LEADLawEnvironment and

DevelopmentJournal

VOLUME

9/2

THE NAGOYA PROTOCOL AND CUSTOMARY LAW:THE PARADOX OF NARRATIVES IN THE LAW

Saskia Vermeylen

ARTICLE

LEAD Journal (Law, Environment and Development Journal)is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the

School of Law, School of Oriental and African Studies (SOAS) - University of Londonand the International Environmental Law Research Centre (IELRC).

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The Managing Editor, LEAD Journal, c/o International Environmental Law Research Centre (IELRC), International EnvironmentHouse II, 1F, 7 Chemin de Balexert, 1219 Châtelaine-Geneva, Switzerland, Tel/fax: + 41 (0)22 79 72 623, info@lead-journal.org

This document can be cited asSaskia Vermeylen, ‘The Nagoya Protocol and Customary

Law: The Paradox of Narratives in the Law’,9/2 Law, Environment and Development Journal (2013), p. 185,available at http://www.lead-journal.org/content/13185.pdf

Saskia Vermeylen, Senior Lecturer at the Lancaster Environment Centre, Lancaster University, UK,Email: s.vermeylen@lancaster.ac.uk

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License

ARTICLE

THE NAGOYA PROTOCOL AND CUSTOMARYLAW: THE PARADOX OF NARRATIVES

IN THE LAW

Saskia Vermeylen

TABLE OF CONTENTS

1. Introduction 187

2. Setting the Scene 189

3. Narratives and the Law 190

4. Oral Evidence in Native Title Claims 192

5. The Founding Moment of Law 195

6. Exclusions from Law and the Nagoya Protocol: A Theoretical Understanding 197

7. Conclusion: A Return to Legal Pluralism 199

1INTRODUCTION

It is apparent that progress is being made indeveloping national and international protectionmechanisms for safeguarding traditional knowledgesystems and respecting the norms and practices oflocal communities. While the Nagoya Protocol onAccess to Genetic Resources and the Fair andEquitable Sharing of Benefits Arising from theirUtilisation to the Convention on BiologicalDiversity (Nagoya Protocol) respects the rights ofindigenous and local communities relating to theaccess and benefit sharing provisions of theConvention on Biological Diversity (CBD), there isstill reason for concern as to what extent the voicesof indigenous peoples are sufficiently and accuratelyrepresented in the final text of the Nagoya Protocol.This point of critique relates to a wider debate abouthow to incorporate non-Western legal systems intothe dominant legal jurisprudence. Recent decisionsof the United States Supreme Court ruled that tribaljurisdictions are not enforceable when non-nativesare involved.1 Consequently, some scholars questionthe relevance and the pragmatic utility of recognisingor developing customary laws to protect culturalproperty if those laws will be unenforceable outsidethe jurisdiction of indigenous peoples or the regionof origin.2 The problem of limits on enforcing triballaw is another manifestation of the law’s institutionalresponse to the paradox brought about by the globalmovement for social justice.

The issue of protecting traditional knowledge andgenetic resources is a textbook example of a legalproblem in a world of hybrid legal spaces where asingle problem, act or actor is regulated by multiplelegal regimes. Unmistakingly, the Nagoya Protocoldeserves credit for formally recognising communityprotocols and customary laws as noted in Article12 (1):

In implementing their obligations under thisProtocol, Parties shall in accordance withdomestic law take into considerationindigenous and local communities’customary laws, community protocols andprocedures, as applicable, with respect totraditional knowledge associated with geneticresources.

The explicit reference to customary law is a clearsign that international environmental law is readyto acknowledge that the issue of protectingtraditional knowledge cannot escape a tiered systemof laws – international, national and customary. Onan international but rather abstract level, the NagoyaProtocol promises to protect the resources andknowledge of indigenous peoples in accordance withthe worldviews and norms of indigenous and localcommunities. The jury is still out and only time willtell whether the Nagoya Protocol can keep up itspromises on the ground. In the mean time this articleexplores the challenges we face in this brave newworld of ‘cosmopolitan legality’. The concept ofcosmopolitan legality or subaltern cosmopolitanismrefers to the work of de Soussa Santos who isinterested in theorising counter-hegemonicglobalisation movements in the global South.3 Thepurpose of this concept is to expose the potentialand the limitations of the law-centred strategies forthe advancement of counter-hegemonic struggles inthe context of globalisation. It encourages thesubaltern, such as indigenous peoples, to speak inthe global arena and to accept their speech as law, alaw that is an amalgam of United Nations’resolutions, national law, local norms and customs.4While law can indeed be used as a tool to providedomination and resistance (sometimes evensimultaneously), based on observations in the fieldthrough work with the San peoples on the Hoodiabenefit sharing agreement,5 this article resides itself

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1 See, for example, State v. A-1 Contractors, 520 U.S. 438,459 (1997). For more details see Angela R. Riley, ‘‘StraightStealing’: Towards an Indigenous System of CulturalProperty’ 80 Washington Law Review 69 (2005).

2 See, Riley, Id.

3 Boaventura de Sousa Santos, Toward a New LegalCommon Sense: Law, Globalisation and Emancipation(London: Reed Elsevier (UK) Ltd, 2nd ed. 2002).

4 Naomi Johnstone, ‘Indonesia in the REDD: ClimateChange, Indigenous Peoples and Global Legal Pluralism’12/1 Asian-Pacific Law & Policy Journal 93 (2010-2011).

5 For more details about the Hoodia benefit sharingagreement, see R. Chennells, ‘Traditional Knowledge andBenefit Sharing after the Nagoya Protocol: Three Casesfrom South Africa’, published in this issue of LEAD Journal.

with the critical socio-legal scholars who have takenit in their stride to show how ‘legal institutions maylend authority to certain interpretations whiledenying status to others’.6

What this article seeks to do is to ‘recreate theexperience of life on the bottom’.7 This requireslistening to the voice of those who have sufferedoppression and discrimination and to put ‘critical’in front of the concept of legal pluralism. While legalpluralism valorises non-state actors as normgenerating communities, by according thesealternative discourses a similar power as the legaldiscourse of the State, legal pluralism has beencriticised for continuing to use state law and the ruleof law as the normative norm against which othernorms are measured and allowed. Critical legalpluralism creates a platform that incorporates aheterogeneous group of legal subjects; it allowsinterpretations and narratives of the law beyond theofficial ones.8

