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The Convention on Biological Diversity

A Mi'kmaq Perspective

 
May 19, 2002
Prepared for the Biodiversity Convention Office
by Alquimou Consulting Group

Introduction

Keptin Stephen J. Augustine is a hereditary chief representing the traditional territory of Sikniktuk in Mi'kmakik, sitting as a member of the Santé Mawiomi wjet Mi'kmaq or the Micmac Grand Council. Stephen is also a Native Historian, being a Curator at the Canadian Museum of Civilization, in Hull, Quebec. He had become involved with the CBD in the area of Traditional Knowledge and also attended the Inter-Sessional Workshop on Article 8(j) held in Madrid, Spain in November 1997. Due to many other commitments, Stephen had requested Patrick Augustine to gather information on his behalf.
 
Keptin Stephen Augustine
 
Patrick Augustine had attended:
the Meeting of the Ad Hoc Open-Ended Working Group on Access and Benefit Sharing in Bonn, Germany on October 22-26, 2001 representing the Micmac Grand Council. There was an understanding with the Executive of the Congress of Aboriginal Peoples (CAP) that the information gathered would be shared with them;

the Second Meeting of the Ad Hoc Open-Ended Inter-Sessional Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity in Montreal, Canada on February 4-8, 2002 with a similar agreement with CAP; and,

the Sixth Conference of the Parties to the Convention on Biological Diversity in The Hague, Netherlands on April 7-19, 2002, again with a similar agreement with CAP.

Acknowledgments

The author would like to acknowledge and thank the following individuals for their support and assistance:

Bonn, Germany (ABS)

The Plenary established Sub-Working Group I to develop draft International Guidelines on Access and Benefit-Sharing, and Sub-Working Group II to consider other approaches, including the development of an Action Plan for Capacity-Building along with considering the role of Intellectual Property Rights (IPRs) in the implementation of Access and Benefit-Sharing arrangements.

Concerns from the International Indigenous Forum on Biodiversity expressed a disproportionate emphasis placed on the commodification of traditional knowledge and natural resources of indigenous peoples which would undermine their political, social, economic and cultural integrity.

Attending the meeting developing the Bonn Guidelines was a learning experience. The dynamics of an international environmental conference were grasped with the assistance of the Canadian delegation. The author attended Sub-Working Group II on Capacity Building.

 
Canadian delegation & members of the indigenous delegation, Bonn, Germany

Montreal, Canada (Article 8(j) & Related Provisions)

The Plenary established Sub-Working Group I to introduce an outline on the Composite Report on Status and Trends, and Guidelines for Impact Assessments; Sub-Working Group II dealt with Assessment of Existing Instruments, and Participatory Mechanisms.

The International Indigenous Forum on Biodiversity stressed the participation of indigenous peoples in biodiversity conservation, in particular, women. IIFB stressed the need to establish a framework to protect the fundamental right to maintain and practice traditional knowledge and access their lands.

Attendance were in the areas of Status and Trends, and, Guidelines on Cultural, Environmental, and Social Impact Assessments.

The Hague, Netherlands (COP6)

COP6 dealt with Reports: Regional Meetings; Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA); Inter-Sessional Meeting on the Strategic Plan, National Reports and the Implementation of the Convention; Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing; Ad Hoc Open-Ended Inter-Sessional Working Group on the Implementation of Article 8(j) and Related Provisions; Status of the Cartagena Protocol on Biosafety; the Global Environment Facility; and, the Executive Secretary on the administration of the Convention and the Budget for the Trust Fund of the Convention.
 
Indigenous delegates at Canadian embassy, the Hague, Netherlands
 
Review of the Implementation of the Programme of Work, Thematic Programmes of Work - Progress Reports on Implementation: Biological Diversity of Dry and Sub-Humid Lands; and Agricultural Biological Diversity. Cross-Cutting Issues - Progress Reports on Implementation: Identification, Monitoring, Indicators, and Assessments; Global Taxonomy Initiative; Global Strategy for Plant Conservation; Article 8(j) and Related Provisions; Liability and Redress; Ecosystem Approach; Sustainable Use; and Incentive Measures. Mechanisms for Implementation: Financial Resources and Mechanism; Scientific and Technical Cooperation and the Clearing-House Mechanism; and Education and Public Awareness. Cooperation: Cooperation with Other Conventions and International Organizations and Initiatives; Contribution to the Ten-Year Review of the Implementation of Agenda 21; and, Budget for the Programme of Work for the Biennium 2003-2004.
Priority Issues: Forest Biological Diversity; Alien Species that Threaten Ecosystems, Habitats or Species; Access and Benefit-Sharing as Related to Genetic Resources; Strategic Plan, National Reporting and Operations of the Convention; and, Other Matters.
 

