People United but States Divided on Biodiversity Convention

By IKANAWTIKET Facilitator Joshua McNeely
Source: Netawek Ikjikum Vol. 6 – Issue 3 December 2010

As the 2010 International Year of Biodiversity (2010:IYB) comes to a close, the world turned their attention to Nagoya, Japan during October 18-29, 2010, where ambassadors from 193 nations, as signatory “member States” to the Convention on Biological Diversity (CBD) convened the tenth Conference of the Parties (COP-10).

CBD COPs are held every two years to bring together ambassadors and experts to build upon the Convention by signing Protocols, COP Decisions, and CBD Strategies, which together add to international biodiversity law, advance the CBD, and serve as benchmarks for States to consider for national laws.

With the sobering knowledge that humankind has failed to meet every strategic global biodiversity goal for the 2010 target; and furthermore, that almost every global indicator continues to show negative or uncertain trends, Peoples from around the world held their breath. Maybe the positive messages of the 2010:IYB and the calls by ENGOs, academics, and the public, and especially Indigenous Peoples, would be heard. Maybe the CBD would be a watershed moment for States to agree that biodiversity and life is paramount. Maybe we would not see a repeat of the disaster of the 2009 Copenhagen Climate Change Conference, which was high-jacked by special economic interests and States fighting over their world ranking as the most powerful.

Overall, some COP-10 results were somewhat positive. For example the bar has been raised and a louder call issued for States to fully implement the Convention. Several important reports were accepted by COP-10 as base knowledge for the CBD, including the Global Biodiversity Outlook 3 report card, which shows that we are failing in every aspect to achieve tangible results, and The Economics of Ecosystems & Biodiversity, which shows that our current economic model is flawed to the determent of all life, including humankind.

COP-10 also recognized the mountain of voluntary public efforts undertaken during the 2010:IYB. These included festivities to raise awareness about biodiversity, a host of 2010:IYB projects from across the globe, and the special recognition in Nagoya of a few hardworking groups who exemplify the intent of the CBD. Many came to realize that through the 2010:IYB, volunteers, ENGOs, academics, and others have advanced the CBD among the public more in the past year than government efforts alone have done in the past decade. The success of the 2010:IYB prompted COP-10 to request that the United Nations General Assembly declare 2011-2020 to be the International Decade of Biodiversity.

However, when faced with decisions about the CBD Protocol for Access and Benefit Sharing (ABS), States remained entrenched in the age old preoccupation of wealthy and armed States control over subjugated States and Peoples throughout the world.

Since 1999, the CBD has had an Open-ended Ad-hoc Working Group made up of representatives and experts from member States to negotiate ABS policy and guidelines. Since its inception, the Working Group has been unable to resolve key ABS issues, notably “what is considered genetic resources”, “from whom should industry seek prior and informed consent to access genetic resources”, and “should Indigenous Peoples be included in ABS negotiations”.

For us, and most of the world, the answers are clear. “genetic resources” refers to all of life, because “genetic material” exists, is expressed, and is important at all levels of life (inside the cell, in the make-up of a species, and as a life-giving continuum of an ecosystem). In other words, all genes are a “resource” for maintaining the fabric of life in which we live, whether we can specifically quantify their benefit to humanity or not.

On the question of granting Prior Informed Consent (PIC) to access genetic resources or traditional knowledge associated with genetic resources, the UN Declaration on the Rights of Indigenous Peoples (UNDRIPs) is clear:

ARTICLE 26

“Indigenous Peoples have the right to the lands, territories, and resources which they have traditionally owned, occupied, or otherwise used or acquired”; that they have the “right to own, use, develop and control [these] lands, territories, and resources”; and that “States shall give legal recognition and protection to these lands, territories, and resources.”

ARTICLE 31.1

“Indigenous Peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge, and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports, and traditional games and visual and performing arts. They also have the right to maintain, control, protect, and develop their intellectual property over such cultural heritage, traditional knowledge, and cultural expressions.”

