Seventeenth SBSTTA Meeting Enters Final Day of Panel Discussions, With Drafting of "Conclusions" to Begin Thursday

As the seventeenth meeting of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) to the Convention on Biological Diversity (CBD) continues in Montreal, Parties and Observers continue to address the Strategic Goals and Aichi Targets of the Strategic Plan for Biodiversity 2011-2020. The meeting is being conducted with a combination of short speeches by members of panels who are selected based on their expertise in the Strategic Goal being addressed, followed by interventions on the part of Parties and Observers. This format means that some interventions with regard to a specific Strategic Goal are not able to be heard during the plenary and are pushed to the following day. On Thursday, 17 October, the agenda calls for the drafting of "conclusions and recommendations for further work." (Agenda link here.)

Thus far, Natural Justice has been involved in the SBSTTA meeting in several ways. On Monday, Eli Makagon spoke at a side event held by the CBD Alliance regarding a proposed ABS regulation to implement the Nagoya Protocol in the European Union (EU) currently pending before the European Council (for further information, see links on this page). On Tuesday, 15 October, Eli, with the assistance of Nele Marien, coordinator of the CBD Alliance, briefed delegates from the Latin American and Caribbean Group (GRULAC) on the EU's proposed regulation, noting that it severely limits the Nagoya Protocol's scope by limiting its application to genetic resources and associated traditional knowledge accessed after the Nagoya Protocol enters into force for the EU. On Wednesday, 16 October, Natural Justice and the Global Forest Coalition will co-host, along with the ICCA Consortium, a side event on meeting the Aichi Targets. In addition, Natural Justice will be attending several other side events as well as the ongoing plenary sessions. For more immediate updates and further information on the meeting, check out Natural Justice's Twitter feed online at https://twitter.com/naturaljustice.

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Civil Society Newsletter on Biodiversity Features Two Articles by Natural Justice

The Convention on Biological Diversity (CBD) is known for being relatively open to civil society engagement. As just one example, the CBD Alliance and CBD Secretariat jointly produce a newsletter called [square brackets] ahead of major CBD meetings. The eighth issue has just been released to coincide with the upcoming meetings of the Working Group on Article 8(j) and Related Provisions (7-11 October) and the Subsidiary Body on Scientific, Technical and Technological Advice (14-18 October).

This issue of [square brackets] includes articles on "The Nagoya Protocol and the emergence of biocultural rights" by former Natural Justice Association member Kabir Bavikatte, on the proposal for the CBD to adopt the term "indigenous peoples" by Caroline de Jong (Forest Peoples Programme) and Holly Jonas (Natural Justice), and on the need for strengthened implementation of the CBD by S. Faizi (CBD Alliance Chairperson). The eighth issue of [square brackets] can be downloaded here.

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Learning about intellectual property, community protocols and ABS

A training for indigenous peoples and local communities in Africa on intellectual property, biocultural community protocols (BCPs) and access and benefit sharing (ABS) is taking place in Addis Ababa, Ethiopia, from the 23rd to the 27th of September. The meeting is organized by the ABS Initiative, in collaboration with Natural Justice, the Indigenous Information Network, the Indigenous Peoples Coordination Committee of Africa and hosted by the African Union Commission.

Intellectual property protections, such as patents, are often placed over developments that have originated from the knowledge held by indigenous and local communities. Unfortunately, these communities rarely provide their consent for such actions nor are able to share in any benefits that emerge from the developments.

Therefore, African indigenous people and local community representatives have requested training on the intellectual property regime, its linkages with access and benefit sharing and tools, such as community protocols, that can be used to protect their knowledge.

During the week long training, participants will share information on patents, geographical indications, plant variety protections, trade marks, the Nagoya Protocol on Access and Benefit Sharing and community protocols.

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Natural Justice and the Berne Declaration Submit New Letter to EU MEPs Regarding the Implementation of the Nagoya Protocol as the European Parliament considers its Implementation within the Union

On 6 September 13, Natural Justice and the Berne Declaration sent an letter to the Members of the European Parliament regarding the implementation of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol) in the European Union.

