CONSEJO INTERNACIONAL DE TRATADOS INDIOS

Statement of International Indigenous Forum on Biodiversity

at the Ad Hoc Open-Ended Working Group on Access and Benefit Sharing

Convention on Biological Diversity, 22-26 October 2001 - Bonn, Germany

Mr. Chairman, on behalf of the International Indigenous Forum on Biodiversity, which convened in the city of Bonn from the 15 to 21 of October, I have the honor to address this Working Group. The Parties will recall that at the 5^th Conference of the Parties of the Convention on Biological Diversity (COP5), the advisory status of this Forum to the Parties to the CBD was recognized in its decision V/16. In opening, Mr. Chairman, we would like to congratulate you on your election as chair of this meeting. We would also like to thank the city of Bonn and the government of Germany for hosting this meeting and for the warm hospitality offered to the Indigenous delegates during our time in Bonn.

1) The Convention on Biological Diversity was negotiated without Indigenous Peoples’ participation. However, the International Indigenous Forum on Biodiversity has now been following the work of this Convention over many years and with great interest, because the Convention has major implications for Indigenous Peoples around the world and raises major concerns for our peoples.

2) Indigenous Peoples are important to this process because our lands and territories contain the highest biological diversity in the world, which are imbued with high social, cultural, spiritual and economic values. We possess knowledge of the management and sustainable use of the world’s biological diversity, which has been recognized in the international agreements that emerged from the Rio (UNCED) process. We wish to emphasize that Indigenous women play a vital role in the conservation and the sustainable use of biological diversity and are key rights-holders over specific traditional knowledge. 

3) We reaffirm our inherent and collective rights as Indigenous Peoples. These rights are being increasingly recognized within national and international legal instruments, including, inter alia: self-determination, rights to our lands, territories, customary legal systems, institutions, languages, cultural heritage, control over our own knowledge, our self development, and our free, prior and informed consent to any activity that affects our peoples. Indigenous Peoples are rights holders – not mere stakeholders. At present, the United Nations Draft Declaration on the Rights of Indigenous Peoples in its current form, provides the minimum standards with respect to our rights which we commend to the Parties.

4) Within the Convention on Biological Diversity, the speedy recognition of Indigenous Peoples’ rights and contributions, as presently being discussed under the Working Group on Article 8(j) and related provisions, will effectively progress the thematic and cross-cutting work programmes of the CBD.

5) The Fifth Conference of the Parties to the Convention on Biological Diversity and the Panel of Experts on Access and Benefit Sharing have emphasized that trust is the fundamental precondition of progress in the pursuit of the third objective of the Convention, namely, the sensitive issue of access to genetic resources and the fair and equitable sharing of the benefits arising from the utilization of these resources. However, it is difficult to build relationships of trust while some governments refuse to recognize our existence as Indigenous Peoples; our rights to our lands, territories, natural resources and knowledge systems, and our free, prior and informed consent to any activity that concerns us. In short, the recognition of our existence and rights is a fundamental precondition for building trust.

6) Mr. Chairman, our collective knowledge is not merely a commodity to be traded like any other in the market place. Our knowledge of biodiversity is indivisible from our identities and our laws, institutions, value systems and cosmovisions as Indigenous Peoples. For generations, our peoples have been and continue to be custodians of nature upon which we all depend. We are therefore fully committed to the first two objectives of the Convention, that is, the conservation and sustainable use of biodiversity. However, any discussion of the third objective, that of access and benefit sharing, must recognize our fundamental rights to control our own knowledge, our right to free, prior informed consent as peoples, and our collective land and territorial security.

7) In the context of Indigenous People’s rights to self-determination and sustainable development, the right to free, prior and informed consent to all programmes and plans affecting our lands and knowledge has emerged as the standard to be applied in promoting and protecting our rights in the development process. Free, prior and informed consent means:

1.      All members of the communities affected consent to the decision

2.      Consent is determined in accordance with customary laws, rights and practices

3.      Freedom from external manipulation, interference or coercion

4.      Full disclosure of the intent and scope of the activity

5.      Decisions are made in a language and process understandable to the communities

6.      Indigenous Peoples’ customary institutions and representative organizations must be involved at all stages of the consent process

7.      Respect for the right of Indigenous Peoples to say NO.

8) It is important, Mr. Chairman, that this Convention should carry out its objectives in a balanced manner. However, we are concerned that at present, disproportionate emphasis is being placed upon the commercial and economic values of biodiversity through intellectual property rights, at the expense of its conservation and its cultural and spiritual values. The privatization and commodification of our knowledge and natural resources will undermine the political, social, economic, and cultural integrity of our peoples.

9) Mr. Chairman, until such time that the Parties recognize the existence and rights of Indigenous Peoples, our peoples will not be in a position to consider providing our free, prior and informed consent to the commercial exploitation of such knowledge and resources. We have suffered discrimination, exploitation and marginalization for generations. The constant insistence that we commodify our knowledge and resources must stop. Indigenous peoples cannot be forced to share our knowledge and resources.

