Biocultural Rights: A New Paradigm for Protecting Natural and Cultural Resources of Indigenous Communities

Abstract

This article proposes a new concept of “biocultural rights” that justly reflects a broader intellectual and policy trend to holistically address the protection of Indigenous natural and cultural resources. The concept of biocultural rights combines nature with culture; takes into consideration the past, the present, and the future; and values “special” Indigenous elements that are indispensable to the diversity of our universe. It aims at protecting Indigenous resources holistically and more effectively.

Full text

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Biocultural Rights: A New Paradigm for Protecting
Natural and Cultural Resources of Indigenous
Communities
Cher Weixia Chen
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Michael Gilmore
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Biocultural Rights: A New Paradigm for Protecting Natural and Cultural
Resources of Indigenous Communities
Abstract
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Biocultural Rights: A New Paradigm for Protecting Natural and Cultural Resources of
Indigenous Communities
Introduction: The Maijuna Community
Throughout the world, the natural and cultural resources of Indigenous communities are under threat.
The resources of the Maijuna Indigenous group of the northeastern Peruvian Amazon are no exception.
The Maijuna, also known as the Orejón, are a Western Tucanoan people (Bellier, 1994; Steward, 1946).
There are approximately 400 Maijuna individuals living in four communities: Sucusari along the
Sucusari River, San Pablo de Totolla along the Algodón River, and Puerto Huamán and Nueva Vida
along the Yanayacu River. These three river basins are part of the ancestral territory of the Maijuna
(Gilmore, 2010).
The four Maijuna communities are recognized as
Comunidades Nativas
(Native Communities) by the
Peruvian Government and each has been granted title to the land surrounding their community (Brack-
Egg, 1998). Unfortunately, the titled land that the Maijuna communities have received is a small portion
of their ancestral territory. Therefore, hundreds of thousands of hectares of Maijuna ancestral land, the
vast majority of which is intact primary rain forest, currently remains outside of direct Maijuna control
and is unprotected. Notably, Maijuna ancestral territory is incredibly biologically rich and culturally
important. For example, Maijuna traditional lands contain a complex of high terraces—an extremely
unique and previously unknown habitat—that shelters a flora and fauna with new, rare, and specialized
species. Additionally, this area also contains critically important hunting, fishing, and plant collecting
sites as well as historical and sacred areas that help to sustain and nourish the Maijuna culture (Gilmore,
2010).
There are currently a wide variety of threats and challenges to Maijuna natural and cultural resources.
For example, they are now under threat from loggers and poachers from outside communities. Even
more serious, the Peruvian government is planning to build a 130 km long road, with a 5 km
development corridor on either side of it focusing on biofuels production (e.g., oil palms), directly
through the heart of Maijuna ancestral territory (Gilmore, 2010). The direct effects of highway
construction and the associated impacts from an influx of colonists and subsequent deforestation would
irreversibly alter the ecological fabric of this currently roadless area. Furthermore, given that the Maijuna
are a forest dwelling people who rely on the forest for sustenance and survival, building this road would
negatively impact their livelihood and traditional culture.
Regrettably, the Peruvian government has not properly consulted the Maijuna on the construction of
the road nor has it accurately described both its biological and cultural ramifications (Gilmore, 2010).
Perhaps not surprisingly, the Maijuna are adamantly against the construction of this road and its
associated development corridor and are asking the Peruvian government to alter its path. They are also
calling on the government to create a Regional Conservation Area that would formally and legally
protect over 391,000 hectares of their ancestral lands and the critically important biological and cultural
diversity found there. As stated, the Maijuna “strongly feel that their survival as a people and the survival
and maintenance of their cultural practices, unique traditions, and traditional subsistence strategies
depend on a healthy, intact, and protected ecosystem” (Gilmore, 2010, p. 233). In short, the Maijuna are
fighting for their ancestral lands, natural and cultural resources, and the survival of their traditional
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culture, all of which are interlinked and interdependent, and they are looking for mechanisms to make
this happen.
