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Title: Indigenous peoples' Customary Laws, Sámi People and Sacred Sites
Authors: Xanthaki, A
Issue Date: 2017
Publisher: Springer
Citation: Experiencing and Protecting Sacred Natural Sites of Sámi and other Indigenous Peoples The Sacred Arctic, 2017, pp. 65 - 82
Abstract: Although recognized both in the ILO Convention No169 and in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the right of indigenous peoples to maintain their customary laws and systems continues to be a rather unexplored issue in legal literature. Until recently, customary laws of indigenous peoples have mainly been explored by social anthropologists (e.g., Bennet 2006), while largely legal experts still mainly focused on written and codified ‘positive’ law (however, see Weisbrot 1981:3-4). The recognition of such laws though is really important for indigenous peoples. Embedded in the culture and values of indigenous communities, indigenous customary laws are an intrinsic and central part of their way of life and their identity. They define rights and responsibilities relating to key aspects of their cultures and world views, and guide indigenous communities on a wide range of issues; from the conduct of spiritual life, to land, and to use of and access to resources. Maintaining customary laws can be crucial for the maintenance of the cultural heritage and knowledge systems of indigenous peoples. Indigenous communities all around the world have steadily argued that any legal regime for the protection of their knowledge must be grounded in their own customary laws and practices. Indeed, the term ‘customary law’ has often been used as a generic term to refer to indigenous peoples’ legal regimes, frequently seen as deriving from their customs and traditions. However, not all indigenous laws have customary roots. As Borrows argues, indigenous law may also be ‘positivist, deliberative, or based on the theories of divine or natural law (Borrows 2010:12). Therefore, the perception that views ‘customary law’ as the sole indigenous legal source does not accurately describe some contemporary indigenous legal regimes, as the latter often incorporate elements also drawn from non-indigenous sources (Tobin & Taylor 2009:7). Borrows rightly pushes forward a wider definition of ‘indigenous law’ that includes a full range of laws that make up indigenous peoples’ own legal regimes (Borrows 2010). Still, one cannot deny that customary law is a vital part of all indigenous legal regimes, providing both the flexibility and continuity through which sacred teachings, traditional practices and the knowledge drawn from the nature observation, may be applied and enforced in community governance and traditional resource management systems (Tobin 2014:7). This chapter will argue that current international law has recognized the importance of indigenous customary laws in general and in specific, their importance in protecting indigenous sacred sites; however, more reflection must take place on the difficult and controversial issues relating to indigenous customary laws. The paper will first map out the existing international legal context for the protection of indigenous peoples’ customary laws, and reveal the link that is made in current human rights instruments between customary laws and indigenous sacred sites. The paper will then use the case of Sámi customary laws on natural sacred sites to identify central issues that need to be taken into account in the conservation of the indigenous sacred sites and the environment. The debate on the possible conflicts between indigenous customary laws and non-indigenous values has mainly focused on individual rights in the past (Xanthaki 2011: 413-433; also Quano 2013: 675). Due to the emphasis on conservation in other chapters of this volume, this chapter will not engage directly with the conservation issue as such, despite referring to some instruments that serve the conservation purpose.
ISBN: 3319480693
Appears in Collections:Dept of Social Sciences Media and Communications Research Papers

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