Published by the
International Institute for Sustainable Development (IISD)
Vol. 09 No. 272
Friday, 12 December 2003
ARTICLE 8(J) WG-3 HIGHLIGHTS:
THURSDAY, 11 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) considered a co-Chairs’ text on the composite report on
status and trends, and conference room papers (CRP) on the draft
Akwé: Kon guidelines for impact assessments and on technology
transfer. Sub-Working Group II (SWG-II) discussed co-Chairs’ texts
on participatory mechanisms and genetic use restriction technologies
(GURTs), CRPs on participatory mechanisms and sui generis
systems for the protection of traditional knowledge, and an L
document on GURTs. A brief Plenary session was held in the afternoon
to review progress.
SUB-WORKING GROUP I
COMPOSITE REPORT: SWG-I co-Chair John Herity
(Canada) presented a co-Chairs’ text on the composite report on
status and trends of traditional knowledge.
Draft recommendations: CANADA suggested
preambular references to the desirability of ongoing work, and to
the prior informed consent (PIC) of knowledge holders.
Regarding the first phase of the report, the
EUROPEAN COMMUNITY (EC) and BURKINA FASO requested linking
information gathering to the report’s revision. Liberia, on behalf
of the AFRICAN GROUP, proposed including feasible
information-gathering means, other than the Clearing-House Mechanism
Delegates agreed to retain a reference to
assessing registers’ advantages and limitations. The
INTERNATIONAL INDIGENOUS FORUM ON BIODIVERSITY (IIFB) requested
establishing an indigenous advisory committee to assist in the
report’s preparation. Delegates debated the necessity of a peer
review, and agreed to a proposal by BURKINA FASO and the IUCN that
the indigenous advisory group, provided for in Annex I of decision
VI/ 10 on the outline of the composite report, undertake the review.
Regarding the second phase of the report, BURKINA
FASO proposed that field studies be undertaken by stakeholders, with
the IIFB requesting that they be carried out according to community
guidelines for obtaining consent for access and to conduct research.
Regarding developing an action plan, the EC, with
CANADA and the IUCN, stressed the need to identify actors and
timeframes, and develop the annexed elements before adopting the
plan. Delegates agreed, inviting Parties’ action on the suggested
Draft action plan: The IIFB requested, and
delegates agreed, to delete a section on definitions. The WORLD
CONSERVATION MONITORING CENTRE of the UN Environment Programme
suggested, and delegates agreed, that indigenous people participate
in preparations of a questionnaire for the compilation of thematic
reports on CBD Article 8(j).
On indicators, delegates opposed referring to
indigenous population data. The EC cautioned against the premature
development of indicators. On research ethics, CANADA encouraged the
use and development of codes of ethics. Pakistan, on behalf of the
ASIAN GROUP, called for respecting indigenous rights while
establishing new protected areas.
Delegates debated CANADA’s proposal to delete
language encouraging fair and equitable resolution of land claims.
They agreed to retain the reference, and state that land claims be
subject to national law and international obligations. The IIFB
called for respecting the rights of uncontacted or voluntarily
SWG-I approved the document as amended.
IMPACT ASSESSMENTS: Co-Chair Herity presented
a CRP on the draft Akwé: Kon guidelines (UNEP/CBD/WG8J/3/
SWG.I/CRP.2). The IIFB explained that Akwé: Kon means "everything,"
referring to the customary rule not to exclude any outcome when
Draft recommendations: Italy, on behalf of EC
Member States and acceding countries (EU), requested recalling
decision VI/7 A of the Conference of the Parties (COP) on guidelines
for incorporating biodiversity-related issues into environmental
impact assessment legislation, and CANADA Annex II of decision VI/10
on recommendations for impact assessments. ARGENTINA and BRAZIL
suggested preambular language on using the guidelines in a manner
consistent with international obligations. The IIFB and the AFRICAN
GROUP opposed referring to a compilation of sacred sites.