The vital role of natural and cultural resources1 to the well-being and survival of the Maijuna and other
Indigenous communities has gained increasing notice among academics and international organizations
(Tennant, 1994).2 Over the past several decades, various mechanisms have been proposed and
employed to safeguard and protect both the natural and cultural resources of Indigenous peoples. The
text below first evaluates these frameworks and offers critiques, followed by an analysis of the emerging
recognition of the interconnections between Indigenous natural and cultural resources. This then leads
to our proposed new concept—"biocultural rights"—that attempts to solidify an approach to protecting
Indigenous resources in a more holistic manner.
Existing Frameworks Protecting Indigenous Resources
The current system that is in place to protect Indigenous resources treats the land and other natural
resources separately from cultural resources. There are two major mechanisms to protect natural
resources of Indigenous groups: historical sovereignty and treaty rights. The concept of “historical
sovereignty” was developed during the decolonization movement after World War II and then was
adopted by the global Indigenous rights movement in the 1970s. In 2007, “historical sovereignty”
became more than just a political claim, the United Nations (2007)
Declaration on the Rights of
Indigenous Peoples
(hereinafter the 2007 U.N. Declaration) affirmed such concept as “the right to the
lands, territories and resources which they have traditionally owned, occupied or otherwise used or
acquired” (Article 26). However, it remains to be seen whether the soft law principle (as in the 2007
U.N. Declaration) of “historical sovereignty” could in the end become hard law or “permanent
sovereignty” (Daes, 2005, p. 87).
The other mechanism is treaty rights (Goodin, 2000). A large number of treaties were created between
Indigenous groups and their colonial governments during the 1700s and 1800s. However, the power
imbalance between those two parties has resulted in significantly different interpretations of these
treaties, which are largely detrimental to Indigenous peoples. Indigenous peoples have since lost much
of their lands and natural resources. The 2007 U.N. Declaration in Article 37 has formally recognized
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1 Both natural resources and cultural resources are broadly defined. Natural resources are defined as those
resources (actual and potential) that are derived or part of nature. They refer to an ecological system that includes
biotic resources such as forests, animals, birds, fish, and abiotic resources such as land, water, ores, and air, as well
as species and genes. Cultural resources are defined as cultural manifestations such as languages, oral traditions,
philosophies, writing systems, archaeological and historical sites, artifacts, designs, ceremonies, sports and
traditional games, and visual and performing arts and literature; spiritual and religious manifestations such as
spiritual and religious traditions, customs and ceremonies, religious and cultural sites, ceremonial objects, and
their human remains; and scientific and technological manifestations such as traditional medicines, human and
genetic resources, seeds, traditional knowledge of the properties of fauna and flora, health practices, and
sustenance practices such as hunting and fishing.
2 There was little literature about Indigenous peoples in US legal journals until the year 1972 when the UN Sub-
Commission on Discrimination and Protection of Minorities commissioned the Study on the Problem of
Discrimination Against Indigenous Populations (United Nations Commission on Human Rights, 1986).
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the treaty rights of Indigenous peoples; yet, recent attempts to revive treaty rights by Indigenous peoples
have not been very successful (Tsosie, 2000).
The protection of cultural and intellectual resources of Indigenous people was generally missing from
the conversation prior to the 1980s. In 1984, the World Council of Indigenous Peoples (1984) declared
that “Indigenous peoples will reassume original rights over material culture” in its
Declaration of
Principles
(Article 14). In 1988, the First International Conference of Ethnobiology announced in its
Declaration of Belem
, “procedures should be developed to compensate native peoples for their
knowledge” (cited in Hayden, 2003, p. 35). Later, the
Kari-Oca Declaration
addressed “culture, science
and intellectual property” (World Conference of Indigenous Peoples, 1992, Introduction). And in 1993,
the international legal arena witnessed its first document that is fully dedicated to the protection of
cultural and intellectual property of Indigenous peoples:
Mataatua Declaration on Cultural and
Intellectual Property Rights of Indigenous Peoples
(United Nations, 1993). Subsequently, Indigenous
cultural and intellectual property emerged as an essential topic of international law, which is evinced by
the rising number of regional declarations on Indigenous cultural and intellectual property.3 The
international community came to an agreement as to the importance of Indigenous cultural and
intellectual property during the deliberation of the 1994 draft
Declaration on the Rights of Indigenous
Peoples
(Gray, 1996). The World Intellectual Property Organization (WIPO) Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore has
been undertaking negotiations for a potential international legal instrument on the effective protection
of Indigenous cultural resources. Indigenous communities have also been placed at the center stage of
the international environmental movement, during which the debates have touched on various parts of
the lives of Indigenous communities, such as cultural autonomy, traditional hunting and fishing practices,
and traditional knowledge (Firestone, Lilley & Noronha, 2005). For example, the importance of
traditional ecological knowledge (TEK) has been widely acknowledged, as evidenced by the 2010
Nagoya Protocol, a supplementary agreement to the Convention on Biological Diversity that covers
traditional knowledge associated with genetic resources (Bavikatte & Robinson, 2011; McGregor,
2012).