The original Draft Regulation on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union presented by the European Commission (EC) in October 2012 (Draft ABS Regulation) included a number of short comings, including the fact that user obligations were only going to be triggered by the physical access of genetic resources in the provider country post ratification of the Nagoya Protocol. When the Draft was considered by the Committee on the Environment, Public Health and Food Safety (ENVI Committee) on 4 July 2013, the ENVI Committee adopted a number of amendments that addressed some of these short comings, including the modification of the scope of the regulation to include new and on-going utilizations of genetic resources (GRs) and traditional knowledge (TK). In their letter, Natural Justice and the Berne Declaration urge Members of the European Parliament to adopt the balanced proposal tabled by the ENVI Committee without further amendments.

The two organizations argue that if the ENVI Committee text were amended to revert back to access-based trigger points for user compliance, the European Regulation implementing the Nagoya Protocol would not apply to the new utilization of GRs and TK accessed before its entry into force, even when the use of such GRs and TK is newly initiated or the GRs or TK has been accessed illegally. They underscore that this approach would undermine the Nagoya Protocol’s principles in relation to the fair and equitable sharing of benefits, be inconsistent with an overwhelming body of ABS laws of provider countries, thereby increasing legal uncertainty for European users, and would lead provider countries to take extensive control measures at the moment when GRs are taken out of the country, regardless of the purpose for removal. Similar and additional arguments  were submitted to EU MEPs by the African Union on behalf of the African Group on 9th September.

The upcoming vote at the European Parliament in the coming days is key as it will set the path of the next negotiation phase. In order to ensure a greater legal certainty for providers and users of GRs, as well as to facilitate access to GRs for European users and consistency with the spirit of the Nagoya Protocol, Natural Justice and the Berne Declaration therefore call for the adoption of the proposal tabled by the ENVI Committee in its current form.

See also:
Joint Letter to the European Union Committee on the Environment, Public Health and Food Safety on the EC’s Draft ABS Regulation
Letter by Indigenous Information Network and Natural Justice, signed by 53 civil society organisations and individuals, 2013

Joint Submission to the European Union on the Draft Proposal on the Implementation of the Nagoya Protocol on Access and Benefit Sharing
Submission by Natural Justice and the Berne Declaration on access, utilisation, and user obligations, 2013

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Natural Justice and Indigenous Information Network send letter to ENVI Regarding Concerns over Nagoya Protocol Implementation

Photo Credit: World Intellectual Property Review

On 2 July 2013, Natural Justice, jointly with the Indigenous Information Network, sent a letter to the Committee on the Environment, Public Health and Food Safety (ENVI) of the European Commission expressing their concern about the way the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol) might be implemented in the European Union through the current draft Access and Benefit Sharing Regulation of the European Commission (Draft ABS Regulation). 

In the letter, which has been signed by over 50 individuals or organisations representing or supporting indigenous people and local communities, Natural Justice and the Indigenous Information Network highlight in particular that the Draft ABS Regulation: potentially excludes traditional knowledge (TK) covered by the Nagoya Protocol; only covers genetic resources (GRs) and associated TK that are physically accessed rather than utilized after the Protocol comes into force for the EU and provider country, thereby excluding millions of compounds and associated TK that are available as they have already been accessed from provider countries and communities; and essentially fails to fight biopiracy effectively. 

On 4 July 2013, the ENVI convened to agree on compromises on the current version of the draft European Commission ABS Regulation regarding access to genetic resources and the fair and equitable sharing of benefits arising from their utilization in the EU. The vote was of key importance as the Committee debated and decided on the amendments to the Draft ABS Regulation tabled by a number of European Parliamentarians, including those suggested by the ENVI Rapporteur Sandrine Bélier. The Draft ABS Regulation is scheduled to be debated in plenary at the European Parliament later this year.

