1In spite of the legal progress made in recent decades, indigenous peoples are still falling victim to various forms of dispossession: of land, of fauna and flora, of their knowledge. How can we resolve these injustices? It is possible to use existing legal regulations and institutions and, when they prove to be insufficient, to improve them. In order to do so, however, we must first convince lawmakers of the need to collectively (re)define their content, on a case-by-case basis. Indeed, if we really and sincerely hope to make reparation for the injustices endured by indigenous peoples, then the protection of their rights – including the definition of the nature and content of these rights – requires a profound re-examination of the paradigms generally encountered in the fields of law and indigenous rights. In this chapter we argue that the “revolution” required in this field is first and foremost a matter of “decolonising” the laws applicable to indigenous peoples, [1] a subject where past developments in national legislation, particularly in France, may provide a source of inspiration [2]. Ultimately, what we propose here is an innovative approach to legal praxis that we call “round law” [3].

Indigenous peoples and the law: the need for decolonisation

2Indigenous peoples’ right to self-determination endows them with certain prerogatives, including the obligation for third parties to obtain their prior, informed consent before making use of their heritage, and also to ensure that the benefits of such usage are shared fairly and equitably.

3This necessarily specific system nevertheless assumes that the indigenous character of the people in question is already acknowledged, at the very least by their peers, and ideally by the national government within whose territorial boundaries they live. It also implies the need for an explicit definition of what constitutes their heritage. Neither of these conditions is simple to manage, since neither of these qualities is unquestionable.

4First of all, the population in question must be considered to constitute an “indigenous people.” There is no undisputed definition of those terms, but their use within the international community appears to be predicated upon a number of cumulative criteria: historic continuity with precolonial populations, a non-dominant situation, a distinct social, economic or political system, a distinct language, a specific culture and set of beliefs and a desire to maintain these specificities, self-identification as an indigenous people, and the fact of being a minority.

5The constituent elements of their heritage must then be regarded as “indigenous heritage.” Here again, there is no clear and definitive definition. We can, however, draw upon working definitions of the kind put forward by Special Rapporteur Erica-Irene Daes in 1995, in her revised version of the Principles and Directives for the Protection of the Heritage of Indigenous People (see Box 1), partially reproduced in the UN Declaration on the Rights of Indigenous Peoples (Articles 24 and 31).

6There are several possible approaches to transposing the necessary conditions for protecting the heritage of indigenous peoples, and two main types of tools: those associated with juridicity,1 including codes of conduct and international protocols, and those derived from positive law (Karpe, 2008).2 In the latter scenario, common law may be invoked – particularly contract law, criminal law and intellectual property law – but this alone is not sufficient to offer comprehensive, targeted protection.

7Above and beyond economic and political considerations, there is a fundamental “cultural conflict” at play in the way we understand the living world in general, and its social organisation in particular. This cultural conflict between indigenous peoples and modern states has led, among other things, to claims of biopiracy, where the challenge of distinguishing between premeditation, negligence, incompetence and ignorance makes it very difficult to establish the motivations of those accused (see Chap. 5). This cultural dispute might be defined as a moment of “discord, in the strongest sense of the word, between individuals and cultures […] confronted with their otherness; that moment, in the necessarily long period of acculturation, where cultures are not capable of either exchange or dialogue because they have no shared idiom. They come into conflict because they are entangled in their respective understandings of Time, Knowledge, Power, the Body and the Law. Their divergent relationships to Time, Knowledge, Power, the Body and the Law are so different that these societies inevitably feel the need to square up to one another: legitimacy against legitimacy, ancestral rules versus modern laws. A clash of Ages.” (Lefeuvre-Déotte, 1997).

8As a result of this cultural conflict, international law concerning indigenous peoples is beset by certain intrinsic weaknesses. First and foremost, it is not representative of a genuine legal pluralism. It remains founded and structured according to a purely Western model. The current status of “indigenous” people (at home and internationally) is still entangled in categories and concepts which are restrictive, dogmatic and closed. It is expressed in the form of specific provisions. In this respect it remains entirely under the control, and defined by the interests, of those who reject and fear the claims of indigenous peoples (see Chap. 7).