The first mechanism commonly used to protect Indigenous peoples’ cultural heritage utilizes the
existing intellectual property (IP) laws. The commodification of intangible cultural and intellectual
property such as music, motifs, prayers, ceremonies, and traditional knowledge as well as the alarming
issue of “biopiracy”4 has been frustrating to many Indigenous communities (Daes, 1995; Robinson,
2010). The current legal frameworks have been inadequate in protecting Indigenous cultural and
intellectual property (Paterson & Karjala, 2003). The modes of classification, identification, and
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3 Such as, the Julayinbul Statement on Indigenous Intellectual Property Rights, Australia, November 1993; the
Santa Cruz de la Sierra Statement on Intellectual Property, Bolivia, September 1994; the Tambunan Statement on
the Protection and Conservation of Indigenous Knowledge, Malaysia, February 1995; the Suva Statement on
Indigenous Peoples Knowledge and Intellectual Property Rights, Fiji, April 1995; and, the Kimberley Declaration,
South Africa, August 2002.
4 “Biopiracy” was first defined by Pat Mooney and made well-known by other scholars such as Vandana Shiva. It
refers to the “robbery of the biological raw materials” such as genetic resources and “the knowledge about the use
of such resources”. It is further defined as “the appropriation of the knowledge and genetic resources of farming
and Indigenous communities by individuals or institutions who seek exclusive monopoly control (patents and
intellectual property) over this knowledge and resources” (Martinez-Alier, 2003, p. 132).
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operation used under the current IP system of European origins (Deazley, 2004) are not compatible
with Indigenous peoples’ understanding of their knowledge and cultural practices (Bell & Napolean,
2008). Furthermore, the present IP system that is mainly concerned with the protection of individual
intellectual property does not take the interests of Indigenous communities into account, as Indigenous
intellectual property is largely communal based and connects to Indigenous land and other natural
resources (Davis, 1996/1997). Therefore, Indigenous peoples need to play a much bigger role in the
decision-making process (Goldberg & Badua, 2008). Some scholars have pushed to modify the current
system to incorporate communal and collective ownership (Carpenter, 2004), to include more creative
contractual provisions (Rubin & Fish, 1994), to replace traditional intellectual property with “traditional
resource rights” (Posey, Dutfield, Plenderleith, da Costa e Silva, & Argumedo, 1996), and to have a
“globally harmonized IP regime” (Sundaram, 2005, p. 577). Others have proposed abandoning all
together the application of intellectual property rights (IPR) to the protection of cultural resources of
Indigenous peoples (Heald, 2003).
The second mechanism employed by Indigenous peoples to protect their cultural resources is the claim
of cultural rights. The most commonly accepted legally binding provision on cultural rights of
Indigenous peoples is Article 27 of the International Covenant on Civil and Political Rights (ICCPR,
1967), which stipulates that minorities “shall not be denied the right to enjoy their own culture.”
