Recognition of Indigenous Peoples in Access and Benefit Sharing (abs) Legislation and Policies of the Parties to the Nagoya Protocol

AuthorH. Arjjumend
PositionMcGill University (Montreal, Canada)
Pages86-113
BRICS LAW JOURNAL Volume V (2018) Issue 3
RECOGNITION OF INDIGENOUS PEOPLES
IN ACCESS AND BENEFIT SHARING ABS LEGISLATION AND POLICIES
OF THE PARTIES TO THE NAGOYA PROTOCOL
HASRAT ARJJUMEND,
McGill University (Montreal, Canada)
DOI: 10.21684/2412-2343-2018-5-3-86-113
The Nagoya Protocol on Access and Benefit Sharing (ABS) provides for the rights of
indigenous peoples and local communities (ILCs) in accordance with the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP). States Parties are obliged to take
legislative, administrative and technical measures to recognize, respect and support/ensure
the prior informed consent of indigenous communities and their eective involvement
in preparing mutually agreed terms before accessing genetic resources and associated
traditional knowledge or utilizing them. Within the ambit of contemporary debates
encompassing indigenous peoples’ right to self-determination, this paper examines the
eectiveness of the percolation of the legal intent of international law into existing or
evolving domestic laws, policies or administrative measures of the Parties on access and
benet sharing. Through an opinion survey of indigenous organizations and the competent
national authorities of the Parties to the Convention on Biological Diversity (CBD), the
ndings indicate that the space, recognition and respect created in existing or evolving
domestic ABS measures for the rights of indigenous communities are too inadequate to
eectively implement the statutory provisions related to prior informed consent, mutually
agreed terms and indigenous peoples’ free access to biological resources as envisaged
in the Nagoya Protocol. As these bio-cultural rights of indigenous peoples are key to the
conservation and sustainable use of biodiversity, the domestic ABS laws need reorientation
to be suciently eective in translating the spirit of international ABS law and policies.
Keywords: indigenous peoples; Nagoya Protocol; genetic resources; indigenous traditional
knowledge; bioresources; right to self-determination.
Recommended citation: Hasrat Arjjumend, Recognition of Indigenous Peoples in
Access and Benet Sharing (ABS) Legislation and Policies of the Parties to the Nagoya
Protocol, 5(3) BRICS Law Journal 86–113 (2018).
HASRAT ARJJUMEND 87
Table of Contents
Introduction
1. Methodology
1.1. Sampling for Structured Interviews
1.2. Structured Interviews
1.3. Participant Observation
2. Results and Discussion
2.1. Recognition of ILCs in Issuing PIC and MAT
2.2. Recognition of ILCs’ Access to Bioresources in Their Territories
Conclusion
Introduction
Indigenous peoples are known to be the most sustainable societies on the
planet. In 2011, the Joint Submission of Grand Council of the Crees (Eeyou Istchee),
Canada, et al. articulated that indigenous peoples and local communities (ILCs)
have a distinct, essential role1 in safeguarding biodiversity that benets humankind.2
However, indigenous peoples are among the most disadvantaged peoples in the
world.3 The actions by the mainstream non-indigenous societies, with their history
of exploitation, have resulted in threats to the survival of indigenous peoples and
1 See, e.g., Updated Global Strategy for Plant Conservation 2011–2020 in Conference of the Parties to the
Convention on Biological Diversity, Consolidated Update of the Global Strategy for Plant Conservation
2011–2020, Decision X/17, U.N. Doc. UNEP/CBD/COP/DEC/X/17, 29 October 2010, Annex, para. 9:
“[P]lant diversity is of special concern to indigenous and local communities, and these communities
have a vital role to play in addressing the loss of plant diversity.” See also, e.g., European Council,
Indigenous Peoples Within the Framework of the Development Cooperation of the Community and
the Member States, Resolution, 30 November 1998, para. 4: “[M]any indigenous peoples inhabit areas
crucial for the conservation of biodiversity, and maintain social and cultural practices by way of which
indigenous peoples have a special role in maintaining and enhancing biological diversity and in
providing unique sustainable development models.”
2 Oce of the High Commissioner for Human Rights, It’s Not Enough to Support the Declaration on the
Rights of Indigenous Peoples, Says UN Expert, statement issued by U.N. Special R apporteur on the
situation of human rights and fundamental freedoms of indigenous peoples, James Anaya, on the
occasion of the International Day of the World’s Indigenous Peoples, Geneva, 9 August 2010: “[Indigenous
peoples] have preserved, generation after generation, an extraordinary wealth of knowledge, culture,
and spirituality in the common benet of humankind, contributing signicantly to the world’s diversity
and environmental sustainability” (Sep. 20, 2018), available at http://unsr.jamesanaya.org/statements/
its-not-enough-to-support-the-declaration-on-the-rights-of-indigenous-peoples-says-un-exper t.
3 Oce of the High Commissioner for Human Rights, Combating Discrimination Against Indigenous
Peoples: “Indigenous peoples face many challenges and their human rights are frequently violated:
they are denied control over their own development based on their own values, needs and priorities;
they are politically under-represented and lack access to social and other services. They are often
marginalized when it comes to projects aecting their lands and have been the victims of forced
displacement as a result of ventures such as the exploitation of natural resources” (Sep. 20, 2018),
available at http://www.ohchr.org/EN/Issues/Discrimination/Pages/discrimination_indigenous.aspx

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