For More information:

Letter to EU 

Draft ABS Regulation

ENVI Website

Natural Justice and the Berne Declaration, ‘Access or Utilisation – What Triggers User Obligations? A Comment on the Draft Proposal of the European Commission on the Implementation of the Nagoya Protocol on Access and Benefit Sharing’ 

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ABS and BCP Workshop in East London, South Africa

On 3 and 4 July 2013, the Department of Science and Technology, in collaboration with the Indigenous Knowledge Systems (IKS) unit of the Medical Research Council of South Africa held the third and final pilot workshop on the international legislative framework and the South African domestic laws relating to Access and Benefit-Sharing.  The workshop was held in East London with twenty-eight participants and six resource persons.  Laureen Manuel and Gino Cocchiaro of Natural Justice conducted the workshop, which included presentations, group discussions and role plays on biocultural community protocols (BCPs).  

Members of seven different communities from villages in Uitenhage, Grahamstown and Willowbridge, as well as two representatives from the Mokgola community in Zeerust, participated in the workshop. Some of the participants are traditional healers and others are engaged in the farming of various types of tea leaves.  

International and domestic law on Access and Benefit Sharing, specifically the Convention on Biological Diversity and the Nagoya Protocol, and the Bioprospecting, Access and Benefit Sharing Regulations of South Africa were among the topics covered under the session on laws. 

The workshop concluded with participants readily taking part in the group discussions and role plays on BCPs, where they were required to engage with challenging questions about their own communities' visions for the future and their decision-making processes. 

The short report for the African BCP Initiative 2011-2012 can be found here.

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Regional Workshop on awareness raiding and capacity-building to support the ABS mechanism under the Nagoya Protocol, Chengdu, China

Arpitha Kodiveri of Natural Justice attended the Regional Workshop on awareness raiding and capacity-building to support the ABS mechanism under the Nagoya Protocol held in Chengdu, China between the 15th- 17th of May,2013 which was organized by ICIMOD. The workshop sought to bring together regions concerned with issues of biodiversity conservation and traditional knowledge across the Hindu Kush Himalayan landscape. Key representatives from Pakistan, Bhutan, India, China, Nepal and Myanmar presented efforts in their countries to set up domestic legal frameworks to facilitate the process of access and equitable sharing of benefits as proposed by the Nagoya Protocol. 

 Arpitha presented on the use of Biocultural Community Protocols in the context of ABS especially in relation to a transboundary landscape. The presentation highlighted the use of BCPs as tools in facilitating negotiations around ABS which can be in tune with priorities of the communities and their protocols that govern traditional knowledge. The presentation also spoke to the importance of using BCPs in this context as they have been given official legal recognition within the Nagoya Protocol. 

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ABS and BCP Workshop in Zeerust, South Africa

A workshop on the international legislative framework and the South African domestic laws relating to access and benefit sharing was held in Zeerust, South Africa on 9 and 10 April 2013. This workshop was the second of three workshops in a pilot project funded by the Department of Science and Technology and the National Research Institute, and organised by the Indigenous Knowledge Systems unit of the Medical Research Council of South Africa. Laureen Manuel and Stephanie Booker of Natural Justice conducted the workshop, which included presentations and training on biocultural community protocols (BCPs).

The participants of the workshop included committee members and youth from the Mokgola community in Zeerust. The topics covered the international and domestic law on Access and Benefit Sharing, specifically the Convention on Biological Diversity and the Nagoya Protocol, and the National Environmental Management: Biodiversity Act and Bioprospecting, Access and Benefit Sharing Regulations of South Africa.

The presentation and group discussions on BCPs revealed some community tensions which ended in concurrence that there needs to be more discussion within the community to reach agreement on certain issues.

