Mar 15

IIFB- WG8j9- Declaration on the INFORMED CONSENT

WG8j9

Indigenous Peoples, we reaffirm our status as such, are the holders of traditional knowledge, based on the right of ownership of our ancestral territories, and thus access to traditional knowledge, they must follow the rules and principles based on customary laws.

Free Prior and Informed Consent (FPIC) should be binding, and further developed through the creation of a group of indigenous experts. According to the decisions and guidelines of several organizations of United Nations System, FPIC should be the principle established for access to traditional knowledge instead of PIC.

The granting of free and informed consent, does not involve negotiation or granting intellectual property rights to third party users and licenses for the use and access to traditional knowledge. The ownership of traditional knowledge is for indigenous peoples, who have guarded for millennia through their customary laws and through their own governments. In this sense, competition for granting prior informed consent must be deposited in the legitimate and traditional authorities.

 

As for the distribution of profits proposed guidelines should not be limited to Bon guide or the Annex of the Nagoya Protocol, but these must also include safeguards to their traditional land rights and resources. We emphasize that the right to fair and equitable sharing should also contemplate cultural and spiritual elements of indigenous peoples.

As misuse and repatriation of traditional knowledge, it must include the return of objects including our traditional knowledge and relevant information, also considering compensation, compensation and restoration for the misuse of traditional knowledge. Therefore, the development of bio-cultural community protocols and should include proper procedures based on uses and customs of indigenous peoples.

Capacity building is key to compliance with prior informed consent element, the fair and equitable sharing of benefits, and to prevent the misuse of traditional knowledge.

Mar 15

Declaración sobre el Consentimiento Fundamento Previo

WG8J9

(Download PDF of statement)

Los Pueblos indígenas, reiteramos en nuestra condición de tales, somos los titulares del conocimiento tradicional, fundamentado en el derecho de propiedad ancestral de nuestros territorios, y por lo tanto para el acceso de los conocimientos tradicionales, éstas deben seguir las normas y principios basados en las leyes consuetudinarias.

El Consentimiento libre previo e informado (CLPI), debe ser de cumplimiento obligatorio, y desarrollado aún más a través de la conformación de un Grupo de Expertos Indígenas. De acuerdo a las decisiones y directrices de varios organismos del Sistema de las Naciones Unidas, el CLPI debe ser el principio establecido para el acceso a los conocimientos tradicionales en lugar del consentimiento fundamentado previo.

El otorgamiento del consentimiento previo libre e informado, no implica negociación, ni la concesión de licencias y derechos de propiedad intelectual a los terceros usuarios, por el uso y acceso al conocimiento tradicional. La titularidad del conocimiento tradicional corresponde a los pueblos indígenas, que han custodiado milenariamente por medio de sus leyes consuetudinarias y a través de sus gobiernos propios. En tal sentido, la competencia para el otorgamiento del consentimiento libre previo e informado debe estar depositado en las autoridades legítimas y tradicionales.

En cuanto a la distribución de beneficios las directrices propuestas no deben limitarse a las guías de Bon, ni al anexo del Protocolo de Nagoya, sino que estas además deben incluir las salvaguardas a los derechos territoriales y sus recursos tradicionales. Enfatizamos que el derecho a la distribución justa y equitativa debe contemplar igualmente elementos culturales y espirituales de los pueblos indígenas.

En cuanto al uso indebido y la repatriación de los conocimientos tradicionales, ésta debe incluir la repatriación de los objetos que incluyen nuestros conocimientos tradicionales así como la información pertinente, considerando también la indemnización, compensación y la restauración por el uso indebido de los conocimientos tradicionales. Por consiguiente, el desarrollo de los Protocolos bioculturales y comunitarios deben incluir procedimientos propios, basados en usos y costumbre de los pueblos indígenas.

El desarrollo de capacidades es un elemento fundamental para el cumplimiento del consentimiento libre previo e informado, la distribución justa y equitativa de los beneficios, así como para prevenir el uso indebido de los conocimientos tradicionales.

