BIO-CULTURAL COMMUNITY PROTOCOLS - UNEP

BIO-CULTURALCOMMUNITYPROTOCOLSA Community Approach toEnsuring the Integrity ofEnvironmental Law and PolicyPublished October 2009Copyright: Unted Nations Environment ProgrammeProduced by: Natural JusticeEditors: Kabir Bavikatte & Harry JonasAuthors: Elan Abrell, Kabir Bavikatte, Harry Jonas,Ilse Köhler-Rollefson, Barbara Lassen, Gary Martin,Olivier Rukundo, Johanna von Braun and Peter Wood.Coordinator: Scott DunlopCover design & typesetting: Ian KelynackPrinter: Captain PrintworksPhotographs: Harry Jonas, Ilse Köhler-Rollefsonand Johanna von BraunAcknowledgements:This publication is compiled by Natural Justice with support from UNEP Division forEnvironment Law and Conventions, Nairobi. The authors are thankful to Dr. BalakrishnaPisupati, Dr. Alphonse Kambu and Ms. Rose Wachuka Macharia of UNEP for theirinterest in the work, support, guidance and comments on various chapters of thispublication. Funding for this publication comes from the UNEP ABS programme.The authors have sought toinclude the most accurate and up-to-date informationavailable. Any errors - factual or presentational - remain those of the authors alone.This publication was produced jointly byUnited Nations Environment Programme (UNEP)and Natural Justice with financial support from UNEPThis publication is licensed under a Creative Commons Attribution-Share Alike Licence (South Africa/v2.5). This licence is available athttp://creativecommons.org/licences/by-sa/2.5/za/

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CONTENTSACRONYMSINTRODUCTIONPART IPART IIPART IIIAPPENDIXCHAPTER 1A Bio-cultural Critique of the CBD and ABSCHAPTER 2Bio-cultural Community Protocols as aCommunity-based Response to the CBDCHAPTER 3Community Protocols in the Negotiations of theInternational Regime on Access and Benefit SharingCHAPTER 4Bio-cultural Community Protocols and REDDCHAPTER 5Bio-cultural Community Protocols and Protected AreasCHAPTER 6Bio-cultural Community Protocols in the Context ofPayment for Ecosystem ServicesCHAPTER 7Bio-cultural JurisprudenceThe meaning of the Raika Bio-cultural Protocol forLivelihoods and Biodiversity ConservationThe Raika Bio-cultural Protocol0608122037425258687476

ACRONYMS

ABSBABSBCPBMCCBDCBNRMCMPACOPESSFAOFCPFFPICGISGPSGRICCAICCPRICESCRIIEDILCILOIRABSIUCNLCAMATNGOPESPoWPAREDDTKUNDRIPUNEPUNFCCCWGABSAccess and Benefit SharingBio-prospecting and Access and Benefit SharingBio-cultural Community ProtocolBiodiversity Management CommitteeConvention on Biological DiversityCommunity-based Natural Resource ManagementCollaboratively Managed Protected AreaConference of PartiesEcosystem ServicesFood and Agriculture OrganizationForest Carbon Partnership FacilityFree, Prior and Informed ConsentGeographic Information SystemsGlobal Positioning SystemsGenetic ResourcesIndigenous and Community Conserved AreaInternational Covenant on Civil and Political RightsInternational Covenant on Economic, Social and Cultural RightsInternational Institute for Environment and DevelopmentIndigenous Peoples and Local CommunitiesInternational Labor OrganizationInternational Regime on Access and Benefit SharingInternational Union for the Conservation of NatureLong-term Cooperative ActionMutually Agreed TermsNon-Governmental OrganizationPayment for Ecosystem ServicesProgramme of Work on Protected AreasReducing Emissions from Deforestation and Forest DegradationTraditional Knowledge, which is a term for “knowledge, innovations and practicesof indigenous and local communities relevant to the conservation and sustainableuse of biological diversity” as stated in article 8(j)United Nations Declaration on the Rights of Indigenous PeoplesUnited Nations Environment ProgrammeUnited Nations Framework Convention on Climate ChangeWorking Group on Access and Benefit Sharing07

INTRODUCTION

The next twelve months is an importantperiod in the development of internationalenvironmental law that will have markedimpacts on the lives of indigenous peoplesand local communities (ILCs). Negotiationsunder the auspices of the United NationsConvention on Biological Diversity (CBD) andthe UN Framework Convention on ClimateChange (UNFCCC) are likely to culminate intwo instruments that will have significantimpacts on the lives of ILCs: the InternationalRegime on Access and Benefit Sharing(IRABS) and the Programme on ReducingEmissions from Deforestation and ForestDegradation in Developing Countries(REDD), respectively. The IRABS will regulatethe way traditional knowledge (TK) andgenetic resources (GR) are accessed and howthe benefits arising from their use are shared.REDD aims to contribute to the mitigationof climate change by facilitating paymentsfor reducing deforestation in which ILCs liveand depend on for their livelihoods.Without ILCs’ input, there exists significant potential for lawsintended to promote the overarching aims of the Rio Conventionsto instead further undermine the communities that have mostcontributed to the protection of biodiversity and least contributedto climate change. The legal and bio-cultural empowerment ofILCs is therefore the indispensable condition of the local integrityof international environmental law.Yet there is a concern that the development of internationalenvironmental laws and guidelines focus disproportionatelyon protecting the environment and access to ILCs' TK withoutalso empowering ILCs to ensure the conservation andsustainable use of their natural resources and wider use oftheir TK according to their bio-cultural values. Although thereis a significant body of work pertaining to sui generis systemsof the protection of TK and associated GR, significantly lessemphasis has been placed on devising means to ensure locallyentrenched, holistic approaches to environmental law.The development of bio-cultural community protocols (BCPs)by ILCs is one way in which communities can increase theircapacity to drive the local implementation of internationaland national environmental laws. A BCP is a protocol that isdeveloped after a community undertakes a consultativeprocess to outline their core ecological, cultural and spiritualvalues and customary laws relating to their TK and resources,based on which they provide clear terms and conditions toregulate access to their knowledge and resources.In both the CBD and UNFCCC forums, ILCs and nongovernmentalorganizations (NGOs) are questioning the abilityof the respective instruments to adequately respect andpromote communities’ ways of life that have contributed tothe conservation and sustainable use of biodiversity. Whileinternational regulatory frameworks are important for dealingwith modern global concerns such as biodiversity loss andclimate change, their implementation requires carefulcalibration at the local level to ensure the environmental gainsand social justice they are intended to deliver. The localimplementation of environmental legal frameworks is mostlikely to lead to environmental and social benefits when ILCshave the right of free, prior and informed consent (FPIC) overany activities undertaken on their lands or regarding accessto their traditional knowledge, innovation and practices (alsoreferred to collectively as TK) and when they are able to ensurethat any activities or benefit-sharing agreements reflect theirunderlying bio-cultural values.The process of developing a BCP involves reflection about theinter-connectedness of various aspects of ILCs’ ways of life(such as between culture, customary laws, practices relatingto natural resources management and TK) and may involveresource mapping, evaluating governance systems andreviewing community development plans. It also involveslegal empowerment so community members can betterunderstand the international and national legal regimes thatregulate various aspects of their lives, such as ABS, REDD,protected area frameworks, and payment for ecosystemservices schemes. Within the ABS framework, for example, acommunity may want to evaluate what the community’sresearch priorities are, on what terms it would engage withpotential commercial and non-commercial researcherswanting access to their TK, what the procedures relating toFPIC must be, and what types of benefits the community maywant to secure.09