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Tokyo Meeting on Articles 19 and 20 of the Nagoya Protocol

Buddha of Kamakura

Kabir Bavikatte (Natural Justice) participated in an informal meeting from 25-26 March 2013 in Tokyo, Japan. The meeting was organized by the Japanese Ministry of Foreign Affairs in collaboration with the Secretariat of the Convention on Biological Diversity and the United Nations University Institute of Advanced Studies. It included discussions on Articles 19 and 20 of the Nagoya Protocol on Access and Benefit Sharing, namely, model contractual clauses, and codes of conduct, guidelines and best practices and/or standards, respectively.

With Articles 19 and 20 being one of the focal topics to be addressed at the upcoming third meeting of the Intergovernmental Committee for the Nagoya Protocol (ICNP3), this informal meeting aimed to facilitate a dedicated discussion on these items among experts from around the world. The outcomes of this meeting would provide valuable inputs to the discussion at the ICNP3.

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EU Working Towards Implementation of the Nagoya Protocol

The Nagoya Protocol is an international agreement which aims at sharing the benefits arising from the utilization of genetic resources in a fair and equitable way. It was adopted on 29 October 2010 in Nagoya, Japan.

The European Parliament is now in the process of passing it into European law and thus giving precedent for the requirements of the European member states for when they pass the Nagoya Protocol into their domestic law.

There are a number of concerns with the EU's draft regulations as they stand. See here for Natural Justice's Letter of Concern to the European Union Parliament. The draft regulations are currently in review and are expected to be tabled in the EU Parliament in October to be ratified by the end of the year.
Click here for the EU's hearing on the ABS Draft Regulations.

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IPR and ABS Workshop in Bhutan

Via  www.moaf.gov.bt

Kabir Bavikatte (Natural Justice) is involved in a workshop on 'Intellectual Property Related to Genetic Resources and Access and Benefit Sharing (ABS) in relation to the Nagoya Protocol and International Treaties'.

It is being held over four days (12-15 March) in Thimphu, Bhutan.

Keep up to speed on crucial developments here.

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Side Event on Proposed EU ABS Regulations

Via abs-initiative.info

On 28 February 2013, the ABS Capacity Development Initiative held a side event on the draft EU ABS regulations during the 7th Pan-African Access and Benefit Sharing (ABS) workshop in Phalaborwa, South Africa. The draft regulations were presented by Soren Jensen of the ABS focal point at the Danish Ministry of the Environment. 

With regard to the process of adoption, he recalled that the draft regulation was published on the 4 October 2012 by the European Council. The draft is being discussed in the EC but the European Parliament will have the final say. A council of ministers is scheduled for 21 March 2013. He further outlined the definitions, scope and objectives of the draft regulations. The objective of the regulations is to implement the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity in the EU and to enable it to ratify Protocol.


Mr Jensen mentioned that the proposed regulations set out obligations for users of genetic resources and traditional knowledge (TK) associated with genetic resources in the EU. They would oblige all users to exercise due diligence to ascertain that genetic resources and TK associated with genetic resources used were accessed in accordance with applicable legal requirements and that, where relevant, benefits are fairly and equitable shared upon mutually agreed terms. To that end, all users would need to seek, keep and transfer to subsequent users certain information relevant for ABS. The proposal sets out minimum features of due diligence measures. Per Mr Jensen, the EU draft regulations also foresee a system of EU-trusted collections that would substantially lower the risk that illegally acquired genetic resources are used in the EU.

In the responses from participants, some stated that African countries should be extremely vigilant in accepting the use of resources because this provision shifts the burden of compliance to Collections. Participants were also of the view that the notion of “due diligence” in the draft should be clarified. They were also concerned by the fact that misappropriation of TK is not considered an offence in the draft regulations. Furthermore, participants were also concerned that the only TK that is protected under the draft regulation is TK included in Mutually Agreed Terms (MAT). They argued that it is worrying that this excludes a whole range of TK that has not been covered in the relevant MAT contracts.