Mar 15

IIFB-WG8J9- Task 12 of the Multi-Year Programme of Work on the Implementation of Article 8(j) and Related Provisions

AD HOC OPEN-ENDED INTER-SESSIONAL WORKING GROUP ON ARTICLE 8(j) AND RELATED PROVISIONS OF THE CONVENTION ON BIOLOGICAL DIVERSITY

Ninth meeting
Montreal, Canada, 4-7 November 2015
Agenda Item 4
Task 12 of the Multi-Year Programme of Work on the Implementation of Article 8(j) and Related Provisions

(Download PDF of statement)

IIFB Core Principles for Inclusion in the

Draft Guidelines for the Development of Mechanisms, Legislation or Other Appropriate Initiatives to Ensure the Prior Informed Consent or Approval and Involvement of Indigenous Peoples and Local Communities for Accessing their Knowledge, Innovations and Practices, for Fair and Equitable Sharing of Benefits Arising From the Use of their Knowledge, Innovations and Practices, and for Reporting and Preventing Unauthorized Access of Such Knowledge

 

  1. There are many other agencies and bodies that have developed norms and standards and mechanisms on free, prior and informed consent (FPIC) or PIC of indigenous peoples. Such norms and standards should not be diminished by the Draft Guidelines being developed by WG8J under Task 12. (Non-diminution of human rights standards on FPIC, premised on the duty to consult, as well as indigenous peoples’ rights to lands, territories and resources and right to self-determination)
  2. We look forward to strong guidelines containing core principles that build on and do not diminish the human rights norms and standards developed by relevant bodies, including human rights treaty bodies and special procedures, on FPIC/PIC.
  3. The guidelines must fully respect the rights of indigenous peoples and local communities as owners and holders of traditional knowledge.
  4. Although the guidelines are voluntary, FPIC/PIC is obligatory and binding under international human rights law and many national laws.
  5. FPIC/PIC includes the right to say no.
  6. The use of “approval and involvement” raises the possibility of two separate standards being applied in relation to the consultation and consent process, and can be confusing. We propose the deletion of “approval and involvement,” “prior informed approval” and similar words/phrases from the document in order to avoid such confusion and potential uneven application of the voluntary guidelines and maintain the use of the term free, prior and informed consent (FPIC) or PIC.
  7. The procedural and substantive aspects of the consent process must recognize the primacy of customary laws and/or community protocols of indigenous peoples and local communities and be governed by customary decision-making mechanisms.
  8. The information provided must be balanced and come from a variety of sources and must be available in indigenous languages using terms understood by them, and include safeguards to ensure that all parties to an agreement have the same understanding of the information and terms provided.
  9. Granting FPIC/PIC to users of traditional knowledge does not transfer ownership, but merely allows temporary use. Ownership is retained by the IPLCs at all times, and especially upon expiration of the term of temporary use.
  10. Legitimately constituted traditional authorities of indigenous peoples and local communities have the exclusive power to grant or withhold consent.
  11. Whether or not benefit-sharing is “fair” and “equitable” is determined by IPLCs under their customary laws and/or community protocols.
  12. There is a need to build capacities of IPLCs to effectively negotiate with users of TK, including in negotiating their fair and equitable share of benefits.
  13. FPIC Terms of agreement shall constitute a legal contract between the concerned Indigenous People(s) or Local Communities and the corresponding contracting Parties
  14. The FPIC contract shall contain agreed grievance and redress mechanisms to address non-compliance with its provisions

Mar 15

IIFB- WG8J9- Statement on Repatriation

AD HOC OPEN-ENDED INTER-SESSIONAL WORKING GROUP ON ARTICLE 8(j) AND RELATED PROVISIONS OF THE CONVENTION ON BIOLOGICAL DIVERSITY

Ninth meeting

Montreal, Canada, 4-7 November 2015

(Download PDF of statement)

Agenda Item 5.

Task 15 of the Multi-Year Programme of Work on the implementation of Article 8(j) and related provisions: best-practice guidelines for the repatriation of indigenous and traditional knowledge.

Thank you Mr. Chairman for this opportunity for the IIFB to comment on the implementation of Item 5 on Task 15 of the Multi-Year Programme of Work on the development of Voluntary Best-Practice Guidelines for the Repatriation of Indigenous and Traditional Knowledge. We take note with great appreciation of the document UNEP/CBD/WG8J/9/INF4 of the Report of the Expert Group on Traditional Knowledge Relevant to the Repatriation to the Conservation and Sustainable Use of Biodiversity. This has provided the basis of a set of principles that can serve as a basis for further work on this agenda item.

In its current form the set of principles and guidance does not form a fully articulated basis for guidelines. The Report of the Expert Group contains a richer set of principles and measures that can be used to expand the current list, as noted by the Secretariat in the draft decision. The draft principles in the current document only reflect issues for which there was clear understanding and consensus. Other recommendations from that document should be brought forward as options for further consideration at COP 13.