On the question of Indigenous Peoples inclusion in ABS negotiations, UNDRIPs is also clear:

ARTICLE 31.2

“In conjunction with Indigenous Peoples, States shall take effective measure to recognize and protect the exercise of [Article 31.1] rights.”

ARTICLE 41

“The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of Indigenous Peoples on issues affecting them shall be established.”

ARTICLE 42

“The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.”

In addition, the Bonn Guidelines on ABS notes as a key element for achieving fair and equitable access to genetic resources and sharing of benefits that “support measures [should be developed] to enhance Indigenous Peoples and local communities’ capacity to represent their interests fully at negotiations” (Bonn Provision 16(a)(vii))

The ABS Working Group failed on all accounts to uphold the principles of the CBD, UNDRIPs, and their own Bonn Guidelines.

The Indigenous and Local Communities (ILC) Caucus has been continually shut out of ABS negotiations at the working group level. In Canada, the federal government has made only passing attempts to consult with Aboriginal Peoples on ABS policy. It was clear, that as Nagoya approached, Canada and other “first world” countries would make every attempt to exclude Indigenous Peoples from the Nagoya ABS Protocol. In fact, in the final draft forwarded by the ABS Working Group for signature at COP-10 almost every single reference to Indigenous Peoples or Traditional Knowledge was “enclosed in brackets” (i.e. not accepted); and the vital importance of UNDRIPs had been removed.

The Maritime Aboriginal Peoples Council (MAPC) along with forty-seven other Indigenous organizations, and like-minded organizations from around the world, working through the ILC Caucus, signed and submitted to COP-10 “A Call for Justice and Solidarity”.

Together we raised to COP-10 ambassadors that the draft protocol, prepared by the ABS Working Group and presented to COP-10 for approval, failed to respect the essential objectives of the CBD – that the draft protocol was not “fair and equitable”, nor did it respect international human rights law. We thank the Grand Council of the Crees, and especially Paul Joffe for submitting this paper on all our behalf. The ILC Caucus members, who, despite being told they were unwanted and did not belong, diligently and tirelessly advanced Indigenous issues during the ABS Working Group and International Negotiating Group meetings. Near the end, some faltered from the blatant assault on Aboriginal Peoples.

Despite heavy lobbying against the proposals, several key issues that the ILC Caucus tenaciously held and fought for were somewhat included in the final Nagoya Protocol, though watered down to our disadvantage, especially by terms and clauses that Canada insisted on, such as “noting” or “subject to national legislation”. Some key statements now included in the Nagoya Protocol are:

Recalling the relevance of Article 8(j) of the Convention as it relates to traditional knowledge associated with genetic resources and the fair and equitable sharing of benefits arising from the utilization of such knowledge.

Noting the interrelationship between genetic resources and traditional knowledge, their inseparable nature for indigenous and local communities, the importance of the traditional knowledge for the conservation of biological diversity and the sustainable use of its components, and for the sustainable livelihoods of these communities.

Recognizing the diversity of circumstances in which traditional knowledge associated with genetic resources is held or owned by indigenous and local communities.

Mindful that it is the right of indigenous and local communities to identify the rightful holders of their traditional knowledge associated with genetic resources, within their communities.

Further recognizing the unique circumstances where traditional knowledge associated with genetic resources is held in countries, which may be oral, documented or in other forms, reflecting a rich cultural heritage relevant for conservation and sustainable use of biological diversity.

Noting the United Nations Declaration on the Rights of Indigenous Peoples.

Affirming that nothing in this Protocol shall be construed as diminishing or extinguishing the existing rights of indigenous and local communities.

For the United Nations, terminology is extremely important. The term “noting” signifies that member States are divided on the issue and cannot agree; thus the reference to UNDRIPs carries no significant meaning in this Protocol for countries who chose to ignore the rights of Indigenous Peoples. In many countries, national legislation for the protection of Indigenous Peoples rights is weak or non-existent; thus “subject to national legislation” excludes Indigenous Peoples.

From the perspective of an Aboriginal Regional Peoples Organization, continuing on Traditional Ancestral Homelands, facing subjugation, denial, and dispossession of lands and resources each and every day, the Nagoya Protocol in 2010 “shamefully opens the door for legalized bio-piracy”.

