By: Noah Duguma
Volume IX – Issue II – Spring 2024
I. Introduction
Indigenous peoples all over the world are renowned environmental stewards. From the Orang Asli of Malaysia to the Sioux of the Northern Great Plains, the Arawak in Suriname to the Oromo of the Great Rift Valley, indigenous peoples might make up only 5 percent of the global population, but they conserve 80 percent of the world’s biodiversity. [1] When compared to the comparatively modest records of conservation non-indigenous governments have, this makes the achievements of such a small part of the world’s population all the more impressive. How have indigenous peoples been able to live in such harmony with nature and still sustain themselves? What methods do indigenous peoples use to manage the environment around them? With the impending climate disaster, governments across the world can benefit greatly from incorporating Indigenous ways of thinking into natural resource management.
II. Indigenous Philosophies, Not Methods
The root of indigenous conservation lies in the philosophies indigenous peoples choose to follow, philosophies that are diametrically opposed to the ideals Western societies have. The largest, most glaring difference between Indigenous and Western philosophies is epistemological. Indigenous epistemology (the study of knowledge) is not based on the Western binary of quantitative and qualitative researching methods. Rather, Indigenous epistemologies are spurred by the metaphysical, being truly present in the environment. Because of this special relationship, Indigenous knowledge of local ecosystems goes much deeper than the lengths that Western science can go to. An example of the uniquely metaphysical relationship Indigenous peoples have with their environment is highlighted in the notable Potawatomi scientist and author Robin Wall-Kimmerer’s book, Braiding Sweetgrass, where she was amazed by the extensive botanical knowledge a Navajo elder possessed: “A Navajo woman without a day of university botany training in her life—spoke for hours and I hung onto every word. One by one, name by name she told of the plants in her valley. Where each one lived, when it bloomed, who it liked to live near and all its relationships, who ate it, who lined their nests with its fibers, what kind of medicine it offered”(Kimmerer 44). [2] Extensive indigenous knowledge reservoirs, refined through millennia of exploring, trial and error, and a close metaphysical observation with the Earth, should not be discounted on the world stage.
In addition to cultivating a metaphysical relationship between the Earth and humanity, Indigenous cultures also deeply root themselves in ceremony. While one might imagine sweat lodges, the burning of sage, and powwows to be pillars of the Indigenous ceremonial practice, this assessment is a reduction of the variety of Indigenous ceremonies. While most ceremonies are highly localized, one type of ceremony that is found across many Indigenous cultures is the thanksgiving address. Normally incredibly long in duration, Indigenous tribes regularly elect to go thank the Earth for all the spoils it gives to people. Kimmerer chronicled the Onondaga tribe’s thanksgiving address, talking to an Onondagan teacher: “‘it [thanksgiving address] reminds you every day that you have enough,’ she says. ‘More than enough. Everything needed to sustain life is already here. When we do this, every day, it leads us to an outlook of contentment and respect for all of Creation.’” (Kimmerer 111). When a community commits to reciting a thanksgiving address, it has the power to remove potential feelings of greed and consistently instills gratefulness throughout Indigenous societies. Instilling gratefulness has the effect of modulating average resource consumption and forces a sense of responsibility which persuades people to treat the Earth better. Thanksgiving addresses do not happen very often outside of Indigenous communities. Indigenous people realize that mentality is a very important tenet of natural resource management.
III. Western Natural Resource Management Methods
Unlike Indigenous resource management, Western resource management uses a standardized, cerebral philosophy for identification, assessment, and conservation. There is no room for the “metaphysical” within the Western worldview. In most Western societies, resource management is compartmentalized into a single government agency or department. Popular examples of environmental regulatory government agencies are the United States’ Department of the Interior, the United Kingdom’s Department for Environment, Food, and Rural Affairs, France’s Ministry of the Environment, Energy, and the Sea, and New Zealand’s Environmental Protection Authority.
The administrative approach Western governments take to natural resource management indicates that it is a distinctly governmental task, rather than a socio-governmental task. This stands in staunch contrast to Indigenous natural resource management, where the civic voice is almost completely enmeshed with governance initiatives regarding natural resource management.
IV. Current State of Indigenous Environmental Law
Indigenous environmental law, within the Westernized framework, is a nascent subject within the global legal system. In spite of its recent introduction to Western academic circles, indigenous environmental law is a legal subject that is evolving at a fascinating pace. Partially because of the large number of countries indigenous peoples reside in, there exists innumerable contact points between national legal systems and indigenous peoples.
i. Examples of International Indigenous Law
Widening the scope from environmental law, there have been a few key instances of indigenous inclusion on the world stage. One of the earliest examples of Indigenous rights being talked about on a world stage was at the International Labor Organization’s (ILO) 1957 convention (Convention 107), colloquially known as the “Indigenous and Tribal Populations Convention.” [3] Although primitive, Convention 107 was monumental in establishing one of the first international acknowledgements of governmental responsibility in ensuring the health, education (both vocational and academic), economic development, and labor protection of Indigenous communities. The ILO 1957 convention was also one of the first international resolutions to acknowledge traditional Indigenous land rights. For its time period, the 1957 ILO convention was a groundbreaking development in International Indigenous Law.
