Protected Areas and ABS in Sabah, Malaysia - IUCN Portals

Holly Shrumm
Natural Justice: Lawyers for
Communities and the Environment

• Mount Kinabalu has arguably the richest flora in the world:
nearly 5,000 plant species occurring in an area of about
1,600 km 2 .
• Managed according to IUCN Category II guidelines as a
fully protected area with an emphasis on strict biodiversity
conservation and scientific research. In 2000, Kinabalu
Park was declared the first UNESCO World Heritage Site in
Malaysia.
• Dozens of Indigenous Dusun communities – very high
diversity of traditional knowledge and customary systems
• Mountain is of central spiritual and cultural importance to
the Dusun – summit is “gateway to the heavens”

Legal fragmentation of Indigenous peoples’
territories and ways of life
Interactions and potential conflicts between
customary and positive (state / int’l) law
Overarching state emphasis on resource
extraction and exploitation for national
economic development
◦ Often undermines supportive provisions for
Indigenous peoples’ and local communities’ rights

The Legal Disaggregation of Reality…

Re-envisioning the Law

In context of PAs: overlaps with customary
territories, imposition of restrictions on access
and use, “governance” and “management” vs.
customary stewardship, etc.
In context of ABS: definition of “community”,
“prior informed consent”, “competent
authority”, etc.

UN Declaration on the Rights of Indigenous Peoples
ITPGRFA (Article 9, Farmers’ Rights)
Convention on Biological Diversity (Articles 8(j) and 10(c))
Programme of Work on Protected Areas (Element 2:
Governance, Participation, Equity, and Benefit Sharing)
Akwé: Kon Guidelines on Economic, Cultural, Social and
Environmental Impact Assessments
Tkarihwaié:ri Code of Ethical Conduct to Ensure Respect for
the Cultural and Intellectual Heritage of Indigenous and Local
Communities
Nagoya Protocol on ABS (Articles 6(2), 7, 12, 21)
Strategic Plan & Aichi Targets (11, 13, 14, 16, 18)
UNESCO Convention for the Safeguarding of the Intangible
Cultural Heritage
• Etc…

Re-envisioning the Law

Land Ordinance (1930)
Forest Enactment (1968)
Parks Enactment (1984)
Biodiversity Enactment (2000)
• Sabah Biodiversity Council
• Sabah Biodiversity Centre
ABS Regulations (forthcoming)
◦ Federal ABS Bill (forthcoming…)
Sabah Biodiversity Strategy & Action Plan (2012-
2022, forthcoming)
◦ Others relevant to Indigenous peoples include Water
Resources Enactment (1998) and Wildlife Conservation
Enactment (1997)

Re-envisioning the Law

1992-1998
Sabah Parks, Universiti Kebangsaan Malaysia, and
WWF-UNESCO-Kew People and Plants Initiative
9 Dusun communities around Mt Kinabalu
Focus on ethnobotanical research,
conservation, environmental education, and
community development

Communities around Mt Kinabalu have very high levels
of traditional ethnobotanical knowledge (TEK)
TEK is generally common and shared across all villages
in Kinabalu area, although certain plants and
associated knowledge are specific to certain villages
Traditional knowledge is not inherent – it is dependent
upon regular interaction and practical application
within the local habitat and biodiversity
Traditional knowledge around Mt Kinabalu is rooted
within the indigenous Dusun language, culture, and
customary resource management practices

Value traditional knowledge as much as other knowledge
Recognize Indigenous peoples’ and local communities’
rights to control and grant access to their traditional
knowledge, innovations and practices based on prior
informed consent
Adopt a holistic, equitable, and integrated ecosystem
approach to biodiversity conservation, consistent with the
spiritual and cultural values and customary sustainable
practices of indigenous peoples and local communities
Foster collaboration between scientists, politicians, and
community members in the “complex process of
biocultural conservation”

Parents and elders should take responsibility for teaching
younger generations through practical teaching of use,
processing, and application of medicinal plants
Establish medicinal plant gardens and reserves in villages
and conduct trainings for educational purposes
Document knowledge in publications such as plant
manuals, posters, and audio-visual materials
Include traditional knowledge and customary practices in
school curricula, engage whole community in education
Engage adults through seminars, workshops, and
exhibitions

January 2009-June 2010
Two components:
◦ Biocultural Diversity and Conservation Learning
Platform
◦ Identification of potential Indigenous Peoples’ and
Community Conserved Areas (ICCAs)

To support capacity building and raise awareness about ABS and customary
uses of natural resources, the proposed project will explore the following
overarching themes over three years:
How does communities’ traditional knowledge support customary
sustainable uses of natural resources, and vice versa
How do communities share their knowledge, innovations and practices
What are the local dynamics, resources, and/or legal and policy
frameworks that support or affect communities’ traditional knowledge
Exploring these issues will better enable communities living around Mount
Kinabalu to define:
To government agencies, how they can engage with and support the
communities to continue their customary uses of biological diversity and
protect their traditional knowledge; and
To commercial and non-commercial users, the conditions and values
that govern the sharing of their traditional knowledge and biodiversity.

