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 legally supports the National Khoi-San Council in historic benefit sharing agreement

On 19 August 2013, the indigenous San and Khoikhoi groups signed a historic benefit sharing agreement with Cape Kingdom Nutraceuticals Pty under South Africa’s Biodiversity Act 10 of 2004. Cape Kingdom Nutraceuticals is a pharmaceutical company that processes Buchu, a small shrub endemic to the Western Cape used for its essential oils. Buchu’s medicinal qualities are associated with the traditional knowledge (TK) of the Khoikhoi and San peoples. The agreement acknowledges that the Khoikhoi and San’s medicinal plant knowledge predates that of subsequent South African inhabitants and that the Khoikhoi and San are “legally entitled to a fair and equitable share of the benefits that result from the commercial development of the Buchu plant.” Although the San Council was previously involved in entering into similar agreements, this marks the first time the Khoikhoi represented by the National Khoi-San Council (NKC), entered into such an agreement where their TK is recognized as such.

During November 2012 Natural Justice entered into a memorandum of understanding with the National Khoi-San Council. Under this agreement, Natural Justice offers legal support to the NKC in its ongoing struggle for legal recognition of its collective rights which includes amongst others, legal processes relating to benefit sharing.  Natural Justice was also able to assist the NKC in forming a negotiating team with the San council represented by Roger Chennels.  In terms of this historic partnership,the NKC and the San council act as a representative structure for the Khoikhoi and San peoples to protect their rights around associated traditional knowledge for related plants. 

It is all too rare for a private company to recognize, especially financially, traditional knowledge and the intellectual property rights of indigenous peoples. Under the benefit sharing agreement with Cape Kingdom, the Khoikhoi and San communities will receive 3 percent of the profits related to Buchu products. Cape Kingdom also commits to share its knowledge of the commercial use of the plant with the indigenous communities in exchange for the San and Khoikhoi endorsing the products. In response to the agreement, NKC Chairperson Cecil LeFleur stated: “We are very proud and excited to be part of this process. Today we share the benefits of our historical knowledge with Cape Kingdom Nutraceuticals. We feel that this partnership will be to the benefit of the Khoikhoi and San people in South Africa, and will contribute to our development and empowerment.”

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Will the European Union Legalise Biopiracy?

A new opinion piece, published on 18 June by Natural Justice and the Berne Declaration, sharply criticises the European Commission’s draft EC Regulation 2012/0278 (COD) to implement the Nagoya Protocol on Access and Benefit-Sharing in the European Union (EU). By excluding a significant category of genetic resources (GRs) from the scope of the regulation, the Draft fails to implement the main objective of the Convention on Biological Diversity and the Nagoya Protocol: the fair and equitable sharing of benefits arising from the utilisation of GRs and associated traditional knowledge (TK). In addition it will lead to greater legal uncertainty for users, allow for unfair competitive practices and, in the long run, lead provider countries to implement more burdensome access procedures to GRs.

The ENVI Committee of the European Parliament will vote on the Draft Regulation on the 4th of July, with a final draft expected to be tabled in the European Parliament in October 2013. In the Draft Regulation, user obligations would only apply to GRs and associated TK that have been physically accessed in the country of origin after the entry into force of the Nagoya Protocol. This implementation would be in sharp contrast to the large majority of existing ABS laws in provider countries where the utilisation of GRs and associated TK also triggers the obligation to share benefits, based on prior informed consent and mutually agreed terms. The European Commission’s narrow and biased interpretation of the Nagoya Protocol and subsequent national implementation is likely to have a number of very serious consequences:

• First, a significant share of GRs and associated TK used in the EU will not be covered by the Draft Regulation. This will undermine the objective of the Nagoya Protocol to share benefits equitably and fairly, as well as legalise biopiracy.
• Second, individual users of GRs and TK will not be provided with legal certainty, something they have long sought. Indeed, scenarios are likely to emerge where the utilisation of GRs and TK may be legal under EU law, but illegal under the law of the provider country. This could result in a user being in compliance with EU obligations under the new Access and Benefit Sharing regulations, but nevertheless subject to prosecution in a provider country upon entering its territory. Nobody has an interest in such a scenario.
• Third, a functioning global ABS system can only be based on mutual trust between providers and users. The current wording of the Draft Regulation will undermine this trust and is likely to lead to stricter access conditions in provider countries, thereby making research and development (R&D) increasingly bureaucratic and burdensome for European users. One of the underlying objectives of the Nagoya Protocol, namely to facilitate access for R&D, would subsequently not be reached and a valuable opportunity to incentivise the conservation and sustainable use of biodiversity would be missed.

