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Scott, John --- "Protecting Traditional Knowledge and the Convention on Biological Diversity" [2006] IndigLawB 40; (2006) 6(20) Indigenous Law Bulletin 17


Protecting Traditional Knowledge and the Convention on Biological Diversity

by John Scott

Introduction

Preservation of nature is at the heart of the cultures and values of Indigenous peoples. The conservation, sustainable use and equitable sharing of the benefits that nature provides - the three objectives of the Convention on Biological Diversity (‘CBD’) - are also the cornerstones of Indigenous societies. For more than 300 million Indigenous peoples, the Earth offers not only life, but is also the basis of our cultural and spiritual identities. Because it is inherited from the ancestors, and includes trans-generational obligations, it is a sacred heritage.

For millennia, Indigenous peoples have managed our traditional lands and waters, and the diversity of life contained therein, and we must be empowered to continue to do so if we are to achieve our mutual goals of conservation of biodiversity, sustainable use of its components and equitable sharing of benefits arising out of its use.

The CBD is also one of the major intergovernmental processes which recognise the dependency of Indigenous and local communities on biological diversity and the unique role of these communities in conserving life on Earth. It is for this reason that Article 8(j) of the CBD, calls on Parties to respect, preserve and maintain the knowledge, innovations and practices of Indigenous and local communities relevant for the conservation of biological diversity, to promote their wider applications with the approval of knowledge holders and to encourage equitable sharing of benefits arising out of the use of biological diversity.

Achievements to Date

When the Conference of the Parties (‘COP’) established the Working Group on Article 8(j) and Related Provisions at its fourth meeting held in Bratislava, in 1998, the COP created an instrument to translate the provisions of the Convention into reality. The Working Group can boast some notable achievements:

The Working Group on Article 8(j) has an interest in an international regime on access and benefit-sharing and has been mandated to collaborate with the Working Group on Access and Benefit Sharing. This issue was further considered by the fourth meeting of the Working Group on Access and Benefit Sharing and COP 8 (the 8th meeting of the Conference of the Parties) resulting in concrete measures to improve Indigenous participation in these proceedings.

The Conference of the Parties also decided on a review of the program of work on Article 8(j) and related provisions at its eighth meeting, held in Curitiba, Brazil in March 2006.

Update

The eighth meeting attracted large numbers of participants from Indigenous and local communities, and more than 1,000 non-governmental organisations (‘NGOs’), including 348 Indigenous organisations. The Convention hosts one of the largest gatherings of Indigenous and local communities within the international system. At this meeting, draft elements of an ethical code of conduct to ensure respect for the cultural and intellectual heritage of Indigenous and local communities relevant for the conservation and sustainable use of biological diversity were adopted.

At COP 8, the COP became the first governing body of a multilateral environmental agreement to establish a voluntary funding mechanism for Indigenous and local communities.

The COP invited international organisations to collaborate in an international expert workshop to support the Working Group on Article 8(j), the Strategic Plan of the Convention, the 2010 Biodiversity target of reducing the rate of biodiversity loss, and the Millennium Development Goals.

The COP has also instructed the Working Group on Article 8(j) to advance its mandate to develop mechanisms for effective sui generis systems of protection for traditional knowledge based on customary laws of Indigenous peoples.

Regarding the ongoing negotiations of an international regime on access and benefit-sharing of genetic resources, the COP has taken positive steps to enhance the involvement of Indigenous peoples and local communities including by encouraging the participation of Indigenous representatives in government delegations. It is expected that the next meeting on Article 8(j) will make a significant contribution to the finalisation of the negotiations.

General Overview of the Implementation of Article 8(j) and Related Provisions

Despite real achievements at an international level, much work remains to be done in implementing Article 8(j) and related provisions by the Parties to the Convention. In examining the third national reports, the only obligation of signatories to the Convention, and which is submitted on a biennial basis, the main issues of relevance to Article 8(j) and related provisions, are the status and trends regarding the traditional knowledge of Indigenous and local communities, the Akwé: Kon Guidelines, capacity building and participation of Indigenous peoples and local communities, support for implementation, the issue of genetic use restriction technologies (‘GURTS’) and participation in decision making.

It should be noted that, at the time this progress was examined (early 2006), only thirty Parties had submitted a third National Report. However, it did provide a sampling of initiatives taken by various Parties and from these I have attempted to establish broad trends.

Status and Trends Regarding the Knowledge, Innovations and Practices of Indigenous and Local Communities

This section provides an analysis of information contained in the third national reports. A limited number of projects where the government supports Indigenous peoples and local communities in undertaking field studies to determine the status, trends and threats of traditional knowledge were reported as being either implemented or under consideration by 15 out of 30 reporting countries.