INTRODUCTIONBy articulating the above information in a BCP, communitiesassert their rights to self-determination and improve theirability to engage with other stakeholders such as governmentagencies, researchers and project proponents. Thesestakeholders are consequently better able to see thecommunity in its entirety, including the extent of their territoriesand natural resources, their bio-cultural values and customarylaws relating to the management of natural resources, theirchallenges, and their visions of ways forward. By referencinginternational and national laws, ILCs affirm their rights tomanage and benefit from their natural resources. They arealso better placed to ensure that any approach to access TKor any other intended activity on their land, such as theestablishment of a REDD project or a protected area, occursaccording to their customary laws. Overall, BCPs enablecommunities to affirm their role as the drivers of conservationand sustainable use of biodiversity in ways that support theirlivelihoods and traditional ways of life.This book illustrates the application of BCPs to a range ofenvironmental legal frameworks. Part I focuses on the CBDand ABS. Chapter 1 presents a bio-cultural critique of the CBDand ABS and international environmental law in general,highlighting their perceived strengths and practical weaknessesfrom a community perspective. Specifically, we detail howArticle 8(j) presents a holistic vision of the protection of bioculturalcommunities’ ways of life and how, in contrast, theWorking Group on Access and Benefit Sharing (WGABS) hasfocused on facilitating only the commercial application of TK.We argue that the narrow conception of Article 8(j) adoptedby the IRABS could lead to ABS agreements further weakeningcommunities’ cultural and spiritual foundations. We highlighthow the CBD has tried to curb free market excesses via thedevelopment of instruments such as the Bonn Guidelines toregulate users of TK and GR, yet suggest that the Guidelines’lack of mechanisms to empower communities to continuedeveloping their TK and GR jeopardizes the local integrity ofthe IRABS. There is a danger that the international intentionof ABS may falter at the local level, thus undermining its abilityto implement Article 8(j).In Chapter 2, we suggest that the development of BCPs is ameans with which communities can respond to the challengesposed to them by the incumbent IRABS. We set out the processthat leads to developing a protocol and, through examplesof BCPs, illustrate how communities are using them to managetheir TK, respond to various local challenges and promote selfdetermineddevelopment plans. We draw on these examplesto argue that BCPs are a practical way for communities toensure that the IRABS generates the local environmental andsocial goals it is intended to promote.Chapter 3 illustrates how the concept of BCPs is gaininginternational recognition. It draws on the negotiations withinthe WGABS, as well as several subsidiary meetings held in2009 between WGABS 7 and 8: the Meeting of the Group ofTechnical and Legal Experts on Traditional KnowledgeAssociated with Genetic Resources, the International VilmWorkshop on Matters Related to TK Associated with GeneticResources and the ABS Regime, and the Pan-African Meetingof ILCs on ABS and TK.Part II of the book looks more broadly at other frameworks towhich BCPs can be applied by ILCs. Chapter 4 focuses onREDD, making a case for the use of BCPs by forest-dependentcommunities to address the serious concerns ILCs have aboutthe effects of REDD on their forests rights. Chapter 5 exploresthe interplay between protected areas, ILCs and TK within theframework of the CBD and the Programme of Work onProtected Areas. Specifically, it evaluates the contributionthat BCPs can make to improving ILCs’ participation in twotypes of protected areas, namely, collaboratively managedprotected areas and indigenous and community conservedareas. Chapter 6 describes how payment for ecosystemservices schemes operate and their potential to contribute tocommunities’ livelihoods, and sets out how BCPs providea means for ILCs to engage with and determine the shapeof the schemes.Part III draws on the book’s overarching themes to look morebroadly at the meaning of BCPs for environmental law.Chapter 7 traces the emergence of bio-cultural jurisprudence,a nascent form of legal thought founded on the principles ofself-determination and respect for customary laws. Bio-culturaljurisprudence challenges dominant notions of how to “protectTK” and suggests a paradigm shift is required within the lawitself if ILCs are to be recognized as drivers of the conservationand sustainable use of biodiversity and the generation ofculturally appropriate livelihoods.10

PART I / CHAPTER 1A BIO-CULTURAL CRITIQUE OF THE CBD AND ABS2. The CBD and ABSArticle 8(j) should be read together with Article 10(c), whichcalls on parties to “protect and encourage customary use ofbiological resources in accordance with traditional culturalpractices that are compatible with conservation or sustainableuse requirements.” Article 8(j) is unprecedented to the extentthat it acknowledges a symbiotic relationship between “in situconservation” of biodiversity and the “traditional lifestyles” ofindigenous peoples and local communities (ILCs) 3 Theselifestyles however are manifested through the knowledge,innovations and practices (collectively referred to as traditionalknowledge, or TK) of ILCs and States are asked to respect,preserve and maintain this TK and promote its wider application.Article 8(j) also states that any use of such TK should be basedon the approval and involvement of the holders of suchknowledge and that they should be entitled to a fair andequitable share of the benefits arising from the utilization oftheir knowledge.The full and effective implementation of Article 8(j) requiresequal consideration to be given to each of the followingthree components:• Conservation of biological diversity is integrally linkedto the traditional lifestyles of ILCs.• TK is embodied in the traditional lifestyles of ILCs and thein situ conservation of biological diversity globally canbe achieved through the protection, preservation andwider application of the TK of ILCs.• The wider application of the TK of ILCs has to be basedon their approval and involvement and any benefitsarising from its utilization must be shared with thecommunities providing it.Despite the wide-ranging implications of the nature of TK,the WGABS’s debate around Article 8(j) has focused narrowlyon knowledge that may have commercial applications.Indeed, as we approach the two meetings of the WGABSbefore COP 10, the shape of the incumbent regime isbecoming increasingly clear. 4Users of GR will be expectedto fulfill a range of obligations in order to gain access to GRand associated TK. The three most important of theseobligations are:• Free, Prior and Informed Consent (FPIC): Article 15(5) ofthe CBD requires that access to GR shall be made subjectto FPIC. The Bonn Guidelines (Para 26 (d)) specify that FPIChas to be obtained from all relevant stakeholders, including,where appropriate, from ILCs. Users also have to deliverevidence of FPIC before being granted access to GR.• Mutually Agreed Terms (MAT): Article 15(7) of the CBD furthercalls on parties to implement benefit-sharing agreementson MAT, which have to be finalized in a written format.The Bonn Guidelines (Para 42) further expands on thisrequirement by giving guidance on how to implement MATthrough different contractual mechanisms and specifies arange of subjects that have to be included in order for abenefit-sharing agreement to qualify as having MAT.• Benefit-Sharing Agreements: Finally, the CBD demands thesharing of all benefits arising out of the use of GR. The BonnGuidelines 5 (Paras 45-50) again provide more guidance onthis matter, stating that all relevant stakeholders shouldreceive a fair and equitable share of benefits and that thenature of the benefits and their distribution have to beagreed upon on a case-by-case basis.The above stipulations regulate access of GR and associatedTK by non-community stakeholders. Yet because the IRABSintends only to regulate and facilitate the trade in TK and GR,it largely ignores communities’ knowledge, innovations andpractices that are not commercially attractive but stillimportant for the conservation and sustainable use of geneticresources. Before looking more closely at concerns stemmingfrom the WGABS’s overemphasis on commercialization,we turn to explore the subjects of Article 8(j): bio-culturalcommunities.3. Indigenous peoples have repeatedly asked to be referred to as “Peoples,” as referenced in the Declaration on the Rights of Indigenous Peoples, and we acknowledgethat the acronym “ILC” as recognized by the CBD refers to the full term.4. A range of national governments in the meantime also have developed their own regimes, in anticipation of a future multilateral regime. These include, among others,South Africa, Uganda, Kenya, Ethiopia, the Andean Pact, Brazil, India, Malaysia, and the Philippines.5 . While the Bonn Guidelines are not a plenipotentiary instrument, they augment the CBD.13

PART I / CHAPTER 1A BIO-CULTURAL CRITIQUE OF THE CBD AND ABS3. Bio-cultural CommunitiesILCs’ cultures are mega-diverse, yet share certain commonalities.Many ILCs living traditional lifestyles that have conservedecosystems share a conception of the self not as a unit separatefrom the world over which they have proprietary rights,but rather an understanding of the self as integrated with theland and embedded within an ethical relationship. TK then isnot a value-neutral piece of information but is interconnectedwith a way of knowing that is a result of an interaction betweenILCs and the land that is rooted in cultural practices andspiritual values and enshrined in customary laws. Notably, itis this bio-cultural relationship (see Diagram 1),not their proprietary rights over TK, that has contributedto centuries of in situ conservation of biological diversity.ILCs have consistently highlighted their integral relationshipswith the environment at various international meetingsand have worked to integrate their views into internationallaws and other ILC declarations. The sections below outlineseveral ILCs’ declarations, all of which place emphasis onspiritual, cultural and reciprocal relationships with the land,interconnectedness with all forms of life, custodianship ofterritories and knowledge for future generations, ethical useand treatment of all forms of life, and opposition tounderstanding life and knowledge as property.Diagram 1: Illustrating the holistic nature of ILCs’ relationshipwith ecosystems and the links between biodiversity, communities’culture & spirituality, customary laws, community-based naturalresource management, TK, and the formation of landscapes.LANDSCAPEBIODIVERSITYTRADITIONALKNOWLEDGECULTURE &SPIRITUALITYCBNRMCUSTOMARY LAW14

