A Rights-Poor Protocol For Biodiversity Access & Benefit-Sharing

Merle Alexander has been one of the primary indigenous negotiators on UN Convention on Biological Diversity Protocol on Access and Benefit Sharing (ABS) since the first meeting of the Ad Hoc Open-ended Working Group on Access and Benefit-Sharing in 2001. The group was set up to address concerns of piracy of biological resources, and the equitable sharing of benefits derived from those resources. Alexander was recently interviewed by Intellectual Property Watch‘s Catherine Saez.

INTELLECTUAL PROPERTY WATCH (IPW): Do you think countries will find agreement on the many key issues in the 18-29 October high-level negotiation in Nagoya, Japan?

MERLE ALEXANDER (MA): Yes, but it will be a highly diluted, rights-poor protocol in comparison to the ABS treaty that developing countries once sought out. I also believe that many of the key issues will still be left for implementation at both the national and international level.

I also would not be surprised if some countries simply adopt the protocol but not ratify. There still seems to be fundamental issues with countries such as Canada, Australia and New Zealand regarding their sovereignty to their own genetic resources jurisdiction. It is difficult to imagine that Canada, for instance, could adopt any over-prescriptive protocol since Canada does not even have a developed national policy.

IPW: What issues are most important for Indigenous Peoples? The scope of the agreement, the compliance issues, or the definition of the utilisation of genetic resources?

MA: Indigenous Peoples have been consistent on [the] key issues. We want substantive and procedural recognition [of] our rights over genetic resources and traditional knowledge. We want the United Nations Declaration on the Rights of Indigenous Peoples to be used implicitly or explicitly as a minimum standard. We do not want our substantial gains in the international and national arenas to be prejudiced by any protocol. In particular, we cannot accept a protocol that subjugates our rights by national legislation.

IPW: In what measure can Indigenous Peoples influence the outcome of the negotiations in Nagoya?

MA: Indigenous Peoples attending the tenth Convention on Biological Diversity’s Conference of the Parties in Nagoya have an incredible challenge ahead of them. Most key areas of the protocol that apply to Indigenous Peoples rights will be under heavy negotiation and it will be a test for the true good faith nature of involvement of Indigenous Peoples in the CBD. Indigenous Peoples can influence the outcome but it will likely only come on the realisation of the parties that without their support on core issues, Indigenous Peoples have no other option but to denounce the protocol and walk away from the negotiation table. Indigenous Peoples, as mature parties to these negotiations, are exercising [free, prior and informed consent]. They have made themselves fully informed of all issues, made best efforts to influence the outcome, but they cannot consent to a protocol that undermines their rights.

It is fair to say that there will be a turning point in the negotiations where Indigenous Peoples will have [to] decide to stay or walk away from the negotiation table.

IPW: Do you feel that Indigenous Peoples’ needs are taken into consideration in a proper way in these negotiations?

Yes and No. Yes, Indigenous Peoples have been given an enhanced participatory role above any other non-party at the negotiation table. No, these participatory rights have always been at the whim of the parties. Without party support on any text submission, any gains can be lost. With the endgame in sight, it is unclear whether the allies that Indigenous Peoples have in the developing and the developed world will use their own negotiation leverage for Indigenous Peoples’ issues. On a number of occasions at the last two negotiation sessions, Indigenous Peoples did not receive any support from any country and our issues were diluted or set aside.

IPW: It seems that Indigenous Peoples left the negotiations at one point at the last meeting in Montreal. Could you explain why?

MA: At both the Ninth meeting of the Ad Hoc Open-ended Working Group on Access and Benefit-Sharing and the recent meeting of the Interregional Negotiating Group, the Indigenous Peoples walked away from the table when their procedural participatory rights were denied. On the first occasion, the co-chairs [from Canada and Colombia] changed the rules of engagement so that Indigenous Peoples could not make text proposals with or without party support. This was reversed after the Indigenous Peoples were gone from the table. There were several key issues that were discussed in absence of Indigenous Peoples during that time frame.

On the second occasion, during a small contact group on traditional knowledge issues, the Indigenous Peoples representative, Mattias Ahren, attempted to introduce new text. No party support[ed] the Indigenous Peoples’ text and it was determined that Indigenous Peoples did not have procedural rights that would be respected even on their core topic: traditional knowledge. Indigenous Peoples left the negotiation table and the co-chairs, to their credit, halted discussions and the parties unanimously agreed that they could not continue on the topic without the Indigenous Peoples’ participation. In the end, the Indigenous Peoples [representatives] returned to the table and the text remains in a bracketed form. It took the co-chairs using their ultimate discretion to bracket text for further discussion.

Both instances are clear indications that Indigenous Peoples’ negotiating leverage is slipping.

Merle Alexander is a lawyer for Bull, Housser & Tupper LLP in Canada, and attended the September Montreal meeting of the working group as the North American negotiator of the indigenous and local communities. He also represented the Kaska Dena Council, an indigenous peoples’ organisation representing the Kaska peoples of Northeast British Columbia.