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Indigenous Peoples and Local Communities in the Articles of the Convention:

The Dilemmas Confronting Indigenous Peoples and Local Communities
Indigenous Peoples and Local Communities Participation in Convention processes
The International Indigenous Forum on Biodiversity (IIFB)
Progress Since COP5

One of the central problems surrounding the conservation and sustainable use of biodiversity is the relative poverty of western scientific knowledge surrounding life-forms and ecological processes. Enhancing western scientific knowledge of biodiversity, and in particular of genetic resources, is also of critical concern to governments and the biotechnology industry seeking to develop new forms of agricultural, medical, industrial and other products, such as cosmetics. The importance of the economic dimensions of biodiversity is reflected in the fact that the world-wide market for such products is roughly estimated at between US$500-800 billion per year . [1]

Furthermore, innovations in the development of new agricultural, medicinal and other products have long been critically dependent upon traditional knowledge in order to identify potentially useful species and genetic resources for commercial development . [2]

The Convention recognises the roles of indigenous peoples and local communities in the conservation, sustainable use and commercial exploitation of biodiversity in the Preamble to the Convention and a series of Articles which are commonly referred to as "Article 8(j) and related provisions".

The Preamble:

" Recognizing the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components,

Recognizing also the vital role that women play in the conservation and sustainable use of biological diversity and affirming the need for the full participation of women at all levels of policy-making and implementation for biological diversity conservation."

Article 8(j): Traditional Knowledge ( In-situ conservation)

Article 8(j) of the Convention is concerned with the role of knowledge within in situ conservation and reads as follows:

"Each Contracting Party shall, as far as possible and as appropriate:

(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices."

Further reference to indigenous and local communities and to their traditional knowledge, innovations and practices are made within a series of articles referred to as "related provisions", and "closely linked" articles concerned with sustainable use, access to genetic resources, technology transfers, information, scientific cooperation and biosafety. Articles 10 (c), 17 (2) and 18 (4) are formally classed as related provisions within the Handbook of the Convention and Articles 15, 16, 17(2), 18(4) and 19 are described as "closely linked".

Article 10: Sustainable Use

Article 10 (c) of the Convention is concerned with the issue of sustainable use and read as follows:

"Each Contracting Party, shall, as far as possible and as appropriate:

(c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements." [3]

Article 15: Access to Genetic Resources

Article 15 recognises state sovereignty over natural resources and that "authority to determine access to genetic resources rests with the national government and is subject to national legislation" (Art. 15 (1)). The Article also sets out that each Party will "facilitate access to genetic resources for environmentally sound uses" and not impose restrictions which are counter to the objectives of the Convention (Art. 15 (2)). The Article then establishes that access to genetic resources should "be on mutually agreed terms", and "shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party" (Art. 15 (4) and 15 (5)).

Article 15 (7) establishes that:

"Each contracting Party shall take legislative, administrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms."

Article 16: Access to and Transfer of Technology

Article 16 of the Convention is concerned with promoting access to and transfer of technology, including biotechnology, that is relevant to the conservation and sustainable use of biodiversity with due consideration for intellectual property rights.

Article 17: Exchange of Information

Article 17 in concerned with promoting the exchange of information and specifies in 17 (2) that:

"Such exchange of information shall include exchange of results of technical, scientific and socio-economic research, as well as information on training and surveying programmes, specialized knowledge, indigenous and traditional knowledge as such and in combination with the technologies referred to in Article 16, paragraph 1. It shall also, where feasible, include repatriation of information."

Article 18: Technical and Scientific Cooperation

Article 18 is concerned with technical and scientific cooperation and specifies in 18(4) that:

"The Contracting Parties shall, in accordance with national legislation and policies, encourage and develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies, in pursuance of this Convention. For this purpose, the Contracting Parties shall also promote collaboration in the training of personnel and exchange of experts."