Drawing parallels between access and benefit sharingagreements and native title claims allows this articleto identify the problems that can arise when Westernjurisprudence translates customary laws cross-culturally. The challenges that indigenous peoplesare facing in native title claims can show howWestern law interprets traditional law and customsand can be used as a benchmark to anticipate theproblems indigenous peoples and local communitieswill encounter when Article 12 (1) of the NagoyaProtocol will be applied on the ground. The historyof recognition of aboriginal rights in Canada is inparticular useful. Section 35 (1) of the CanadianConstitution recognises and affirms the existingAboriginal and treaty rights of the Aboriginalpeoples of Canada. However, giving meaning to

terms such as ‘existing’, ‘recognised’ and ‘affirmed’has caused debate and the only institution that hasreal power to interpret the meaning and significanceof Section 35(1) is the Supreme Court of Canada.9A number of major cases in Aboriginal law inCanada (some of which will be discussed in moredetail in this article) have shed further light on howAboriginal legal theory has evolved in Canadian law.Aboriginal rights are now firmly accepted asconstitutional rights and subsequently are embeddedin Canadian law and politics. However, indigenouspeoples of Canada still find it unacceptable that theirrights are only legitimate within the legal andpolitical contours of the Canadian state. They defendtheir rights through the concept of Aboriginalnationhood and question the sovereignty of theCanadian state over ‘their’ lands.10 The issue of statesovereignty is also at stake in the Nagoya Protocoland indigenous peoples argue that state sovereigntyoverrules their prior rights. Canada has indeed a longhistory of dealing with indigeneity in its courts andhence provides a useful benchmark to questionwithin the context of the Nagoya Protocol to whatextent laws and customs of indigenous peoples willbe recognised as providing evidence of ownership.What native title claims and the Nagoya Protocolhave in common is that both are examples ofcomplex interrelationships between different legalorders.11 Native title claims in Canada are a testingground to explore the potential of enforceability ofplural legal orders in the Nagoya Protocol. Beforenative title claims will be discussed in more detail,the article will first provide a wider background ofthe Hoodia benefit sharing agreement and theNagoya Protocol. The final part of the article willexplore from a theoretical point of view whycustomary law is being excluded or misinterpretatedin Western courts.

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6 Rosemary Coombe and Jonathan Cohen, ‘The Law andLate Modern Culture: Reflections on Between Facts andNorms from the Perspective of Critical Cultural LegalStudies’ 76 Denver University Law Review 1029 (1998-1999).

7 Mari J. Matsuda, ‘Looking to the Bottom: Critical LegalStudies and Reparations’ 22 Harvard Civil Rights – CivilLiberties Law Review 323 (1987).

8 Martha-Marie Klenhans, ‘What is Critical LegalPluralism?’ 12/2 Canadian Journal of Law and Society 25(1997).

9 Dale Turner, This is Not a Peace Pipe: Towards a CriticalIndigenous Philosophy (Toronto: University of TorontoPress, 2006).

10 Id.11 Elisa Morgera, ‘Bilateralism at the Service of Community

Interests? Non-Judicial Enforcement of Global PublicGoods in the Context of Global Environmental Law’23/3 The European Journal of International Law 743(2012).

2SETTING THE SCENE

The San Hoodia agreement illustrates the potentialconflict of legal orders in access and benefit sharingagreements. The San are one of the most ancientpopulations on the planet. Remains of their ancestorsdate back some 12,000 years in their presenthomelands. Today there are nearly 99,000 San livingin Namibia, Botswana, and South Africa, withsmaller numbers remaining in Angola, Zambia andZimbabwe. Only a very small number of San groupsstill follow their traditional hunting and gatheringlife. The vast majority live in extreme poverty invillages, practicing a mixed economy, or attachedto Bantu villages and cattle posts, or working oncommercial farms and ranches, or in governmentresettlement camps. The San peoples of the KalahariDesert have a long history of chewing Hoodia as awater and food substitute. A patent was awarded toSouth Africa’s Council for Scientific IndustrialResearch (CSIR) in 1998 without the consent of theSan peoples. After some campaigning the San signeda benefit sharing agreement with the CSIR. TheHoodia benefit sharing agreement has often beenapplauded as a major step forward in the recognitionof the knowledge of indigenous peoples and it is seenas a mechanism that can provide social justice.However, when the San’s history of Hoodia isrecorded within the context of the benefit sharingagreement and the CBD, it becomes positivistic andits life force is translated in a discourse of propertyrights and economic value.12 When the San’s oralstories and narratives entered the ‘marketplace ofideas’,13 original stories of cosmologies and

sharing14 were translated into stories of science andexclusive property rights.15 The cosmologies of theSan remained confined to the red sand dunes of theKalahari. The legal regime of the CBD onlyrecognised the rhetorics of the powerful – the elite– and rejected the stories of the dissidents or thosewho contested the Hoodia benefit sharingagreement. The opponents of the Hoodia benefitsharing agreement were confronted with a legalregime that rejected the stories of outsiders. Thisarticle will draw attention to why some of thedissenting narratives and stories remain hidden frominternational environmental law.

The CBD has as one of its objectives the fair andequitable sharing of the benefits derived from theutilisation of genetic resources. To implement thisobjective, the Nagoya Protocol was adopted at thetenth meeting of the Conference of the Parties tothe CBD (COP 10), held in Nagoya, Japan from 18-29 October 2010. The most important remit of theNagoya Protocol was to deal with the criticisms thatwere aired against access and benefit sharingprovisions in the CBD. The basic reproach has beenthat the CBD is mostly concerned with assuringaccess to and sharing the benefits of genetic resourcesand little has been achieved in terms of providing

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12 Saskia Vermeylen, ‘Law as a Narrative: Legal Pluralismand Resisting Euro-American (Intellectual) Property LawThrough Stories’ 61 Journal of Legal Pluralism 55 (2010).

13 Chris Preston, ‘A Past of Tragic Stories: The (Non-)Treatment of Native Peoples’ Oral Histories in Canada’2/1 Undercurrent 54 (2005).

14 As the author has argued elsewhere (see Vermeylen, note12 above), the San’s customs with regard to property andbenefit sharing can be found in some of their storiesusually associated with conflicts between iconic animals(hyenas, jackals and lions) and their fights over food.Stories about the importance of sharing of food - toldthrough the reporting of mischiefs that happens to theanimals if in their quest for food others are excluded orget killed – give insights into basic values that order Sanlife. What these stories so aptly show is that for the Sansharing is not only an economic principle; the stringethics of sharing food are part of a wider social networkthat can only exist when strong ethics guide the socio-economic relationship in the community.

