Published by the
International Institute for Sustainable Development (IISD)
Vol. 09 No. 271
Thursday, 11 December 2003
ARTICLE 8(J) WG-3 HIGHLIGHTS:
WEDNESDAY, 10 DECEMBER 2003
Delegates to the third meeting of the Open-ended
Inter-Sessional Working Group on Article 8(j) and Related Provisions
of the Convention on Biological Diversity (CBD) convened in
sub-working group sessions throughout the day. Sub-Working Group I
(SWG-I) continued discussions on draft guidelines for impact
assessments, and considered technology transfer and recommendations
from the UN Permanent Forum on Indigenous Issues (PFII). Sub-Working
Group II (SWG-II) discussed a co-Chairs’ text on sui generis
systems for the protection of traditional knowledge. A brief Plenary
session was held in the afternoon to review progress.
SUB-WORKING GROUP I
IMPACT ASSESSMENTS: Draft guidelines: SWG-I
co-Chair John Herity (Canada) invited views on draft guidelines for
the conduct of cultural, environmental and social impact assessments
Integration of assessments: On social
impact assessments, JAMAICA said evaluation of changes to
traditional economies should include economic valuation of negative
social impacts. Regarding their scope, the INTERNATIONAL INDIGENOUS
FORUM ON BIODIVERSITY (IIFB) proposed considering traditional
lifestyles, and CARE EARTH-INDIA impacts on access to biological
resources for livelihoods. Regarding areas to be addressed when
conducting baseline studies, Liberia, on behalf of the AFRICAN
GROUP, suggested considering human settlements, the IIFB use of
traditional medicines, and PAKISTAN involuntary resettlement and
expulsion of indigenous peoples from their lands.
MEXICO said benefits of proposed developments
should include payment for environmental services. BURKINA FASO
highlighted threats of expropriation of traditional lands. On health
and safety aspects, SAINT LUCIA and LITHUANIA suggested referring to
medicinal species rather than plants.
Ways and means: On capacity building,
ARGENTINA and the IIFB recommended including indigenous experts in
impact assessment teams. Delegates also agreed to include
traditional knowledge experts. BURKINA FASO and the IIFB requested
including other awareness-raising means than web-based ones, with
the IIFB calling for traditional communication means. SAINT LUCIA
and PAKISTAN proposed language on financial, technical and legal
resources to ensure indigenous participation in all aspects of
General considerations: The IIFB proposed
that the section include: prior informed consent (PIC); strategic
environmental impact assessments (EIAs) and community development
plans; legal considerations; ownership, protection and control of
traditional knowledge; mitigation and threat-abatement measures;
transparency; review and dispute resolution procedures; and
On PIC, the IIFB requested, inter alia,
recognizing indigenous rights and knowledge, and providing
sufficient time and accurate information. CANADA and JAMAICA
preferred wording agreed upon by the Conference of the Parties (COP)
on PIC, subjecting PIC to national legislation.
On strategic EIAs, the IIFB suggested, and
delegates agreed, encouraging communities to formulate community
development plans, including strategic EIAs and poverty alleviation
mechanisms, and requiring development projects to: balance economic,
social, cultural and environmental concerns; maximize opportunities
for biodiversity conservation; and share benefits and protect
On legal considerations, the IIFB proposed
language recognizing indigenous rights to territories and to control
access, and addressing jurisdictional matters, and liability and
redress. Several delegates said jurisdiction and liability and
redress issues are beyond the guidelines’ scope.
Regarding traditional knowledge, the IIFB
stressed the need to respect communities’ customary laws and
intellectual property rights (IPRs) over their traditional
knowledge, PIC of knowledge holders, and access protocols
established by the communities.
The IIFB also called for transparency and public
accountability at all assessment phases, and for information in
national reports on measures adopted on the basis of the guidelines.
JAMAICA stressed the need for general language to accommodate
national specificities. CANADA proposed that all human rights be
respected, including social, cultural and environmental rights.
