Determining Kauai's Ala Loa Trail

SUBHEAD: State lawmakers may identify the path of the ancient Ala Loa trail on Kauai as a public trail.

By Timothy Hurley 17 February 2017 for Star Advertiser -
(http://www.staradvertiser.com/2017/02/17/hawaii-news/bill-aims-to-settle-disputes-over-trail-on-kauai/)


Image above: Photo looking west along the Kalaloa Trail on the north shore of Kauai. This section of the overall Ala Loa Trail system is still in everyday use. From (http://islandbreath.blogspot.com/2015/11/kauais-ala-loa-trail.html).

[IB Publisher's Note: To follow and comment on this legislation see (http://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=HB&billnumber=120&year=2017)]

State lawmakers are weighing a bill that requires the state to identify the path of the ancient Ala Loa trail on Kauai and recognize it as a public trail.

The trail, which generally follows the coast around the island, apparently includes a section that crosses the property of Facebook CEO Mark Zuckerberg as well as other oceanfront property owners reluctant to open their land.

More than 100 people marched near Zuckerberg’s property Feb. 4 in what was billed as a peaceful demonstration to “Save the Ala Loa” and urge that it be opened to the public. Some were Native Hawaiians looking for coastal access for fishing and gathering purposes.

The bill, introduced by state Rep. Kaniela Ing, is expected to be approved on second reading today by the House Committee on Ocean, Marine Resources and Hawaiian Affairs and then move on to the House Committee on Water and Land.

The measure was approved Tuesday despite a request by state Department of Land and Natural Resources Chairwoman Suzanne Case that it be deferred.

In written testimony, Case said that while the department, through its Na Ala Hele trail and access program, has determined from registered maps that the trail is owned by the state, the problem is that the exact location still remains undetermined.

“To date the department has not been able to confirm the location of this historic trail — indeed evidence indicates it may have been located further mauka away from the coast near the main highway,” she said.

Nevertheless, officials remain committed to an ongoing dialogue with community members regarding specific trail locations, and the department is continuing to review “all available information” in an effort to determine the trail’s whereabouts, Case said.

But Jocelyn Doane, public policy director for the Office of Hawaiian Affairs, said more than enough information is available to pinpoint what she called a “critical cultural pathway.”

Doane said officials with OHA and the Native Hawaiian Legal Corp., along with community members in the Koolau district of North Kauai, have been working on the issue since 2011.

“Through this work and the great work of the community, OHA believes that the specific scope and location of the Ala Loa extending through the Koolau district has in fact been thoroughly documented,” Doane said.

The historic trail appears on maps from as early as 1833 through 1900 and is recognized in land commission award documents that date back to the Great Mahele, the land distribution of 1848.

What’s more, ancient coastal settlements in the Koolau district such as Moloaa, Papaa and Aliomanu were traditionally linked by the Ala Loa, she said, and accounts of the use of this historic trail have been documented in publications from 1829 to 1895.

Doane said she walked portions of the trail with community members only two weeks ago.

“There’s no question they know exactly where the Ala Loa is,” she said.

The state’s authority to claim ownership of ancient trails dates back to when Queen Lili‘uokalani and the legislature of the kingdom of Hawaii enacted the Highways Act of 1892, a law that still remains on the books.

Under the law, all roads, trails, bridges and other forms of public access that can be verified to have existed before 1892 continue to be owned in fee simple by the state.

The law applies even if the trail is not physically on the landscape, having, for example, been wiped out from ongoing land use activities or by natural events. But the burden of proof rests with the state, which must consider archaeological reports, historic maps, historic accounts, surveyor’s notes, deeds and other sources of information that might help determine state ownership.

In written testimony, Kauai County Councilman Mason Chock said identifying and recognizing the trail would be an important step in securing public-access, hunting and gathering rights for many Native Hawaiians.

It would also help end the escalating tension between Native Hawaiians, private landowners and residents in regard to its location, Chock said.

Some residents have complained about fences blocking access, security guards patrolling beaches and fishermen being threatened with arrest.

