Institute for Sustainable Development (IISD)
Vol. 09 No. 225
Wednesday, 6 February 2002
WORKING GROUP ON ARTICLE 8(j)
TUESDAY, 5 FEBRUARY 2002
Delegates to the second meeting of
the Ad Hoc Open-ended Inter-Sessional Working Group on
Article 8(j) and Related Provisions of the Convention on Biological
Diversity (CBD) met throughout the day in two sub-working groups.
Sub-Working Group I (SWG-I) considered the outline of the composite
report on status and trends, and began discussing guidelines for
impact assessments. Sub-Working Group II (SWG-II) concluded initial
discussion on the effectiveness of existing instruments,
particularly regarding intellectual property rights (IPR), and on
participatory mechanisms for indigenous and local communities.
SUB-WORKING GROUP I
COMPOSITE REPORT ON STATUS AND
TRENDS: BRAZIL and SPAIN, on behalf of the
EUROPEAN UNION (EU), cautioned against using confidential knowledge
in the compilation of the report. The EU suggested the report
declare its use of traditional knowledge. The GEF expressed concern
about setting a precedent for using GEF funding for such studies and
the burden this would place on funding resources. Representatives of
the INTERNATIONAL INDIGENOUS FORUM ON BIODIVERSITY (IIFB) commented
that the document was prepared with a top-down approach, stressed
the importance of including more indigenous perspectives, suggested
mechanisms to ensure indigenous participation, sought an examination
of the impact of organized religion on traditional knowledge, and
highlighted the importance of empowering indigenous communities.
They noted that many governments give priority to multinational
companies, neglecting their commitments under Article 8(j), and
suggested regional workshops organized by indigenous peoples to
provide input into the report.
Regarding the report’s outline,
the EU proposed reference to conservation and sustainable use of
biodiversity in the title, and called for geographic and cultural
balance to ensure appreciation of regional differences. Regarding
terms of reference, the EU suggested a consultative or advisory
group, including indigenous representatives. ARGENTINA called for
more discussion and clarification of globalization and its impacts.
The contact group on the definition of indigenous and local
communities identified the need for a glossary of terminology.
SWG-I Co-Chair John Herity
(Canada) indicated that he would develop draft text for further
GUIDELINES FOR IMPACT ASSESSMENTS:
The Secretariat introduced documents UNEP/CBD/WG8J/2/6 and Add.1.
Several delegates called for harmonization with SBSTTA’s work on
assessments. Noting problems with the document’s length and
complexity, several delegates called for a more practical document
to facilitate implementation. The US suggested that recommendations
might be more useful than guidelines. CANADA expressed concern that
the guidelines are prescriptive, and proposed a principle-based
approach that sets out goals, which are voluntary, flexible and
implementable according to national circumstances. SWEDEN called for
prioritization of the salient aspects relevant to traditional
knowledge. The EU recommended that the guidelines focus on cultural,
social and environmental impact assessments in a more unified way.
The US noted the need to clarify
the relationship between these guidelines and those of the World
Bank. The IIFB suggested that the World Bank’s guidelines not be
used as they are based on a different approach. IIFB delegates also
pointed to the importance of prior informed consent; noted that
existing impact assessment processes do not adequately address the
loss of traditional knowledge; highlighted the impact of imposed
development models on indigenous communities; and suggested language
that better reflects indigenous peoples’ views. NEW ZEALAND called
for a preventive approach, noting the difficulty of redressing
damages and, with ETHIOPIA, commented that the draft guidelines
overlook development activities on lands adjacent to sacred sites.
ETHIOPIA noted that the guidelines do not address the community
trust fund’s establishment, distribution of funds to the
community, or monitoring its effectiveness.
The EC stressed the need for
balance among social, cultural and environmental priorities, noting
that projects that are good for the environment are not necessarily
good for society and culture. DENMARK suggested that non-scientific
approaches not be precluded. CUBA addressed the cultural aspects of
impact assessments, and called for standardized procedures to
guarantee transparency. FIJI stressed capacity building for
increasing indigenous participation, highlighted the special needs
of small islands and, with the PHILIPPINES, called for a holistic
approach to cultural, environmental and social impact assessments.
ECUADOR called for the use of
indicators for conservation, sustainable use and development, and
for a plurality of legal regimes to protect indigenous rights.
BRAZIL emphasized the need for public participation. COLOMBIA noted
that indigenous participation may not be necessary in every
assessment phase. The NESKONLITH BAND stressed that the recognition
of indigenous land rights is necessary for preserving traditional
Co-Chair Herity noted that he
would develop a draft text for further consideration.
SUB-WORKING GROUP II
ASSESSMENT OF EXISTING
INSTRUMENTS: Several delegates supported
the work of WIPO, and the EU proposed that the Working Group
cooperate with WIPO in its work on sui generis systems.
ECUADOR with several Latin American countries argued that the
Working Group should generate such guidelines. NAMIBIA called for
case studies on regionally harmonized sui generis systems.
Delegates also highlighted potential input from UNESCO, UNCTAD, UN
human rights bodies, the World Health Organization, the Organization
of African Unity and the Third World Network. The TEBTEBBA
FOUNDATION said that trade-related fora are not appropriate for
protecting indigenous interests. The INDIGENOUS PEOPLES’
BIODIVERSITY NETWORK (IPBN) and IIFB stated that existing local
systems of handling innovations should be used in the development of
any protection system.
