Institute for Sustainable Development (IISD)
Vol. 09 No. 227
Friday, 8 February 2002
WORKING GROUP ON ARTICLE 8(j)
THURSDAY, 7 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 conference room papers (CRP)
on draft recommendations for cultural, environmental and social
impact assessments, and on the outline of the composite report on
status and trends. Sub-Working Group II (SWG-II), which also met in
an evening session, addressed CRPs on participatory mechanisms and
an assessment of existing instruments, particularly those related to
intellectual property rights (IPR).
SUB-WORKING GROUP I
IMPACT ASSESSMENTS: SWG-I
Co-Chair John Herity (Canada) introduced a revised Chair’s text (UNEP/CBD/WG8J/2/
SWG-I/CRP.1/Rev.2). The INTERNATIONAL INDIGENOUS FORUM ON
BIODIVERSITY (IIFB) reiterated its concern that the guidelines had
been reduced to principles or recommendations. Regarding the
Preamble, delegates debated whether the COP should adopt or endorse
Delegates supported NORWAY’s
proposal to encourage Parties to have regard for these
recommendations until the finalization of the guidelines. The IIFB
stressed the importance of assessing cultural, social and
socioeconomic impacts. The IIFB, supported by NORWAY and the EU, and
opposed by ARGENTINA and BRAZIL, recommended that the Secretariat
continue developing the recommendations and that they be kept within
the Working Group’s mandate rather than be transferred to SBSTTA.
The EU proposed that the Working Group’s third meeting should
reconsider provisions for conducting impact assessments to
supplement SBSTTA’s guidelines, especially with regard to
procedures and institutions. The SHUSWAP NATION stressed the need to
deal with substantive issues and noted the indigenous peoples’
reliance on the international community to defend their rights.
Regarding the role of international funding and development agencies
in facilitating the incorporation of the recommendations into impact
assessment policies, FIJI, supported by the IIFB, added reference to
developing and least developed countries, emphasizing small island
The contact group chair introduced
the Annex containing the draft recommendations. Regarding the
assessment of development proposals for potential impacts of alien
invasive species and genetically modified organisms (GMOs), SWEDEN,
supported by ETHIOPIA, TUNISIA, ARGENTINA and MEXICO preferred
reference to living modified organisms (LMOs) over GMOs, and
proposed reference to relevant international law. ETHIOPIA added a
reference to biosafety. TUNISIA agreed but cautioned that some
countries lack mechanisms for controlling GMOs. MEXICO referred to
possible cultural and social impacts upon the indigenous and local
communities’ customary practices, including food and medicine.
ARGENTINA stated that reference to customary practices would go
beyond the CBD’s mandate and impede finalizing the draft.
Delegates were unable to agree on text regarding LMOs and bracketed
it for consideration by COP-6.
Under general provisions, SWEDEN,
with amendments by LIBERIA and the IIFB, suggested that assessment
procedures and development plans consider the inclusion of
provisions regarding free and prior informed consent of indigenous
and local communities. CANADA proposed deleting the text, and
delegates agreed to forward the issue to COP-6. On the need to
respect the human rights of indigenous and local communities, the EU,
opposed by CANADA, urged the inclusion of environmental rights.
CANADA proposed, and it was agreed, that all human rights, including
social and cultural rights and any rights related to the environment
The CRP was then approved.
COMPOSITE REPORT ON STATUS AND
TRENDS: Co-Chair Herity reopened
discussions on the Chair’s revised outline of the composite report
(UNEP/CBD/WG8J/2/SWG.I/ CRP.2). FIJI proposed encouraging Parties to
hold national workshops to ensure participation of indigenous and
local communities in the report’s completion. The EU proposed that
the title specify that the report should examine status and trends
regarding the knowledge, innovations and practices of indigenous and
local communities "relevant to the conservation and sustainable
use of biodiversity." Supported by CANADA, the EU also
suggested that the report’s information be used to support further
advancement of the work programme on Article 8(j), rather than as a
basis for identifying objectives and developing a framework for an
action plan. The IIFB highlighted the need for respect for
indigenous and local communities’ "code of
ethics/guidelines," which entails their permission and/or
consent to enter the communities and conduct research.
Regarding possible topics for the
report, CANADA opposed reference to the use of traditional knowledge
to maintain customary practices for the management of biodiversity,
while the IIFB requested its retention. Delegates agreed that the
report would assess the feasibility of using traditional knowledge
to maintain customary practices for the management, conservation and
sustainable use of biodiversity. With respect to the relationship
between biological, cultural and linguistic diversity, the IIFB
recommended addressing the critical reduction in numbers of certain
Regarding trends relating to the
implementation of Article 8(j), the PHILIPPINES requested a
reference to the effects of globalization. Delegates agreed to the
EU’s proposed deletion of text calling on the Global Environment
Facility (GEF) to provide funding to Parties for preparation of
national input to the report.
The CRP was then approved.