PART I / CHAPTER 1A BIO-CULTURAL CRITIQUE OF THE CBD AND ABSOn September 14, 2007, the United Nations General Assemblyadopted the Declaration on the Rights of Indigenous Peoples.Article 25 of the Declaration states that “Indigenous peopleshave the right to maintain and strengthen their distinctivespiritual relationship with their traditionally owned or otherwiseoccupied and used lands, territories, waters and coastal seasand other resources and to uphold their responsibilities tofuture generations in this regard. A number of declarationsby ILCs further articulate this relationship:1. In May 2007, 44 indigenous peoples groups meeting inNew York issued the Declaration on Indigenous Peoples'Rights to Genetic Resources and Indigenous Knowledge.They began the declaration by stating:We, the undersigned indigenous peoples and organizations,having convened during the Sixth Session of the UnitedNations Permanent Forum on Indigenous Issues, from14 to 25 May 2007, upon the traditional territory of theOnondaga Nation, present the following declarationregarding our rights to genetic resources andindigenous knowledge:• Reaffirming our spiritual and cultural relationship with alllife forms existing in our traditional territories;• Reaffirming our fundamental role and responsibility as theguardians of our territories, lands and natural resources;• Recognizing that we are the guardians of the indigenousknowledge passed down from our ancestors fromgeneration to generation and reaffirming our responsibilityto protect and perpetuate this knowledge for the benefitof our peoples and our future generations2. On August 7, 1997, the Heart of the People Declarationwas adopted by the North American Indigenous PeoplesSummit On Biological Diversity and Biological Ethics.In the preamble, they stated that:We, the participants in the North American IndigenousPeoples Summit on Biological Diversity and Biological Ethicsexpress our profound concern for the well being of ourMother Earth and the Indigenous Circle of Life known as"biological diversity".We wish to add our voices to ongoing global discussionsregarding the protection of biological diversity, thesafeguarding of traditional knowledge and sustainabledevelopment practices, and the ethical use and treatmentof all forms of life based on harmony, respect and thespiritual interconnectedness of the natural world.Principles:We endorse by consensus the following principles as astatement of our beliefs and a guide to our actions.• Mother Earth and all human, plant and animal relativesare sacred, sovereign, respected, unique living beings withtheir own right to survive, and each plays an essential rolein the survival and health of the natural world.• Human beings are not separate from the rest of the naturalworld, but are created to live in relationship and harmonywith it and with all life.• The Creator has given us a sacred responsibility to protectand care for the land and all of life, as well as to safeguardits well being for future generations to come.Conclusions:• We uphold the sacredness of life and oppose ideas, systems,world views and practices, including global finance andpatent laws, which define the natural world, its life formsand the knowledge of Indigenous Peoples as propertyor "commodities".• We oppose the actions of government agencies,corporations, educational institutions, and religious bodieswhich promote the idea that the natural world is to bedominated and exploited by humanity using nonsustainabledevelopment practices that contaminate ordestroy the natural world, species and habitats, sacred sites,and our communities and homes.3. On February 19, 1995, in Phoenix, Arizona, 18 indigenouspeoples organisations adopted the Declaration ofIndigenous Peoples of the Western Hemisphere Regardingthe Human Genome Diversity Project which began by stating:• We are the original peoples of the Western hemisphere ofthe continents of North, Central and South America. Ourprinciples are based upon our profound belief in thesacredness of all Creation, both animate and inanimate. Welive in a reciprocal relationship with all life in this divine andnatural order.• Our responsibility as Indigenous Peoples is to insure thecontinuity of the natural order of all life is maintained forgenerations to come.• We have a responsibility to speak for all life forms and todefend the integrity of the natural order.• In carrying out these responsibilities we ensure that all lifein its natural process and diversity continues in a reciprocalrelationship with us.15

PART I / CHAPTER 1A BIO-CULTURAL CRITIQUE OF THE CBD AND ABSeach one simultaneously focusing more on one particularaspect of their natural resources or livelihoods and ignoringothers. From the ABS perspective, TK is viewed without itscultural and environmental foundations. The incumbentREDD regime has the danger of putting disproportionateemphasis on trees as vehicles of carbon sequestration andneglecting the value of biodiversity for human habitation andsurvival. This tendency leaves communities vulnerable to aseries of single-issue remedial interventions that equate toless benefit than the sum of their parts because of theirlack of coherence.From the community perspective, the top-down emphasisof the Bonn Guidelines and the way in which environmentallaw fractures the otherwise interconnected nature of ILCs’ways of life weakens communities’ ability to engage with thelaw in such a way that further strengthens their bio-culturalrelationships. Lacking is a mechanism that empowerscommunities within the various environmental frameworks,allowing them to appraise which laws to use to bestpromote their endogenous development plans.6. ConclusionThe current crisis of Article 8(j) is that the perceived consensuson facts masks the real differences in values. The fact aroundwhich there seems to be an agreement in the WGABS is thatTK is a commodity that can be traded, and that operationalizingArticle 8(j) requires a sound ABS agreement betweencommunities and commercial interests. The disagreement onvalues lies in what would constitute best practices anddue process in a sound ABS agreement.The problem however is that the moment we all agree on the“fact” that TK is a purely tradable commodity, we sever thelinkage with its bio-cultural origins and thereby foreclose thediscussion as to how ABS agreements can affirm bio-culturalways of life of ILCs. To agree that TK is purely a commodity isto agree on a set of industrialist values that denies the verysystems through which TK is produced and biodiversity isconserved and sustainably used.entering into good ABS agreements which uphold the spiritof Article 8(j), affirm a bio-cultural way of life and promotetheir bio-spiritual values. To put it differently, is it possibleto have ABS agreements that foster the relationshipscommunities have with their ecosystems and contributeto the security of their bio-cultural foundations? This questionhas great relevance to the debate about what constitutes a“good ABS agreement.” We turn to that question in Chapter 2after communities themselves speak to these issues intheir bio-cultural protocols.From this perspective, the IRABS at best will protectcommunities from the misappropriation of their knowledge,but has the danger of doing little to “respect, preserve andmaintain” other perhaps more fundamentally importantaspects of their knowledge, innovations and practices relevantfor the conservation and sustainable use of biodiversity, suchas access to land and resources as well as respect for customarylaws and practices. The question that we are now confrontedwith is whether it is possible for ILCs to ensure the local integrityof the IRABS by asserting their rights over their TK and19

CHAPTER 2Bio-cultural Community Protocols as aCommunity-based Response to the CBDKabir Bavikatte and Harry Jonas1. IntroductionIn the first chapter, we critique the way in which theinternational regime on access and benefit sharing (IRABS),whilst purporting to implement Article 8(j), in fact onlyfocuses on the commodification of knowledge,innovations, and practices (referred to here as traditionalknowledge, or TK). We argue that this poses a number ofchallenges for bio-cultural communities who face serious andever-escalating threats to their ways of life: desperateexchanges of their TK, which is perceived as tradable culturalgoods under this regime, for benefits (usually limited income)without any corresponding respect for the inalienable aspectsof their TK. This can further weaken the very bio-culturalfoundations upon which TK is developed. We conclude thatchapter by asking whether it is possible for indigenous peoplesand local communities (ILCs) to assert their rights over theirTK and achieve good access and benefit-sharing (ABS)agreements that uphold the spirit of Article 8(j) that seeks toaffirm a bio-cultural way of life. In other words, we questionwhether it is possible for ILCs to use the IRABS further securetheir bio-cultural heritage, strengthen their management oflocal biodiversity and support the ways of life that generateTK in the first place.In this chapter, we suggest that the development of bioculturalcommunity protocols (BCPs) are a means by whichcommunities can respond to the challenges posed to themby the incumbent IRABS. A BCP is a protocol that is developedafter a community undertakes a consultative process to outlinetheir core cultural and spiritual values and customary lawsrelating to their traditional knowledge and resources, basedon which they provide clear terms and conditions regulatingaccess to their knowledge and resources. We set out theprocess that leads to developing a protocol and, throughexamples of BCPs, illustrate how communities are using themto respond to their challenges and promote their selfdetermineddevelopment plans. We draw on those examplesto argue that BCPs are a practical way for communities toaffirm their rights to manage their TK and natural resources.2. Process and ProtocolThe development of a BCP assists communities to overcomethe challenges presented in Chapter 1 in two broad ways.First, it promotes bio-cultural and legal empowerment byproviding ILCs the opportunity to engage in a process ofreflection and learning. It allows communities time to talkabout the interconnectedness of the various elements of theirways of life, including their landscape, GR, TK, culture, spirituality,and customary laws relating to the management of naturalresources, among others. It subsequently facilitates acommunity-wide discussion about their endogenous20

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBDdevelopment plans and an assessment of common challenges.With input from community-based organizations and NGOswith legal expertise, communities are also able to learn abouta variety of rights under international and national law thatsupport their development plans and can help them toovercome their challenges. Drawing on specific laws, theymay also want to further explore how they would engagewith novel frameworks such as ABS or projects relating toreducing emissions from deforestation and forest degradationin developing countries (REDD) 1 This may lead to subsequentprocesses of defining culturally appropriate responses to suchframeworks, with a view to setting out for other stakeholdersthe terms upon which they will engage with them.The process of developing BCPs was different for eachcommunity with which Natural Justice worked, thoughgenerally they all engaged with five broad questionsrelating to ABS and affiliated international and nationalenvironmental legal frameworks, including:1 . What are the community’s/ies’ spiritual, cultural andecological norms as well as traditional knowledge thatensure conservation of biological diversity?2. How do they share knowledge among andbetween communities?3. What are their local challenges?4 . How can the IRABS and concomitant national laws be usedby ILCs to ensure the protection and promotion of their bioculturalway of life?5 . Assuming ABS is only a partial answer to the above questions,what other laws and policies are available to thecommunity/ies to realize the promise of Article 8(j)?Through exploring these questions and their corollaries, fivecommunities have developed BCPs from which we draw onbelow, namely:• Raika Pastoralists: The Raika live in Rajasthan, India, andare the keepers of important animal genetic resources andcustodians of significant ethno-veterinary knowledge.Their ways of life promote the conservation and sustainableuse of local natural resources, and yet they are increasinglybeing excluded from traditional grazing areas.• Samburu Pastoralists: The Samburu live in Samburu, Kenya,and are also pastoralists who have traditionally keptdrought resistant breeds of indigenous livestock.Non-indigenous breeds introduced by a governmentprogram have fared badly during Kenya’s reoccurringdroughts and the Samburu have been negatively affected.• Vaidyas of the Malayali Hills: The Malayali Hills are in TamilNadu, India, and form a common resource for a number ofVaidyas (traditional healers) who share a bio-spiritualunderstanding of local medicinal plants and collectivelyconserve the area’s biodiversity.• Gunis and Medicinal Plants Conservation Farmers ofMewar, Rajasthan: The Gunis (traditional healers) worktogether with farmers who grow sustainable quantitiesof medicinal plants in Rajasthan, India, to ensure theircommunities are healthy and their natural resourcesare maintained.• Bushbuckridge Traditional Healers: Bushbuckridge is inthe Kruger to Canyons UNESCO Biosphere Region inSouth Africa and the traditional healers of that region aresuffering from the over-harvesting of medicinal plantsby outside traders.Although each protocol is distinct due to the biological andcultural diversity of the communities, the protocols referencedbelow cover the same general issues, which include:• A self-definition of the group and its leadership and decisionmakingprocesses;• How they promote in situ conservation of either indigenousplants or indigenous breeds of livestock and/or wildlife,with details of those natural resources;• The links between their customary laws and bio-culturalways of life;• Their spiritual understanding of nature;• How they share their knowledge;• What constitutes free, prior and informed consent to accesstheir lands or traditional knowledge;• Their local challenges;• Their rights according to national and international law; and• A call to various stakeholders for respect of their customarylaws, their community protocol and a statement of thevarious types of assistance needed by the community.1. REDD is discussed in Chapter 4.21