15 As the author has illustrated with extracts from interviewsrecorded during fieldwork with the Khomani San in June2004 and July 2007, a discourse of exclusive ownershiprights is widely used and embedded in the rhetorics ofthe community members when discussing traditionalknowledge in general and Hoodia in particular. Thiscontrasts with some of the narratives used by thosecommunity members who do not belong to the elite orwho were not part of the Hoodia benefit sharingnegotiations. For detailed extracts, see Vermeylen, note12 above.

adequate protection for the traditional knowledgeand well being of indigenous peoples.16 While theCBD emphasises state sovereignty over territory orthe fruits of private invention, for indigenous peoplesthese resources are part of their right to self-determination and rights to heritage and property.17

The adoption of the Nagoya Protocol is seen as amilestone in the recognition of the rights ofindigenous peoples, nevertheless giving all controlover natural resources to the state severely limitsthe control of indigenous peoples and localcommunities over their natural resources andecosystems. One of the main criticisms against theNagoya Protocol is the vagueness and obfuscatinglanguage that is used whenever it refers to the rightsof indigenous peoples and local communities. Article12 (1) is a good illustration of the double standardwhen it specifies that Parties shall only takecustomary law into account in accordance withdomestic law.18 This raises the issue to what extentcustomary law will be taken into account. Learningfrom past experiences when the law is confrontedwith a site of struggle will help to unravel the extentof implementation challenges that the NagoyaProtocol is facing. In particular, this article isinterested in exploring to what extent the law willbe prepared to allow multiple narratives and storiesas evidence of ownership with regard to traditionalknowledge and genetic resources.

3NARRATIVES AND THE LAW

Indigenous law originates in the rich stories,ceremonies and traditions of indigenous peoples.Narratives and stories play a dominant role in theway elders reveal to the younger generation thedeeper meanings of order and disorder in theircommunity. Stories and narratives act indeed asnormative ‘lawmaking’ sources.

Stories and storytelling are central components indiscourses that represent history, memory andparticular places. Increasingly, narratives havebecome an important and recurring theme in legalscholarship, but this is not surprising because lawhas always been concerned with narratives. To putit bluntly in the words of Scheppele:

in law all courts have is stories [….] judgesand jurors are not witness to the events atissue; they are witness to stories about theevents.19

However, only some stories are accepted and otherstories are rejected even though the latter might bemore accurate versions of the event.

The power of narrative in constituting socialrelations is one that has been acknowledgedby a number of disciplines, including law.Narrative endorses a multiplicity of formsfrom a diverse range of sources. But regardlessof the form they are given, a key issue isalways the basis upon which narratives areaccorded recognition, or denied legitimacy.A second focal question asks how they aresituated with respect to other narratives andthe type of authority that they command.20

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16 Katharina Rogalla Von Bieberstein and KonstantiaKoutouki, The Nagoya Protocol: Status of Indigenousand Local Communities (Montreal: Centre forInternational Sustainable Development Law (CISDL),Legal Aspects of Sustainable Natural Resources LegalWorking Paper Series, 2011), available at http://cisdl.org/public/docs/legal/The%20Nagoya%20Protocol%20-%20Status%20of%20Indiginous%20and%20Local%20Communities.pdf.

17 Elisa Morgera and Elsa Tsioumani, ‘Yesterday, Today,and Tomorrow: Looking Afresh at the Convention onBiological Diversity’ 21/1 Yearbook of InternationalEnvironmental Law 3 (2010).

18 Committee on the Elimination of Racial Discrimination80th Session 13 Feb - 9 March 2012 UN, Geneva. Responseto Canada’s 19th and 20th Periodic Reports: Alternativereport on Canada’s Actions on the Nagoya Protocol(2012), Joint Report by the Grand Council of the Cress,Assembly of First Nations and many others, available athttp://www2.ohchr.org/english/bodies/cerd/docs/ngos/NGOs_Nagoya_Protocol_Canada_CERD80.pdf.

19 Kim Lane Scheppele, ‘Foreword: Telling Stories’ 87Michigan Law Review 2073 (1989).

20 Anne Griffiths, ‘Doing Ethnography: Living Law, LifeHistories, and Narratives from Botswana’, in June Starrand Mark Goodale eds, Practicing Ethnography in Law:New Dialogues, Enduring Methods 160 (New York:Palgrave Macmillan, 2002).

For the plaintiffs, on the other hand, the Maspheestory was one of coercion, adaptation and survival.The Masphee people had moved casually, andsometimes invisibly between Indian and non-Indianlife. The hybrid identity of the Masphee people madeit possible for them to survive. At the end of the trial,the jury rejected the story of the Masphee people.

Despite such legal setbacks, the recognition of theimportance of narratives in legal settings hasencouraged indigenous peoples to use narrativeswhen negotiating land claims - and increasingly withsome success. In the Delgamuukw ruling,27 theSupreme Court of Canada has accepted oral historiesof indigenous peoples as legal evidence in aboriginalrights cases. But as Fiske28 warns, there is a dangerthat storytelling will become embedded in thepolitics of difference as soon as the courts start toabsorb the narratives of indigenous peoples into theirown legal discourses. Only those stories that areframed in the English language of self governance,aboriginal rights and co-management are recognisedby the courts but this is the language of the dominantsociety, the language of the policy makers.29 Storiesthat emphasise another way of knowing aredismissed as different, and the social position of thestorytellers is reduced to being an outsider.

This throws up the issue to what extent the lawdistorts narratives when it starts to incorporate andtranslate cultural differences in its jurisprudence.Lessons can be learned from the critical (legal)literature that questions the nature of the differencethat is recognised in aboriginal rights claims ingeneral and native title claims in particular.30

Formal law recognises a narrative that is embodiedin legislation and judicial decision-making, andincreasingly other narratives of lawmaking challengethis essentialist form of lawmaking.21 Narratives haveentered legal studies as a vehicle to contest traditionalforms of legal reasoning and argumentation.22 Marginalisedand excluded groups can use storytelling to make theirvoices heard and to contest formal legal judgments.23

However, legal accounts tend to adopt the stories ofthose who are privileged and expel the stories andexperiences of people of colour, the poor, womenand those who cannot describe their experience inthe positivistic language of the law.24 Those whosestories are rejected before the law become outsidersbecause they are judged to have a different history,a different set of background experience and adifferent set of understandings than insiders. Insidersperceive the outsiders as bizarre and strange andindeed primitive when the outsiders represent theirstories to the legal establishment – the insiders.Nowhere is this practice so familiar as within thecontext of indigenous peoples and their quest to gainsovereign and self-determination rights.

In Masphee Tribe v. New Seabury Corp,25 Indianwitnesses were interrogated about their identity andbelonging to the Masphee tribe. The ultimatequestion in this case was whether the Masphee tribeexisted and whether this tribe could be party to alawsuit. In the critical legal literature,26 the trial hasbecome an illustration of a conflict between twonarratives of Indian history. The opposing sides helddifferent images of tribal status, culture and identity.The trial exposed a disjunction between legal andethnographic identities. The defendants relied onwritten history, the archive, to develop categoricaldefinitions of a tribe. The defendants showed thatthe so-called Masphee tribe was not a distinct tribe atall, but instead consisted of a loose composition ofrefugees from several other tribes and ethnic groups.

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21 Id.22 Peter Brooks and Paul D. Gewirtz, Law’s Stories:

Narrative and Rhetoric in the Law (New Haven: YaleUniversity Press, 1996).

23 Id.24 See Scheppele, note 19 above.25 Masphee Tribe v. New Seabury Corp, 592 F.2d 575 (1st Cir. 1979).26 Guyora Binder and Robert Weisberg, ‘Cultural Criticism

of Law’ 49 Stanford Law Review 1149 (1997).

