1The international negotiations on biological diversity underwent a number of shifts. Several authors have pointed out that, although they were included in the preparatory work for the Convention on Biological Diversity (CBD), “the diverse expressions of the relationship between humans and nature,” were removed from the final text. Biological diversity is now defined in Article 2 of the CBD as the “variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part: this includes diversity within species, between species and of ecosystems.” In the discussions on Article 8j of the Convention, which is devoted to traditional knowledge, this biological approach was narrowed to focus on genetic resources, a central pillar of the Nagoya Protocol. Based on the objective of benefit-sharing, the management of cultural diversity appears to us to constitute a modality for the management of biological diversity. We seek to illustrate this through the example of the transposition of the term “indigenous people” into the French Law on Biodiversity of 2016 (see Focus 3).1 The use of “indigenous” as a category in international law helps to adapt legal systems to reduce legal insecurity.2 Nevertheless, in the field of biological diversity, securing the rights of indigenous peoples is not the priority: the objective is instead to frame the insecurity that the enunciation of these rights creates for States.

2Although the law carries social values, and in this respect, may support and protect the recognition of the rights of indigenous peoples, it also constitutes a set of techniques, methods and institutions designed to serve the interests of Nation States (and this is the dimension which comes to the fore in the process of establishing standards on biological diversity, through the CBD and its additional protocols such as the Nagoya Protocol).

3We propose to look closely at the wording of this law, analysing how it expresses its content in order to consider why it does so. This is an intentionally teleological reading of the law, closely concerned with the purposes that guide it. To address this question, we adopt an analysis through law that combines anthropology, semiotics, grammatical exegesis and psychological interpretation. Through the social values it conveys, the law produced or claimed as a normative whole is taken as a testimony or an expression of a culture, its evolution and even its hybridisation. Our aim is to examine the way in which social and cultural values and practices are inscribed in the normative structures and in the international institutional terminology: the way in which principles, law and fundamental rights are enshrined in legal texts (and the combinations and compromises this entails). These are all legal and institutional ingenuities by different actors, which call into question the term ‘indigenous’ and its evolution in the sphere of law(s). A study of the negotiations leading to the Convention on Biological Diversity and subsequent texts demonstrates the extent to which “indigenous” has become a category of strategic importance (I). In terms of its impact on the principles and rights enshrined in national and international legal frameworks, the way in which we talk about indigenous matters has much to tell us about our understanding of the biological diversity which governments – and particularly the French government, in this case – are keen to protect (II).

“Indigenous people,” a strategic categorisation

Indigenous peoples: “cultural groups”

4Now a global phenomenon, the demands of indigenous peoples to have their rights recognised was taken up within the wider United Nation system in the 1980s. The development of indigenous-specific standards was intended to fill a gap in the treaties regarding the protection of collective entities whose members are discriminated against.3 The Special Rapporteur of the UN Commission on Human Rights did attempt to formulate a list of criteria to qualify indigenousness, without giving a definition, as the “natives” themselves were opposed to it: historical precedence in a given territory, experience of conquest or colonisation, non-dominant status and a claim to identity. Set in a broader context of colonial compensation and reconciliation, invoking human rights with regard to indigenous issues has firmly established the connection between recognition of these rights and reparations (Martinez Cobo, 1986-1987). While “indigenous peoples” are thus supposed to be identifiable by a number of shared characteristics – territory, language, history or culture – and a desire to preserve their collective identity (self-identification), the term ‘indigenous’ has come to be associated with issues of dominance and economic marginalisation rather than with any connection to the land. In this respect, cultural rights have become primarily a means of ensuring that members of indigenous groups do not suffer discrimination in relation to majority groups.

5In parallel, the term “indigenous” has come to be associated primarily with certain cultural practices and lifestyles (hunting, trapping, itinerant agriculture, transhumance), considered to be representative of groups living on the margins of dominant societies (Schulte-Tenckhoff, 2016). Traditional knowledge and relationships to nature are thus regarded as elements of identity, frozen in time and determining the lived experiences, practices and future perspectives of individuals. This orientation has been boosted by the fact that governments are well aware of the ambiguity of the notion of “indigenous people” and are wary of the emergence of new forms of sovereignty to rival their own (Lennox & Short, 2016). Since present-day indigenous groups are descendants of peoples with whom the colonial powers came into contact during the phase of conquest, governments have tended to overlook historic rights in favour of identity-based rights associated with ideas of protecting natural heritage. The lengthy debates over terminology, which were a major feature of the negotiations leading to the Convention on Biological Diversity, are testament to this attitude (Hermitte, 1992; Hermitte et al., 2006).

