Proceduralising indigenous peoples’ demands: Indigenous environmental rights and legal pluralism in contemporary jurisprudence

Abstract

Biodiversity, climate change and environmental protection are commonly associated with indigenous peoples’ customs and holistic cosmovisions. This paper strives to uncover the legal rationale thereof, notably by identifying the procedural dimension underlying “indigenous environmental rights”, and the importance of collective and intergenerational rights in channelling indigenous environmental rights into dominant legal orders while facilitating the exercise of these rights. Grounded in Latin American jurisprudence, we understand environmental claims from the perspective of indigenous peoples’ rights, that is, their articulations in existing State law as well as the pertinence of legal pluralism as a transformative approach including its decolonising functions. It is examined to what extent such rights undergo processes of positivization or codification amidst the wide scenery of legal pluralist orders. Given their scarce procedural foundations, the main contribution lies with approaching indigenous environmental rights theoretically, exploring the possibilities for procedures in International Human Rights Law to be applied to them, including questions of representation, translation in a wider sense, or autonomies. Alongside classical procedural principles of human environmental law – information, participation, access to justice – indigenous environmental rights are related to concepts of guardianship, parental responsibility and best interest as these have been developed in relation to the rights of the child, or questions of autonomy and representation being derived from the framework governing persons with disabilities. In that sense, indigenous environmental rights find themselves (re-)imagined, including debates on vindicating these, their qualities and attributes as well as reflections on different procedural routes available.