BIOCULTURAL RIGHTS AND COMMUNITY PROTOCOLS
Protecting and Promoting Indigenous Peoples’ and Local Communities’ Ways of Life

PROGRAMME

Panel discussion 1 – 5th November: 12:00pm (Paris Time - UTC+1)

THEORETICAL INSIGHTS: BIOCULTURAL DIVERSITY, BIOCULTURAL RIGHTS, AND COMMUNITY RULE-MAKING

Co-chairs: Dr Sanjay Kabir Bavikatte, (consultant); Dr Fabien Girard (University Grenoble Alpes, CRJ)
 
Panelists:

Dr Miranda Forsyth (Associate Professor – Australian National University)
 
Dr T. Garrett Graddy-Lovelace (Associate Professor – American University School of International Service)
 
Dr Ingrid Hall (Associate Professor – University of Montreal; GRED – IRD)
 
Lesle Jansen (Director of Natural Justice’s Cape Town Hub; Director of the Governance of Lands & Natural Resources Programme)
 
Dr Manohisoa Rakotondrabe (Postdoctoral Researcher – University Grenoble Alpes, CRJ)
 
Dr Margaret Raven (University of New South Wales Scientia Fellow)
 
Prof Daniel Robinson (Environment and Society Group at UNSW)
 
Dr. Giulia Sajeva, (Marie Curie Fellow, Strathclyde Center for Environmental Law and Governance, University of Strathclyde)
 
Tom Suchanandan (Director: Advocacy and Policy Development – South African Department of Science and Technology)
 

Panel discussion 2 – 6th November: 12:00pm (Paris Time - UTC+1)

COMMUNITY PROTOCOLS, ACCESS AND BENEFIT-SHARING, AND BEYOND

 
Chair: Dr Christine Frison (University of Antwerp, Université catholique de Louvain)
 
Panelists:
 
Reia Anquet (English Lecturer (PRCE)
 
Dr Fabien Girard (Associate Professor – UGA, CRJ)
 
Dr Pia Marchegiani (Latin American School of Social Sciences (FLACSO – Argentina); Environmental Policy Director, FARN – Argentina)
 
Dr Louisa Parks (Associate Professor of Political Sociology, University of Trento)
 
Dr Manohisoa Rakotondrabe (Postdoctoral Researcher – University Grenoble Alpes, CRJ)
 
Krystyna Swiderska (Principal Researcher at IIED; PhD candidate – Coventry University)
 
Dr Brendan Tobin (Ashoka fellow and Adjunct Lecturer – Irish Centre for Human Rights at the National University of Ireland, Galway)
 

Scope and Aim of the Online Panel Discussions (OPD)

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In recent years, much effort has been made to document and appraise the role of indigenous peoples and local communities (IPLCs) in shaping the ecologies and resources of vast regions of the world. These major changes have decisively contributed towards recognising IPLCs as major actors in the conservation of biodiversity. But how can IPLCs’ ways of life be protected and how can their “stewardship” role be maintained?
Biocultural Community Protocols (BCPs) or Community Protocols (CPs) are increasingly seen as a powerful way of tackling this immense challenge. Following heated debates and strong advocacy work led by the African Group and active NGOs, CPs were eventually transcribed into the Nagoya Protocol, which was signed on 29 October 2010.
In emphasising a community’s customary laws, its cultural heritage, world view and way of life, while at the same time making visible and explicit the local norms to be followed for securing free, prior and informed consent (FPIC) and establishing mutually agreed terms (MAT), BCPs/CPs are confidently seen as enabling substantive (e.g. equitable benefit-sharing) and procedural (e.g. avoiding misunderstanding) fairness in respect of access to genetic resources and associated traditional knowledge (TK) within and outside communities. BCPs/CPs are also considered to be useful instruments for harnessing the potential of IPLCs in biodiversity conservation.
Arguably inspired by “community (research) protocols” and “cultural protocols” that have been developed in Canada and Australasia over several decades, as well as by the Inter-Community Agreement for Equitable Benefit-Sharing (ICABS) which was reached in the Potato Park in Peru, BCPs/CPs are now an integral part of the international Access and Benefit Sharing (ABS) regime and are seen as instruments that can bridge the gap between local and international legislation. These protocols aim at regulating the relationships between communities and putative bioprospectors by laying down a comprehensive framework, based on customary law, seeking local FPIC, and negotiating mutually agreed terms and shared benefits. They may also operate as governance tools through which the community can tackle issues around intra-community equity and prevent conflicts.

BCPs/CPs as Legal and Non-Legal Instruments

On the domestic level, pioneering legislation has turned the dream of bridging positive law and customary laws into reality. This is the case in Madagascar, following the passing of Decree No. 2017–066 of 31 January 2017 on the regulation of access and benefit-sharing arising out of the use of genetic resources. Likewise, in Benin, a new act provides that “[p]ositive cultural rules of local communities or a Bio-cultural Community Protocol shall be respected”. The OPD will investigate these local comm-
unity-friendly laws whose number is on the rise.
 