We therefore urge the European Parliament, the Council and the Commission to enact a regulation that is line with the objective of the Nagoya Protocol and ensures that all related utilisation that takes place after the Nagoya Protocol comes into force complies with the access and benefit sharing rules of provider countries. The ENVI Committee Rapporteur made several proposals for amendments in this regard. Only by doing so can trust be built between user and provider countries, legal certainty established, and the conservation and sustainable use of biodiversity advanced.

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, can be downloaded on the websites of the Berne Declaration and Natural Justice.

For more information, please contact: François Meienberg (the Berne Declaration) at food (at) evb.ch, or Johanna von Braun (Natural Justice) at Johanna (at) naturaljustice.org.

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WIPO launches Draft TK Documentation Tool-Kit at UNPFII in New York

Photo credit: Q"apaj Conde

The World Intellectual Property Organization organised a side event during the Twelfth Session of the United Nations Permanent Forum on Indigenous Issues discussing the complex issue of documenting traditional knowledge (TK) and challenges and opportunities. During the side event WIPO presented its “Draft WIPO Traditional Knowledge Documentation Toolkit” which sets out practical information on safeguards and best practices for the protection of indigenous peoples´ intellectual property interests before, during and after TK documentation.

The program was moderated by Mr. Rama Rao Sankurathripat (Director, Cooperation Office WIPO) and featured the following panelists:

Mr. Q”apaj Conde, WIPO Indigenous Fellow, Aymara, Pluninational State of Bolivia.

Ms. Yolanda Teran, member Red de Mujeres Indígenas por la Biodiversidad, Kichua, Ecuador.

Ms. Lucy Mulenkei, Executive Director of the Indigenous Information Network (IIN), Masai. Kenya

Mr. Tuomas Aslak, Co-chair of the Global Indigenous Youth Caucus, Sami, Findland. 

Panelists highlighted the opportunities TK Documentation offers in terms of the preservation of TK as well as the protection of TK against abuse, while also raising concerns in terms of who has access to any databases and their content. The evolutionary nature of TK was highlighted and the difficulty of categorizing TK within databases. Finally, Mr Aslak from the Sami Council highlighted their own community managed TK databases as an example of addressing in particular concerns relating to ownership and control of database contents. WIPO's toolkit is now open for comments and is available here.  

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Member of Parliament, Dr. Wilmot James, Submits New Protection of Traditional Knowledge Bill

Dr. Wilmot James, Member of Parliament

Photo courtesy of Democratic Alliance 

A Protection of Traditional Knowledge bill based on the bill drafted by the incumbent of the StellenboschChair of IP Law, Professor Owen Dean, was published in the official government gazette and was tabled in Parliament by Dr. Wilmot James earlier this year. This bill, referred to as “Wilmot’s Bill” serves as an alternative to the widely criticized Government bill. President Zuma refused to sign Government bill citing constitutional concerns and ordered it returned to Parliament for consideration by the House of Traditional Leaders. The Portfolio committee, despite the President’s objections, recommended that the Government bill be passed into law. In addition to creating dedicated legislation to the protection on traditional knowledge, Wilmot’s bill would also provide for the establishment of a National Register of Traditional Knowledge as well as a National Council and National Trust and trust fund in respect of traditional knowledge.

In a synopsis accompanying the bill, Professor Dean explained that this bill is meant to provide adequate, financially viable, legally enforceable protection for traditional knowledge that will

• Provide sui generis (of its own kind/unique) protection for traditional knowledge,
• Comply with South Africa’s international obligations,
• Give effect to the principles for the protection of indigenous knowledge advocated by the World Intellectual Property Organisation (WIPO)
• Safeguard our existent IP statutes from irreparable harm 
• Establish a more sophisticated system for the protection of traditional knowledge in South Africa that far exceeds the level of protection anywhere else in the world.
• Provide how intellectual property rights will be protected;
• Determine what is eligible for traditional knowledge intellectual property right protection;
• Provide ownership definitions for traditional knowledge intellectual property rights; a
• Provide for the duration, nature and scope of the traditional knowledge intellectual property rights

     

For the Bill submitted by  Dr. Wilmot James, see here. For Professor Owen Dean's bill, see here. For the synopsis of Professor Owen Deean's bill, see here. 

