European colonisation, law, and Indigenous marine dispossession: historical perspectives on the construction and entrenchment of unequal marine governance

Abstract

European colonisation played a fundamental role in Indigenous marine dispossession and the entrenchment of unequal and state-dominated marine governance regimes across diverse bodies of water. This article charts this process, utilising examples from waters and communities across the globe that experienced disparate forms of European colonisation and marine dispossession. These examples span between the sixteenth and twenty-first centuries and traverse waters from the Caribbean to Oceania. This long historical context is necessary to interrogating how colonisation has produced unequal access to marine space, resources, and decision-making in different ways through different methods across time and space, which continues to this day. One of the article’s main contentions is that marine dispossession played out vastly differently across each locale and that it is only with deep and highly localised historical study that the heterogenous impacts and ongoing legacies of colonisation on the marine rights, governance, and access of specific Indigenous Peoples and local communities can begin to be grappled with. While the rights of Indigenous Peoples and local communities to marine spaces and resources have received some affirmation within recent international legal instruments, including the protection of customary marine tenure and access to aquatic resources, there continues to be key constraints surrounding the definitions, representations, and jurisdictions of Indigenous or ‘customary’ marine rights as they have been codified or ‘recognised’ within national and interstate frameworks. This has led to fundamental challenges that need to be navigated time and time again in order to attain, claim, or protect Indigenous and ‘customary’ marine jurisdictions. As this article outlines, the emergence of these issues is intrinsically tied to the colonisation of terrestrial and marine spaces. To understand these ongoing struggles, we need to pay close attention to the deep entanglements of law, colonialism, and marine rights in the past and present.

Reflections on the past, present, and potential futures of knowledge hierarchies in ocean biodiversity governance research

“…In the process, governments perceived and constructed themselves as the ultimate custodians and stewards of marine environments, capable of making the most informed and rational decisions surrounding marine environments through a reliance on scientific research (Chirwa, 1996;Drayton, 2000;Clarke, 2007;Jennings, 2011;Breitinger, 2022). This underpinned the construction of systems-legal, political, economic, institutional, and educational-that empowered governments to assume and monopolise the rights to control and make decisions over water bodies (Anker, 2001;Tilley, 2011;Wilson, 2021;Breitinger, 2022). It is important not to overstate the efficacy of these processes, as governments regularly proved unable to manage marine environments in practice so that a pluralism of management regimes and knowledge systems remained-and remains-in practice (Beinart, 2000;Hodge, 2011;Jennings, 2011;Mbatha, 2018).…”

Living in relationship with the Ocean to transform governance in the UN Ocean Decade

“…One pathway to do so is through an Ocean-centered approach, which fundamentally is based upon governance principles that prioritize and apply the ecological needs and interests of the Ocean; in other words, a process that promotes scientists and decision-makers to shift from an anthropocentric lens to an Ocean-centered lens. Though great strides have been made since the industrial era, western governance systems have largely failed to protect the complex interactions and relationships between humankind and the Ocean, consider diverse knowledge systems, and include Indigenous, local, and coastal communities and traditional knowledge and science [ 6 , 39 – 41 ]. This disenfranchisement of scientific plurality maintains “business as usual” strategies rather than promoting shifts to imaginative and novel governance approaches to address our unbalanced relationship with the Ocean.…”

“…Importantly, more work is needed to include and amplify the agency of Indigenous and local communities, customary law, science, and other “waves of knowing” in decision-making processes, providing genuine participation in governance [ 42 ]. Fundamentally, an inclusive process will not appropriate knowledge, but will deconstruct colonial ideologies, seeking to redress historical exclusion, dispossession and disregard of Indigenous sovereign rights and Ocean-relations [ 39 , 101 , 102 ]. It is critical we not only ensure economic activity is consistent with respecting the ecological integrity of the Ocean, but also that the ecological integrity is defined outside human benefit and utility.…”

“…The persisting “heavily privatised, zoned, and securitised Ocean undermines the human-Ocean relationship” and has led to a focus on rights to exploit over responsibilities to protect and preserve [ 40 , 90 ]. In order for the Ocean to continue to support life, “a new relationship between humanity and the Ocean is required” [ 8 , 39 , 40 , 51 ].…”

The human right to a clean, healthy and sustainable ocean

“…Some groups -including women, children, older persons, persons with disabilities, Indigenous Peoples, small-scale fishers, coastal communities, and small-island developing states -routinely bear a disproportionate burden of the impacts of environmental degradation and hazards on human rights due to higher levels of vulnerability or high dependence on fisheries and seafood 8,26,27 . This is often compounded by ongoing structural marginalization of and historic dispossession of marine territories from Indigenous Peoples, small-scale fishers, and other traditional users 28,29 . Oceanrelated environmental injustices and human rights issues often emerge from, or are reinforced by the lack of inclusion of local people in decisions that will affect their lives 2 .…”