6Certainly, focusing on the rights of indigenous peoples helps to emphasise the forms of protection which should be available in situations where affiliation with a specific cultural group is a source of injustice and inequality. However, by ascribing these rights to the individual members of a group (collective rights) – and not to an entity composed of individuals (rights of the collective) – there is a risk that indigenous people’s rights may prioritise the affirmation of individual rights over the recognition of collective rights. This configuration consigns the rights of indigenous peoples to minority law, where only the rights of those in the minority are protected, while the rights of the minority itself continue to be neglected (Koubi & Schulte-Tenckhoff, 2000).

7Framing the recognition of collective rights within the liberal paradigm of rights is conducive to a greater emphasis on the individual, social and cultural rights arising from specific interests associated with group affiliation and identity (Gignac, 1997). The politics of recognition deal not with communities, but instead with individuals, their rights and autonomy. Collective rights are thus legitimised from the individual perspective. Group identity is treated as an individual attribute, and championed as such in the international texts. The handling of cultural diversity, which is a matter of respect for fundamental rights and freedoms, is reduced to a matter of individual specificity.

8As such, the rights extended to indigenous peoples do not promote the rights of communities in and of themselves, but rather the rights of individual citizens belonging to “cultural groups,” (Kymlicka, 1989) in which individuals are conscious of their identity as grounds for laying claim to specific rights.

The rights of indigenous peoples: individual rights to be claimed

9Since there is no recognition of “cultural groups” as being defined by the regulations which govern their shared existence within a specific territory, the rights afforded to them are part of a procedural approach. The claim to a right to its own institutions in accordance with the group’s traditions is transformed into requests to the State for resources or facilities to practice or keep traditions alive, such as education in indigenous languages or the protection of designated territories. This understanding of indigenous rights, which now informs many international policies and agendas, turns social groups into pressure groups, while also reducing expressions of pluralism into a claims procedure – which must be formulated in the language of individual rights. Social groups must adopt this normative language and adhere to the values of legal liberalism in order to gain recognition. It is therefore the majority group that unilaterally defines the terms on which otherness is to be discussed (Reitz & Breton, 1994). From the outset, this procedure excludes all approaches informed by alternative visions of democracy, rooted in different definitions of society. Moreover, to find one’s place in this process of claiming rights, one must position oneself as a victim in order to be heard and recognised. Identities and cultures are constantly evolving, but the legitimacy of claims, in this system, is determined by their adhesion to an identity frozen in time. In this context, groups seeking reparations for injustices rooted in the past, particularly the colonial era, may be tempted to fix their identity primarily in that past in order to legitimise their grievances. Since the mechanism of recognition is partly made up of social, cultural, economic and political processes, social norms, languages and manners are tools for those seeking recognition (Young, 1990). The law is one such medium. It is the bearer of social value – supporting and protecting such values – but it is also a strategic tool.4 Reaffirming the primacy of human rights and their liberal interpretation,5 and in doing so excluding claims of a collective nature from the recognition of indigenous peoples, the categorisation of traditional populations appears to be a powerful technique to conceptualise identity, difference and otherness. Talking about others, defining what makes them other, is a manner of neutralising and limiting their powers,6 allocating rights according to criteria determined by the majority. The French notion of “communauté d’habitants” provides an excellent example of this process in action.

“Communauté d’habitants” and biological diversity

Deciding who is indigenous…

10In French law, a communauté d’habitants is defined as a community “which traditionally derives its means of subsistence from the natural world, and whose way of life has implications for conservation and the sustainable utilisation of biodiversity.”7 This represents the French transposition of the notion of “indigenous and local communities” found in the Convention on Biological Diversity and the Nagoya Protocol (see Focus 3). Why, then, did the French government decide upon the term communauté d’habitants (which translates literally as ‘community of inhabitants’) rather than simply translating “indigenous and local communities”? In terms of the French Constitution, the problem lies in the word “people” and not in the term “indigenous.”

