the Convention on Biological Diversity (2004).
134 Saramaka People v. Suriname, Inter-American Court of Human Rights, Judgment of 28
November 2007. Ser C No. 172 (see also Saramaka People, Interpretation of the
Judgment, Ser C No. 185); and Centre for Minority Rights Development (Kenya) and
Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya,
February 2010, Para. 226. Available at www.minorityrights.org/9587/press-
releases/landmark-decision-rules-kenyas-removal-of-indigenous-people-from-ancestr
al-land-illegal.html.
135 World Commission on Dams (2000). See for example Strategic Priority 1 – Gaining
Public Acceptance:
Public acceptance of key decisions is essential for equitable and sustainable water-
and energy-resources development. Acceptance emerges from recognising rights,
addressing risks,\ and safeguarding the entitlements of all groups of affected
people, particularly indigenous and tribal peoples, women and other vulnerable
 Notes 223

groups. Decision-making processes and mechanisms are used that enable informed
participation by all groups of people, and result in the demonstrable acceptance of
key decisions. Where projects affect indigenous and tribal peoples, such processes
are guided by their free, prior and informed consent.
Available at: www.internationalrivers.org/files/attached-files/world_commission_on_
dams_final_report.pdf [accessed 2 May 2014].
136 World Bank Group (2004).
137 Carino and Colchester (2010).
138 Amongst the states to which CERD has addressed the duty to consult in its conclud-
ing observation, are Canada, Indonesia, New Zealand, the Democratic Republic of the
Congo, the United States of America, Ecuador, Sweden and Namibia,.
139 UNHRC (2009), 40; Gilbert and Doyle (2011), 307.
140 CERD General Recommendation No. 23, Rights of Indigenous peoples, Para. 4(d).
141 Angela Poma Poma v. Peru, Communication No. 1457/2006. UN Doc.
CCPR/C/95/D/1457/2006, 24 April 2009, Para. 7.6.
142 Declaración Publica del Relator Especial James Anaya sobre los derechos humanos y y
libertades fundamentales de los indígenas, sobre la ley del derecho a la consulta previa
a los pueblos indígenas u Originarios reconocido en el convenio No. 169 de la
Organización Internacional de Trabajo’ aprobado por el Congreso de la Republica del
Perú, 7 July 2010. Available at: unsr.jamesanaya.org/statements/declaracion.sobre-la-
ley-del-derecho-a-la-consulta-previa-a-los-pueblos-indigenuos-peru-7-julio-2010
143 Saramaka People v. Suriname, 2007, Inter-Am. Ct. H.R. (ser. C) No. 172 (November 28,
2007), Para 134.

DRAFT
144 American Convention On Human Rights,Adopted at the Inter-American Specialized
Conference on Human Rights, San José, Costa Rica, 22 November 1969.
www.cidh.oas.org/basicos/english/basic3.american%20convention.htm
145 I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits,
Reparations and Costs. Judgment of June 17, 2005. Series C No. 125, Para 151. I/A
Court H.R., Case of Sawahoyamaxa Indigenous Community v. Paraguay. Merits,
Reparations and Costs. Judgment of March 29, 2006. Series C No. 146, Para. 135. See
also IACHR (2010), 105.
146 African Commission on Human Rights Case 276/2003 – Centre for Minority rights
Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare
Council v. Kenya (2009), Para. 291, see also Gilbert and Doyle (2011), 309.
147 Delgamuukw v. British Colombia [1997] 3 SCR 1010, Para. 168.
148 Hurley (1998), 27.
149 Aurelio Cal and the Maya Village of Santa Cruz v. Attorney General of Belize; and Manuel
Coy and Maya Village of Conejo v. Attorney General of Belize, (consolidated) Claim Nos
171 and 172, 2007, Supreme Court of Belize (18 October 2007) Para. 136 (d), at 1049.
150 World Bank, (2010).
151 See World Bank (2011), which estimates the global population of Indigenous peoples
at 300 million or 4.5 per cent of the world’s population, with almost 80 per cent of
Indigenous peoples located in Asia. The policy brief estimates that 72 per cent of
Indigenous peoples reside in China, India, Lao PDR, Vietnam, Central African
Republic, Democratic Republic of the Congo and Gabon, 3.
152 World Bank, (2010); ILO Convention 107, Article 1.1(a).
153 Carino and Colchester (2010), 425.
154 Ibid., 434.
155 Ibid.
156 For discussion of negotiating strategies and preparatory actions see Barsh and Bastien,
(1977). See also Tobin, (2002).
224 Notes

3 Where custom is the law

1 UNDRIP, Article 4.
2 Ibid., Article 5.
3 Ibid., Article 34.
4 ILO, Convention 169, Article 3.
5 Ibid., Article 4.
6 Ibid., Article 6.
7 Ibid., Article 7.
8 Ibid., Article 8.
9 Ibid.
10 UNDRIP, Articles 11, 26 and 27.
11 Ibid., Article 34.
12 Ibid., Article 3.
13 Ibid., Article 4.
14 Ibid., Article 26.
15 Ibid., Article 26.3.
16 Ibid., Article 27.
17 Ibid.
18 Ibid., Article 32.2.
19 Ibid.
20 Anaya (2009), 80.
21 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing
of Benefits Arising from their Utilization to the Convention on Biological Diversity.

DRAFT
(Nagoya Protocol). Available at www.cbd.int/abs/doc/protocol/nagoya-protocol-
en.pdf [accessed 5 December 2013].
22 Ibid., Article 12.
23 Stavenhagen (2013), 81.
24 During his time as Special Rapporteur, Professor Anaya made country reports on the
situation of Indigenous peoples in: El Salvador, Namibia, United States of America,
Argentina, New Caledonia, France, Republic of the Congo, New Zealand, Norway,
Russian Federation, Botswana, Australia, Brazil and Nepal, as well as following up on
the recommendations of the previous rapporteur on Chile and Colombia.
25 Special Rapporteur James Anaya prepared thematic reports on: the impacts of devel-
opment projects on indigenous communities; the implementation of domestic laws
and international standards to protect indigenous rights; Indigenous peoples and
education systems; the relationship between formal state law and customary indige-
nous law; international norms concerning Indigenous people. Available at
www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/ThematicStudies.
aspx.
26 Stavenhagen (2013), 92.
27 Ibid.
28 The regions are Africa;Asia; Central and South America and the Caribbean; the Arctic;
Central and Eastern Europe, Russian Federation, Central Asia and Transcaucasia; North
America; and the Pacific.
29 The UN Permanent Forum on Indigenous Issues IWGIA. Available at
www.iwgia.org/human-rights/un-mechanisms-and-processes/un-permanent-forum-
on-indigenous-issues [accessed 21 March 2014].
30 Dodson (2007).
31 John (2014).
32 Ibid., 10.
33 Study on Access to Justice with a Focus on Restorative Justice, Indigenous Juridical
Systems and Access to Justice for Indigenous Women, Children and Youth and Persons
with Disabilities, United Nations, OHCHR. Available at, www.ohchr.org/EN/Issues/
 Notes 225

IPeoples/EMRIP/Pages/Followupstudyonaccesstojustice.aspx [accessed 21 March

2014].
34 UNIPP (2011), 4.
35 Ibid., 9.
36 Ibid., at 11.
37 Ibid., at 12.
38 Law No. 300 Ley Marco de la Madre Tierra y Desarrollo Integral Para Vivir Bien.
Copy of the law in Spanish is available at www.la-razon.com/sociedad/MARCO-
TIERRA-DESARROLLO-INTEGRAL-VIVIR_0_1706229409.html [accessed 16
June 2014].
39 2014 World Conference on Indigenous peoples, IISD. Available at http://biodiversity-
l.iisd.org/events/world-conference-on-indigenous-peoples-in-2014/ [accessed 7
April 2014].
40 United Nations World Conference on Indigenous Peoples, 22–23 September 2014.
Available at http://wcip2014.org/background [accessed 22 March 2014].
41 Conference on Indigenous Peoples, United Nations Permanent Forum on Indigenous
Issues. Available at http://undesadspd.org/IndigenousPeoples/WorldConference.aspx
[accessed 1 April 2014].
42 Toensing (2014).
43 Cuskelly (2011), 6. Cuskelly categorizes constitutional provisions relating to custom-
ary law under ten headings: definitions of customary law; protection of culture; the
general protection of minority rights; institutional arrangements; self-administration;
family law; land and resource rights; codification of customary law; customary law in
the courts; and the relationship between customary law and statutory law, 24.

DRAFT
44 Constitution of the Republic of Ghana 1992, Article 11 (3); Constitution of Lesotho
1996, Section 154; Constitution of the Republic of the Marshall Islands 1979, Article
XIV, Section 1; Constitution of the Independent State of Papua New Guinea 1975,
Schedule 1(2); Constitution of Zimbabwe 1979, Section 113.
45 See Constitution of the Republic of Rwanda 2003, Art. 145.
46 Constitution of the Republic of the Gambia 1997, Section 7; Constitution of the
Republic of Singapore 1963, Article 2; Constitution of Zimbabwe 1979, Section 113.
47 Constitution of the Republic of Ghana 1992,Article 270 (1); Constitution of Lesotho
1996, Sections 45 and 46; Constitution of the Republic of South Africa 1996, Sections
211 and 212; Constitution of the Republic of Uganda 1995,Art. 246 (1); Constitution
of Zimbabwe 1979, Section 111(1); Constitution of Colombia 1991,Art. 246; Political
Constitution of Peru 1993, Article 89.
48 Republic of Bolivia Constitution 2009, Articles 289–296, 299 and 304; Republic of
Ecuador Constitution of 2008, Article 57(9); Constitution of the Republic of
Nicaragua 1987–2005,Articles 180 and 181; Constitution of the Republic of Paraguay,
Article 63; Political Constitution of Peru 1993, Article 89; Constitution of the
Republic of Slovenia 1991, Article 64; Constitution of Ukraine 1996, Article 140.
49 Rights to culture are recognized in the constitutions of more than 60 countries includ-
ing Albania,Algeria,Andorra,Armenia,Azerbaijan, Bangladesh, Belarus, Benin, Bolivia,
Brazil, Colombia, Congo, Cameroon, Ecuador, Egypt, Ethiopia, Finland, Gambia,
Georgia, Guatemala, Honduras, Hungary, Kazakhstan, Kiribati, Kyrgyzstan, Laos,
Latvia, Lithuania, Macedonia, Mongolia, Mozambique, Myanmar, Nepal, Norway,
Pakistan, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Qatar,
Romania, Rwanda, Seychelles, Slovakia, Slovenia, Solomon Islands, Somalia, South
Africa, Sudan, Sweden, Syria, Thailand, Timor-Leste, Tuvalu, Uganda, Ukraine,
Uzbekistan,Venezuela,Vietnam and Zambia.
50 Constitution of the Republic of Liberia 1986, Article 65; Constitution of the Federal
Republic of Nigeria 1999, Section 237; Constitution of the Republic of Rwanda
2003, Article 145; Constitution of the Republic of South Africa 1996, Section 39 (2).
51 Constitution of the Federal Democratic Republic of Ethiopia 1994, Article 78;
226 Notes

Constitution of the Republic of Ghana 1992, Article 125 (2) and (5); Constitution of
the Republic of Malawi 1994, Section 110(3); Constitution of the Republic of South
Africa 1996, Section 143(1); Constitution of Zimbabwe 1979, Section 18(15).
52 Constitution of the Republic of the Gambia 1997, Section 22(4); Constitution of the
Republic of Ghana 1992, Article 267; Constitution of Kenya 2010, Article 60;
Constitution of the Republic of South Africa 1996, Section 25(7); Constitution of the
Republic of Uganda 1995, Article 237; Constitution of Zambia 1996, Article 16(2).
53 Republic of Bolivia Constitution 2009, Articles 352–4, 381–3 and 384; Republic of
Ecuador Constitution 2008, Article 57(6); Political Constitution of Peru 1993, Article
66.
54 Constitution of the Republic of Nigeria 1999, Section 237 provides that at least 3
Justices of the Court of Appeal are to be learned in customary law.
55 Constitution of the Republic of Ghana 1992, Article 272; Constitution of Botswana
1966,Article 88(2); Provisional Constitution of the Federal Republic of Somalia 2012,
Article 111I.
56 Constitution of the Independent State of Papua New Guinea 1975, Schedule 2.1, 2.2
and 2.10; Constitution of the Solomon Islands 1978, Schedule 3, Section 2 (1) and
Section 3 (1).
57 See for example, Constitution of the Republic of Rwanda 2003, Art. 201: unwritten
customary law remains applicable as long as it has not been replaced by written laws,
is not inconsistent with the Constitution, laws and regulations, and does not violate
human rights, prejudice public order or offend morals cited in Cuskelly (2010), 41.
58 Constitution of the Republic of Malawi 1994, Section 200; Constitution of the
Republic of Uganda 1995, Art. 2(2); Republic of Bolivia Constitution 2009, Article

DRAFT
190 II; Republic of Ecuador Constitution 2008, Article 57(10); Constitution of the
Republic of Liberia 1986, Article 2; Constitution of the Republic of Rwanda 2003,
Article 201; Constitution of the Federal Democratic Republic of Ethiopia 1994,
Article 9.
59 Constitution of the Republic of Namibia 1990, Art. 66; Constitution of the Solomon
Islands 1978, Schedule 3, Section 3 (1) and (2); Constitution of Colombia 1991,Article
246; Constitution of Kenya 1963, Section 117 (5).
60 Constitution of the Republic of Rwanda 2003, Article 201.
61 Ibid.
62 Constitution of the Federal Democratic Republic of Ethiopia 1994, Article 35 (4),
which provides that customs and practices that oppress or cause harm to women are
prohibited and Constitution of the Republic of Malawi 1994, Section 24 (2), which
provides that legislation shall be passed to eliminate customs and practices that discrim-
inate against women.
63 Ibid.
64 Political Constitution of Peru 1993, Article 149.
65 Constitution of the Kingdom of Swaziland 2005, S. 252.
66 Constitution of the Republic of Namibia 1990, Article 66.
67 Constitution of the Republic of Malawi 1994, Section 10(2).
68 See Constitution of the Republic of Ghana 1992; Constitution of Sierra Leone 1991
Section 170 (2).
69 Constitution of Zimbabwe 1979, Section 113 (1).
70 Constitution of the Independent State of Western Samoa 1960, Article 111.
71 Constitution of Fiji 1997, Section 186.
72 Constitution of the Republic of the Marshall Islands 1979, Article XIV, Section 1.
73 Constitution of Lesotho, 1996, Section 154.
74 Constitution of the Republic of Singapore 1963,Article 2; Constitution of the People’s
Republic of Bangladesh 1972, Article 152; Constitution of the Independent State of
Western Samoa 1960, Article 111, Art. XIV, Section 1; Constitution of the Republic
of the Marshall Islands 1979, Art. XIV, Section 1.
 Notes 227

75 Bennett (2008), 148.

76 Alexkor Ltd & Another v. Richtersveld Community & Others 2003 (12 BCLR 1301 (CC)
Para. 51.
77 Ibid., cited in Bennett (2008), 148. Also refers to Mabuza v. Mbatha 2003 (4) SA 218
(C) in Para. 32.
78 Sachs (2012), 309–10.
79 Ibid., 311.
80 For a detailed study of case law and writings of jurists on the application of ubuntu in
South African courts see Cornell and Muvangua (2012).
81 1995 (6) BCLR 665 (CC).
82 Decision of Justice Mokgoro in S v. Makwanyane extract reprinted in part in Cornell
and Muvangua (2012), 74.
83 Ibid.
84 Ibid.
85 2004 (12) BCLR 1286 (CC); reprinted in part in Cornell and Muvangua (2012), 123.
86 Ibid., 131–2.
87 Goldring (1978), 150; cited in Castellino and Keane (2009), 213.
88 Constitution of the Independent State of Papua New Guinea 1975, Schedule 1.2.
89 Corrin (2000), Section 3.12, line 12. Available at: www.paclii.org/journals/
fJSPL/vol04/1.shtml [accessed 10 May 2014].
90 Constitution of the Independent State of Papua New Guinea 1975, Schedule 2.2 (c).
Customary law is similarly elevated above received foreign law in the Constitution of
Vanuatu 1980, Article 95.
91 Constitution of the Independent State of Papua New Guinea 1975, Schedule 2.1 (2).

DRAFT
92 Goldring (1978), 150, cited in Castellino and Keane (2009), 213.
93 Castellino and Keane (2009), 213.
94 Genolagani and Henao (2004), 28.
95 Kwa (2004), 28.
96 Genolagani and Henao (2004), 29.
97 Constitution Act 1982. Being Schedule B to the Canada Act 1982 (UK) Section 35.
98 Department of Indian Affairs and Northern Affairs, Canada (1995).
99 Imai (2009), 295.
100 Ibid.
101 Borrows (2002), 105–8.
102 Imai (2009), 295.
103 The Andean Community of Nations, has four member countries Bolivia, Colombia,
Ecuador and Peru.
104 Constitution of Colombia 1991, Article 246.
105 Political Constitution of Peru 1993, Article 286.
106 Ibid., Article 287.
107 Ibid., Article 89.
108 Ibid., Article 149.
109 Republic of Ecuador Constitution 2008,Title VII, Article 71. Unofficial English trans-
lation available at http://pdba.georgetown.edu/Constitutions/Ecuador/english08.html
[accessed 11 March 2014].
110 Ibid., Article 72.
111 Ibid., Article 73.
112 Warnaars and Bebbington (2014) 115. The authors describe the incorporation of
sumac kawsay in the Ecuadorian constitution as the result of democratic negotiation
leading to the inclusion of difference (110). The inclusion of sumac kawsay in the
constitution is directly related to the ‘uniquely participatory process’ for its develop-
ment (117).
113 Dávalos (2008).
114 Gudynas (2011), 441.
228 Notes

115 Republic of Ecuador Constitution 2008, Article 191.

116 Republic of Ecuador Constitution 2008, Chapter 4.
117 Republic of Bolivia Constitution 1967 (as amended), Article 171.
118 Republic of Bolivia Constitution 2009, Article 30.II.
119 Hammond (2011).
120 Republic of Bolivia Constitution 2009, Article 225 II (4).
121 Republic of Bolivia Constitution 2009, Articles 341, 349 and 350.
122 Republic of Bolivia Constitution 2009, Article 399.
123 Ley de los Derechos de la Madre Tierra No. 071, 7 December 2010, available at
http://peoplesagreement.org/?p=1651 [accessed 11 March 2014].
124 The Bolivian constitution uses the terms Bien vivir and vivir bien which in essence
mean the same thing as buen vivir.
125 Law No. 300 Ley Marco de la Madre Tierra y Desarrollo Integral Para Vivir Bien.
Copy of the law in Spanish is available at www.la-razon.com/sociedad/MARCO-
TIERRA-DESARROLLO-INTEGRAL-VIVIR_0_1706229409.html [accessed 16
June 2014].
126 Ibid. Article 4.1.
127 Fields (2012).
128 BBC (2013).
129 Wallace (2013).
130 Hivos (2013).
131 Sentencia Constitucional Plurinacional 0300/2012 (TIPNIS) Tribunal Constitucional
Plurinacional, 19 June 2012.
132 Somos sur (2012).