27 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.28 Jo-Anne Fiske, ‘Positioning the Legal Subject and the

Anthropologist: The Challenge of Delgamuuwk toAnthropological Theory’ 45 Journal of Legal Pluralism 1 (2000).

29 Julie Cruikshank, ‘Oral Traditions and Material Culture:Multiplying Meanings of ‘Words’ and ‘Things’’ 8/3Anthropology Today 5 (1992) and Julie Cruikshank,‘Negotiating with Narrative: Establishing CulturalIdentity at the Yukon International Storytelling Festival’99 American Anthropologist 56 (1997).

30 Brenna Bhandar, ‘Re-Covering the Limits of Recognition:The Politics of Difference and Decolonisation in JohnBorrows’ Recovering Canada: The Resurgence of IndigenousLaw’ 27 Australian Feminist Law Journal 125 (2007) andJohn Borrows, Recovering Canada: The Resurgence ofIndigenous Law (Toronto: Toronto University Press, 2002).

4ORAL EVIDENCE IN NATIVE TITLECLAIMS

There is a longstanding Western cultural traditionof maintaining a binary opposition between oralityand literacy. The distinction between writing ascivilised and orality as primitive has been used tojustify the hierarchical relationship between thecoloniser and the colonised.31 As Jacques Derridaargues:

The continued use of the oral/writtendistinction is always haunted by theunderlying racist distinctions of the colonialproject.32

In Of Grammatology, Derrida posits that the Westernworld’s obsession with the ‘Truth’ explains whytexts or written accounts have been associated withbeing more reliable and trustworthy because theyare perceived to be more stable, ongoing andunchanging and hence closer to the ‘Truth’ than oralaccounts. This metaphysical framework that thetruth and absolute knowledge is out there waitingto be discovered also lies at the heart of the Westernlegal system and explains why judges haveambivalent feelings when they are confronted withoral evidence.33

The world’s leading case on the admission andinterpretation of oral history of First Nations asevidence remains Delgamuukw v. British Colombia.34

Despite the oral testimony given by the elder JohnnyDavid in the Delgamuukw hearings, Chief JusticeMcEachern gave little weight to the evidence of the

hereditary chiefs. As illustrated hereafter with someextracts from the court hearings, the Chief Justicestruggled with the cross-cultural barriers and hencein his rules of evidence rejected oral testimonies.Later, the Supreme Court of Canada overturnedmuch of the trial judgment and accepted oral historyas evidence in its judgment. Nevertheless thisoverturning of the initial judgment, Delgamuukw I,35

remains illustrative in highlighting the problemsassociated with cross-cultural communication andtranslation of colliding worldviews in native titleclaims.

One of the striking examples in the Delgamuukw Icase is the difference between the concept of hearsayin Western jurisprudence and the understanding ofwhat one is empowered to talk about. In Witsuwit’enculture one can give valid testimony about eventsthat were not witnessed but that were passed downthrough stories as long as one has the authority totalk about these events. However, in Westernjurisprudence, events that were not witnessed arereduced to hearsays and other witnesses or writtenaccounts need to be produced in order to validatethe particular event.36

Even more telling was the status given to oraltraditions. A defining moment in the Delgamuukwcase is when Johnny gives evidence about Tas Dleese,the story of the monster at Dzikins Lake which inthe cultural tradition of the Witsuwit’en is animportant story that can support evidence forestablishing historical rights to territory. However,for Judge McEachern, the story was reduced to anunreliable myth and he dismissed the importanceof these myths to First Nations as valid andsacrosanct validations of rights to land.37

Even though the Supreme Court of Canadaeventually accepted the oral history of First Nationsas evidence in native title claims in Delgamuukw III38

and Mitchell v. M.N.R.39, Canadian courts keptstruggling with the relevance they should attribute

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31 Drew Mildon, ‘A Bad Connection: First Nations OralHistories in the Canadian Courts’, in Renée Hulan andRenate Eigenbrod eds, Aboriginal Oral Traditions: Theory,Practice and Ethics 79 (Halifax: Fernwood Publishing,2008).

32 Jacques Derrida, Of Grammatology 101 (Baltimore: JohnHopkins Press, 1976) quoted in Mildon, Id., at 80.

33 See Mildon, note 31 above.34 Antonia Mills, Hang on to these Words: Johnny David’s

Delgamuukw Evidence (Toronto: University of TorontoPress, 2005).

35 Delgamuukw v. British Columbia, (1991) 79 D.L.R. (4th)185 (B.C.S.C.).

36 See Mills, note 34 above.37 Id.38 See Delgamuukw note 27 above.39 Mitchell v. M.N.R., [2001] 1 S.C.R 911, 2001 SCC 33, para 27.

to oral evidence. The ambivalent positioning of thecourts towards oral evidence has become a mainhurdle for First Nations in their quest to gainrecognition of their rights, mainly because oralhistories are accessed and used in a transcribed andprescribed written form – the mainstream historicaldiscourse.40 As a result, the stories of indigenouspeoples get lost in ‘the shuffle of legal formalities’.41

Borrows42 draws attention to another challenge thatis posed by accepting oral histories as evidence innative title claims. The oral evidence of indigenouspeoples in the courts has multiple purposes andbesides providing historical ‘facts’, the stories ofindigenous peoples often question at the core thenation state’s legal and constitutional structure.

[Aboriginal peoples’] evidence records thefacts that the unjust extension of the commonlaw and constitutional regimes oftenoccurred through dishonesty and deception,and that the loss of Aboriginal land andjurisdiction happened against their will andwithout their consent.43

In other words, oral traditions can question thelegitimacy of the law. This makes it even moredifficult for the court to accept the oral stories ofindigenous peoples as a full expression of their‘suppressed’ voice. Courts are faced with a dilemma.They can either accept the stories of indigenouspeoples highlighting the law’s illegitimacy or imposea legal language that distorts or hides the fullexpression of the ‘voice’ of indigenous peoples. ForVermette, the coloniser has still a monopoly overinterpretation; ‘the legal system lies at the heart ofthe anti-dialogical action of the oppressor’.44 Thereluctance of the courts to interpret the socialmeanings of the presented oral histories in a correctway has led to a questioning of the legitimacy of thelaw and its dominant forces.