9“The ‘indigenous question’ has become part of a broader framework designed to protect peoples considered in terms of inferiority, wherein the superior authorities have an obligation to provide support and assistance in the manner of a guardian or protector. But instead of a legal guardianship, which would end when the subject reaches adulthood, this protection has become a form of permanent legal assistance for incapacitated adults. The final document produced by the high-level meeting of the UN General Assembly concerning the World Conference on Indigenous Peoples of 22 September 2014 did nothing to change this situation. It becomes evident from the very first lines that we have yet to fully escape the minority or guardianship syndrome.” (Le Roy, 2020a) In spite of various attempts at hybridisation, with varying degrees of success and the best of intentions, a legal system built on these lines tends to perpetuate a state of affairs characterised by the privation and/or violation of the rights of indigenous peoples (see Chap. 7).3 Indigenous law is thus in serious need of decolonisation (Karpe, 2008; Le Roy, 2020a; Boutinot & Karpe, 2020), which will only be possible and effective if it comes as part of a radical overhaul of legal thought.

The concept of “communautés d’habitants”, constraints and opportunities

10Informed by its republican tradition and the indivisibility of the nation, France has opted to transpose the Nagoya Protocol into its national legislation by replacing the term “indigenous and local communities” used in the Convention on Biological Diversity with the original coinage “communauté d’habitants.” (Focus 3). This has given rise to a new common law which builds upon that initially established for Amerindian and Bushinenge communities in French Guiana, informed by a clear commitment to avoiding any form of isolation, exclusion or discrimination in the territories in question.

The legal status of indigenous peoples in France

11The legal status of Amerindians in French Guiana has been defined by special legal arrangements for several decades now. This legal status long remained a tacit reality. It was to be inferred from the commentary on Articles R. 170-56, R. 170-58 and D. 34 of the Public Domain Code. These texts could be considered to demonstrate that the Amerindians of French Guiana continued to be governed by their own customs, since the articles in question clearly distinguish between tribes (or communities) and associations or companies (purely Western inventions), while also conferring certain proprietary, collective rights upon tribes. This recognition was nonetheless incomplete and discriminatory, since it endowed the community with legal personhood and usage rights under the terms of contemporary French law, and not in terms derived from indigenous law (Tiouka & Karpe, 1998).

12Reading the parliamentary debates on the use of the term ‘indigenous’ when transposing the Nagoya Protocol into French law, it becomes clear that there was a genuine desire to protect “local and indigenous communities” by reconciling in a manner which was “fair and measured”4 and “balanced, realistic, pragmatic and even simplifying”5 all of the rights, fundamental values and principles, opinions and interests in play. This was corroborated by the subsequent debates on the Law on Biodiversity in the Assemblée Nationale, specifically with regard to certain aspects of the legality of efforts to protect the heritage of indigenous peoples, and whether or not it was apposite to use the term indigenous.

13It seemed obvious and legitimate to use the term, since it is “[consistent with] Article 8, paragraph j) of the CBD, adopted at the Earth Summit in Rio de Janeiro in 1992 and subsequently ratified by France.”6 However, using this term posed a risk that the law would be struck out as unconstitutional, thus rendering the protective measures null and void. In order to avoid this risk and establish an effective legal protection for the heritage of indigenous peoples, the term communautés d’habitants (see Chaps. 7 and 11) was selected, an expression which embodies a fragile equilibrium between divergent preoccupations.7 We might well question the need for equilibrium in these matters; It is by no means certain that the term “indigenous” is unconstitutional (Karpe, 2008). Nonetheless, due to the absolutely singular nature of the objective pursued, there is clearly a desire for reconciliation which has informed this choice of terminology. In light of this singularity, and the sincerity with which the objective of reconciliation has been pursued, some have argued in favour of modifying the Constitution: “Ms. Chantal Berthelot has spoken from the heart, and what she says is correct, and moving. [This text] seeks to grant rights [to Amerindians]. I understand what you are saying, but I refuse to take the risk of contravening the Constitution, which would prevent them from accessing these benefits. You might, however, propose a modification to the Constitution at a later date, so that the inclusion of such terms in a law would no longer constitute an infringement on the overarching standard. I therefore oppose the adoption of this amendment.”8

14A solution was eventually found to facilitate and reinforce the participation of indigenous people in decision-making processes in French Guiana. Following a constructive exchange between member of parliament Chantal Berthelot and the government, a new law was finally adopted. Framework Law No. 2017-256 of 28 February 2017 concerning genuine equality in the Overseas Territories, and containing other provisions of a social and economic nature (EROM) modified the status of the Council for Consultation with the Amerindian and Bushinenge populations of French Guiana (CCPAB), now transformed into the Grand Customary Council of Amerindian and Bushinenge Populations (Article 78). This change of status enables the Council to oversee the creation of a public institution charged with organising the consultation of communautés d’habitants who hold traditional knowledge associated with genetic resources, negotiating and signing benefit-sharing agreements with users. The Council is also represented on the new institution’s board of directors, and plays a role in appointing its president. The Executive Order of 17 June 2008, which established the Council for Consultation with the Amerindian and Bushinenge Populations of French Guiana (CCPAB), also states that a legal person should organise consultations with indigenous people in order to gather, where relevant, their consent (see Chap. 12).