In 1989, more than three decades after the ratification of the Convention 107, the ILO reconvened to rework the outdated 1957 convention to reflect the numerous major developments in international law and Indigenous rights. Convention 169 (titled the “Indigenous and Tribal Peoples’ Convention”) put significant emphasis on correcting “the assimilationist orientation of the earlier standards” (ILO Convention No. 169). [4] Since the late 1950’s, there were numerous movements in favor of indigenous sovereignty, and the 1989 convention took indigenous sovereignty into account when drafting the convention resolution. Articles 8 through 10 of Convention 169 go into scrutinizing detail about forbidding national governments from forcefully crossing Indigenous legal boundaries, with Article 8 (1) stating: “In applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws” (ILO Convention No. 169). While limited in its power because of a lack of ratifying countries, the 1989 “Indigenous and Tribal Peoples’ Convention” was a major breakthrough for indigenous sovereignty within the global legal sphere. To this day, ILO Convention No. 169 is the “only international treaty open for ratification that deals exclusively with the rights of these [indigenous] peoples” (ilo.org).
Until the 1990’s, the two main international bodies of law regarding Indigenous peoples were mainly confined to the ILO, a subsidiary agency of the United Nations. While ILO Conventions No. 107 and 169 were seminal, its international soft power was hampered by its low ratification among UN member states. It wasn’t until 2007 when a completely comprehensive UN declaration was passed on the welfare of Indigenous peoples by 143 UN member states: The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). [5] When one analyzes the powerful declaration, the inspiration taken from Conventions No. 107 and 169 are palpable. For example, the declaration reiterates the Conventions’ mentionings of the international need to respect indigenous sovereignty, affirming the need for governments to treat Indigenous peoples with the same human rights afforded to non-Indigenous peoples, and the need for coherent relations to exist between Indigenous communities and governments. However, the 2007 UN declaration, in spite of it not being legally binding unlike the ILO’s conventions, spurred a concept to the global stage that fundamentally changed the way Indigenous communities were engaged with: Indigenous Intellectual Property. Article 31(1) of UNDRIP states: “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies, and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of flora and fauna” (UNDRIP 2007). While the ISO conventions make passing remarks on Indigenous Intellectual Property, it is within the UNDRIP where the term garnered sophisticated nuance. The addition of Indigenous Intellectual Property to international legal and policy frameworks has had widespread repercussions throughout national governments and within many private sectors (most notably in the pharmaceutical industry).
While the ILO’s two conventions and the UNDRIP might not be exclusively environmental in focus, these three bodies of international law paint a comprehensive picture of the challenges Indigenous peoples have faced and continue to face on the world stage. However, while these international legal instruments wield significant soft power, they will remain nebulous until more cogent, specific, and pertinent treaties and resolutions are passed regarding specific aspects of Indigenous rights and Indigenous environmental sovereignty.
ii. National Examples of Indigenous Environmental Management
When examining the status of Indigenous environmental management on the national level, there exist numerous fascinating legal developments. In Aotearoa, New Zealand, through the country’s modern founding, Aotearoa has inadvertently become a global innovator in the field of Indigenous law. The founding document of Aotearoa is the Treaty of Waitangi, an incredibly influential document signed between Aoteraroa’s Maori people and European settlers, in 1840. [6] Duplicitous in meaning, the first article of the treaty asserts that the British crown has the ability to gain governance over Maori lands meanwhile the second article establishes Maori sovereignty over their own lands. The Treaty of Waitangi was not well thought out, and as a result the majority of the middle three decades of the nineteenth century were spent in brutal warfare between the European settlers and Maori people for land ownership. Through these wars the Maori lost control of significant tracts of land, and the British courts mostly ignored the Treaty of Waitangi. In fact, it wasn’t until 1975, after years of Maori advocating for the western government to recognize the Treaty of Waitangi that the Treaty of Waitangi Act was passed. The crucial 1975 act established the Waitangi tribunal, a legal commission that is exclusively tasked with the interpretation of the Treaty of Waitangi and the investigation of treaty violations. Although merely an investigatory body, the Waitangi Tribunal has been a notable crucible for Maori justice and reconciliation.