As stated by a Mi’kmaw expert, “First they tried to steal the land and now they let in the pirates to steal our knowledge”.

Some COP-10 officials did realize that there has been a lot of resistance to include statements and related articles, that will advance UNDRIPs. Policing of the Nagoya Protocol will be an important task for the CBD. In their decision to adopt the Protocol, COP-10 requires that member States establish an Open-ended Ad Hoc Intergovernmental Committee to assess compliance with Article 12 bis (concerning the access to traditional knowledge with the prior informed consent of Indigenous communities) – in effect to monitor member States to ensure that they develop and implement national legislations, policies, and programs to implement the Nagoya Protocol and to ensure that such actions do not run counter to the goals and principles of the CBD or UNDRIPs.

The Nagoya Protocol will be open for signature from February 2, 2011 to February 1, 2012. Ninety days after receiving the fiftieth signature, it will come into force as a key international legal instrument for the CBD. We invite Canada to work with MAPC and IKANAWTIKET to reverse the course from bio-piracy, identify problem areas with the Nagoya Protocol, and conform with Canada’s existing national legislation. We do not want the world to look at Canada as moving away from the CBD on the issue of Aboriginal Peoples Rights. The Nagoya Protocol must be discussed with all of the Aboriginal Peoples of Canada.

On a more positive note, COP-10 did approve a new CBD Strategic Plan 2011-2020. Realizing the collective failure of States to meet the 2010 targets, COP-10 set twenty new targets to be achieved within the next ten years. The strategy also put forward a new vision:

“Living in harmony with nature, where by 2050, biodiversity is valued, conserved, restored and wisely used, maintaining ecosystem services, sustaining a healthy planet and delivering benefits essential for all people.” (emphasis added) (2010 statement)

To reach the 2020 targets, COP-10 was very pointed to member States that each must re-evaluate and update their national biodiversity strategies, fully incorporate biodiversity strategic goals into all public and private sectors, and fully engage the public and business.

The last point is especially important. Only through “mainstreaming biodiversity” (i.e., making it part of everyday public and private life) will we achieve the 2020 targets.

COP-10 also requested that member States review UNDRIPs. If adhered to through the creation of new national legislation and policy, UNDRIPs can be an important doorway for including Indigenous Peoples in the CBD and greatly increase our chances of meeting the 2020 global targets.

Yet, even though we agree that a renewed effort must be made to achieve tangible biodiversity targets, we do observe a concerning trend at CBD meetings, which surface as in the 2011-2020 Strategy. The vision statement contains a subtle, yet significant departure from the previous vision and responsibilities of States to the CBD – “the conservation of biological diversity, sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources are of the greatest interest to humankind, and affect all life on Earth.” (2008 statement)

The difference between these two statements is that the 2008 statement advances the realization that the actions of humankind affect all life on Earth. Humankind is meant to recognize our impacts and try to live as part of nature. With the 2010 statement, States now wish to promote a notion that humanities values for conservation, restoration, use of biodiversity, and maintenance of ecosystems is solely for the benefits of people.

We note that a fundamental shift in mind-set has occurred, where this Strategy is focused foremost to benefit people. We see this narrowing to be the result of two realities:

  1. States themselves will continue to fail to support, recognize, or respect the overall value of all biodiversity and all life forms; and instead, think of humankind as masters of the natural world, to use and exploit at will, as sole beneficiaries of biodiversity.
  2. The UN body itself appreciates that there is a fundamental block or inability of States to look at or change values away from “industrialized consumption at the cost of all biodiversity” to a new value for the “well-being of biodiversity which supports all life.” The UN accepts the weakening of the CBD Strategy as a compromise, with the hope of making some progress without significantly changing the modus operandi of States that promote and support wealth creation at all costs.

Clearly there is a disconnect happening at the CBD between the will of the people and the will of governments. Most obviously excluded in the Nagoya Protocol on ABS are the aspirations, realitites and needs of over 800 million Indigenous Peoples throughout the world. The outcomes of COP-10 can be viewed on the CBD website at: www.cbd.int/cop10.

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