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Kukula Healers Review 2012 & Plan for 2013

On 6-7 December 2012, Gino Cocchiaro (Natural Justice) attended a meeting of the Kukula Traditional Health Practitioners Association in Thulamahashe, South Africa. The Kukula Traditional Health Practitioners, a group of over 300 traditional health practitioners who developed a biocultural community protocol (BCP) in 2009, were meeting to discuss and evaluate their activities completed in 2012 as well as highlighting their aims for 2013. 

Accomplishments from 2012 included: registering as a NPO in South Africa; drafting a code of ethics for all members of the Kukula Association; creating a traditional knowledge common pool where individual knowledge is shared amongst members and with a local cosmetics company interested in the research and development of the knowledge; and collaborating with  Kruger National Park in its anti-rhino poaching efforts. In 2013, Kukula members plan to update their BCP to reflect legal developments and new priorities, to continue to develop their relationship with the cosmetics company towards and access and benefit sharing agreement, to continue to work for formal recognition as traditional health practitioners, to distribute copies of the code of ethics to all members, and to continue to support anti-poaching efforts.  The Kukula Association are also members of the African BCP Initiative and will continue to to seek the protection and growth of their knowledge, culture and the conservation of biodiversity in their area. 

Download the Kukula BCP here. 

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Overview of Key CBD COP11 Outcomes

Kabir Bavikatte (left) and Holly Shrumm (Natural Justice)

discussing key issues in the negotiations towards a plan

of action on customary sustainable use. Photo via IISD-RS.

Natural Justice was recently in India for the 11th Conference of the Parties (COP11) to the Convention on Biological Diversity (CBD), which took place from 8-19 October in Hyderabad. In addition to a range of events and meetings, we actively participated in the negotiations, with particular emphasis on the draft decisions on Article 8(j) and Related Provisions, Sustainable Use of Biodiversity, and Protected Areas. Other key agenda items for which we provided technical guidance and coordination assistance through the CBD Alliance and ICCA Consortium included: Monitoring Progress on the Implementation of the Strategic Plan and Aichi Biodiversity Targets; Review of the Programme of Work on Island Biodiversity; Ecosystem Restoration; Marine and Coastal Biodiversity; Biodiversity and Climate Change; Biodiversity for Poverty Eradication and Development; Biological Diversity of Inland Water Ecosystems; Forest Biodiversity; and Agricultural Biodiversity.

The overriding emphasis of the negotiations was on setting the foundations for resource mobilisation and policy alignment for implementation of the 2011-2020 Strategic Plan and Aichi Biodiversity Targets. Amongst the 33 decisions adopted, there were many provisions of direct relevance to the work of Natural Justice and our partners.

A selection of relevant provisions include (in numerical order):

• Decision XI/1 (Status of the Nagoya Protocol on Access and Benefit Sharing): Parties to undertake and provide support for capacity building initiatives, including participation of Indigenous peoples and local communities in legal, policy and decision-making processes, and the development of community protocols;
• Decision XI/2 (Review of Progress in Implementation of National Biodiversity Strategies and Action Plans): Parties to include all stakeholders, including Indigenous peoples and local communities, in planning and implementing national biodiversity strategies and action plans;
• Decision XI/7 (Business and Biodiversity): Parties to help businesses assess and effectively address their impacts on biodiversity and on Indigenous peoples and local communities;
• Decision XI/14 (Article 8(j) and Related Provisions): under the section on progress in implementation, Parties to include in requests to the Global Environment Facility and Small Grants Programme and other donors support for Indigenous peoples and local communities to organise themselves, to develop community plans and protocols, to document, map and register their ICCAs, and to prepare and implement their community conservation plans; and to provide support to countries to strengthen recognition of ICCAs; 
• Decision XI/14 (Article 8(j) and Related Provisions): under the section on Article 10 and 10(c) as a major component of the programme of work, Parties decided that the three initial tasks for the new work on Article 10 and 10(c) are to incorporate customary sustainable use practices or policy into national biodiversity strategies and action plans; to promote and strengthen community-based initiatives; and to identify best practices to promote the full and effective participation of Indigenous peoples and local communities in the establishment, expansion, governance, and management of protected areas, to encourage the application of traditional knowledge and customary sustainable use in protected areas, and to promote the use of community protocols to affirm and promote customary sustainable use in protected areas;
• Decision XI/14 (Article 8(j) and Related Provisions): under the section on recommendations from the Permanent Forum on Indigenous Issues, Parties to further consider adopting the phrase "indigenous peoples and local communities" (instead of "indigenous and local communities") at the next Working Group on Article 8(j) and at COP12 in 2014;
• Decision XI/16 (Ecosystem Restoration): Parties to promote the full and effective participation of Indigenous peoples and local communities and the use of traditional knowledge and practices in appropriate ecosystem restoration activities;
• Decision XI/17 (Marine and Coastal Biodiversity: EBSAs): Parties to also use traditional knowledge and social and cultural information to help describe and identify ecologically or biologically significant marine areas;
• Decision XI/21 (Other Matters Related to Biodiversity and Climate Change): Parties to take into account traditional knowledge, innovations and practices when addressing the impacts of climate change;
• Decision XI/22 (Biodiversity for Poverty Eradication and Development): Parties to protect and encourage the customary use of biological resources and to promote biodiversity and development projects that empower women and Indigenous peoples and local communities; an Expert Group on the same topic will, among other things, develop a conceptual framework and guidance on how to assess the role of collective action and the efforts of Indigenous peoples and local communities in conservation, stewardship, and sustainable management of biodiversity and natural renewable resources, including exploring the role of non-market-based approaches;
• Decision XI/24 (Protected Areas): Parties to strengthen recognition of and support for community-based approaches to in situ conservation and sustainable use, including Indigenous peoples' and community conserved territories and areas (ICCAs), and support the development of local and international registries of ICCAs; to direct benefits arising from the use of genetic resources to enhance management and establishment of protected areas and share benefits with Indigenous peoples and local communities; and
• Decision XI/25 (Sustainable Use): Parties to build and strengthen capacities of Indigenous peoples and local communities to exercise rights and responsibilities to sustainably manage wildlife resources.