However, this article has been a source of controversy since its inception. One issue is whether Article 27
only confers cultural rights as negative rights. That is, the wording of Article 27 holds a passive stance
(“shall not be denied”) with regard to such rights. Is a “passive” protection adequate to safeguard
cultural rights? Nowak (1993) argued that currently the protection of cultural rights relies heavily on the
active support of states because minority cultures are vulnerable to assimilation imposed by the majority
group. Through its General Comment No. 23 issued in 2004 and various cases, the Human Rights
Committee has implicitly interpreted cultural rights provided in Article 27 as a positive right (Kingsbury,
2001; Thornberry, 2001). Nevertheless, Article 27 has largely been interpreted as an individual right
only; hence, it is limited in its ability to afford protection for Indigenous communal rights to their culture
(Thornberry, 1991).
All of these mechanisms have both strengths and weaknesses in terms of protecting Indigenous natural
and cultural resources. Each was developed out of its unique historical context and has its own
theoretical support and institutional adherents. However, each can only solve one small fraction of the
issue. Under these frameworks, the right of Indigenous peoples to their natural and cultural resources is
viewed as two separate and independent issues; that is, the right to natural resources is separated from
the right to cultural resources. The Maijuna case demonstrates that natural and cultural resources are
inseparable, especially to Indigenous groups. As Elizabeth Burleson (2007) eloquently puts, “Chippewa
cultural heritage is interwoven with the harvest of ancient wild rice. Pueblo ceremonial rights to clean
water are equally central to retaining cultural heritage” (p. 252). Nature and culture are equally
important to Indigenous peoples (Prosper, McMillan, Davis & Moffitt, 2011). They are indivisible. Any
damage to one will inevitably harm the other, threatening the very survival of Indigenous groups (Fonda,
2011; Robbins & Dewar, 2011). Therefore a new concept—biocultural rights—ought to be established
to unify all of these frameworks.
The historical development of international legal instruments on the rights of Indigenous peoples
reveals a growing understanding of the intrinsic interdependence between the right to natural resources
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and the right to cultural resources. The following text examines the major international instruments on
the rights of Indigenous peoples and argues that the mere fact that most of these documents address
both natural resources and cultural resources (even though in separate articles) is indicative of the
necessity of creating an inclusive right to protect both natural and cultural resources of Indigenous
communities. The 2007 UN Declaration exhibits the very first step of this effort to holistically look at the
protection of Indigenous peoples’ resources as a whole.
The International Legal Development on the Protection of Indigenous Resources
ILO Conventions 107 (1957) and 169 (1989)
The Indigenous and Tribal Populations Convention of 1957 (ILO No. 107) was the first attempt under
international law to codify nation states’ obligations to Indigenous and tribal groups. National judiciary
and international bodies have invoked it when dealing with issues such as Indigenous land rights (Morse
& Berger, 1992). However, its integrationist approach has been frequently criticized. Finally in 1989,
Convention 169 replaced Convention 107 (Blaser, Feit & McRae, 2004). Convention 169 changed the
title from “population” to “peoples” and demonstrated a greater extent of respect for Indigenous groups
as permanent entities rather than some temporary societies that would fade away under modernization.
However, both conventions did not engage Indigenous peoples in their drafting process. Moreover, even
though the newer Convention 169 did emphasize the importance of land and other natural resources to
Indigenous people in Part II, it did not specifically address the issue of the protection of their cultural
and intellectual property, which reflected the dominant discourse on the protection of Indigenous rights
of the time.
UN Conference on Environment and Development (UNCED): Agenda 21
Agenda 21 (United Nations, 1992) is an action plan that came out of the 1992 UN Rio Conference on
Environment and Development. In this conference, Indigenous peoples were actively involved and
fought to be a part of the agenda and conversation. Chapter 26 of Agenda 21 explicitly aimed to
strengthen the role of Indigenous people and their communities in sustainable development. It
recognized the importance of Indigenous lands and other natural resources as well as their traditional
knowledge, and intellectual and cultural property.
More specifically, Chapter 26 emphasizes “the interrelationship between the natural environment and
its sustainable development and the cultural, social, economic and physical well-being of Indigenous
people” (United Nations, 1992, sec. 26.1). This is a major development in the international Indigenous
movement, as the “interrelationship” between nature and culture for the first time was formally
recognized in an important international document.
