Environmental Engineering Reference
In-Depth Information
because the plaintiffs did not appear native enough. While in the past
normative arguments such as the concept of
terra nullius
have not only
justifi ed colonial acquisition of territory, they were also a refl ection of
the bias against the political and social organization of indigenous
peoples. These biases, according to Tully (1994), continue to infl uence
the current debate about native title claims and are forming the basis
against which native title claims are judged. It will be diffi cult to respond
appropriately to compensatory and procedural demands for justice with
regard to indigenous land-right claims as long as Western-based legal
norms and values are used to judge them (Dodds 1998; Tully 1994).
Borrows (2002) has explored alternative approaches and his attempt to
incorporate indigenous norms and values in common law presents a new
potential political and legal order for indigenous peoples.
There are other dimensions to how procedural justice is structured for
indigenous peoples, relating closely also to the ways in which their cul-
tures are or are not given recognition. The ability to participate depends
on language skills, and the capacity to participate in decision-making
processes (Whiteman and Mamen 2002). Hierarchical approaches to
decision making (e.g., by government, corporation, or NGO without
community consent) may ignore established indigenous processes of deci-
sion making in which power is more fl atly and widely distributed. In
terms of providing feedback to the wider community, procedures for
explanation and justifi cation may also need to be culturally framed
(Whiteman and Mamen 2002). If perceptions of procedural justice are
within the tenets of traditional law, appropriate feedback may have to
include social, environmental, and spiritual reasoning.
Such recognition of both the multiple concepts of environmental
justice that can be at work, and the plurality of value and cultural
systems through which these are understood and mediated, calls for a
relative and scaled understanding of what constitutes environmental
justice rather than one based on notions of universality and conformity
(Debbane and Keil 2004). That is not to say that the meaning of justice
is born anew in each place and each time that claims are made and dis-
putes materialize. There will be common reference points but the ways
these are interpreted, combined, and operationalized are open to variety
and diversity. As we will now see, this becomes particularly clear when
the traditions for adjudicating justice in a historically embedded yet
evolving indigenous cultural and physical space, are intersected by an
international process for establishing the sharing of commercial benefi ts
from biological diversity.
