Tag Archives: cultural ecology

Protection of Sacred Sites – Between Legal Pluralism and Cultural Ecology

Long abstract (editor review), , , , ,

My background is in philosophy of law but I work with different academic disciplines: law, philosophy, anthropology, theology, history and economics. My approach to protection of sacred sites is interdisciplinary, multidisciplinary and cross-disciplinary. Generally, my aim is to present different theories concerning law and cultural ecology and apply these to case studies on protection of sacred sites.

Regarding the topic of protection of sacred sites, I have worked with Patrick Dillon on combining the theory of cultural ecology with the theory of legal pluralism. The idea has been to help recognise indigenous customary laws in the Arctic.  Also, it has been related to recognition of indigenous customary laws concerning sacred sites or heritage sites. We have analysed how protection of sacred sites is regulated in British Colombia (Canada) in relation to the Nisga’a people. We have also analysed how the situation looks with regard to Finland’s Sami. We made all this in the frameworks of cultural ecology and legal pluralism. This research needs continuity. Sacred sites play an important role, especially in indigenous communities. The Sami call those sites “sieidi”. They may be stones, hills, islands, etc. Sacred sites need both legal protection and social awareness.

In terms of legal pluralism, there are different normative/legal systems (customary, local, indigenous, state, European, international; written, unwritten; secular, religious, etc.). There are tensions among them as well. Legal pluralism is about a “situation in which there are at least two normative systems in the same social sphere, and there is no rule of recognition”, i.e. “which rule is more important and which rule to choose and apply”[1]. In practice, we can see tensions between, e.g., Sami old customary laws concerning natural resources management and Finnish state legal regulations. There is no way to reconcile both as there are different (personal) loyalties, interests and values involved. Only formally speaking does state law always prevail. In practice, it is much more complicated. For example, for indigenous people, their customary laws may prevail if there is a conflict with state law. It may concern, for instance, reindeer pastures, shamanism or offerings.

The Italian philosopher of law Francesco Viola thinks that legal pluralism does not regard “plurality in the order” but “of the orders”. Thus, legal orders “compete and concur” in the regulation of state of things regarding social relations of the same kind.[2] As it was pointed out in another place, “Legal pluralism is not about different normative mechanisms, which are applicable to the situation within the same legal system”[3]. There are different legal systems, e.g. a given indigenous legal system v. a given state legal system. And there is a clash of rules, values, interests.

While coming with legal pluralism into cultural ecology, how much should we refer to “relational” or “co-constitutional” ways of thinking, which is explained by cultural ecology? It is clear that “cultural ecology is concerned with the reciprocal interactions between the behaviour of people and the environments they inhabit.”[4] What is the difference between “relational” and “co-constitutional” ways of thinking? That is it: “In cultural ecological terms, a regulation emanating from a higher authority would be ‘relational’; a co-constitutional regulation would be one originating from the people as a whole”.[5] Also, as Dillon points out, “Behaving within a context is a ‘relational’ process; i.e. it is informed by previous experiences and accumulated knowledge. Relationally dependent behaviour enables distinctions to be made between one situation and another.”[6] So, e.g., Finnish state laws on public lands, reindeer husbandry, fishing waters, hunting grounds and so on will be also “relational”, as these are given by a state/higher authority, without consultation with or participation of people at the grass-roots level.

A “co-constitutional way” way of thinking might be more important for indigenous rights or protection of sacred sites. Why? A “co-constitutional” way of thinking is always related to a continuous process and development of customs/traditions. As Dillon thinks, “In addition to the relational context, unique, personal contexts are simultaneously created. These additional contexts are a property of the uniqueness of individual moments; they are literally constructed out of the ways in which individuals engage with the affordances of their environment as they exist at that time: the individual, the environment and the context all co-construct each other. This is called a ‘co-constitutional’ process (…)”.[7] A “co-constitutional” way of thinking will be related to processes of making customary laws concerning, e.g., protection of sacred sites. Such laws were developed by generations, in keeping up with traditions and with respect for holy places such as sacred sites. The current Western  legislator is not able to realize it, at least to a greater extent. But, for instance, indigenous people or local people that are deeply rooted in the traditions of their ancestors and histories/stories/narratives of their local “fatherlands”, are able to understand the distinction between both ways of thinking.

