172 Giulia Sajeva
Order
Rights-based approaches to the conservation of the environment – approaches
that build on the respect of the rights of indigenous peoples and local communities and that include them as active stakeholders and rightsholders in the
management and governance of protected areas and other environmental conservation actions and projects – have, however, found their way, thanks to the
increased concomitant understanding of the advantageous inclusion of communities and peoples in conservation activities, and the increased recognition of
indigenous peoples and local communities’ rights. Through the amalgamation
of these streams,
24 Bavikatte suggested that a new basket of rights – biocultural
rights – may be emerging in international law: a de iure condendo construct whose
(yet) non-explicit recognition might be interpreted from international environmental and human rights hard and soft law and policies (Bavikatte, 2014, pp. 2,
21; Bavikatte & Bennett, 2015)
25 and have evolved – in legal literature and court
cases
26 – to become an important construct for interpreting the rights of indigenous peoples and local communities that relate to the environment.
Biocultural rights
27 are defined as the basket of collective rights that indigenous
peoples and local communities need to maintain their role as stewards of the
environment (Bavikatte, 2014, p. 16). They “initially appeared […] as ‘farmers’
rights’, ‘livestock keepers’ rights’ and rights to traditional knowledge” and “sought
to assert” group rights “not only based on ethnicity or religion or minority status
but primary on a history of stewardship of ecosystems” (Bavikatte, 2014, p. 28).
Indeed, “despite the seeming differences” between these rights “they all have
the same pith and substance – that is, they seek to secure the stewardship role
of communities over their cultures, lands, and waters” (Bavikatte, 2014, p. 29).
Stemming from these considerations, biocultural rights can be said to build on a
double foundation, i.e. two heterogeneous protected interests
28 – raisons d’être –
the protection of the environment, and the protection of the lifestyles, practices,
beliefs, and cosmovision of indigenous peoples and local communities. The idea
of biocultural rights gravitates around the understanding that the protection of
the ways of life and stewardship role of indigenous peoples and local communities can be beneficial for the conservation of biodiversity and ecosystems. As the
Executive Secretary of the CBD recently stated: “If we are to achieve by 2050
the Convention’s vision of ‘Living in harmony with nature’, it is critical that we
harness the power of the collective and local actions of the world’s indigenous
peoples and local communities” (Mrema, 2020).
These rights were “developed as a people-led alternative to state-led technocratic solutions to the environmental crisis” (Bavikatte, 2014, p. 18), and
include all “the rights of communities to fulfil their role as trustees of their
cultures, lands, waters, and resources” (ibid., p. 21). The rights found within
the biocultural basket will therefore differ from one community or people to
another: the heterogeneity of their ways of life, practices, knowledge, and worldviews implies a complex and flexible set of rights needed to maintain them (for
Order
Rights-based approaches to the conservation of the environment – approaches
that build on the respect of the rights of indigenous peoples and local communities and that include them as active stakeholders and rightsholders in the
management and governance of protected areas and other environmental conservation actions and projects – have, however, found their way, thanks to the
increased concomitant understanding of the advantageous inclusion of communities and peoples in conservation activities, and the increased recognition of
indigenous peoples and local communities’ rights. Through the amalgamation
of these streams,
24 Bavikatte suggested that a new basket of rights – biocultural
rights – may be emerging in international law: a de iure condendo construct whose
(yet) non-explicit recognition might be interpreted from international environmental and human rights hard and soft law and policies (Bavikatte, 2014, pp. 2,
21; Bavikatte & Bennett, 2015)
25 and have evolved – in legal literature and court
cases
26 – to become an important construct for interpreting the rights of indigenous peoples and local communities that relate to the environment.
Biocultural rights
27 are defined as the basket of collective rights that indigenous
peoples and local communities need to maintain their role as stewards of the
environment (Bavikatte, 2014, p. 16). They “initially appeared […] as ‘farmers’
rights’, ‘livestock keepers’ rights’ and rights to traditional knowledge” and “sought
to assert” group rights “not only based on ethnicity or religion or minority status
but primary on a history of stewardship of ecosystems” (Bavikatte, 2014, p. 28).
Indeed, “despite the seeming differences” between these rights “they all have
the same pith and substance – that is, they seek to secure the stewardship role
of communities over their cultures, lands, and waters” (Bavikatte, 2014, p. 29).
Stemming from these considerations, biocultural rights can be said to build on a
double foundation, i.e. two heterogeneous protected interests
28 – raisons d’être –
the protection of the environment, and the protection of the lifestyles, practices,
beliefs, and cosmovision of indigenous peoples and local communities. The idea
of biocultural rights gravitates around the understanding that the protection of
the ways of life and stewardship role of indigenous peoples and local communities can be beneficial for the conservation of biodiversity and ecosystems. As the
Executive Secretary of the CBD recently stated: “If we are to achieve by 2050
the Convention’s vision of ‘Living in harmony with nature’, it is critical that we
harness the power of the collective and local actions of the world’s indigenous
peoples and local communities” (Mrema, 2020).
These rights were “developed as a people-led alternative to state-led technocratic solutions to the environmental crisis” (Bavikatte, 2014, p. 18), and
include all “the rights of communities to fulfil their role as trustees of their
cultures, lands, waters, and resources” (ibid., p. 21). The rights found within
the biocultural basket will therefore differ from one community or people to
another: the heterogeneity of their ways of life, practices, knowledge, and worldviews implies a complex and flexible set of rights needed to maintain them (for