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The dominant legal system rapes its way intolegitimacy, and took form as law, based uponthe right of its military attire and its abilitythrough force to dominate all that is differentor fails to conform to those who hold power.This is now law. Law is rooted in creation, itis a song, it is a love of law, and its land andits peoples. This muldarbi law works to erasepeoples and their law.45

Looking at some of the transcripts of theDelgamuukw I court hearings in Mills46 reminds theauthor of Benton’s critique of how colonial powershave sent ‘messages through legal institutions thatwere simply not received’.47 Benton illustrates thiswith an extract from Achebe’s novel on colonialism,Things Fall Apart.48 The protagonist, Okonkwo, istaken before the judge and jury, and convicted,without realising what is happening. He is not awedby the event because he does not know it is a trial.He does not know that the presiding British officialis a judge; he does not know that the twelve menbrought in to listen to the exchanges in the roomcompromise a jury. For Benton this passage in thenovel epitomises the ‘burden of translation’ whenthe coloniser and the colonised are encounteringeach other:

Individuals and groups were identified rightaway to act as interlocutors or intermediaries.While cultural change reverberated throughinteracting societies, it was concentrated inthe cultural transformation of theseindividuals. Within a historically short spaceof time we observe cultural practices that areproducts of neither dominant norsubordinate cultures, but of the interaction.49

Narratives and stories are told in specific settingsfor specific purposes and a story told at differenttimes and different settings may present different

193

40 See Mildon, note 31 above and Preston, note 13 above.41 D’arcy Vermette, ‘Colonialism and the Suppression of

Aboriginal Voices’ 40 Ottawa Law Review 225 (2008-2009).

42 John Borrows, ‘Listening for Change: the Courts andOral Tradition’ 39/1 Osgoode Hall Law Journal 1 (2001).

43 Id.44 Vermette, note 41 above.

45 Irene Watson, ‘Naked Peoples: Rules and Regulations’4/1 Law Text Culture 1 (1998).

46 Mills, note 34 above.47 Lauren A Benton, Law and Colonial Cultures: Legal

Regimes in World History: 1400-1900 16 (Cambridge:Cambridge University Press, 2002).

48 Chinua Achebe, Things Fall Apart (London: PenguinClassics, 1958, re-issued 2010).

49 See Benton, note 47 above.

selves and different histories. Stories are told in asituation of a transforming relationship between theelicitor and the narrator; they form part of acommunicative interaction and exchange betweenthe listener and the narrator each with their ownagendas.50 Ultimately, as illustrated above withJohnny’s oral testimony in the Delgamuukw I case,the use of language in law is a communicative actionand the success of the action depends on whetherthe hearer (in this case the judge) responds to thevalidity claims raised by the speaker.51 Oral historyis dialectic; the outcome of the story relies on theexperience and interpretation of both the teller andthe listener.52

Oral history is by definition subjective,53 andindigenous peoples particularly value the subjectiveinterpretation of history because it allows the tellerto link the past with the present. Oral history is morethan just a description of events or the quest to findthe truth; oral history accommodates the fluidaspects of culture and tradition, it is aboutdiscovering social processes and understandingcurrent problems through narratives.54 The historiesof indigenous peoples are often steeped in myths andlegends; ‘genres’ that sit uncomfortable within themainstream. When encountered in courts, oraltraditions will be transcribed or translated. It seemsthat the only way oral histories can find a place inhistory is through these translations. However,

translating oral histories into written ones devaluestheir symbolism and meaning. Oral histories canonly become legitimate by distorting the subjectivityof these narratives. Regardless of whether oral storiesare recognised as legitimate testimonials in courthearings, by translating narratives into themainstream, they continue to be marginalised55 andaboriginal legal arguments are reinterpreted so theyfall within Western legal concepts.56 For Borrowsthis amounts to a practice that has made aboriginalpeoples legally different and makes them live in‘tenuous legal conditions’.57 The Victor Buffalo58

case, which was one of the first major Treaty casesafter Delgamuukw, made it clear that the latterinstead of settling the debate had only intensifiedthe battle over oral history evidence in Canadiancourtrooms.59

Just as Canada has been struggling with the status oforal histories in its law courts, so has South Africain the Land Claims Courts. After the collapse of theapartheid regime, the demand for justice requiredthe law to bend its rules and hearsay oral evidencehad to be admitted as legitimised evidence in LandClaims Courts. This has raised questions as to whatextent oral evidence can be a ‘record’ and how thisrecord can be alternatively ‘stored’ or archived. ForHarris, the recording of narrative and the archivingof orality can easily destroy the fluidity of thenarrative and can alienate the teller from the story.There are similarities between the legal status of oralhistories in the courts of law and the societalprocesses behind archival theory.60 The need toarchive or to record oral stories as legal evidence

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50 Corinne Kratz, ‘Conversations and Lives’, in Luise White,Stephan F. Miescher and David Cohen eds, African Words,African Voices: Critical Practices in Oral History 127(Bloomington: Indiana University Press, 2001).

51 Deborah Cao, ‘Legal Speech Acts as IntersubjectiveCommunicative Action’, in Anne Wagner, WouterWerner and Deborah Cao eds, Interpretation, Law, andthe Construction of Meaning 65 (Dordrecht: Springer,2007).

52 See Borrows, note 42 above and Preston, note 13 above.53 Julie Cruikshank, ‘Oral History and Oral Tradition:

Reviewing Some Issues’ 75 Canadian Historical Review403 (1994); Elizabeth Tonkin, ‘Investigating OralTradition’ 27 The Journal of African History 203 (1986);Elizabeth Tonkin, Narrating Our Past: The SocialConstruction of History (Cambridge: CambridgeUniversity Press, 1995); Preston, note 13 above and DavidWilliam Cohen, Stephan F. Miescher and Luise White,‘Voices, Words, and African History’, in White, Miescherand Cohen eds, note 50 above, at 127.

54 See Borrows, note 42 above and Preston, note 13 above.

55 See Cruikshank, note 53 above and Preston, note 13above.

56 Hester Lessard, Rebecca Johnson and Jeremy Webber,Storied Communities: Narratives of Contact and Arrivalin Constituting Political Community 15 (Vancouver:University of British Columbia, 2011).

57 John Borrows, Drawing out Law: A Spirit’s Guide 55(Toronto: University of Toronto Press, 2nd ed. 2010).

58 Chief Victor Buffalo v. Her Majesty et al, (Fed. C.A.,December 20, 2006) (31869).

59 Arthur J. Ray, Telling it to the Judge: Taking NativeHistory to Court 67 (Montreal: McGill-Queen’sUniversity Press, 2011).

60 Verne Harris, Archives and Justice: A South AfricanPerspective (Chicago: Society of American Archivists,2007).

reinforces the voicelessness of the ‘marginalised’.The archive becomes the terrain of power andhistory is littered with examples of archives that areused to manipulate social memory.61

5THE FOUNDING MOMENT OF LAW

The reluctance of the courts to embrace fully andwhole heartedly the concept of customary law asevidence in native title claims is forcing us to re-evaluate the concept of law in a culturally diverseplural society. The rejection of myths as oralevidence is an example of a belief that the lawremains temporally and spatially deferred, aphenomenon that can be illustrated with an extractfrom Kafka’s story Before the Law.