Let us take some examples/case studies from Canada and Finland in the context of protection of sacred sites. The Nisga’a people are aboriginal people living in British Columbia, Canada. They have an agreement with the federal government. This is The Nisga’a Final Agreement of 1999.[8] It is a part of Canadian constitutional law. Among many states of things regulated by this treaty, such as self-determination, self-government, land rights, natural resources management, jurisdiction and the police, the treaty also regulates protection of sacred sites. First, chapter 1 (“Definitions”) of the Nisga’a Final Agreement defines ‘heritage sites’ as including ‘archaeological, burial, historical, and sacred sites’. Second, paragraph 36 (‘Protection of Heritage Sites’) of chapter 17 (‘Cultural Artifacts and Heritage’) establishes that Nisga’a Government “will develop processes to manage heritage site on Nisga’a Lands in order to preserve the heritage values associated with those sites from proposed land and resource activities that may affect those sites”. It looks like the Nisga’s are “lords” in their own territories when it comes to protection of their sacred sites. They know better what such places are and how to care for them, also in a spiritual way, which is not understood by contemporary atheistic or secular societies. Broadly, it is also a matter of natural resources management. For example, when a mining company wants to operate in the Nisga’a territories, the company must receive a permit from the Nisga’a.

In comparison, in Finland, there in no such agreement between the Sami people as an indigenous people and the central government. The Sami people are still struggling for some decent level of self-determination in Finland. Their Sami Parliament is only an advisory body and seems located quite low in the Finnish constitutional system. Instead, when it comes to protection of sacred sites, there is some old-fashioned law concerning protection of antiquities (The Antiquities Act of 1963[ix]). However, this law is not particularly dedicated to protect sacred sites of the Sami people. In practice, sacred sites of those indigenous peoples are often destroyed by tourists in Finnish Lapland and there are no criminal consequences in such cases. Paradoxically, despite the good results of the Finnish educational system in the world rankings of education, social awareness concerning protection of sacred sites, especially the sacred sites of the Sami people, is rather low.

Generally, while analysing the Finnish law and the Finnish policy towards the Sami, as well the Finnish government’s correspondence with UN bodies in the field of human rights and the Sami, we must notice that “The Sami are not lords in their own country.”[10] The same might be said about protection of sacred sites of the Sami people in Finnish Lapland. The Sami are not legally responsible for this area of social life, according to Finnish law.

A comparative approach might be inspiring for future research about sacred sites. The “Canadian model”, which is based on the idea of both self-determination of aboriginal peoples and recognition of indigenous customary (land) laws/rights, might be relevant for Finland.  The Nisga’a people are legally responsible for the protection of sacred sites in their territories. This seems inspiring. Of course, not everywhere in Canada the situation is so advanced, but this model shows some possibilities for the legislator in Finland in the field of protection of sacred sites.

The framework of legal pluralism and cultural ecology helps us understand that the Western legislator often is to depreciate “the soul of the land”, i.e. sacred sites, especially those of indigenous peoples. This Western ignorance brings not only social conflicts, more misunderstanding and personal pain, but also shows arrogance. Traditionally, in indigenous cosmologies, lands are both material and spiritual entities. There are “the masters of the places” (spirits) there. These places are special in every possible sense then. This is about both nature and divinity. It is a time to understand this spiritual approach and help protect sacred sites. One can combine both “relational” and “co-constitutional” ways of thinking, recognising indigenous rights and customary laws by state law and in state jurisdictions.

Endnotes

[1] D. Bunikowski, Indigenous peoples, their rights and customary laws in the North: the case of the Sámi people, [in:] East meets North – Crossing the borders of the Arctic, ed. by M. Lähteenmäki, A. Colpaert, Nordia Geographical Publications, 43(1), Yearbook 2014, Oulu, p. 77. See also: D. Bunikowski, P. Dillon, Arguments from cultural ecology and legal pluralism for recognising indigenous customary law in the Arctic, [in:] Experiencing and Safeguarding the Sacred in the Arctic: Sacred Natural Sites, Cultural Landscapes and Indigenous Peoples’ Rights, ed. by L. Heinämäki, T. Herrmann, Springer 2017, Cham, p. 41.

