Biocultural Community Protocols : Biocultural Heritage, Justice and Legal Pluralism

Fighting for rural communities in the global South

Growing literature offers evidence of the critical role of small-scale farming communities, as well as indigenous and local communities (ILCs), in guaranteeing the availability of sufficient quantity and quality food, thereby meeting people’s entitlements to nutritious diets over time.

Family farmers still constitute the basis for producing about 53% to 70% (Graeub et al. 2016) of the world’s food. Furthermore, farmer-managed seed systems have been instrumental in building viable and diverse crop populations over millennia and still provide more than 70% of the seeds used worldwide today (McGuire and Sperling 2016). This demonstrates the central role of farmers as innovators; they have ensured and continue to ensure the spatial and social development and distribution of genetic, morphological and varietal diversity, increasingly recognized as critical for farmer productivity and climate change adaptation (Coomes et al. 2015).

In sum, for many rural communities in the global South – including some 370 million indigenous peoples – biodiversity and traditional knowledge (TK), especially traditional ecological knowledge (TEK), continue to play an important role in livelihoods, food security, healthcare and well-being.

In our previous work on the plant commons (Girard and Frison 2018), we addressed the issue of how to promote and to protect these local bio-commons and the related knowledge and practices. As we argued, in order to fully recognize the importance of seed-saving for livelihood security and its role in on-farm innovation, States must guarantee farmers’ rights to save seeds of protected varieties in their domestic legislation (Srinivasan, 2016). Most importantly, States are urged to ease the requirements for registration (DUS criteria), variety testing and certification which resulted in outlawing farmer to farmer seed exchanges and detrimentally affecting farmers’ seed networks (Salazar et al. 2007).

Regarding the appropriate protection of indigenous peoples’, local communities’ and farmers’ agricultural innovation, for many decades academic literature has strongly advocated the recognition of new rights accounting for the collective nature of ILCs’ innovation (Bavikatte and Robinson 2011). The literature is replete with proposals for new ‘tribal rights’, ‘community intellectual rights’ or ‘traditional resources rights’, the latter promoted by the anthropologist Darrell Addison Posey and the lawyer Graham Dutfield: (Posey 1996; 1999; Posey and Dutfield 1996)

Given the potential predicaments of these solutions (ibid.), another path is suggested: focusing on the mechanisms of the Convention on Biodiversity (CBD – 1992) and the Nagoya Protocol (2010), and finding solutions to improve the rules of prior and informed consent (PIC) and benefit-sharing.

Biocultural Community Protocols as an innovative tool

Against this backdrop, modern jurisprudence strives to overcome two major obstacles. First, to make sure that bioprospecting contracts do not ‘cut’ collectives, i.e. does not produce a collective tailored to sorting out deserving and underserving ‘contributors’ to the production of the new technology resulting in intractable tensions between communities. Second, to guarantee that bioprospecting contracts ensure the involvement of ILCs and take into account asymmetrical power relations that characterize the negotiation and the specific nature of genetics resources and TK.

To this end, it has been suggested to support biocultural community protocols (BCPs) as ways of promoting substantive (equitable benefit-sharing, taking into account ILCs’ perspectives) and procedural (avoiding misunderstanding, allowing enough time and money) rights in access to genetic resources and associated TEK in between communities and between communities and bioprospectors. BCPs could also harness the potential of ILCs in biodiversity conservation.

After fierce debates and strong advocacy work by the African Group and active non-profit organizations, BCPs were eventually transcribed into the Protocol signed on 29 October 2010 in Nagoya (see e.g., Art. 12). The concept of BCP was introduced into international negotiations by the active role of Natural Justice, an NGO based in South Africa and operating all around the world for the conservation and sustainable use of biodiversity through the self-determination of ILCs. Importantly, two of its founders, Harry Jonas and Sanjay ‘Kabir’ Bavikatte, are well known in the conceptualization of what is now called ‘biocultural rights’. The precursor of the concept was arguably the ‘Plan de vida’ applied in the Potato Park in Peru, where NGOs and local communities started documenting information to plan for the future.

Addressing specifically the situation where communities have to engage in negotiations with an external stakeholder –  whether a government, a researcher or a business company – BCPs were recently defined by the Mo’otz Kuxtal guidelines (CBD 2016) as a broad array of expressions, articulations, rules (i.e. customary laws) and practices generated by communities to set out how they expect other stakeholders to engage with them’ (Art. 19) and embedding their worldviews (e.g., the Quechua principle of reciprocity) and ‘their understanding of their bio-cultural heritage’.