See also:
Ea O Ka Aina: Modest Disruption will unravel us 11/25/15
Ea O Ka Aina: No need for $7m from state 11/12/15
Ea O Ka Aina: Kauai's Ala Loa Trail 11/6/15
Ea O Ka Aina: The Toxic Truth 4/18/14
Ea O Ka Aina: The Ala Loa Trail 4/10/14
Ea O Ka Aina: Trails and Tribulations 2/26/13
Ea O Ka Aina: Sleeping with the Enemy 5/24/11
Ea O Ka Aina: Paradise Ranch Rationalization 2/16/11

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The Rights of Nature

SUBHEAD: Indigenous philosophies are reframing the law as it applies to the rights of the natural environment.

By Kiana Herold on 6 January 2017 for the Intercontinental Cry-
(https://intercontinentalcry.org/rights-nature-indigenous-philosophies-reframing-law/)


Image above: Cofan Indigenous leader Emergildo Criollo looks over an oil contaminated river hear his home in northern Ecuador. Photo by Caroline Bennett / Rainforest Action Network. From original article.

Indigenous battles to defend nature have taken to the streets, leading to powerful mobilizations like the gathering at Standing Rock. They have also taken to the courts, through the development of innovative legal ways of protecting nature.

In Ecuador, Bolivia and New Zealand, indigenous activism has helped spur the creation of a novel legal phenomenon—the idea that nature itself can have rights.

The 2008 constitution of Ecuador was the first national constitution to establish rights of nature. In this legal paradigm shift, nature changed from being held as property to a rights-bearing entity.

Rights are typically given to actors who can claim them—humans—but they have expanded especially in recent years to non-human entities such as corporations, animals and the natural environment.

The notion that nature has rights is a huge conceptual advance in protecting the Earth. Prior to this framework, an environmental lawsuit could only be filed if a personal human injury was proven in connection to the environment. This can be quite difficult. Under Ecuadorian law, people can now sue on the ecosystem’s behalf, without it being connected to a direct human injury.

The Kichwa notion of “Sumak Kawsay” or “buen vivir” in Spanish translates roughly to good living in English. It expresses the idea of harmonious, balanced living among people and nature.

The idea centers on living “well” rather than “better” and thus rejects the capitalist logic of increasing accumulation and material improvement. In that sense, this model provides an alternative to the model of development, by instead prioritizing living sustainably with Pachamama, the Andean goddess of mother earth.

Nature is conceived as part of the social fabric of life, rather than a resource to be exploited or as a tool of production.

The Preamble of the Ecuadorian Constitution reads:

“We women and men, the sovereign people of Ecuador recognizing our age-old roots, wrought by women and men from various peoples, Celebrating nature, the Pacha Mama (Mother Earth), of which we are a part and which is vital to our existence…. Hereby decide to build a new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumac kawsay.”

The traditional Quechua relation to the natural world is firmly rooted in the Constitution. The interchangeable use of nature and Pacha Mama testifies to the indigenous influence on the Constitution.

The concept and the praxis
 In the 1970s, Christopher Stone, an American environmental legal scholar, articulated the legal notion of the rights of nature in his widely read essay Should Trees Have Standing? Stone envisioned a new way of conceptualizing nature through law that broke with the existing paradigm of the commodification of nature, often established through law.

Property rights are a primary example of commodifying the natural world. When treated as property, nature incurs damages that often go unrecognized. Stone writes that an argument for “personifying” nature can best be considered from a welfare economics perspective.

Under capitalist economic logic, many externalities that negatively impact the environment are not registered when calculating the cost of an action. Transforming nature legally from mere property to a rights-holding entity would force byproduct environmental effects of production to factor into cost calculations. Under this framework, nature would be better protected.

Incorporating rights of nature into a national constitution is a powerful paradigm shift, but may seem hypocritical and idealistic given states’ continuing dependence on extractive industries. In Ecuador, 14.8 percent of the GDP comes from profits from natural resources as of 2014.

Moreover, under Ecuadorian law, the rights of nature are subject to principles of so-called national development. Article 408 of the constitution stipulates that all natural resources are the property of the state, and that the state can decide to exploit them if deemed to be of national importance, as long as it “consults” the affected communities.

However, there is no state obligation to abide to the result of the consultation to these communities– a gaping hole in full protection of these environments and the people living within them.

Nonetheless, Ecuador’s Constitution was a significant step in changing the legal paradigm of rights to one that is inclusive of nature.