[2] F. Viola, The rule of law in legal pluralism, [in:] Law and legal cultures in the 21st century, ed. by T. Gizbert-Studnicki, J. Stelmach, Kluwer 2007, Warsaw, p. 109. See also: D. Bunikowski, P. Dillon, 2017, p. 41.

[3] D. Bunikowski, P. Dillon, 2017, s. 41.

[4] Ibidem, s. 38.

[5] P. Dillon, D. Bunikowski, A framework for location-sensitive governance as a contribution to developing inclusivity and sustainable lifestyles with particular reference to the Arctic, Current Developments in Arctic Law, vol. 5 (2017), ed. by K. Hossain, A. Petrétei, Rovaniemi 2017, p. 18, footnote 2.

[6] D. Bunikowski, P. Dillon, 2017, p. 39.

[7] Ibidem.

[8] The Nisga’a Final Agreement of 1999. http://www.nnkn.ca/files/u28/nis-eng.pdf. Cited 8 Nov 2014.

[9] Antiquities Act, 1963, http://nwfp-policies.efi.int/wiki/Antiquities_Act,_1963_(Finland). Available 6 April 2022.

[10] See more: D. Bunikowski, Notes on the contemporary legal-political situation of the Sami in the Nordic region, Current Developments in Arctic Law, vol. 2 (2014), ed. by T. Koivurova, W. Hasanat, Rovaniemi 2014, pp. 20-25.

Sacred Places as Cultural Ecologies: Making space for the intangible

Long abstract (editor review), , ,

Sacred places take many forms and are experienced and understood in many different ways. There are no fixed definitions. For me, a sacred place is somewhere that is recognised for its spiritual significance, usually because of the way people engage with it through ceremony, worship of a deity, or acts of homage. It may be a large tract of landscape or a modest or prominent feature within a landscape. It may have cross-cultural significance or it may be important to a small number of people. Sacred places have physical presence, but their spiritual dimensions are intangible. Continuity in a sacred place may manifest as resilient living and working practices and/or ceremonies or rituals associated with it and passed on from generation to generation. But these are not static relationships, each generation remakes its beliefs and values and ‘sacredness’ is continually re-structured and re-enacted.

I approach sacred places as ‘cultural ecologies’. Cultural ecology is concerned with transactional relationships between people and the environments they inhabit. It offers a framework for looking at how people experience the world and how they come to understand it, and how through the acts of living and working people shape the environment around them and are shaped by it. Cultural ecology provides a lens on the processes of continuity and change that give rise to cultural patterns and cultural traditions.

One strand of my research in cultural ecology has been in collaboration with law scholar Dawid Bunikowski who has expertise in legal pluralism. We developed a framework that integrated cultural ecology and legal pluralism, which we see as complementary approaches at a theoretical level, to provide a basis for making a case for ‘indigenous customary law’. Indigenous customary law supports both moral and legal claims concerning recognition of customary land rights and land management. It asks questions about a range of state institutions, from social welfare and education to fiscal policy, and the extent to which they empower people locally. Indigenous customary law is compatible with the notion of ‘judicial activism’, of people engaging in decisions about how resources are used so that they can serve the common good locally. We made our case primarily in the context of the Sámi people of northern Europe and the Nisga’a people in Canada where different models of legal pluralism have been enacted.

Although I have spent some years living and working in Finland and undertaking study visits to Lapland, I know the Arctic only as an informed visitor. The chapter that Bunikowski and I wrote for a book on indigenous customary law proposed an integrated framework with the conviction that it could be developed into something that had practical utility. We drew on cases from Sámi and Nisga’a cultures because they offered the most informative examples addressing some of the contentious issues around locality, resources and the rights and responsibilities of indigenous people and how these are reflected in statutory and customary laws[1]

New questions arose when I joined the Sacred Sites group, convened by Francis Joy at the University of Lapland, with its focus on relationships between sacred places, heritage and forms of land-use in the Arctic. What makes a place sacred? To whom is it sacred? Should these places be ‘protected’ and, if so, what legal status would they have? What is it that we actually ‘protect’? Who should exercise rights over them? What responsibilities would the wider community have towards them? How would any legal framework be generated? These matters are important to all indigenous peoples. Increasingly, places that are sacred to the Sámi of northern Europe are threatened by mining or desecration by inconsiderate tourists. Does the integrated cultural ecology/legal pluralism framework that Bunikowski and I produced have anything to say about these matters?