Article 19: Handling of Biotechnology and Distribution of its Benefits

Article 19 addresses the issue of the handling of biotechnology and the distribution of its benefits. This article promotes the participation of developing countries in biotechnological research and measures to promote priority access to the results and benefits of the research by developing countries providing genetic material. Article 19 also proposes the establishment of what became the Biosafety Protocol to govern the safe transfer and use of Living Modified Organisms and details of the use, safety regulations and potential adverse impacts of such organisms (see Decision V/1).

The Dilemmas Confronting Indigenous Peoples and Local Communities:

It is in considering the implications of these Articles of the Convention that the dilemmas confronting indigenous peoples and local communities begin to emerge. Indigenous peoples are critically concerned with the conservation and sustainable use of the biodiversity within their lands and territories upon which their livelihoods depend, and in which their cosmovisions and cultural identities are embedded. Similarly, members of many local communities are critically concerned with the maintenance of the resource base upon which their livelihoods depend. As such, indigenous peoples and local communities may be willing to share and promote their knowledge of the conservation and sustainable use of the local environments within their lands and territories.

However, the Convention is also vitally concerned with the commercial exploitation of biodiversity . For many Parties, the importance of the provisions of the Convention rests in the need to provide economic incentives for the conservation and sustainable use of biodiversity in developing countries as a viable alternative to existing development policies, which result in the destruction of biodiversity.

The perceived role of indigenous peoples and local communities within this process is as knowledge providers . That is providers of technical knowledge about the uses of individual species, which may become, or provide the foundation for, commercially viable products in the fields of agriculture, medicine, industry, cosmetics and other sectors.

The exploitation of indigenous or traditional knowledge of biodiversity in the pursuit of new commercial products has an extremely long history and has been central to the emergence of the modern world economy . [4] More recently, in the 20th Century the development of the biotechnology industry (based on the identification and manipulation of the properties of genetic resources embedded within biological organisms) has led to increased attention to traditional knowledge in providing a short-cut to the identification of potentially useful genetic materials.

While it is important to recognise that not all developments in the fields of agriculture, medicine, industry, cosmetics and other areas are derived from traditional knowledge, many such developments are rooted in information gained through research on the traditional uses of biodiversity . [5]

It is here that the essence of the dilemma confronting indigenous peoples and local communities is revealed:

  • The exploitation of traditional knowledge in the pursuit of the development of new products generally takes place without the knowledge and consent of indigenous peoples or local communities.
  • Indigenous peoples and local communities rarely receive a share of any benefits, which may derive from the commercial exploitation of their knowledge.
  • Western legal systems focus exclusively on the protection of individual rights over knowledge whereas indigenous peoples repeatedly emphasise that their rights over their knowledge are fundamentally collective in nature.
  • The exploitation of traditional knowledge of biodiversity for commercial purposes represents the commodification of knowledge. That is, it reduces knowledge to a mere resource that can be bought and sold on the market place like any other commodity. Indigenous peoples have repeatedly emphasised that their knowledge of the biodiversity within and beyond their lands and territories is inextricably bound up with their cosmologies, philosophies, institutions, identities and languages and cannot be reduced to a mere commodity to be traded on the market place. Indigenous peoples have therefore expressed concerns surrounding whether their knowledge should be shared at all.

As a consequence, we can see that indigenous peoples and local communities are caught between:

  • A desire to contribute to wider efforts for the conservation of biodiversity; and
  • A desire to protect their knowledge from commodification and commercial exploitation without their prior informed consent or a share of the benefits deriving from the exploitation of their knowledge and resources.

Indigenous Peoples and Local Communities Participation in Convention processes:

Participation within the Convention on Biological Diversity has been primarily led by indigenous peoples organisations. In contrast, the participation of local communities has been somewhat more ambiguous and appears to be represented by the activities of NGO's, participation of local community organisations in the Global Biodiversity Forum and the promotion of Farmers Rights under the programme of work on agricultural biodiversity. The remainder of this work will therefore refer almost exclusively to indigenous peoples participation but will also be of direct relevance to local communities.