11In a ruling dated 9 May 1991,8 the Conseil Constitutionnel declared the reference to the “Corsican people” invalid, but did not deny the “cultural identity” of Corsica, which justifies the fact that the administrative sub-division of Corsica should have “more extensive powers than those generally entrusted to regions” (pt. 33). According to the interpretation grid proposed by the Rapporteur to the United Nations Sub-Commission on Human Rights, the indigenous populations of France are to be found in the overseas territories, in South America (French Guiana), Oceania (New Caledonia, French Polynesia and Wallis & Futuna) and the Indian Ocean (Mayotte) (Rouland et al., 1996). Article 72-3 of the Constitution, which is at pains to name each of the overseas départements, regions and collectivities in order to solemnly affirm their attachment to the Republic, recognises “within the French people, the overseas populations”. These territories enjoy a specific status on account of their “particular characteristics and constraints” (General Code of Territorial Collectivities). The legal trend therefore tends to be to recognise the existence of indigenous peoples on French territory.9

12As such, in New Caledonia and French Polynesia, the French Environment Code does not apply, in order to “take account of the specific interests of each [overseas administrative division] within the Republic.” (Art. 74 of the Constitution)

13These territories therefore have their own, local environmental laws. However, Articles L 614-4 and L 624-5 of the Environment Code state that the notion of communauté d’habitants applies in these territories, even though they have already established their own legal provisions in this area, in accordance with their status.10 Moreover, according to the preparatory work for the law, communautés d’habitants are identified with reference to “certain objective specificities connected to lifestyles, practices favourable to biodiversity and traditional knowledge.”11 This despite the fact that, according to the criteria of the Cobo Report, the identification of indigenous people is not the prerogative of national governments, but is instead a matter for indigenous people themselves.12

14It is therefore as if, under the 2016 Law, the French authorities intended to regain control over the identification of “natives”, even in defiance of the objective criterion of territoriality that constitutes the basis used until now. France’s parliament and government also appear to consider that the definition of communautés d’habitants is a matter of public liberties, which fall under the sole competence of the State (Cans & Cizel, 2017). Public liberty can be defined as the capacities ascribed to individuals, recognised, structured and protected by the State (Morange, 2007). The 2016 law thus entrusts legal persons governed by public law with the responsibility for identifying communautés d’habitants (Art. L 412-11 of the Environment Code).

… to define what constitutes the “commons”

15The notion of communauté d’habitants takes its place in the paradigm of “the commons.” This is a concept derived from feudal law, whereby communities are endowed with certain rights, known as communal rights, guaranteed by charters, agreements and established uses (Kuchenbuch et al., 2003). Prior to the 2016 law, the notion was already present in the Environment Code, where it had been introduced with reference to collective use rights for hunting, fishing and any activity necessary for the subsistence of the populations living in the Amazonian Park of French Guiana (Art. L.331-15-3 of the Environment Code).

16With the 2016 Law on Biodiversity, the notion of communauté d’habitants continues to provide a framework for access to traditional knowledge associated with genetic resources, objects of the “common heritage of the Nation” (Art. L.412-3 of the Environment Code). In accordance with international law on biological diversity,13 “biological resources” are considered as “natural resources” in much the same way that oil or gas are. They are subject to a principle of permanent sovereignty and not to a principle of free access.

17However, we learn from the preparatory work for the law that the French government and parliament deduced a real right of ownership for the State from this principle of sovereignty,14 even though neither the notion of common heritage of the Nation, nor the principle of sovereignty establish a right of public ownership over the goods concerned (Cornu et al., 2017). Traditional knowledge is thus associated with resources of which the State considers itself to be the owner. However, the system regulating access to genetic resources and their utilisation is governed by environmental law, a domain in which French Polynesia and New Caledonia have jurisdiction due to the complete decentralisation of environmental powers in these administrative subdivisions.15 However, by making the communauté d’habitants a directly applicable provision, the State is placing indigenous populations and their traditional knowledge under its control. This allows the State to regulate the rights of these people as holders of knowledge associated with resources which belong to the nation. By dissociating these legal frameworks, the State is free to assert its own vision of sovereignty over biodiversity, which it insists “ […] is also an economic asset for France. […] Numerous studies have demonstrated the importance of biodiversity as an extremely important form of economic capital. Furthermore, biodiversity is a source of innovation […] and has significant potential value in this respect.”16

