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.