The International Indigenous Forum on Biodiversity expressed concern that emphasis was being placed on globalization at the expense of obligations and spirit of the Rio Summit, resulting in indigenous peoples' rights being violated. The IIFB cited loss of languages, knowledge and cultures; confronting the incursion of industry into ancestral lands, despite the recognition of collective rights in international instruments.

 

Attendance were in: the Informal Meeting of the Canadian Delegation and Canadian Members of the IIFB; Working Group II - Access and Benefit-Sharing, Draft Bonn Guidelines, Intellectual Property Rights (IPRs), and Capacity Building; Strategic Plan, National Reports, Implementation and Operations of the Convention; Working Group I - Identification, Monitoring, Indicators and Assessments; and, the Global Taxonomy Initiative. Working Group II - Contribution to the Ten-Year Review of Agenda 21; Article 8(j) and Related Provisions; Scientific and Technical Cooperation and the Clearing-House Mechanism; Strategic Plan, National Reporting and Operations of the Convention.
 

CBD vs. TRIPS

The following is an excerpt from a submission to Anthropology/Sociology Department of Carleton University, Culture and the Environment:
I must encourage your government to place precedence of the Convention on Biological Diversity over the World Trade Organization's Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement as they pertain to areas of biological resources and traditional knowledge systems. My argument will rely heavily on the document entitled "TRIPS vs. CBD: Conflicts Between the WTO Regime of Intellectual Property Rights and Sustainable Biodiversity Management" produced jointly by the Gaia Foundation and Genetic Resources Action International (GRAIN).
 

As you may know, over 130 countries adhere to both treaties. However, these two agreements contain and promote objectives which conflict. Conflicts arise in systems of rights and obligations. Other conflicts are where TRIPS imposes private intellectual rights on the biological diversity found in the Southern hemisphere, where the Convention on Biological Diversity recognises collective rights of local communities.

 

Conservation of this biological diversity is to recognize the sanctity and sacredness of life itself, not on privatization of it. In the Mi'kmaq cosmology, creation is in seven stages: the Creator; Universe; Earth; Man; Grandmother; Nephew; and, Mother. Throughout the oral tradition we are taught the sacredness of life and how humans must respect and interact with Creation, heaven and earth, birds, animals, plants and fish. This does not include control of one over others.

 

During the early 1990s leading up to the Earth Summit in Rio, the world recognized the industrial system of production and its continued expansion and growth would cost the earth dearly. Increases in climate instability caused by greenhouse effect; soil and genetic erosion; fires consuming the drying equatorial rainforests adding to climate change; marine pollution and fish stock depletion; all would contribute to the permanent extinction of over 100 species daily.

 

Indigenous people retaining their traditional knowledge on this magnitude of biological diversity, is also threatened. With the loss of this knowledge will be the loss of their technology associated with it. Prior rights over their heritage is being undermined by industries quest for exploiting this biological diversity; their claim over control of these resources; and their exclusive ownership over life. Nothing is left sacred.

 

The Convention on Biological Diversity is a legally-binding commitment to stop this destruction and exploitation. A year later the World Trade Organization established a different agenda, one that administers a global trading system based on private monopoly rights over biological diversity by multinational corporations. These corporations are not accountable to anyone, and left uncontrolled, will further be detrimental to life.

 

Principles of the Convention affirm the importance of peoples' contributions to biological diversity, which must not be viewed as a nature's gifts. The Convention also affirms women's involvement in community activities; inalienable co-dependency of biological diversity with diverse cultures and their knowledge lifestyles, maintained by them; the sustainability of in situ conservation of biological resources rather than ex situ collections; local communities' rights and states, necessary to protect biological resources and conservation encouraged; and, programmes and policies must be implemented to promote conservation, and the sharing of benefits from their use occurs.