Bolivia follows
 Bolivia followed in Ecuador’s footsteps. Evo Morales, the first indigenous head of state in Latin America, was elected in 2005 and called for a constitutional reform that ultimately established rights to nature in 2009.

Again, indigenous philosophies were instrumental in the formulation of Bolivia’s new Constitution. The constitution’s preamble states that Bolivia is founded anew “with the strength of our Pachamama,” placing the indigenous understanding of nature as central to the very creation of the revised political state. Like in Ecuador, the Bolivian Constitution allows anyone to legally defend environmental rights.

Bolivia’s government soon instituted the Law of Mother Earth in 2010, later re-coining it as the Framework Law of Mother Earth and Integral Development to Live Well.

The law lays out a number of rights for nature, such as the right to life and to exist, to pure water, clean air, to be free from toxic and radioactive pollution, a ban on genetic modification, and freedom from interference by mega-infrastructure and development projects that disturb the balance of ecosystems and local communities.

Part of the rationale behind the law is the hope of helping the environment through reducing causes of climate change, which is directly in Bolivia’s interests. Increasing temperatures in Bolivia pose problems to the nation’s farming sector and water supply.

Again, however, this legal concept does not match economic realities. The rights of nature are directly at odds with extractive industries that are intimately tied to Bolivia’s model of economic development. Despite legal frameworks defending the rights of nature, Bolivia’s profits from natural resources comprise 12.6 percent of the GDP as of 2014.

But there are alternatives to the Andean experience. Across the Pacific, New Zealand has also granted a legal status of personhood to specific rivers and forest, thus enabling the environment itself to have rights.

The New Zealand Take on Rights of Nature
Unlike Ecuador and Bolivia, New Zealand’s rights of nature are not embedded in its constitutional law, but rather protect specific natural entities. Native communities in New Zealand were instrumental in creating new legal frameworks that give legal personhood, and thus rights, to land and rivers.

New Zealand has bestowed legal personhood on the 821-square mile Te Urewara Park, and the Whanganui River, the nation’s third-largest river. This was part of the government’s reparation efforts for the historical injustice at the foundation of New Zealand’s state: colonial conquest of land from native peoples.

The Tuhoe tribe’s ancestral homeland is currently the Te Urewara Park. With the imposition of colonial governance, most of their land was taken from them without consultation, resulting in great spiritual and socio-economic losses. The land was designated a national park in 1954.

The Tuhoe tribe never signed the 1840 Treaty of Waitangi with the British Crown, which stripped the tribe of their sovereign right over their land. They have since contested the British assertion of sovereignty that undergirds the formation of the modern New Zealand state.

Their centuries-long struggle finally yielded results. As part of New Zealand’s reparation process towards Indigenous Peoples, the national government negotiated with the Tuhoe tribe regarding their historic land.

In 2012 the Tuhoe tribe accepted the Crown’s offer of financial reparations, a historical account and apology and co-governance of Te Urewera lands. The national government renounced ownership of the land, giving the land its own personhood.

Under this framework, the land is now a legal entity in itself, owned neither by the government nor the Tuhoe tribe. The land is no longer property. It is its own untamed natural presence in and of itself, with, as per native understanding, its own life force and identity.

The land is now co-governed by the Tuhoe people and the New Zealand government.

The 2014 Te Urewara Act declares the park “a place of spiritual value.” The Act acknowledges that it is the sacred home of the Tuhoe people, integral to their “culture, language, customs and identity,” while also being of intrinsic value to all New Zealanders.

In a similar process of granting legal personhood, the local Maori tribe, the Iwi, helped the Whanganui River earn legal personhood status in 2014 after winning a long-fought court case.

This was part of a centuries-long struggle that the Whanganui tribes undertook to protect the river. Since the signing of the Treaty of Waitangi, the river has been subject to gravel extraction, water diversion for hydro-electric plans, and river bed works to better navigability, under protest from local tribes.

The Maori fought to protect the river through a series of court cases beginning in 1938, defending their claim to the management of the river as its rightful guardian.

Throughout the court cases, negotiations were undergirded by the native saying “Ko au te awa, ko te awa ko au,” which translates to “I am the river and the river is me.” This reflects native philsophies of reciprocal and equal relations between people and nature.