DRAFT
133 www.forestpeoples.org/topics/extractive-industries/news/2014/02/venezuela-
thousands-illegal-and-armed-miners-invade-ye-kwa.
134 www.forestpeoples.org/topics/extractive-industries/news/2014/01/camisea-project-
expansion-plans-given-green-light-peruvian.
135 www.forestpeoples.org/topics/legal-human-rights/news/2014/01/kenya-defies-its-
own-courts-torching-homes-and-forcefully-evi.
136 Horne (2011), 39–41.
137 Amazon Watch (2014).
138 Hance (2013).
139 Sheleff (1999), 194.
140 435 US 191.
141 Oliphant v. Suquamish Indian Tribe, 435 US at 210.; cited in Dussais (1993).
142 Dussais (1993), 10.
143 Ibid., 30.
144 Ibid.
145 Ibid., 28.
146 Ibid.
147 Cruz (2009), 329.
148 Yazzie (2008), 49.
149 Austin (2009).
150 Yazzie (2008), 179.
151 Ibid., 180.
152 Ibid.
153 Ibid., 181. Hon. Yazzie says ‘forcing a person to do something against their will is a
form of witchcraft’, something which is ‘considered horrible in Navajo thought.’.
154 Ibid., 183.
155 Ibid., 185.
156 Austin (2009); Nielsen and Zion (2005), 41.
157 Austin (2009), 53.
158 Ibid., 66.
 Notes 229

159 Ibid.
160 Ibid., 54.
161 Yazzie (2008), 185.
162 Ibid.
163 Ibid., 186.
164 Ibid.
165 For detailed consideration of the Navajo court system and its decision making see:
Austin (2009); Nielsen and Zion (2005).
166 Austin (2009), 38.
167 Ibid.
168 See, for example, Political Constitution of Peru 1993, Article 149.
169 Olsen (2008).
170 Sentencia T-188, Constitutional Court, Colombia (12 May 1993).
171 Olsen (2008), 9.
172 Ibid., 12.
173 Ibid., 13.
174 Sentencia T-380/93, Constitutional Court, Colombia (13 September 1993).
175 Sentencia SU-039/97, Constitutional Court, Colombia, (3 February 1997), sección
II.3.2. See also Olsen (2008), 17–18.
176 Sentencia SU-039/97, Constitutional Court, Colombia, (3 February 1997), sección
II.3.2.
177 Backstrom et al. (2007).
178 Australia Law Reform Commission (1986b).
179 Douglas (2005), 141–56. The 2006 Commonwealth Crimes Act sought to preclude

DRAFT
the courts from considering customary law as a ‘reason for … excusing … or lessen-
ing the seriousness of the criminal behaviour to which the offence relates’ (S16AA).
In December 2012, the Supreme Court of the Northern Territory interpreted the Law
in a manner which took into account the evidence of Reverend Doctor Gondarra, a
Senior Law Man, that the accused would be placed in a Yolngu prison, as a reason for
reducing sentence, leading Dr Gondarra to say ‘this is the first time in a long time that
Balanda (European) and Yolngu Laws have worked together like this.’ Cited in Bob
Gosford (2014).
180 Backstrom et al. (2007), 9.
181 Ibid., 24–5.
182 Ibid.
183 Ibid.
184 Roy (2004), 18.
185 Ibid.
186 Ibid.
187 Ibid.
188 Ibid., 127.
189 Ibid., 130.
190 Ibid.
191 Ibid., 131.
192 Ibid.
193 Ibid.
194 Ibid., 131–2.
195 Ibid., 130.
196 Ibid., 134.
197 Ibid.
198 Backstrom et al. (2007) 9.
199 Brown and Corrin (2010) 1335.
200 Re Kepo Raramu and the Yowe Village Court [1994] PNGLR486.
201 Goddard (2005), 262.
230 Notes

202 Ibid.
203 Chanock (1982).
204 van Dun (2005), 187.
205 van Notten (2005), 138.
206 Ibid.
207 Ibid.
208 Ibid.
209 Academy for Peace and Development (2002).
210 Ibid., 4.
211 Ibid.
212 van Notten (2005), 176–7.
213 Academy for Peace and Development (2002), 4.
214 van Notten (2005), 103–7.
215 Vargas Simojoki (2011), 9.
216 Academy for Peace and Development (2002), 4.
217 Ibid.
218 Vargas Simojoki (2011), 9.
219 Hill (2010).
220 Ibid., 7–8.
221 Ibid.
222 Ibid., 7–8.
223 Vargas Simojoki (2011), 39.
224 Ibid., 40.
225 Ibid.

DRAFT
226 Ibid., 38.
227 Ibid., 40.
228 Ibid.
229 Ibid., 20.
230 Ibid., 46.
231 Ibid., 40.
232 Constitution of the Independent State of Papua New Guinea 1975, Schedule 2.2.
233 Minority Rights Group International (2014).

4 In search of the living law

1 UNPFII (2007), 12.
2 Ibid.
3 More than one hundred peoples living in voluntary isolation are believed to exist in
the Amazonian region, many in danger of extinction; UNEP/Convention on
Biological Diversity (2013), 38.
4 ICHRP (2009).
5 Chanock (2005).
6 Van Notten (2005).
7 Ubink and van Rooij (2011).
8 Glenn (2000), 58.
9 Ginnell (1894), 28–31.
10 Ibid., 30–31.
11 Borrows (2002), 13.
12 16 ILR 6086 (1989).
13 Borrows (2002), 13.
14 Re Certified Question II: Navajo Nation v. McDonald 16 ILR 6086 (1989); cited in
Borrows (2002), 13–14.
15 Ibid.
16 Black (2011).
 Notes 231

17 Ibid., 45.
18 Ibid., 47.
19 71 citing Anker (2005), 113.
20 Senior Law Women of Wirrimanu of the Great Sandy Desert; cited in De Ishtar
(2005), reprinted in Black (2011), 74.
21 Witherspoon (1975), 37, cited in Bluehouse and Zion (2005), 157.
22 Ibid.
23 Borrows (2006), reprinted in Borrows and Rotman (2012), 67.
24 Ibid., at 69.
25 Barsh and Youngblood Henderson (1997), 1006.
26 Dworkin (1967).
27 Borrows (2010), 13.
28 Stavenhagen (1990), 31.
29 Ibid.
30 Woodman (2007), 15.
31 Ibid.
32 Rosser (2008).
33 Ibid., 28–32.
34 Ibid.
35 Fletcher (2007), 61.
36 Ibid., 66.
37 Ibid., 67.
38 Ibid.
39 Ibid.

DRAFT
40 Ibid.
41 Rosser (2008), 23.
42 Ibid.
43 Fletcher (2007), 81.
44 Ibid., 71.
45 Ibid., 89.
46 Ibid., 90–1.
47 Ibid., 89.
48 Ibid., 91.
49 Ibid., 71.
50 Professor Watson, cited in Fletcher (2007), 93.
51 Hinz (2009), 115–17.
52 Stavenhagen (1990), at 34.
53 Chanock (1985), 29.
54 Sierra (1995), 247.
55 Wicomb (2010), 23.
56 Blackstone (1765–9).
57 Ibid.
58 Halsbury’s Laws of England (1998), vol. 12(1).
59 For a useful review of the early English jurisprudence relevant to Blackstone’s seven
step test see Callies (2005).
60 Callies (2005), 168.
61 Ibid., 176.
62 (1401) YB Trin 2 Hen, 4 f.24, Pl.20.
63 Callies (2005), 176.
64 Ibid.
65 Fisher v. Lane (1777) 3 Wils 298; 95 ER 1065.
66 (1695) 5 Mod Rep 75–76; 87 ER 528–529.
67 [1908] 1 Ch 303.
68 Ibid., 309–18; cited in Callies (2005), 185.
232 Notes

69 Blackstone (1765–9), 77. See Callies (2005) for a review of cases demonstrating the
distinction between interruption of use, which does not void a custom and interrup-
tion of the right, which does.
70 See Callies (2005), 172, where he discusses Warrick v. Queen’s College, Oxford (1870) 10
LR Eq 105, a case in which the court found substantial evidence that several common-
ers, due to persuasion, threat and other means, had ceased to exercise their common
rights, it also found that where the lord has attempted to stop the user of a common,
the fact that some tenants have yielded to such attempts was not an interruption of the
right within the meaning of statutes defining interruption. As a consequence, what
customary rights remained were sufficiently continuous to be upheld.
71 Ibid., 165–204.
72 Ibid., 205.
73 See Watson (1984), 576, where he argues that opinio necessitatis does not provide a
sound basis for a theory of customary law.
74 Salmond (1902), 164.
75 [1931] A.C., 662, 673, cited in Hannigan (1958), 112.
76 See further the discussion on extinguishment of native title in Chapter 5.
77 Zorn and Corrin Care (2002), 618–9.
78 Ibid., 619.
79 Bederman (2010), 61.
80 Zorn and Corrin Care (2002), 619.
81 Angu v. Attah (1916) (Privy Council) Reports, 1874–1928, 43.
82 Ibid., 44; cited in Hannigan (1958), 102.
83 Hannigan (1958).

DRAFT
84 Ibid., 104–6.
85 Kokomlemle Consolidated Cases W.A.C.A, No. 106/53, 4 March 1953; cited in Hannigan
(1958), 106–7.
86 Ibid.
87 Crawford (1983), 7.
88 Ibid.
89 Ibid.
90 Himsworth (1972), 17.
91 Zorn and Corrin Care (2002), 619, 630–5.
92 Crawford (1983), 41–6.
93 Australia Law Reform Commission (1986a), para 642.
94 Ibid.
95 Ibid., para 648.
96 Ibid., para 656.
97 Ibid., para 676.
98 Conflict of Laws, which is also referred to as Private International Law, deals with the
unique legal problems that arise when a court must decide a case that involves an
element of foreign law.The foreign element may arise either out of a connection with
a different country, ie, another sovereign state, or it may arise out of a dispute that
crosses state boundaries within a federation. Conflict of laws may also occur between
customary legal regimes and between customary legal regimes and national law and
foreign law.
99 Leslie (1977), 117.
100 Ibid. citing Tabitha Chiduku v. Chidano, 1922 SR 55, 6.
101 Ibid. citing Mayitenga and Mamire v. Chinamura & others 1928–1962 SRN 829, 832
(1958).
102 Sheleff (1999), 128; referring to Harvey (1975), 524.
103 Elias (1962), 104.
104 For a discussion of the treatment of repugnancy issues by Elias across his career, see
Toufayan (2008), 377–410.
 Notes 233

105 See Constitution of Colombia 1991,Art. 246; Constitution of the Republic of Malawi
1994, S. 200; Constitution of the Republic of Uganda 1995, Art. 2(2); Republic of
Ecuador Constitution 2008, Article 57(10); Constitution of the Republic of Liberia
1986, Art. 2; Constitution of the Republic of Rwanda 2003, Art. 201. See also Art. 61
of the African Charter on Human and People’s Rights, which provides that the
Commission shall take into consideration practices consistent with international
norms, customs generally accepted as law.
106 See Constitution of the Republic of Namibia 1990, Art. 66; Constitution of the
Solomon Islands 1978, Sch.3 S.3 (1) and (2); Constitution of the Federal Democratic
Republic of Ethiopia 1994, Art 9; Constitution of Kenya 1963, S.117 (5).
107 See Constitution of the Republic of Rwanda 2003, Article 201.
108 Ibid.
109 Ibid.
110 See Political Constitution of Peru 1993, Article 149.
111 See Constitution of the Republic of Swaziland 2005, Section 252.
112 ILO Convention 169, Article 8(2).
113 UNDRIP, Article 34.
114 See Republic of Bolivia Constitution 2009, Art. 410. Hierarchy of laws, which places
customary law on a par with national law and as superior to executive decrees, regu-
lations and other resolutions, Art. 225 II requires that negotiation, subscription and
ratification of international relations will be guided by the principles of: ‘(4) Respect
for the rights of the indigenous original farmer nations and people’. Constitution of
the Independent State of Papua New Guinea 1975, Section 20 and Schedule 2.1,
which makes customary law part of the ‘underlying law’, in effect placing it above

DRAFT
common law. See also decision of the Constitutional Court of South Africa in Alexkor
Ltd & Another v. the Richtersveld Community & Others, BCLR (12 BCLR 1301 CC,
2003).
115 Zorn (1992), 1.
116 Corrin Care and Zorn (2001), 56.
117 See 1963 Native Customs (Recognition) Ordinance, Section 2 entitled ‘Proof of
Custom’; reprinted in Crawford (1983), 8–9.
118 See Constitution of the Independent State of Papua New Guinea 1975, Section 20
and Schedule 2.1.
119 Papua New Guinea Constitutional and Law Reform.
120 Papua New Guinea Law Reform Commission (1977), 10, cited in Corrin Care and
Zorn (2001), 60.
121 Ibid.
122 Ibid., 60–1.
123 Ibid., 97.
124 Papua New Guinea Law Reform Commission (1976), 26, cited in Corrin Care and
Zorn (2001), 90.
125 Underlying Act 2000, Section 21.
126 Smith, (1999).
127 For detailed discussion of the Underlying Act see Papua New Guinea Constitutional
and Corrin (2014). For the original version of the Underlying Act see Law Reform
Commission (1976).
128 Crawford (1983), 11.
129 Weisbrot (1982), 97; cited in Crawford (1983), 11.
130 von Benda-Beckman (1984), 30.
131 Ubink (2011b), 93.
132 Hinz (2009), 47.
133 Ubink (2011b); Hinz (2009), 48.
134 Hinz (2009).
135 Ibid.
234 Notes

136 Traditional Authorities Act of Namibia, Article 3(1) requires traditional authorities to
‘ascertain the customary law applicable in that traditional authority after consultations
with the members of that community, and assist in its codification’; cited in Hinz
(2009), 47.
137 Bennett and Vermuelen (1980), 206–19.
138 Shadle (1999), 416.
139 Chanock (1985), 56–9.
140 Ibid., 58.
141 Ibid., 59.
142 Shadle (1999), 424.
143 Bennett and Vermuelen (1980), 207.
144 Ibid.
145 See David (1963), 188–9.
146 Bennett and Vermuelen (1980), 207.
147 Pimentel (2010), 19.
148 Ibid.
149 Hinz (2009), 48.
150 Bennett and Vermuelen (1980).
151 Ibid.
152 Thornberry (1993).
153 Weilenmann (2012), 29.
154 Ibid., 24.
155 Ubink (2011c), 8.
156 Samotsoko v. Palane, 1958 H.C.T.L.R. 75.

DRAFT
157 Himsworth (1972), 14.
158 Crawford (1983), 12.
159 Australian Law Reform Commission (1986a), para 208.
160 Ibid.
161 Ibid.
162 Anker (2005), 113 citing Kathryn Trees ‘Respecting Difference: For Indigenous People
Law and Cultural Memory is in the Land not Legislation, Mediating Law: Theory,
Production, Culture. 11th International Conference of the Law and Literature
Association of Australia 29 November–1 December 2002 Melbourne.
163 Black (2002), 18.
164 Ubink (2011b), 98.
165 Ubink (2011c), 131.
166 Hinz (2012), 91.
167 Ibid.
168 Ibid., 60.
169 Ubink (2011c), 140.
170 Ibid., 145.
171 Hinz (2009), 8.
172 Hinz (2009), 96.
173 See, for example, the discussion on living custom in Bennett (2008). See also Claassens
(2008).
174 Claassens and Mnisi, (2009).
175 Ubink (2011b), 98.
176 Ibid., 99.
177 Ibid.
178 Ibid.
179 Ibid., 100.
180 Ibid., 101.
181 Ibid.
182 Bhe v. Magistrate Khayelitsha, Shibi v. Sithole, and South African Human Rights Commission
 Notes 235

v. President of the Republic of South Africa (2005) (1) B.C.L.R. 1 (CC).

183 Grant (2006), 10.
184 Ibid., 11.
185 Ibid., 12.
186 Higgins (2006), 713.
187 Constitution of the Republic of South Africa 1996, Section 39(2).
188 Bhe v. Magistrate Khayelitsha, Shibi v. Sithole, and South African Human Rights Commission
v. President of the Republic of South Africa (2005) (1) B.C.L.R. 1 (CC).
189 Constitution of the Republic of South Africa 1996, Section. 211(3).The courts must
apply customary law when that law is applicable, subject to the constitution and any
legislation that specifically deals with customary law.
190 Higgins, Fenrich and Tanzer (2006).
191 Higgins (2006), 715.
192 Ibid., 717.
193 Ibid., 718.
194 Grant (2006), 16.
195 Ibid., 13.
196 Ibid.
197 Ibid., 17.
198 Higgins (2006), 137.
199 Ibid.
200 Grant (2006), 20.
201 South African Law Reform Commission (SALRC) (1999), 110.
202 Fletcher (2007), 71.

DRAFT
203 Ibid.
204 Grant (2006), 23.

5 Ancestral rights recovered: lands and traditional territories

1 Borrows (2002), 117.
2 For discussion of uti possidetis and its impact on Indigenous peoples’ rights to reunite
territories dived by colonial powers see Castellino (2005).
3 D’Amato (1992), 1235.
4 Island of Palmas Case, (Scott, Hague Court Reports 2d 83 (1932), (Perm. Ct.Arb. 1928),
2 UN Rep. Intl. Arb. Awards 829).
5 See, for example, Anaya and Williams (2001) and Inter-American Commission on
Human Rights (2010).
6 Bennett (2008), 138.
7 Daes (2001), 38.
8 For discussion of indigenous land rights generally see Daes (2001) and Gilbert (2006).
For discussion of land rights post adoption of the UN Declaration on Rights of
Indigenous peoples see Åhrén (2009) and Gilbert, and Doyle (2011).
9 UN Doc. E/CN.4/Sub.2/1983/21/Add.8, Para 509.
10 Thornberry (2002), 351.
11 Advisory Opinion of the African Commission on Human and Peoples’ Rights on The
United Nations Declaration on The Rights Of Indigenous Peoples, adopted by the
African Commission on Human and Peoples’ Rights at its 41st Ordinary Session held
in May 2007 in Accra, Ghana 2007, Para.12(b).
12 The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 Inter-Am Ct. H.R (ser
C) No. 79.
13 Ibid., Para.149.
14 Gilbert and Doyle (2011), 294.
15 UN Doc. E/CN.4/Sub.2/1983/21/Add.8, Para. 519.
16 Ibid., Para. 520.
236 Notes

17 Ibid., Para 523.

18 Ibid., Para 536.
19 For a detailed analysis of the treatment of indigenous land rights under Convention
169 see generally Ulfstein, Geir (2004), where he also examines the treatment of Saami
land rights in Norway.
20 Between 60 and 70 per cent of the world’s Indigenous peoples are reported to live in
the Asia region; Galloway (2010).
21 Cited in Thornberry (2002), 334.
22 Ibid.
23 International Labour Organization Convention 169, Article 14(2).
24 Ibid., Article 14(3).
25 Ulfstein (2004), 19.
26 Åhrén (2009), 210.
27 Gilbert and Doyle (2011), 298.
28 Ibid., 210.
29 See McNeil (2001), 141; cited in Åhrén, (2009), 211.
30 Åhrén (2009), 209.
31 UNHRC (1994).
32 Ulfstein (2004), 9.
33 UNHRC (1994).
34 Tsosie (2007), 408.
35 von Benda-Beckmann and von Benda-Beckmann (2006), 213.
36 Haccius (2011), 10.
37 McDonnell (2014).

