Nasa Indigenous Litigation for Mother Earth: Between Malicia Indigena and Counter-Hegemonic Legal Practices

“You are mentioning human rights as a source of law but what about indigenous own laws? (...) And what are you understanding by human rights? Only the legal positive framework or also the laws of nature (la ley natural)? (...) Because for us is also about the harms to Mother Earth”.

With these words, a Nasa Indigenous lawyer questioned the use of international human rights law by the Special Jurisdiction For Peace in Colombia (JEP) – the Court in charge of resolving the cases related to the internal armed conflict, advocated for the application of Indigenous own laws and proposed a reading of the armed conflict from this perspective, underscoring the harms to Mother Earth.

The Cauca region, home of the Nasa people was particularly affected by the armed conflict. However, for the Nasa the experience of the armed conflict goes beyond the westerncentric assumptions about environmental harms and more broadly about human and nature relationships. For them, the armed conflict also impacted Uma Kiwe, Mother Earth and generated disharmonies with their territories.

Nasa lawyers before the JEP have advocated for the recognition of these counter-hegemonic views and disputed the purely environmentalist discourse. They have developed novel lawyering practices that are rooted in their own legal and knowledge system and challenge the dominant legal assumptions about the more than human world. Through a subtle combination of strategic litigation and ‘malicia indigena’, Nasa lawyers have been seeking to transform Colombia transitional justice rooted in the human rights movement and incommensurable to western thinking.

Drawing on interdisciplinary, qualitative and collaborative research with Nasa Indigenous lawyers, this article explores their differentiated lawyering practices that are grounded in Indigenous ontologies and transform the legal framework’s approaches to environmental issues while highlighting the challenge they face embedded in the traditional legal culture.