 

This gives formal international recognition to the vital importance, and central role of indigenous and local communities with their traditional sustainable practices, and cultural knowledge systems.

 

There must be checks on Intellectual Property Rights, so they promote and do not counter the objectives of the Convention. The Convention calls for signers to protect and promote the rights of communities, farmers and indigenous peoples with their biological resources and knowledge systems under Article 8(j) and 10. It also supports that IPRs must not differ with the conservation and sustainable use of biological diversity. That is not the case with indigenous peoples or for farmers, as the Monsanto case indicates.

 

The TRIPS Agreement imposes biological and cultural uniformity, requiring countries to produce patents, and processes on any new technology that is capable of industrial application. Plants and animals may be excluded from IPR protection but plant varieties will not. Plant Variety Protection may fall under sui generis systems, as have had Indian Treaties which are now termed as domestic and sui generis.

 

These Plant Variety Protection systems under TRIPS would restrict farmers rights and those of local communities. Now we can see the conflict between the Convention and TRIPS. Plant Variety Protection systems do not induce plant breeding; cuts down information and germ plasm flow from the private to public sector; lessens the function in public plant breeding; and, increases seed prices for farmers. Developing countries will suffer under this regime, through losing control over and benefits from their own biological diversity.

 

Neither under the patent system or the Plant Variety Protection system, will there be any mechanism for sharing of benefits between the Intellectual Property Rights holders and the germplasm/knowledge holders, which is a requirement in the Convention's objectives.

 
These types of systems operate for the benefit of northern transnational corporation who already control 95% of patents in Africa; @ 85% in Latin America; and 85% in Asia, based on information from the World Intellectual Property Organization (WIPO). These types of systems run contrary to many indigenous cosmologies.
 

Implementing sui generis systems for plant varieties under TRIPS will mean: bulk of developing countries must provide for IPRs on food and medicinal biological diversity for the first time; Union for the Protection of New Varieties of Plant (UPOV) type of system inflicts a genetic uniformity as a legal requirement; seed prices will go up; farmers' access, planting, and management will be impaired; farmers' rights to storing seed will be restricted; farmers' plant varieties considered as genetic derivations will fall under ownership of IPR holders; seed companies will consolidate a monopoly over seeds; seed will be sold back to farmers from the south from which the plant varieties were first obtained; biological diversity and community knowledge systems will be lost; and, there will be a diminish in food security and agriculture innovation.

 

This will greatly impact on indigenous farmers from the South, but also on Canadian farmers, as Monsanto legal cases have attested to. Genetically Modified Organisms may be a form of pollution on farmers who do not desire these types of plants, as well as the consumer. What protection is there from GMO pollution and contamination? Under free trade agreements, the Parliament of Canada may be useless in preventing this with domestic legislation. TRIPS will privatise biological diversity, not protect it.

 

Indigenous traditional knowledge as they relate to biological diversity are considered as collective rights and sacred. Therefore conflict will arise by defining Intellectual Property Rights as private rights. The World Trade Organization will give global jurisdiction to private individual property rights, which in turn will destabilise regimes of national sovereignty followed from the Convention. Further erosion of indigenous/local communities inherent rights will occur, and of their recognition.

 

Intellectual Property Rights under TRIPS will bar the Convention from realising the full practical intention of Article 8(j) in the rights of indigenous and local communities. In Canada this will be a breach of the federal fiduciary towards Indians, also impacting on Aboriginal and Treaty Rights. Where is the honour of the crown on this matter? Canada will have lost its sovereignty over biological diversity, as they will then be controlled by Intellectual Property Rights' holders. This all falls contrary to the Convention.

 

Therein is where the conflict arises. The Convention recognises the states national sovereignty over biological resources, and TRIPS attempts to introduce private individual rights over the same resources.

 

Canada must first address Mi'kmaq Title and all rights stemming from such rights. It must then ensure control over biological diversity. Canada must ensure the protection of our traditional knowledge system over biological diversity; exclude life forms from Intellectual Property Rights regimes; and, recognize prior collective indigenous rights over these resources and knowledge.