Addressing otherness in law

18The system of access to genetic resources and the fair and equitable sharing of the benefits derived from their use, as set out in the Nagoya Protocol and transposed into French law in 2016, address the rights of indigenous peoples in terms of development law, rather than human rights, while claiming the paradigm of “the commons.” The laws on biological diversity, including Article 8j of the Convention, and human rights, as applied to the indigenous question, do not have the same objectives. While the latter are concerned with recognition, visibility and the institutional presence of indigenous peoples, the Convention on Biological Diversity is part of a movement of rehabilitation of their traditional knowledge and practices, and of some elements of recognition of collective management in the interests of its biodiversity management objective.

19Of course, the involvement of indigenous peoples in international negotiations on biological diversity tends to enshrine their claims in the texts, and to have cultural diversity recognised as a means of combatting the climate crisis and the extinction of biodiversity. However, international meetings and summits dedicated to environmental protection – although they mention the contribution of the knowledge and practices of indigenous peoples to the protection of “ecological heritage,” and while they provide a framework to regulate access to their knowledge – operate within an institutional and legislative framework which, both in terms of its instruments (treaties, laws, contracts) and in its understanding of the practices, knowledge and values of these peoples, is far removed from their way of thinking. Existing laws on biological diversity reflect the difficulty of the system in combining the cultural ontologies of indigenous peoples with the Western tradition of rights, even fundamental rights, in order to formulate rights to the environment and environmental law. It reveals a system whose arrangements reinforce the idea that the institutional language and practices used to talk about indigenous peoples are a way of circumscribing their knowledge, their relationship to the world and the manner in which they inhabit it. In the process, current laws on biological diversity illustrate the extent to which Nature is a social construct, based on a set of practices and values linked to conceptions that can form a community – cultural, local, national or international (Dardot et Laval, 2014).

20The restrictive delimitation of relations between humans and nature, organised by both human rights and international biodiversity law, is testament to the absence of otherness in law.17

21We might imagine that, informed by a desire to rehabilitate traditional knowledge and practices, even for biodiversity management purposes, laws on biological diversity would be based upon a profound understanding of the social and cultural phenomena as they occur in these societies. All the more so since the preparatory work which led to Article 8j of the Convention on Biological Diversity was supposedly driven by “the discovery by the West of an indigenous vision of the world.” Hermitte et al., 2006: 384). And yet, the capacity to allow for a degree of otherness depends upon our ability to recognise others (humans, systems, sources of rights etc.) and their existence on their own terms.

22Existing biological diversity laws stem from a manner of thinking, a model of society and a vision of the world entirely derived from Western culture – a socio-cultural model which, as has been amply demonstrated, has a tendency to supplant traditional cultures wherever it is introduced. In these circumstances, where the emphasis is on integrating the other into Western modes of thought, rather than recognising the existence of alternative ways of thinking, the approach to the “others” could only aim to search for the “same”.

23In our opinion, it is only by getting to grips with the existing state of the world – seeking to understand different social and societal realities and their contradictions, taking an interest in other ways of regulating life in society (Nicolau et al., 2007) examining the legal phenomenon that is found in all societies (Alliot, 1983), in short, by agreeing to a making of the law based on legal pluralism – that we can hope to have a real debate on environmental law in its legal issues. These issues, understood as “those which society considers vital for individual and collective reproduction” (Le Roy, 1999: 159), concern human society as a whole in its relationship with Nature, and between its various members. In this respect, taking on such legal issues, both in international law and when transposed into national law, leads to the construction of a new vision of law whose norms are genuinely conducive to the conservation of a biodiversity shared asset in common. The Nagoya Protocol does not fit the bill, nor does Article 8j of the Convention on Biological Diversity. By making cultural diversity and traditional knowledge preservation entirely dependent upon utilitarian considerations, present laws on biological diversity amount to a denial of the social dimensions of biodiversity.

24They also challenge any possibility for the law to seize biodiversity as a Common

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