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBDOverall, BCPs are a statement by ILCs of their intentions to selfdeterminetheir futures and explain to specific stakeholdershow they either wish to engage them or be engaged.BCPs present an opportunity for communities to set out theircustomary laws relating to FPIC regarding access to their TKand/or GR and how they want to use new opportunities suchas the establishment of a protected area, a REDD project, ora payments for ecosystem services scheme. 2 In doing so, ILCsprovide clarity to other stakeholders, better enablingresearchers of government agencies, for example, to workwith them towards the community’s proposals. Thus, BCPsprovide communities an opportunity to focus on theirdevelopment aspirations vis-à-vis legal frameworks such asABS and to articulate for themselves and for others theprocesses that require support to protect their bio-culturalheritage, and therefore on what basis they will engage withpotential users of their TK.For example, Samburu livestock keepers from Kenya said thefollowing about the reasons for developing a BCP:We are the Samburu, pastoralists living across a number ofdistricts in Kenya. We are keepers of indigenous and exoticbreeds of livestock and our lives are interlinked with and whollydependent on our animals. Our way of life also allows us tolive alongside wildlife, promoting the conservation of ourbreeds and other living resources in our environment. Yet wefeel that our way of life and our indigenous breeds have beenconsistently undervalued. The government-promoted breedingprograms that sought to replace or improve our breeds haveleft us particularly vulnerable to the recurring droughts whichare causing our people acute suffering.This is our community protocol. It is an articulation of theintegral role of our breeds in Samburu culture and theirimportance to the world. It seeks to establish the significanceof our way of life and the value of our indigenous breeds, andthat as the keepers of important livestock populations, wehave a right to maintain our way of life. It clarifies for otherson what terms we will permit activities to be undertaken onour land or regarding our indigenous breeds andtraditional knowledge. 3The next section below illustrates the types of issueshighlighted by the communities as being important to theirways of life and also provides an overview of the way in whichthey have set out their values, concerns, challenges, and legalrights in BCPs.3. Community Experiences with BCPs3.1 Self-determination and GovernanceNew legal and policy frameworks are providing communitieswith new opportunities to use the law to protect their waysof life, but at the same time are posing correspondingchallenges. The IRABS’ focus on TK raises questions about itsapplicability to the way communities are defined and organizedlocally. A certain type of TK can be known by a subset of acommunity (traditional healers, for example), may be widelyshared between communities or might be used across nationalborders. To respond to any issues relating to TK, the “community”of TK holders must first define themselves and consider whoshould make decisions relating to their bio-cultural heritageand overall governance.The issue of applicability to the local context had the mostimpact on the traditional healers from Bushbuckridge in theKruger to Canyons Biosphere Region. At first, the organizationwas introduced to a group of 6 people who run theVukuzenzele Medicinal Plants Nursery to discuss their rightsunder the South African Bio-prospecting and ABS Regulationsof 2008. It soon became evident that there were many morehealers in the region who knew of each other but had nevermet formally to discuss mutual concerns. As a result, a largergroup representing two different languages was invited tothe next meeting to discuss their ideas. At that and subsequentmeetings, they realized that they faced many of the samechallenges, including a lack of access to medicinal plants becauseof over-harvesting by commercial harvesters, a lack of2. Payments for ecosystem services are discussed in Chapter 6.3. Samburu Bio-cultural Protocol (working draft). For more information contact Jacob Wanyama and Evelyn Mathias, LIFE Network (Africa) at evelyn@mamud.com22

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBDunderstanding about the license process for accessing protectedareas to collect medicinal plants and difficult relations withtheir traditional leaders. Over the course of 5 months of meetings,they formed themselves into a group with a governancestructure to assist them to present their views to variousstakeholders, including outsiders interested in their TK.Linked to our comments in Chapter 1 about the importanceof local integrity, all the communities we worked with reflectedon the level at which they wanted to organize for the sake ofmaintaining their ways of life. While high-level organizationhas its benefits, such as through national traditional healers’associations, organizing cohesively around a common resource,type of knowledge or cultural grouping has other benefits.Each of the communities we worked with chose to organizeat what could be described as the most local level possible.The boundaries they drew around their definition ofcommunity were linked to the concept of landscape orcommon knowledge, as opposed to simply political or evencultural affiliation. The Bushbuckridge traditional healers arefrom the Sepedi and Tsonga communities yet saw themselvesas a group because of their specialist knowledge and relianceon the same medicinal plants. The two different groups ofIndian traditional healers also chose to organize at a local leveland around common resources.Whilst talking with the groups about their conceptions ofcommunity, discussions surrounding their spiritual originsalso emerged. The two pastoral communities in India andKenya, the Raika and Samburu, respectively, both felt that themythology relating to their origins was central to their presentidentity. The Raika state:At a spiritual level, we believe that we were created by LordShiva. The camel was shaped by his wife, Parvati, and it wasbrought to life by Lord Shiva. But the camel’s playfulness causeda nuisance so Lord Shiva created the Raika from his perspirationto take care of the camels. Our spiritual universe is linked toour livestock breeding, and our ethnicity is inextricablyintertwined with our breeds and way of life. 4The Samburu explain: Legend tells us that a man took threewives: one bore a Samburu, one a Maasai and one a Laikipia.Our name, Samburu, comes from a bag we carry in which wekeep meat, called a “Samburr.” 5Self-determination is enshrined in Article 3 of the UNDeclaration of the Rights of Indigenous Peoples andcommunities’ self-definition in a protocol is an importantaspect of their legal empowerment. It provides them a meansthrough which to approach the law as a group that considersitself to be affiliated through a commonality (or commonalities)of subjective importance to the community. This issue is closelylinked to the sharing of TK and free, prior and informed consentdiscussed at subsection 3.7.3.2 The Links Between a Way of Life andConservation of BiodiversityCentral to the formulation of the BCPs were discussionssurrounding the way in which ILCs’ ways of life are connectedto the land, how their values contribute to the conservationand sustainable use of their resources and how their lives arecontingent on a healthy ecosystem. The ILCs consideredthemselves a part of a dynamic interplay between theenvironment and their ways of life, animals (in the case of thelivestock keepers), culture, and spirituality. Each group spokegenerally about their way of life as well as specifically abouthow they either conserve the animal genetic resources theykeep or the medicinal plants they use.The Raika, for example, state the following in their BCP abouttheir bio-cultural relationships:We are indigenous nomadic pastoralists who have developeda variety of livestock breeds based on our traditional knowledgeand have customarily grazed our camels, sheep, goats, andcattle on communal lands and in forests. This means that ourlivelihoods and the survival of our particular breeds are basedon access to forests, gauchar (village communal grazing lands)and oran (sacred groves attached to temples). In turn, ouranimals help conserve the biodiversity of the local ecosystemsthey graze within and we provide assistance to the area’s localcommunities. In this way, we see our indigenous pastoralistculture as both using and benefiting from the forests in avirtuous cycle.Our livestock has become integral to the animal diversity inforest areas. Predators such as panthers and wolves havetraditionally preyed on our livestock and we consider theresulting loss of livestock as a natural part of our integral4 . Raika Biocultural Protocol, for more information contact the Raika Samaj Panchayat, c/o Lokhit Pashu Palak Sansthan.5 . Supra note 2.23