DRAFT
38 McDonnell (2013), Para. 30.
39 Ibid., Para. 51.
40 Ibid., Para. 40.
41 Taylor (2008), 10; cited in McDonnell (2013), Para. 41.
42 Ibid.
43 McDonnell (2013), Para. 49.
44 See resolutions of National Land Summit in Lunnay et al. (2007).
45 Ralph Regenvanu, pers. comm., Brisbane 16 August, 2013.
46 McDonnnell (2014).
47 Aus AID (2012), 3.
48 McDonnell (2014).
49 Orange (1987); Ruru (2009).
50 Peru Ley de Titulación de las Tierras de las Comunidades Campesinas de la Costa, Ley
No 26845, Available at http://docs.peru.justia.com/federales/leyes/26845-jul-23-
1997.pdf, [accessed 16 March 2014].
51 Baluarte (2004), 11.
52 Report of the Committee set up to examine the representation alleging non-obser-
vance by Peru of the Indigenous and tribal convention, 1989 (No.169), made under
Article 24 of the ILO Constitution by the General Confederation of Workers of Peru
(CGTP) Para 32 (b); cited in Ulfstein (2004), 17.
53 Bennett (2008), 142.
54 (1921) 2 AC 399.
55 Amodou Tijani v. The Secretary Southern Nigeria (1921) 2 AC 399, 403–4.
56 Saramaka v. Suriname 2007 Inter-Am. Ct. H.R. (ser. C) No. 172 (No. 28, 2007) Para.
175.
57 2007 Inter-Am. Ct. H.R. (ser. C) No. 172 (No. 28, 2007) Para. 176.
58 Inter-American Commission on Human Rights (2007) Access to Justice and Social
Inclusion: the Road towards Strengthening Democracy in Bolivia. Doc.
OEA/Ser.L/V/II, Doc. 34, June 28, 2007, Para 23; cited in Inter-American
Commission on Human Rights, (2010), Para. 68.
 Notes 237

59 Sawhoyamaxa Indigenous Community v. Paraguay Inter.Am. Ct. H.R. Merits Reparations

and Costs. Judgment of March 29, 2006. Series C No 146 Para. 128.
60 Inter-American Commission on Human Rights (2010), 53.
61 Ibid., 54.
62 ILO Convention 169, Article 16 (2).
63 UNDRIP, Article 28.
64 Ibid.
65 Committee on the Elimination of Racial Discrimination (CERD) (1997), Para. 5.
66 Bennett (1991), 39.
67 For an introduction to the history and evolution of legal anthropology see Falk Moore,
(2005). For discussion of the exchange between Bohannan and Gluckman see Falk
Moore, (1997), 341–2.
68 Bennett (1991), 39.
69 Ibid., 147.
70 21 US (8 Wheat.) (1823).
71 McHugh (2004), 117.
72 Johnson v. McIntosh, 21 US (8 Wheat.) (1823), Para. 574.
73 Robertson (2011), 53.
74 30 US (S. Peters) 1 (1831).
75 Worcester v. Georgia, 31 US (6 Pet.) 515 (1832).
76 McHugh (2004), 147.
77 In the Australian case of Ward v. Western Australia (2002) 191 ALR 1 (8 August 2002),
native title was variously described as a single underlying right to the land and its
resources, akin to fee simple ownership (Lee J at trial, and North John on appeal) and

DRAFT
as a bundle of rights to use the land (Beaumont and Von Doussa JJ on appeal); Keon-
Cohen (2000).
78 McHugh (2011).
79 Ibid., 213–19.
80 Ibid., 106.
81 Ibid., 120–3.
82 Ibid., 118–20.
83 Mabo v. Queensland (No2) (1992) 107 ALR 1.
84 Ibid. Para. 65, per Brennan J.
85 Ibid. Para. 64, per Brennan J.
86 Delgamuukw v. British Colombia [1997] 3 SCR 1010, Para.112, per Lamer CJ.
87 Alexkor Ltd Another v. the Richtersveld Community & Others BCLR (12 BCLR 1301 CC,
2003), Para. 51, 57–60.
88 Nor Anak Nyawai et al. v. Borneo Pulp plantation Sdn Bhd, [2001] 2 current L.J. 769
(Malaysia) – Sabah and Sarawak High Court.
89 McHugh (2011), 2.
90 Xanthaki (2007), 244.
91 (1996) 187 CLR 1.
92 Mabo v. Queensland (No.2) (1992) 107 ALR 1, 42, per Brennan J, 58.
93 Mansell (1992); cited in McRae et al. (2009), 291.
94 McRae et al. (2009), 387.
95 (2002) 214 CLR 455.
96 McRae et al. (2009), 330.
97 Barcham (2007).
98 (2003) 133 FCR 325.
99 [2006] FCA 404.
100 The Larrakia community of 2005 is a strong vibrant and dynamic society. However,
the evidence demonstrates an interruption to the Larrakia people’s connection to their
country and in their acknowledgement and observance of their traditional laws and
customs so that the laws and customs they now respect and practice are not traditional
238 Notes

as required by s 223 (1) of the NT Act.

Mansfield J: Ibid., 839.
101 (2008) 167 FCR 84.
102 McRae et al. (2009), 349.
103 Cited in McHugh, (2011), 132.
104 Inter-Am. Ct. H.R. (ser.C) No.172 (28 November 2007).
105 See Inter-American Commission on Human Rights (2010), where the report claims
that ‘neither the loss of material possession, nor prohibitions on access to traditional
territories by the formal owners are obstacles to the continuous territorial rights of
indigenous communities’, 54.
106 Parts 1 & 2 of the Constitution Act 1982, Sch. B to the Canada Act 1982, Ch. 11 (UK).
107 [1990] 1. S.C.R. 1075.
108 McHugh (2004), 471.
109 Barsh and Youngblood Henderson (1997), 998.
110 For a detailed study of the potential role of the doctrine of continuity in Canadian
jurisprudence see Halewood (2005).
111 R v. Van der Peet [1996] 2 SCR 507; R v. Smokehouse Ltd [1996] 2 SCR 672; R v.
Gladstone [1996] 2 SCR 723.
112 [1996] 138 D.L.R. (4th) 204 (SCC).
113 McHugh (2004), 471.
114 Barsh and Youngblood Henderson (1997), 998.
115 Halewood (2005), 202–3.
116 Ibid., 244.
117 [1997] 3 S.C.R. 1010.

DRAFT
118 Delgamuukw v. British Colombia [1997] 3 S.C.R. 1010, Para. 111.
119 Tobin (2011), 170.
120 Mukundi Wachira (2010), 10.
121 Sheleff (1999), 241–2.
122 Choudree and McIntyre (1997), 187.
123 No. 488/2001 (March 24, 2003).
124 Richtersveld Community and others v. Alexkor Limited and Another, No. 488/2001 (March
24, 2003), Para. 26.
125 Ibid., Para. 8.
126 Choudree and McIntyre (1997).
127 Alexkor Ltd & Another v. the Richtersveld Community & Others, BCLR (12 BCLR 1301
CC, 2003), Para. 51.
128 Gilbert (2006), 58.
129 McHugh (2004), 200.
130 Ibid., 201.
131 46 ILM 1022 (2007).
132 Cal v. Attorney General 46 ILM 1022 (2007) Para. 67.
133 Ibid., Para. 127.
134 [2006] BWHC 1 (13 December 2006).
135 McHugh (2004), 201.
136 Daes (2001), 38.
137 Gilbert (2006), 58.
138 348 US 272 (1995).
139 Daes (2001), Para. 44.
140 Ibid.
141 (Advisory Decision) 1975 ICJ Reports.
142 Western Sahara Case cited in Mabo v. Queensland (No.2) (1992) 175 CLR, Para. 43, per
Brennan J.
143 Mabo v. Qld (No. 2) (1992) 175 CLR 29 Para. 43, per Brennan J.
144 Anaya (2004), 198.
 Notes 239

145 Mabo v. Queensland (No.2) (1992) 175 CLR 29, 32–33, Para. 63.
146 Mansell (1992), 291.
147 (2002) 214 CLR 455.
148 Gilbert (2006), 72.
149 Cited in Gilbert (2006), 72–3.
150 Pearson (2009), 363.
151 Ibid.
152 Pearson (2011), 43.
153 Ibid., 44.
154 Ibid.
155 Ibid., 45.
156 Ibid., 116. [emphasis in original].
157 21 US (8 Wheat.) (1823).
158 31 US (6 Pet.).
159 Mitchel v. United States, 34 US (9 Pet.) 711 (1835).
160 Pearson, (2011), 116.
161 Pearson (2009).
162 Pearson (2011), 118.
163 Ibid., 117.
164 Ibid., 118.
165 Ibid., 125.
166 Borrows (2002), 95.
167 Ibid., 97.
168 Ibid., 98.

DRAFT
169 Ibid., 99.
170 Ibid., 114.
171 Ibid.
172 [1990] 1 SCR 10.75.
173 Gilbert (2006), 74.
174 Delgamuukw v. British Colombia [1997] 3 SCR 1010 at 1111 (S.C.C.), per Lamer CJC.
175 Borrows (2002), 99.
176 Allen and Xanthaki (2011), 248.
177 UN Human Rights Committee (HRC), UN Human rights Committee: Concluding
Observations: Canada, 7 April 1999, CCPR/C/79 Add.105. Available at:
www.refworld.org/docid/3d37864.html [accessed 18 June 2014].
178 Morse (2008), 291.
179 Ibid.
180 Ibid.
181 McRae et al. (2009).
182 Ibid.
183 Lambert (1998).
184 Ibid.
185 Morse (2008), 293.
186 McHugh (2004), 484.
187 [2001] NUCJ 1.
188 Kadlak v. Minister of Sustainable Development (Nunavut) [2001] NUCJ 1.
189 Ibid.
190 Morse (2008), 296.
191 McRae et al. (2009).
192 Borrows (2002), 106.
193 Ibid.
194 Bergmann (2002), 5.
195 Gilbert (2006).
196 Ibid., 80–4.
240 Notes

6 Natural resources or essences of life?

1 Moses (2000); cited in MacKay (2004). 54.
2 Daes (2004), 6.
3 UNHRC (1999).
4 Declaration on the Right to Development, GA Res 41/128 of 4 December 1986
Article 1(2).
5 ILO Convention 169, Article 13(2).
6 Thornberry (2002), 365.
7 Daes (2004), 6.
8 ILO Convention 169, Article 15.2.
9 Ibid.
10 UNDRIP, Articles 26 and 27.
11 Ibid., Article 26.
12 Ibid.
13 Ibid., Article 27.
14 Ibid.
15 Ibid., Article 31.
16 Ibid., Article 28.
17 Ibid., Article 40.
18 Ibid.
19 Daes (2004), Para. 39.
20 Ibid.
21 Errico (2011), 340.

DRAFT
22 UNDRIP, Article 26.
23 Ibid., Article 27.
24 Ibid., Articles 26 and 27.
25 See generally, First Nations Leadership Council (2013).
26 Joint Statement of:Assembly of First Nations, Chiefs of Ontario, Grand Council of the
Crees (Eeyou Istchee), First Nations Summit, Haudenosaunee of Kanehsatà:ke, Innu
Council of Nitassinan, Indigenous World Association, International Organization of
Indigenous Resource Development (IOIRD), Louis Bull Cree Nation, Montana Cree
Nation, National Association of Friendship Centres, Native Women’s Association of
Canada, Samson Cree Nation, Union of BC Indian Chiefs, Amnesty International,
First Peoples Human Rights Coalition, Canadian Friends Service Committee
(Quakers), Amnesty International, Hawai’i Institute for Human Rights, KAIROS:
Canadian Ecumenical Justice Initiatives, made to Permanent Forum on Indigenous
Issues, Tenth Session, New York, 16–27 May 2011. Available at: www.afn.ca/
index.php/en/news-media/current-issues/permanent-forum-on-indigenous-issues-
free-prior-and-informed-consent [accessed 5 May 2014].
27 Ibid.
28 Case of The Mayagna (Sumo) Awas Tingni Community, 2001 Inter-Am. Ct. H.R. (ser. C)
No. 79, Para.120.
29 Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007).
30 Ibid., Para. 121.
31 Ibid., Para. 122.
32 Ibid., Para. 79.
33 Ibid., Para. 129.
34 ‘The court defined a “development or investment plan” as any proposed activity that
may affect the integrity of the lands and natural resources within the territory of the
Saramaka people, particularly any proposal to grant logging or mining concessions.’
[note in original], 38n. 127.
35 Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172 (28 November
2007), Para 129.
 Notes 241

36 Akwé: Kon guidelines available at www.cbd.int/doc/publications/akwe-brochure-

en.pdf, Paras. 24, 27, 29, 34.
37 Jaichand and Andrade Sampaio (2013).
38 Indigenous Communities of the Xingu River Basin v. Brazil, Inter-American Commission
on Human Rights PM-382-10; ch. III, 32 (2011).
39 Jaichand and Andrade Sampio (2013), 447. The authors note Brazil’s rejection of the
Commission’s request to ‘suspend the licensing process for the Belo Monte hydro-
electric project’ and its threat to cut it’s funding to the Commission and leave the
Regional organ (2013), 412–3.
40 The decision in the Ogoni Case before the African Commission on Human and
Peoples’ was communicated to the parties on 27 May 2002. Available at
http://cesr.org/downloads/AfricanCommissionDecision.pdf [accessed 3 April 2014].
41 The Social and Economic Rights Action Centre for Economic and Social Rights v. Nigeria,
African Commission on Human and Peoples’ Rights, Comm. No. 155/96, (2001)
[Ogoni Case].
42 Ogoni Case, Para. 58.
43 Ibid.
44 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on
behalf of Endorois Welfare Council v. Kenya, Case No. 276/2003, Available at www.escr-
net.org/sites/default/files/Endorois_Decision.pdf [accessed 16 March 2014].
45 Ibid., Para. 268.
46 Ibid., Para. 281.
47 Korir Sing’oei (2010).
48 Kichwa Indigneous Peoples of Sarayaku v. Ecuador Judgment, Merits and Reparations,

DRAFT
Judgment of 27 June 2012, IACtHR Series C, No. 245 [Sarayaku Case] Official
summary. Available at: www.corteidh.or.cr/docs/casos/articulos/resumen_245_
ing.pdf [accessed 6 May 2104].
49 Alanis (2013), 210.
50 Kichwa Indigneous Peoples of Sarayaku v. Ecuador Judgment of 27 June 2012, IACtHR
Series C, No. 245 [Sarayaku Case]. Para. 74, Available at: www.corteidh.or.cr/docs/
cases/articulos/series_245_ing.pdf [accessed 18 June 2014].
51 Olivares Alanís (2012), 212.
52 Ibid.
53 Lenzerini (2014).
54 Kichwa Indigenous Peoples of Sarayaku v. Ecuador Judgment of 27 June 2012, IACtHR
Series C, No. 245 [Sarayaku Case] Para. 261.
55 MacKay (2004).
56 Yanner v. Eaton [1999] HCA 53.
57 McRae et al. (2009), 321. Para. 65.
58 Yanner v. Eaton [1999] at 383–4; cited in McRae et al. (2009), 321.
59 Yarmirr v. Northern Territory [2001] HCA 56.
60 McRae et al. (2009), 232.
61 Ibid.
62 Ibid., 38.
63 Ibid.
64 See generally Lambert (1998).
65 Hurley (1998 [2000]), 24.
66 Ibid.
67 Cited in ibid., 24.
68 Ibid., 31.
69 Ibid.
70 Ibid.
71 MacKay (2004), 58.
72 Northern Territory v. Arnhem Land Trust [2008] HCA 29 Para. 50.
242 Notes

73 Ibid., 208.
74 McRae et al. (2009), 240.
75 Ibid., 171.
76 Alexkor Ltd & Another v. the Richtersveld Community & Others, BCLR (12 BCLR 1301
CC, 2003) Para. 62.
77 Van Vuuren and Janse (2011).
78 Press Release Issued by HWB Communications (Pty) Ltd on behalf of the
Richtersveld Communal Property Association Committee. 13 October 2010.Available
at: www.hwb.co.za/media-article.php?id=317 [accessed 14 March 2104].
79 Ibid.
80 Ibid.
81 Constitution of the Republic of Philippines 1987, Article XII, Section 5.
82 Rovillos and Morales (2002), 13.
83 Ibid.
84 Ibid.
85 Puska et al. (2007), 5.
86 Doyle (2010), 91.
87 Assembly Resolution No. 01-2004: Resolution on the Decision Pertaining to the
Composition and Legitimacy of the Siocon Council of Elders and the Official
Position on the Issue of Leadership and Representation of the Canatuan Subanön
Community, 3rd ASSEMBLY OF THE GUKOMS, Rio Hondo, Zamboanga City,
Mindanao, Philippines, 7–10 June, 2004. Para 4. (emphasis in original) (copy on file
with author).
88 Puska et al. (2007), 4.

DRAFT
89 Doyle (2010), 91.
90 Ibid. See also Verdict of the Gukom of the Seven Rivers upon complaint by Timuay
Jose Anoy against TVIRD for its failure to respect customary laws within the territory
of Timuay Jose Anoy (unofficial translation – copy on file with author).
91 Puska et al. (2007).
92 Schertow (2011).
93 Ibid.
94 Rodriguez-Garavito and Arenas (2005).
95 See discussion of Maynas Carijano v.Occidental Petroleum, action taken on behalf of the
Peruvian Achuar by Earthrights, at www.earthrights.org/legal/indigenous-achuar-
face-against-occidental-petroleum-amazon-pollution-case.
96 See Decision number 2003-0003, Judge Nicolás Zambrano of the Provincial court of
Sucumbíos in Nueva Loja, 14 February 2011.
97 Ax (2014).
98 Tobin, (2004), 31.
99 Bosselman (2005), 246. Bosselman finds customary law, judged against five procedural
and technical factors indicative of sustainability – an ability to learn from the past,
capacity for change, feedback mechanisms, fine-grained rules, balance between rights
and responsibilities – to be an effective tool for securing sustainable development. See
also Tobin (2011) 139–48.
100 Brush (1991), 155; Kohler-Rollefston (2005), 7.
101 Almekinders (2001), 5.
102 FAO. (2009a), 10; FAO (2009b), 8; IFAD (2007), 3.
103 Brush, (1991), 154.
104 Tapia and Tobin (2013), 80.
105 Pearce (2012).
106 Santilli (2012), xiv.
107 Ceccarelli (2012), 39.
108 FAO (2009b), 10.
109 Scherf (2000) 58–9.
 Notes 243

110 FAO (2009b), 10.

111 IFAD (2007), 8.
112 Virchow (1999a), 1158.
113 Ibid., 1144–61.
114 Brush (1991), 154.
115 Virchow (1999), 1149.
116 Altieri and Merrick (1987), 93.
117 Gonzalez (2000), 203–5.
118 Ibid., 200
119 Ibid.
120 Tobin and Aguiler (2007), 17.
121 Mazhar (1997).
122 Ibid.
123 Marti, Argumedo and Limber (2010), 3; see also Tapia and Tobin (2013).
124 Marti, Argumedo and Limber (2010), 10.
125 ICHRP (2009).
126 Ibid.
127 Claassens and Mnisi (2009).
128 Wicomb (2010), 26.
129 Claassens and Mnisi (2009), 493.
130 Wicomb (2010), 27.
131 Ibid.
132 The jury of 30, selected though a laborious process from an original list of 500 poten-
tial jurors, included 50 per cent women and an equal percentage of dulits, indigenous

DRAFT
and other marginalised groups. www.iied.org/natural-resources/key-issues/food-and-
agriculture/raita-teerpu-farmers%E2%80%99-jury-democratisation-agriculor
information on the [accessed September 2011].
133 For copy of the 22-point list of farmers demands see Raita Teerpu Farmers Verdict
available at www.raitateerpu.com/documents/brochure_english.pdf [accessed 14
March 2014].
134 FAO Conference Resolution 5/89 – Twenty-fifth Session of the FAO Conference,
Rome, 11–29 September 1989.
135 Moore and Tymoswski (2005), 67.
136 Ibid., 25.
137 Bjørnstad, (2004), 94.
138 Ibid., 67.
139 La Via Campesina, (2011).
140 Selim Louafi, pers. comm., 15 September, 2011, Bremen.
141 Argumendo et al. (2001).
142 Ibid.
143 See generally Tapia and Tobin (2013).
144 Argumedo and Stanner, (2008), 21. Based on the Potato Park model, Association
ANDES is working with communities to develop more community conserved areas
including the Lucre-Muyna Conservation Area, a Ramsar site; the Ausangate Spiritual
Park; and the Andean Camelid Communal Park of Cotarusi.
145 Argumedo and Pimbert (2006), 9.
146 Tapia and Tobin (2013).
147 Argumedo et al. (2011), 3.
148 Proposal for a draft law for the creation and recognition of agrobiodiversity zones in
Ruiz Muller (2009), 38–43.
149 Manuel Ruiz Muller, pers. comm., September 2010, Lima. See also ‘Proposal for a draft
law for the creation and recognition of Agrobiodiversity zones Title VI. On the
Initiative for its creation’, in Ruiz Muller, (2009), 42.
150 Walter Huamani, pers. comm., 28 December 2011, Ministry for the Environment, Lima.
244 Notes