A multi-site approach: Africa & Latin America

This research project focuses on the BCPs that have been developed in the past few decades throughout the world and more specifically those engaging with plants and associated TEK over 2 continents: 

  • The BCP of the Kukula Traditional Health Practitioners Association of Bushbuckridge (KTHPA) (South Africa);
  • The Mariarano community protocol ); and two BCPs currently being developed by the farmers of Analavory (central region) and the local communities of Ampangalatsary (in the North-West of the island).
  • The BCP for territories of the Community Council of Alto San Juan - ASOCASAN; and the BCPs currently implemented in the Caño Mochuelo reserve (departments of Casanare, Vichada and Arauca) (Colombia)(1);
  • The Inter-Community Agreement for Equitable Benefit-Sharing (ICABS) in the Potato Park (Peru)(2) ;
  • The BCP of Kuna Yala communities (Panama).

For those few legal scholars who have been dealing with BCPs, their interest lies in their capacity to reterritorialize and rebalance the process leading up to arrangements on bioprospecting projects. Indeed, they could compel potential bioprospectors to take into account the possible impacts on the continued customary use of biological resources, on TEK, innovation and practices, on sacred sites and rituals, as well as on customary laws (requirements that are today enshrined in the Akwé: Kon Guidelines – CDB 2014). Besides, and especially for plant genetic resources, they would allow bioprospecting contracts to be negotiated and entered into at a regional or sub-regional level, a relevant level to encompass all communities involved, to a greater or lesser extent, in the germplasm accessed, and to limit conflicts. In addition, BCPs have travelled from transnational arenas to local communities and organizations. By a series of translation processes, they have gained new forms and uses (Aguilar Delgado 2016), i.e. by improving ILCs’ organization, representation and cohesion between communities or by collectively mapping and evaluating customary laws, governance systems, traditional resource uses and community development plans. Pushing this trend further, BCPs could be used to establish local systems and institutions in relation to access and benefit-sharing (ABS) arrangements provided for under the CBD and the Nagoya Protocol, thereby ensuring balanced and informed community involvement in research and projects and legal implementation of PIC at the community level.

Investigating the multifaceted dimension of Biocultural Community Protocols

This multifaceted dimension is undisputable. A cursory glance at their content gives us a large overview of the high heterogeneity that we have just tried to capture. This content falls under four headings that one finds across most BCPs:

  1. Some BCPs clearly aim to enable a community to self-define and reaffirm its rights over a territory, resources and associated knowledge. As part of the struggle to assert their rights, BCPs generally allow communities to connect and re-connect through social networks. In doing so, communities have the opportunity to define their boundaries, while articulating their views internally. In line with the self-determination principle under Article 3 of the UN Declaration of the Rights of Indigenous Peoples, each group can define community either based on landscape or common knowledge and activity, but not necessarily on political, linguistic or ethical criteria (in South Africa, see Sibuye et al. 2012).
  2. BCPs also emphasize the spiritual, cultural and reciprocal relationships with nature and therefore shed light on a holistic worldview, whereby biodiversity and TK are but two elements of a broad set of considerations addressed. Notably, they build upon the interconnectedness of all forms of life, culture and ways of life and therefore generally display an opposition to understandings of life and knowledge as property. This clearly counters prevailing reification tendencies which tend to separate TK and genetic resources from their cultural context with a view to commodifying them (Bavikatte and Jonas 2009: 17).
    BCPs also give the community the opportunity to express its cosmovision. The Inter-Community Agreement for Equitable Benefit-Sharing (ICABS) in the Potato Park is well-known for its reference to the so-called Andean indigenous cosmovision: Sumaq Causay, in Spanish ‘Buen Vivir’, translated as ‘harmonious existence’ or ‘a way of living together in community’ (Argumedo 2012).
  3. As an extension of emphasis put on the spiritual, cultural and reciprocal relationships with nature, BCPs can put forth the communities’ role in the preservation of the environment, their stewardship of nature, their sustainable use of resources, i.e. their ‘sustainable practices’.
  4. Finally, BCPs very often inscribe themselves in a political agenda and display their nature of political tool. They have been aptly described ‘[…] as an instrument to link the local and the international legal levels, according to standards set out in customary, national and international law, with a view to mobilizing communities to use international and national law to support the local manifestations of their right to self-determination’ (Morgera, Tsioumani and Buck 2015: 223). A good example is provided by the Raika Bio-cultural protocol which calls on the National Biodiversity Authority of India and the CBD Secretariat to recognize substantial elements of the instrument, notably their ‘local breeds and associated traditional knowledge as set out in the Raika Biodiversity Register and to include it in the Peoples Biodiversity Register (under Rule 22(6) of the Biological Diversity Rules)’. Unsurprisingly, some of these BCPs seek to link their content and justify their existence and mandates based on existing international instruments and domestic legislation and regulations. For instance, the Bushbuckbridge Community Protocol refers to the National Environmental Management: Biodiversity Act (2004) and the Bioprospecting, Access and Benefit Sharing (BABS) Regulations (2004)