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBDrelationship with the ecosystem. Studies in the Kumbhalgarh 3.3 Conserving Medicinal Plants andSanctuary have shown not only how the panther populationAnimal Genetic Resourcesin the region has been sustained by our livestock, but also thenegative impacts caused by the exclusion of livestock from the 3.3.1 Medicinal Plants and CultureSanctuary such as conflict over increased encroachment bypanthers into villages.Just as our breeds are unique because of the areas we grazethem in, so the forests, gauchar and oran have evolved intoparticular kinds of pastoral-based ecosystems because of ourlong-term interaction with them. We are integral to the forests,gauchar and oran: we cannot survive without them and theywill suffer without us. 6The Samburu pastoralists in Kenya explain that they havea symbiotic relationship with the land, stating that as keepersof indigenous and exotic breeds of livestock, their lives areinterlinked with and wholly dependent on their animals.Because their way of life also allows them to coexist withwildlife, they promote the in situ conservation of biodiversity.In their BCP, they say:development of traditional knowledge.We live in an area of the world that is incredibly rich in plants,wildlife and other environmental resources. Many parts of theworld used to be populated by wild animals that ranged acrossthe land, but have been depopulated because of the actionsof man. In contrast, wherever possible we live alongsideimportant animals such as lions, elephants, zebras, gazelles,klipspringers and wild dogs. Near watering holes you will alsosee bustards, the world’s heaviest bird, as well as hornbills and to promote a further increase in numbers.birds of prey such as eagles.We also have customary laws that guard againstenvironmental degradation. For example, a recent decisionby the Loisukutan Forest Committee has determined that,because of the importance of the forest for fruits, honey, waterand wildlife, its use for grazing and wood must be limited. Thecommittee also decides about access to seasonal grazing areas.Our pastoral way of life promotes the conservation of ourimportant indigenous breeds of livestock alongside worldrenowned wildlife. We have a right to continue to live accordingto our values that promote the sustainable use of our livestockwhile ensuring conservation of the wider environment. 7 bageechis or are particularly endangered.The traditional healers we spoke to all explained how theyhold TK about the uses of certain plants, and as a result,they specifically set out to conserve the plants from whichthey sustainably harvested. In this case, TK leads directly toconservation. The Gunis of Rajasthan, for example, havethree specific ways in which they conserve the medicinalplants they use. The following is an excerpt from their BCP:As a group, we conserve medicinal plants through homeherbal gardens and dharam bageechas (self-managedmedicinal plants development areas) and share ourknowledge with each other and our students to ensure itscontinued development. In this way, the valuing of ourknowledge by our communities leads to conservation, andthe sustainable use of medicinal plants is leading to theHerbal gardens: We each have our own herbal gardens at ourhouses in which we grow the most important plants. Often thesegardens are up to half an acre in size. We feel that every homeshould have an herbal garden and promote the growing of themost widely used plants for common ailments by villagers neartheir homes and along the verges of fields. Presently, there arealready over 10,000 herbal gardens in Rajasthan, but we wantDharam Bageechis: Some of us have been given land by thevillage on which to grow medicinal plants in a wild setting,which we call dharam bageechis. Dharma is translated intoEnglish as meaning selflessness or selfless service, andbageechis is orchard. Thus dharam bageechis literallymeans “gardens of service.” While we look after the areas, wesee them as a community resource upon which we draw totreat community members. By closing the area to grazing,many medicinal plants grow leading to their regeneration tonaturally abundant levels. We also specifically propagatecertain species that are not initially found within the dharam6. Supra note 4.7. Supra note 2.24

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBDConservation farming: Through Gunis’ knowledge, some ofour community members have begun to grow medicinal plantsfor the local and regional market. While being distinct fromGunis, we include medicinal plants’ conservation farmers inthis group. We are able to buy low cost plants directly from thefarmers. The farmers constitute 20 to 30 families who employindigenous farming methods, including no use of pesticidesor herbicides that adversely affect microorganisms and otherlife forms beneficial to the environment. 83.3.2 Animal Genetic Resources and CultureBoth the Samburu and the Raika expressed a deep connectionto their livestock and explained how they sustained particularindigenous breeds. The Raika, for example, state the following:Through our interaction with the forests, gauchar and oran,and through selective breeding for generations we havecreated breeds that are particularly hardy, able to forage anddigest rough vegetation, withstand the dry Rajasthanienvironment, and walk long distances – all attributes that“high performance” exotic breeds do not have. Local breedsneed fewer inputs and are less susceptible to disease and arewell-suited to harsh conditions. The animal genetic diversitythey embody enables us to respond to changes in the naturalenvironment, important attributes in the context of climatechange adaptation and food security. Their genetic traits andour traditional knowledge associated with them will also beof use in breeding for disease resistance, and may provide uswith other diverse economic opportunities under theforthcoming International Regime on Access and BenefitSharing or a future International Treaty on Animal GeneticResources for Food and Agriculture. 9The Samburu echo this idea in their respective context:We keep the small East African Zebu cattle, Red Maasai sheepand East African goats. Our indigenous breeds are particularlysuited to local conditions because of adaptation throughnatural selection, as well as our contribution to their geneticdevelopment through selective breeding. Until the recentintroduction of exotic breeds, these were the only breeds wekept, representing hundreds of years of co-developmentbetween our livestock, the environment and our way of life.We particularly value their abilities to withstand drought, towalk long distances and survive on small quantities of roughvegetation, as well as their strong resistance to disease. Becausethese breeds are integral to our lives, we also have a wealth ofknowledge about them, including breeding methodsand animal health knowledge.Our indigenous breeds and their characteristics are the resultof our relationship with the land, and as a result we see themas part of our cultural heritage. We have learned that ourbreeds are also considered important by others because oftheir hardiness and disease resistance.Our culture and animal breeds are integral to who we areas a People. Without our indigenous breeds we will havelost a critical part of our collective bio-cultural heritage,and without our culture our indigenous breeds are lesslikely to be conserved. 103.4 Bio-spiritualityClosely linked to the above is the spiritual connection that allcommunities spoke about but that was most highlighted bythe traditional healers. The Bushbuckridge traditional healersliving in the Kruger to Canyons Biosphere Reserve state howtheir spirituality guards against the over-harvesting of any oftheir natural resources:Our harvesting of medicinal plants is guided by our spiritualvalues and is regulated by our customary laws that promotethe sustainability of our natural resources. For example, weask our ancestors as we harvest to ensure that the medicineswill have their full effect, and believe that only harvested leavesor bark that are taken in ways that ensure the survival of theplant or tree will heal the patient. This means that we takeonly strips of bark or selected leaves of stems of plants, andalways cover the roots of trees or plants after we have collectedwhat we require. Also, we have rules linked to the seasons inwhich we can collect various plants, with severe consequencessuch as jeopardizing rains if they are transgressed. Becausewe harvest for immediate use, we never collect large scaleamounts of any particular resource, tending to collect avariety of small samples. This inhibits over-harvesting.8. Biocultural Community Protocol of Gunis and Medicinal Plant Conservation Farmers of Rajasthan, India. For more information contact Bhawar Dhabai or Ganesh Purohit,Jagran Jan Vikas Samiti, www.jjvs.org.9. Supra note 4.10. Supra note 2.25

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBDOur bio-spirituality is rooted in a relationship with naturethat is both intimate and sacred. We experience a deep senseof kinship with the plants and animals and treat nature withlove and respect. Our knowledge, dreams and intuitions, all ofwhich are crucial for healing, are based on our ability to seeourselves integrally connected to nature, not separate from it. 11The Vaidyas from the Malayali Hills in Tamil Nadu, India, alsoexpressed their spiritual understanding of nature and explainedhow their beliefs lead them to harvest sustainably. They state:We believe that plants are sacred and the effectiveness of ourplant-based medicines is integrally linked to us respecting theplants and caring for them.We have a specific way of collecting our medicinal plants.We collect them in the early morning on Tuesdays, Fridaysand Sundays, or during the full moon. We find that thecurative properties of the plants are at their peak when theyare collected at dawn. The day before we collect the plant, wepray to the plant and we tie a thread that has been dippedin Turmeric around the plant. The next day we chant amantra up to 108 times before harvesting, using only ourthumb and little fingers to pick the leaves and fruit to ensurethat we cause as little harm to the plant as possible.One of the mantras we chant is: om mooli, maha mooli, jeevamooli, un uver, un udalilinirka, swaha which is translated fromSanskrit as: ‘O great living plant, let your life stay in you’.We only take roots and bark when absolutely necessary.Respecting the plant and reciting mantras leads toefficacious medicines. We also never touch the plant withour feet as that conveys disrespect. We also believe thata plant has the power to curse you if it is abused.It is a power endowed to plants by the first teacher (Siddha)of the Siddha system of medicine, Sage Agasthya. We do notharvest the medicinal plants to sell at the markets but wecollect them primarily for our own healing practices. 123.5 Types of Traditional KnowledgeAs noted in chapter I and as stated in Article 8(j), TK is aconglomeration of ILCs’ knowledge, innovations and practices.The communities whose BCPs are referenced above confirmedthis and made a distinction between different types ofknowledge, including ethno-veterinary knowledge, breedingpractices, ecological knowledge, and knowledge about theuse of plants to heal people. The Samburu communities spokeat most length of the first three types of knowledge:Our traditional knowledge has developed over time andcontinues to evolve as we face new challenges. We have threebroad types of traditional knowledge: ethno-veterinaryknowledge, breeding practices and an understanding of theecology of the region that allows us to find water and grazingfor our animals. Notably, these different types of knowledgeare interdependent.Ethno-veterinary knowledge: We have for centuries treatedour animals for diseases and other ailments using ourknowledge of the medicinal plants that grow on the plainsand in the forests. While we share common knowledge, wehave specializations among us. For example, men generallytreat cows, and women care for sheep. Women’s knowledgeis focused on treating Red Maasai sheep and is less adaptedto treating Dorper sheep. We also have traditional knowledgerelating to treating infants and adults for a range of ailments.Each generation receives the earlier generation’s knowledgeand further develops it to tackle new challenges and accordingto each individual’s skill as a healer.Breeding practices: Because of the conditions in which welive, we carefully breed our animals so as to ensure that theysuit our needs and preferences. We employ a number ofmethods, including choosing breeding bulls and rams byjudging the mother’s ability to withstand drought, her color,size, activity levels and the survival rate of the offspring. Wealso maintain our herds’ and flocks’ diversity by buyinganimals from our neighbors, or borrowing them. For example,when sharing rams, the agreement is based on the principleof reciprocity. If close by, we will provide it on the basis thatthe favor will be returned. If the trip is very far, then in the firstinstance we would send the animal with one other of our ownherds and the pair will be returned together with anotherfemale animal as a gift.11. Bio-cultural community Protocol of the Traditional Health Practitioners of Bushbuckridge. For more information contact the Executive Committee of the TraditionalHealth Practitioners of Bushbuckridge, c/o Natural Justice: www.naturaljustice.org.za12. Bio-cultural Community Protocol of the Traditional Healers of the Malayali Tribes. For more information contact Tamil Nadu Paramparya Siddha Vaidya Maha Sangam,c/o the Foundation for Revitalization of Local Health Traditions: www.frlht.org26