Before the law stands a doorkeeper. To thedoorkeeper there comes a man from thecountry who begs admittance to the Law. Butthe doorkeeper says that he cannot admit theman at the moment. The man, on reflection,asks if he will be allowed, then, to enter later.‘It is Possible’, answers the doorkeeper, ‘butnot at the moment.62

A popular reading of this story is that the law isbefore the peasant but it is not present; it foreverrecedes to some other place and time.63 Unless aninstitution can be duplicated it cannot have meaningin different contexts, and it is this very replicationthat opens it up to the possibility of change. In orderfor the law to be enforceable, it must be repeatable,but because the law is repeatable it is haunted by aparadox. In order to provide itself with a foundationand remain law, the law invokes self-evident truths,

God or appeals to natural law. But to quote Sokoloff,‘the paradox is that the founding moment of the lawis itself unfounded’.64 The law’s institutionalresponse to the paradox brought about by theiterability is to try and ensure that it is providedwith a univocal interpretation that is receiveduniformly. This requires an examination of how tomake the transition from a concept of law that isregarded as homogenous and universal despiteprevailing diversities, to a postmodern conceptionthat is reflective of its cultural diversity. In order tomake this transition it is important to reflect furtherupon the founding moment of law.

The history of the rise of positive law can be told indifferent ways and the history we are probably mostfamiliar with dates back to the Normans whoinitiated the process of moulding the chthonicBritish laws into state-centred, official law. A keyrole in forging this centralising of law was acquiredby lawyers and judges. England’s capacity forgradually absorbing various components into itsnational legal order through the activities of lawyershas made its history distinct from its continentalEuropean counterparts who sought refuge inRoman-inspired codification as the preferred meansof consolidating their state systems into some sortof unity.65 This has made the common law traditionremarkably distinct from the Napoleonic legaltradition and has led some commentators to arguethat common law has more potential to respond tothe demands of an ethnically plural social base.However, common law is itself sharply conditionedby culturally defining elements, and acts as aculturally homogenising institution. As Shah argues:

The balance between the chthonic and thelawyers’ laws gradually shifted over time sothat the history of the common law came tobe largely written as one of judicial decisionsthat are nationally applicable rather than asanalyses of the laws of various Britishpeoples. By the 20th Century, local customretained only a marginal status as a sourcefor the common law […] the ethno-cratic and

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61 Lisa Klopfer, ‘Oral History and Archives in the NewSouth Africa: Methodological Issues’ 52 Archivaria 100(2001).

62 Franz Kafka, The Trial (London: Penguin, 1994).63 See for example Margaret Davies, ‘Derrida and Law:

Legitimate Fictions’, in Tom Cohen ed, Jacques Derridaand the Humanities: A Critical Reader 213 (Cambridge:Cambridge University Press, 2001).

64 Kafka, note 62 above.65 Prakash Shah, Legal Pluralism in Conflict: Coping with

Cultural Diversity in Law (London: Glasshouse Press,2005).

of the history of the mixed jury is the principle ofpersonal law which sets out that the judgment of aperson must be according to the law or customs ofthat person’s community; such judgment must bemade by those with knowledge of those customs orby those who share in those customs and belong tothe same community. When communitiesincreasingly encountered the king and the law ofthe state after the 14th century, the history of theofficial doctrine of the mixed jury, as distinct fromthe tradition of its practice, began. Rather than thetraditional merging of two laws, the state graduallydeclared itself the source of law, and as it did so, theunity of tradition and practice broke apart. In otherwords, the history of the mixed jury is the story ofthe rise of official law and the decline of practice.

But within the context of this article, the history ofthe mixed jury also draws attention to the foundingmoment of the law, namely that the positivistunderstanding of the law precludes the possibilityof any law other than positive law. Anglo-Americanlegal historians view communities governed bycustom as somehow non- or pre-legal. Englishcommon law is official law, the law of the king’scourts, rather than custom. ‘The king’s lawsdeveloped against a background of local custom andthrough the centralisation of royal power developedinto a particular system of rules, with their ownrational coherence’.70 As Plucknett71 argues, ‘lawconsists in rules laid down by judicial or legislativeauthority, custom is not quite the same as law’.Custom, so argues Whitelock,72 lacks the judicialmachinery and procedure required for theproduction of law. In distinguishing custom fromlaw, the positivist conception of law is sealed,granting primacy to the law of officials in theirunderstanding of law as a system of prepositionalrules. For Hart,73 the defining moment of law orthe origin of positive law is rooted in conquest,

techno-cratic elements of the British legalorder therefore appear to combine insuppressing the influence of othertraditions.66

This becomes even more obvious when we examinethe foundation of the law through the history ofthe mixed jury. This is a history that shows so aptlyhow ‘we moderns’ approach citizenship, law andknowledge through positivism. As Constable argues:

The story of the mixed jury, from its pre-statutory practice to its statutory abolitionin 1870, is, in microcosm, a history of therise of positive law. It tells of the emergenceof a world in which the law of officialsassumes exclusive standing as law, in whichthe territorial jurisdiction of a state replacesthe principle of personality of law (that onelives and judged according to one’s own law),in which social science transforms thepractices of a people into prepositionalknowledges of norms, and in which lawsbecome an instrument of social policydirected towards the management of apopulation.67

In early examples of pre-14th century mixed juries,68

strangers or members of other communities togetherwith the natives of those who stood trial, reached aconciliation of the customs of two communities.Early juries embody a principle of personal law,whereby both non-alien and alien persons areentitled to be judged secondum legum quam vivit –or literally according to the law by which one livesor indeed by the customs of the community to whichthe person belongs. With the development of thenation-state, the alien members of a jury come to bethe alien party’s fellow citizens; in other words thelaws of the state govern those who reside within thestate’s geographical boundaries, regardless of thecustoms of the community to which a personbelongs. According to Constable,69 the significance

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66 Id., at 12.67 Marianne Constable, The Law of the Other: The Mixed Jury

and Changing Conceptions of Citizenship, Law andKnowledge 1 (Chicago: University of Chicago Press, 1994).

68 For examples, see Constable, Id.69 Id., at 25.

70 Id. at 67.71 Theodore Plucknett, A Concise History of the Common

Law 13 (Boston: Little, Brown and Company, 5th ed.1956) and Constable, note 67 above, at 168.

72 Dorothy Whitelock, ‘The Anglo-Saxon Achievement’,in C. Chevallier ed, The Norman Conquest: Its Setting andImpact 27 (London: Eyre and Spottiswoode, 1966) andConstable, note 67 above, at 169.