151 Tapia and Tobin (2013), 94.

152 Andersen and Winge (2008), 13.
153 Submission made by the International Institute for Environment and Development in
FAO (2010), 15.
154 FAO (2009b), 9.
155 Köhler-Rollefson (2004).
156 Tapia and Tobin (2013), 92.
157 FAO (2009b), 40.
158 Kohler-Rollefston, Ilse, (2005).
159 Tobin (2013a), 93.
160 Galloway McLean (2010), 6.
161 Pacheco (2009), 335.
162 Rights and Resources Initiative (2014).
163 Pacheco (2009), 335, where the author notes that deforestation was estimated by FAO
to be running at about 7.3 million ha. per year between 2000 and 2005 .
164 For discussion of the threats to Indigenous peoples forest rights see Chavez (2013).
165 Rights and Resources Initiative (2014), 26.
166 Dash (2010).
167 Ibid., 36, where Dash discusses the experience of the Chuktia-Bhunjias and the Junags,
both of whom are recognized as being ‘particularly vulnerable tribal groups’.
168 Ibid., 38.
169 Ibid.
170 Ibid.
171 Supreme Court of India: Orissa Mining Corporation v. Ministry of the Environment and

DRAFT
Forests and Others, Judgement of Written Petition (Civil) No. 180/2011. 18 April 2013.
172 Constitutional Court: Decision 35/PUU-X/2012, reviewing Law 41 of 1999 on Forestry,
issued 20 March 2013 (Traditional Forest Community case (2012)).
173 Ibid., 3.13.
174 Butt (2014).
175 Ibid., 14–15.
176 Ibid., 16.
177 Galloway McLean (2010).
178 Tawake and Tuivanuavou (2004), 26.
179 Tobin (2011), 146–7. Tabu or taboo is used by local communities in the South Pacific
to place a ban on certain activities in a defined area (e.g. fishing on a reef ).
180 Llewell, (2004), 22.
181 Ibid.
182 Havemann (2004), 23.
183 Ibid.
184 Baker (2013), 165.
185 Ibid.
186 NZ Lawyer (2014).
187 Shuttleworth (2012).
188 ‘Whanganui River settlement – your questions answered’. Available at:
www.wanganui.govt.nz/Publications/Whanganui%20River%20settlement%20-
%20Q&A.pdf.
189 Ibid.
190 Comments made to author by unidentified community members during informal
discussions on customary law and resource management in Solomon Islands, in June
2002.
191 Argumedo and Pimbert (2006). See for discussion of biocultural protocols: see
Surdenska et al. (2012); Bavikatte, Jonas and Von Braun (2010).
192 Jonas, Shrumm and Bavikatte (2010), 111.
193 This issue is discussed in more detail in Chapter 9.
 Notes 245

7 Right to culture and cultural heritage

1 Gray, (1997), 165.
2 Ibid.
3 UNESCO Universal Declaration on Cultural Diversity, (adopted at the 31st Session of
the General Conference of UNESCO, Paris, 2000.) See 5th Preambular paragraph and
associated footnote 2 which describes this definition as being in line with the conclu-
sions of the World Conference on Cultural Policies (MONDIACULT, Mexico City,
1982), of the World Commission on Culture and Development (Our Creative
Diversity, 1995), and of the Intergovernmental Conference on Cultural Policies for
Development (Stockholm, 1998).
4 ECOSOC (2009) 3.
5 Weller (2007), 218.
6 O’Keefe (1998), 905.
7 General discussion on the right to take part in cultural life as recognized in Article 15
of the International Covenant on Economic, Social and Cultural Rights, E/1993/22,
chap.VII (General discussion) Para.13; cited in O’Keefe (1998), 917.
8 O’Keefe (1998), 918.
9 Ibid., 918–19.
10 ECOSOC (2009).
11 UNDRIP, Articles 5, 8, 10, 11, 12 and 13.
12 ILO Convention 169, Articles 2, 5, 7, 8, 13, 14 and 15.
13 ECOSOC (2009), 2.
14 Ibid., 3.

DRAFT
15 Ibid., 2.
16 Ibid., 3–4.
17 Ibid.
18 Ibid., 13.
19 Ibid., 11.
20 Ibid.
21 Ibid., 11.
22 Sheleff (1999), 137.
23 For discussion of Article 27 and state obligations to take special measures see O’Nion
(2007), 193–9.
24 UNHRC (1994).
25 Ibid.
26 Lubicon Lake Band v Canada, Communication No 167/1984 (26 March 1990): UN
Doc. Supp. No. 40 (A/45/40) at 1 (1990).
27 Mahuika, Apirana, et al. v. New Zealand, Communication No. 547/1993, UN Doc.
CCPR/C/70/D/547/1993 (2000).
28 Länsman Ilmari v. Finland, Communication No. 511/1992, Human Rights Committee,
UN Doc. CCPR/C/52/D/511/1992 (1994) and Länsman Jouni E. et al. v. Finland,
Communication No. 671/1995, UN Doc. CCPR/C/58/D/671/1995 (1996)..
29 UNHRC (1994), Para. 7.
30 Ulfstein (2004), 9.
31 Weller (2007), 224 referring to UNHRC (1994), reprinted in ‘Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty
Bodies’, UN Doc. HRI/GEN/1/Rev.6 at 158 (2003) Para. 6.1.
32 ILO, Convention 169, Article 2(2)(b).
33 Articles 5, 15 and 17.
34 Articles 17, 29(7).
35 Xanthaki (2007), 203.
36 ILO, Convention 169, Article 2(b).
37 Weller (2007), 227.
246 Notes

38 OSCE High Commissioner on National Minorities (1999).

39 See Xanthaki (2007), 197, for the proposition that pursuit of cultural rights is a less
conflictive means for Indigenous peoples to promote recognition of many of the rights
that they seek under the banner of self-determination.
40 Anaya (2004), 135.
41 Ibid., 134.
42 Macklem (2008).
43 Weller (2007), 242.
44 Ibid., referring to J.G.A Diergaardt et al. v. Namibia Communication No 760/1997,
UN Doc. CCPR/C/69/D/760/1997 (2000).
45 Weller (2007), 243.
46 Lansman et al. v. Finland Communication No. 511/1992, Human Rights Committee,
UN Doc. CCPR/C/52/D/511/1992 (views adopted 26 October 1994), Para. 9.4.
47 Ibid., Para. 10.4.
48 Anaya (2004), 137.
49 Francis Hopu & Bessert v. France CCPR/C/58/D/671/1995, Case No 671/1995.
50 Stamatopoulou (2010), 393.
51 See, for example, Article 12 of the Nagoya Protocol requiring Parties to ‘take into
consideration’ customary law and protocols of Indigenous peoples when adopting
legislative policy and/or administrative measures to implement their obligations under
the Protocol.
52 Merryman (2005).
53 Ibid., 22.
54 Ibid.

DRAFT
55 Brown (2003), 40.
56 See Janke (1999), 11–12, where she lists among aspects of indigenous heritage: literary,
performing and artistic works (including music, dance, song ceremonies, symbols,
designs, narratives and poetry), languages, scientific, agricultural, technical and ecolog-
ical knowledge (including cultigens, medicines and sustainable use of flora and fauna),
spiritual knowledge, moveable cultural property, indigenous ancestral remains, indige-
nous human genetic material (including DNA tissues), cultural environment resources
(including minerals and species), immovable cultural property (including sacred sites
and burials) and documentation of Indigenous peoples’ heritage in all forms of media
(including scientific and ethnographic research reports, papers and books, films, sound
recordings).
57 Brown (2003), 40.
58 See The Mayagna (Sumo) Awas Tingni Community v. Nicaragua 2001 Inter-Am Ct. H.R
(ser C) No. 79; see also Saramaka v. Suriname 2007 Inter-Am. Ct. H.R. (ser. C) No. 172
(No. 28, 2007) .
59 See discussion of Hindmarsh Island affair in Brown (2003), 173.
60 Coombe (2009).
61 See Peruvian Law 27811, 24 July 2002, introducing a Protection Regime for the
Collective Knowledge of Indigenous Peoples derived from Biological Resources.
Available at: www.wipo.int/wipolex/en/details.jsp?id=3420 [accessed 10 July 2014].
62 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage 2368
UNTS 1 (adopted on 17 October 2003, entered into force 20 April 2006).
63 Carpenter, Katyal and Riley (2009), 103.
64 Tobin (2001).
65 Tsosie (2007), 397-8.
66 See generally Coombe (2009).
67 Merryman (2005), 11–39.
68 Brown, (2003); Mezey (2007).
69 Carpenter, Katyal and Riley (2009), 101.
70 Brown (2003), 237.
 Notes 247

71 Barsh (1999), 15.

72 Ibid., 16.
73 Ibid., 20.
74 Daes (1993), Para. 22.
75 Al Attar Ahmed, Aylwin and Coombe (2009), 321.
76 Ibid., 320, n39.
77 Prott, Lyndel and O’Keefe (1992), 309.
78 See generally Coombe (2009); Janke (1999); Prott and O’Keefe (1992).
79 Prott and O’Keefe (1992), 309.
80 Ibid.
81 Daes (1993), Para. 23.
82 Daes (1993), Para. 24.
83 Tsosie (2012), 237.
84 Janke (1999), 47-48.
85 Daes (1993), Para. 26.
86 Ibid., Para. 28.
87 Ibid., Para. 29.
88 Ibid.
89 Daes (1995) Annex, Principles and Guidelines for the Protection of the Heritage of
Indigenous People.
90 Ibid.
91 ECOSOC (2000).
92 Wiessner and Battiste (2000), at 384.
93 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage

DRAFT
(adopted 17 October 2003, entered into force 20 April 2006).
94 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural
Expressions, 2440 UNTS 311 (adopted on 20 October 2005, entered into force 18
March 2007).
95 Tsosie (2012), 238.
96 Vrdoljak (2008). See also International Law Association (2006) where it states ‘The
United Nations should consider the possibility of drafting a convention to establish
international jurisdiction for the recovery of Indigenous peoples’ heritage across
national frontiers, before the end of the International Decade of the World’s
Indigenous People’, 348.
97 Nafziger, Kirkwood Paterson and Rentlen (2010), 427.
98 Tsosie (2007), 404.
99 Nafziger, Kirkwood Paterson and Rentlen (2010), 427.
100 Ibid., 431.
101 Ibid., 429.
102 Tsosie (1997), 6.
103 See Peru’s Law 27811.
104 Tsosie (2007), 404.
105 Tsosie (1997), 6.
106 See Brown (2003), 20.
107 Nafziger, Kirkwood Paterson and Rentlen (2010).
108 Carpenter, Katyal and Riley (2009), 1093.
109 Ibid.
110 Ibid.
111 Ibid.
112 Nafziger, Kirkwood Paterson and Rentlen (2010), 428.
113 Al Attar Ahmed, Aylwin and Coombe (2009), 322.
114 Coombe (2009), 401.
115 Declaration on the Role of Sacred Natural Sites and Cultural Landscapes in the
Conservation of Biological and Cultural Diversity International Symposium
248 Notes

‘Conserving Cultural and Biological Diversity:The Role of Sacred Natural Sites and
Cultural Landscapes’, held by UNESCO and the United Nations University, Tokyo,
Japan, 30 May to 2 June 2005.
116 During the Tokyo meeting a proposal for inclusion in the declaration of a provision
recognizing Indigenous peoples’ rights to restitution of their sacred sites was met with
strong resistance by participants at least in part due to claims it would add fuel to the
conflicts over Jerusalem (based upon the author’s notes as a party to the negotiations
leading to adoption of the declaration).
117 Brown (2003), 166.
118 485 US 439, 453 (1988).
119 Brown (2003), 166.
120 Justice O’Connor cited in Nafziger et al. (2010), 39.
121 Cited in Nafziger et al. (2010), 42.
122 Ibid. Although unsuccessful in the US Supreme court the plaintiffs in Lyng actually
achieved their objective of preventing the completion of the G-O Road when the
Forest Service took the decision not to continue its plans in light of the passage of the
California Wilderness Act.Tatum and Kappus Shaw (2014), 47.
123 535 F.3d, at 1072.
124 Carpenter et al. (2009), 1026.
125 Ibid., 105, where the authors note that the Ninth Circuit cited Lyng for the
proposition that tribal religious claims could result in ‘de facto beneficial ownership of
some rather spacious tracts of public property’, 1072.
126 Bell (2001), 118.
127 McRae et al. (2009), 422.

DRAFT
128 Brown (2003), 171.
129 Ibid.
130 Chapman v. Luminis Pty Ltd (No.5) FCA 1106 (21 August 2001).
131 Brown (2003), 203.
132 Ibid., 184.
133 Bell (1998), 537.
134 Ibid. at 119.
135 See Brown (2003), 151–72 for discussion of the Devil’s Tower case, a sacred site for the
Lakota and a favoured site for rock climbers, where voluntary bans on climbing during
the most important time of the year for the Lakota’s sacred rites has been, he claims, a
marked success.
136 Secretariat of the Convention on Biological Diversity (2004), Para. 27: ‘In determin-
ing the scope of a cultural impact assessment, the following should be considered: (a)
Possible impacts on continued customary use of biological resources; and (f) Possible
impacts on the exercise of customary laws.’.
137 Carpenter et al. (2009), 1027.
138 Ibid., 1028.
139 Ibid., 1048.
140 Ibid., 1066.
141 See Tsosi (2001), 1306, where she says that ‘Although Native peoples, like all people,
share the need to use the land for their physical sustenance, they hold different notions
about the appropriate relationship and obligations people hold with respect to the
land. The mere fact that the land is not held in Native title does not mean that the
people do not hold these obligations, nor … that they no longer maintain the rights
to these lands’; cited in Carpenter et al. (2009), 118.
142 Carpenter et al. (2009), 1067.
143 Ibid., 1069; see also 1073, where the authors argue that, while asserting the fiduciary
ethic in regard to their cultural property model they distinguish it on the basis of the
‘multiple levels of interactivity in the cultural property regime, as well as overlapping
and sometimes opposing obligations, rights and duties regarding fiduciaries and bene-
 Notes 249

ficiaries at different points along the cultural property spectrum’.

144 Ibid., 1071.
145 Ibid., 1067–8, 1076–7.
146 Ibid., 1082.
147 Ibid. where the authors refer to the Devils Tower case – Bear Lodge Multiple Use
Association v. Babbitt, 175 F.3d 814 (10th Cir. 1999) – in which the National Park
Service with the approval of Secretary of the Interior placed a voluntary ban on climb-
ing at Devils Tower, the result of which was a fall of over 70 per cent in the numbers
climbing Devils Tower during the month of June.
148 Alexander, Chamundeeswari, Kambu, Ruiz and Tobin (2003).
149 Carpenter et al. (2009), 1083–4. The authors describe four elements of static steward-
ship: (1) an interest in conserving a sacred resource from overuse or pollution; (2) an
interest in placing an object to rest, such as funerary remains; (3) an interest in main-
taining the physical and spiritual integrity of an object by imposing rules against
alienability, such as tribal rules that prohibit the sale of sacred objects to nontribal
members; and (4) an interest in ensuring continued access to and preservation of a
cultural resource for prayer, like a sacred site, 1085. The use of the term “static stew-
ardship” is in no way intended to characterize any aspect of Indigenous peoples
cultural property as static as long as it keeps its relationship to a living culture. Pers.
Comm. Angela Riley 29 June 2014.
150 Naomi, Mezey, The Paradoxes of Cultural Property, 107 Colombia Law Review 2004
(2007).
151 Ibid., 189.

DRAFT
8 Traditional knowledge
1 Tobin (2014b).
2 UNDP, Basic points of agreement on the issues faced by the Indigenous peoples of
Asia, Consultation on the Protection and Conservation of Indigenous Knowledge,
Sabah, East Malaysia, 24–27 February 1995; reprinted in Posey (1999), 575.
3 UNPFII (2006). For discussion of the importance of traditional knowledge see
Subramanian and Balakrishna (2010).
4 Garcia (2000).
5 Quoted in The Genetic Revolution, an exhibition at the Museum of New Zealand Te
PapaTongarewa, 3 September 2005–23 January 2006.Available at:www.tepapa.govt.nz
[last accessed 11 September 2011].
6 Coombe (2005), 115.
7 Tobin (2009), 108.
8 Ibid., 104
9 For discussion of the threats facing traditional knowledge see UNPFII (2006);Tobin
and Swiderska (2001); Swiderska (2006a); Garcia (2000).
10 Tobin and Swiderska (2001), 13–14.
11 Ibid.
12 UNDP, Basic points of agreement on the issues faced by the Indigenous peoples of
Asia, Consultation on the Protection and Conservation of Indigenous Knowledge,
Sabah, East Malaysia, 24–27 February 1995; reprinted in Posey (1999), 574.
13 Statement from the COICA/UNDP Regional Meeting on Intellectual Property
Rights and Biodiversity, Santa Cruz de la Sierra, Bolivia, 28–30 September 1994;
reprinted in Posey (1999), 571.
14 WIPO (2013a).
15 Dodson (2007), 8.
16 Dutfield (2000), Annex 1, 1.
17 Graham Dutfield, pers. comm. 12 March 2014.
18 Ibid.
250 Notes

19 Posey (1996).
20 Nijar (1998), 11–12.
21 Hendrykx, Koester and Prip, (1994), 148; Tobin (1994); Tobin (1997).
22 Blakeney (2011).
23 Peru Ley 27811.
24 Swiderska et al. (2012).
25 Dodson lists the following instruments as recognising rights over traditional know-
ledge: Universal Declaration of Human Rights, Article 27; International Covenant on
Economic, Social and Civil Rights, Article 15(1)(c); International Covenant on Civil
and Political Rights, Article 27; Convention on Biological Diversity Articles 8(j);
International Treaty on Plant Genetic Resources for Food and Agriculture, Article 9;
International Labour Organization Convention No. 169,Articles 13, 15 and 23; Berne
Convention for the Protection of Literary and Artistic Works; Agreement on Trade-
Related Aspects of Intellectual Property Rights; United Nations Convention to
Combat Desertification, Article 3; Non-legally Binding Authoritative Statement of
Principles for a Global Consensus on the Management, Conservation and Sustainable
Development of all Types of Forests (1992), Paragraph 12(d), Agenda 21, Chapter 26
(k), Paragraph 26, 1; World Health Organization Traditional Medicine Strategy
2002–2005; Rio Declaration on Environment and Development, Principle 22; United
Nations Declaration on the Rights of Indigenous Peoples, Articles 11 and 31. (2007,
4–5) To these may be added Nagoya Protocol on Access to Genetic Resources and the
Equitable Sharing of Benefits Derived from their Utilization, Article 7.
26 Convention on Biological Diversity, Decision IV/10.
27 Secretariat of the Convention on Biological Diversity (2004).

