Institute for Sustainable Development (IISD)
Vol. 09 No. 226
Thursday, 7 February 2002
WORKING GROUP ON ARTICLE 8(j)
WEDNESDAY, 6 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 a conference room paper (CRP)
on draft principles for cultural, environmental and social impact
assessments regarding developments on sacred sites or on lands
occupied by indigenous and local communities, and a draft
recommendation on the outline of the composite report on status and
trends. Sub-Working Group II (SWG-II) addressed CRPs on
participatory mechanisms and an assessment of existing instruments,
particularly those related to intellectual property rights (IPR).
Plenary met briefly in the afternoon to hear progress reports by the
sub-working group co-chairs.
SUB-WORKING GROUP I
IMPACT ASSESSMENTS: SWG-I
Co-Chair John Herity (Canada) introduced UNEP/CBD/WG8J/2/SWG.I/CRP.1
on draft principles for impact assessments. CANADA suggested adding
text to clarify the document’s purpose, scope, and voluntary
nature. The INTERNATIONAL INDIGENOUS FORUM ON BIODIVERSITY (IIFB)
and ETHIOPIA opposed reducing the guidelines to principles. TURKEY
stated that the paper goes beyond the mandate of the Working Group,
and, with BRAZIL and ARGENTINA, called for more balanced language
taking into account the rights of States. ETHIOPIA noted that the
principles fail to address the entire assessment procedure. NEW
ZEALAND stressed the importance of extending the principles to
include developments that occur in areas adjacent to sacred sites
and traditionally occupied lands. BRAZIL sought more emphasis on the
role of public entities and competent local authorities. The US
requested language acknowledging that Parties are in different
stages of policy development.
Regarding text on environmental
impact assessments, COLOMBIA and MEXICO suggested, and the US
opposed, adding reference to genetically modified organisms to
language on alien species. COLOMBIA also recommended addressing
synergistic impacts. FIJI suggested strengthening text on capacity
building and LIBERIA proposed a cross-reference to a paragraph on
indigenous and local communities’ development of protocols. BRAZIL
stated that such protocols should be submitted to competent national
authorities, and ARGENTINA expressed concern about the potential for
creating independent jurisdictions within a State.
Regarding the precautionary
principle, ARGENTINA reiterated concerns about its interpretation
and delegates agreed to use language from the CBD preamble.
BRAZIL, supported by MEXICO, opposed creating special mechanisms for
dispute resolution, suggesting that disputes be resolved according
to national legislation.
The IIFB sought wording to
strengthen language on strategic impact assessment and participation
by indigenous peoples; opposed changing "territories" to
"areas"; expressed concern about the omission of text
regarding monitoring by indigenous peoples; and identified the need
to study the impact of development activities on food security and
health. They also expressed concern about national development
models imposed on their communities, and, with NEW ZEALAND, stressed
that indigenous communities need a sense of ownership over the
A contact group met in the evening
to work on the chair’s revised text (UNEP/CBD/WG8J/2/SWG.I/CRP.1/Rev.1)
on draft recommendations for the conduct of cultural, environmental
and social impact assessments.
COMPOSITE REPORT ON STATUS AND
TRENDS: In the afternoon, delegates
discussed a draft chair’s text. Regarding the terms of reference
for the consultant, the IIFB requested preference for an indigenous
consultant; however, Co-Chair Herity noted that the UN does not
allow preferential hiring practices. UNESCO suggested changing
language on re-establishing lost traditional knowledge and practices
to focus on protecting threatened practices, and NEW ZEALAND
proposed a separate category on threatened practices. BRAZIL
requested introductory text stating that the consultant will compile
information from published reports and supplementary public
information. The IIFB recommended hiring consultants for different
The IIFB noted that impoverishment
and migration are not strictly the result of loss of ancestral
lands, and emphasized that loss of lands and territory, poverty and
migration, and impositions of inadequate development models are
three separate issues. They also recommended language to strengthen
mechanisms for indigenous participation; prioritized addressing
reasons for loss of traditional knowledge and practices and
developing measures for their protection, rather than more studies;
suggested regional workshops with full participation of indigenous
peoples as a means of information gathering; called for specific
details on who would conduct national reports; and requested a
clearer statement of the study’s benefits for indigenous peoples.
Regarding the recommendation for a
global action plan, CANADA recommended that the plan focus on
lessons learned and identification of best practices. Regarding
the annex, which contains the draft outline, ARMENIA and PALAU
sought changes to text on assessing status and trends in various
ecosystem categories, and PALAU added a category for island
SUB-WORKING GROUP II
Delegates considered a draft chair’s text (UNEP/CBD/WG8J/2/SWG.II/CRP.1).
CANADA suggested deleting a recommendation requesting that the
Working Group identify elements for the establishment of
participatory mechanisms. Regarding consultation with relevant
environmental conventions, BRAZIL, on behalf of GRULAC, suggested
referencing examples of those conventions. The UN CONVENTION TO
COMBAT DESERTIFICATION highlighted its work on traditional knowledge
and collaboration with the CBD.
