FINAL DRAFT FOR DISCUSSION

Second International Indigenous Forum on Biodiversity

Madrid, Spain -- 20-23 November 1997

Contribution to the Workshop on Traditional Knowledge and Biological Diversity

Working document on the implementation of article 8j) and related articles

PREAMBLE

Indigenous Peoples come from the land and have been given our life through the land. We do not relate to the land that we came from as property, we relate to the land as our Mother. That the land is our Mother cannot be denied, just as it cannot be denied that our human mother is our mother. In this respect, we as Indigenous People, have responsibilities to honor and nurture our Earth to ensure that she can continue to give us life. Our role and responsibility is to protect our Mother Earth from destruction and abusive treatment, just as we would defend our human mother. In carrying out this responsibility since time immemorial, we have become a central component of the biodiversity of the Earth.

CONCERNS OF INDIGENOUS PEOPLES ON ARTICLE 8J) AND RELATED ARTICLES

1. The lack of recognition of Indigenous Peoples as peoples with inalienable a prior rights and therefore as parties to the Convention and it's implementation.

2. The lack of recognition of the relationship, that exists between the lands and territories of Indigenous Peoples and their knowledge and biodiversity.

3. The lack of control by Indigenous Peoples over Indigenous lands and territories and their natural resources and the environment, including biodiversity. This refers also to Indigenous Peoples, who have been displaced from their ancestral lands, territories and resources and to Indigenous People's lands and territories, that are militarized for the so-called protection of protected areas.

4. The lack of full participation of Indigenous Peoples in processes related to the Convention on Biodiversity.

5. The lack of concern by the Parties to the Convention and action to address biopiracy and uncontrolled access to genetic resources in Indigenous lands, territories and waters.

6. The lack of recognition that the promotion of the wider application of Indigenous knowledge, innovations and practices is a process, that has to be controlled by Indigenous People.

7. The underlying bias of the Convention in favor of the current international, multilateral, bilateral and national legal systems including the current intellectual property rights regimes and its impact on Indigenous knowledge.

8. The lack of recognition of the unique character of Indigenous knowledge, including it's associated values, beliefs and spirituality, it's inextricable link with biodiversity and the length of time taken to evolve this knowledge.

9. The lack of incentives to protect and maintain Indigenous know- ledge, innovations and practices in the Convention.

10. The lack of recognition of the spiritual, cultural, political, social and economic perspectives of Indigenous Peoples in the Convention.

11. The lack of recognition of the importance of Indigenous women's knowledge, roles and responsibilities with regard to biological diversity.

12. The lack of clarification of the relationship between the rights of Indigenous Peoples and local communities embodying traditional lifestyles and farmers.

13. The lack of mechanisms to protect and maintain Indigenous languages and educational systems.

14. The lack of linkages of article 8j) and related articles with other international instruments dealing with the rights of Indigenous Peoples.

The lack of compliance of State Parties with the terms and conditions of the Convention on Biological Diversity and other related international instruments.

The lack of recognition that the customary use of biological resources by Indigenous Peoples and the benefits arising from the utilization of knowledge, innovation and practices relating to this use encompasses commercial and non-commercial elements.

RECOMMENDATIONS FOR ELEMENTS FOR THE FORMULATION OF A WORK PROGRAM

1. Ensure that the implementation of article 8j) and related articles takes into consideration the existing Indigenous declarations and proposals, including the Draft Declaration, on the Rights of Indigenous Peoples, the Kari Oca Declaration, the Mataatua Declaration, the Santa Cruz Declaration, the Leticia Declaration and Plan of Action, the Treaty for a Life Forms Patent Free Pacific, the Ukupseni Kuna Yala Declaration, the Heart of the Peoples Declaration and previous statements of Indigenous Forums convened at previous CBD/COP AND intersessional meetings.

