Collective legal autonomy concerning traditional ecological knowledge: the rights of indigenous peoples and their linkages to biodiversity conservation in Colombia and Australia

This thesis compares the legal status of biodiversity conservation and the recognition of the human rights of Indigenous peoples in Australia and Colombia. It argues that these two areas are legally protected interests that often collide. One interest cannot be sacrificed for the sake of the other and thus a Pareto optimal balance has to be reached. The aim of the research is to ascertain the most suitable model to achieve biodiversity conservation objectives in territories inhabited or otherwise used by Indigenous peoples. For accomplishing this aim, the thesis critically assesses the models of fortress conservation and community-based conservation (CBC), grounded in the discipline of international environmental law. It argues that the first model, based on the premise of keeping people separate to pristine wildernesses, evolved towards the more inclusive second model, which is currently considered best practice. Australia currently implements CBC and has co-management agreements with Aboriginal and Torres Strait Islander peoples for protected areas. The thesis challenges both of these models on the basis that they do not optimise both interests, and proposes a third human rights–based model, called the collective legal autonomy concerning traditional ecological knowledge (TEK). The collective legal autonomy concerning TEK is grounded in differentiated collective human rights entitled to Indigenous communities in their quality as peoples. By analysing the Colombian Constitution and the rulings of the Constitutional Court, along with case studies of Indigenous communities in the country, the thesis concludes that this human rights–based model achieves a Pareto optimal solution between the two legally protected interests of biodiversity conservation and the recognition of the rights of Indigenous peoples.