New Zealand's attorney general Chris Finlayson was quoted in the New York Times as acknowledging the Maori perspective as formative in the granting of rights to these natural entities, saying “In their worldview, ‘I am the river and the river is me,’” he said. “Their geographic region is part and parcel of who they are.”

Expanding Legal Horizons?
 The legal concept of rights of nature signal the influence of Indigenous Peoples as political actors in state-making, fundamentally reimagining law and how the natural world is conceived.

These ideas present a revolutionary rupture in the conventional anthropocentric understanding of sovereignty, and a realignment of how the natural world is valued.

In fact, they could chart the path forward for a new understanding of mankind’s relation to the natural world, even if they operate within the legal structures that are not conducive to indigenous philosophies.

It is true that the rights of nature as they currently stand have deep limitations, particularly given the ongoing extraction of non-renewable natural resources in Ecuador and Bolivia.

Problems of corruption, environmental inequality and economic dependence on extractive industries are major challenges to the full realization of the rights of nature.

Yet small acts can lead to lasting change. This shift in the way we relate to and legally protect nature, however small and plagued by obstacles, could be an incremental step toward a more sustainable relation to the planet that could allow us to preserve the earth for future generations.

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Freedom of speech threatened

SUBHEAD: Italy urges Europe to begin censoring free speech on the internet. US to attack "Fake News".

By Tyler Durden on 30 December 2016 for Zero Hedge-
(http://www.zerohedge.com/news/2016-12-30/italy-urges-europe-begin-censoring-free-speech-internet)


Image above: 'Invasion of the Fake News" mashup from "Invasion of the Body Snatchers". The war on "Fake News" is all about censoring real news. From (http://truepundit.com/the-war-on-fake-news-is-all-about-censoring-real-news/).

First it was the US, then Germany blamed much of what is wrong in society on "fake news", and not, say, a series of terrible decisions made by politicians.

Now it is Italy's turn to call for an end to "fake news", which in itself would not be troubling, however, the way Giovanni Pitruzzella, head of the Italian competition body, demands the European Union "cracks down" on what it would dub "fake news" is nothing short of a total crackdown on all free speech, and would give local governments free reign to silence any outlet that did not comply with the establishment propaganda.

In an interview with the FT, Pitruzzella said the regulation of false information on the internet was best done by the state rather than by social media companies such as Facebook, an approach taken previously by Germany, which has demanded that Facebook end "hate speech" and has threatened to find the social network as much as €500K per "fake" post.

Pitruzzella, head of the Italian competition body since 2011, said "EU countries should set up independent bodies — co-ordinated by Brussels and modeled on the system of antitrust agencies — which could quickly label fake news, remove it from circulation and impose fines if necessary."

In other words, a series of unelected bureaucrats, unaccountable to anyone, would sit down and between themselves decide what is and what isn't "fake news", and then, drumroll, "remove it from circulation."

On the other hand, coming one week after Obama give Europe the green light to engage in any form of censorship and halt of free speech that it desires, when the outgoing US president voted into law the  "Countering Disinformation And Propaganda Act", it should come as no surprise that a suddenly emboldened Europe is resorting to such chilling measures.

So with Europe on the verge of rolling out unbridled censorship, here is the strawman used to justify it.

“Post-truth in politics is one of the drivers of populism and it is one of the threats to our democracies,” Pitruzzella told the FT. “We have reached a fork in the road: we have to choose whether to leave the internet like it is, the wild west, or whether it needs rules that appreciate the way communication has changed. I think we need to set those rules and this is the role of the public sector.”

Translation: it will soon be up to Brussles to decide what content on the Internet is appropriate for broad European consumption, because unless a bureaucrat intervenes "fake news" will lead to even more populism and not, say, years of failed political reform, and central bank decisions.

In short, it's all the internet's fault that Europe's legacy political system is reeling from an unprecedented anti-establishment backlash, which has nothing to do with, well, anything else.

As the FT notes, Pitruzzella’s call comes amid growing concern over the impact of fake news on politics in western democracies, including in this year’s UK Brexit vote and the US election.

