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Some customary law systems work better than others. This chapter suggests that there are particular characteristics of certain customary law systems that indicate whether these systems are more likely to accomplish sustainable development objectives than other systems. The chapter focuses on a characteristic of complex systems that has received increasing attention in the literature of management, law, ecology and economics – resilience, defined as the system's ability to adapt to changing conditions. Sustainable development requires management of resources in order to ensure that they can be adequately utilized both now and in the future. The customary law systems that are most relevant to that objective are those that deal with resource management. This chapter will evaluate systems of customary law for resource management from an instrumental perspective. How can we tell whether a particular system of customary law will succeed in managing resources in a way that produces sustainable development? In other words, will a given body of customary law work in a way that meets long-range objectives? The first part of this chapter reviews the reasons why resource management systems need to be resilient. As we recognize the increased speed with which the earth's ecology, technology and social structure is changing, we recognize that any resource management system, whether or not customary in origin, needs to be capable of adaptation to a wide range of future changes in the surrounding environment if it is to operate in a sustainable manner.

These issues suggest that we need to study carefully the technical and procedural details by which customary law systems operate to identify systems that are likely to promote sustainable development. With this objective in mind, we return to the examples of customary law in Hawaii, Northern Norway and Greenland. To what extent is the customary law in these areas exhibiting the characteristics needed to maintain sustainable resources management? Hawaii: symbolism over substance Native Hawaiians have acted to protect their customary rights to gather and hunt on privately owned property through the Hawaiian court system. Their efforts have achieved notable success in the form of the Hawaii Supreme Court's recognition of a state-wide right of native Hawaiians to hunt, fish and gather on all property other than property that has been developed for private residential use. These successes have undoubtedly strengthened the self-image of the largest indigenous group living in the United States. However, the victories of the native Hawaiians have proven to be more symbolic than substantive. The ability of native Hawaiians to maintain their ethnic identity has been threatened by a decision of the United States Supreme Court in Rice v. Cayetano . The court invalidated a Hawaii statute that allowed only descendants of the races inhabiting the Hawaiian Islands before 1778 to vote for trustees of the Office of Hawaiian Affairs.

The authors of this book believe that the role customary law plays in the sustainable development of natural resources deserves more study than it has received. Too often, customary law has been dismissed as an ancient body of doctrine that is of interest only to legal historians, but customary law lives . This book looks at both the potential benefits and the potential risks that customary law may pose for sustainable development. Because neither “customary law” nor “sustainable development” is a term so familiar to most readers that it needs no definition, we will begin by defining each of these terms and explaining how they relate to each other. Sustainable development Implicit in most of western, public environmental goals for the management of natural resources is the idea that the current generation wants future generations to be able to benefit from such resources in much the same way that we have. The goal is to develop our natural resources, but to do so in a way that does not permanently destroy them. Responsible governments hope to utilize our resources in a manner that can be continued indefinitely without making future generations suffer from lack of soil, water, energy and other vital resources. This idea of “conservation” has a long history, but the use of the terms “sustainable development” and “precautionary principle” to describe it is quite new. These concepts address a key question for environmental managers: how should policies be decided in the face of scientific uncertainty?

For many nations, a key challenge is how to achieve sustainable development without a return to centralized planning. Using case studies from Greenland, Hawaii and northern Norway, this 2006 book examines whether 'bottom-up' systems such as customary law can play a critical role in achieving viable systems for managing natural resources. Customary law consists of underlying social norms that may become the acknowledged law of the land. The key to determining whether a custom constitutes customary law is whether the public acts as if the observance of the custom is legally obligated. While the use of customary law does not always produce sustainability, the study of customary methods of resource management can produce valuable insights into methods of managing resources in a sustainable way.