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBDCultural practices also contribute to the herd’s diversity. Forexample, a husband is required by custom to give a dowry tothe woman’s family that includes a good milk producer.Similarly, when a young woman moves to her husband’s home,she takes her animals to add to his. Over time this strengthensnot only the herd but also the bond between the two families.Environmental knowledge: Outsiders cannot live in theregion the same way we do because they lack theknowledge of how to live within this environment. We areable to guide our livestock over long distances to providegrazing, water and salting resources for them. Withoutthis understanding of Samburu and its surroundingdistricts, our lives would not be tenable.Our ethno-veterinary knowledge keeps our livestock healthy,our breeding practices promote a strong herd consisting ofselected livestock populations and our environmentalknowledge underwrites our animals’ survival in these harshclimatic conditions. We provide for our animals welfare, justas they provide for our livelihoods. Our relationship, therefore,is not one of provider and user, but of mutual-dependenceand support. 13It is interesting to note that much of the TK that theSamburu hold is critical to their way of life, not just an adjunctto it. Without the ethno-veterinary knowledge, breedingpractices and environmental knowledge of the area,the Samburu would not be able to carry on their ways of life.Their knowledge, innovations and practices, in this regard, areintegral to their lives and must be fostered to ensure thecontinuation of the Samburu’s pastoralist lives.primary health care providers to the villagers. We have ourown names for the various ailments and have particularways of understanding them. We treat a range of seasonal,common and chronic aliments including coughs and colds,diarrhea, broken bones, skin diseases, jaundice, various typesof asthma, pneumonia, wounds, snake bites, scorpion stings,scabies, stomach ache, malaria, lucoria, and gastritis. Thewomen among us also assist with childbirth and pre- andpost-natal care. Each one of us specializes in particularkinds of ailments, with overlaps of knowledge between us.When someone approaches one Guni with a particular illnessthat another Guni has more knowledge about, we referthem to that Guni.We are also asked for advice on problems in family relationships,village disputes and spiritual matters because of our wisdom.The female Gunis are particularly respected in the communities,and have been able to use their status to change social customs,leading to empowerment of women.Some of us also have ethno-veterinary knowledge fortreating animals. Animal hospitals are few and far betweenand often when the animal falls ill it cannot walk and it istoo expensive to transport it to the veterinary hospital.Thus the only realistic treatment is local. Notably, we treatsome of the livestock keepers’ important breeds of sheepand camels, and therefore can say that we help to conserveimportant animal genetic resources. 14 27The traditional healers spoke most about their knowledgerelating to healing people. The Gunis of Rajasthan had this tosay about their TK relating to healing community members,and the links to ethno-veterinary knowledge:We are based predominantly in rural Rajasthan wheremedical facilities are few. In any event, our communitieshave little available money for paying medical bills. Whenepidemics break out, our communities in the past receivedlittle to no support which has had tragic consequences,especially for the most vulnerable. We are therefore the13. Supra note 2.14. Supra note 8.

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBD3.6 The Cultural Importance of TKand Indigenous BreedsAll communities greatly emphasized the cultural importanceof their TK and where applicable, their indigenous breeds. TheBushbuckridge traditional healers, for example, explained howthey perform a number of important roles as traditional healersthat underpin their Sepedi or Tsonga cultures:As well as treating conventional illnesses, we perform a numberof other culturally significant roles in the community. Weconnect community members to their ancestors in differentways, including assisting families when their newborn babiescry for their names, carrying out coming of age ceremonies,providing counseling for a range of issues, chasing away evilspirits through cleansing ceremonies, and determining whenthe ancestors are calling someone to become a traditional healer.We also induct new traditional healers, providing initiationand training, thus passing on our knowledge and culture tofuture generations. All of the above contributes to healthycommunities, builds leadership and morale, and promotesour culture. 15Likewise, the Samburu set out a number of areas of theirculture in which their breeds are important. They state:In addition to the sustenance our livestock provides us, theyalso play a significant role in our culture. A number of examplesillustrate this point:• Each clan’s elders decide on the age set for initiating boys,and a bull is slaughtered to validate that age set;• During the coming of age ceremony, boys are circumcisedwhile wearing and sitting on Red Maasai sheep skins;• As part of wedding ceremonies, the man must find a pureRed Maasai sheep (signified by its red color, long ears andclear eyes) and present it to his future Mother-in-Law whois then referred to as “Paker”, literally meaning “the one whohas been given sheep.” Another sheep is slaughteredfor the wedding;• The bride is given a calabash full of milk and a gourdthat is filled with the fat of from the tail of the Red Maasaisheep, drinking the milk to assuage her fears about goingto the new home and moisturizing her skin with the fatto relax her;• When a child is born, a sheep is slaughtered, and whensomeone dies, sheep fat is smeared on their mouthsas a sign of respect; and• When we slaughter for warriors, we choose only onecolor which they say is straight, also when someone is sick,then they slaughter an animal that is healthy, with all theteeth and eyes. There is a special steer (castrated bull) thatis slaughtered and a part of the skin is used as a ring.The color has to be accepted by the community and itmust have all its teeth intact.Notably, whilst mixed breeds can be used in lean times, thepure indigenous breeds are more highly valued for use inour ceremonies. 16They concluded by saying: “Our culture and animal breedsare integral to who we are as a People. Without ourindigenous breeds we will lose a critical part of ourcollective bio-cultural heritage, and without our culture ourindigenous breeds are less likely to be conserved.”3.7 Traditional Knowledge, Sharing andFree, Prior and Informed ConsentIn continuation of the last point, the idea of ABS and itsconstituent parts such as FPIC is novel to many communities.Communities need time to think through what priorinformed consent to use their natural resources or TK reallyentails, especially when the idea of owning or sellingresources or knowledge can be alien.Natural Justice’s approach has been to work withcommunities to think through the customary laws that relateto the sharing of TK and use of natural resources, helpingcommunities to extend the values that underpin their TKor access to resources to other new stakeholders suchas (non-) commercial researchers.All the groups mentioned above discussed how theycame to know their knowledge and how they share itwith each other. In fact, the sharing of knowledge waspresented by all groups as one of the most important15. Supra note 8.16. Supra note 2.28