In Germany, which faces parliamentary elections in 2017, the government is planning a law that would impose fines of up to €500,000 on social media companies for distributing fake news.

Allies of Matteo Renzi, the former prime minister, have also complained that fake news contributed to his defeat in the December referendum on constitutional reform, which led to his resignation, even though he lost by a wide 20-percentage point margin. At least they haven't blamed Russian hackers... yet.

So even assuming limiting free speech is the answer, why not force potential offenders to companies to police themselves?

Well, according to Pitruzzella it would be inappropriate to leave this task to social media self-regulation. “Platforms like Facebook have created great benefits for people and customers: they are doing their part as an economic entity in adopting policies to modify their algorithms to reduce this phenomenon”, he said. “But it is not the job of a private entity to control information.

This is historically the job of public powers. They have to guarantee that information is correct. We cannot delegate this completely.”

We know of at least one Italian who would agree.

And just like the person shown above, Pitruzzella dismissed concerns that setting up state agencies to monitor fake news would introduce a form of censorship, saying people could “continue using a free and open internet”... as long as all the members of the "open" internet agreed with what the agencies determined to be true and undisputed. But he said there would be a benefit in that there would be a public “third party” — independent of the government — to “intervene quickly if public interests were harmed”.

At the moment, the only way that fake news can be tackled — at least in Italy — is through the judicial system, which is notoriously clunky. “Speed is a critical element,” Pitruzzella said, so what is the solution? Why a Ministry of Truth of course.

The anti-establishment Five Star Movement is often labelled as the main facilitator of fake news in Italy, through the blog of its founder, the comedian Beppe Grillo, and a network of other websites affiliated to the party.

But Pitruzzella declined to cite them as the main culprits. “I don’t know if this is true, I would not want to criticise anyone, not even the Five Star Movement. But I believe that if there aren’t any rules then many can take advantage of this.”

Of course, once free speech is censored, Pitruzzella will have no problem with no only criticizing anyone who disagrees with him, but promptly shutting down their freedom of speech on the net.

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Obama, DOD and Free Speech

By Claire Bernish on 24 December 2016 for Free Thought Project -
(http://thefreethoughtproject.com/distraction-obama-propaganda-provision-law/)


Image above: Source of US government propaganda includes "Fake News" in Mainstream Media. The FaceBook response on December 15th 2016 was announcement it will begin censoring stories they feel constitute "Fake News". From (http://www.nowtheendbegins.com/zuckerberg-announces-facebook-will-now-begin-censoring-stories-feel-constitute-fake-news/).

Using the cover of the holidays and distracted attention, President Obama signed the National Defense Authorization Act into law Friday evening — just two days before many Americans celebrate Christmas — perhaps because it contains ominously Orwellian language meant to “counter propaganda and disinformation directed at the United States.”

Although the NDAA’s true purpose is to fund the military, notorious provisions — particularly of the variety which erase yet more freedoms — are often added to the overall legislation. In this case, the propaganda and disinformation provisions mentioned above had been attempted in a stand-alone bill which remains stalled in Congress — partly due to scathing criticism and unpopularity from wary politicians.

And that seems justifiable, given legitimate parallels drawn to 1950s McCarthyism and the Red Scare.
According to the text of the $619 billion bill, the Secretaries of State and Defense and other pertinent officials will be tasked with creating an innocuous-sounding “Global Engagement Center.”

“The purpose of the Center,”states the text, “shall be to lead, synchronize, and coordinate efforts of the Federal Government to recognize, understand, expose, and counter foreign state and non-state propaganda and disinformation efforts aimed at undermining United States national security interests.”

In actuality, however, countering propaganda amounts to silencing dissenting opinion — particularly in the press — of anything deemed shining a favorable light on one of the many countries the U.S. considers a foe.

Such as Russia — which has been the target of choice for blame concerning the election of Donald Trump.&

But it could also be a vehicle to initiate censorship of independent and alternative media for reporting on corruption — rife in the Democrat establishment and corporate press — as exposed by documents published by Wikileaks.

It also means creating and furthering propaganda of the American government — because, theoretically, you can’t combat foreign agitprop without filling the void with something convincing and favorable to governmental agendas.

As text of the new law explains, the center will “support the development and dissemination of fact-based narratives and analysis to counter propaganda and disinformation directed at the United States and United States allies and partner nations.”

