The work of the CBD during the intersessional year 2009

Much as in previous years (see The Indigenous World 2008 and 2009) the negotiations of the international regime on access and benefit sharing were at the centre of the work and indigenous follow-up to the Convention on Biological Diversity (CBD) throughout 2009. As an intersessional year, 2009 was devoted to the advancement of the negotiations through meetings of ad hoc technical and legal experts groups and meetings of the ad hoc intersessional open-ended Working Group on Access and Benefit Sharing (WGABS), as planned in the roadmap adopted at COP9 in May 2008.[1]

Indigenous representatives from all the regions have actively worked to ensure indigenous peoples’ rights are not ignored in the proposed regime through their direct participation in formal and informal meetings and the drafting of operative text and other proposals to be considered in the negotiations.

As the negotiations are continuing until at least COP10, to be held in Nagoya (Japan) in October 2010, where the outcome is to be adopted, this short article will only mention the main events and key documents in such negotiations and the main contributions made by indigenous organizations and representatives in the process in order to help those interested in accessing the relevant documentation.

Informal preparatory meetings

Three meetings with wide indigenous participation were convened by European countries in order to provide an opportunity for in-depth discussions on the issue of how to deal with traditional knowledge and indigenous rights in the context of the international regime. The first meeting was organized by the Austrian Environmental Ministry and was held in Vienna in December 2008.[2] The second was convened by the Swedish government as part of its activities as president of the European Union and as a preparation for the back-to-back meetings of the WGABS and the Working Group on Article 8(j) and related provisions (WG8J), held in Montreal in November 2009 (see below). The third took place in Vilm (Germany) organized by the German government with a view to discussing the main issues and elaborating operative text as an input to the negotiations.[3] Several indigenous experts participated in the meetings.

Groups of Technical and Legal Experts (GTLE)

As planned in the road map, adopted after much controversy at COP9, three meetings of technical and legal experts were held as part of the process to elaborate an international regime. The Group of technical and legal experts on concepts, terms, working definitions and sectoral approaches in the context of the international regime on access and benefit-sharing met in Windhoek (Namibia), 2-5 December 2008)[4] without indigenous participation. The GTLE on compliance in the context of the international regime on access and benefit-sharing was held in Tokyo in January 2009. As part of the documentation for that meeting, which involved the participation of indigenous experts, the Executive Secretary commissioned a paper to indigenous experts on the issue of compliance in relation to the customary law of indigenous and local communities, national law, across jurisdictions and international law.[5] The GTLE on traditional knowledge associated with genetic resources in the context of the international regime on access and benefit-sharing met in Hyderabad, India, 16-19 June 2009 with the participation of several indigenous experts and produced an interesting report in which most of the relevant issues about the treatment of the issue of traditional knowledge within the context of the ABS discussions are debated.[6] The reports of the GTLEs were then submitted to and considered at the meetings of the WGABS as the only body mandated to elaborate and negotiate the regime.

Meetings of the Working Group on Access and Benefit Sharing (WGABS)

As planned, two meetings of the WGABS were held during 2009.The first (WGABS7, Paris, April 2009),[7] commenced negotiations on the basis of the Bonn Annex (see The Indigenous World 2009). As decided by COP9, the WG discussed operative text on the issues of objective, scope, compliance, fair and equitable benefit-sharing and access. The Parties and other interested groups submitted operative text in writing prior to the meeting and, in the discussion process, such operative text was incorporated to the annex that became the Paris Annex for future negotiations. The seven-day meeting was preceded by consultations with the Co-chairs.[8] The IIFB held its preparatory meeting before the WGABS session and was active in proposing text regarding indigenous peoples’ rights and interests in the contact group negotiations.[9]

Between WGABS7 and WGABS8, the Parties and others continued providing written inputs to the text through the Secretariat. All this written information, plus the reports of the GTLEs (including, this time, the Hyderabad report) and the Paris Annex, made up the documentation for the WGABS8, held in Montreal in November 2009 after the meeting of the WG8J (see below).[10]

The Montreal meeting considered the pending issues from the Paris meeting for a first round of negotiations (i.e., traditional knowledge and capacity building) and held a second round review of the other sections (access, benefit-sharing and compliance). There were no detailed negotiations on objective, scope or nature, although the African Group, GRULAC and the Megadiverse countries inserted the word “protocol” into the negotiation text, thus making it clear that their aim was to adopt a binding instrument at COP10.