One of the further aims of the OPD is to look at BCPs/CPs beyond these few instances in which they are legally recognised as being part of local FPIC procedures. In these cases, the status of BCPs/CPs is unclear and appears to hover on the fringes of ABS legislation, if not actually existing outside formal legal systems. Panelists are expected to discuss the value, function and aim of these protocols and ask whether they should be approached as non-legal instruments, incentives or ethical tools, in the same way as cultural protocols are approached in Canada and Australasia.
 
The importance of this question stems from the fact that BCPs/CPs are often broad in scope and ambition. For instance, they commonly spell out a community’s core ecological, cultural, and spiritual values. They are also the vehicle through which a community strives to self-define and/or reaffirm its rights over a land or territory. In this respect, even in an ABS context, BCPs/CPs can hardly be confined to a proactive or a defensive action. It follows from this that most BCPs/CPs have a protean dimension and move beyond legal relations on FPIC and benefit sharing to encompass questions about how social actors interact, while simultaneously emphasising the community’s spiritual, cultural, and reciprocal relationships with nature or the community’s role in the preservation of the environment – in other words, its “stewardship” of nature.20191031_145321.jpg

The Protean Face of BCPs/CPs

 The multifaceted nature of BCPs/CPs comes as no surprise. They are based on the idea, which owes much to Darrell Posey, of a deep interconnectedness between the ecological and social systems; with a further insight being that there is an interdependency between biological diversity and IPLCs’ ways of life. When considered against this paradigmatic shift that combines biodiversity conservation and certain lifestyles, BCPs/CPs certainly can no longer be considered as mere technical and “legalistic” instruments. If anything, BCPs aim at maintaining IPLCs in their “traditional role as traditional guardians and custodians of ecosystems”. For instance, Sanjay ‘Kabir’ Bavikatte and Harry Jonas, the two founders of Natural Justice, the South African NGO which has been at the forefront of the development of BCPs for the last decade, insist that IPLCs, due to their ways of life (deemed “traditional”), world views, deep relationships with their lands and the environment, have a pivotal role to play in the conservation of global biodiversity. They also forcefully made the case that, in order for this specific role of conservationists or custodians of local ecosystems to be preserved and fostered, it is not enough to endow IPLCs with rights over genetic resources and TK. They must be provided with a genuine package of rights – referred to as “biocultural rights” – aimed at protecting all that makes their stewardship role possible and sustaining their “traditional” lifestyles, insofar as they are relevant to the conservation and sustainable use of biological diversity.
 
The fact that biocultural jurisprudence underwrites past and current reflections on BCPs/CPs is clearly visible on the ground. Most of the BCPs/CPs developed in an ABS context frequently outline communities’ core ecological, cultural and spiritual values, as well as their stewardship of nature. They generally do more than simply lay down the rules and procedures to be followed for negotiations with researchers or private companies on access to genetic resources and traditional knowledge. Consequently, one of the questions that this OPD will also strive to address concerns the implications of BCPs/CPs as an outgrowth of biocultural jurisprudence. In particular, should they be understood as a challenge to “the fragmentary nature of State law”, and lay claim to a more integrated (holistic) approach to IPLCs’ rights?

Developing BCPs/CPs: the Fortunes and Misfortunes of a Multi-Stakeholder Process

In a further step, the OPD will examine what both grey literature and scholarly works cast as one of the central tenets of BCPs/CPs, namely the development process. For developers and academics alike, this issue is of paramount importance, insofar as the process leading towards the protocol is featured as a building block in a larger process aimed at community empowerment. This issue deserves careful examination. More critical works tend to question the apparent innocuousness of the development of BCPs/CPs, specifying that there are almost always initiated and supported by external actors, which in turn raises the question as to how much the development of BCPs/CPs is shaped (albeit unintentionally) by international aid donors, international and local NGOs, professional facilitators and scholars.

The Ecological Native and the Noble Savage

Finally, while the stress upon the “ethic of stewardship” as the cornerstone of biocultural jurisprudence has been hailed as a quantum leap for IPLCs, there are concerns that this may only be a façade, masking what is in fact nothing more than a new form of colonial representations, such as the “ecologically noble savage”. BCPs/CPs and biocultural jurisprudence were borne out of a series of shifts that began in the 1970s, at a time where indigenous people started to defend their own environmental practices and developments were acknowledged at the national and international levels. This resulted in intertwining IPLCs’ views on the environment with global environmentalism and prompted the construction of the image of the “ecological native”. This representation of the ecological native, of which the “stewardship of nature” is a mere offshoot, certainly exposes IPLCs to the risk of being subordinated to Western visions of global environmental development. This OPD will investigate in particular the way in which contemporary representations portraying IPLCs as “natural conservationists” or “stewards of biodiversity” can serve managerial interventions and help shift environmental policies from the management of nature to the management of people.