2. Ensure Indigenous Peoples' full and meaningful participation in the implementation of article 8j) and related articles:

a) recognize Indigenous People as Parties to the Convention on Biological Diversity.

b) adopt the recommendation of the Second International Indigenous Forum to establish an Indigenous Peoples' Working Group.

c) involve the Indigenous Peoples' Working Group in the interpretation and implementation of article 8j) and related articles, including the monitoring of the compliance of the Parties to the Convention to their obligations under the Convention.

d) develop mechanisms to ensure Indigenous Peoples' participation in decision making processes at the international level (UN, COP, IFF, etc.)

e) develop mechanisms to ensure Indigenous Peoples' participation in decision making processes at the national level, including the development and implementation of legislation, environmental action plans and impact studies.

f) develop mechanisms to ensure the full participation of Indigenous People's in State Parties' strategies to designate and manage protected areas.

g) incorporate the right to objection in all mechanisms to ensure Indigenous Peoples' participation.

incorporate the right to free and prior informed consent in all mechanisms to ensure Indigenous People's participation.

3. Develop mechanisms to ensure the full and equal participation of Indigenous women in all processes related to the implementation of the Convention and support the unique responsibilities of Indigenous women in the caring of their traditional lands and territories and the protection of biodiversity.

4. Develop mechanisms and processes to ensure Indigenous Peoples' control over lands and territories to affect the protection and enhancement of biodiversity:

a) recognize the inalienable a priori rights of Indigenous Peoples.

b) recognize the relationship that exists between the lands and territories of Indigenous Peoples and their knowledge, innovations and practices relating to biodiversity.

c) recognize the right to demarcate our lands and territories.

d) develop processes to repatriate the lands and territories of Indigenous Peoples.

5. Develop mechanisms to ensure the participation of Indigenous Peoples in the process of possible incorporation of sustainable Indigenous customary resource uses, management and practices after prior informed consent, in the development plans, policies and processes at international and national levels and recognizing transboundary issues important to Indigenous Peoples:

a) encourage multilateral institutions, international agencies, research institutions and non-government organization to involve Indigenous Peoples in the incorporating Indigenous knowledge, innovations and practices related to the use and management of the resources in their plans and programs.

b) establish an Indigenous-controlled global biodiversity monitoring system based on early warning systems using Indigenous knowledge with the backing of satellite technology and geographic information systems.

c) require the involvement of Indigenous Peoples in incorporating Indigenous perspectives and social and cultural dimensions into environmental impact assessment processes of research institutes, multilateral institutions, governments, etc.

6. Develop standards and guidelines for the protection, maintenance and development of Indigenous knowledge in consultation and participation with Indigenous Peoples, which:

a) facilitate the development of sui generis systems of protection for Indigenous knowledge according to Indigenous customary laws, values and world view.

b) recognize the concept of the collective rights of Indigenous Peoples and incorporate this in all national and international legislation.

c) take into account and incorporate existing Indigenous Peoples' customary use of resources.

d) recognize traditional agricultural systems of Indigenous Peoples.

e) involve Indigenous Peoples in the development of research guidelines and standards.

7. Develop standards and guidelines for the prevention of biopiracy, the monitoring of bioprospecting and access to genetic resources;

a) affect a moratorium on all bioprospecting and/or collection of biological materials in the territories of Indigenous Peoples and protected areas and patenting based on these collections until acceptable sui generis systems are established by Indigenous Peoples.

b) affect a moratorium on the registering of knowledge.

c) recognize the rights of Indigenous People's to access and repatriate genetic materials held in all ex-situ collections, such as gene banks, herbariums and botanical gardens.

8. Ensure that the sharing of the benefits derived from the use of Indigenous knowledge includes other rights, obligations and responsibilities such as land rights and the maintenance of Indigenous cultures to facilitate the transmission of knowledge, innovations, practices and values to future generations.

9. Ensure that relevant provisions of international mechanisms and agreement of direct relevance to the implementation of article 8j) and related articles, such as the Trade Related Intellectual Property agreement of the World Trade Organization, the European Union directive on the patenting of life forms, the Human Genome Diversity Project, the Human Genome Declaration of the UNESCO, the FAO Commission on Plant Genetic Resources and national and regional intellectual property rights legislation under development, incorporate the rights and concerns of Indigenous Peoples as expressed in the ILO Convention 169, the Draft Declaration on the Rights of Indigenous Peoples, the Kari Oca Declaration, the Mataatua Declaration, the Santa Cruz Declaration, the Leticia Declaration and Plan of Action, the Treaty for a Life Forms Patent Free Pacific, the Ukupseni Kuna Yala Declaration, the Heart of the Peoples Declaration and previous statements of Indigenous Forums convened at previous CBD/COP and intersessional meetings.