The first stage in the efforts of indigenous peoples from around the world to engage with the Convention involved a long and often frustrating process of attempting to persuade Parties of their right to participate in debates under the Convention as the basis for further progress.

This process can truly be said to have begun during the Second Conference of Parties to the Convention in Jakarta, Indonesia in 1994, which was marked by the first significant participation of indigenous peoples delegates. This was followed in 1996 by the formation of a unified indigenous caucus in the form of the First International Indigenous Forum on Biodiversity during COP3 in Buenos Aires, Argentina. During the debates on Article 8(j) within COP3 the Forum argued that the most effective vehicle for the participation of indigenous peoples within the Convention would be through the establishment of an Open-Ended Working Group on Article 8(j) and related provisions. This was rejected by COP3. However, the Parties did agree to the realisation of a workshop on Article 8(j) prior to COP4, which was held in Madrid in November 1997.

The Madrid Workshop was characterised by the participation of over 300 indigenous delegates from around the world and the development of a list of 200 issues to be considered by the COP which were incorporated into what became a draft programme of work for a proposed Ad Hoc Intersessional Open-Ended Working Group on Article 8(j) and associated provisions (see UNEP/CBD/TKBD/1/3) . This proposal was unanimously adopted by the participants within the Workshop and was approved at COP4 in Bratislava, Slovak Republic in May 1998 (decision IV/9).

The first meeting of the Ad Hoc Working Group on Article 8(j) and associated provisions took place in Seville, Spain in March of 2000. The principle purpose of this meeting was to establish agreement on a programme of work for Article 8(j) and associated provisions for approval by COP5 held in Nairobi, Kenya in May 2000 (see UNEP/CBD/COP/5/5).

The International Indigenous Forum on Biodiversity (IIFB):

" The IIFB is open to all indigenous representatives who participate in meetings related to the implementation of the CBD in order to debate ideas, discuss strategies, and define positions for the official meetings. The IIFB does not possess members, as such, and nor is it an institution or organisation. All who desire to can participate and constitute the IIFB." [6]

As this statement makes clear, the International Indigenous Forum on Biodiversity is open to all indigenous peoples delegates from around the world. The Forum is not an institution or organisation but instead is perhaps best conceived as a mechanism created by indigenous peoples delegates themselves to establish and articulate positions in negotiations with governments under the Convention.

The fundamental principle that informs the work of the Forum is the need to establish consensus between indigenous peoples delegates from around the world as the basis for entering into detailed negotiations.

At the time of writing, the Forum had held six meetings and its participants were preparing for the seventh meeting of the Forum. In practice the Forum is an ongoing process with a growing prominence within the negotiations taking place under the Convention. During COP5 the Forum was recognised as an advisory body to the Convention under Decision V/16 on Article 8(j), which cuts across all work under the Convention . [7]

In this section we will focus on the work of the Fifth International Indigenous Forum on Biodiversity in Nairobi during COP5.

An estimated total of fifty-one indigenous delegates from Africa, Asia, Europe, Russia, South America, Central America, the USA, Canada, Australia and New Zealand were able to travel to Nairobi in order to form the Fifth International Indigenous Forum on Biodiversity. In addition, COP5 was also marked by an increase in the numbers of indigenous delegates within official delegations, notably in the case of Canada, Brazil, Namibia, New Zealand, the Solomon Islands, and the non-party USA delegation, who made an important contribution to the work of the Forum.

As with experiences at previous COP meetings, the Forum struggled to find space to meet and to gain access to the computer, printing, translation and other facilities that play a vital role in the effective operations of the Forum. However, COP5 was marked by an increasing level of support for the logistical needs of the Forum on the part of the Secretariat of the Convention reflecting the growing openness of the Parties to the participation of indigenous delegates and the Forum within debates under the CBD.