Several delegates objected to the
development of an international database, which INDIA supported.
Many delegates instead encouraged their development at the local or
national level. Several delegates highlighted the need to build
appropriate capacity. IPBN stressed that databases should be under
local control and based on local models. The US and UNCTAD noted
that databases at any level should address issues of access,
security and the legal status of information. PERU and YORK
UNIVERSITY stressed that no traditional knowledge should be
registered without the prior informed consent of indigenous
communities. The TULALIP TRIBE highlighted work on a database
involving categories of confidential and publicly available
Regarding the establishment of a
notification system, ARGENTINA, on behalf of GRULAC, noted that WIPO
and the WTO already require submissions on national legislation,
and, with the EU, suggested establishing links through the
Clearing-House Mechanism (CHM). ST. LUCIA, on behalf of Caribbean
Small Islands States, requested support for public education,
awareness-raising, inventories and documentation, noting that loss
of traditional knowledge is especially rapid on small land areas. EL
SALVADOR noted that pilot projects should concentrate on new
mechanisms, not existing ones. FRANCE proposed examining the
conflict between common and customary law. INDONESIA proposed
facilitating cooperation between industry and indigenous and local
communities. UNCTAD suggested that the economic viability of
indigenous communities is a means of protecting traditional
knowledge, and further noted the need to exchange experiences on
best practices. IPBN prioritized information exchange among
IIFB representatives noted that
protection of traditional knowledge is intrinsically linked with
indigenous rights to self-determination, land and territories;
rejected patents as a form of protection; and called for a separate
international mechanism for the protection of traditional knowledge.
The UNIVERSITY OF SASKATCHEWAN called for guidelines on the
repatriation of traditional knowledge.
SWG-II Co-Chair Linus Thomas
(Grenada) noted that he would develop a draft recommendation for
PARTICIPATORY MECHANISMS: The
Secretariat introduced document UNEP/CBD/WG8J/2/4. On effective
involvement in decision making regarding use of traditional
knowledge, SENEGAL drew attention to lack of resources for the
participation of governments’ and communities’ representatives
to international meetings. CANADA noted that one set of guidelines
could not satisfy the interests of many indigenous cultures;
cautioned against discussing land and human rights issues currently
addressed in other fora; and proposed changing language on the
recognition of traditional systems of land tenure to research and
documentation on such systems with incorporation into national
legislation as appropriate. BRAZIL requested references to competent
national authorities’ participation.
The ST’AT’IMC CHIEFS COUNCIL
stressed the lack of information and of proper mechanisms for true
participation of indigenous peoples in CBD negotiations. He added
that for the CBD to succeed, indigenous peoples’ land title and
rights must be recognized. The INTERNATIONAL SUPPORT CENTRE FOR
SUSTAINABLE TOURISM called for indigenous participation in drafting
guidelines on tourism, highlighting the risks that tourism poses to
biological and cultural diversity, and to the protection of
indigenous peoples’ rights.
Regarding the recommendations, the
EU proposed: reference to women’s knowledge; capacity building for
developing guidelines on participatory mechanisms and participation
in relevant decision-making processes; and identification of an
indigenous focal point for the CHM. CANADA, with BOLIVIA and BRAZIL,
opposed developing guidelines for participatory mechanisms, and
instead suggested soliciting model examples.
Regarding national mechanisms to
ensure stakeholder participation, NEW ZEALAND opposed reference to
stakeholders and TUNISIA suggested indigenous and local communities’
participation instead. The IIFB noted that indigenous and local
communities are holders of rights rather than simply stakeholders.
ST. LUCIA noted that stakeholder analysis could enhance
participation. Regarding the recommendation for a consultation
process with Secretariats of other relevant environmental
conventions, CANADA suggested that it be broadened to include other
relevant bodies such as WIPO. BRAZIL and COLOMBIA suggested deleting
SENEGAL, with RWANDA, noted an
information deficit in local communities and suggested that
stakeholders be invited to establish communication strategies.
NAMIBIA proposed submission of case studies regarding national
experiences in ensuring participation. The US stressed the need for
capacity-building efforts for indigenous participation at
international meetings. The GEF offered to organize a workshop at a
future meeting to train indigenous representatives on preparation of
SWG-II Co-Chair Thomas noted that
he would prepare a draft text for further consideration.
IN THE CORRIDORS
As the temperature dropped
outside, delegates pondered whether this had a chilling effect on
the discussions regarding participatory mechanisms, which finished
early. Some indigenous representatives noted a contradiction between
the historical difficulties of establishing effective and
representative participation at the national level, and the rhetoric
of such discussions within intergovernmental fora. On a broader
scale, others were frustrated by the silence of some Parties, and
the complete absence of others, concerned that those not present
will attempt to dismantle any accomplishments achieved here during
THINGS TO LOOK FOR TODAY
SUB-WORKING GROUP I: SWG-I
will meet at 10:00 am in Assembly Hall 1 to discuss the draft text
on impact assessments.
SUB-WORKING GROUP II: SWG-II
will meet at 10:00 am in Assembly Hall 2 to review draft
recommendations on participatory mechanisms and on the effectiveness
of existing instruments.