The International Indigenous Forum on Biodiversity (IIFB) proposed operative text based on the work done at the Vilm meeting and after further elaboration on it at the IIFB sessions. Indigenous negotiators held meetings with the Co-chairs and with the regional and interregional groups of the Parties and were able to participate in the contact groups. They were particularly active in the discussion on traditional knowledge associated with genetic resources, which constitutes a separate section of the regime. In the contact group established for the review of this section (chaired by Norway and Mexico) the IIFB had the support of the African Group for all its written proposals, which were therefore, as they were supported by Parties, considered in the negotiation. The IIFB submitted language related to the free, prior and informed consent (known as FPIC) of indigenous peoples; indigenous own authorities as the authorities to grant access and to establish benefit-sharing arrangements; the intrinsic link between traditional knowledge and genetic resources; the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) as the minimum standard on indigenous peoples’ rights; indigenous peoples’ rights regarding their traditional knowledge and genetic resources on their territories; transboundary issues and traditional knowledge / genetic resources shared by several indigenous peoples; considering the lack of respect for indigenous FPIC as misappropriation; and other issues.[11] The full extent of the IIFB proposals did not survive this first round of negotiations at the contact group although some very relevant language regarding indigenous peoples’ rights can still be found in the final reviewed document (Montreal Annex).[12] Notwithstanding this certain level of success, indigenous representatives of the IIFB expressed their concern as the Parties’ proposals and interventions in the negotiations did not send a positive signal on their commitment to indigenous peoples´ rights, in spite of general statements made by several regional groups on their support for UNDRIP.

The IIFB also noted the cross-cutting nature of the issue of traditional knowledge and indigenous rights, which should therefore be considered under all sections of the regime (compliance, access, benefit-sharing and capacity-building). They proposed deleting the current separate section on traditional knowledge and to incorporate its contents in the relevant sections, keeping a short section affirming the main rights and principles. The Parties did not adopt this approach, as negotiators were not ready to discuss changes in the structure of the text at this stage, in spite of the difficulties that the overlapping between the sections and subsections was creating in the overall negotiations.

The results of the Montreal meeting were: a new annex with all the sections reviewed and incorporating new text from submissions by the Parties and others (the Co-chairs stated that no new text would be incorporated in future); a complementary annex on “parked” text to be considered at WGABS9; and a complementary road map to accelerate negotiations through regional consultations and two meetings convened by the Co-chairs to be held in 2010 before the last meeting of the WGABS (scheduled for March 2010). Indigenous representatives are included in both the Co-chairs’ meetings, and the participation in the regional consultations will depend on indigenous lobbying in their respective regions.

Other issues under the CBD during 2009

An important challenge to the CBD process as a whole is under discussion as the 10th Conference of the Parties (COP10) approaches and so does the date to fulfill the so-called 2010 Biodiversity Target. Both the Strategic Plan of the CBD and its 2010 Framework come to an end and, in 2009, the first discussions were held to establish a new framework for the implementation of the Convention. Failure in former targets and objectives will probably result in a more realistic approach and a focus on compliance at the national level as well as in reliable monitoring and indicators systems which could allow progress (or lack of it) to be measured.[13] Some indigenous representatives and organizations are contributing their views on the future framework to make sure targets and objectives related to indigenous peoples’ issues under the CBD are maintained and strengthened.

As mentioned before, the sixth meeting of the WG8J[14] was held the week before WGABS8. Given past experiences, particularly WG8J5 (see The Indigenous World 2009), the IIFB made sure that the WG was not once more held hostage at the ABS negotiations and it proposed substantive discussions under all the issues of the agenda, which resulted in some positive draft decisions to be submitted to COP10. We can summarize them as follows:

- On participatory mechanisms, they called for the continuation of ongoing activities (voluntary fund, traditional knowledge portal). IIFB called for support for indigenous capacity building and communications activities, full inclusion in Communication, Education and Public Awareness (CEPA), and participation in activities related to 2010 as UN International Year on Biodiversity.

- On sui generis systems for the protection of traditional knowledge: the Parties will continue the discussions on the issue with a view to adopting some elements that should be considered for the establishment and/or recognition of sui generis systems. The Parties and others are called to submit views and information on current existing practices.

- Code of ethics: the WG8J adopted a set of elements to be considered when developing codes of ethical conduct to ensure respect for the cultural and intellectual heritage of indigenous and local communities. The draft decision calls on the Parties to adopt such elements at COP10.

· Multi-year programme of work on Article 8(j):[15] after discussions in plenary and a contact group, a set of draft decisions was adopted establishing a reviewed programme of work (PoW).