SUB-WORKING GROUP II
SWG-II Co-Chair Linus Thomas (Grenada) introduced a revised draft
text (UNEP/CBD/ WG8J/2/SWG.II/CRP.1/Rev.1). Regarding the
preparation and use of a synthesis report on participatory
mechanisms, BRAZIL and ECUADOR proposed text recognizing the
diversity of conditions and situations across States. The EU, with
SENEGAL, requested that funding for indigenous participation at CBD
meetings be explored for all geographic regions. On communication
mechanisms, the IIFB proposed reference to the Indigenous
Biodiversity Information Network.
CANADA proposed that the
development, implementation and evaluation of strategies on
awareness and access to information be done in cooperation with
indigenous and local communities. Referring to language on the GEF,
the EU noted that the COP should review and update its guidance in
accordance with the Working Group’s outputs. The GEF proposed
amending language to refer to its policies on public involvement.
Responding to an IIFB proposal on GEF funding in all geographic
regions, the GEF noted that its eligibility criteria restrict
support to developing countries only.
BRAZIL and CANADA proposed, and
the IIFB opposed, that references to the preservation, maintenance
and utilization of traditional knowledge be relevant to the
conservation and sustainable use of biodiversity. Regarding language
on supporting capacity building, INDIA suggested that communities
receive the "legal dues" arising from their traditional
knowledge, while INDONESIA proposed reference to recognition of
rights. CANADA noted that addressing rights is beyond the Working
Group’s mandate. Regarding language on establishing participation
mechanisms, BRAZIL proposed deleting reference to indigenous
participation in the management of biodiversity, arguing that it is
not included in Article 8(j), which BOLIVIA opposed. EL SALVADOR,
supported by the DOMINICAN REPUBLIC, suggested using Article 8(j)
language and proposed drafting another clause on management in the
paragraph on capacity building. The IIFB cautioned against confining
the group’s mandate to Article 8(j), noting that it includes
related CBD provisions. They also criticized the vagueness of the
document and highlighted an earlier intervention by ECUADOR
indicating that participation needs to be ensured through concrete
recommendations and mechanisms.
Following extensive debate,
delegates agreed on language promoting indigenous participation in
the management of biodiversity, where those communities and
governments deem appropriate, and encouraging the capacity-building
efforts of those communities for obtaining access to national and
international legal protection regarding the preservation,
maintenance and utilization of their traditional knowledge.
The CRP was approved as amended.
ASSESSMENT OF EXISTING
INSTRUMENTS: SWG-II Co-Chair Thomas
introduced a revised draft text (UNEP/CBD/WG8J/2/ SWG.II/CRP.2/Rev.1).
The EU proposed rephrasing preambular reference to the nature of
traditional knowledge to denote its collective or other
characteristics. NEW ZEALAND suggested reference to cultural
considerations. TOGO, with others, proposed a preambular reference
and recommendation regarding the African Model Law on the rights of
local communities and the Organization for African Unity. Delegates
agreed to a new reference to the review of the TRIPS Agreement,
particularly Article 27.3(b).
Delegates debated preambular
references suggested by CANADA on unauthorized access, use and
control of traditional knowledge at the community level and on
indigenous participation in CBD implementation without reaching
consensus. BRAZIL proposed deleting preambular references to
complementarity between national and international measures and with
On WIPO’s activities, delegates
agreed on inviting WIPO to explore mechanisms such as the disclosure
of traditional knowledge in IPR applications. Regarding protection
strategies, delegates debated a reference to customary law and
finally agreed on strategies based on approaches with the full
respect of customary law and practices.
Regarding the Working Group’s
activities on sui generis systems, ECUADOR, on behalf of
GRULAC, proposed reverting to text from the original CRP, which
omits reference to WIPO. The IIFB proposed reference to the relevant
activities and conduct of researchers and academic institutions as a
topic for case studies.
BRAZIL requested that the
development of national and community registries or databases be
subject to national legislation. Regarding provision of technical
and financial assistance, the IIFB suggested, and the US amended,
community capacity building to develop protection strategies and
systems. Delegates debated language that organizations responsible
for IPR instruments be invited to develop a protection framework,
particularly referencing prior art and patent applications.
Discussion centered around the role of WIPO, the WTO and the CBD, as
well as the principle of fair and equitable benefit-sharing. At the
suggestion of the IIFB, CANADA and PERU the recommendation was
INDONESIA, with CUBA, reintroduced
a recommendation on dispute settlement or arbitration procedures,
which was agreed upon with reference to the application of CBD
Article 27 (Settlement of Disputes). PERU requested that WIPO
forward relevant documents to the CBD Executive Secretary as
background information for future meetings of the Working Group.
The CRP was then approved.
IN THE CORRIDORS
The bracketing of text on prior
informed consent in the discussions on impact assessments had some
delegates harking back to similar deferrals of contentious text on
terminology and "derivatives and products thereof" in the
Bonn meeting of the Working Group on Access and Benefit-sharing.
While the time constraints and mandates of the CBDï¿½s subsidiary
groups are valid, numerous delegates fear that COP-6 will be hard
pressed to resolve such contentious issues given an overloaded
agenda with over 15 substantive items.
THINGS TO LOOK FOR TODAY
Plenary will convene at 10:00 am in the Assembly Hall to consider
other matters, and adopt the results of the sub-working groups and
the meetingï¿½s report.