As we have seen earlier, the Fifth Conference of Parties engaged in decision-making in a total of twenty-six areas that are either of direct relevance or otherwise concern indigenous peoples and local communities. The success of the Forum in participating in these debates was based on a division of labour in five areas.

  • The nomination of male and female co-chairs to coordinate the Forum and negotiate with the Secretariat and session Chairs on facilities and procedures.
  • The nomination of participants to read opening and closing statements and other interventions made during the COP.
  • The nomination of a drafting team to work on statements and position papers.
  • The nomination of focal points to track thematic debates, intervene as necessary, and report on progress.
  • The creation of focal points for regional lobbying with the European Union, GRULAC (Latin America and Caribbean), JUSCANZ (Japan, United States, Canada, Australia and New Zealand), and the Africa grouping.

The immediate priority of the Forum was the elaboration of a consensus position paper on the priorities and textual modifications needed within the proposed programme of work on Article 8(j) and related provisions, which emerged from the Working Group in Seville.

This proved to be a difficult process which reflected a number of issues that will be briefly highlighted here:

Lack of Funding

The Fifth Conference of Parties followed on rapidly from the realisation of the first meeting of the Ad Hoc Open Ended Working Group on Article 8(j) and related provisions in March 2000. As a result indigenous peoples organisations and the network of support organisations struggled to mobilise the resources necessary to ensure the participation of indigenous delegates from around the world for the critical issue of the continuation of the Working Group on Article 8(j) and the adoption of the work programme agreed in Seville. Arrangements surrounding the funding for indigenous delegates participation within Convention processes remain ad hoc and demonstrate a clear need for an adequate and stable funding mechanism.

Lack of preparation

Many of the difficulties experienced by the Forum can be attributed to a lack of adequate preparation time and is linked to the insecurity of funding. This problem also occurred during the Working Group meeting in Seville. The need for adequate preparation time for indigenous delegations was subsequently highlighted in the draft decision concerning Article 8(j) and associated provisions that emerged from the Working Group. In particular, during COP5 and in subsequent meetings a clear need was identified to prioritise the preparation of briefing papers in thematic areas based on analysis of the official documents as inputs into the work of the Forum.

Different regions may possess different priorities

In particular, some delegates placed the formulation of guidelines on legal elements and access and benefit sharing higher on the priority list within the programme of work than other delegates.

Different regions may approach issues in different ways

In many respects the apparent differences between regions actually reflected differences in approach to the issues. Thus, some delegations tended to focus on issues of fundamental principle (i.e. in relation to access and benefit sharing) while others tended to focus on obtaining immediate protection for indigenous knowledge by prioritising the formulation of guidelines for legal instruments and access and benefit sharing arrangements.

Inadequacies in translation of official documents

The Spanish and French translations of official CBD documents differed significantly in meaning from the English translations. The most glaring example of this was in connection with the new task on women introduced into the Article 8(j) work programme by the Forum in Seville. Thus, in English one component of the task read "To build on" indigenous womens' traditional knowledge, while in Spanish this read "To exploit" indigenous womens' traditional knowledge.

As a consequence, a significant amount of time was lost in misunderstandings resulting from poor translation within official documents. Once the scale of this problem became clear, more rapid progress was made.

A lack of translation facilities

Problems were also experienced with the translation within the Forum which produced significant misunderstandings in the quest for consensus. While this reflects the fact that it is very difficult to provide accurate translation in a meeting of over 30 people in the absence of simultaneous translation equipment, it also clearly highlighted the need for professional translation services.

This problem was partially resolved when the CBD provided a room with a simultaneous translation booth. However, the Forum established that in future there is a clear need to secure professional translators and translation facilities for Spanish, French and Russian speakers.

Ultimately, consensus was achieved within the Forum on the priorities and the textual changes that would be proposed in connection with the programme of work on Article 8(j) and associated provisions.