73 HLA Hart, The Concept of Law 112 (New York: OxfordUniversity Press, 2nd ed. 1997).

meaning that understanding law only as positive lawis an act that commits society to a law that is foundedon conquest or force of will. ‘The moment of originof positive law coincides with the moment aconqueror imposes his will on a conqueredpeople’.74

6EXCLUSIONS FROM LAW AND THENAGOYA PROTOCOL: A THEORETICALUNDERSTANDING

As established above, it is undeniable that law’sidentity lies in its positivity. However, law also gainsits identity from processes of exclusion.75 If theconcept of exclusion is firmly embedded in law’sidentity, it is important to gain a betterunderstanding of how the law draws the linebetween inclusion and exclusion. Davies76 explainsthis process of exclusion from two theoreticalviewpoints: a structural/post-structuralist theory ofmeaning and psychoanalysis.

According to structural theory, exclusion, expressedthrough difference, is an essential component ofidentity. Thus, differentiating oneself from othersforms one’s identity. This principle translates itselfin the legal domain as the identity of law beingdefined by excluding various non-legal phenomena.However, from a post-structural point of view,exclusion is not only formative of identity, it is alsosubversive of identity. Because identity is constitutedby exclusion, from a post-structuralist perspective,identity is also threatened by exclusion. Exclusionantagonises, undermines and resists law’s identity.77

As this article has illustrated above, only certainexpressions of difference are recognised in native titleclaims in order to protect the positivist identity oflaw. However, indigenous peoples have used their

culturally embedded legal expressions and evidencein the courts – narratives that are indeed initiallyexcluded from the law on the basis of being non-legal phenomena – as a way to question law’s identityand its representation in a uniform, sovereign,positivist structure. In other words, from a post-structural perspective, while exclusion initially seemsto protect the identity of law, given the subversivenature of identity, exclusion also undermines andthreatens the identity of law.

Another way Davies theorises about exclusion inthe law is through the psychoanalytical distinctionbetween foreclosure and repression.

Foreclosure refers to total exile orrepudiation; the foreclosed object is alien oroutlawed, completely exterior and beyondthe comprehension of the foreclosing entity.In contrast, repression is an internal denialor act of censure. In the case of foreclosurethe thing does not exist or cannot be seen,whereas a repressed entity may be recognised,perhaps tangentially, but is condemned orresisted.78

This distinction between foreclosure and repressionoffers a useful critical lens to further analyse therelationship between Euro-American and indigenouslaw. To reiterate, the Nagoya Protocol recognises,in Article 12 (1), customary law and communityprotocols. While the CBD’s positioning towardscustomary law was still vague and unclear, theNagoya Protocol seems to have included customarylaw as ‘formal’ law. In other words, as a result ofsocio-political and cultural pressure, the exclusionof indigenous or customary law from the formalbody of law has become untenable and as such theforeclosure of customary law has become difficultto uphold in international fora such as the CBD.For a long time, Western state law protected itsidentity through the exclusion of customary lawfrom the definition of law. The ‘object’ law couldonly maintain its position as a unifiedinstitutionalised normative system by excludingother systems of law which were characterised asnon-law. However, as this article has argued above,

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74 See Constable, note 67 above, at 85.75 Margaret Davies, ‘Exclusion and the Identity of Law’ 5

Macquarie Law Journal 5 (2005).76 Id.77 Id. 78 Id., at 9.

the idea that the law is a uniform normativeinstitution cannot be maintained because theunderlying philosophical ideas and norms that justifythis distinction between inside and outside orbetween law and non-law have been criticised bothby critical theories and emancipatory praxis.

The location of the line of exclusion isinevitably set by political and culturalconsiderations and in the contemporarycontext, recognition of a plurality of laws andconcepts of law may both be normatively(ethically) preferable and empiricallydefensible. […] Thus, the idea of an exclusivelaw defined by a clear inside/outsidedichotomy has suffered several theoreticalblows.79

Thus, a plurality of concepts of the law seems to bea newly accepted norm from a legal philosophicalpoint of view. However, from the point of view ofthe law as a subject, the issue of exclusion seems tobe more problematic and more difficult to challenge.By drawing upon Freud’s concept of repression, itbecomes obvious that the law might consider itssubjects as equally existing under the law, but thelaw might not equally recognise their subjectivity.This type of exclusion is more subtle and is a formof internal exclusion which takes the form of‘silencing the subject who does not fit thepredetermined legal stereotype’.80 To use Davies’words:

[I]t is possible to be included in a categorywhile still being excluded – one can beincluded formally and literally, yet still bedisempowered, marginalised, silenced and inpractice disenfranchised.81

While a total exclusion from the law has beenrectified and customary law has become part offormal law, a repressed exclusion from the lawbecomes more difficult to challenge because thesubject is already formally included in the law butat the same time stays excluded.

The person who is formally recognised as anequal legal subject, but poorly recognised inthe symbolic, discursive, or representationalspheres of law, is not wholly a legal outsider,but encounters resistance in their interactionswith law.82

Referring back to the previous section of this articlewherein the oral narratives of indigenous peoples asevidence in native title court cases are problematised,it becomes obvious to conclude that customary law,as expressed in narratives, finds itself in thatrepressed space of exclusion. This means that despitethe acceptance of customary law as law, in praxis,customary law is still excluded because the law’sidentity remains to be based on exclusion or indeedrepression because the subjects of the law, in thiscase indigenous peoples, remain excluded from thesocial domain.

While the Nagoya Protocol under the auspices ofthe CBD represents a major step forward in therecognition of the self-determination rights ofindigenous peoples, from both a theoretical andempirical point of view, doubts must be raised as towhat extent the Nagoya Protocol has become a legalinstrument that is based on inclusion rather thanexclusion. At this point it is useful to remind thereader again that, as this article has argued elsewhere,the Hoodia benefit sharing agreement has turned theSan’s knowledge and culture into property.

The uses and meaning of Hoodia in the San’s culturebecame defined and directed by law. Law, throughthe Hoodia benefit sharing agreement, excludedalternative narratives. Only those San voices thatwere willing to commodify Hoodia were representedin the agreement. Dissident voices that werecontesting the benefit sharing agreement wereexcluded. Often the dissident voices belonged to themost marginalised members of the community. Justlike in native title claims, San narratives were usedto subvert law’s identity. Some of the stories thatthe author of this article has recorded in the fieldwere not only narrated within the spirit to contestthe Hoodia benefit sharing agreement but also toundermine the fetishism of exclusive property rights.

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79 Id., at 13-14.80 Id., at 21.81 Id. 82 Id.

The legal regime that has been created with accessand benefit sharing agreements has been one thatsits uncomfortable with some San peoples who donot believe in the value of protecting theirbiocultural rights through a property rightsframework. Instead, they have resorted to some oftheir older narratives about food sharing betweenthe hyena, jackal and lion to show that the socialorganisation of the San or indeed their law is notbased on a regime of exclusive property rights buton an ethos of sharing and reciprocity.

The Hoodia benefit sharing agreement is an exampleof repressed exclusion. While in principle the lawaccepts customary law, de facto, the law still strugglesto accept alternative narratives. Hoodia as acommodified property is protected through thebenefit sharing agreement under the auspices of theCBD, but Hoodia as a life force that is a part of theSan’s wider cosmologies has been excluded from thatprotection. It is a narrative that remains muted andconfined to the Kalahari sand dunes because itsnarrators are not the ones who have the power inthe community to make their voice heard.

