Legal Framework Behind Biocultural Rights 167
to preserving their existence as people, and their identity and well-being. The
rights recognized by UNDRIP and by the International Labour Organization
Indigenous and Tribal People Convention No. 169
6 include the right to the
lands, territories, and natural resources they have traditionally owned, occupied,
or used; the right to maintain distinctive spiritual traditions, customs, and land
tenure systems; the right to conservation and protection of the environment of
their lands and territories; and the right to free, prior, and informed consent
(including the right to refuse consent) in all cases where their lands or natural
resources are affected by external agents; the right to non-discrimination and
cultural integrity,
7 based on the recognition of the paramount importance of language, and cultural, social, and religious practices for the preservation of people’s
identity; the right to welfare, including the right to maintain traditional health
practices; and the right to development
8 that encompasses the right to determine
priorities and strategies for their lands, territories, and resources.
Matters are instead more complicated and less developed for local communities.
Local Communities and Their Rights
Local communities may be defined as those small-scale communities that “do
not fit the strict test of indigeneity but nevertheless” (Bessa, 2015, p. 332) identify themselves as a community – either traditional or relatively new – thanks
to shared spatial, sociocultural, and economic elements. They often hold a
collective relationship with the local environment and natural resources – which
may be concentrated on permanent places or nomadic routes and habits. They
also share dynamic and evolving social and cultural elements, such as a common history, traditional practices, institutions, language, values, and life plans
that bind them together and distinguish them from other groups of society
(Sajeva et al., 2019, p. 12). Their internal economic organization reflects their
common interest in, and special collective relationship with, the local environment and resources, most often containing elements of common-pool resource
management. Importantly, the community has, within its defined boundaries,
institutional processes, and leadership perceived as legitimate by a majority of
members, who can exercise sufficiently effective control and compliance of rules
and conflict-resolution. Moreover, local community members are likely to share
a common political identity that enables them to exercise and claim for the recognition of collective rights and responsibilities.
This list of features mirrors those employed to describe indigenous peoples, of
which indigeneity is the key differentiating feature.
9 As stated above, the distinction between local communities and indigenous peoples is not simply an identity
issue, but also a legal one.
10 Local communities are, like all human beings, holders of the fundamental rights recognized by the Universal Declaration of Human
Rights and the UN Conventions and Covenants on Human Rights.
11 However,
these documents predominantly recognize individual rights,
12 which may not be
sufficient to safeguard the survival, identity, and flourishing of local communities
to preserving their existence as people, and their identity and well-being. The
rights recognized by UNDRIP and by the International Labour Organization
Indigenous and Tribal People Convention No. 169
6 include the right to the
lands, territories, and natural resources they have traditionally owned, occupied,
or used; the right to maintain distinctive spiritual traditions, customs, and land
tenure systems; the right to conservation and protection of the environment of
their lands and territories; and the right to free, prior, and informed consent
(including the right to refuse consent) in all cases where their lands or natural
resources are affected by external agents; the right to non-discrimination and
cultural integrity,
7 based on the recognition of the paramount importance of language, and cultural, social, and religious practices for the preservation of people’s
identity; the right to welfare, including the right to maintain traditional health
practices; and the right to development
8 that encompasses the right to determine
priorities and strategies for their lands, territories, and resources.
Matters are instead more complicated and less developed for local communities.
Local Communities and Their Rights
Local communities may be defined as those small-scale communities that “do
not fit the strict test of indigeneity but nevertheless” (Bessa, 2015, p. 332) identify themselves as a community – either traditional or relatively new – thanks
to shared spatial, sociocultural, and economic elements. They often hold a
collective relationship with the local environment and natural resources – which
may be concentrated on permanent places or nomadic routes and habits. They
also share dynamic and evolving social and cultural elements, such as a common history, traditional practices, institutions, language, values, and life plans
that bind them together and distinguish them from other groups of society
(Sajeva et al., 2019, p. 12). Their internal economic organization reflects their
common interest in, and special collective relationship with, the local environment and resources, most often containing elements of common-pool resource
management. Importantly, the community has, within its defined boundaries,
institutional processes, and leadership perceived as legitimate by a majority of
members, who can exercise sufficiently effective control and compliance of rules
and conflict-resolution. Moreover, local community members are likely to share
a common political identity that enables them to exercise and claim for the recognition of collective rights and responsibilities.
This list of features mirrors those employed to describe indigenous peoples, of
which indigeneity is the key differentiating feature.
9 As stated above, the distinction between local communities and indigenous peoples is not simply an identity
issue, but also a legal one.
10 Local communities are, like all human beings, holders of the fundamental rights recognized by the Universal Declaration of Human
Rights and the UN Conventions and Covenants on Human Rights.
11 However,
these documents predominantly recognize individual rights,
12 which may not be
sufficient to safeguard the survival, identity, and flourishing of local communities