DRAFT
28 Secretariat of the Convention on Biological Diversity (2011).
29 Convention on Biological Diversity DecisionVII/16,Annex: Some potential elements
to be considered in the development of sui generis systems for the protection of tradi-
tional knowledge, innovations and practices of indigenous and local communities.
Available at www.cbd.int/decision/cop/?id=7753 [accessed 4 April 2014].
30 Secretariat of the Convention on Biological Diversity (2007), 3–4.
31 The Protocol will enter into force 90 days after the deposit of the 50th instrument of
ratification, acceptance, approval or accession by states or regional economic integra-
tion organizations that are parties to the Convention. By June 2014, 38 countries had
ratified the Protocol: Albania, Benin, Bhutan, Botswana, Burkina Faso, Comoros, Côte
D’Ivoire, Denmark, Egypt, Ethiopia, European Union, Fiji, Gabon, Guatemala, Guinea
Bissau, Guyana, Honduras, Hungary, India, Indonesia, Jordan, Kenya, Lao People’s
Democratic Republic, Mauritius, Mexico, the Federated States of Micronesia,
Mongolia, Myanmar, Namibia, Norway, Panama, Rwanda, Samoa, the Seychelles,
South Africa, Spain, the Syrian Arab Republic,Tajikistan and Vietnam.The Protocol is
likely to enter into force before the end of 2014.
32 Nagoya Protocol, Articles 7, 12, 16.
33 Ibid. Article 7.
34 Ibid.
35 Ibid., Article 16. Article 15 applies similar requirements to genetic resources.
36 Tobin (2014a), 128; Kamau and Winter (2012).
37 Convention on Biological Diversity, Articles 6 and 15.
38 Tobin (2014a), 125–6.
39 Janke (2011).
40 UNDRIP, Articles 26, 27, 31, and 34; ILO Convention 169, Articles 8, 15 and 16.
41 Nagoya Protocol, Article 12.
42 UNDRIP, Articles 26, 27, 31, 34; ILO Convention 169, Articles 8, 15 and 16.
43 Tobin (2013b), 162.
44 Nagoya Protocol, Article 18.
45 Regulation of the European Parliament and of the Council of on compliance meas-
 Notes 251

ures for users from the Nagoya Protocol on Access to Genetic Resources and the Fair
and Equitable Sharing of Benefits Arising from their Utilisation in the Union,
Adopted by the European Parliament 11 March. Available at:
http://register.consilium.europa.eu/doc/srv?l=EN&f=PE%20131%202013%20INIT
[accessed 1 May 2014].
46 Tobin (2014a), 131.
47 Ibid., 124.
48 Ibid., 129.
49 Adoption of Regulation on Access to Genetic Resources and the Fair and Equitable
Sharing of Benefits Arising from their Utilization (Nagoya Protocol) Sections National
Journal, Available at www.nationaljournal.com/library/123203.
50 Christopher Herrlinger and Michael A. Koch (2014) Biodiversity Laws: An Emerging
Regulation on Genetic Resources on “IP on Life”Through the Backdoor? Bio Science
Law Review, Vol 13/4, 119–131.
51 Department of the Environment Australia (2012) see also the call for comments on the
Australian Government’s proposal for implementation of the Nagoya Protocol:
www.environment.gov.au/topics/science-and-research/australias-biological-
resources/Nagoya-protocol-convention-biological
52 Ibid.
53 Nagoya Protocol, Article 17. For discussion of certification systems see Tobin, Burton
and Fernandez-Ugalde (2008);Tobin, Cunningham and Watanabe (2005).
54 For discussion of certification and its role in protection of Indigenous rights see Tobin
(2000).
55 Antons (2012), 154.

DRAFT
56 Decision of the assemblies of member states of WIPO, 43rd (21st Ordinary) Session,
23 September – 2 October, 2013, Matters Concerning the Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore, Agenda Item 35, available at www.wipo.int/export/sites/www/tk/en/
igc/pdf/igc_mandate_1415.pdf [accessed 4 February 2014].
57 Ibid.
58 Antons (2012), 155.
59 WIPO (2014a).
60 WIPO/(2014b).
61 WIPO (2014a), Draft Article 6.4.
62 WIPO/(2014b), Draft Article 5.5.
63 WIPO (2014a), Draft Article 7;WIPO/(2014b), Draft Article 6.
64 Bracketed text in international negotiating documents indicates text proposed but not
yet agreed upon by the negotiators.
65 Antons (2012) 147.
66 Ibid.
67 UNESCO/WIPO (1985), Para. 10; Cited in Antons (2012), 148.
68 Antons (2012), 166.
69 Von Lewinski (2008) 516.
70 Ibid., 517.
71 Ibid., 518.
72 WIPO (2006), Article 3.
73 Ibid., Article 6.
74 Ibid., Article 7.
75 Ibid., Article 8.
76 Ibid., Article 1, 2.
77 Ibid., Article 1.5.
78 Ibid.
79 Ibid. Annex, 15
80 Ibid., Article 2.
252 Notes

81 WIPO (2006), Article 4(iii).

82 R v. Van der Peet [1996] 2 SCR 507.
83 Taubman (2005).
84 Ibid., 538.
85 Ibid.
86 WIPO (2014c).
87 WIPO (2011). Articles 2 and 5.
88 Ibid. Article 4(2)(e).
89 See WIPO, Draft Customary Law Issues Paper 1: Customary Law & the Intellectual
Property System in the Protection of Traditional Cultural Expressions and Traditional
Knowledge: Issues Paper – version 3.0 (2006); this issue paper was finally released as
WIPO (2013b).
90 WIPO (2013b), 22–3.
91 Ibid. See also Taubman (2005), 531–2.
92 Taubman (2005), 539.
93 De la Cruz (2007).
94 Tobin (2013c).
95 Ibid. and WIPO (2013b) respectively.
96 WIPO (2014a), Draft Article 3.1 Option 1.
97 WIPO (2014a), Draft Article 3.1 Option 2.
98 WIPO (2014d).
99 Ibid. Article 3.1.
100 Ibid.
101 Ibid.

DRAFT
102 Ibid. Article 3.2.
103 Ibid. Article 3.3.
104 Ibid. Alternative 3.3.
105 Ibid. Article 9.
106 Lucas-Schloetter, Agnes (2008) 415 n 68.
107 Antons (2012), 169.
108 Coombe (2009), 407.
109 Ibid.
110 See Andean Community of Nations Decision 391: Common Regime on Access to
Genetic Resources. Available at: www.sice.oas.org/trade/junac/decisiones/
dec391e.asp [accessed 16 March 2014].
111 Andean Community, Decision 486: Common Intellectual Property Regime, Article
26 (i).Available at: www.sice.oas.org/trade/junac/decisiones/dec486e.asp [accessed 16
March 2014].
112 De la Cruz et al. (2005).
113 Ibid., 33 author’s translation.
114 Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions
of Folklore Within the Framework of the African Regional Intellectual Property
Organization (ARIPO). Adopted by the Diplomatic Conference of ARIPO at
Swakopmund (Namibia) on 9 August 2010. Available at www.wipo.int/wipolex/en/
other_treaties/text.jsp?file_id=201022 [accessed 16 March 2014].
115 Ibid., Section 1.1.
116 Ibid., Section 4, Protection criteria for traditional knowledge.
117 Ibid., Section 7.1.
118 Ibid., Section 7.3.
119 Ibid., Section 11.
120 Ibid., Section 13.
121 Ibid., Section 19.1.
122 Ibid., Section 16, Protection criteria for expressions of folklore.
123 Ibid., Articles 4 and 16.
 Notes 253

124 Ibid., Section 18 (a).

125 Ibid., Articles 22(1) and 24.
126 ‘Draft Model Law for the Protection of Traditional Knowledge and Expressions of
Culture 2002’ (on file with author).
127 Pacific Islands Forum Secretariat (2010).
128 Ibid.
129 Peru Law No. 27811 of 24 July 2002, introducing a Protection Regime for the
Collective Knowledge of Indigenous Peoples derived from Biological Resources.
Available at www.wipo.int/wipolex/en/text.jsp?file_id=179597 [accessed 16 March
2014].
130 Ibid., Article 11.
131 Tobin (2001).
132 Peru Ley 27811, n. 122 Article 6.
133 Ibid., Article 8.
134 Ibid., Article 46.
135 Ibid., Article 13.
136 Dutfield (2000).
137 New Zealand Patents Act 2013 S. 3(d).
138 Lai (2014), referring to the New Zealand Patents Act 2013 ss. 275–278.
139 Ibid., fnn.74–76 and accompanying text, where Lai claims that for many the Patent Act
is considered merely window dressing.
140 Halewood (2005), 358.
141 Ibid., 361.
142 Ibid.

DRAFT
143 Ibid.
144 Bulun Bulun v. R & T Textiles Pty Ltd (1998) 41 IPR 513, 523–525; cited in McRae et
al. (2009), 426.
145 Western Australia v. Ward, [2002] HCA 28.
146 Ibid., cited in McRae et al. (2009), 428.
147 Neowarra v. Western Australia [2003] FCA 1402.
148 Rimmer (2003), 32.
149 Ibid., 277.
150 Neowarra v. Western Australia [2003] FCA 1402, 289.
151 Ibid., 485–7.
152 Rimmer (2003), 34.
153 Halewood (2005), 360.
154 Preston Hardison, pers. Comm., 13 July 2011.
155 Ibid.
156 ‘Statement by the Tulalip Tribes of Washington on Folklore, Indigenous Knowledge,
and the Public Domain’, July 9, 2003, WIPO Intergovernmental Committee on
Intellectual Property and Genetic Resources,Traditional Knowledge and Folklore, fifth
Session, 5–17 July 2003.
157 Tobin (2013c), 74.
158 Ibid., 81–2.
159 Ibid., 78.
160 For detailed discussion of biocultural protocols see Swiderska et al. (2012) Bavikatte
and Jonas (2009).
161 Violet Ford, pers. comm., 8 July 2007.
162 Tobin (2013b), 159.
163 Ibid.
164 Tobin (2013c), 91.
165 Pacific Islands Forum Secretariat (2002).
166 See Forsyth (2012).
167 Ibid., 204.
254 Notes

168 See Tobin (2013c), 31.

169 Posey (1996),Tobin (2001), 61–62.
170 Tobin (2013a).
171 Ruiz Muller (2013).
172 See Vogel et al. (2011), 52.
173 Nagoya Protocol, Article 10.
174 Ruiz (2013).
175 Forsyth (2012), 205.
176 Tobin and Swiderska (2001), 13–14.
177 Forsyth (2014).

9 Intercultural equity and justice

1 Hinz, (2011), 153;Twingomugisha (2011), 449.
2 Malik, Deputy District Public Prosecutor at the Government of Sindh Karachi, in his
personal capacity claims that more than 2,500 persons were slain under the label of
honour killings between 1999 and 2008. He cites the Human Rights Commission of
Pakistan, annual report for estimates of 913 honour killings of girls and women includ-
ing 99 minors in 2012, 191 of these were reportedly slain for marrying their own
choice of husbands on going against their families’ wishes. In most cases the killers
were close family members and an estimated 80 percent of perpetrators are not
punished (forthcoming). See also The Express Tribune (2014) where Dr Nasrullah of
Emory and West Virginia University claims there are upwards of 500 women ‘honour’
killings annually in Pakistan.

DRAFT
3 Female genital mutilation (FGM) is practised in at least 29 countries in Africa and the
Middle East. See World Health Organization Fact Sheet No. 241 (updated February
2014) Available at www.who.int/mediacentre/factsheets/fs241/en/ [accessed 15 April
2014].
4 Twingomugisha (2011), 452.
5 Wiessner (1999), 96.
6 ILO Convention 169, Articles 7, 8 and 9; United Nations Declaration on the Rights
of Indigenous Peoples.
7 Organization of American States (2012).
8 Cowan, Dembour and Wilson (2001), 6.
9 Donnelly (1984), 414–18.
10 Ibid.
11 Dundes Rentlen (2004), 217.
12 Ibid., 219.
13 The World Health Organization estimates that about 3 million girls are at risk of
female genital mutilation in Africa each year and more than 125 million girls and
women worldwide live with the consequences of genital mutilation. World Health
Organization Fact Sheet No. 241 (updated February 2014). Available at
www.who.int/mediacentre/factsheets/fs241/en/ [accessed 15 April 2014].
14 Dundes Rentlen (2004), 217.
15 Engle Merry, (2006), extract reprinted in Alston and Goodman (2012), 540.
16 Ibid.
17 AAWORD, a Statement on Genital Mutilation, extract reprinted in Alston and
Goodman (2013), 573.
18 Twinomugisha (2011), 457.
19 Bond (2011).
20 Kuokkanen (2014).
21 Xanthaki (2011), 421.
22 Dame Mira Szasy and Hinemoa Awatere, Statement delivered to the 12th Session
(1994) of the United Nations Working Group on Indigenous Peoples, on behalf of
 Notes 255

Māori Women’s Tribunal Claim, cited in Mead (1994), 3.

23 Protocol to the African Charter on Human and Peoples’ Rights on the Rights to
Women in Africa (adopted in Maputo 11 July 2000, entered into force 25 November
(2005)), OAU Doc. CAB/LEG/66.6 (2003).Available at www.achpr.org/instruments/
women-protocol/ [accessed 14 April 2014].
24 Ibid. See Article 5 of the Protocol, which requires states to take action to ensure ‘prohi-
bition, through legislative measures backed by sanctions, of all aspects of female genital
mutilation, scarification, medicalization and para medicalization of female genital
mutilation and other practices in order to eradicate them.’
25 Bond (2011), 489–50.
26 Ibid.
27 Ibid.
28 Maputo Protocol, Article 17.
29 Banda (2005), 81; cited in Bond (2011), 489.
30 Bond (2011), 491.
31 Ibid., 492.
32 Communication No 24/1977;Views in UN Doc A/36/40 (1981).
33 Communication No 195/1985;Views in UN Doc A/43/40 (1988).
34 Communication No 511/1992;Views in UN Doc A/50/40 (1995).
35 Xanthaki (2011), 430.
36 Ibid.
37 Ndulo (2011), 89.
38 See for example the Constitution of Botswana 1966,Art 15(4)(d); which provides that
Article 15(1) prohibiting discrimination in legislation does not apply (d) for the appli-

DRAFT
cation in the case of members of a particular race, community or tribe of customary
law with respect to any matter whether to the exclusion of any law in respect to that
matter which is applicable to other persons or not; see also Constitution of Lesotho
1993, Section 7 (6) (c); Constitution of the Kingdom of Swaziland 2005 Section 26;
Constitution of Zambia 1996, Article 23 (4)(d).
39 Ndulo (2011), 91.
40 Ibid., 92–3.
41 Ibid.
42 Ibid., 114–5.
43 Claasens and Mnisi (2009).
44 Ibid., 495.
45 Ibid., 500.
46 Ibid.
47 Ibid.
48 Ibid., 516.
49 Ibid.
50 Vermeylen (2010).
51 Harper (2011a), 20.
52 Hammond (2011), 660.
53 Faundez (2003), 18.
54 Ibid.
55 Hammond (2011), 660.
56 Ibid.
57 Ibid., 659.
58 In a case in Ecuador, where a community determined to hang a murder suspect, pres-
sure from outside forces led them to change the sentence and put him to hard labour,
freezing baths at high altitude and fifteen lashes. In this instance the President of
Ecuador made a scathing attack on the community saying,‘In this country there is no
death penalty, you cannot kidnap people, torture is not acceptable as a form of punish-
ment … indigenous justice cannot go against human rights, and torture is not justice’;
256 Notes

see El Mercurio (2010).

59 ICHRP (2009), 35.
60 ICHRP (2009), 36.
61 Ley de Deslinde Jurisdiccional, Ley No. 073 of 29 December 2010. Available at:
www.derechos.org/nizkor/bolivia/doc/deslinde15.html [accessed 22 April 2014].
62 Chavez (2013). Hammond reports 57 lynchings in Bolivia in 2007 alone (2011), 671.
63 Hammond (2011), 672.
64 Borrows (2010), 39–40.
65 Ibid.
66 Republic of Rwanda, Organic Law 40/2000 of 26/01/2001 ‘Setting up Gacaca
Jurisdictions and Organising Prosecution of Offences Constituting the Crime of
Genocide or Crimes against Humanity Committed between 1 October 1993 and 31
December 1994’ Official Gazette of the Republic of Rwanda, October 2000.
67 Outreach Programme on the Rwanda Genocide and the United Nations, Available at
www.un.org/en/preventgenocide/rwanda/about/bgjustice.shtml [accessed 14 April
2014].
68 Rettig (2008), 32.
69 See Clark (2010) 348, see also Drumbl (2000) 1263–7 where he discusses the power
of reintegrative shaming for the purposes of restorative justice; Cobban (2002) argues
that Gacaca provides a better chance of reconciliation than the International Criminal
Tribunal for Rwanda.
70 Clark (2010).
71 See Human Rights Watch (2011).This detailed report of the procedural failings of the
Gacaca courts reports of cases in which sentences of life imprisonment were handed

DRAFT
down following less than an hour’s deliberations.
72 Rettig (2008), 26. Kjell Andersen, who has carried out extensive research on the
Rwandan genocide, points out that while there were Rwandan Patriotic Army RPF
war crimes and possibly even crimes against humanity but there is no evidence of an
RPF (Tutsi)-led genocide. (pers. comm. 24 April 2014).
73 As of May 2012 at least 1,000 applications for review have been made; Human Rights
Watch (2011).
74 Human Rights Watch (2011).
75 Of almost 359,000 judges elected to sit on Gacaca courts, almost a third were eventu-
ally replaced due to inefficiency, corruption or alleged involvement in the genocide.
76 Bosman (2007).
77 Ibid., 45.
78 Clark (2010), 345–50.
79 Ibid., 346.
80 Ibid., 340.
81 Ibid., 339.
82 Ibid., 340. Kjell Andersen argues that the impact of the Gacaca on reconciliation
cannot be measured in terms of the Gacaca itself but rather the affiliated institutions
such as Ingando (reindoctrination camps for prisoners and others) and Travaux
d’Interet Generale (work camps for confessed, low-level prisoners). Those category 2
and 3 offenders (assaults and property crimes but not the most notorious offenders or
leaders) who confessed could go through the TIG system and serve only 50% of their
total required time in better conditions. In TIG they would be re-educated as well as
performing community labour, which was sometimes directly related to reconciliation
such as rebuilding survivor’s houses. (pers. comm. 24 April 2014).
83 Clark (2010), 341.
84 Borrows (2009), 37.
85 Churchill (1997) claims that upwards of 90 precent of the population of Indigenous
peoples in the Americas were killed as the direct or indirect (but predictable) impacts
of colonization.
 Notes 257

86 Van Grasdorff, Röschert and Firoze Manji (2012).

87 Chalk and Jonassohn (1990).The authors claim ‘an act like the Cherokee deportation
would almost certainly be considered an act of genocide today’.
88 Reynolds (2001).
89 Aparicio, Jorgensen and Gray (1986).The report claims up to 100,000 Naga have been
killed by Indian Armed forces.
90 Westra (2007), 109–12.
91 Ibid., chapters 4–6. See in particular Beanal v. Freeport McMoran Inc, No. 98-30235.,
November 29, 1999 – US 5th Circuit.Available at: http://caselaw.findlaw.com/us-5th-
circuit/1082269.html [accessed 12 April 2014]; The Presbyterian Church of Sudan, Rev.
John Gaduel, Nuer Community, Development Services and Others v.Talisman Energy Inc. 244
F. Supp. 2d 289; 2003 US Dist. LEXIS 4085.Available at: https://www.earthrights.org/
sites/default/files/documents/talisman-decision.pdf [accessed 14 April 2014].
92 Asian Human Rights Commission and ICP (2013).
93 Caldwell (2014). Henning Melber, a German political scientist focusing on Namibia
argues that the German refusal to recognize the genocide perpetrated on the Herero
and Nama people is not merely about a fear of having to pay compensation. It is he
says more likely to reflect a common position among ex-colonial states to collectively
refrain from admitting fault lest it open a flood of claims.
94 Hon (2014), 401.
95 Davidson (2012).
96 Mako (2012); Short (2010).
97 Mako (2012), 182.
98 ECOSOC (1948).

DRAFT
99 Schabas (2009) 209–11.
100 Ibid., 210.
101 Ibid., 212.
102 Ibid., 211.
103 The 1981 Declaration of San Jose, prepared in an UNESCO sponsored meeting of
experts on ethno-development, states that ‘ethnocide means that an ethnic group is
denied the right to enjoy, develop and transmit its own culture and its own language,
whether collectively or individually’; see Schabas (2009), 220.
104 United Nations High Commissioner for Human Rights, Draft Declaration on the
Rights of Indigenous Peoples, Geneva: United Nations, 1994. Available at:
www.unhcr.ch/huridocda/huridoca.nsf/(symbol)/e.cn.4.sub.2.res.1994.45.en?open
document.

