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International Biopiracy Protocol: Protecting the Rights of Indigenous Peoples




Jennifer Tauli Corpuz

December 2009

International Biopiracy Protocol: Protecting the Rights of Indigenous Peoples

Since indigenous peoples hold, nurture and use a wealth of traditional knowledge related to biodiversity, it is of paramount interest to ensure that their rights are protected. While the draft document that emerged from the latest international negotiations in Montreal is promising, the challenge, says Jennifer Tauli Corpuz, is to ensure that the rights are recognised and protected and are not watered down.

Enter the Montreal Annex

IN terms of tangible output, the Montreal Annex is the crowning achievement of the 8th meeting of the Working Group on Access and Benefit-sharing (WGABS), held in Montreal from 9-15 November. Through this annex, the international regime (IR) on access and benefit-sharing (ABS) is, for the first time, contained in a single document that will be the focus of further negotiations at the 9th meeting of the ABS working group in Cartagena in March 2010.

Peppered with thousands of brackets in its 57 pages, the Montreal Annex is far from the ideal finished document, however. Based on past experience, as when the Cartagena Protocol on Biosafety (40 Articles in 25 pages) and the Bonn Guidelines on ABS (61 Articles in 17 pages) were negotiated and adopted, the Montreal Annex is likely to be drastically shortened before it is sent for adoption at the 10th Meeting of the CBD Conference of the Parties (COP-10) in Japan in October 2010 as a possible Nagoya Protocol on ABS.

The document contains a range of options reflecting the positions of the major negotiating groups, hence its length. Though considered observers in the formal structure of the Convention on Biological Diversity (CBD), indigenous peoples have through the years established a certain status in the  ABS discussions that enables a high degree of participation in the negotiations, though not as full negotiators (indigenous proposals have to be sponsored by a State Party to the CBD, for example).  Therefore, the Annex does contain the basic principles and elements that would ensure indigenous peoples' rights are respected in the international regime. The challenge, of course, is how to retain this language in the final text.

Indigenous peoples' participation in the CBD and ABS negotiations

Indigenous peoples have been present in CBD meetings since the Convention's adoption in 1992. The establishment in 1996 of the Working Group on Article 8(j) and Related Provisions (WG8J), whose main mandate is to provide advice on the application and development of legal and other appropriate forms of protection for the knowledge, innovations and practices of indigenous and local communities, solidified the presence of indigenous peoples in CBD discussions.

The 8(j) working group is unique in the participatory mechanisms it has evolved for indigenous peoples, who participate in WGABS and WG8J meetings as a caucus called the International Indigenous Forum on Biodiversity (IIFB). For instance, the IIFB is allowed to elect co-chairs for the working group plenary, as well as for sub-working groups and contact groups; indigenous representatives from each of the world's seven indigenous regions participate in Bureau meetings as 'Friends of the Bureau'; financial (through the CBD Voluntary Fund for Indigenous and Local Communities), administrative, and logistical support is provided to enable full and effective participation in working group meetings; and indigenous peoples are allowed to speak in the working group meetings like State Parties.

When the CBD commenced work on ABS by deciding to establish a regionally-balanced expert panel on ABS in 1998, indigenous peoples did not enjoy the same level of participation that they do at present. At the first meeting of the ABS working group in 2001, not many indigenous representatives attended. When the ABS IR negotiations were launched in 2004 at the insistence of developing countries, the IIFB had not yet decided whether it would be a good idea for indigenous peoples to participate in the process. Some feared that participation in ABS negotiations might trap indigenous peoples in a legal framework that would force them to grant access to their knowledge and resources. However, at the 4th meeting of the 8(j) working group on ABS in Granada in 2006, the IIFB had finally decided to actively participate in the negotiations as the opportunity to get an ABS international regime to respect indigenous peoples' rights to their knowledge and resources presented a better alternative to allowing the status quo of business-as-usual biopiracy to continue unabated.

At the Granada meeting in 2006, the relationship between WG8J and WGABS was formally established. Considering that traditional knowledge (TK) is an area of overlap in the mandate of both working groups, and frustrated by the slow pace of negotiations on ABS, indigenous representatives with the support of some developing countries proposed to allow WG8J to discuss and/or negotiate TK in relation to ABS, in order to assist and hopefully speed up the negotiation process. Thus, COP-8 in Curitiba (March 2006) requested WG8J to 'contribute' to the mandate of WGABS. Part of the request was the holding  of back-to-back meetings of both working groups.

In the period between  the 4th and 6th meetings of WG8J from 2006 to 2009, the relationship between the two working groups was not smooth sailing. Anticipating the birth of the relationship between the two working groups, many ABS negotiators had attended the Granada WG8J meeting. They were surprised at the unique working method of the 8(j) working group, particularly the high level of participation of indigenous peoples at the meeting. Some initially protested this unprecedented modus operandi, but after some time the ABS negotiators were able to understand and accept it.