A four-page document was then prepared which was distributed to governments and NGOs . [8] The content of the document highlighted the need to focus on:

  • The protection of traditional knowledge rather than commercial exploitation of this knowledge.
  • The right of indigenous peoples to control over their knowledge and the need to obtain indigenous peoples prior informed consent on mutually agreed terms to any potential use of such knowledge . [9]
  • The need to recognise the relationship between indigenous knowledge and territory.
  • Recognition of the special role of indigenous women within the conservation of biodiversity.
  • The need for the full and effective participation of indigenous peoples and local communities throughout the activities of the Convention.
  • The need for the full and effective participation of indigenous peoples and local communities in monitoring and evaluation of implementation.

One of the most striking features of the Forum's work was the strong pressure from governments for the Forum to produce a document on Article 8(j) and related provisions to inform their positions during the plenary and contact group debates. Indigenous delegates were pleasantly surprised when a significant number of government delegations simply adopted the position expressed by the Forum as their own position during the plenary debate . [10]

This growing openness was further marked by the fact that members of the Forum were provided with considerable time to deliver statements within the plenary discussion and at the 'contact group' stage of debates on Article 8(j) and related provisions . [11] In a marked departure with customary procedure at the contact group stage, where discussions are held exclusively in English, the indigenous Forum was allowed to use simultaneous translation equipment for non-English speaking delegates.

At the conclusion of the debates on Article 8(j) and associated provisions the contribution and status of the International Indigenous Forum on Biodiversity as an advisory body to the COP was recognised in the following paragraphs of decision V/16:

" Recognizing the role that the International Indigenous Forum on Biodiversity has played since the third meeting of the Conference of the Parties in addressing the Conference of Parties on the implementation of Article 8(j) and related provisions"

" Invites Parties and Governments to support the participation of the International Indigenous Forum on Biodiversity, as well as relevant organizations representing indigenous and local communities, in advising the Conference of Parties on the implementation of Article 8(j) and related provisions." (emphasis added).

Recognition of the advisory status of the International Indigenous Forum on Biodiversity represents a very significant triumph for indigenous peoples. In recognition of this achievement at the closure of COP5 the Forum met to consider how coordination and preparation might be improved in order to ensure the effective participation of indigenous peoples in CBD processes on the international level.

In the course of these deliberations the Forum decided:

  • That the International Indigenous Forum would be open to all indigenous peoples and their organisations.
  • That the official languages of the Forum would be English, French, Spanish and Russian.

To create an open-ended and gender balanced International Coordinating Committee based on an initial thirteen regional focal-points with responsibility for:

  • Developing draft position papers for discussion in accordance with the work programme.
  • Development of guidelines/terms of reference on the functioning of the Forum.
  • Elaborating rules of procedure on the basis of the guidelines/terms of procedure
  • Drafting and finalizing the agenda for Forum meetings.
  • Establishing links and disseminating its work through the international communications committee.
  • Developing criteria for participation in international meetings of the CBD.
  • Providing input into the selection of members of the indigenous liaison group with the Secretariat.
  • Establishing and maintaining links with the members of the CBD Secretariat liaison group to be appointed by the regions.
  • Establishing parallel workshops and forums within CBD processes.

The Forum then established an International Communications Committee with responsibility for:

  • Developing funding proposals.
  • Addressing logistics for the Open-ended Working Group on 8j, the Working Group on Access and Benefit Sharing, SBSTTA, COP6, etc.
  • Creating an Archive of COP V documents.
  • Establishing the Indigenous Biodiversity Information Network (IBIN).
  • Establishing communications links with organizations.
  • Organising a workshop on Biodiversity in Geneva during the UN Working Group on Indigenous Populations.
  • Development of the Terms of Reference and responsibilities of the Secretariat of the Forum.
  • Reporting at the Working Group meetings and Conference of Parties.
  • Establishing a database of indigenous peoples organisations.