Draft guidelines: Many opposed a proposal by
the ASIAN GROUP to define sacred sites as areas declared as such by
national governments. Delegates agreed to refer to areas held to be
of particular importance by national governments or indigenous and
The IIFB proposed, and CANADA and the US
supported, retaining a definition of customary law.
On social impact assessments, KENYA proposed
assessing socioeconomic aspects. The AFRICAN GROUP requested
including economic aspects in all assessments. Delegates agreed to
retain original language on social impact assessments, and to
interpret it to include economic aspects, as proposed by the EU.
Delegates agreed that assessments should identify
the actors responsible for liability, redress, insurance and
compensation for preventable adverse impacts of development
On indigenous participation, CANADA said
communities should be invited, rather than obliged, to participate.
The IIFB requested record of its opposition to language requiring
PIC of communities when required by national legislation. Regarding
bracketed language on articulating legal responsibilities and
jurisdictional matters, delegates agreed with a proposal by the
BAHAMAS to clarify legal responsibilities for matters arising from
the conduct of assessments, including enforcement, and liability and
redress measures. CANADA suggested requesting Parties to include
assessment-related information in their national reports.
SWG-I approved the guidelines as amended.
TECHNOLOGY TRANSFER: Co-Chair Herity
presented a CRP on technology transfer and cooperation
(UNEP/CBD/WG8J/ 3/SWG.I/CRP.1), recommending that COP-7 take into
account communities’ traditional and innovative technologies and,
following an amendment by the IIFB, mechanisms for ensuring that
transfer of these technologies respect communities’ rights. SWG-I
approved the draft recommendation as amended.
SUB-WORKING GROUP II
PARTICIPATORY MECHANISMS: The Secretariat
introduced a co-Chairs’ text on participatory mechanisms for
indigenous and local communities.
CANADA, supported by the IIFB, SAINT LUCIA, COSTA
RICA and TANZANIA, proposed encouraging mechanisms to enhance
participation of indigenous and local communities throughout the CBD
process. BRAZIL, UGANDA and the EU opposed, noting logistical,
financial and procedural concerns. Delegates agreed to encourage
incorporating practical measures to enhance communities’
participation, where appropriate, in CBD’s COP, Subsidiary Body on
Scientific, Technical and Technological Advice (SBSTTA) and working
MEXICO, supported by CUBA and the IIFB, and
opposed by CANADA, called for guaranteeing communities’ right to
information. UGANDA requested strengthening, and the IIFB
guaranteeing, indigenous participation. Following discussion,
delegates agreed to delete a recommendation to maximize
opportunities for participation in other international processes.
On inviting Parties to include information on
community participation in their national reports, NAMIBIA proposed
including measures and approaches to enhance participation.
On a voluntary funding mechanism for
participation, ARGENTINA, supported by BRAZIL, MEXICO and UGANDA,
suggested that it facilitate community participation from developing
countries and countries with economies in transition. The EU, with
CHINA, MEXICO, UGANDA and NAMIBIA, and opposed by ARGENTINA,
proposed that the COP take into account UN practices when developing
guidelines and criteria for the funding mechanism.
On further developing a thematic focal point on
Article 8(j) under the CHM, NEW ZEALAND suggested providing
information in appropriate and accessible languages of communities.
On developing communication networks, the IIFB requested
communities’ consultation, with ARGENTINA, BRAZIL and UGANDA
suggesting consultation through national focal points.
In the afternoon, the Secretariat introduced a
CRP (UNEP/ CBD/WG8J/3/SWG.II/CRP.2). Working Group Chair Hans
Hoogeveen (the Netherlands) explained revisions to the Canadian
proposal to enhance indigenous participation in other CBD bodies,
noting that participation should be enhanced, where appropriate, in
accordance with the rules of procedure. ARGENTINA opposed specific
references to other CBD bodies.
BRAZIL and TANZANIA suggested, and delegates
agreed, enhancing the capacity of communities to collaborate with
national research institutions to identify research and training
needs. MEXICO, the EU and the IIFB proposed, and delegates accepted,
language on promoting synergies between conventions.
