Appropriate recognition

Many ICCAs—territories of life have been seriously damaged or are under threat from a variety of factors: expropriation of land, waters and natural resources; imposed forms of resource exploitation; encroachment by newcomers and migrants; cultural assimilation (e.g. by education programmes, missionaries, the media), as well as imposed changes in institutions, economic burdens and conflicts. At the root of these problems and threats often lies a lack of appropriate recognition of their existence and values. Appropriate recognition, however, is not trivial nor a one-size-fits-all set of procedures. Regardless of good intentions, inappropriate recognition may be worse than no recognition at all, and approaches to recognition should be as much as possible tailored to the context. For example, a government that recognizes an ICCA as a ‘#protected area’ may provide some financial support and better respect of the ICCA rules, but it may also usher a loss of control and weakening of the community governance institution. In particular this is true when the institution is forced to comply with generic structures and procedures that undermine its own governance traditions and values.

The recognition of an ICCA—territory of life needs to be directed at a coherent socio-ecological unit, i.e. a territory identified on the ground of history, ecology and the cultural and social characterises of the relevant communities. Any external recognition should be based on the prior recognition (self-recognition) by the communities who are legitimate custodians. If recognition responds only to an external rationale (political, economic or for conservation), the chances of failure and conflicts increase. Given the diversity, complexity and sensitivity of issues regarding territories of life and their governance institutions, their appropriate recognition should be based on the consent of the custodian community— fully informed about the consequences, modifiability, and potential economic, political, social and cultural impacts of the form of recognition proposed.

For what concerns ICCAs—territories of life, even though flexibility and fitness to the context remain paramount, the most appropriate form of legal recognition has been proposed as “inalienable, indivisible and imprescriptible collectively-held rights” [1] to an “integral territory” held by the legitimate autonomous governance institution.[2] Interestingly, these rights do not necessarily involve formal property but security of collective governance and tenure through time (see #Security of tenure).[3] Ownership is just one of the several ways by which governance can be achieved in territories of life, and often it is not possible or even desired, as it introduces rigidities that block the social and convivial practices of communities. This is true, in particular, when the territories of life of communities concerned with potentially complementary natural resources (e.g. pastoralists and agriculturalists) do overlap.

Collective governance rights that cannot be lost or prescribed free the governing institution from pressures for sale and division of the territory and foster a vision for the long term and the good of present as well as future generations. Ideally, they are combined with various forms of social recognition, in particular for the conservation benefits stemming from the work of governing, managing and conserving nature in the territory of life.

Social recognition can be understood as appropriate public attention, acknowledgement and praise. It can take the form of official mentions and inscriptions, honours and awards, and media exposure for desired visibility. Social recognition is very important for many indigenous peoples and local communities and can provide a variety of platforms to make their territory of life initiatives publicly known, if desired, and better respected. But social recognition can also be damaging, as when it engenders unwanted exposure or generates or exacerbates tensions. For instance, this may happen when some communities, or individuals within a community, are singled out for prize and honours over equally deserving others.[4]

Ultimately, recognition in practice is the most important and effective form of social recognition. Recognition in practice means that the rules and regulations decided by the custodian community are honoured, respected and appreciated by the state administrative authorities, the police and judicial powers. This is crucially effective when the community enforcement of its own rules and regulations is actively backed-up and supported by such state powers.

Much of the work of the ICCA Consortium is about promoting and/or enhancing the appropriate recognition of ICCAs—territories of life by a variety of actors in local, national and international contexts. Recognition that does not honour the capacity, dignity and self-determining authority of the custodians as indigenous nations and unique communities is likely problematic and can be harmful. Most countries lack specific legislation about ICCAs, but many do have sets of norms, such as those concerning indigenous peoples’ rights, nature conservation, communal forests, or tourism, which can be interpreted as relevant to ICCAs and useful to recognise them. In order to transform these options of recognition into appropriate instruments to promote the flourishing of ICCAs—territories of life and to overcome the ‘legal fragmentation’ of landscapes (see below), #appropriate support is usually also needed.

An international ICCA Registry for appropriate recognition of territories of life

As an instrument to promote appropriate recognition to ICCAs—territories of life, the ICCA Consortium has been working for many years with the World Conservation Monitoring Centre of the UN Environment and the UNDP GEF SGP to develop and populate a global ICCA Registry and to include ICCAs in the World Database of Protected (and Conserved) Areas.[5] By properly documenting them, the Registry aims at enhancing national and international political and public awareness on the value of ICCAs—territories of life for conserving biodiversity, ecosystem functions and nature in general, as well as for maintaining cultural diversity and combating climate change. Started as a disparate set of cases that were informally and individually submitted, the Registry is being reviewed with the help of peer-support and review processes in various countries.

Are relevant laws and policies ‘appropriate’? From legal fragmentation to comprehensive legal support

In contemporary states (whether adopting civil law or common law systems), legislation is essentially fragmented or compartmentalized[6] in many different topics/issues/realms. Regarding indigenous peoples and local communities and their territories of life, legislation often remains unable to coherently and comprehensively address existing challenges. Often, such challenges are, de facto, scattered among many unrelated pieces of different legislation. For example, in many national legislations, agriculture and religion are ruled by separate sets of laws that hardly interact one with the other and may, even, require to abide to different courts. On the contrary, for indigenous peoples and local communities the ‘sacred’ may be embedded in agricultural practices: seed custodianship undertaken by religious leaders, sacred ceremonies aimed at crop development, taboos on unsustainable practices, and the likes.

More integrated approaches are needed to bring appropriate attention to the interconnection between spiritual, linguistic, cultural and economic aspects of the different biotic and a-biotic elements of landscapes. Following Darrel Posey’s Traditional Resources Rights approach, the ICCA Consortium is promoting global and national overviews of laws and policies that are relevant for the recognition and support of territories of life, and its Member Natural Justice has developed The Living Convention, a compendium of international binding and non-binding laws relevant for the protection of indigenous peoples. The aim is to guide indigenous peoples, local communities and their representatives to deal with different laws together, and thus respond to challenges in a more comprehensive way.

Key references:

Posey, 1995; Corntassel, 2008; Borrini-Feyerabend et al., 2010; Jonas, Kothari and Shrumm, 2012; Jonas and Shrumm, 2012; Kothari et al. (eds.), 2012; Jonas, Makagon and Shrumm, 2013; Jonas, Jonas and Makagon, 2014.

See also: ; ICCA Registry

[1] Borrini-Feyerabend et al., 2010.

[2] Borrini-Feyerabend at al., 2010. The concept of integral territory implies rights to : “…not just land but also water and other gifts of nature, from the centre of the Earth to the top of the Sky…” as stated by Wrays Perez Ramirez for the Integral Autonomous Territory of the Wampis Nation (communication at the XIII General Assembly of the ICCA Consortium, Bishoftu, Ethiopia, 2018).

[3] The need to secure tenure and governance rights and not necessarily property right is stressed by European Members of the ICCA Consortium (Sergio Couto, personal communication, 2019).

[4] Kothari, Camill and Brown, 2013.

[5] See also UNEP-WCMC, 2016.

[6] Jeff Corntassel points out that the focus on rights discourse “has resulted in the compartmentalization of indigenous powers of self-determination by separating questions of homelands and natural resources from those of political/legal recognition of a limited indigenous autonomy within the existing framework of the host state(s).” (Corntassel, 2008, page 107).