10. Provide material and non-material support mechanisms and incentives to Indigenous Peoples for capacity building initiatives towards:

a) the development of sui generis systems based on Indigenous customary laws for the protection and promotion of Indigenous knowledge, innovations and practices.

b) institutional strengthening and negotiating capacity.

c) locally controlled policy, research and development strategies and activities for the maintenance and development of Indigenous knowledge.

11. Require the revitalization and maintenance of Indigenous languages as part of the implementation of article 8j) and related articles and support the development of educational systems based on Indigenous values and world view, including the establishment of an Indigenous university.

12. Require that research and development activities in the realm of Indigenous Peoples" knowledge, practices and innovation systems are given the same financial and policy support as "formal scientific" research and development activities.

13. Provide material and non-material incentives for maintaining and enhancing biodiversity, including land rights and the recognition of achievements by Indigenous Peoples in protecting biodiversity.

RECOMMENDATIONS FOR THE FORMATION OF AN OPEN ENDED WORKING GROUP ON ARTICLE 8J) AND RELATED ARTICLES IN THE CONVENTION ON BIOLOGICAL DIVERSITY (CBD)

JUSTIFICATION

The representative of the Indigenous Peoples have gathered at the Second International Indigenous Forum of Biodiversity in preparation for the realization of the intersessional workshop mandated by resolution III/14 COP III/Buenos Aires, which recommends the need to examine the establishment of open-ended Intersessional Working Group to provide guidance on issues related to knowledge, innovations and practices of the Indigenous Peoples and local communities.

The Indigenous Peoples strongly believes that a constructive, equal (paritary), dialogue between the stakeholders, the Indigenous Peoples and Governments is the appropriate the way to respect our rights and fundamental freedoms.

We, the Indigenous Peoples, are guided by the principles of procuring peace, harmony, development and ecological equilibrium through the respect of our fundamental freedom and rights, recognized in various international instruments, which have not been fulfilled because of historical circumstances.

Our millenarian cultures are based on biodiversity. They constitute an essential principle for the preservation of our ways of life and for the securing of and future generations of our Peoples.

MANDATE

• To elaborate guidelines and establish mechanisms with an international scope for the application and implementation of Art. 8j) of the CBD and other articles related to the rights of Indigenous Peoples.
• To elaborate guidelines and establish mechanisms for international cooperation between Indigenous Peoples and for the cooperation policies between governments and international organizations in technological and economic matters.
• To define the relevant conceptual implications embedded in the Convention of Biological Diversity in matters of previous consent, fair and equitable sharing of benefits and in situ conservation in Indigenous lands and territories.
• To review the national legislations and their scope in observance of the spirit and dispositions of the Convention.

COMPOSITION

The Working Group should be comprised of equal numbers of representatives of Indigenous Peoples and governments embracing the continents.

DURATION

The open-ended Working Group will be subject to the compliance of the activities stipulated in the Mandate.

FUNDING

Considering that recommendations III/5 of COPIII urged "the GEF, along with Governments, regional economic integration organizations, and competent international, regional and national organizations, to support human and institutional capacity building programs for governments, non-governmental organizations and local and Indigenous communities, as appropriate, to promote the successful development and implementation of legislative, administrative and policy measures and guidance on access to genetic resources, including scientific, technical, business, legal and management skills and capacities".

We therefore recommended that the funds for the Working Group be provided by:

1. Voluntary contributions of the Conference of the Parties.

2. Funds provided by multilateral organizations.

3. Financial resources of the GEF.

RECOMMENDATIONS

1. We recommend that the Working Group remains until the Permanent Forum on Indigenous Peoples is constituted.

2. The Working Group will present it's report to the Conference of the Parties.

3. In the development of it's activities, the Working Group should relate in works of cooperation with working groups and special bodies such as SBSTTA and the Working Group on Biosafety, and to establish links with other instruments, processes of participation, and international fora related to/with the Indigenous Peoples.