Convention on Biological Diversity (1993)
Another important international legal document that developed out of the Rio Conference is the
Convention on Biological Diversity (United Nations Environment Programme, 1993). It recognized the
importance of traditional knowledge and methods conducive to biodiversity conservation. It urged their
generalization, dissemination, and compensation, and obliged contracting parties to provide reasonable
access to genetic resources in their sovereign territories on the basis of prior informed consent (PIC)
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and equitable sharing of benefits (UN, 1993, Article 8 & Article 15). The convention also stresses the
importance of protecting and encouraging the use of “biological resources in accordance with traditional
cultural practices that are compatible with conservation or sustainable use requirements” (UN, 1993,
Article 10).
UN Declaration on the Rights of Indigenous Peoples (2007)
This 2007 UN Declaration represented a dynamic and significant development in the Indigenous rights
movement and sets a new international standard on the treatment of Indigenous peoples. It recognized
the rights of Indigenous people to natural resources as well as their right to cultural resources. In Article
8, it establishes the interdependence between Indigenous land and other natural resources and their
cultural survival. Specifically, Article 8.1 stated, “Indigenous peoples and individuals have the right not to
be subjected to forced assimilation or destruction of their culture” (UN, 2007). And in the ensuing
Article 8.2 it stipulated that “states shall provide effective mechanisms for prevention of, and redress for:
any action which has the aim or effect of dispossessing them of their lands, territories or resources…”
(UN, 2007). That is, the dispossession of Indigenous lands, territories, or resources may lead to
“destruction of their culture.” In this way, the Declaration formally stresses the integrative value of
Indigenous lands and other natural resources to the endurance of Indigenous cultures (Article 8). And,
in Article 25, the Declaration further elaborates on the intricate spiritual relationship between
Indigenous peoples and their natural resources (UN, 2007).
Declaration of Indigenous Peoples of Africa on Sustainable Development and Rio +20
(2012)
In 2012, Indigenous groups of Africa emerged in the international environmental movement and issued
their own declaration on sustainable development (United Nations, 2012). They appealed to the
international community to be included in sustainable development and called for the recognition of the
contributions Indigenous peoples could make in finding sustainable solutions by employing their
“traditional knowledge.” The Declaration also stressed the significance of Indigenous knowledge to
sustainable development policy formulation (Article 13). It specifically emphasized that their right to
access and manage Indigenous lands and territories is key to promoting the “conservation of
ecosystems” (Article 12). Later, the Indigenous Peoples International Declaration on Self-
Determination and Sustainable Development (Rio +20, 2012) further underscored the fundamental
role of Indigenous cultures to sustainable development.
Other Recent Developments
All of these international documents have played an essential role in setting norms and providing
justifications that have served and will continue to serve as a shared reference to and source of validation
for better treatment of Indigenous peoples. From no reference to Indigenous cultural resources in early
documents to the highlighted interrelationship between nature and culture in more recent ones, they
have collectively indicated an emerging tendency within the international community towards a more
holistic and inclusive approach to Indigenous rights.
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More international organizations are calling for such an approach. For instance, the UN Permanent
Forum on Indigenous Peoples has repeatedly stressed the crucial inclusion of Indigenous peoples in
biodiversity discussions.
Biodiversity erosion is a serious concern for us—Indigenous peoples—because the loss of flora,
fauna, and micro- organisms and the destruction of ecosystems are not just physical losses. This
also means the loss of Indigenous knowledge systems, cultures, languages, and our identities.
(Tauli-Corpuz, 2009, p. 6)
Indigenous peoples have long recognized the ingrained interdependence of biodiversity and cultural
diversity, both of which are considered by Indigenous communities as invaluable (Matsui, 2012; Sarma
& Barpujari, 2011).
Other international organizations such as the United Nations Development Program (UNDP) have also
advocated for more research on the intimate relationship and connection between cultural diversity and
biodiversity and more collaboration between organizations committed to promoting and conserving
either cultural diversity or biodiversity (Fourmile, 1996). The United Nations Educational, Scientific
and Cultural Organization (UNESCO) and the International Union for the Conservation of Nature
(IUCN) have made similar policy initiatives. There also has been the emergence of “biocultural
community protocols” developed by NGOs such as Natural Justice and the Compass Network, and
national policy initiatives such as the Indigenous People’s Rights Act of the Philippines (Section 35) that
acknowledge the interrelationship between biodiversity and cultural diversity (Maffi, 2010).