Further Information

The advance unedited version of all COP11 decisions is now available online. Daily coverage and a detailed summary report of the negotiations are available online courtesy of the International Institute for Sustainable Development Reporting Services (IISD-RS). The CBD Alliance and CBD Secretariat published the latest issue of their joint newsletter, [square brackets], for the beginning of COP11 and the issues remain relevant.

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WIPO Indigenous Fellowship - Applications Open

The World Intellectual Property Organisation (WIPO) is seeking expressions of interest from indigenous individuals for the WIPO Indigenous Fellowship for 2013. The Fellowship seeks to build on a series of initiatives to ensure that Indigenous peoples are actively and effectively involved in the work of WIPO on issues that matter to them.

Fellows will work under the Director of the Traditional Knowledge Division of WIPO to assist in outreach to Indigenous peoples and local communities on intellectual property issues, contribute to and participate in the Secretariat of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, assist in planning and undertaking WIPO activities relevant to the UN Permanent Forum on Indigenous Issues, the Expert Mechanism on the Rights of Indigenous Peoples and the Special Rapporteur on the Rights of Indigenous Peoples, carry out relevant research and draft and prepare WIPO documents, and perform tasks that may be required in the context of the work of the Division. 

Applicants are expected to be recognised and active members of an Indigenous community, to have proven experience in Indigenous outreach, to hold legal qualifications or equivalent practical experience  with a preference for experience in intellectual property law, and to demonstrate the ability to work effectively in English (at least one other UN language would be an advantage). 

Find more details on the fellowship and how to apply here. 

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New SANBio Guidelines

The Southern Africa Network for Biosciences (SANBio), which is under the New African Partnership for Africa’s Development (NEPAD) of the African Union, has released new Traditional Knowledge and Plant Genetic Resources Guidelines. Natural Justice’s Kabir Bavikatte served as an external reviewer of the guidelines. 

From the Executive Summary, “These Guidelines were developed as a result of growing concerns of a lack of policies and laws in several SADC countries that govern the use of TK, biological resources and benefit sharing, despite the fact that these countries have signed the CBD. As a result of these concerns, the African Ministerial Conference on Science and Technology in 2003 adopted an outline of a “plan of action” now known as Africa’s Science and Technology Consolidated Plan of Action (CPA). The CPA, as well as decisions by the SADC leaders, emphasized the need to develop a framework for strengthening the capacity to harness and protect biological resources, as well as those associated with traditional knowledge, by encouraging co-operation in science and technology through harmonized policies and regulatory frameworks.” 

The guidelines include sections on Traditional Knowledge, Access and Benefit Sharing, Recognition and Protection of Farmers’ Rights, Intellectual Property Rights, Stakeholders, and Cross-Cutting Issues. The guidelines can be accessed here.

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E-Module on TK and Sustainable Use of Biodiversity

Natural Justice has developed a number of draft e-learning modules to support communities developing biocultural community protocols (BCPs) to increase their understanding of key international legal frameworks, concepts and programmes. These modules supplement ‘BCPs: A Toolkit for Community Facilitators’. 