Many of the Global Engagement Center’s duties concern targeting disinformation and propaganda being disseminated in other nations; however, it subtly suggests the effort would seek to prevent such content from reaching the United States — thus, domestic actions are, by no means, ruled out.

Indeed, as the law states:

“The Center is authorized to provide grants or contracts of financial support to civil society groups, media content providers, nongovernmental organizations, federally funded research and development centers, private companies, or academic institutions for the following purposes:

• To collect and store examples in print, online, and social media, disinformation, misinformation, and propaganda directed at the United States and its allies and partners.
• To analyze and report on tactics, techniques, and procedures of foreign information warfare with respect to disinformation, misinformation, and propaganda.
• To support efforts by the Center to counter efforts by foreign entities to use disinformation, misinformation, and propaganda to influence the policies and social and political stability of the United States and United States allies and partner nations.

Seeming at least somewhat innoxious, had the law been passed in a vacuum, the current hysteria over putative Russian interference during the election cycle presents alarming potential implications for the future of free speech and unobstructed access to information.

A subsequently partially backtracked report by the Washington Post, “Russian propaganda effort helped spread ‘fake news’ during election, experts say,” originally published on November 24, boldly declared the Russians had been behind disinformation during the election cycle, and had facilitated the election of Donald Trump to suit a shady but noticeably unspecified political agenda. 

First to obtain an ostensibly damning list of news organizations affiliated with The Russians, the Post failed, negligently or intentionally, to investigate the nascent organization which provided said list, or to even contact a single outlet named — yet reported as if the information were so damning as to be indisputable truth. 

 In fact, the supposed experts cited by the once-illustrious outlet inhabited a single, newly created website, PropOrNot, whose owners sophomorically responded to outrage — giving the Post a black eye in the process — tweeting,

“Aww, wook at all the angwy Putinists, trying to change the subject – they’re so vewwy angwy!! It’s cute [gloating emoticon] We don’t censor; just highlight.”

The website encourages reporters and anyone with questions to reach out via Twitter or email, but says, “If you’re a Russian troll, though, don’t bother. We’ll just ban you.”

Although the Post, itself, did not publish or link to the unsourced and unverified index of organizations — incidentally, comprising 200 independent, alternative outlets, and those who’d dared endorse presidential candidates other than Hillary Clinton — the damage exponentially worsened as countless corporate presstitutes parroted the non-information at a rapid clip.

 After its half-hearted retraction of that misstep, the Post further embarrassed itself with a report titled, “Secret CIA assessment says Russia was trying to help Trump win White House” — but stunningly provided even less evidence — and again failed due diligence to back this assertion, other than the putative claims of unnamed officials.

Worse, its own article disputed the audaciousness of the headline — the Post admitted no report would be forthcoming from a consensus of all 17 U.S. Intelligence agencies, since “minor disagreements” among officials persist. 

When the public had a difficult time swallowing such allegations, the White House stepped in and, rather flippantly, proclaimed Russian President Vladimir Putin played a direct role in hacking the U.S. presidential election — again,despite any evidence the ‘election’ had been ‘hacked.’ 

 Couple this renewed Red Scare with what, in essence, marked the legalization of one of the most nefarious covert domestic government operations in U.S. history — Operation Mockingbird — and any iterations this program won’t severely cripple legitimate but dissenting American media ring hollow. 

 Notably, though the Obama administration cited pernicious pro-Russian propaganda and the proliferation of false reports for causing the election of Trump, no unassailable evidence has yet been proffered proving this theory true — nor has any indication “fake news” so much as changed a single vote.  

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Rise of Biocultural Rights

SUBHEAD: Bioocultural rights provides a framework for reclaiming land, culture, and self-governance.

By David Bollier on 13 April 2015 for Bollier.org -
(http://bollier.org/blog/rise-biocultural-rights)


Image above: A hand-painted sign declaring "Our Nature, Our Culture, Our Freedom!" From (http://naturaljustice.org/context/biocultural-diversity).

Can law be used to protect and advance the commons?  One of the most promising new developments here is a new jurisprudence of “biocultural rights.” Biocultural rights represent a bold new departure in human rights law that recognizes the importance of a community’s stewardship over lands and waters.