By the same token, several relatively recent legal cases also suggest that some supranational adjudicatory
bodies have been willing to embrace a more inclusive approach to Indigenous rights. The Inter-
American Court on Human Rights in the case
Community Mayagna (Sumo) Awas Tingni v Nicaragua
(2001) ruled against the government-approved logging operations that violated the Mayagna Indian
Community’s land rights. The Court acknowledged the culturally and environmentally destructive
nature of commercial logging and upheld the customary rights of the Indigenous community to their
ancestral lands and traditional way of life such as hunting. It held that “for Indigenous communities,
relations to the land are not merely a matter of possession and production but a material and spiritual
element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future
generations” (
Community Mayagna (Sumo) Awas Tingni v Nicaragua
, 2001). The Court also pointed
out in
Yakye Axa v. Paraguay
(2005)
that “it is necessary to take into account that the land is closely
linked to their oral expressions and traditions, their customs and languages, their arts and rituals, their
knowledge and practices in connection with nature, culinary art, customary law, dress, philosophy, and
values” (
Yakye Axa v. Paraguay,
2005, para. 154).
Similarly, the Inter-American Commission on Human Rights in another well-publicized case,
Comunidad Yanomami
(1985), held that the construction of a highway by Brazil through the ancestral
lands of the Yanomami had threatened the survival of the Indigenous community and violated their right
to life, liberty and personal security. In particular, the Commission considered “all the negative
consequences for their culture, traditions and customs resulting from displacing the Indians from their
ancestral lands” (
Comunidad Yanomami
, 1985). That is, the Commission acknowledged the
detrimental effects of losing their lands on Yanomami culture.
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The Human Rights Committee has also acknowledged the importance of land to the culture of
Indigenous peoples (Anaya, 1996). In the case of
Lubicon Lake Band v. Canada
(1990), the Committee
found that the devastating environmental impact, which resulted from oil and gas extraction on
Indigenous lands, constituted a violation of Indigenous right to culture under Article 27 of ICCPR. Even
the dissenting opinion by Mr. Nisuke Ando conceded that “it is not impossible that a certain culture is
closely linked to a particular way of life and that industrial exploration of natural resources may affect the
Band's traditional way of life, including hunting and fishing” (
Lubicon Lake Band v. Canada,
1990,
Appendix I).
These cases, in conjunction with the emergence of norm-setting international documents, signify a
developing international commitment to the rights of Indigenous peoples to both their natural and
cultural resources. They indicate an increasing respect for Indigenous communities that is long overdue.
One way to further this movement in Indigenous rights is to develop a more holistic approach to
protecting natural and cultural resources of Indigenous peoples. Here this article advocates a new
concept: “biocultural rights.”
Biocultural Rights
As indicated above, international law is moving towards a broader and more holistic approach in regards
to Indigenous rights. However, it seriously lacks a discussion of the exact content of this approach
(Gillespie, 2000). As a response, the concept of biocultural rights attempts to address the content of
such a holistic approach. The current approach to protecting Indigenous resources treats the right to
natural resources and the right to cultural resources separately and neglects the important
interconnectedness between the two. In contrast, here we define biocultural rights (see Figure 1) as a set
of substantive Indigenous resource rights that simultaneously protect both Indigenous natural and
cultural resources, realizing that they are inextricably linked and interconnected.
The concept of biocultural rights emphasizes the interdependent and interlinked nature of Indigenous
resources; that is, the existence of Indigenous cultural resources is dependent on Indigenous natural
resources and vice versa. As a legal concept, biocultural rights would integrate the current fragmented
and separate systems of substantive Indigenous rights to natural and cultural resources. There has been
ample literature calling for caution to proceed with the creation of new rights (Heald & Sherry, 2000).
However, biocultural rights are not additional new rights for Indigenous groups; instead, they are rights
that unify the existing resource rights of Indigenous peoples.