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Presentation at National University of Juridical Sciences

On 24 February, 2013, Kabir Bavikatte (Natural Justice) was invited by the Nature Committee of the National University of Juridical Sciences, Kolkata to speak to students on Biocultural Rights and Access and Benefit Sharing. Thereafter Kabir co-chaired a mock session on negotiating the Nagoya Protocol with law students from law schools across India.

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New UEBT Brief on Nagoya Protocol

As the Nagoya Protocol to the Convention on Biological Diversity on Access and Benefit Sharing (ABS) is ratified by more and more nations, it is important that stakeholders understand its implications. To help businesses, and especially companies using biodiversity to develop food and personal care products, Natural Justice-partner the Union for Ethical BioTrade (UEBT) has released a technical brief on the provisions of the Nagoya Protocol. 

The brief begins by describing the overall purpose of the Nagoya Protocol and outlining the types of activities that will be impacted by its implementation. It then discusses changes to existing ABS requirements and details which countries will be establishing measures for ABS under the Protocol. It concludes by focusing on the specific implications for natural ingredients in food and personal care products. 

A report on the brief by CosmeticsDesign.com can be found here. The brief can be downloaded here.

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High-Level Panel on Implementation of Nagoya Protocol

On 18 October 2012, Laureen Manuel of Natural Justice attended a high-level panel discussion at a side event at the Convention of Biodiversity’s (CBD) 11th Conference of the Parties (COP 11) in Hyderabad, India. The discussion contemplated key questions surrounding the implementation of the Nagoya Protocol on Access and Benefit Sharing (ABS). The panel included Bard Vegar Solhjell, Minister of Environment (Norway) (Chair), Sileshi Getahun, Minister of Agriculture (Ethiopia), Janez Potocnik, European Commissioner for the Environment (European Union), and Dr Pema Gyantsho, Minister of Agriculture (Bhutan). Delegates who attended this gathering included government representatives, civil society organisations and representatives of Indigenous Peoples and local communities. 

India, Japan, Germany and South Africa were among the countries that shared their experiences on ABS. Germany said they had several ABS programmes in place, including the work of the ABS Capacity Development Initiative to assist developing countries with the implementation challenges. South Africa was applauded by the gathering when it announced that it would be ratifying the Protocol next Tuesday, and Norway indicated that they would ratify the Protocol within the next six months. 

In summary, the main observations of the panel included: 

• Although only a few countries have ratified the Protocol, many countries are at various stages aimed at ratification, with many countries revising their legislation and policies to meet the obligations of the Protocol; 
• The importance of awareness-raising of rights and other ABS issues cannot be over-emphasised; 
• Capacity building and financial and human resources are critical to the process, and is lacking in many countries; 
• Collaboration and the exchange of experiences among Parties are important for effective implementation and should continue in the future. 

In his concluding remarks, the Ethiopian Minister of Agriculture, Mr Getahun, said many of the reasons submitted by Parties for not ratifying the Protocol were related to preparatory processes leading up to ratification. These reasons should not hinder ratification. He said that effective implementation starts with ratifying the Protocol despite the preparatory challenges (because activities cannot be classified as legal or illegal if the Protocol is not ratified), making communities aware of the importance of their biodiversity resources and their rights as an informed public will assist in combating biopiracy, and finally, by establishing effective check points.

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India Urges Adoption of Nagoya Protocol

India has encouraged delegates at the 11th Conference of Parties to the Convention on Biological Diversity (CBD COP-11) in Hyderabad, India, to adopt the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity. The Protocol will  not enter into force until 50 nations ratify it. India, COP-11's chair, is also pushing for member nations to agree on a road map on the issues adopted during COP-10 two years ago in Nagoya, Japan. 

India's Minister of Forests and Environment, Jayanthi Natarajan, appealed to representatives of the 173 nations present, emphasising that future generations will not forgive a failure to preserve the earth's biodiversity. Amina Mohamed, UN Assistant Secretary-General and Deputy Executive Director of UNEP, called on all parties to "to step up effort for the early ratification of the Nagoya Protocol on Access and Benefit Sharing.” 