French biodiversity law

15Law No. 2016-1087 of 8 August 2016 on the reconquest of biodiversity, nature and landscapes (the Law on Biodiversity) not only reasserts, but also sets out the precise parameters of the legal protection afforded to the heritage of local communities in French Guiana. This includes access to and utilisation of genetic resources, as well as the utilisation of traditional knowledge associated with genetic resources.

16With regard to access to genetic resources, communautés d’habitants have certain proprietary rights if those resources are found within their territory. These rights differ depending on whether or not the access is for the “direct purpose of commercial development.” In terms of traditional knowledge associated with genetic resources and their utilisation, access is entirely subject to a system of authorisations, which can only be awarded by the “competent administrative authority” by means of a procedure designed to gather the prior, informed consent of the people in question. The consultation must be led by a public legal entity, which may be a public institution for environmental cooperation, a consultative council, or else the central government or one of its public institutions responsible for environmental matters.9 It must involve a limited number of successive, compulsory and precisely-defined stages (Box 3).

Progress and restrictions

17The different texts which make up these special legal arrangements for the protection of the heritage of communautés d’habitants in France are testament to a strong commitment to protecting both their rights and their heritage, not least in the novel and forceful use of very clear language in the text of the law, committing in no uncertain terms to the “fight against biopiracy,” (Article 21) “prior, informed consent” (Article 37) and “fair and equitable benefit-sharing” (Articles 21 and 37), as well as a substantial development of traditional knowledge as a category (Article 37).

18Nevertheless, these texts also place certain restrictions upon the protection of these rights (see Chap. 7). They include material restrictions: no protection is afforded to elements of heritage whose ownership cannot be proved, or those “whose properties are well known and have been used regularly over a long period of time outside the communautés d’habitants” (Article 412-5-II. e) and f) of the Environment Code). There are also temporal restrictions: this legal status is only applicable to collections of genetic resources and associated traditional knowledge constituted since the promulgation of the law. For collections which existed previously, it concerns only new instances of access or new utilisations, the latter being defined as “any research and development activity conducted for the direct purpose of commercial development, in a field of activity clearly distinct from that previously occupied by the same user with the same genetic resource and associated traditional knowledge.” Although they are recognised as the owners of genetic resources, communautés d’habitants are not the designated recipients of information and knowledge derived from them by the declaring parties. The benefits to be shared are also limited: the percentage of turnover used to calculate the financial contributions owed by users of genetic resources must not exceed 5%, irrespective of the number of genetic resources covered by the authorisation.

19In fact, the inaccuracies and doubts arising from the current status are more detrimental than the clear regulations, even if those regulations impose limitations on rights. As such, the authorisation procedure for accessing genetic resources only applies if the development objective in question is clearly commercial in nature. Worse still, commercial development must be the “direct” purpose of the activity. Similarly, although the use of the term consensus (Article L. 412-11 5 of the Environment Code) surely indicates a desire to respect the (presumed) modes of decision-making in place within communautés d’habitants, this term is too vague and open to interpretation, or even manipulation. The pernicious effects of this lack of precision are aggravated by uncertainties regarding the real nature of the power wielded by the administrative authorities involved: are they obliged to participate, do they hold a veto, does silence constitute tacit approval? A further blow to the protection of communautés d’habitants is the fact that judges appear ill-equipped to clarify and build upon the existing rules.

The concept of “round law”

20In its efforts to engage with issues of social and ecological justice, the dominant mode of legal thought is wrapped up with positive law in a system which allows it to legitimise and entrench the like-for-like reproduction of modern societies. In this model, with its systematic prioritisation of economic rationality, social and ecological issues are of marginal importance; they are considered only superficially, and undermined as a result.