In short, from a theoretical and empirical perspective,the evidence is there to fear that the Nagoya Protocolwill be a legal tool that is based on exclusion becausethe law’s identity is based on a network of exclusions.Together with other critical legal thinkers, the authorof this article argues that for customary law to becomepart of the law, the law as a concept needs to bechallenged. It is not sufficient to pay lip service tocustomary law in the Nagoya Protocol as long as thelaw’s identity remains unchallenged. The idea of thelaw needs to be reinvented. One way of reimaginglaw is to conceptualise it as a non-identity. The bestway to do this is through a framework of pluralism.

Pluralism is the position that there is no singleconcept of law, law is multiple andheterogeneous in any community and cannotbe reduced to a single identity.

Seeing the law as a heterogeneous non-identity opensup the possibility to think about the law as a practiceof inclusion rather than exclusion. It allows for thelaw to be conceptualised as something that isinherently pluralistic.

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7CONCLUSION: A RETURN TOLEGAL PLURALISM

Within this context of legal pluralism, this articlefinds it particularly interesting to pursue further theidea of Chiba83 that legal pluralism is about the lawin conflict and the law in subjectivity. Modernjurisprudence, he argues, excludes this personalfactor because of its emphasis on the law inobjectivity. He continues:

The essential importance of the subjectiveperspective is that a person under legalpluralism is not only a passive recipient oflegal regulation but also an active agent forthe law by his/her choice of an alternativelegal rule among the plural. The choice ismade to support one of the plural standardsand to reject the other ones.84

In other words, for Chiba, legal pluralism makes itpossible for individuals to become agents of changewhen making culturally dependent subjectivechoices and as such legal pluralism allows developingconflict situations. A central point in Chiba’sargument is that it is essential to observe conflictswithin legal pluralism. How does this translatewithin the context of this article and the recognitionof the legal system of indigenous peoples?

Berman85 argues that communities react to legalpluralism or complex overlapping legal authoritiesby either re-imposing the primacy of territory-basedauthority or seeking universal harmonisation; bothstrategies are indeed familiar practices for indigenousgroups. For Berman neither sovereign territorialismnor universal harmonisation can respondsuccessfully to the hybridisation of the law and he

83 Masaji Chiba, Legal Pluralism: Toward a General Theorythrough Japanese Legal Culture (Tokyo: Tokyo UniversityPress, 1989). See also Shah, note 65 above.

84 Id., at 239.85 Paul Berman, ‘Global Legal Pluralism’ 80 Southern

California Law Review 1155 (2007).

argues, instead, that the descriptive insights of legalpluralism call for deliberately seeking to create orpreserve spaces for conflict among multiple,overlapping legal systems. People may never acquireagreement on norms but they may acquireagreement on procedural mechanisms, institutionsor practices that take hybridity seriously, rather thanignoring it through assertions of sovereignty ordissolving it through universalist imperatives.

What might make the legal establishment (includingcourts) uncomfortable with Berman’s plea forpluralism is that a pluralist approach will not providean authoritative metric for determining whosenorms prevail in this messy hybrid world, nor doesit answer the question of who gets to decide. Whatpluralism does is to challenge fundamentally bothpositivist and natural rights-based assumptions thatthere can ever be a single answer to a question. Itmight be a rather unwelcome message, but drawingon the author’s experience with the San peoples andthe Hoodia case, there is some value in Berman’sstatement. Any definitive statement as to who isauthorised to make decisions is itself inevitably opento contestation by others. A pluralist frameworksuggests a future research agenda that emphasisesmicro-interactions among different legal ornormative systems, applying pluralism to theinternational arena of cultural property rightsilluminates a broader field of enquiry than askingwhose norms prevail but instead asks scholars toconsider studying in more depth the processeswhereby normative gaps among communities arenegotiated.

What makes the concept of legal pluralismparticularly interesting in the context of the NagoyaProtocol is that it offers possibilities for thinkingabout spaces of resistance to state law or official lawbecause it examines the limits to the ideologicalpower of state law, but pluralism also frees the lawfrom an essentialist definition. The debate about lawand non-law, official law and non-official law orcommon or customary law is largely irrelevantbecause the key questions involve the normativecommitments of a community and the interactionsamong normative orders that give rise to suchcommitments, not their formal status. Legalpluralists refuse to focus solely on who has theformal authority to articulate norms or the power

to enforce them; instead, they aim to studyempirically which statements of authority tend tobe treated as binding in actual practice and by whom.This is the point where legal pluralism still has tofight its own challenges because as indigenous groupsknow all too well, political and economic powerstrongly affect how much influence any particularnormative community is likely to have. However,by broadening the scope of what counts as bindinglaw without having to engage with an endless debate,the international community can turn its attentionto examine how best to mediate the hybrid spaceswhere normative systems and communities overlapand clash. Nevertheless there remains the challengefor indigenous peoples to accept the principles ofprocedural pluralism itself which are consonant withliberal principles and may reject it on that basis.

To conclude, oral histories in the context of thestories of indigenous peoples are more than justarchives, they serve other social purposes such ascommunicating cultural traditions. If the law andthe courts are serious about accepting oral historiesas evidence, first and foremost the use of these storiesmust shift from providing factual evidence towardsthe context of the social production of these stories.As long as courts translate stories into facts we mustraise doubts whether the courts and the law are upfor translating and incorporating symbols in ameaningful way that can protect indigenous peoplesfrom further subordination from the continuedcolonial practice of the law.

As Fitzpatrick86 argues, accounts of myth inWestern scholarship are presented as characteristicsof the non-Western others and the pre-modern West.If we as an international community of criticalscholars want to tackle the problem of how toembrace non-Western framings of law, we have toconfront the supposed absence of myth in‘modernity’. The birth of the rational man andmodern law are indeed just as mythical; the portrayalof the lawless nature of the savage has been used tojustify the need for rationality and universality, butthese concepts are just as mythical as the savage’ssupposed irrationality and bestiality. Instead of

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86 Peter Fitzpatrick, The Mythology of Modern Law (London:Routledge, 1992).

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exoticising the other, the law needs to decoloniseinternally, only by ‘exotising’ its own myths can itde-exotise the other. Judging from the progress thathas been made in native title claims on this issue,unfortunately, indigenous peoples will stillempathise with Kafka’s peasant in his story Beforethe Law.87 Before the CBD stands a doorkeeper: Tothe doorkeeper there comes a man from the Kalahariwho begs admittance to the CBD. But thedoorkeeper says that he cannot admit the man atthe moment. The man, on reflection, asks if he willbe allowed, then, to enter later. ‘It is possible’,answers the doorkeeper, ‘but not at the moment’.

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87 Kafka, note 62 above.

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