The highly-charged and adversarial atmosphere at the back-to-back meetings of the two working groups in October 2007 in Montreal did not bode well for their relationship. The 5th meeting of the 8(j) working  group did not reach agreement on inputs to the ABS negotiations, hence no transmission of views was made to the 5th meeting of the ABS working group.

The tide was set to turn, however, when the 6th meeting of the 8(j) working group began in Montreal in 2009. Enjoying the highest number of indigenous delegates to date (almost 70 indigenous and local community delegates attended), WG8J-6 was set to make history by successfully transmitting views on the ABS IR negotiations to the 8th meeting of the ABS working group. In fact, indigenous delegates at WG8J-6 were surprised when Parties took the relationship between the two working groups a step further by envisioning a post-IR adoption scenario, proposing that a revitalised programme of work of WG8J should continue to include ABS, with some even suggesting that ABS should be the main focus.

Friendliest and most cooperative 8(j) and ABS working group meetings

With the successful transmission of views on the ABS IR to the 8th meeting of the ABS working group, the 6th meeting of the 8(j) working group succeeded where its 5th meeting had miserably failed. The WG8J-6 deliberations on TK in the context of the ABS IR were very positive, resulting in great advances on what indigenous peoples hope will form the bulk of the international regime's text on traditional knowledge associated with genetic resources. The quick progress can be attributed to both the able and creative leadership of the contact group co-chairs (Damaso Luna of Mexico and Merle Alexander of the IIFB) as well as the ample preparation and effective participation of indigenous peoples throughout the entire process.

The groundwork for this successful outcome had been laid at COP-9 in Bonn in 2008, which had instructed the ABS working group to 'complete the elaboration and negotiation of the international regime on access and benefit sharing at the earliest time before' COP-10 in Nagoya in October 2010. In order to fulfil this mandate, the COP designated co-chairs Fernando Casas of Colombia and Timothy Hodges of Canada to steer the process until its completion, and devised an ABS 'roadmap' to Nagoya. The roadmap includes three ABS working group meetings before COP-10, as well as meetings of three distinct groups of technical and legal experts (GTLEs) on Concepts, Terms, Working Definitions and Sectoral Approaches, on Compliance, and on Traditional Knowledge Associated with Genetic Resources, also mandated to meet before COP-10.

The IIFB was able to successfully negotiate that two indigenous representatives be allowed to attend the GTLE on Concepts, Terms, Working Definitions and Sectoral Approaches in Windhoek in December 2008 and the GTLE on Compliance in Tokyo in January 2009. For the GTLE on Traditional Knowledge Associated with Genetic Resources, held in Hyderabad in June 2009, there was wide acknowledgment that indigenous participation would be important, so seven indigenous representatives, one from each indigenous region, were invited to attend. Governments were also encouraged to nominate indigenous persons as their representatives to the GTLE on TK. This composition of the GTLE on TK was key to developing language that would be later considered by both WG8J-6 and WGABS-8.

Supportive governments also helped indigenous delegates prepare for the GTLE on TK (at a workshop in Vienna, sponsored by the Austrian government) and consolidate the outcomes of the GTLE into operational text (at a workshop in Vilm, sponsored by the German government). Throughout these processes, a good working relationship was built between indigenous representatives and African government delegates, another key connection that contributed to the successful outcomes at WG8J-6 and WGABS-8 for indigenous peoples.

Outstanding issues for indigenous peoples

Though the Montreal Annex does contain basic principles and elements that would ensure indigenous peoples' rights are respected in the international regime, the challenge is now to identify these principles and elements and lobby for support for the retention of this language in the final text.

The main outstanding issues for indigenous peoples would be the cross-cutting nature of TK, the inseparability of TK and genetic/biological resources, the relationship between Article 8(j) and Article 15 of the CBD, the requirement for free, prior and informed consent (FPIC) of indigenous peoples whenever their TK and/or genetic resources are accessed, full and effective participation in negotiating mutually agreed terms (MAT) whenever access is granted, use of the term 'indigenous peoples and local communities' instead of the amorphous CBD term 'indigenous and local communities', as well as general statements or preambular text on 'non-diminishment' of rights and recognition of the rights of indigenous peoples in the international regime.

In the early stages of the negotiations, States sought to separate the treatment of traditional knowledge from genetic resources, implying that States have sole right over genetic resources while indigenous peoples have rights only over their traditional knowledge. This is the reason why the Annex to the COP-9 decision on ABS, containing the outline and main headings of the international regime, contained a separate chapter on 'traditional knowledge associated with genetic resources'.

As the discussions progressed, however, particularly at the GTLE on TK, many began to realise that traditional knowledge (TK) and genetic resources (GR) are inseparable, a conclusion supported by the 6th meeting of the 8(j) working group and contained in the views it transmitted to WGABS-8. In discussing the relationship between TK and GR, it was pointed out that most though not all GR have associated TK, and whenever there is TK associated with GR, they are inseparable. Moreover, TK often provides the lead to GR, and even if the end-product does not match the TK, such TK remains associated to that product and should still be covered by the international regime. Indigenous peoples along with the African Group also supported a broader concept of biological resources, which more accurately reflects the holistic views of indigenous peoples and local communities, rather than the more limited term 'genetic resources'.