Prosecutor v. Krstić, Case No. (IT-98-33-A) Judgment 19 April 2004 Para. 25, see also
105 Thornberry (2002), 387–8.
106
footnote 39 discussing the conclusion of the International Law Commission: ‘As
clearly shown by the preparatory work for the Convention, the destruction in ques-
tion is the material destruction of a group either by physical or by biological means,
not the destruction of the national, linguistic, cultural or other identity of a particular
group’; International Law Commission (1996), 90–91. See also Schabas (2009) where
he says ‘cultural genocide is not “a violation of international law equivalent to geno-
cide”, because no international instrument exists making it a punishable act.
Moreover, in the light of the above, it would be implausible to argue that there was

Prosecutor v. Krstić, Case No. (IT-98-33-T) Judgment, 2 August 2001, Para. 580.
some customary norm to fill the void in the Convention on this issue.’ 220–1.

Prosecutor v. Krstić, Case No. (IT-98-33-A) Judgment, Para. 53. Available at:
107
108

Prosecutor v. Krstić, Case No. (IT-98-33-A) Partially Dissenting Opinion of Judge

www.icty.org/x/cases/krstic/acjug/en/krs-aj040419e.pdf [accessed 15 April 2014].
109
Shahabuddeen, 19 April 2004, Para. 50.

Prosecutor v. Blagojević, Case No. (IT-02-60-T) Judgment, 17 January 2005, Para. 666.
110 Hon (2013), 376.
111
258 Notes

Available at: www.icty.org/x/cases/blagojevic_jokic/tjug/en/bla-050117e.pdf

Ibid., Paras. 663–666; and see also Prosecutor v. Radislav Krstić, Case No. IT-98-33-A,
[accessed 15 April 2014].

2004, Judgment, 19 April 2004 Para. 31, referring to Krstić Trial Judgement, Para. 595.
112

113 Ibid., Para. 666. While the Decision of the Trial Chamber with regards to destruction
of a group remains useful, the conviction of Blagojević for complicity in genocide was
later reversed by the Appeal Chamber. Prosecutor v Blagojević (Case No. IT-02-60-A),
Judgment, 9 May 2007; Schabas (2000), 218.
114 United Nations International Criminal Tribunal for the formerYugoslavia Judgement,
Prosecutor v. Krajisnik Case No. IT-00-39-T, 2006, The Hague: United Nations Para.
854, footnote 1701. Available at: www.icty.org/x/cases/krajisnik/tjug/en/kra-
jud060927e.pdf [accessed 20 April 2014].
115 Hon (2013) 407.
116 Ibid.
117 Gupta (2005) describes the removal in Bangladesh of the Indigenous Jumma peoples
from their homelands, and the ‘clear pattern of killings of the Jummas of the
[Chitattagong Hill Tribes] at genocidal proportions’, 42.
118 Dudenhoefer (2013).
119 About Shell, see Survival International at www.survivalinternational.org/about/shell
[accessed 14 April 2014].
120 Westra (2007), 176.
121 Schabas (2000); cited in Westra (2007), 175.
122 Ibid.
123 Short (2010), 836.

DRAFT
124 Mako (2012), 94.
125 Hance (2014).
126 Ibid.
127 Republic of Ecuador Constitution 2008, Article 57: ‘The territories of the peoples
living in voluntary isolation are an irreducible and intangible ancestral possession and
all forms of extractive activities shall be forbidden there. The State shall adopt meas-
ures to guarantee their lives, enforce respect for self-determination and the will to
remain in isolation and to ensure observance of their rights. The violation of these
rights shall constitute a crime of ethnocide, which shall be classified as such by law’.
128 ‘Indigenous Organizations Petition Peruvian Government to Protect the Rights of
Isolated Peoples Before the Inter American Commission on Human Rights’, available
at: www.forestpeoples.org/topics/extractive-industries/news/2013/11/indigenous-
organisations-petition-peruvian-government-prot.
129 Davidson (2012), 129.
130 Sachs (2012), 308.
131 Ibid.
132 Ibid.
133 Tobin (2011), 297.
134 Neidjie (1989). Excerpt translated by and reprinted in Black (2011), 30-31.
135 Ibid.
136 de Sousa Santos (2002), 10.
137 Libesman (2004).
138 de Sousa Santos (2002), 16.
139 Ibid., 11.
140 Ibid., 254.
141 Ibid., 256.
142 Anghie (2004), 314.
143 Ibid., 317.
144 Yunupingu (1997); cited in Black (2011), 41.
145 See Preamble to the Alta Outcome Document, available at: http://wcip2014.org/wp-
 Notes 259

content/uploads/2013/06/Adopted-Alta-outcome-document-with-logo-ENG.pdf
[accessed 23 March 2014].
146 Tsosie (2007), 403–4.
147 Ibid.
148 Ibid., 408.
149 Ibid., 409.
150 Ibid.
151 Schiff Berman (2007).
152 Walsh (2002).
153 Tobin (2001), 56.
154 Borrows (2001), 35.
155 Ibid., 273.
156 Ibid.
157 Ibid., 203.
158 Bilal, Haque and Moore (2003), 58.
159 Åhrén, Scheinin and Heriksen (2007).
160 Article 9, Draft Nordic Saami Convention: ‘The states shall show due respect for the
Saami people’s conceptions of law, legal traditions and customs. Pursuant to the provi-
sions in the first paragraph, the states shall, when elaborating legislation in areas where
there might exist relevant Saami legal customs, particularly investigate whether such
customs exist, and if so, consider whether these customs should be afforded protection
or in other manners be reflected in the national legislation. Due consideration shall
also be paid to Saami legal customs in the application of law.’.
161 Ibid.

DRAFT
162 Lafargue (2014).
163 Ibid., 8.
164 Ibid., 10.
165 Ibid., 11.
166 Inksater (2010) describes this process as transformative juricultural pluralism which
provides (i) respect for autonomy of laws demonstrated by non-interference by the
state with decisions of local indigenous peoples’ judicial authorities, (ii) respect for
cultural difference and acknowledgement of one’s own culture as ‘incomplete’, and (iii)
the existence of egalitarian mechanisms for cross-juricultural interaction and decision-
making. 108.
167 Menski (2012), 15.
168 Ibid.
169 Ibid., 1.
170 This fluvial model is drawn from Tobin (2011), 298–299.
171 Maine (1861), 64.
172 Regulation of the European Parliament and of the Council on Compliance Measures
for Users from the Nagoya Protocol on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits Arising from their Utilisation in the Union, Adopted by
the European Parliament 11 March 2014, available at http://register.consilium.
europa.eu/doc/srv?l=EN&f=PE%20131%202013%20INIT [accessed 1 May 2014].
173 Stavenhagen (2013).
174 Draft Statement On Behalf of Certain Indigenous Nations in the Americas and
Supporting Indian Organizations (19 May 2014) Available at: http://indianlaw.org/
sites/default/files/Draft%20Statement%20UNPFII_revised%204-2-14.pdf [accessed 3
May 2014].
175 Solomon (2007). Solomon argues that any framework for protection of traditional
knowledge and traditional cultural expressions ‘would need to … be adapted in a
manner that takes account of customary laws and practices’, 4.
176 E-Law also provide pro bono support for Indigenous peoples. http://firstpeoples.org/
wp/for-grant-seekers/.
260 Notes

177 Tobin (2011), 301.

178 Ibid.

In closing: traditions for the future

Whakapapa Te Rūnanga o Ngāi Tahu. Available at: http://ngaitahu.iwi.nz/ngai-

1 O’Donohue (1997), 94.
2
tahu/whakapapa/ [accessed 5 May 2014].
3 Costello (1913).
4 For the Sinn Fein courts, see: http://historum.com/european-history/22459-sinn-
fein-courts.html [accessed 4 April 2014].
5 See ‘Irish Ways and Irish Laws’ by John Gibbs, made famous by Ireland’s foremost Bard,
Christy Moore. Lyrics available at: www.christymoore.com/lyrics/irish-ways-and-
irish-laws/.
6 Maui Solomon (forthcoming).
7 Black (2011), 168.
8 Douthwaite (2000).

DRAFT
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Index

Aboriginal Legal Service of Toronto 185 Al-Bashir, President Omar 190

Aboriginal peoples 37; genetic resources Alternative dispute resolution 1; customary
161; ancestral land rights of 111; treaty law in 51, 77; indigenous 203, 205
rights in Canada 61; customary laws of Amazon: indigenous peoples of 3, 21–2,
94, 110; doctrine of continuity and 174; 36n22, 47, 77; oil conflicts in 22, 47, 65,
doctrine of discovery and 2; genocide of 129, 190
187; ‘integral to a distinctive culture test’ American Declaration on the Rights of
165; intervention Australia 37; land Indigenous Peoples, draft 181
rights of 101, 127, 196; laws of 8, 29, 79, Anahoot’i’ (Navajo disharmony) 68

DRAFT
94; legal systems of subordinated 116; Anaya, James 21, 42, 46, 49, 55, 114, 145
Native title of 111, 116, 118, 126; Anasazi Culture 150
Senior Lawmen of 79; Senior Law Ancestral sovereignty 34
Women of; terra nullius and 24; Anghie, Antony, 195
traditional knowledge of 161, 174 Aquinas,Thomas 17–8
Aboriginal title 110, 116; In Canada 110; Argumedo, Alejandro 7, 134; biocultural
common law 110–2; customary law and protocols 140
110, 113; denial of 101; ‘Integral to a Aristotle 15, 19–20, 202,
distinctive culture test’ 112; Native title Asociación ANDES 135
distinguished from 115; right to own Association of African Women for
legal regime and 117; resistance to Research and Development
extinguishment by 118 (AAWORD) 181
Access to Genetic Resources 4, 11, 13, 48, Australia 1, 3, 8, 11; Aboriginal autonomy
54, 120, 162, 167; ad hoc Working in 37; Aboriginal land rights in 117,
group on 162; customary law and 167; 127; Aboriginal peoples, killing of 187;
prior informed consent for 48 CERD and 114; cultural property rights
Achuar; action against Occidental in 148; customary law in 30, 70, 88, 94;
Petroleum 129 free prior informed consent, opposition
Adat 2, 105 to 123; Nagoya Protocol in 161; Native
African Charter on Human and Peoples’ title in 1, 108, 110–14, 116, 199; Native
Rights 124, 144; Maputo Protocol on title to natural resources in 126; Native
the rights of women 182 title to cultural property in 174; sacred
African Intellectual Property Organization lands 53; terra nullius 24
(ARIPO) 171 Australian Law Reform Commission 70,
African Commission Working Group on 88, 94
Human Rights 43, 49, 102, 124 Autonomy 37, 39, 51, 70; Chittagong Hill
Africa custom 28, 58–9, 80, 93 Tribes 41; constitutional recognition of
Agrobiodiversity 13, 120; conservation of 57, 62, 69; customary law and 3, 59, 81;
130–1; benefit sharing and 134; draft right to culture and 142, 144;
Law of 135 Indigenous peoples rights to 3,11, 19,
 Index 291

21, 37,69; Indigenous view of 25, 33; British Colombia Ministry of Forests 49
self-determination and 11, 19, 33–7, Buen vivir (right living) 63–4, 197–8
52–3, 62, 70, 81, 193; treaty bodies
recognition of 34–5;Tribal courts 81–2; Canada: CERD and 49; Constitutional Act
UNDRIP and 37, 39, 52–3, 69, 70 61, 112, 117; Crown sovereignty 27;
Awajun (Aguaruna) 47; proposal for customary law in 3, 11; cultural
biocultural protocols177 genocide and 188; doctrine of
continuity in 174; Free prior informed
Bagua 46–7 consent in 49, 123; Indigenous law in 6,
Barsh, Russell 146; and Youngblood 198; Indigenous land rights in 37,117;
Henderson 80 112 Integral to a distinctive culture’ 165;
Bartholus of Sassoferrato 16 Lovelace v 44; Native title in 1, 110,
Basrwa 113 112–13, 117, 199; Native title to
Bay Mills Indian Community Tribal Court resources 126–7; self-government 61–2;
Code 83 traditional knowledge 174;Treaty rights
Bederman, David 3, 6, 7,18 and 24, 61
Beehaz’aanii (Navajo law) 29 Canon law 16
Bell, Diane 153 Carbon sequestration 5, 120
Belo Monte Dam 66, 124 Carpenter, Kristen, S Katyal, and A Riley
Bennett,Tom 58, 109; and Vermeulen 92 152, 154–5
Bergman,Wayne 118 Casement, Roger 22
Benefit sharing 44, 126; agreements 135; Celtic Tiger 208
customary law and 167; farmers rights Central Kalahari Game Reserve 113
and 135–6; multilateral 134, 179; Chanock, Martin 9, 28–9, 84, 92

DRAFT
biocultural protocols 140, 176; Nagoya Chalaypasa (Quechua barter) 132
Protocol and 162, 179; traditional Cherokee 26, 27, 37, 110, 149, 187, 216,
knowledge 168, 179, 197; in WIPO 219, 256
IGC 165–6 Chevron Corporation 129
Biocultural certification 178 Chief Justice Black 95
Biocultural diversity 140 Chief Justice Conteh 49, 113
Biocultural heritage 135, 176 Chief Justice Lamer 49, 112
Biocultural protocols see Protocols Chief Justice Marshall 26, 37, 109, 114–15
Black, Christine 79 Chief Justice Yazzie 8, 29, 67–8
Blackfeet Indian Nation 127 Chimney Rock 152
Blackstone Sir William 17, 19, 32, 85–7, 89 Chittagong Hill Tribes 4, 41, 71–2
Blue water doctrine 39 Chthonic law 8
Bohannan, Paul 108–9 Cicero 7, 15, 17
Bolivia 47, 57, bien vivir 64, 198; Civil law systems 2, 65, 198; French 2;
Constitution 63–4; Ley de la Madre Roman 16; 65
Tierra 64, 198; lynchings 185; Claassens, Aninka and S Mnisi 96, 132,
recognition of Indigenous rights 69, 183–4
185;TIPNIS conflict 65; universal Clark, Phil 186–7
jurisdiction 205 Cobo definition 41
Borrows, John 7, 9, 12, 116–17, Indigenous Cobo Martinez, 41–2, 102–3
law 7, 198; Nisga’a agreement 62, 118; Collective Rights 5, 21, 65, 103, 122,125,
customary law 78, 187; harmonization 129, 133, 142, 146, 150, 159, 167, 172
of laws 198 Colombia 8, 62; constitutional court 47,
Botswana High Court 113 69, 70, 184
Brehon Law 22–3; displaced by common Colonial powers 20, 25, 33, and 38
law 23; equity 208; Sinn Fein courts Colonialism: 20, 22, 28, 35, 43; in Ireland
209; sources 78–9, 209 20–3
British 2, 24, 26, 61 Colonial law 21; 89; assumption of
British Colombia Appeals Court 25 sovereignty 24; British 26, 89;
British Colombia Supreme Court 112, 118 designation of Indigenous law as
292 Index

customary 1, 7; Spanish Requirimiento 46; of legal vision 146; over funerary

22; displacement of native law 23 remains 150; mining engendered 12,
Colonization; autonomy 21, 39; impacts on 120, 129; sacred sites 152; UNIPP 56;
Indigenous peoples 21; land grab 20; violent 46; REDD+ engendered 138
law as tool of 19, 20; missionaries as Conflict resolution 6, 30, 203; customary
vanguard of 22; papal bulls 20, 22 law and 11, 63, 75–6, 82, 128, 150;
Commercial; activities and sacred sites 151, human rights approach 175; Indigenous
153; agriculture 66; benefits, sharing of modalities 70–2, 78, 129; Indigenous
136, 165, 173; exploitation of inventions jurisdiction 63, 72–4, 76; Lyng case 152;
173; fishing 126, 139; impact in Ireland mechanisms 38, 66; principles in 81;
23; Investors 5; markets and customary transboundary 172
law 207; use of traditional knowledge Conflict of laws 89, 150, 164, 193
156, 172; use and cultural heritage 148 Conquistadores 20
Committee on Economic, Social and Conservation: agrobiodiversity 120, 130,
Cultural Rights 34; collective rights 135; customary law and 5, 46; ex-situ
144; General Comment 21 142–3 131; farmer’s rights and 135; genetic
Committee on the Elimination of Racial resources 133; Indigenous peoples
Discrimination 35, 48; Australia 114; participation in 121, 134, 134, 135, 140;
Early Warning Urgent Action 49; in-situ 131, 135; internalize costs of
General Recommendation No. 23 49, 131; livestock breeds, local 136; native
108; Subanon 128 varieties 130; REDD+ and 138; sacred
Commission on Human rights 55 sites and 151, traditional knowledge and
Common Article 1: International 158
Covenants 1966, 34–5, 42, 45, 107, and Constitutional Act 1982, Canada 61, 112

DRAFT
120 Constitutional Court: Colombia 47, 69,
Common Celtic Period 22 70, 184; Indonesia 138; South Africa
Common Law 3, 8, 17, 18, 94; Anglo- 59–60, 97–8, 113, 127
Indian 73; As case law 18; Blackstone Constitutional law 1, 59; challenge
and 17–19, 85, 87; Brehon law replaced Ecuador 65; cultural exclusions 183,
by 23; British 2, 61; communal good 86; customary law and 3, 57–9, 76–7, 89,
cultural defence in 181; cultural 90, 97–8, 113, 133, 184; customary
property 174; customary law and 2, 8, justice 69; environment protection 47;
17, 58–9, 61, 76, 87, 90, 111, 198; Forest rights 138; fundamental rights in
doctrine of continuity in 112; 44, 133; Indigenous legal regimes right
enforceable custom 17–8, 85, 88; to 57–8, 69; land rights recognition of
English 2, 16–17, 86–7, 90; immemorial 22, 105–7, 113; male primogeniture 97;
85; Indigenous 8; Inherited 79, 198; Mother Earth rights of 139;
Judge made law 18, 65; jurists 17–18; Participation and 66; Scheduled tribes
native title and 110–15, 126; Navajo 8, India 4, 41; self-government 61; South
68; ownership notions of 109, 113; Africa 193; Ubuntu 80, 199
Papua New Guinea, 90–1; resource Contractual agreements 50, 162
rights 127; repugnancy 89; settler states Convention on Biological Diversity: ad
3, South Africa 111, 113, 199; of Sudan hoc ABS working group 162; common
2, 8, 29, 198 heritage 133; country of origin 160;
Communal Rights 6, 12, 32, 105, 127 indigenous and local communities 163;
Community protocols see Protocols Nagoya Protocol 4, 54; traditional
Compania General de Combustibles S.A. knowledge 158
(CGC) 125 Convention on Biological Diversity 4, 54,
Confederated Tribes of the Warm Springs 163; regulation of access 160, 162;
Reservation in Oregon, Code of 149 sovereignty over genetic resources 133;
Conflict: conservation engendered 137, traditional knowledge and 158
151; dam building 66, 137; exclusion of Convention on the Elimination of All
customary law 210; indigenous peoples Forms of Discrimination Against
rights 54; lack of participation causing Women, (CEDAW) 182
 Index 293