By way of a preamble, I will explain a little about my homeland, the Wessex chalklands of central southern England. This is a landscape rich with prehistoric monuments. My extended family have lived and worked in the region for generations. They have a deep commitment to the landscape. The chalklands are now intensively farmed, but they are also places where the presence of the monuments imparts cultural and spiritual significance. The concept of ‘sacred’ is no longer used but there are special places.

The Uffington White Horse is one of them. It is a huge piece of land art, a ‘hill figure’ or ’geoglyph’, some 110 metres long, an abstracted shape built into the turf of a spectacular stretch of escarpment overlooking the Upper Thames Valley (figure 1). Archaeological research has shown the White Horse to date from the late Bronze Age, which makes it around three and a half thousand years old. People who constructed it approximately one hundred generations ago where closer to nature and their environmental sensitivities were different from those of people today. The original context is lost, and can never be recovered. Given that the Horse needs regular maintenance to prevent it being overwhelmed by vegetation, its survival is remarkable. The historical story is about a continual re-making of place. The monument survives, but the inter-generational changes in the way people engaged with it leave little trace.

Figure 1. Uffington White Horse Hill, oil on board, (84 x 60 cm), Anna Dillon, (2010).

The White Horse and a large area of surrounding landscape is now managed by the National Trust as a public amenity. It is a scheduled ancient monument which means it has statutory protection. The area is managed as sheep-grazed grassland. Typically, when legal status is assigned to a place deemed to be culturally or historically important, it is ‘protective’ of the material fabric of the ‘site’, often known as its ‘tangible heritage’. Legal status may also confer rights on individuals or groups for access and for the performance of certain acts. The White Horse attracts tens of thousands of visitors a year. Most of them want a day out in the attractive countryside. Some people maintain a spiritual connection, often choosing quite times to engage with the Horse ‘in the moment’, in whatever ways that are meaningful to them.  Others express their connections through art, music and writing.

Herein lies a dilemma. Legal protection means a place becomes part of an institutional bureaucracy, a ‘site’ that appears on a map and requires a management plan. The more it is publicized, the more it attracts visitors and the more its ‘sacredness’ is compromised. Without protection, it is at risk from development or exploitation. The White Horse is ‘protected’, but other places in the Wessex Chalklands of lesser historical significance are being overrun by extensive, poorly planned, urban development. This is the equivalent of the disruption to traditional ways of living and working caused by mining in the Arctic. People everywhere living within the tradition of the landscape face similar problems, it is only the detail that differs.

‘Sacredness’ is something intangible, without a physical presence, that connects an individual or a group to a particular place. It might be generalised as a fluid accommodation between the intrinsic and extrinsic qualities of place and the beliefs and values of the people who engage with it. But generalisations translate into tangible frameworks that are abstracted from lived experience. In law they require specification and become rule-based. One can see how the framework proposed by Bunikowski and myself might have some utility in combining statutory and customary elements in regulating tangible matters concerning hunting, fishing and reindeer herding in the Arctic, and equivalent matters elsewhere. However, there is more to the sacred and intangible; it is not a fixed entity and it sits uncomfortably in a world of classification, specification and order.

The sacredness of any one place is unique to that place, but everywhere there is the challenge of ensuring that the agency of the sacred is integral to creating conditions conducive to maintaining the possibility of sacredness. We can learn from each other’s experiences. Cross-cultural discourse and sharing offer starting points: exploring processes of continuity and change; finding an appropriate ‘voice’ to approach sacredness; understanding what can and cannot be ‘protected’ and the implications of any actions taken.

References

Miles, D. 2019. The Land of the White Horse. London: Thames & Hudson.

Endnotes

[1] Bunikowski, D. & Dillon, P. 2017. Arguments from cultural ecology and legal pluralism for recognising indigenous customary law in the Arctic, pp.37-64 in L. Heinamäki, & T. Herrmann & (Eds) Experiencing and Protecting Sacred Natural Sites of Sámi and other Indigenous Peoples, Dordrecht, The Netherlands: Springer.