The legal context of Aotearoa is requisite in understanding the Te Awa Tupua Act of 2017 (the Whanganui River Settlement Act). [7] The act was drafted in response to the Western government of Aotearoa building out and unfairly exploiting the Whanganui river over several decades in the early to late 20th centuries. In response to the settler exploitation of the Whanganui River, one of the crowning achievements of the Te Awa Tupua Act was the declaration of legal personhood for the Whanganui River. By declaring the Whanganui river a “legal person”, the river is entitled to heightened protections regarding water usage, pollution regulation, and general natural resource exploitation.
The Whanganui River Settlement act’s ingenuitive use of Western law relates to the special relationship the Whanganui iwi holds with their river (iwi is the Maori word for tribe). Named after the river itself, the iwi regards the river as “a living ancestor” (Cribb 3). [8] The declaration of legal personhood for the Whanganui river will not only increase the wellbeing of the river, but the methodology behind legal personhood is gratifying to the metaphysical reality the Maori root their philosophy in. In addition to the Te Awa Tupua Act affirming and advancing Maori Indigenous rights, the act is a disruptive experiment in legal pluralism where an Indigenous legal system is seamlessly integrated into a Western legal system. The legal pluralism seen in Aotearoa is progressive, respectful, and productive, resulting in positive results for Aotearoa’s environment and the progress of Maori Indigenous rights.
V. Suggestions for Integrating Indigenous & Western Legal Systems
Aotearoa’s powerful example of legal pluralism through granting personhood to the Whanganui river is but a small roadmap for what must happen in the future in countries with a significant indigenous population. Even within countries without a significant indigenous population, the wisdom from Indigenous ways of living must be concatenated and practically applied to respective legal systems.
For a long time, Indigenous peoples have struggled to find legitimacy on the world stage, and for good reason. International decision making bodies such as the United Nations still have not done enough to propel the global status of Indigenous peoples. As previously mentioned, the 2007 UNDRIP is too vague to effectively address the wide variety of struggles Indigenous people face. International decision bodies also have not done enough to legitimize the capacious knowledge Indigenous peoples possess regarding natural resource management. The United Nations could pass future declarations, resolutions, and hold conventions regarding Indigenous natural resource management. Overall, the United Nations has to invest more into Indigenous studies and must establish more working relationships between the United Nations environment program and the Expert Mechanism on the Rights of Indigenous Peoples. On the domestic level, more countries should learn from Aotearoa’s graceful example of legal pluralism. Enough concerns have been raised regarding how much Western paradigms must change in order to integrate Indigenous knowledge into natural resource law. Yet, natural resources are being depleted at grossly unsustainable rates, thereby proving the need for legal change. Indigenous environmental knowledge can be the change that will spur the plateau of progress towards sustainable resource use to progress again.
Indigenous-Western legal pluralism will also help to catalyze the incredibly long road of reconciliation between the historical injustices created by colonialism. So many possibilities could be unleashed when Indigenous knowledge is legitimized by Western legal systems, or when Indigenous people are represented in natural resource decision making. New generations of Indigenous and western legal scholars should embrace cross-legal collaboration to find new innovations to govern natural resources.
Endnotes
[1] Broom, Douglas. 2023. “Here’s How Indigenous People Are Protecting the Planet.” World Economic Forum. August 3, 2023. https://www.weforum.org/agenda/2023/08/indigenous-people-protecting-planet/#:~:text=Although%20they%20make%20up%20less.
[2] Kimmerer, Robin Wall. 2013. Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge and the Teachings of Plants. Minneapolis, Minnesota: Milkweed Editions.
[3] International Labor Organization (ILO). 1989. “Convention C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169).” Www.ilo.org. June 27, 1989. https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312314 :NO.
[4] International Labor Organization (ILO). n.d. “Indigenous and Tribal Peoples (Indigenous and Tribal Peoples).” Www.ilo.org. https://www.ilo.org/global/topics/indigenous-tribal/lang--en/index.htm.
[5] United Nations. 2007. “United Nations Declaration on the Rights of Indigenous Peoples.” United Nations. https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
[6] “TE TIRITI O WAITANGI the TREATY of WAITANGI.” 1840. https://nzhistory.govt.nz/files/documents/treaty-kawharu-footnotes.pdf.
[7] Cribb, Miriama, Elizabeth Macpherson, and Axel Borchgrevink. 2024. “Beyond Legal Personhood for the Whanganui River: Collaboration and Pluralism in Implementing the Te Awa Tupua Act.” The International Journal of Human Rights 28 (3): 1–24. https://doi.org/10.1080/13642987.2024.2314532.
[8] Ministry of Justice. 2017. “Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 No 7 (as at 30 January 2021), Public Act – New Zealand Legislation.” Www.legislation.govt.nz. March 20, 2017. https://www.legislation.govt.nz/act/public/2017/0007/latest/whole.html.