Read more here. 

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Natural Justice in Hyderabad for CBD COP11

The 11th Conference of Parties to the Convention on Biological Diversity (CBD COP11) is being held from 8-19 October, 2012, in Hyderabad, India. COP 11 will consider the implementation of the Strategic Plan 2011-2020 and progress towards the Aichi biodiversity targets. COP 11 will also review the programme of work on island biodiversity, ecosystem restoration, the status of the Nagoya Protocol on access to genetic resources and benefit-sharing, Article 8(j) (traditional knowledge), marine and coastal biodiversity, biodiversity and climate change, biodiversity and development, biofuels, and several other cross-cutting issues. For introductions to the key issues, please see the CBD Alliance briefing notes.  

In addition to following key agenda items throughout the negotiations, Natural Justice is co-hosting and speaking at several side events and workshops related to biocultural community protocols, Indigenous peoples' and local community conserved territories and areas (ICCAs), including the legal reviews that we coordinated, sacred natural sites, protected areas, the CBD-UNESCO Joint Programme of Work on the Linkages between Biological and Cultural Diversity, National Biodiversity Strategies and Action Plans, and access and benefit sharing, among others. More information about many of our joint events is available here.  

Updates on the negotiations and key events will be posted on this blog throughout COP11.

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New IIED Article on Community Protocols

Credit: Nick Lunch

As delegates prepare for the 11th Conference of Parties (COP 11) to the Convention on Biological Diversity (CBD) from 8-19 October in Hyderabad, India, Krystyna Swiderska of the International Institute for Environment and Development (IIED) has prepared an article tracing the community protocols developed by two communities, the Raika of Rajasthan, India and the Dusun of Sabah, Malaysia to claim rights guaranteed by the CBD and the Nagoya Protocol  on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD. 

The article notes that “although they have conserved important biodiversity of the regions where they have lived for generations, many communities are struggling to safeguard their biodiverse resources.” It presents community protocols as a way that communities are asserting their rights and engaging with outside actors. It then details, with text and photos, the unique ways of life of the Raika and Dusun and how they are using community protocols to protect their rights. 

The article can be found here. IIED’s recent publication on community protocols, rights and consent, drafted and edited in partnership with Natural Justice, can be found here in English and here in Spanish.

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Third Regional Preparatory Meeting for IPLCs for CBD COP 11 in Asunción, Paraguay

Photo credit: http://www.cbd.int/abs/ 

From 13-16 August 2012, Johanna von Braun of Natural Justice attended the Secretariat of the Convention on Biological Diversity’s (CBD) third regional consultation for indigenous peoples and local communities (IPLCs) in Asunción, Paraguay. Previous consultations were organised by the Secretariat and attended by Natural Justice team members in Bujumbura, Burundi and Chiang Mai, Thailand. The workshop brought together approximately 55 regional representatives from Latin America and the Caribbean in order to prepare recommendations for the 11th CBD Conference of the Parties (COP), to take place in Hyderabad, India in October 2012. 

During the first three days of the workshop participants familiarized themselves with the CBD in general as well as the history and nature of the participation of IPLCs in the work around the Convention. Particular attention was placed on articles 10c and 8j of the Convention, the 2011-2020 Strategy for Biodiversity and the Aichi Biodiversity Targets as well as the Nagoya Protocol on Access and Benefit Sharing. 

Significant time was spent discussing the crucial role community protocols, featured in article 12 of the Nagoya Protocol, could play in implementing the Protocol at the local level while asserting and affirming IPLC’s rights over traditional knowledge and genetic resources. Several case studies of community protocols, presented by a representative of the Kuna Yala community and Dr von Braun, supplemented this session. 

The final day of the workshop included an internal meeting in which IPLC representatives finalised the forum’s recommendations for COP11. After the end of the workshop, some participants stayed for an additional two days to participate in a more in depth training for facilitators on issues around the CBD and the Nagoya Protocol.

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