Participatory Rights, Conservation and Indigenous Customary Law

Abstract

This chapter delves deeply into participatory rights of Indigenous peoples for what regards local decision-making, conservation governance and Indigenous customary law and knowledge associated to genetic resources. It aims at doing so by analysing two different legal frameworks: consultation and Free Prior and Informed Consent (FPIC), and biodiversity conservation and the role of Indigenous customary law. In this first part, the chapter points at the operationalization of consultation and FPIC as key means to avoid injustices when it comes to the use of genetic resources associated with Indigenous knowledge, and to the implementation of green development projects in Indigenous lands and territories. Two examples from the practice in the operationalization of FPIC and consultation are provided. They both regard Peru, but from two very different points of views. The first concerns the case of a project implementation by the GCF in the Indigenous lands of Datém del Maranon, and the redress provided by the IRM for lack of adequate implementation of FPIC standards. The second case, which reinforces the legal background of the first regarding the evident difficulties in im-plementing FPIC in Peru, concerns the genesis of the Peruvian consultation law which was adopted in 2011 after violent protests.In the second part of the chapter are analysed issues concerning biodiversity conservation, the role of ICCAs in helping emissions reductions and biodiversity conservation and the current status of Indigenous customary law. Matters related to the REDD+ programme and the utilization of forests and sacred lands to achieve emissions reductions objectives are analysed in a critical perspective from the point of view of Indigenous peoples. In fact, the classical conservation paradigm prescribes that environmental conservation must be realized in the total absence of human beings from forests or other natural areas. This approach has resulted in the forces evictions of Indigenous peoples for conservation objectives. However, this conservation paradigm is now changing thanks to other collaborative, participative approaches such as ICCAs, where Indigenous knowledge and practices are part of the environmental protection governance. Lastly, the chapter addresses issues of Indigenous customary law and legal pluralism as the maximum embodiment of the participatory parity in settler States’ law and governance.KeywordsIndigenous participatory rightsFPICCBDNagoya ProtocolAccess to genetic resourcesBenefit sharingIndigenous customary lawIndigenous knowledgeICCAsConservationDecolonize conservation