Use of terms: On outstanding issues
related to use of terms, JAMAICA suggested that EIAs include
appropriate mitigation measures. MEXICO proposed that social impact
assessments address impacts on economic, social, cultural, civil and
The IIFB suggested, and delegates agreed, naming
the guidelines "Akwekon Guidelines," according to the Mohawk place
name for Montreal.Co-Chair Herity said a co-Chairs’ text will be
RECOMMENDATIONS FROM THE UN PERMANENT FORUM ON
INDIGENOUS ISSUES: Co-Chair Herity presented
recommendations from the PFII on progress in environmental
development, and EIA and cultural diversity (UNEP/CBD/ WG8J/3/8).
SWEDEN, NORWAY and CANADA encouraged cooperation with the PFII and,
with others, supported organizing a workshop on protecting sacred
places and ceremonial sites. The IUCN highlighted its work on
protected areas and sacred sites. The BAHAMAS expressed concern over
establishing a mandatory legal framework for impact assessments.
CANADA suggested convening a side event on the guidelines during the
next PFII session.
Regarding a recommendation to develop a UN report
on implementing indigenous peoples-related chapters of Agenda 21,
the IIFB suggested that the CBD Executive Secretary coordinate
preparation of the report and ensure communities’ participation.
Co-Chair Herity said a draft recommendation will
be forwarded to the Working Group Chair.
TECHNOLOGY TRANSFER: SWG-I co-Chair Herity
invited comments on outstanding issues from the ninth meeting of the
Subsidiary Body on Scientific, Technical and Technological Advice
regarding technology transfer and cooperation. MEXICO, supported by
many, suggested recommending that COP-7 take into account mechanisms
to ensure that transfers of traditional and innovative technologies
fully respect the rights of those who have developed them.
Co-Chair Herity said a conference room paper
(CRP) will be prepared.
SUB-WORKING GROUP II
SUI GENERIS SYSTEMS: SWG-II co-Chair
Diann Black Layne (Antigua and Barbuda) invited comments on a
co-Chairs’ text on elements for a sui generis system to
protect traditional knowledge. The UN Conference on Trade and
Development (UNCTAD) called for adopting a holistic approach to the
protection of traditional knowledge, not only IPR-related measures.
Preamble: The IIFB requested referring to the
use and control of, rather than access by, communities to biological
resources, and their lands and territories.
The IIFB stressed that sui generis systems
should respect the rights of interested communities rather than be
sensitive to their interests. CANADA noted the need to develop such
systems with community participation.
CANADA proposed, and delegates agreed, to
recognize that communities have their own traditional knowledge
maintenance and transmission systems, as part of their customary
BRAZIL, supported by SAINT LUCIA, proposed that
registers be free of charge and not create obstacles to the
protection of traditional knowledge. Delegates agreed to a proposal
by CANADA: recognizing the need for funding and capacity building
for communities to participate in registers; and stating that
registers be voluntary, not a requirement for protection, and
established with communities’ PIC and participation. Delegates
discussed referring to "effective" or "full and effective" community
participation when establishing registers, and agreed on full and
effective participation. The IIFB and ETHIOPIA called for
establishing registers on the basis of customary laws. Delegates
agreed that such laws be taken into consideration, as proposed by
BRAZIL. HAITI, SAINT LUCIA and ETHIOPIA requested referring to
customs, in addition to customary laws and practices.
On recognizing that traditional knowledge may be
subject to various degrees of access, INDIA underscored the
difficulty of controlling access to knowledge held by several
communities. Delegates agreed to recognize that traditional
knowledge is sometimes accessed without communities’ consent and,
reflecting proposals from the IIFB, CANADA and THE COORDINATING
ORGANIZATION OF ARGENTINIAN INDIGENOUS PEOPLES ASSOCIATIONS, to
stress that communities have the right to deny, grant and determine
the level of access. UGANDA, COSTA RICA, MALAYSIA and CANADA
proposed distinguishing in situ and ex situ
traditional knowledge. The IIFB stressed the need for relevant
communities’ PIC for continued access to ex situ traditional
knowledge. EL SALVADOR suggested referring to consent rather than
PIC. After discussion, delegates agreed not to refer to subjecting
access to ex situ traditional knowledge to national
Delegates debated the nature of traditional
knowledge, and agreed that it is collective and inter-generational,
but could not agree on whether genetic resources are collective and
inter-generational. They also debated whether some or all genetic
resources and associated knowledge are transboundary, and agreed
that only some are transboundary.