Communities: Capacity to provide greater clarity to external
stakeholders about their core values, challenges, priorities, and
plans relating to the conservation and customary uses of
biodiversity and the protection and promotion of their traditional
knowledge.
CBOs and NGOs: Further development of concepts and
methodologies for supporting communities to engage with
government agencies and (non-)commercial researchers
according to communities’ terms and conditions. One such
methodology may include, as appropriate, community protocols.
Researchers: Greater clarity about the connections between
customary uses of biodiversity and traditional knowledge and
about the ways communities around Mount Kinabalu share
knowledge; rights-based dialogues with communities
Government: Community experiences and lessons learned
informing related law- and policy-making processes.
International: Contribute to development of good practice

COMMUNITY PROTOCOLS
• Generally, a community protocol sets out the community’s terms
and conditions about how outside agencies can/should/have to
engage with them, according to different laws
• These often include procedures for free, prior and informed
consent, access to information, and participation in decisionmaking
• Often focus on substantive rights and responsibilities such as to
self-determination and self-governance, customary ownership
over resources, areas and territories, ways of life
• There are many different local manifestations… no “template” or
“best practice” (but there may be “good practice” or core
principles)

COMMUNITY PROTOCOLS
• Interface between different legal systems and
understandings of rights and responsibilities
• Supports dialogue and constructive collaboration
between different rights-holders and duty-bearers –
both aspirational and ‘defensive’
• Supports communities to take ownership over the law
and decision-making processes that impact their ways of
life
• Helps provide clarity and legal certainty to governments,
researchers, and other actors

Through community dialogue processes, protocols
often set out, inter alia:
• Who the community is
• Community relationships with land
• Local values, priorities, and visions
• Local processes and terms & conditions for
accessing, using, and sharing resources
• Local challenges and opportunities
• Rights under customary, national, and
international law
• Calls to other rights-holders and duty-bearers to
respect customary laws relating to actions on
territories and to take positive actions where
requested

• Potato Park benefit-sharing agreement amongst
Quechua communities
• Kuna community protocol on traditional knowledge
and customary ways of life
• Raika community protocol on livestock keepers’
rights and animal genetic resources
• Bushbuckridge Traditional Healers’ Association
biocultural community protocol on traditional
medicinal knowledge and access to medicinal
plants
• Sirkhazi Organic Farmers’ Association community
protocol on customary organic farming practices
and traditional rice varieties
• … and many more!

• Preamble
• Noting UNDRIP; inseparable interrelationship between traditional
knowledge and genetic resources; obligation to not restrict
customary use and exchange, etc.
• Article 6(2): Access to genetic resources (“established
rights”)
• Article 7: Access to traditional knowledge
• Article 11: Transboundary cooperation
• Article 12: Traditional knowledge associated with genetic
resources
• Parties shall take into consideration customary laws and community
protocols and procedures
• Parties shall support the development by Indigenous [peoples] and
local communities, particularly women, of community protocols, etc.
• Parties shall not restrict customary use and exchange
• Article 13: Competent national authorities
• Article 21: Awareness raising … and more!

• Community protocols are not necessarily appropriate for
every situation or community
• There is potential for the process to be co-opted by NGOs,
government, or local elites - inequities could be further
entrenched
• How to ensure representation of different community
voices, particularly marginalized ones
• One community’s protocol should not interfere with or
undermine other communities’ rights, values, or
endogenous development plans
• Potential for standardization of something that is inherently
diverse. What are the pros and cons of developing
guidelines or working towards legal recognition of
community protocols

• Are being used to communicate in their own voices
how their ways of life are helping conserve and
sustainably use ecosystems and why they should be
supported in continuing to do so
• Are one of many adaptive tools that communities can
use to ensure that legal frameworks and mechanisms
such as access and benefit sharing are undertaken are
according to their rights, values, and local priorities
• Help clarify rights and responsibilities, provide legal
certainty to governments, researchers, and other
actors, and support the conservation and sustainable
use of biodiversity

Integrated approach to the law
◦ Indigenous peoples’ rights, land, customary
sustainable use, traditional knowledge and
practices, governance and management
(stewardship) of natural resources, FPIC, equitable
sharing of benefits
◦ Enabling flexibility and resilience
Addressing overlaps and conflicts, and
exploring synergies
◦ How can PA laws and ABS laws reinforce Indigenous
peoples’ and local communities’ rights
Managing expectations

Holly Shrumm
holly@naturaljustice.org
www.community-protocols.org