Regarding strategies for
awareness-raising and access to information, COTE D’IVOIRE and
NIGER requested reference to their implementation, and the IIFB to
their evaluation. BURKINA FASO suggested that language on enhancing
participation in CBD processes be included in the preamble. COTE D’IVOIRE,
KENYA and SENEGAL highlighted the need for proper representation of
African communities. The EU proposed that a group of experts develop
a thematic focal point in the Clearing-House Mechanism on Article
Regarding capacity building for
indigenous participation in decision-making processes, NIGER
requested reference to regional and sub-regional levels, and BOLIVIA
to conservation and sustainable use of biodiversity. FIJI noted that
access to relevant funding information is needed not only for
indigenous and local communities but also for governments. The EU
said that the COP could review the GEF’s mandate and, supported by
COTE D’ IVOIRE, suggested that the GEF give preference to projects
with indigenous and local communities participation. BRAZIL noted
that such preference should be given where appropriate.
The EU called for a preambular
reference to Principle 10 (Participation) of the Rio Declaration.
The IIFB stressed that participation should be full and effective,
and recommended a participation mechanism that recognizes the
principle of prior informed consent (PIC). CANADA disagreed stating
that Article 8(j) does not include obligations on PIC. The
UNIVERSITY OF SASKATCHEWAN, supported by CANADA, the EU and SRI
LANKA, proposed language on developing communication mechanisms
among indigenous and local communities. ECUADOR called on other
international bodies to support indigenous participation.
SWG-II Co-Chair Linus Thomas
(Grenada) noted that he would produce a revised draft text.
ASSESSMENT OF EXISTING
INSTRUMENTS: Co-Chair Thomas introduced
the chair’s draft text (UNEP/CBD/WG8J/2/ SWG.II/CRP.2). MEXICO
called for distinction between different forms of IPR and, with
CAMEROON, for emphasis on in situ conservation.
Regarding the preamble, delegates
addressed language on complementarity and mutual supportiveness with
regard to national and international measures, and to cooperation
with other bodies. BOLIVIA, COLOMBIA, EL SALVADOR and MEXICO opposed
language referencing IPR, genetic resources in indigenous
territories, and continued access for those communities. The IIFB
suggested text noting that indigenous peoples have their own systems
of protecting traditional knowledge, and of conserving and
sustainably using biodiversity.
Regarding operational language,
the EU and SWITZERLAND called for supportive references to WIPO and
its work in a number of areas. Regarding WIPO’s work on legal
mechanisms for the disclosure of country of origin and sources of
traditional knowledge, the EU proposed including possible sui
generis systems. MEXICO proposed that WIPO explore the
consequences of considering traditional knowledge as prior art.
Regarding assistance to indigenous
and local communities to develop strategies to protect their
knowledge, BRAZIL proposed that governments and relevant
organizations consider developing such strategies. The EU proposed
reference to the World Health Organization, and with NEW ZEALAND to
the ECOSOC’s Permanent Forum on Indigenous Issues. NIGER and
TUNISIA stressed assistance for self-organization of indigenous and
Regarding the Working Group’s
activities on sui generis systems, BRAZIL noted the need for
timelines. Delegates debated reference to WIPO’s work. Regarding
development of national or community registries, many called for
deleting reference to harmonization of national approaches.
SWITZERLAND proposed inviting WIPO to continue its work on an
international database, which others opposed. PERU opposed reference
to community databases. Regarding submission of case studies, CANADA
proposed addressing the nature, diversity and status of customary
laws under national legislation.
SWITZERLAND, with the US, and
opposed by several delegates, suggested deleting language on
disclosure of traditional knowledge in IPR applications and on
respecting CBD provisions related to PIC and mutually agreed terms.
Regarding language urging IPR organizations to protect traditional
knowledge, CAMEROON suggested deleting reference to the WTO.
On considering the establishment
of dispute settlement or arbitration procedures to address IPR
claims using traditional knowledge, several delegates expressed
concern over vague language. CUBA proposed text to encompass
non-judicial possibilities. The IIFB called for developing ethical
guidelines to address the conduct of academic research using
traditional knowledge. The INTERNATIONAL MARINELIFE ALLIANCE urged
Parties to require evidence of PIC in applications for IPR on
innovations using traditional knowledge.
Co-Chair Thomas said that a
consensus document would be prepared.
IN THE CORRIDORS
The downgrading of
"guidelines" for impact assessments to
"recommendations," along with numerous references to
national legislation and additions of "as appropriate,"
had some delegates doubting the Working Groupï¿½s outcome. Delegates
also questioned whether this tendency to soften the legal bearing of
the Working Groupï¿½s outputs could impact other work programme
tasks relating to guidelines and standards on benefit-sharing,
repatriation of knowledge and reporting of unlawful appropriation of
traditional knowledge. A few CBD veterans were not surprised, noting
that discussions here have incorporated some progressive elements
despite the profusion of qualifiers.
THINGS TO LOOK FOR TODAY
SUB-WORKING GROUP I: SWG-I
will meet at 10:00 am to discuss draft recommendations for
conducting impact assessments.
SUB-WORKING GROUP II: SWG-II
will meet at 10:00 am to discuss a revised draft text on