BRAZIL proposed, and delegates agreed, to new
preambular paragraphs on benefit-sharing arrangements and mechanisms
to halt the misuse of traditional knowledge.
On collaboration with other organizations,
delegates agreed to refer to UNESCO, UNCTAD and the World Trade
Operative paragraphs: Regarding provision of
information, CANADA proposed including information on measures
supporting customary law. Italy, on behalf of European Community
(EC) Member States and acceding countries (EU), opposed by BRAZIL,
proposed a reference to the work of the World Intellectual Property
Regarding a glossary of Article 8(j)-relevant
terms, the EC requested cooperation with the Working Group on ABS.
BRAZIL and ARGENTINA proposed, and delegates agreed, not to convene
a technical experts group on the glossary.
The EU proposed that the COP request the Article
8(j) Working Group to review the relevance of the Bonn Guidelines on
ABS and an international ABS regime to the protection of traditional
knowledge, and assess the role of databases and registers. Delegates
agreed with a proposal by the IIFB and BRAZIL to consider whether
registers facilitate unauthorized access. BRAZIL, opposed by the
IIFB and SWITZERLAND, recommended that a sui generis system
include benefit-sharing arrangements.
Delegates opposed requesting the Article 8(j)
Working Group to identify elements of a regime for sui generis
traditional medicines, while CANADA encouraged cooperation with fora
addressing the issue. The EU called for integrating biodiversity
concerns into policies of other fora, and UNCTAD suggested
cooperating with trade-related fora. MEXICO called for examining
mechanisms of IPRs complying with CBD Article 8(j). Regarding
cooperation with WIPO, the EU, opposed by the IIFB, asked that
WIPOï¿½s relevant findings on the protection of traditional knowledge
be conveyed to the Article 8(j) Working Group.
A revised co-Chairsï¿½ text will be prepared,
including written comments on the Annex containing a list of
elements for sui generis systems.
IN THE CORRIDORS
Some SWG-I delegates feared that the late tabling
of the revised draft guidelines on impact assessments would
necessitate striving for last minute solutions over sensitive issues
such as references to PIC and customary law. Others appeared
confident that the Bonn Guidelines will soon have an indigenous
cousin: the Akwekon guidelines on cultural, environmental and social
SWG-IIï¿½s tormented discussions on the co-Chairsï¿½
text on elements for sui generis systems saw the tide turning
on registers and databases, with a number of Parties upholding
indigenous peoplesï¿½ concerns that these instruments may become means
of unauthorized access and work against the goal of protecting
traditional knowledge. One delegate ventured that ABS-related
concerns voiced in SWG-II would be alleviated by the Working Group
Chairï¿½s promise of spirited benefit-sharing in exchange for timely
completion of work by Thursday evening.
THINGS TO LOOK FOR TODAY
SUB-WORKING GROUP I: SWG-I will convene at
10:00 am in Room I to discuss co-Chairsï¿½ texts on the composite
report on status and trends, and the draft guidelines on impact
assessments. Delegates will also consider a CRP on technology
transfer. Discussions on these items will continue in the afternoon.
SUB-WORKING GROUP II: SWG-II will convene at
10:00 am in Room II to discuss a revised co-Chairsï¿½ text on sui
generis systems, and co-Chairsï¿½ texts on participatory
mechanisms and genetic use restriction technologies. Discussions on
these items will continue in the afternoon.
PLENARY: Plenary will meet at 5:30 pm to review