In terms of interpretation, the concept of biocultural rights should be broad enough to allow
interpretation variation. A homogenizing model imposed on all nation states with widely different
biological, cultural, political and economic contexts can only lead to resistance. The interpretation ought
to take greater consideration of Indigenous peoples and effectively engage Indigenous communities.
Certainly a pro-Indigenous perspective is necessary considering the struggles Indigenous peoples are
facing (Gray, 2009).
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Figure 1
. Conceptualization of biocultural rights.
The ultimate philosophical foundation for the concept of biocultural rights lies in its “holistic” feature.
This holistic feature is embodied in three aspects. First, the concept combines nature with culture.
Biodiversity and cultural diversity are interdependent and inextricably linked. Second, the concept
connects the past, the present and the future. It is a concept that takes into consideration of the past, the
present and the future in the sense that it is premised on the distinctive histories and wrongs that
Indigenous groups have experienced, the examination of the present system, and the very need to help
and empower these groups to conserve their distinct biocultural diversity for future generations. Third,
this concept considers the “special” element of Indigenous communities and the “universal” interest.
The concept of biocultural rights assumes that Indigenous peoples ought to have the right to maintain
their distinct biocultural heritage, which is essential to the maintenance of biodiversity and cultural
diversity worldwide. It is the concern to conserve, respect, and protect special Indigenous elements
(both biological and cultural) that are indispensable to the diversity of our universe that is behind
biocultural rights. In this sense, it is both special and universal.
The idea of biocultural rights is more than a legal notion. It is a new paradigm. Lack of a common
Indigenous agenda has been listed as one of the key obstacles to the successful protection of Indigenous
rights (Preston, Vinding, & Garcia-Alix, 2007). Therefore, this concept could provide a fresh overall
guiding principle to further solidify and strengthen the Indigenous rights movement. At the UN level,
the norm of biocultural rights, if accepted and diffused, could help legitimize the holistic protection of
Indigenous resources as a shared commitment among its operational agencies, with the ultimate goal of
being codified in a legally binding international document. When it comes to national policy-making and
academic discourse on Indigenous issues, this concept could offer a new perspective on how to approach
the protection of Indigenous resources holistically.
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The concept of biocultural rights justly reflects a broader intellectual and policy trend to holistically
address the protection of Indigenous natural and cultural resources and to realize “freedom and equality
through rights accorded to human individuals or collectivities” (Kingsbury, 2001, pp. 239-240). This
right is much needed and is justified by several reasons outlined below.
First, practically speaking, many Indigenous communities throughout the world have been forcibly
removed from their lands for a wide variety of ill-conceived reasons, including in the aftermath of
tourism expansion (Oei A & Shepherd, 2010). The not-so-rare instances of ethnocide further suggest
that Indigenous peoples are struggling everyday to maintain their very existence. The Zapatista in
Mexico and the Yanomami in Brazil are indicative of the horrifying effects of ethnocide (Maybury-Lewis,
2002). Raphael Lemkin first coined the term “ethnocide” as an alternative to genocide. He referred to it
as the physical, biological, and cultural dimensions of genocide (Jacobs, 2002). Therefore, to combat
ethnocide that encompasses physical, biological, and cultural elements, we will have to use an approach
that addresses all these elements simultaneously. The concept of biocultural rights justly provides such
an approach.
Second, as mentioned above, international governing bodies and non-governmental organizations as
well as national governments have started to integrate biodiversity and cultural diversity debates. The
various international documents and the growing body of legal practice are beginning to establish some
common understandings on the necessary convergence of both debates. The concept of biocultural
rights is hence crucial in order to take advantage of this convergence to ensure policy coherence.
Third, it is important to note that the legal convergence and integration of debates on the protection of
biodiversity and cultural diversity have been at least partially driven and strengthened by the existence
and continued development of a relatively new field (since the early 1990s) of academic inquiry,
research, and action that centers on the notion of biocultural diversity. As defined by Maffi (2010), a
leader in this burgeoning field, “biocultural diversity comprises the diversity of life in all of its
manifestations—biological, cultural, and linguistic—which are interrelated (and likely co-evolved)
within a complex socio-ecological adaptive system” (p. 5). Importantly, the inextricable link that exists
between biological (which in this essay is largely interchangeable with natural), cultural, and linguistic
diversity is recognized not only by studying global, regional, and national level correlations but also via
causal relationships between cultures and biodiversity on a local level (Maffi, 2010). In short, this lends
further credence to the push to more holistically address the protection of Indigenous natural and
cultural resources via the concept of biocultural rights.
