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customary use and customary law [#360]
The Forest Peoples Programme has carried out six case studies on 10c in close collaboration with indigenous peoples and traditional resources users during the past 4 years. Through this work, we have tried to explain in simple words what these terms mean. The following definitions (still to be considered work in progress) has emerged:
- Customary use: what people do, and how they use resources, according to customs developed over centuries (or millennia), in their daily interaction with the environment.
- Customary law: how people regulate what they do; a collection of laws and regulations established by custom and may includes (among others): rights, rules, norms, responsibilities, institutions, values and beliefs developed by the community over time. It covers (among others) notions of land and property; organization of time and labour; how they conceive social structures and institutions in order to carry something out; how social rules and regulations are developed, what happens when somebody break the rules, how power is shared and exercised, and how all this relates to spiritual life and beliefs.

There is therefore a very close relationship between customary use and customary law: the way resources are customarily used is closely linked to locally developed laws and regulations deeply embedded in values and beliefs that evolved through centuries or millennia of interaction with particular ecosystems and locales.
posted on 2009-02-17 17:52 UTC by Dr Maurizio Ferrari, Forest Peoples Programme
RE: customary use and customary law [#368]
Je suis tout à fait d'accord avec vous. Le droit coutumier est un droit contraignant de tradition orale, formé par l'usage au sein d'une population locale au fil du temps et qui sont les coutumes. Alors que l'usage coutumier est régit par le droit coutumier.
(edited on 2009-02-25 14:27 UTC by Mr. Mostafa Madbouhi, Morocco)
posted on 2009-02-25 14:19 UTC by Mr. Mostafa Madbouhi, Morocco
RE: customary use and customary law [#386]
The terminology here gives me an un-easy feeling. There are obviously indigenous peoples that have clear local rules, laws and regulations, established through a structured system of authority.

But there are also indigenous peoples that do not have formal rules, laws and regulations. There may or may not be a formal structure of authority that would be recognizable to western peoples.

For indigenous peoples that operate in a non-authoritarian consensus mode in their traditional groups, the term that I would say fits best are "customary practices". These are usually passed on during teaching of young persons before they have their own children. For example, everybody in an extended family will be taught the proper ways to hunt, and they just carry on that way. When decisions need to be made, the senior hunter(s) and elders, or all members of a group, may have some role to play. Through consensus, all members may be collectively responsible for the decision and everybody comes to understand what needs to be done.
The customary practices may or may not differ between extended families, and roles in decision-making may differ somewhat.

For example, Inuit generally do not hunt caribou while the animals are on the calving grounds, but there are statements by some Inuit that Inuit in other areas do not follow that practice because they have follow different practices.

In many cases, an indigenous person may not be able to state a rule that governs accepted practice. It may be difficult to relay all the knowledge and related issues that allows the person to know how to behave apprpriately and how not to behave inappropriately in any specific situation.

My point is that when we speak to western peoples of customary rules, laws, authority structures, etc. among indigenous peoples, many of them will not understand or accept all the variations that may be practiced by indigenous peoples around the world. Thus western governments may not accept that their indigenous peoples have customary  laws.

This becomes a major problem in co-management because the government side will expect clearly stated rules that apply to all, and that is often not possible for indigenous people.

"Customary practices" may be more suitable when communicating with government. 

After all, we seem to accept that doctors know how to "practice" within their profession, without most of us knowing the exact rules that they follow while doing so.

In the same way, indigenous peoples use their ancestral and current knowledge and customs to practice in appropriate ways when dealing with nature.
(edited on 2009-03-10 04:56 UTC by Dr. Michael Ferguson, NordEco)
posted on 2009-03-10 04:44 UTC by Dr. Michael Ferguson, NordEco
RE: customary use and customary law [#395]
Dear Michael
I understand your point, but by rules and customary law we do not mean ‘written rules set in stone’. In many cases, these are oral rules passed down from generation to generation through practices and may change in response to changing social and environmental conditions. In your examples of the caribou, we could say that the Inuit practice different rules about hunting them in different areas. If Western people (and most governments) find it difficult to accept the variety of customary rules and laws practiced around the world, that’s because of their uni-dimensional (Western-centric) interpretation of the world; we should help them to broaden their horizon and understanding of the world.
posted on 2009-03-11 16:49 UTC by Dr Maurizio Ferrari, Forest Peoples Programme