The second module in this series examines international law’s recognition of and protections for communities’ traditional knowledge and sustainable uses of biodiversity. Traditional knowledge, innovations, and practices (often referred together as ‘traditional knowledge’) are developed and nurtured over many generations. They are underpinned by spiritual beliefs and customary laws that reinforce communities’ identities, cultures, and ways of life. They enable communities to live within the natural limits of specific territories, areas, or resources upon which they depend for livelihoods and wellbeing. They are also integral to Indigenous languages, spiritual beliefs, and culturally appropriate education, health, and nutrition. 

There are several international agreements that address traditional knowledge and customary sustainable uses of biodiversity. The focus of this module is the most prominent agreement, the Convention on Biological Diversity. From the outset of the Convention, the Preamble recognizes “the close and traditional dependence” of many Indigenous peoples and local communities on biological resources. Thereafter, two Articles in particular grant important rights to Indigenous peoples and local communities: Article 8(j) on traditional knowledge, innovations and practices; and Article 10(c) on customary sustainable uses of biodiversity. 

The module can be downloaded here. The BCP Toolkit can be downloaded here. The documents are not final and any comments can be directed to Holly Shrumm (holly (at) naturaljustice.org) and Harry Jonas (harry (at) naturaljustice.org).

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Bushbuckridge BCP Review and Code of Ethics Drafting

Faced with discrimination, the unauthorised use of their traditional knowledge and genetic resources, and the overharvesting of the plants with which they sustain the health of their communities, the members of Kukula Traditional Health Practitioners in Bushbuckridge, South Africa, organised themselves in 2009 and drafted a biocultural community protocol (BCP). The BCP asserts their role in maintaining community health, preserving culture, and protecting community knowledge and biodiversity. 

On 8-9 February, 2012, the 30-member management committee of Kukula gathered in Bushbuckridge to assess their BCP and to draft a code of ethics to guide all of their members’ practices. The gathering was facilitated by the chairperson of Kukula, Rodney Sibuyi, and by Natural Justice with support from the management committee of the Kruger-to-Canyons Biosphere. The meeting was part of the Africa BCP Initiative which is funded by the ABS Capacity Development Initiative, OSISA, the Christensen Fund, the Shuttleworth Foundation, and OPEN A.I.R.

In reviewing the BCP’s impact, participants examined changes in their capacity to protect their knowledge, the potential for engaging in access and benefit sharing, the protection of their biodiversity and culture, their access to resources within protected areas, and recognition of their roles as healers from the government. Generally, participants felt that advances have been made in the capacity and willingness of Kukula members to harvest resources sustainably, in their access to resources within protected areas, in their current non-disclosure agreement with a cosmetics company that may lead to an access and benefit agreement, and in recognition of their roles by government. While they felt that changes were generally positive, many are moving very slowly. To increase the pace of these changes the community highlighted two interrelated objectives; increased organisation and cohesiveness and increased awareness at the community and government level of the role of Kukula members. 

The committee then outlined the broad themes they wanted to cover within a code of ethics for all members. They then broke into groups to draft guidelines for each theme and returned to the plenary session to debate these guidelines and endorse some of them as the full management committee. The draft guidelines address the responsibilities of Kukula members: the needed qualifications; the general principles around charging fees; the importance of hygiene around the workplace, tools used and medicines prescribed; relationships with patients, other healers and doctors, and with students; and disciplinary procedures. Natural Justice will now prepare a formal document with the draft guidelines and suggested modifications based on national and international law for the management committee to review and present to the full membership of Kukula.

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TK Commons Meeting in Cape Town

On the 31st January representatives from the Bushbuckridge Traditional Healers’ Association, lawyers working on issues around traditional knowledge (TK) from Kenya and Ghana, and Natural Justice gathered in Cape Town with support from the Open A.I.R. Project. The theme was “Non-Traditional Users of TK—Opportunities and Challenges Around Compliance”. Breakout sessions delved into the definition of TK commons, methods of pooling and sharing TK, TK practioners and their issues, external links to non-traditional users of TK, and existing and future policies around TK. Interviews with the healers from Bushbuckridge on the challenges they have faced in managing the sharing of their TK informed much of the discussion. 

Looking forward, the representatives looked to build on the successes of the Bushbuckridge community. As communities in Ghana and Kenya move forward with their development of TK commons, participants will support the development of linkages between these communities and the Bushbuckridge healers. They will also continue to look for ways to creatively collaborate to analyse and shape laws and policies around TK based on experiences at the grassroots level.

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