Council of Europe Framework 49, 125; constitutions, relation to 58,

Convention on National Minorities 144 61, 63, 97–8, constitutional courts and
Coombe, Rosemary 151, 170 69, 138; constitutional recognition 3–4,
Cree 30 6, 29, 54, 57–8, 60–4, 76–7, 128, 135,
Criminal law 2, 185, 191 138, 183, 198, 200; continuity and 7, 19,
Crystallizing customary law 16, 19 26, 80, 85–7, 96, 100, 108, 110–12, 115,
Cultural defence 6, 181 126, 159, 174, 176; courts development
Cultural artefacts 13, 141, 150, 155 of 97–8; crystallization of 19, 140;
Cultural genocide 13, 36, 180, 184, cultural genocide and 184; cultural
187–191 relativism 183; culture and 142, 144–5,
Cultural heritage 1, 10–11, 13, 33–4, 48, 145, 148–51, 179–80; customary justice
51, 98, 135, 141, 145–51, 155, 158, 163, 184–5; customs 8, 16, 17, 18 ; definition
176, 179, 180, 205 10, 31, 58; dispute resolution 51, 77–8,
Cultural patrimony 5, 146, 150–1, 172 150 , 205; distortion of 29, 84–5; Divine
Cultural property 13, 141–2, 145–8, law 7, 9; dynamic 9, 11, 16, 30, 198,
150–1, 154–5, 170, 174 207; diversity 1, 105, 179, 207; EU
Cultures 3, 36, 38, 50, 53, 56, 65, 104–5, legislation and 161; evidence of 88–9,
142, 147, 153, 155, 188, 207 94–5, 115–16, 153, 167; extraterritorial
Custom see also Customary law 8, 17, 18, effect 54, 160; failing states 3, 11;
19; Aspect of customary law 9–10; flexibility 30, 59, 140, 192; in foreign
customary international law and 155; jurisdiction 5, 84, 164; in French
customary law and 14, 19, 28; general Constitution 200; Gacaca courts 13,
custom 17–18; good legal governance 185–7, 192; Gender equality 182–3;
206; habitual 6, 14, 19; historic status of habitual practices, distinction from 8, 19,

DRAFT
15–8; Indigenous peoples rights to 4, 31; human rights and 5, 45, 58, 76, 118,
11, 25, 29, 40, 50, 62–3, 85, 181; 129, 155, 180–4, 194, 199, 200–3;
Indigenousness and 40, 44, 123; human rights conflicts with 1, 11, 58–9,
Immemorial 19, 85; of the people 18, 61, 74–6, 132, 180–3, 193, 199, 210;
20; participation in accordance with human rights superior to 6, 90, 181;
123; recognition 28–9, 34, 45, 53, 60, ILO Convention 169 8, 53, 103, 122;
90, 160, 199; redress for violation 45; Identifying applicable law 19, 77–8,
right to change 23 84–5, 87, 91; Indigenous dislike of term
Customary authorities 17, 61, 106 1, 2, 7, 8; Indigenous human rights
Customary justice 72, 180, 184–5, 187, 192 dependent on 1, 5, 20, 54–5, 119, 129,
Customary law: 1–3, 5, 7, 8, 9, 10, 11, 12, 140, 155, 179; Indigenous Law, aspect of
15, 17, 18, 19, 207; abuses of 17, 96, 1, 7–10, 28; Indigenous peoples and
106; African 3, 58, 96–8; Andean 21–2, 85, 204; Indigenous peoples’ rights
community 171; Aristotle 15; to 44, 73, 85, 114, 129, 132, 135, 145,
sscertainment of 88, 91, 94–96; Australia 210; intellectual property and 4, 166;
1, 3, 6, 11, 70, 94–5; 94; biocultural Inter American Court of Human Rights
protocols 139–40, 160, 175–6, 204; 199; interface with positive legal
Bolivia 185, 198; Canada 3, 6, 11; regimes 6, 61, 155, 160, 194, 198;
characteristics of 2–3, 7, 31; codification intercultural justice and 105, 210;
51, 92–3, 95, 176, 199; Colombia 8, 69; International courts: 3, 81; jurisdictional
Colonial influence on 1, 7, 12, 20, 28, boundaries 54, 69; Justinian 15; Kanak
92, 207; common law and 16, 23, 58, 200; devalued 2, 6–7, 9, 28; land rights
61, 94, 199; community protocols 3–4, 50, 53–4, 60, 100–7, 109–14, 119,
139–40, 160, 175–6, 204; conflict with 128, 130, 132–3, 145, 180, 199; Latin
common law 90, 91; conflict with America 3, 69, 84; as law 1, 3, 7, 14, 54,
constitutional law 58; conflict among 88, 96, 210; as law of subordinates 28;
customary laws 91, 93, 150; conflict lawmakers 180, 193, 199; legal
with positive law 45, 83, 91, 201; profession, and 3, 6, 7–9, 67, 84, 99, 196,
conflict of laws and 89, 164; conflict of 206, 208–10; legal status of 10, 12, 83,
legal vision 146; consultation and 47, 90, 99, 193; literature on 5–6; living
294 Index

custom 16, 78, 92, 95, 96–8; Maputo Native Graves Act 150–1; UNDRIP 8,
Protocol 182; Nagoya Protocol and 5, 52–4, 90, 104, 122, 169–71, 181; uti
48, 54, 160, 179; Namibia 6, 198–9; in possedetis and 100–1;Vanuatu 105–6,
national Courts 5, 6, 54, 57, 77, 81, 84, 198; as ‘way of life’ 30, 135; women and
96–7, 164, 167, national law and 2, 3, 132, 180–1, 182; women changing from
10, 54, 64, 84; natural law and 7, 9, 10, within 96, 132–3, 180, 183–4, 199;
13, 14–16, 194, 200–203; nature of 3, 9, Woodman 18, 82;WIPO IGC and 4,
29–30, 78, 92; native courts and 71–2, 164–7, 202; Xeer 74, 76
74; Native title and 1, 60, 70, 110–15, Customary International law 3, 11, 33, 36,
126, 173, 199; Navajo 8, 67, 69; 40, 45, 54, 70, 73, 113, 119
obligation to recognise, as customary Customary legal regimes 2, 3, 6, 10, 15, 26,
international law 54, 73, 119, 140; 29, 31, 68, 80, 92, 108, 119, 133, 178,
official 16, 98; only law 52, 73, 77; opinio 185, 210; diversity 81, 210; good
necessitates 19; Owambo 95, 199; Pacific governance and 199, 208; positive legal
Island States 3, 172, 178; Papua New regimes and 84, 198; right to as way of
Guinea 60–1, 76, 90–1, 198–9; peace life 104, 144–5
and 75–6; Pearson 115–17; Pillar of the
legal order 10, 12; Plato 1; positive Law Daes, Erica-Irene 40, 42, 101, 114, 121–2,
relation to 6–7, 10, 11, 12, 15, 18, 45, 147–8
83, 91, 146, 175–6, 194, 199, 200–3; Declaration on the Role of Sacred Natural
prior informed consent 5, 48–9, 51, Sites and Cultural Landscapes in the
126, 168–9, 178; principles of, 31, 50, Conservation of Biological and Cultural
64, 80, 105, 132, 140, 155, 176, 197, Diversity 151–2
206; proof of 11, 57, 85, 87–8, 91, 94, Declaration of Livestock Keepers’ Rights

DRAFT
98, 160, 167; Quechua 7, 135; 136
recognition of 3, 4, 19, 31, 58, 70, 81, De las Casas, Bartolome 30, 39
82, 84, 99, 113, 119, 123, 126, 140, De Sousa Santos, Boaventura 194–5, 206
177–8; recognition in international Doctrine of Continuity 26, 100, 112, 115,
instruments 4, 34; recognition in 126, 174
national courts 6, 84; REDD + and 5; Doctrine of Discovery 24, 26–8, 55,
relation to other main sources of law 100–1, 109
200–2; repugnancy and 86–7, 89, 90; Doctrine of native title 113
resource rights and 120, 122, 123, 126, Doctrine of residual title 116
133, 140, 145, 180; respect 5, 11, 12; Doctrine of recognition 26
restatements of 93–5, 199; restorative Domestic dependent nations 26, 37, 66,
justice as 31, 184, 192; resurgence of 1, 110
12; right to as customary international Dongria Kondh 138
law 54, 73, 129, 140; self-determination Duality, in customary law 197
and 11, 34, 37, 39, 143, 148, 180; self-
statements of 95–6, 199, 204; sentencing Earth 8, 14, 121, 196; balance with 194–5;
and 89; Solomon Islands 2, 198; Somalia duty of care 154, 208; relationship with
3, 74, 76; sources of 20, 29, 77–8, 80, 82, 12, 209; Mother, 14, 31, 62, 102, 194;
84, 174, 197; source of law 1, 2, 7, 15, Mother, Law of 57, 64; Mother rights of
59, 111; South Africa 11, 16, 58–60, 65, 64, 139, 198; spiritual link to 207
97–8, 113, 199; South Sudan 2, 6, 8, 29, Easter Rebellion 1916 Ireland 208
93, 198; spiritual nature, 54; stewardship Eastern Band of Cherokee Indians, Code
and 150, 154, 208; Subanon 128–9; of 149
Tanistry case 23, 86; theory of 15, 16; Eastern Tibet 4
traditional knowledge and 4, 55, 130, Ecuador: buen vivir (good living) 63;
135, 156–73, 175–6, 178–9, 197; Chevron case 129; crime of ethnocide
traditional resource management 63, 192; constitutional protection of
129–30, 139;Tribal courts 6, 81;Tribal peoples in voluntary isolation 63, 192;
legal regimes and 12, 67, 83–4;Tribal Indigenous rights and 47, 63; IACHR
sovereignty 68; Ubuntu 59, 65, 199; US 125; intercultural law making 64; rights
 Index 295

of Mother Earth 62, 139, 198;Tagaeri- Funerary remains 13, 141, 149–50; burial
Taromenane 190, 192;Yasuni Rainforest remains 146; human remains
65, 190–2 Fur 190
Education 5, 6, 45, 182; inappropriate 157, Future of customary law 11, 59
209; rights to 34, 75, 102, 157
Echo-Hawk,Walter 33 Gacaca courts 185–7, 192
Embera-Katio of Chajeradó 69 Gender: discrimination 76, 98, 183; based
Endorois 49, 124–5 violence 75; equality research in South
Enforcement of Indigenous peoples legal Africa 97–8; Maputo Protocol and 182;
regimes 6–7, 12, 34, 37, 52, 61, 76–81, UNDRIP and 182;Vanuatu Kastom and
84–5, 87, 94, 99, 109, 120, 129, 139, 105
140, 145, 148, 165, 167–9, 178, 192, General Assembly of Sarayaku 125
202, English Common Law 2, 16, 17, Genetic resources 4–5, 11–13, 48, 53–4,
23, 60, 86–7, 90, customs of the courts 120, 122, 130–1, 133–7, 140, 155,
English law 17, 18, 23–7, 86 157–8, 178; animal 136–7; biocultural
Environmental Law Alliance Worldwide protocols 170, 176–7; disclosure of
(E-Law) 205 origin 171; Indigenous sovereign rights
Equilibrium, in customary law 197 175; Nagoya Protocol and 159–62,
Equity 2, 80, 82, 90, 93, 117, 184, 202, 208; traditional knowledge and 159–62, 170;
global body of 197; intercultural 12–13, WIPO IGC and 162–4
15, 37, 60, 81, 180, 198, 202, 206, 210 Genocide 13; customary law and 192; of
Errico Stefania 122 Indigenous peoples 187–8, 190;
Ethnic groups 2, 3, 31 and 197 Indigenous peoples’ universal
Ethnocide 36, 63, 187, 188, 191–2 jurisdiction 204–5; by omission 191;

DRAFT
European colonies 39 Rwanda 185–7; threat to isolated
Europe: Medieval, customary law in 2, Indigenous peoples 191–2
16–17; museums 151; states with Genocide Convention 1948 36, 188–90
customary regimes 3 Gilbert, Jeremie 118; and Doyle 36
EU legislation to implement Nagoya Gitskan and Wet’suet’en people 38
Protocol 161, 202 Glenn, Patrick 8
European Powers 39, 43; international law Global Databank on Animal Genetic
20; treaties 24–5; doctrine of discovery Resources 131
26–7 Global environmental Facility 177
Expert Mechanism on the Rights of Global legal governance 7, 10, 12–13
Indigenous Peoples 56, 203, 205 Gluckman, Max 108–9
Extractive industries 11–12, 56, 157 Gratian’s Decretum 16–17
Grotius, Hugo 21
Farmers’ rights 133–6 Guajira 21
Farmers’ (citizen) juries 133, 140, 192
Fisherfolk 121, 195 Hague Convention for the Protection of
Fisheries Act (1996) New Zealand 139 Cultural Property in the Event of
Fletcher, Matthew 83–4, 98 Armed Conflict 145
Folk law 8 Hale, Sir Matthew 12, 17
Forest peoples 21–2, 36, 47; threatened Halewood, Michael 112, 173–5
65–6, 120–1, 137–8, 190–1 Hardison, Preston 175
Forests: customary law and 5, 82, 139; Harmony: in customary law 31, 68, 78,
constitutional courts and 138; grazing 197
rights 137; pollution of 129; prior Haudenosaunee two row wampum belt
informed consent 48; REDD+ 138; 25, 193
rights to 49, 64, 116, 137–8 Hero-twins (Navajo story) 78–9
Fowler, Cary 134 Hindmarsh Bridge 153
Fragmented global legal system 13, 180 194 Hindu law 2, 28
Fribourg Declaration on Cultural Rights Hinz, Manfred O. 91, 95–6
141 Hoopa Valley Tribe 83; courts 98
296 Index

Hopi 150 ILO Committee of Experts 107

Hozho (Navajo harmony) 68, 197 ILO Convention 107, 34, 40, 103
Hutu 186 ILO Convention 169 1, 8, 34, 40, 43,
Human remains 5, 146–7, 149–50 45–9, 52–4, 56–7, 62, 70, 89, 102–3,
Human Rights 12:agrobiodiversity and 107–8, 121–3, 142, 144, 149, 169
130; enforcement 1, 2, 5, 6, 12, 74, 202; Incas 21
collective rights 5, 21, 65, 103, 122, 125, India 24, 28, 40, 103; CERD and 49;
129, 133, 142, 144, 183; communal citizen juries in 133; cultural genocide
rights 6, 12; conflicts with customary 187–8; farmers rights 135, finding
law 11, 74–6, 180–3, 187, 199; custom in 88; forest rights in 137–8;
customary law as 90; customary law and indigenous peoples, position on 43, 57;
1–2, 4–6, 31, 44–5, 51, 54, 58, 85, 91, protocols 140; scheduled tribes in 2, 4,
180–4; customary law limited by 58–9, 41, 50, 137, 169; traditional knowledge
89–90, 93, 133, 181, 183, 193; customary 164, 16
law changes to comply with 75, 85, Indian Supreme Court 138
96–8; customary law role in securing Indigenous law 184; Australia 111; all-
11–12, 73, 76, 82, 114, 119, 129, 140, embracing term 8–10; definition 30;
155, 179–80, 193, 197, 206, 210; education 6; global self-statements of
changed by custom 5, 184; to culture 36, 204; harmonization with common and
39, 141, 151; cultural genocide 187, 188; civil law 198; nature 31; Papua New
cultural relativism 181; customary justice Guinea 61; protocols 205; shared
and 185, 187; ethnocide 36, 63, 187–8, principles of 205; Somalia 73; sources 7,
191–2; extinguishment of native title and 78–9; South Africa 59, 113, Indigenous
108, 118; fundamental 31, 53, 89, 132, Peoples 2; ancestral rights 20, 47, 81, 87,

DRAFT
187, 21; Gacaca courts 186; globalization 100, 118, 126, 152; Anaya see Anaya
of 183; genocide 187; ILO convention James; Aristotle 20; authorities 81;
107 34; ILO Convention 169. 34, 52–3, autonomy 36–7, 39, 41, 51–2, 53, 57,
142; of Indigenous Peoples 1–2, 4–5, 59, 61–3, 69–70, 81–2, 110, 142, 144,
10–11, 20, 27, 44, 54, 81–2, 114, 140, 193; CERD and 49, 108, 114, 129;
146, 202; Indigenous sovereignty and 27, burial remains see funerary remains;
45; individual 6, 44, 118, 125, 183; collective rights see collective rights;
intercultural justice and 56, 202; colonization, impact of see colonization,
international law of 27, 39, 46, 53, 117, colonial powers; communal good 86;
181, 195, 197; to land 36, 101, 107–8; conflict resolution 70–2, 76, 139, 203,
Native Graves Act as 150; prior 205; constitutional recognition of 22,
informed consent 46, 48–9; regional 57, 62, 64, 69, 117; consultation 5, 22,
organizations 36, 48, 99, 169; relationship 46–9 54, 64–5, 70, 104, 117, 122–4;
with positive, natural and customary law conservationists 130–1; cosmovision 29,
15, 45, 155, 200–20; to resources 120, 62, 64, 68, 126; culture 104, 141–6, 197;
122–3; self- determination 4, 5, 11, 33, cultural diversity 2; cultural integrity of
36, 39–40, 163; Somalia 75: Special 6, 33–5, 49, 57, 69–70, 102, 117, 120,
Rapporteur on 55; traditional 135, 140–1, 143–5, 151, 188–9, 199;
knowledge 157, 160, 164, 169–70, 175; cultural patrimony 5, 146, 150–1, 172;
Treaty bodies and 34, 36, 48, 169; cultural survival 102, 107, 120, 123, 146,
Ubuntu 60; UNDRIP 36, 54, 122, 142; 154, 190, 196; customary law see
women’s 132, 181–4; xeer and 74 customary law; customary law, dislike of
Human rights based approach 56, 175 term 1, 7–9; cultural heritage 146–9,
Human Rights Committee 34, 49; 151; customary international law and
balancing individual and collective 54, 70, 119, 155, 179; definition of 5,
rights ’83; drawing on custom 145; 39–43; existence denied 3, 40–1, 44,
General Comment 23 104, 143–4; 164, 169; diversity 2, 77; extractive
Report on Canada 117; right to self- industries and 47, 49, 63–5, 70, 122,
determination 121 125, 128, 138, 205; forest rights 64,
Human Rights Council 55–6 137–8; gender issues 182; genocide 36,
 Index 297

187–8, 190–2, 207; human rights see 121–4, 127, 141, 157, 160, 175, 180
human rights; individual rights 64, 125; Indigenous Peoples’ Rights Act (IPRA)
intellectual property law, opposition to (1997) Philippines 128
157–8, 163, 167, 173, 203; international Indonesia: adat 2; CERD and 49; forest
law, contra 25–6; judicial authorities 82, rights 138; genocide 188; Indigenous
84; jurisdiction 54, 66–7, 69, 72, 82, peoples opposition to 43, 57
105, 185, 192–3; law, status of 87, 193; as Intellectual property 130, 134, 146–8, 144,
lawmakers 170, 180, 193, 199, 203; 157–8, 164–8, 174–5, 203, 205
membership rules 44–5; minorities Inter American Commission on Human
distinguished from, 39, 44, 144; natural Rights 108, 124, 144, 192
law and 14–5; Mother Earth, links to Inter American Convention on Human
62, 102, 196; participation in decision- Rights 125
making 45–6, 57, 104, 122, 124, 144, Inter American Court of Human Rights
158, 169–70, 204; prior informed 49, 57, 102, 107–8, 112, 123; customary
consent 5, 47–51, 53–4, 108, 128, 159, law 199
165, 177; property, cultural and Intercultural equity 12–13, 15, 37, 60, 81,
intellectual 145–8, 154–5, 167; REDD+ 180, 197–8, 202, 206, 210
138, 177; redress 108, 122, 129; right to Intercultural justice 12–13, 15, 39, 55, 60,
development 125; secession 35–6; secret 81, 105, 180, 193, 196, 197–8, 202, 210
knowledge 153–4; self-identification 3, Intercultural law making 64, 198
40, 43–4; sentencing 70; sovereignty 25, Inter-Ethnic Association for the
38, 109, 122, 175; spirituality 101–2, Development of the Peruvian Amazon
196, 207; stewardship, concept of 13, (AIDESEP) 192
139, 146, 150, 153–5, 166, 208; struggle Interfaces between customary and other

