Craig, Donna; Jeffery, Michael I. --- "The Recognition and Enforcement of Indigenous Customary Law in Environmental Regimes and Natural Resource Management" [2011] ELECD 326; in Paddock, Lee; Qun, Du; Kotzé, J. Louis; Markell, L. David; Markowitz, J. Kenneth; Zaelke, Durwood (eds), "Compliance and Enforcement in Environmental Law" (Edward Elgar Publishing, 2011)

Book Title: Compliance and Enforcement in Environmental Law

Editor(s): Paddock, Lee; Qun, Du; Kotzé, J. Louis; Markell, L. David; Markowitz, J. Kenneth; Zaelke, Durwood

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448315

Section: Chapter 22

Section Title: The Recognition and Enforcement of Indigenous Customary Law in Environmental Regimes and Natural Resource Management

Author(s): Craig, Donna; Jeffery, Michael I.

Number of pages: 42

Extract:

22. The Recognition and Enforcement of
Indigenous Customary Law in
Environmental Regimes and Natural
Resource Management
Donna Craig* and Michael I. Jeffery**

1. INTRODUCTION
"Law" means a body of rules recognised by a society as binding. When a society
accepts as legitimate more than one system of rules having different sources and
in contradiction with each other, the society is said to have a polycentric,
pluralistic legal system. l Customary law comprises those sets of rules, established
through the process of socialisation, that enable members of a community to
distinguish acceptable from unacceptable behaviour and includes conventions and
usages adhered to and followed by people through generations. 2
Much more research and discussion is required on this aspect of environmental
law and the rights of local communities, Indigenous and tribal Peoples. The
primary emphasis, in most Ango-American jurisdictions, has been on research,
policy and laws relating to the recognition of customary laws in the context of
property rights and the criminal justice systems. In nations such as Australia,
where there are no treaty rights or legal recognition of Indigenous sovereignty,
recognising customary law in the sustainable use and management of resources
provides some important strategies for Indigenous peoples. The reality that
customary law can co-exist with the dominant legal system was powerfully and
successfully upheld in the Australian High Court in the Wik case. 3 Unfortunately,
subsequent cases and statutory amendments cut short this positive and promising
moment in Australian legal history.
The IUCN has published an excellent ...