Københavns Universitet - Kurser

JJUA55309U Indigeneity, Law, and Nature

Volume 2023/2024

This course interrogates the evolving legal recognition of the relationship between Indigenous Peoples and Nature under international and national legal regimes. It connects “law” as a predominantly Western and anthroprocentric method of governing with other legal constructs to reveal how different legal systems and methods of governance protect and fail to protect, connect to and exploit, nature, with particular focus on Indigenous legal systems and legal developments recognition of the rights of Indigenous Peoples, including various interpretations of rights to and of nature. The nexuses between indigeneity, nature and law occur in and through different legal regimes including international law, constitutional law, and various forms of national law such as those in relation to rights and the management of natural resources.

This course draws inspiration from critical perspectives on international law including TWAIL (third world approaches to international law), post and decolonial legal studies, theories of legal pluralism, climate and green colonialism, among others. It will highlight the voices of indigenous and Global South legal scholars to examine the climate crisis and the response to it, including climate adaptation, and maladaptation, disaster risk creation, and conflicting interpretations of notions of sustainability. The course will examine the consequences of colonization, and legal cultures of extraction on the protection of nature, drawing also on comparative legal approaches in constitutional and international law.

The course will cover:

What are “indigenous rights” and how are they enforced? Including how the UN Declaration on the Rights of Indigenous Peoples is operationalised and incorporated into domestic legal regimes.
What is the notion of Free Prior and Informed Consent and how should it and does it manifest in business conduct?
What are the strengths and weaknesses of the international human rights regime as it relates to protection of and access to nature?
How are non-Western and marginalized epistemologies gaining legal recognition? Including the incorporation of Indigenous legal precepts and rights into settler constitutional regimes, with specific case studies.
What is legal pluralism and is any system of plurality compliant with the rule of law?
How have rights of and to nature have been recognized in domestic legal regimes and to what effect?
Contemporary interpretations of extant rights such as those which support the indigenous right to self-determination and the human right to a healthy environment
Legal responses to disaster and the intersection with Indigenous precepts and rights
Future legal directions

Learning Outcome

Upon successful completion of the course, students gain:

Specialised legal knowledge on the relationship between Indigenous Peoples’ rights and the state, based on the highest standards in contemporary law and scholarship
Specialised knowledge of legal developments in the rights of nature itself, including as they exist independently, and also as they relate to the human rights to self-determination and a healthy environment
A comprehensive understanding of the various approaches to the incorporation of respect for Indigenous rights and the rights of nature into settler legal regimes, including through systems of legal pluralism, and on that basis the capacity to identify and reflect on tensions within and between them
Comprehensive understanding of the tensions and distinctions between human rights law, the rights of indigenous peoples, and rights to and of nature

The students will develop and further skills and competences in:

Adopting and applying critical legal methodologies to address the interrelationship between indigeneity, law and nature, towards the development of solutions
Providing counsel that takes into account the political, economic and social factors relevant to Indigenous Peoples, and the capacity to explain how the interpretation of law and its application as well as the underlying legal system impacts Indigenous Peoples access to, and relationship with nature, and contribute to developing legal solutions for its protection
Undertaking analysis of law and legal systems that is academically rigorous, systematic, critical and independent, and develop research-based knowledge independently
The capacity to structure one’s own professional development and specialisation including through the selection of and research towards a tailored individual written assignment

Literature

Approximately 375 pages will be assigned reading.

Readings will be posted on the course website and will be divided into mandatory and optional reading.

To ensure a diversity of perspectives and the most up-to-date teaching material, assigned readings will be drawn from a variety of authors and perspectives.
Students are not expected to buy any books as part of the course.

Students wishing to familiarize themselves with the themes of this course may wish to read:

Ntina Tzouvala, “Capitalism as Civilization” (2020, CUP)
Linda Tuhiwai Smith, “Decolonizing Methodologies” (3^rd ed, 2021, Bloomsbury)
Anthea Roberts, “Is International Law International?” (2017, OUP)
Max Liboiron, “Pollution is Colonialism” (2021, Duke University Press)
Robin Wall Kimmerer, “Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge and the Teachings of Plants” (2013, Milkweed Editions)

It is illegal to share digital textbooks with each other without permission from the copyright holder.

Formal requirements

Students should be proficient in legal English.

Teaching and learning methods

The course has as its goal to diversify student’s knowledge and conceptualisations of law and legal systems, to understand and apply contemporary developments in the law governing indigenous rights in relation to nature and the environment, and to theorise legal pluralism in this context. Teaching and learning activities will include:
- The inclusion of various learning mediums including but going beyond traditional legal sources, including film, podcasts, art and visuals
- Guest lectures and contributions from Indigenous Peoples
- Short student presentations in each class of assigned topics
- Peer-to-peer feedback and discussion, especially after presentations
- Group work on specific case studies

Cases studies will include:
- The incorporation of various rights to an environment of a particular quality into constitutional law (Ecuador, Columbia)
- The contemporary interpretation of earlier treaties between indigenous peoples and settler governments (Canada and New Zealand)
- Contemporary processes of indigenous constitutional recognition (Australia and Greenland)
- Legal personality afforded to natural resources (Whanganui River case study)
- Comparative processes of free prior and informed consent in infrastructure projects (Norway and Greenland)
- The procedural rights afforded to indigenous peoples in Hawaii in relation to the governance of water and other natural resources (USA)
- The inclusion of tikanga Māori principles into national decision making in New Zealand

Workload