Under this issue it was decided that:

- PoW tasks that have been completed or superseded will be retired, ongoing tasks will be maintained and work on some pending tasks will be initiated.

- The PoW will include a new component on Article 10(c)[16] and, in order to decide how to work on this issue, a meeting will be convened to start a process similar to the one that led to the adoption of the former PoW.

- Future meetings of the WG8J will have a new agenda item: in-depth dialogue on thematic areas and cross-cutting issues. Climate change and protected areas will be considered at its next meeting under this agenda item.

- On indicators, the WG calls for the adoption of two indicators: status and trends on land use in traditional territories (or “status and trends on land security” which was the IIFB proposal and remains bracketed) and “status and trends regarding traditional occupations”. The draft decision suggests activities to start work on these indicators and to consider them within the review of the 2010 Target and Strategic Plan.

- On participation of local communities, an expert meeting will be held to consider how to enhance their participation in the work of the Convention.

The Parties are called to support indigenous peoples’ own initiatives to document their traditional knowledge.

The decision takes notes of the recommendations from the Permanent Forum on Indigenous Issues (PFII) and calls the Executive Secretary to report to the PFII on progress achieved on discussions of the elements of a code of ethics.

Regarding the work on ABS under the WG8J, the IIFB proposed a review of the Hyderabad report,[17] as a positive way of dealing with the issue and contributing to the WGABS8.[18] The Parties were asked to identify paragraphs in the report that they could support and transmit as a contribution to the WGABS. As a result of this exercise, an interesting list of proposals was transmitted from WG8J to WGABS8, facilitating the inclusion of some key issues on traditional knowledge within the framework of the international regime. Although the impact of such proposals was not as important as intended by indigenous representatives, it helped to reach agreement on some basic aspects of the recognition of indigenous peoples’ rights to their traditional knowledge associated with genetic resources and it may prove a useful tool for refining some text in the current Annex.

Notes and references

[1] See Decision IX/12 of the Conference of the Parties.
[2] The outputs of the Vienna meeting were available for the seventh meeting of the WGABS (Paris, 2-8 April, 2009) as informative document UNEP/CBD/WG-ABS/7/INF/7. Available at: http://www.cbd.int/wgabs7/doc [3] The report on the Vilm workshop was made available at the eighth meeting of the WGABS (Montreal, 9-15 November, 2009). UNEP/CBD/WG8J/6/INF/14; UNEP/CBD/WG-ABS/8/INF/1
[4] All documents, including reports, available at http://www.cbd.int/doc/?meeting=ABSGTLE-01
[5] UNEP/CBD/ABS/GTLE/2/INF/3, by Merle Alexander, Dena Kayeh Institute, (Canada); Preston Hardison, Tulalip Tribes, (USA); Mathias Ahren, Saami Council (Sweden, Norway and Finland), available at http://www.cbd.int/doc/?meeting=ABSGTLE-02
[6] UNEP/CBD/WG-ABS/8/2 at http://www.cbd.int/doc/?meeting=ABSGTLE-03
[7] Report of the meeting with Paris Annex in document UNEP/CBD/WG-ABS/7/8
[8] The Co-chairs for the process of elaboration and negotiation of the regime are Mr Fernando Casas (Colombia) and Mr Timothy Hodges (Canada), as elected by the Parties at COP7.
[9] More information on indigenous contributions to WGABS7 at http://www.indigenousportal.com/Biological-Diversity/Meetings/Access-and-Benefit-sharing-WGABS-7.html
[10] To this was added the contribution (“views”) of the WG8J to the WGABS, a document negotiated at the WG8J meeting based on the Hyderabad report. Doc UNEP/CBD/WG-AABS/8/7.
[11] IIFB representatives did also submit proposals to the contact group on capacity building, and to the second round contact groups on compliance, access and benefit-sharing.
[12] Doc UNEP/CBD/WG-ABS/8/8.
[13] On the discussions and review process, see http://www.cbd.int/2010-target/
[14] Full report and draft decisions in UNEP/CBD/COP/10/2. Documentation for the meeting at http://www.cbd.int/doc/?meeting=WG8J-06
[15] The original PoW on Article 8(j) and related provisions was adopted by COP5 in 2000. See decision V/16.
[16] On customary sustainable use of biological diversity. Comprehensive information on the opportunities for indigenous peoples in the implementation of this Article can be found at www.forestpeoples.org
[17] Supra note 10.
[18] Supra note 10.

Written by Patricia Borraz, consultant working for Almáciga, for The Indigenous World 2010.