21And yet, as far back as the late 19^th century Alfred Fouillée was mooting the potential of “social justice as an alternative to naturalistic representations of the organisation of human societies which establish a dichotomy between the individual and the State.” (Supiot, 2019) In this view, solidarity between individuals is a source of both rights and obligations, and depends upon the ability to live together. This moral normativity can be translated into legal provisions by means of iterative practices shared by users within a given milieu, practices which are adapted over time and in response to the specific circumstances they encounter, and as such are viewed as legitimate by the groups concerned.

22By this logic, we must also rethink, on a case-by-case basis, the stakes and objectives of a vision of justice that is at once social and ecological, the starting point for the creation of what we might call “round law,” in order to underline the importance of solidarity and harmony for all in this new, alternative vision of law. This might provide a platform for negotiating a new vision of common law (i.e. a law of the commons), as the basis for a genuine, living community (Karpe et al., 2015).

23The legal tradition is very much linear: we start from an objective and set out to attain a result, regardless of the order or nature of the steps required to get there. Norms and standards are accumulated and superposed, constituting an order which guarantees the security of relations between recognised legal entities. Institutionalisation, the dominant thinking goes, is a prior requirement for the identification of the stakeholders to be defended. The securitisation of their relations, meanwhile, is safeguarded by an established external authority, with little consideration for the specific dynamics inherent to the entities involved.

24And yet, while social and ecological justice is the stated objective of the special legal arrangements put in place to protect communautés d’habitants, defending and promoting a method and a set of values which are genuinely useful to these groups requires us to constantly re-examine what the law is, what it does, and how we define its social pertinence (Le Roy, 2014 ). In this sense, legal experts may prove themselves useful: through sheer “technical/practical” necessity, the “positive,” “humanist” and “inquisitive” nature of legal scholars becomes a fundamental “political and moral” requirement (Aubert & Karpe, 2019; Le Roy, 2020b). Departing from traditional legal logic, this approach is controversial even now, often accused of a disregard for legal tradition verging on the heretical (fig. 1).

Figure 1. In defence of “round law”

25“Round law” is an original vision of the law, a concept still under construction. Encompassing both legal security and juridicity (Le Roy, 2020b), it also encourages unorthodox modes of reflection, writing and presentation. This vision of the law represents a voluntary departure from the usual academic rules. It is largely a matter of “intimate conviction” (Ducruet, 2019) and resonance (Rosa, 2020). It is not necessarily a particular, pre-defined structural method which does not require further reflection. It is more like an objective, a status, a situation to be exploited, legitimately and legally, within a given time and space. Our vision of round law seeks to initiate a dynamic movement within the law, where the rules governing the utilisation of shared resources are defined by their availability, with respect to the diverse array of users who benefit from them.

26In fact, these three terms (round law, juridicity and dynamic law) are complementary rather than contradictory. There are, nonetheless, nuances to be borne in mind, primarily as a result of their respective backgrounds: land law for juridicity, biodiversity for dynamic law, and human rights, including indigenous rights, for ‘round’ law.

27Finally, in order to fully “decolonise” the status of “indigenous” people, it would perhaps be pertinent to encourage the adoption of “indigenous” as a category of common law, drawing upon the Convention on Biological Diversity and the Nagoya Protocol, which establish new rights for communities united by shared ways of life or interests within a given territory (local and indigenous communities). These developments in international law, translated into national legislation (even in jurisdictions which do not directly use the term “indigenous people,” like France), constitute important tools for protection and promotion.

28For the time being there is no need to prioritise one of these forms of protection over the other, preferring the approach inspired by an alternative vision of the law (“round law”) or that developed within the traditional legal framework. We in fact need to combine them in a strategically intelligent manner in order to remain sensitive to the context (with greater prudence and a more solid grounding). Under no circumstances should this proposal be imposed unilaterally. The goal is to safeguard the freedom of thought and action of legal practitioners and beneficiaries, including indigenous people themselves, and in doing so to affirm the legitimacy and pertinence of their proposals and social innovations. Such innovations could, for example, be developed and piloted by citizens themselves.

29The current legal structure in place to protect the heritage of indigenous peoples, particularly as embodied in the French Law on Biodiversity of 8 August 2016, cannot truly be considered compatible with “round law.” Nevertheless, it could represent a significant step towards the intellectual and political acceptance of this vision, and thus its adoption in the long term. Attempts to reconcile indigenous laws with the French Constitution have led to a broader recognition of the importance of living communities and the different forms of solidarity (both social and ecological) which characterise them. The challenge now is to foster the emergence of the conditions required to achieve genuine social and ecological justice, including a new approach to legal practice.

References

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