And, fourth, the absence of a single unifying concept in the existing international legal framework has
created enormous challenges for both Indigenous peoples and states (Kingsbury, 2001). The concept of
biocultural rights will be of fundamental importance in addressing Indigenous issues that commonly
intersect with complicated histories, cultures, and politics. Biocultural rights will provide a linkage
between the relevant mechanisms on protecting Indigenous resources that have been fragmented in the
human rights, intellectual property, and environmental legal frameworks (Bavikatte & Robinson, 2011).
Then, what would biocultural rights mean for the Maijuna? To bring us back to our opening discussion
concerning the Maijuna, biocultural rights could be used and harnessed in a variety of ways. First, if
codified as a legal tool, biocultural rights would provide them with a much stronger and more holistic
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legal framework to fight against the construction of the proposed road and development corridor that is
threatening their ancestral lands, biological resources, and cultural traditions. Instead of having to fight
for their natural and cultural resources through disjunct and separate legal mechanisms, which would be
problematic and challenging, biocultural rights would unify their legal challenge under one framework.
Second, from a policy perspective, in order to better and more holistically protect the rights and
resources of the Maijuna, biocultural rights could provide a guiding principle or framework for the
Peruvian Government to follow as they design a policy regarding the Maijuna. Third, from the
perspective of the Indigenous rights movement, biocultural rights could become the goal for non-
governmental organizations (NGOs) and activists working with the Maijuna, as it would help to focus
and unite their efforts. And, fourth, biocultural rights would provide a new paradigm for academic
discourse and research on the Maijuna. In short, biocultural rights would help to recognize and push
what the Maijuna have known and stated all along: Their long-term health, vitality, and survival as a
people are not only dependent on the recognition of their rights to cultural resources but also their rights
to biological resources as well. That is, without a stable, intact, and protected ecosystem and homeland,
their survival as a people and the survival of their language, cultural traditions, and traditional
subsistence strategies would be in danger. In the end, biological and cultural diversity is interconnected
and interdependent, which should not only be legally recognized but also operationalized on the ground
as well.
Conclusion
Biocultural rights are not only justifiable, but also necessary. It is justifiable as they can help to begin to
right past injustices that have been carried out against Indigenous peoples, which have served to deny
them of their rights to land, territory, means of livelihood, language, cultural identity, and ways of life,
among others. However, the appeal is also to the future. Indigenous peoples have special characteristics
and their very existence adds tremendously to the biocultural diversity of our world (Guruswamy,
Roberts, & Drywater, 1999). To have a holistic framework that helps protect their rights, we will have to
pay close attention to the protection of their natural and cultural resources, both of which are
inextricably linked to each other and both of which are essential to the survival of Indigenous peoples.
That is, biocultural rights are to help right past wrongs that have been perpetuated on Indigenous
peoples and to protect their communities for future generations.
There are multiple dimensions of policy implications with biocultural rights. For the UN and its
operational agencies, it is time to use a new paradigm of biocultural rights to integrate the existing
programs on Indigenous rights and strive towards a more holistic legal document that codifies this claim.
The NGOs and activists working on Indigenous rights may utilize biocultural rights as a shared
commitment to harmonize their efforts to better protect Indigenous communities. As for national
policy-makers, biocultural rights could guide them in designing a more inclusive policy with regard to
Indigenous peoples.
To have a distinct framework that is dedicated to the protection of Indigenous peoples has been one of
the aspirations of the international Indigenous movement (Kingsbury, 2001). With the advent of an
umbrella right—biocultural rights—a new and exciting energy could move us forward to a better and
more just future for Indigenous peoples and for humankind. As the UN (2007) Declaration justly states,
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“all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the
common heritage of humankind” (Preamble).
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