DRAFT
20, 22; threats to 65–66, 124, 138; legal regimes 10, 16, 31, 61, 69, 76, 81,
traditional authorities 3, 57–8, 77, 91–2, 155, 160, 178, 194, 210
95, 125, 198; traditional knowledge and International courts: 40, 205; recognition
4, 156–65, 167–73, 175–6, 178–9; of customary law in 3, 81
Treaties with 24–5, 117; uncivilized, International Covenant on Civil and
deemed 23, 25; United Nations and 34, Political Rights 34, 37, 42, 44–5, 60,
54–6; Universal Jurisdiction 192, 204–5; 120–1, 144; Article 27 44, 104, 143–4
urban 44; in voluntary isolation 3, 15, International Covenant on Economic,
63, 65, 77, 190, 192; ‘way of life’ 104, Social and Cultural Rights 34, 37, 42,
121, 135, 145 44, 120–1; Article 15 (1)(a) 142–3
Indigenous Peoples legal regimes 1–3, 5–8, International Criminal Court 187, 190–1
11–12, 19, 30, 32, 81, 84, 194–5; International Criminal Tribunal for the
constitutional recognition 64; culture Former Yugoslavia (ICTY) 189–91
and 30; customary law and 87, 207; International human rights 1, 2, 4, 27, 39,
flexibility 7, 207; Gukom of the Seven 45–6, 48, 53, 56, 74–5, 85, 90, 93,
Rivers Region 128–9; indigenous 107–8, 122, 124, 160, 163, 181, 183,
peoples support for 70, 72, 85, 132; land 187, 197
4, 5, 20; legal recognition of 12, 52, 66; International Institute for Environment
not exclusively customary 207; rights to and Development (IIED) 31, 133, 136
4, 19, 54, 57–8, 61–4, 66, 72, 85, 89–90, International Treaty on Plant Genetic
180–1; similarities among 78, 148; Resources for Food and Agriculture
sources of laws 7–9; UNDRIP 52, 53; 133–5
WIPO IGC and 169 International Undertaking on Plant
Indigenous peoples’ land rights 11, 20–1, Genetic Resources for Food and
37, 53, 50–1, 55, 57, 62, 70, 86, 100–18, Agriculture 133
114, 117, 122, 130, 137–8, 141, 196–7; Intertemporal rule 100–1
discriminatory treatment 114 Inuit Circumpolar Conference 177
Indigenous peoples’ resources 4, 5, 9, 10, Ireland: colonization of 20; codification of
12–13, 15, 19, 20, 22, 33–4, 37, 45–6, early Irish law 78; displacement of early
51, 53–5, 69, 86, 87, 102, 104, 109, 113, Irish laws 23, 86 see Brehon law; papal
298 Index

bull 22; sources of Brehon law 209, Sinn Mooney, Pat 134
Féin Courts 209 Moral: authority 31; harm as set out in Wai
262 case 173; in indigenous law 67, 80,
Jibaros 177 207; values and repugnancy 87, 89;
limiting customary law 89; power in
Kaitiakitanga (Maori exercise of communal justice 192, 197; relativism
guardianship) 139 185; rights 151, 168; sanction in physical
Kanai Blood Tribe 151 punishment 184
Kaplan, US District Judge 129 Morality: natural law 200–2; patent law
K’e (Navajo kinship solidarity) 68, 80 and 173; ubuntu 59–60
K’ei (Navajo clan system) 68, 80 Morales, President Evo 63, 65
Kichwa people of Sarayaku, 125 Moses,Ted Grand Chief, Grand Council of
King, the 17–18, 24 Crees 121
King Laeghaire 78 Mother Earth 14 31, 57, 64, 102, 139, 194,
Kingsbury, Benedict 39–40, 43 198; Pachamama 62
King’s the, courts 17–18 Muslim law 28
Kirby, Justice 174
Naat’aanii (Navajo leader) 79
Latin America: ILO Convention 169 62; Naga 188
impact of colonization in 21–2; Nahua 84
Indigenous consultation in 46–7; Nahua-Nanti Reserve 190
Indigenous resistance in 26; recognition Nakamals (customary institutions) Vanuatu
of Indigenous jurisdiction 3, 69; UNIPP 106
in 56 Nanti 190, 192

DRAFT
Legal pluralism 6, 39, 60, 197; customary National Courts: recognition of customary
law and 105, 193, 198, 210; denial of law in 5, 6, 54, 81, 84, 164, 167;
200; intercultural 180, 200, 202; Indigenous peoples and 1, 40, 128, 192;
international 11; soft 70 reliance on UNDRIP 36;Tribal courts
Livestock keepers 13, 120, 129–31, 136, and 67
195 Native Graves Act 150–1
Local communities 2, 5, 10, 14–15, 17, 19, Native American title 114–15
44, 54, 59, 132, 135, 137–8, 151, Native Title Act (1993), Australia 111–12,
156–63, 165–6, 168, 176–8, 186 126, 174
London Conference on the Future of Law Native Title Amendment Act (1998),
in Africa 92 Australia 94, 111, 114
Local custom 16–18, 84, 91 Native Title 1, 107; Australia 70, 108,
110–18, 126, 174–5; Canada 110,
Malvatumauri (National Council of Chiefs) 112–13, 116–17, 126, 174–5; CERD
105–6 114; discrimination 114; evidence for
Mapuche 21 79, 95; extinguishment 101, 109, 111,
Maori 24, 106, 139, 156–7, 173 182, 114–16; over natural resources 126;
197–8, 208 Sabah and Sarawak 111; South Africa
Marine Areas 3, 102, 121, 126, 130, 139 60, 113; over traditional knowledge 160,
Malaysia 2, 24, 57, 110 173–4
Masalit 190 Natural law 7, 9, 10, 13, 14; Cicero 15, 17;
Maya communities of Conejo and Santa contrary laws are not laws 17, 29;
Cruz 50, 113 dominium and 21; dominance by
McHugh, Paul 25, 110–11, 117 positive law 194, as God’s law 16; for the
Mead, Aroha 157 Greeks 15; human rights and 45;
Menski,Werner 200 Indigenous governance and 14, 29, 73,
Mining 5, 12, 33, 46–8, 116, 120, 123, 196; not self enforcing 10, 14, 15;
126–9, 133, 137, 188, 190, 192 relationship with other branches of law
Miriuwung Gajerrong 118 10, 12, 194, 200–2; Spanish colonial
Mokgoro, Justice 59–60 discourse and 22; universal truths 16, 202
 Index 299

Nayakrishi Andolon 132 Penan 66, 191

Navajo Nation 29, 62, 152; courts 67–8, Peru 46; Achuar and occidental petroleum
78, 208 129; agrobiodiversity law, draft 135–6;
Navajo common law 8, 68 Bagua conflict 47; Camisea gas 65;
Navajo Peacemaking 8, 67–8 cultural genocide 188; destabilizing land
Navajo Tribal council 79 rights 107; ley de consulta (2011) 47;
Ndulo, Muna 183–4 CERD 49; ILO Committee of Experts
Neidji, Bill 194 107; recognition of Indigenous
New Zealand Patents Act (Patents Act autonomy 62; Inter American
2013) 173 Commission on Human Rights 192;
Ngarrindjeri 153–4 interface with customary legal regimes
Ngcobo, Sandile Justice 97–8 69; Nahua deaths on contact 190–1;
Nisga’a 25, 27; Agreement 61–2, 80, 118; threat to Nanti people 190, 192
Ayuukhl (traditional laws and practices) Peru Law No. 27811 of 24 July 2002,
80 introducing a Protection Regime for
Nomadic tribes 4, 75, 122, 137, 201; the Collective Knowledge of
lifestyles 157 Indigenous Peoples derived from
Non-state law 3, 6, 28, 194 Biological Resources. 168, 172; public
Notorious custom, as law 16, 87 domain 173
Nunuvut 37 Peruvian Amazon Rubber Company 22
Pluricultural 12, 62–3, 194
O’Connor, Justice 152 Porter, Jean 7
O’Keefe, Patrick 142; and Prott 147 Positive law 5, 11, 13, 15, 89, 93, 155;
Occidental Petroleum 129 customary law as 6, 10, 18, 92, 176; as a

DRAFT
Oglala Sioux Tribe Law and Order Code product of custom 7, 11, 18;
83 distinguished from customary law 80;
Ogoni 124 interfaces with customary law 155, 160,
Oil industry 33; consultation and 47–8; 175–6, 194; relationship to customary,
genocide 188; forest impacts on 137; human rights and natural law 10, 12,
leases 46; indigenous peoples rights over 14–5, 45, 154, 200–2; and morals 67
122; Indigenous peoples’ resistance to Potato Park 135, 140
129; threats of 65, 116, 120, 190; Prior informed consent 5, 47–8; for access
violation of indigenous peoples’ human to genetic resources and traditional
rights 124–5 knowledge 48; for relocation 45, 48–9,
Ombudsman 125, 178 108
Opinio juris 2, 11 Privy Council 19, 25, 87, 107
Opinio necessitatis 19, 86, and 92 Protection of Plant Varieties and Farmers’
Oral culture 153; traditional knowledge in Rights Act (2001) India, 135–6
163 Protocols 5, 48, 50, 54, 127, 139, 165–6,
Oral evidence 117, 137, 150–1 176, 178; biocultural 140, 156, 158, 170,
Oral Law 10, 28, 30, 78–81, 83, 88, 91, 94, 175–7, 199; 204; community 158, 160,
98, 180 176–8, 199; global indigenous 204–5;
Owambo Traditional Authority 95–6, 199 ignored 151; transnational 203–4; people
wide 177, 204; model 178; Nagoya
Pachamama see Mother Earth Protocol 160; traditional knowledge
Pacific Island Countries 3, 167, 176, 178 158, 170–1, 178;WIPO IGC 165–6
Papal Bulls: Inter Caetera II 20; Laudabiliter Public Interest Intellectual Property
20, 22 Association 205
Papua New Guinea 2, 60–1, 72, 76, 90–1, Public international law 2
198–9
Pastoral lease 111, 175 Quechua 7, 62, 132, 135
Pastoralists 75, 136, 140
Pearson, Noel 114–16 Raika 140
Pehuenque 21 Ranqueles 21
300 Index

Reciprocity 14, 31, 37, 85, 93, 102, 132, Self-determination 4, 5, 10–11, 19, 33–4,
197, 206 35–6; 52–3, 81, 102, 120–1, 141, 144,
REDD+ 5, 138, 177 148, 156, 163, 185, 193, 195, 203;
Regenvanu, Ralph Minister for Lands criteria for 38–9; internal 35
Vanuatu 106 Shari’a Law 2, 73–6
Religious Freedom Restoration Act (1993) Senchas Mor (Gaelic Great Law Book) 208
US 152 Senior Aboriginal Law Men 79, 194
Resources: adjudication of rights to 104; Senior Aboriginal Law Women 80
autonomy and 3, 37–8; biocultural Sexual violence: victims of and customary
protocols and 176–7, 199, 205; law 74
collective rights to 124, 127, 137, 205; Sia Raga 105
conflicts over 22, 160; cultural 148; Solomon, Maui 209
culture and 123, 144, 146, 208; cultural Southern Ute Indian Tribe 127
genocide and 188–9; customary law and Special Rapporteur on the Rights of
5, 11, 31, 34, 50, 55, 86, 100, 109, 130, Indigenous Peoples: Anaya 46, 49, 55;
140, 145, 160, 169, 199; exploitation of Stavenhagen 55, 81; Stavenhagen,
4, 32, 46–7, 53, 64, 69, 70, 120, 122; Rodolfo 5, 81
forest 137; free prior informed consent Stockbridge-Munsee Community of
45, 48, 123, 170, 176; marine 138–9; Mohican Indians 83
Natural 1, 10, 46, 64, 70, 120, 122–4, Spirituality 196: in biocultural heritage
127, 140, 142, 179; permanent 135; in law 29–30, 38, 80, 207; links to
sovereignty over 120–1; self- land and culture 80, 101–2, 131, 141,
determination and 121, 143, spiritual 147, 153, 196, 207; right to 4, 38, 52,
relationship with 143, 207; stewardship 90; native title and 174; traditional

DRAFT
of 139, 154, 208; state regulation knowledge and 156, 165; transmission of
required 82, 160; restitution of 45; law 80;WIPO IGC recognition 164–5
subsurface 46, 122–3, 126–7; traditional Spiritual: basis of sovereignty 38;
knowledge and 130, 157–63, 168; conditions shaping customary law 81,
traditional management of 37, 121, 126, 135; destruction 27; Mother Earth
138–9, 171; UNDRIP 48, 102, 169; Wai and 102; poverty, right to freedom from
262 Case and 173 64; property 45; redress for impacts on
Restatement of Africa Law Project 92 54; values 8, 31, 68, 78; safety net 206;
Restitution of Land Rights Act (1994), state obliged to support 103, 143;
South Africa 112 wellbeing 120
Richtersveld Community 113, 127–8 Standard Material Transfer Agreement
Roman law 16, 209 (SMTA) 134
Rule of Law 3, 7; colonial and settler state Subsurface resources 122; adjudication 123;
disregard for 20, 116; customary law and Indigenous peoples rights 53, 122, 127;
80; customary law crucial for 7, 73; native title 126; exploitation 5, 47
doctrine of discovery and 27; South Africa: commitment to universal
Rwanda genocide 185–6 rights 193; communal resource rights
Rwanda Patriotic Army 186 127; customary law 2, 16, 59–60, 65, 98,
107, 199; gender equality and custom
Saami 18, 145; Draft Nordic Saami 97, 133; indigenous women’s agency
Convention 199 132–3; intercultural equity 37; legal
Sachs Albie 59–60, 193 pluralism 60; living custom 96–7;
Sacred objects 5 traditional values and constitutional
Sacred sites 12, 86, 101, 151–5 interpretation 59–60, 199 traditional
Saint Germain 17 title 60, 110–13; reconciliation 37
Scheduled tribes India 4, 41 South African Human Rights Commission
Scheduled Tribes and Other Traditional 97
Forest Dwellers (Recognition of Forest South African Law Reform Commission
Rights) Act (2006) India 137 98
Shell Corporation 190 South Sudan 2, 6; ascertainment 95;
 Index 301

codification problems 93; evolving 29 Model Law 172; traditional resource

common law 8, 19, 29 management and 129–130; ITPGRFA
Spinifex 30 134–5;Wai 262 173;WIPO IGC 162–7,
Storage of hazardous waste 5, 45, 48 170, 172, 176, 199
Sumac kawsay (Quechua right living) 62 Traditional resource management 7, 129,
Sundberg, Justice 174 131, 177
Supreme Court of Appeal, South Africa Traditional territories 1, 9, 10, 33, 38, 43,
113 47, 58, 63–5, 100–1, 103–4, 108, 119,
Supreme Court of Belize 113 122, 125, 130, 137, 141, 146, 177, 191
Supreme Court of Canada 38, 112, 116, Treaties: cutting edge of colonialism 20,
174 25; denial of Indigenous capacity to
Supreme Court of Ecuador 129 enter into 25; disregard for 20–1; with
Supreme Court of India 138 indigenous peoples 21, 24; sovereignty
Sustainable Development 6, 29, 123, 130 and 38, 110
Swakopmund Protocol 171–2 Treaty: Haudenosaunee 25; under English
law 24; as a guise 25; negotiations 127;
Tagaeri-Taromenane 190, 192 rights recognized in Canada 61, 112, 117
Tangat whenua (Maori people of the land) Treaty bodies 34–6, 40, 48, 56, 101, 169
139 Treaty of Waitangi 24, 107
Tauli-Corpuz,Victoria 55 Tribal: authority 66–7, 74; courts 6, 10, 52,
Terra Nullius 24, 26–7, 100–1, 114 66–7, 72, 78, 81–2; customs 68;
Territorio Indigena y Parque Nacional governance 1, 9, 68; jurisdiction 67;
Isiboro Secure (TIPNIS) 65 jurisprudence 82; law 9, 58, 66–7, 81,
Tikanga (Maori, customs, values and 83; legal regimes 12; property systems

DRAFT
traditions) 139 32; statutes 83; statutory law 9;
Tjukurrpa (Spinifex law) 30 sovereignty 37
Toghdeer House of Aquils, Declaration of Tsosie, Rebecca 31–2, 147, 149, 196–7
75 Tulalip Tribes 175
Traditional Biological Knowledge, Tutsi 186
Innovations and Practices Act (2010),
Pacific Islands Forum 172 U’wa 129
Traditional cultural expressions 5, 12, Ubink, Janine 91, 95–6
146–7, 149, 157–8, 162–4, 169–72 Ubuntu 37, 59–60
Traditional decision-making 5, 125, 143, Uukwambi 95–6
150, 185 UNESCO Convention for the
Traditional Knowledge: 102, 161, 168, 170, Safeguarding of the Intangible Cultural
176; Andean community 170–1; Heritage 149
biocultural protocols 135, 140, 176–8, UNESCO Convention on the Means of
199; as cultural property 146, 170; as Prohibiting and Preventing the Illicit
cultural heritage 147, 150; customary Import, Export and Transfer of
law and 4, 5, 11, 12, 13, 55, 135, 157–8, Ownership of Cultural Property 145
160, 166–9, 171, 174, 178–9, 197; UNESCO Convention on the Protection
human rights and 142, 157, 175; prior and Promotion of the Diversity of
informed consent for access 48, 165–6, Cultural Expressions 149
172; public domain and 146, 172–3; UNESCO Universal Declaration on
Nagoya Protocol and 48, 155, 159–62, Cultural Diversity 141
170, 176, 199; native title to 174–5; United Nations Indigenous Peoples’
New Zealand Patent Act 173; Peru Law Partnership (UNIPP) 56, 203
27811 172–3; sacred 154, 168–9; self- United Nations Permanent Forum on
determination and 156; shared 179; Indigenous Issues 2, 27, 40, 55, 77,
states as holders of 169; sovereignty over 177–8, 205, 203
175; sui generis protection 156, 159, United Nations Declaration on
164–5, 169, 171, 179; Swakopmund Development 121
Protocol 171–2; threats to 157;TBKIP United Nations Declaration on the Rights
302 Index

of Indigenous Peoples 1–2, 155; cultural Whakapapa (Maori Genealogy)

genocide 36, 188; customary law, and 8, Whanganui River Settlement 139, 198
53, 176; as customary international law White Earth Band of Chippewa Indians
3; distinguishes Indigenous from other Judicial Code 83
minorities 39; gender issues 182; land Woodman, Gordon 2, 3, 6, 18, 82
rights 102–4; prior informed consent Working Group on Indigenous
45, 53–4; problems with term Populations 205
Indigenous peoples 43–4; redress 108; World Bank 4; consultation 50
relied upon in legal forums 36, 125, World Conference on Indigenous Peoples
142; resource rights 122–3, 169; right to 57, 202, 205
legal regimes 53, 69–70, 90, 181; self- World Council of Indigenous Peoples
determination 4, 33, 35, 37, 39, 52–3; 42–3
status of Indigenous peoples rights 33, World Development Report 2006
54; traditional knowledge rights 169; World Intellectual Property Organization
UNIPP and 203;World Conference on 155, 162, 171
Indigenous Peoples 57 World Intellectual Property Organization
UN Declaration on the Rights of Intergovernmental Committee on
Minorities 144 Intellectual Property, Genetic
United States Supreme Court 66, 109, Resources,Traditional Knowledge and
114, 152 Folklore (IGC) 162–3, 171; Indigenous
Universal jurisdiction 192, 204–5 participation in 169–70, 175;
Unwritten law 15, 17–18 recognition of customary law 164–7;
Uti possidetis 100–1 hybrid proposal 168; inclusion of states
as beneficiaries 16

DRAFT
Vanuatu 2, Customary Land Management Written law 7, 14–5; Decretum 17; lacking
Act (2014) 106, 198; Kastom 105; land flexibility 28; relation with custom 83,
rights 105–6; marine areas management Uukwambi 96
139
Via Campesina 134 Xanthaki, Alexandra 117, 183
Vitoria, Francisco De 20–1 Xeer 2, preventing anarchy 74; 199;
Von Doussa, Justice 153 weaknesses of 74

Waikato-Tainui Raupatu Claims (Waikato Yasuni National Park 65, 190

River) Settlement Act (2010) 139 Yasuni Referendum proposal 191
Waitangi Tribunal 173, 197 Yasuni –ITT Initiative 65
Wanjina-Wungurr 174
Westbank First Nation 127 Zaghawa 190