10) Mr. Chairman, we note the conclusion of the report of the Second Meeting of the Panel of Experts on Access and Benefit Sharing that capacity building should be the essence of the work of the Convention with respect to access and benefit sharing. Our view is that capacity building must be seen from a broader perspective. One that contributes to the strengthening of our rights and cultures, and the capacity of the Parties to meet their obligations with respect to our rights as Indigenous Peoples.

Finally, Mr. Chairman, we would like to present the principal concerns of the International Indigenous Forum on Biodiversity. We have therefore taken this opportunity to annex a series of recommendations, which we regard as preconditions for a process of dialogue and mutual understanding for consideration by the Parties.

Thank you, Mr. Chairman.

ANNEX

As an advisory body to the Parties to the Convention on Biological Diversity, the International Indigenous Forum on Biodiversity submits the following recommendations to the Parties:

Self- Determination

Acknowledge that Indigenous Peoples’ are rights-holders and not mere stakeholders. Indigenous Peoples have the collective rights to:

·        Self-determination

·        Their lands and territories

·        Their cultural heritage and control over their own knowledge

·        Free, prior and informed consent to all activities affecting their lands, territories, natural resources and traditional knowledge.

Prior and Informed Consent

In the context of Indigenous Peoples’ rights to self-determination, free, prior and informed consent means:

1.      All members of the communities affected consent to the decision

2.      Consent is determined in accordance with customary laws, rights and practices

3.      Freedom from external manipulation, interference or coercion

4.      Full disclosure of the intent and scope of the activity

5.      Decisions are made in a language and process understandable to the communities

6.      Indigenous Peoples’ customary institutions and representative organizations must be involved at all stages of the consent process

7.      Respect for the right of Indigenous Peoples to say NO.

Relationships with other International Legal Regimes

The Parties to the Convention on Biological Diversity must uphold its integrated approach towards biological diversity, traditional knowledge and access and benefit sharing over narrow commercial approaches in WTO TRIPS and similar agreements.

Existing and emerging international legal instruments on the rights of Indigenous Peoples must be applied.

Operations of the Convention on Biological Diversity

Promote language and mechanisms for the full and effective participation of Indigenous Peoples as equal partners in the entire work programme of the Convention on Biological Diversity in an integrated way:

·        Adopt the expression “Indigenous Peoples and local communities” in all the work and documents of the Convention on Biological Diversity

·        Establish the necessary linkages between the Convention on Biological Diversity’s work programmes on cross-cutting issues: Article 8(j) and related provisions, Incentive Measures, Access and Benefit Sharing; and between these cross-cutting issues and thematic work programmes

·        Ensure that the progress which has already been made in the Working Group on Article 8(j) and related provisions is reflected in the work and documents of the Working Group on Access and Benefit Sharing

·        Ensure that the positive language on Indigenous Peoples in the report of the Second Meeting of the Panel of Experts on Access and Benefit Sharing is adequately reflected in the main working documents of this Working Group

·        Recall that at COP5 advances were made in prioritizing the elements and tasks of the Work Programme of Article 8(j) and related provisions. Very high priority was given to participatory mechanisms; exchange and distribution of information; monitoring; and legal elements. Progress on these priorities is a precondition for Indigenous Peoples’ involvement in the Convention on Biological Diversity’s work on access and benefit sharing

·        Develop mechanisms for the full and effective protection of Indigenous Peoples’ rights. Until such time that such mechanisms enter into effect, we propose that a moratorium on the commercial exploitation of their traditional knowledge and natural resources, including genetic resources should be respected.

Comments on the Access and Benefit Sharing Documents

Legislative, administrative and policy measures, and means to ensure the respect, preservation and maintenance of the traditional knowledge, innovations and practices of Indigenous Peoples and local communities

Legal recognition of the rights of Indigenous Peoples is the most effective measure to ensure the respect, preservation and maintenance of the knowledge, innovations and practices of Indigenous Peoples and local communities. Clarity in the legal position of Indigenous Peoples is also the most effective way of reducing transaction costs and delays due to conflicts with communities.

Capacity Building

The report of the Second Meeting of the Panel of Experts on Access and Benefit Sharing concludes that capacity building should be the essence of the work of the Convention in this area. The International Indigenous Forum on Biodiversity recommends:

·        The need for capacity-building among Parties with respect to existing and emerging international standards on the rights of Indigenous Peoples

·        The need to identify examples of best practice in the development of national legislation and sui generis systems conforming with the standards proposed by Indigenous Peoples

·        Promote direct engagement with representative Indigenous Peoples’ organizations in enhancing the capacity of Parties with regard to legislative and other measures to secure practical recognition of the rights of Indigenous Peoples as set out in existing and emerging international instruments.

Equitable Sharing of Benefits

For Indigenous Peoples the legal recognition of Indigenous Peoples’ rights, especially land and territorial security, is paramount over monetary and non-monetary benefits. Only from this position of security can flow equitable sharing of benefits.