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBDfactors in the maintenance of their TK. At the same time,they also set out reasons why they have to ensure thattheir knowledge is only used by certain people andaccording to certain values. The traditional healers ofBushbuckridge present a good example of how a communityholds and shares its knowledge:Each one of us has received a calling to become a healerand has been inducted and has studied with other healers.We gain our knowledge in four main ways: we are taughtby our mentors, during our dreams we receive our ancestors’knowledge that is passed down through the generations,we innovate our knowledge, and we receive knowledge fromother traditional health practitioners.Whilst we share much common knowledge, each one of ushas specialized areas of expertise and correspondingknowledge. Thus our knowledge is at the same time ancestral,common and individually held. If we give our knowledge toothers without taking into consideration our ancestors andfellow healers, we will anger our ancestors and jeopardizethe sanctity of our common knowledge. We can share ourknowledge, but only after appropriate consultations andon the basis of reciprocity, including benefit-sharing.We lament the loss of knowledge that has already taken place,in most cases without any acknowledgement of the source ofthe knowledge and in the absence of benefit-sharing. 17As a result of previous government interventions and theunregulated taking of knowledge, the communities thatdeveloped protocols felt that any further use of TK or animalgenetic resources should be subject to FPIC and according tocustomary laws. The Raika, for example, stated this very clearly:Our community panchayat should be engaged any timeoutside interests take decisions that may affect our livelihoodsor relate to our breeds and associated traditional knowledge.For example, before any of our access rights to customarygrazing areas are altered, we must be consulted. Also, whereresearchers or commercial interests want to access our animalgenetic resources and/or associated traditional knowledge,we must be given all relevant information with which to takea decision and given time to discuss the issues within thecommunity panchayat as our breed diversity and traditionalknowledge are collectively held and their ownership is notvested in any single individual. In cases where we decide togrant access to our animal genetic resources or associatedtraditional knowledge, we have the right to negotiate a benefitsharingagreement that includes mutually agreed terms. 18The Gunis from Rajasthan went even further than this,setting out a series of principles central to the Guni dharmathat governs any use of their TK:We feel we have a duty to ensure the preservation of ourknowledge by sharing it with others. We do so with other Gunisand with students on the basis that it must not be misused.By this we mean that whoever uses our knowledge mustdo so according to our Guni dharma. We completely rejectthe use of our knowledge in ways that either degrade theenvironment or deny the poorest in society from receivingtreatment. Either action is a form of exploitation that goesagainst our Guni dharma and has serious implications onsociety and the efficacy of the knowledge.Free, prior and informed consent: We regularly share ourknowledge amongst ourselves according to our customarynorms that encourage the sharing of knowledge, but prohibitthe transfer of knowledge to those who will misuse it bygoing against our Guni dharma.If an outsider wants to access our knowledge, the Guni who isapproached will inform Jagran Jan Vikas Samiti (JJVS),the Guni organization that has since 1994 assisted Gunis inRajasthan and six other states to revitalize our traditions.We will then hold a meeting of our governing body,the appropriate Gunis, local conservation farmers, andother relevant community members. We will require fullinformation about the intended use of the knowledge.While we will assess each request on a case by case basis, anysharing of knowledge will be subject to our Guni dharma asset out in this protocol. In addition to the two core values ofconserving nature and not denying access to healthcare tothe poorest of our communities, our Guni dharma includes:• No sharing of our knowledge with anyone who would tryto make excessive profits. The benefits to the individualshould be commensurate with those to the environmentand society;17. Supra note 11.18. Supra note 4.29

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBD• The researchers and/or companies have to share somebenefits with the community where the Guni is based,including recognition of our role in developing thetraditional knowledge;• We want to be involved in parts of the research;• No patenting of the knowledge;• Any use would be on the basis of a share alike license;• The outcomes must be translated into our main languages:Marwadi and Hindi;• Any subsequent change of use of the knowledge requiresrenewed consent (FPIC);• We will not at this stage deal with foreign companies; and• We want a continuing relationship with the user in termsof periodic reports.To sum up, anyone who wants to engage with us mustacknowledge our development of the knowledge and shouldbe prepared to treat the environment with equilibrium suchthat there is no degradation and with reciprocity so thatanything we provide is compensated in a like manneraccording to our values. 19The Bushbuckridge healers from the Kruger to CanyonsBiosphere Reserve decided to differentiate users of theirknowledge along sectoral lines, providing each group witha clear guide as to how and on what terms they woulddecide to give FPIC. They state:We will base any consent to use our knowledge and accessour indigenous biological resources on our customary lawsand domestic regulations and the process of providing priorinformed consent and deciding on the conditions for transferwill depend largely on the type of user. For example:Students wanting to become healers: we want to assist anyonewanting to become a student of traditional health practices.Prospective students should make arrangements with any ofus to set up a mentorship and can expect to pay a fee.Healers from other areas who contact any of us for particularinformation will be directed to the Executive Committee whowill conduct a process of community deliberation andancestral consultation to decide whether the knowledgeshould be shared and on what basis.Academic researchers must apply to the Executive Committeefor any access to our traditional knowledge or indigenousbiological resources. We will require, according to the[South African] Bio-prospecting and Access and BenefitSharing Regulations and the BABS Amendment Regulations,to see the letter from the Department of Water andEnvironmental Affairs (DWEA) stating that they can conductthe research. The Executive Committee will conduct aninformation gathering process to ascertain the exactparameters of the intended research. With that informationthe Committee will, based on our customary laws, conducta process of community deliberation and ancestralconsultation to decide whether the knowledge shouldbe shared and on what basis. Where access is granted,it will be on the condition that further consent is requiredif the intended use of the research is changed and for a rangeof non-monetary benefits including acknowledgementthat we are the holders of the original knowledge. Any dealingwith us must be conducted in total transparency.Commercial bio-prospectors are welcome to engage us.They must first apply to our Executive Committee for anyaccess to our traditional knowledge or indigenousbiological resources. We will require, according to the BABSRegulations, any commercial bio-prospecting companyto provide us with all information relating to the intendeduse of the knowledge and/or indigenous biological resource.With that information the Committee will, according toour customary laws, conduct a process of communitydeliberation and ancestral consultation to decide whether theknowledge should be shared and on what basis.That will form the start of a process of negotiation withthe company towards a benefit-sharing agreement andmaterial transfer agreement, if required. Benefits couldinclude monetary and/or non-monetary benefits. 20The Samburu added something further to the FPIC frameworksthat the other groups developed. They saw FPIC as a dynamicprocess, going beyond a mere “yes” or “no” towards a benefitsharingagreement that reveals that they considerthemselves to be active stakeholders in any research thatis carried out on their indigenous livestock. They state:19. Supra note 8.20. Supra note 11.30

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBDWhile the knowledge we have is widespread throughout ourcommunity, we assert that as creators of this body ofknowledge, we have a right to be consulted before itis used by any outsiders.are undermining their abilities to preserve and maintain theirTK as well as their plant and animal genetic resources. The Raika,for example, face exclusion from common grazing areas whichis making their way of life increasingly untenable. They state:Elders make all the decisions in our communities. Decisionsare made at the village level, clan level and district leveldepending on the scale of the issue or the types of resourcesinvolved. For example, decisions about areas to be usedfor grazing are taken by elders of the villages that share thegrazing areas. This means that decisions relating to acommon resource such as the Red Maasai would be takenby elders from the different clans across the region.According to this principle of customary law, we must firstbe consulted before any activities that will impact us,such as research undertaken on our breeds, new breedingprograms, use of our lands, and access to and use of ourtraditional knowledge.Any newcomer to our areas must first establish a meetingwith the local elders to explain what and who they intend toengage with and to answer any questions put to them.The committee of the respective group ranch will either takea decision, or if it is about a common resource, may seekwider counsel from other elders.Despite this incredible genetic diversity and associatedtraditional knowledge that we have developed, we remainmainly landless people and are highly dependent on ourcustomary grazing rights over forest and communal lands.Traditionally we have grazed our animals in Rajasthan’s forestsand in the gauchar and oran over the monsoon (July-September). Our exclusion from the forests and shrinkage ofgauchar and oran severely threaten our entire existence andthe co-evolved ecological system of these biodiversity-richareas that have been developed through generations ofcomplex interplay between livestock, livestock keepers andthe local ecosystem.With the sale of our livestock goes our traditional knowledge.As our herds diminish, so does the transmission of breedingtechniques, medicinal practices and ecological understandingof the areas we used to graze on. The potential loss ofthe important animal genetic resources that we havedeveloped in co-evolution with the Rajasthani ecosystemis significant for a world that is suffering from climatechange and food shortages.We should be involved in any decisions about researchthat involves our breeds and/or traditional knowledge.Any consent to research will be taken at the appropriatecommunity level and will consider what tangible benefitsthe community will receive from the research. Referencewill be made to the Environmental Management andCo-ordination (Conservation of Biological Resources,Access to Genetic Resources and Benefit Sharing)Regulations (2006) as well as to the emerging principles inthe incumbent international regime on access andbenefit sharing. 21Our future: the continuing exclusion from areas for grazingraises serious doubts about the viability of our way of life.With it will disappear our livestock, our culture and thevirtuous relationship between our herds and the Rajasthanilandscapes we have sustained. We require grazing rightsand a corresponding increase in the market for our productsto continue to sustain our livelihoods and keep our uniquebreeds, including the camel. 22The Samburu see climate change as their most seriousthreat, gravely affecting available pasture. They state:3.8 ChallengesIn the context of Article 8(j), each of the communities is concernedabout a number of factors that threaten their ways of life andLike everyone in Kenya, we are suffering greatly from thereoccurring droughts that are debilitating the country.As pastoralists living in close dependence with theenvironment, we are highly sensitive to climatic variationand have a clear picture of the effects of climate change.21. Supra note 2.22. Supra note 4.31