For example, we see the need for a new element to address respect for the protocols of indigenous peoples and local communities in the repatriation of traditional knowledge, among others.

We recommend a contact group at this meeting and take up the proposed way forward in the draft decision, with added elements. This is to have the Secretariat receive information from parties, other governments and relevant organizations and entities, indigenous peoples and local communities. The process should be designed to present a wide range of options to Parties that represent best practices for repatriation activities. Submissions should be solicited from communities beyond the biological diversity community for relevant best practices. There is a wealth of experience on repatriation from the museum, library, archaeological and intangible cultural heritage communities that take into account the aspirations, values, rights and interests of indigenous peoples and local communities. Additionally, parties could call upon interested Parties and organizations to fund another AHTEG and or regional meetings to develop case studies of best practices that can more comprehensively inform the development of principles for repatriation.

Mr. Chair, the Guidelines should consider repatriation in the widest relevant context possible. Repatriation is not simply a process of transferring a copy of information to source communities. Traditional knowledge has sacred and spiritual meaning to indigenous peoples and local communities. It may be thought of by its holders as a living, breathing and feeling entity that is crying or longing for return to its rightful place. This is reflected in the proposed name of Rutzolijijirisaxik, which means the significance of returning things to their place of origin. A number of issues are associated with associated with repatriation, as noted in [Considerations for Developing Technical Guidelines for Recording and Documenting Traditional Knowledge and the Potential Threat of Such Documentation] (UNEP/CBD/WG8J/5/3/Add.2) prepared by the Secretariat during negotiations over the documentation of traditional knowledge in traditional knowledge databases in 2006-2008. That document brought forward the OCAP assessment framework – the ownership, control, access, and possession of traditional knowledge by indigenous peoples and local communities. This is compatible with Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples, that states “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions . . .. ” Expanded guidelines could also provide guidance to the Intergovernmental Governmental Committee of the World Intellectual Property Organization that is negotiating related issues.

The elements of a set of voluntary guidelines should encompass the full range of best practices, and need not be limited to the repatriation of knowledge per se. Traditional knowledge may be embodied in materials (e.g. reports, films, videos, objects, physical models). Although the focus of the guidance is on traditional knowledge itself, many countries have addressed issues related to repatriation of ceremonial objects and human remains, and other cultural objects in which traditional knowledge is embodied. Indigenous peoples often do not separate the intangible from the material. Recognizing that this is a complex issue, it is a real context of repatriation which should be addressed as part of a portfolio of voluntary measures.

Finally, we are confused by para 12 under Purpose on censorship, and do not understand the scope of the work and application it is trying to achieve. Of course repatriation should not interfere with fundamental human rights and freedoms, but it can involve non-arbitrary regulation of use, which some might view as censorship. This term should be narrowly tailored or removed.

We have a few grammatical recommendations to improve the text that we will submit in writing.

Thank you, Mr. Chair.

Mar 15

IIFB Statement on Prior Informed Consent

WG8j-9

(Download PDF of statement)

Indigenous Peoples reaffirm our status as such. We are the holders of traditional knowledge, based on the ancestral right to ownership of our territories and therefore, access to traditional knowledge, must follow rules and principles based on customary laws.

Free Prior and Informed Consent (FPIC) should be binding, and further developed through the creation of a Group of Indigenous Experts. According to the decisions and guidelines of several organizations in United Nations System, FPIC should be the principle established for access to traditional knowledge instead of prior informed consent.

The granting of free and informed consent, does not involve negotiation or granting of licenses and intellectual property rights to third party users for the use and access to traditional knowledge. The ownership of traditional knowledge belongs to indigenous peoples who have protected it for millennia through their customary laws and through their own governments. Therefore, the competency for granting free, prior and informed consent must lie with the legitimate and traditional authorities.

With regard to benefit sharing, the proposed guidelines should not be limited to Bonn guidelines or the Annex of the Nagoya Protocol, but rather they must also include safeguards to territorial rights and traditional resources. We emphasize that the right to fair and equitable sharing should also include cultural and spiritual elements of indigenous peoples.

Regarding the misuse and repatriation of traditional knowledge, this must include the repatriation of objects that include our traditional knowledge and relevant information, and with consideration to compensation, payment and restoration for the misuse of traditional knowledge. Therefore, the development of bio-cultural community protocols should include proper procedures based on the uses and customs of indigenous peoples.

Capacity building is a fundamental to compliance with free, prior and informed consent; fair and equitable benefit sharing, as well as for the prevention of the misuse of traditional knowledge.

 

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