Priority Allocated to Implementation of Article 8(j)

In the third national reports, Parties described the level of priority that they give to each article of the Convention. With regards to Article 8(j), nine Parties considered Article 8(j) as a high priority of work, ten considered it to be a medium priority and ten considered it a low priority. All countries that described Article 8(j) as a high priority have acknowledged Indigenous peoples or local communities, except Germany (which is an international donor country). Of the countries that ranked Article 8(j) as a low priority, none had recognised Indigenous peoples and local communities, except Morocco.

Genetic Use Restriction Technologies (‘GURTS’)

There is little direct involvement of smallholder farmers, Indigenous and local communities and other relevant stakeholders in decision-making processes related to genetic use restriction technologies. In fact, no Parties reported having comprehensive programs for GURTS in place. Twelve countries, however, have implemented and are developing participation procedures. It should be noted that at the same time COP 8, in March 2006, decided to maintain the de facto moratorium banning the use of GURTs and this was welcomed as a victory by Indigenous peoples and various NGOs.

Akwé: Kon Voluntary Guidelines

Out of thirty Reports, six described projects in their countries that have used the Akwé: Kon Guidelines. All in all, this is an extremely disappointing result and point to the inadequacies of ‘voluntary guidelines.’

Advisory Committees

Just over a third of reporting countries have established national, sub-regional and/or regional and local community biodiversity advisory committees. As well, five Parties have assisted Indigenous and local community organisations to hold regional meetings to discuss the outcomes of the decisions of the COP. There is limited support to help Indigenous and local communities in drafting their own development and biodiversity conservation plans.

Capacity Building and Participation of Indigenous and Local Communities

Most Parties discussed various initiatives undertaken, or being considered to enhance the capacity of Indigenous and local communities. For example, several mechanisms to redirect decision-making powers to the local level have been implemented. Furthermore, several projects focus on increasing the role of Indigenous and local communities in national decision-making. Many projects are aimed at increasing the managerial and organisational capacity of Indigenous and local communities in relation to the use of their traditional knowledge, innovations and practices relevant to the conservation and sustainable use of biodiversity.

Effective Participation of Indigenous Peoples in Implementation

Several countries discussed mechanisms, guidelines and legislation to foster and promote the effective participation of Indigenous and local communities in decision making, policy planning and development and implementation of the conservation and sustainable use of biodiversity at international, regional, sub-regional, national and local levels. Several countries have environmental legislation that promotes or requires participation of Indigenous or local communities. Decentralisation of decision-making legislation has also been enacted in several countries.

In Conclusion – Obstacles to Implementation

Overall, there seems to have been limited progress towards the goals of the Strategic Plan of the Convention, the 2010 Target or implementing National Biodiversity Strategies and Action Plans. However, some countries have made steps in this direction, some with important successes.

In general, it was noted that there are several challenges and obstacles facing countries in the implementation of Article 8(j). These include financial, capacity, social, political, public awareness and demographic obstacles. Parties reported that the ten most significant obstacles to implementation of Article 8(j) were the following, in order of the perceived level of challenge to implementation:

1. lack of financial, human and technical resources;
2. lack of economic incentive measures;
3. lack of public education and awareness at all levels;
4. existing scientific and traditional knowledge not fully utilised;
5. lack of adequate scientific research capacities to support all the objectives;
6. lack of horizontal cooperation among stakeholders;
7. lack of capacities for local communities;
8. lack of synergies at national and international levels;
9. lack of appropriate policies and laws; and
10. inadequate capacity to act, caused by institutional weaknesses.

* Poverty was also considered a high challenge particularly among African countries.

In general, there is no shortage of reasons for the lack of implementation of Article 8 (j) and related provisions. Although not overtly mentioned, the lack of political will to prioritise the implementation of the relevant articles remains an undercurrent throughout the work of the Convention. Parties continue to disagree on any compulsory measures – even such basic premises as prior and informed consent when accessing the traditional knowledge of Indigenous and local communities, and the need to protect traditional knowledge remain extremely contentious issues.

Indigenous peoples struggle to be re-empowered to continue what we have done for millennia – to interact with our sacred lands and waters as part of the sacred circle of life and in doing so to promote biodiversity and sustainable development. In doing so, we struggle against a global system that is built on unsustainable development and greed and tinker around the edges hoping for large-scale change. Whether this is possible will not only determine the fate of humanity, but of all of life on earth.

Mr Scott is a descendant of the Iningai people of central Queensland (Barcaldine area). They are Freshwater Murris. Currently, he is the Program Officer for Traditional Knowledge for the UN Convention on Biological Diversity.


[1] Secretariat of the Convention on Biological Diversity, Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments Regarding Developments Proposed to Take Place on, or Which are Likely to Impact on, Sacred Sites and Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities (CBD Guidelines Series) (2004) <http://www.biodiv.org/doc/ref/tk-adwe-en.pdf> at 15 August 2006.


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