Instead of focusing on individual rights and private property, biocultural rights explicitly recognize a community’s identity, culture, governance system, spirituality and way of life as embedded in a specific landscape.  In other words, it recognizes the existence of a commons.
The history and character of biocultural rights are wonderfully explained in a recent law review article in the Journal of Human Rights and the Environment.

The article, “Community Stewardship:  The Foundation of Biocultural Rights,”  is by Kabir Sanjay Bavkiatte, a cofounder of Natural Justice, an international collective of environmental lawyers, and Thomas Bennett, a professor at the university of Cape Town, South Africa. (Vol. 6, No. 1, March 2015, pp. 7-29)

Here’s an abstract of the article:

The term ‘biocultural rights’ denotes a community's long established right, in accordance with its customary laws, to steward its lands, waters and resources. Such rights are being increasingly recognized in international environmental law. Biocultural rights are not simply claims to property, in the typical market sense of property being a universally commensurable, commodifiable and alienable resource; rather, as will be apparent from the discussion offered here, biocultural rights are collective rights of communities to carry out traditional stewardship roles vis-à-vis Nature, as conceived of by indigenous ontologies.

Certain core principles lie at the heart of biocultural rights, write Bavkiatte and Bennett.  These include “non-discrimination, protection of cultural integrity, self-government, title to lands and natural resources, together with social welfare for economic well-being.”

The authors concede that “international lawyers have undertaken little or no research into the development of biocultural rights” – something that this article sets out to rectify. They argue persuasively, however, that these rights have clearly surfaced in a variety of international covenants, declarations, conventions and codes of conduct.

Biocultural rights as a new field of law have not emerged magically on their own, but through the convergence of four interrelated movements that have contributed important ethical principles, legal concepts and political advocacy.  Together, these movements have brought the idea of biocultural rights into sharp focus.

The four movements identified by the authors consist of:

• “post-development” advocates who are articulating a vision for human society beyond the discredited neoliberal paradigm;
• the commons movement that rejects the “tragedy” fable and empirically demonstrates the effectiveness of local self-governance; 
• the movement of indigenous peoples asserting their right to self-determination, cultural heritage and stewardship of the land; and 
• the push for a “third generation” of environmental human rights that go beyond basic civil and political rights (first generation) and socio-economic and cultural rights (second generation), to recognize community rights to self-determination, economic and social development, cultural heritage and a clean and healthy environment.

 Biocultural rights provide a powerful way to challenge technocratic governance – “an expertocracy imposing non-consultative, top-down solutions, resulting in the delegitimation of local knowledge and decisionmaking,” write Bavikatte and Bennett.  Such technocratic approaches are harmful because they “lock in” a set of alien rules and technologies, and prevent people from developing their own, more locally appropriate and more effective rules.

In this sense, biocultural rights can be an important tool in challenging the standard models of “development” and all their ethno-centric, top-down limitations.  Biocultural rights also help validate traditional cultural practices that have adapted to local ecosystems and that reflect a particular way of being in the world.  The idea helps open up a whole new set of solutions beyond the monoculture of neoliberal economic and policy.

In wildlife sanctuaries in India, commons scholars have confirmed that “a protectionist approach that excluded local communities was likely to fail unless governments were prepared to invest heavily in the initiative.

The same projects also showed, on the one hand, that conservation was likely to fail if outsiders (or dominant insiders) imposed rules on a community’s use of resources, and, on the other hand, that forest resources were more effectively managed if community members were genuinely involved in decisionmaking and developing rules for use of the resources.”

Of course, bureaucracies like to issue universal rules, not ones that are locally specific.  They also tend to prefer “market-based solutions” that favor private property rights.Neoliberal jurisprudence focuses on the individual as the most meaningful “juridical subject,” usually ignoring the community and its biocultural relationships. So there are some formidable barriers.

Still, the idea of bioocultural rights provides a powerful legal framework for reclaiming land, culture, traditional knowledge and self-governance. These things should not be driven by markets, but by a deeper set of values, including ecological imperatives. It will take a great deal of bottom-up political and legal action to win recognition for biocultural rights.

But I think it holds great promise for giving commons-based governance a new foundation in law.

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