On the voluntary funding mechanism, the EU, NEW
ZEALAND and the IIFB, opposed by ARGENTINA, reiterated the need to
facilitate participation of communities from developing countries
and countries with economies in transition "in particular." The
reference was bracketed.
SWG-II approved the text as amended and
GENETIC USE RESTRICTION TECHNOLOGIES: SWG-II
co-Chair Diann Black Layne (Antigua and Barbuda) presented a
co-Chairs’ text on GURTs.
Regarding an invitation to develop
capacity-building programmes, EL SALVADOR stressed the need for
prior need and gap analyses.
Regarding a recommendation that COP-7 request the
Article 8(j) Working Group to consider the report of the Ad Hoc
Technical Expert Group (AHTEG) on GURTs at its next meeting, EL
SALVADOR said COP should examine the report. The EU requested that
the Working Group review Article 8(j)-related aspects of the report,
and a reference to deliberations of SBSTTA-10.
The UN FOOD AND AGRICULTURE ORGANIZATION drew
attention to its study on GURTs’ implications on agricultural
biodiversity, and BRAZIL, ARGENTINA and the IIFB proposed that it be
considered at the Working Group’s next meeting.
In the afternoon, SWG-II considered and approved
without amendment UNEP/CBD/WG8J/3/WG.II/L.1.
SUI GENERIS SYSTEMS: The
Secretariat introduced a CRP on elements of a sui generis
system for the protection of traditional knowledge
Preamble: Regarding recognition of
communitiesï¿½ right to grant, refuse and determine the level of
access, CHINA, opposed by the IIFB, said it should be subject to
national legislation, and the EU to international law. On
recognizing that the continued use of traditional knowledge already
accessed without communitiesï¿½ PIC should only be granted with their
PIC, the EU proposed that the use be subject to national and
international law. CHINA and MALAYSIA requested bracketing proposed
references to international law.
Operative paragraphs: Regarding a
recommendation on future work of the Article 8(j) Working Group,
delegates agreed with MEXICO to refer to systems and measures for
the protection of traditional knowledge. The IIFB, opposed by
BRAZIL, said benefit-sharing arrangements should only be referred to
in the Annex containing potential elements for sui generis
Delegates agreed with the EC to delete a
recommendation on cooperation with other conventions. CANADA
proposed deleting the Annex. Delegates retained the Annex, agreeing
that it outlines draft elements.
SWG-II approved the CRP as amended and bracketed.
SWG-I co-Chairs Herity and Earl Stevenson (Peguis
First Nation), and SWG-II co-Chairs Black Layne and Lucy Mulenkei
(African Indigenous Womenï¿½s Network) reported on completion of SWG-I
and SWG-IIï¿½s work, respectively. The IIFB presented Working Group
Chair Hoogeveen and CBD Executive Secretary Hamdallah Zedan with
IN THE CORRIDORS
With timely completion of their work and no
contact group sessions, one delegate remarked that participants
clearly favored late night Christmas shopping sprees to late night
drafting sessions. Noting the meetingï¿½s exceptional smooth running,
some expressed concerns that explosive presents may be presented to
the closing Plenary, such as a proposal to replicate the indigenous
participation model of the 8(j) Working Group in other CBD bodies.
Reflecting on the weekï¿½s discussions, some
delegates feared that the momentum gathered at the previous meetings
of the Working Group was melting away, while others remained
optimistic that the efficiency of the discussions reflected improved
THINGS TO LOOK FOR TODAY
PLENARY: The closing Plenary will convene at
10:00 am in Room I to discuss recommendations from the UN Permanent
Forum on Indigenous Issues, adopt the meetingï¿½s recommendations and
report, address other matters that Parties may wish to raise, and
hear closing statements.
ENB REPORT: The Earth Negotiations Bulletin
report containing a summary and analysis of this meeting will be
available online on Sunday, 14 December, at