Their protean dimension is also due to the fact that BCPs take place in an international legal framework striving to secure PIC or approval and involvement of ILCs for access to genetic resources and associated TK (Nagoya Protocol, Art. 6 & 7). Indeed, BCPs could be an integral part of the domestic ABS legislation and compliance with provisions of community protocols could be made mandatory in domestic legislation. The same holds for community PIC in relation to TK (Nagoya Protocol, Art. 6(2) & 7(2)) (also see: BMZ 2012: 17). As we shall see, this effect already may be attached to some BCPs related to TK in Peru and it will probably follow the recent move in Malagasy legislation, which has broadly recognized the legal status of BCPs both for natural resources and associated TK (see infra).

Be that as it may, the assumption of this project is different. We assume that if BCPs arguably aim at legally protecting communities in the face of bioprospecting contracts (notably in laying the ground for community PIC) and are conceived by communities and NGOs as tools for empowerment, they cannot be properly understood outside a social and political context increasingly concerned with ‘biocultural rights’ (BRs). Widely used by communities and civil society (see, Argumedo and Hall forthcoming), BRs refer to ‘basket of rights’ related to ‘a way of life that has developed out of a holistic relationship between Nature and Culture’. BRs mainly affirm the bond between indigenous, tribal and other communities with their land, together with their environment (floral and faunal resources in or on the land).

Biocultural community protocols as a way of advancing Indigenous peoples and local communities' rights

Against this backdrop we posit that, with their aptitude to mobilize customary laws, non-Western ontologies (e.g., the principle of Reciprocity – ‘Ayni’ – in the ICABS) and the stewardship of nature, BCPs are one of the hallmarks of biocultural jurisprudence. And they must be understood as an endeavor to challenge Western legal categories and to advance ILCs’ rights through the recognition of their traditional practices, customary laws, local institutions and ontologies.

Indeed, seen through the constructivist lens, which casts light on the decisive role of NGOs (e.g., ANDES, Natural Justice) in drafting these instruments, it can be assumed that they stand as biocultural tools that are and can be remobilized by ILCs’ representatives or local farming communities’ advocates to shape a political discourse intended to cater for the needs of ILCs, advance farmers’ rights and promote seed and food sovereignty.

The aim of our project is then to prove this assumption by combining three approaches. The first one is local-based and aims to ‘unpack’ the concept of BCPs through ethnographic studies. The second is premised on the result of the local-level studies and will critically inquire into how BCPs can interact with, and impact on, domestic legislation, notably in terms of ABS regime and biocultural rights. The last approach strives to map the paths – regional, national and international – through which ILCs (and their representatives), States’ representatives and environmental NGOs articulate their political discourse about BCPs, and to assess the content of this discourse and the way it can influence or redirect policies and legal instruments on intellectual property rights (e.g., protection of TK, disclosure of origin of the source of genetic resources and associated TK), biodiversity conservation and traditional knowledge.

(1) Caño Mochuelo is a ‘resguardo’, i.e. a collective property title of the land, as a legal form that protects both the territory and the cultural and political autonomy of the indigenous communities. The territory is occupied by a semi-nomadic population comprised of 10 communities (they speak 7 different indigenous languages but they are all members of the ‘Calibo’ Council and also speak Spanish). The project is being developed by USAID within the framework of its Natural Wealth program. The program runs from March 2017 to March 2022 and aims at supporting the government of Colombia in making important advances in the preservation of the country's biodiversity. At this stage of the project, we are not allowed to disclose the name of the communities involved.
(2) Six Quechua communities created the Potato Park in 2002.