At the conclusion of COP5, the focal points for the open-ended International Coordinating Committee were identified based on a regional division as follows:

  1. North America:
  2. Meso America:
  3. Amazon:
  4. Andean/Southern Cone:
  5. Francophone Africa:
  6. Anglophone Africa:
  7. Europe:
  8. Pacific/Maritime Asia:
  9. Bahasa (Indonesia/Malaysia):
  10. South East Asia:
  11. South Asia:
  12. Australia:
  13. Circumpolar:

Progress Since COP5

Since COP5, the Forum has taken on increasing prominence in the work of the Convention on Biological Diversity on a number of levels. This reflects a growing openness on the part of both the Parties and the Secretariat to engage with indigenous peoples. This is principally manifest on four main levels:

  • Participation in Expert Groups and Panels of Experts . The promotion of the participation of indigenous delegates within the Panel of Experts on Access and Benefit Sharing, the Technical Expert Group on Forest Biological Diversity, the CBD-UNESCO Working Group of Experts on Education and Public Awareness, and the new Technical Expert Group on Forest Biological Diversity and Climate Change. Progress in this area has also been marked by the increasing number of calls for the nomination of indigenous experts from the Secretariat in a wide variety of Convention processes
  • Participation in SBSTTA meetings . At SBSTTA 6 in February 2001 indigenous delegates intervened on a wide variety of issues reflected in the report from SBSTTA6 and the growing number of references to the participation of indigenous and local communities within the recommendations emerging from SBSTTA. At SBSTTA7, in November of 2001, the small number of indigenous delegates present chose not to intervene under the name of the Forum. However, significant interventions were made as part of a collaboration with NGOs to influence the new programme of work on forest biodiversity.
  • Participation in Working Groups . The Working Group on Access and Benefit Sharing held in Bonn, Germany in 2001 was marked by the realisation of the sixth meeting of the International Indigenous Forum on Biodiversity. During the Working Group meeting, the Indigenous Forum was allowed to read out an opening position statement, a review of progress, and a closing statement in the plenary sessions . [12] The Chairpersons of the Sub-Working Groups and contact groups also demonstrated a significant openness to interventions from the Forum which builds on the progress made since the Working Group on Article 8(j) in Seville and COP5. While welcome, it is nevertheless important to note that a request for co-chairmanship was turned down for the Working Group on Access and Benefit Sharing . [13]
  • Liaison Group . At least one meeting of the indigenous liaison group has taken place since COP5. At COP5 the Forum established that the Forum itself would nominate the members of this liaison group. However, to date this has not taken place and potential participants have been selected directly by the Secretariat of the Convention.

As this makes clear, the Convention is demonstrating an increasing openness to the participation of indigenous peoples delegates on a wide variety of levels.

The future development of indigenous peoples and local community participation within the debates on the Convention will increasingly depend upon the success of mechanisms such as the International Indigenous Forum on Biodiversity.

In the case of the International Indigenous Forum on Biodiversity, the future work and development of the Forum is entirely for indigenous peoples and delegates from their organisations to decide. For example, during the sixth meeting of the Forum in Bonn in October 2001, the decisions taken by the Forum at COP5 were reaffirmed and recommendations were developed to be put forward to the seventh meeting of the Forum in Montreal in February 2002, in preparation for the Second Meeting of the Working Group on Article 8(j) and related provisions.

In this regard it is important to emphasise that the Forum itself is a process. It is a process that is entirely guided and led by indigenous delegates from around the world, who come together to secure respect for the internationally established rights of indigenous peoples and contribute to the conservation of biodiversity.

This is a process that presents many challenges and many opportunities. The purpose of the next section is to highlight some of the challenges and opportunities presented by the decisions that emerged from COP5 as a contribution to discussion among indigenous peoples organisations and local communities engaged in the debates under the Convention.

 

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Indigenous Peoples, Local Communities and the Convention

| Acknowledgements | About the Authors | Introduction | Dimensions of Diversity | Indigenous Peoples.. |
| From Policy to Implementation? | Executive Summary COP5 | Executive Summary COP6 |References |