An important implication of the inseparability of TK and GR, as pointed out in an IIFB statement delivered during the plenary, is how to treat TK and the rights of indigenous peoples to such TK in the structure of the text of the international regime. The IIFB and most Parties recognised that TK should be treated as cross-cutting, and as such should be reflected in every relevant main component of the regime, specifically 'fair and equitable benefit sharing', 'access to genetic resources', 'compliance' and 'capacity building'. In addition, the IIFB favours a cross-cutting approach, while retaining a separate chapter on TK that deals specifically with FPIC and community-level procedures as distinct from government procedures. This will pertain to the distinct obligations of parties under Article 8(j), which seeks to protect all TK of indigenous peoples, thus requiring FPIC before access to indigenous peoples' TK is granted, as distinct from Article 15 of the CBD, which grants governments authority to determine access to genetic resources.

The ABS co-chairs did not rule on the proposal of the IIFB on the treatment of TK in the text of the international regime, however, leaving it to the next ABS meeting at Cartagena in March 2010 to decide. In order to clarify the proposal in practical terms, the IIFB undertook to draft specific operational text reflecting exactly how indigenous peoples want TK to be treated in the international regime, to be presented for consideration at meetings subsequent to WGABS-8.

Indigenous peoples' rights

An extremely crucial outstanding issue for indigenous peoples is the recognition that indigenous peoples have rights to their traditional knowledge and it is they who have the authority to determine access to their TK through an FPIC process. It is a minimum demand of indigenous peoples that there be a clear and unqualified provision in the international regime that indigenous peoples have a right to grant or withhold consent whenever their traditional knowledge is accessed.

Moreover, international law and many national legal frameworks recognise that indigenous peoples own genetic resources within their territories. Whenever indigenous peoples are the acknowledged owners of their GR, their FPIC must be required  before access to the GR can be granted.

The use of the term 'indigenous peoples and local communities' has been a recurring demand from indigenous peoples that has so far not been acknowledged by the CBD. This demand has been dealt with by privileging the use of the term 'indigenous and local communities', which is the language of the Convention. However, the decisions coming out of COP-9 do use the term 'indigenous peoples' in 11 distinct instances. The IIFB interpreted this bold step by the COP as recognition of the universal acceptance of the term 'indigenous peoples' by the United Nations system and many national legal systems, which culminated in the adoption of the UN Declaration on the Rights of Indigenous Peoples by the UN General Assembly on 13 September 2007.

As the ABS negotiations progress, and the need to clarify rights of particular groups of peoples becomes important, there will be a need to address this issue. This is because, while both indigenous peoples and local communities hold rights to traditional knowledge, and in some instances genetic resources, these rights are not exactly the same and will need to be spelled out in more detail.

Finally, though the ABS co-chairs have declared that the 'door has closed' for any new text proposals on the main components of the international regime, there is still a window open for text that would assist in achieving consensus on the existing text, as well as preambular text, definitions, institutional and implementing provisions, and final clauses that would complete the international regime text. In this regard, indigenous peoples consider it important that the IR contain a statement of the general principle that 'parties shall uphold the right of indigenous peoples and local communities whenever there is access to or use of their genetic resources and/or associated traditional knowledge.'

Indigenous peoples have fought long and hard for gains in the recognition of their rights in various national, regional, and international fora. The United Nations human rights bodies, in particular, have made great advances in the recognition of the rights of indigenous peoples. All these gains must be recognised by the international regime on ABS, through the inclusion of a non-diminishment clause in the regime text, to the effect that 'Nothing in this Protocol may be construed as diminishing or extinguishing the rights that indigenous peoples have now or may acquire in the future.' This proposed preambular clause is fully consistent with Article 3 of the Convention which subjects rights of States under the CBD to 'the Charter of the United Nations and the principles of international law'.

The challenges ahead

There is much to be done by indigenous peoples in order to prepare for the upcoming formal and informal inter-sessional meetings. While indigenous peoples are allowed to participate in two upcoming informal inter-sessional meetings (a 'Friends of the Co-chairs' meeting in late January or early February 2010, and a Co-chairs Inter-regional Inter-sessional Consultation prior to WGABS-9 in Cartagena in March 2010), their participation can only be full and effective with the proper preparation.

Strategising and drafting of relevant documents are important, but more important is the ability to build relationships and foster understanding between indigenous negotiators and major negotiating groups of States on indigenous peoples' positions. This will be the key to whether an international ABS regime can indeed protect indigenous peoples' rights or not.

Jennifer Tauli Corpuz, who is a member of the Kankana-ey indigenous people of the Philippines, is Legal Desk Coordinator at Tebtebba Foundation (Indigenous Peoples' International Centre for Policy Research and Education).


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