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Indigenous environmental justice as a legal principle

Written by Sakshi, PhD student at the Department of Land Economy, University of Cambridge

Decolonisation aims to recover, re-centre, and recognise Indigenous epistemologies and ontologies and in academe is a process that runs concurrently to political decolonisation. However, we cannot talk of decolonisation without recognising the sovereignty of Indigenous peoples, working towards returning the stolen land, and addressing Indigenous dispossession. At an epistemic level, Indigenous knowledge forms, cosmologies, philosophies and the more-than-human relationships with nature are also dispossessed by the western philosophies and dominant narratives. This dispossession is tellingly manifested in the adjudicatory processes.

In my comparative work, I look at how courts frame Indigenous environmental justice as a legal principle. By Indigenous environmental justice, I mean recognising Indigenous cultural and spiritual connection with nature and tailoring remedies that address such connections and attendant harms. To facilitate this, courts must turn into transdisciplinary spaces that can subsequently decolonise legal research.

Invariably, courts are settler institutions. They are deeply enmeshed in the process of preserving and sustaining the structure that is settler colonialism. Nevertheless, several opportunities allow interpreting and understanding laws against the grain. Courts have previously made use of these, and it is imperative to mark these departures to unpack radical environmental jurisprudence. To decolonise, we must understand courts as sites of knowledge production and not merely sites of adjudication. Courts not only apply the law and decide cases based on issue-resolution matrices. They also inherit knowledge in the form of precedents and in turn, they create precedents. To facilitate flexibility and novelty in juridical spaces, one must have methodological innovation.

I do not claim that law does not take into account knowledge from other disciplines. On the contrary, the law is and has always been interdisciplinary. Especially in Indigenous litigation, communities have been compelled to ‘prove’ to the court the cultural connection to the land and their cosmologies. Ironically, the experts (anthropologists and historians) have, until now, been overwhelming carrying the western knowledge of who Indigenous people are or how they must ideally organise their communities. What I search for in my work is what Marcelo Neves calls ‘transversal rationality’ – which means to adopt and import reasoning that is outside of the juridical spaces. There is potential interdisciplinarity in law that respects Indigenous perceptions of the world and treats the knowledge forms and cosmologies as an equal discipline. In his Epistemologies of the South, Santos talks about how western thought gives weak answers for strong questions. Adjudication processes that rely heavily on positivist law and western legal theories are not exempt from this. If the adjudication process must have strong answers for strong questions, such as that of Indigenous environmental justice, it must look for sources that are not merely submissions of the parties or antediluvian laws. 

To an extent, litigation and adjudication are technical processes. While the court will have to interpret the Indigenous claim concerning land or environmental harm, not locating the dispute in settler colonialism’s continuing violence leads to what we know as epistemic injustice (Kidd et al., 2017). The interpretative zones where courts deliberate on what they should do with the law and how to read it cannot be solely looking within and remain ‘self-referential’ systems (Cotterrell, 1989). Decolonisation is an ongoing process and involves constant learning. In this journey, there ought to be greater demand for recognition of Indigenous voice and self-reflexive courts. Such a journey would also ensure a legal system with integrity and justice-oriented jurisprudence for all.

Cotterrell R, The politics of jurisprudence : a critical introduction to legal philosophy (Butterworths 1989).

Kidd IJ, Medina J and Pohlhaus GM, The Routledge handbook of epistemic injustice (Routledge handbooks in philosophy, Routledge, Taylor & Francis Group 2017).

Neves M, Transconstitutionalism (Hart Publishing 2009).

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