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBDWe want to continue to graze our animals in forests, gaucharand oran in a way that sustains the natural plant and animalecology of these areas, maintains our diverse breedsand sustains our rich traditional knowledge.We commit toprotecting the biological diversity of the region, our animalgenetic resources and associated traditional knowledge, by:• Upholding our traditional roles as custodians of the forestsand as sustainers of the co-evolved forest ecosystem ofthe region;• Protecting the forest against fires by regulating thegrass growth by grazing and by fighting forest fireswhen they break out;• Sustaining the predator population in the forest throughthe customary offering of some of our livestock as prey;• Continuing to increase forest growth through the customarymanuring of the forest from the dung of our livestock;• Ensuring strong tree growth by the customary pruningof the upper branches and twigs of trees by our camels;• Grazing the fallen leaves on the forest floor therebykeeping the termite population in check;• Combating illegal logging and poaching in the forest;• Continuing our traditional rotational or seasonal grazingthat facilitates forest growth;• Eliminating invasive species in the forest; Promotingand sustaining the breed diversity of our livestock; and• Preserving and practicing our traditional breeding andethno-veterinary knowledge and innovations, andsustainable management of forest resources relevantto the protection of the co-evolved forest ecosystemof the region. 253.10 Affirming RightsBecause of the breadth of the communities’ challengesand corresponding ways in which they wanted to dealwith their concerns, Natural Justice provided informationon a variety of domestic and international laws anddeclarations that support their local needs. The crucialpoint is that because communities consistently argued that toprotect their TK, they required a broader approach than thatproposed within the ABS regime, the rights theyinvoked also deal with the broader context of their waysof life. The Raika, for example, focused primarily on accessto grazing rights as the most pressing issue threateningtheir way of life and consequently their indigenous breeds andTK, and thus their protocol sets out their rights under Indian lawto secure grazing areas. They also referencedthe Declaration of Livestock Keepers’ Rights and called ontwo international bodies and a national body to assistthem with their challenges. Specifically, they stated:We call upon the National Biodiversity Authority to:• Recognize our local breeds and associated traditionalknowledge as set out in the Raika Biodiversity Register andto include it in the People’s Biodiversity Register;• Facilitate the setting up of Biodiversity ManagementCommittees under the local bodies (Panchayats orMunicipalities) where we live and to support theseCommittees in ensuring the conservation and sustainableuse of our breed diversity and traditional knowledge;• Strengthen in situ conservation of breeds of the Raika andinclude them in the BMC being initiated by the government;• Advise the Central Government and coordinate theactivities of the State Biodiversity Boards to protect thecustomary grazing rights of the Raika so as to safeguardour traditional lifestyles that ensure the conservationand sustainable use of our breed diversity, associatedtraditional knowledge and the local ecosystem; and• Ensure that our prior informed consent (according tocustomary law) is obtained before any decisions are takenthat affect our traditional way of life or access is grantedto our breed diversity and associated traditionalknowledge for research or for commercial purposes,and further ensure that we receive a fair and equitableshare of the benefits arising from the utilization of ourbreeds and traditional knowledge according to mutuallyagreed terms.We also call on the Secretariat of the UN Convention onBiological Diversity, specifically under Article 8(j) of theConvention, to recognize our contribution to the conservationand sustainable use of biological diversity. We also call on theUN Food and Agriculture Organization to acknowledgethe importance of our animal genetic resources and torecognize livestock keepers’ rights. 2625. Supra note 4.26. Ibid.33

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBD4. Lessons Learned and their Importance for IRABS andthe Implementation of Article 8(j)4.1 CommunitiesThe bio-cultural and legal empowerment that the fivecommunities engaged with lead to a series of importantpoints about the implications of IRABS and theimplementation of Article 8(j). As a result of developing aBCP, the ways in which the communities envisaged theirbio-cultural futures became clearer. The importance ofArticle 8(j) is elicited through the analysis of the linkagesbetween the biodiversity within which ILPCs live, theirlivelihoods, their spiritual beliefs and cultural understandingsof nature, and the ways in which their customary rules andpractices promote conservation and sustainable use ofbiodiversity. At the same time, witnessing the daily challengesthey face and their general marginalization, especially in thecase of the Samburu and the Raika, highlighted the limitationsof the IRABS. Paradoxically, the communities are extraordinarilyresilient yet vulnerable to ecological change and theinterference of external forces. Whilst they could benefit fromregulatory frameworks that can guarantee them increasedbio-cultural security, they are also susceptible to being harmedby well-intentioned but badly implemented laws or ABS deals.All five communities said they found the BCP process useful fora number of reasons and felt emboldened to know that theirways of life are considered important at the international level,even if the national action required of signatories to the CBDhas not yet been seen at the local level. We draw on some ofthe key issues from the above excerpts of the communities’BCPs to highlight the importance of the development of BCPsto ILCs in the context of the incumbent IRABS.First, the communities had neither previously consideredentering into an ABS deal nor thought through the whole rangeof associated issues that should be engaged with.Some, such as the Bushbuckridge traditional healers andSamburu pastoralists, had been visited by researchers in thepast, but at most felt disgruntled by the lack of feedback theyhad received. They did not know that an international regimeis being negotiated or that each of their respective countries(Kenya, India and South Africa) has domestic bio-prospectingregulations. There is a striking disparity between theimportance that their TK and genetic resources is being givenunder the international regime and their lack of awareness. Itconfirms the need for community-lead processes to highlightthe importance with which the CBD views ILCs’ traditional waysof life and to explain the rights and remedies available toaffirm them.Second, each of the communities underscored theirdependence on the local ecosystems for their livelihoodsand explained how their TK is both an outcome of thisrelationship and something that allows them to continue theirways of life. The pastoralists’ ethno-veterinary TK, for example,is crucial to the survival of the livestock on which their ownlives depend. This issue, reflected by each community in theirrespective contexts, underscored the integral nature of TK toILCs’ lives. Their TK in this sense has an incalculable worth withno tangible monetary value because they have neverconsidered it as a tradable commodity. Working withcommunities to appreciate the worth of their TK, indigenousbreeds and plant genetic resources is not new, but we foundthat such bio-cultural empowerment is vitally important inthe context of IRABS. This point is amplified when one considersthe different types of TK communities have and the overemphasisthat IRABS is placing on commercially viableknowledge over knowledge or ecological understanding thatis more important for their ways of life.Third, because the knowledge holders had received their TKfrom ancestors and others in the community, the idea ofselling their TK or providing it to strangers from outside thecommunity was a highly novel concept. Communities foundit useful to approach new ideas such as the ownership ortransfer of animal genetic resources and TK from theperspective of customary laws and practices that underpinthe usual community-based sharing of these resources. Thecommunities also emphasized the need for FPIC before theuse of any of their TK and genetic resources as being a partof customary law, as opposed to something new that hasemerged from the international negotiations. This interestinglyhighlights the fact that each community already has customarylaws and practices relating to the transfer of genetic resourcesand TK within their own contexts in order to promote genetic34

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBDdiversity and ensure that TK is only shared with people whowill use it responsibly. Although they do not have specificlaws to suit the new IRABS framework, they are able, with timeand information, to build on the existing ethical frameworksto extrapolate and set out the values that should govern anypotential access to TK and genetic resources.Similarly, just as the IRABS poses new conceptual challengesabout the values that should inform FPIC, it also raises issuesfor communities about the most appropriate governancelevel at which to deal with them. As we have illustrated above,each community approached the issue in its own way, withthe Samburu providing the most nuanced framework. Theydirectly acknowledged that while some knowledge is localized,the issue of outsiders accessing a common resource such astheir Red Maasai sheep would have implications for all Samburu,meaning that governance of the issue must therefore beelevated to the regional level. TK also transcends communities,so processes that foster thinking about other holders ofcommon TK and instigate intra- and inter-communitydiscussions become increasingly valuable.When a community is approached with a potential ABS deal,the terms of the negotiation may be set from the beginningby other parties, potentially skewing the way the communityapproaches it. Once a commercial framework is established,it becomes more difficult for a community that has neverconsidered these issues before to work through the conceptualand practical considerations it needs to properly appraise theaccess request and offer of benefits from a more bio-culturalperspective. The values that underpin any sharing of TK andthe level at which they choose to do so highlight the criticalneed for communities to have the time and relevantinformation to appraise IRABS from their perspectives, and toconsider it within the framework of their endogenousdevelopment plans.Fourth, all communities pointed strongly to certain issuesthat were either affecting or in some cases threatening theirways of life. Sustainability has roots in their spiritualunderstanding of nature and is ritualized in their culturalpractices, yet their ways of life are becoming increasinglythreatened by climate change, competition for land andover-harvesting, among other issues. The Samburu realizedthat as the Kenyan droughts continue, they need to increasethe numbers of their indigenous breeds, as the exotic breedsare dying in droves. The Raika are now desperate for accessto forests if they are to continue their way of life, as everyyear they have to reduce their flocks of sheep and caravansof camels due to lack of grazing areas. The Bushbuckridgetraditional healers require access to new areas to harvestmedicinal plants if they are to continue to treat theircommunities’ ailments. Yet none of them listed bio-piracy asa significant concern because the threat to their TK is not,prima facie, of paramount importance to them.To these communities, therefore, the IRABS has only limitedpotential to deal with their core challenges and to promoteArticle 8(j) in their local contexts. As a mechanism, the IRABSwill be useful to empowered communities that are able touse it according to their values to assist them to manage theirTK. To most effectively implement Article 8(j), IRABS shouldbe considered by cohesive and empowered communities asone of a number of different laws that provide them withrights from which they can draw depending on their endemicstrengths, challenges and development plans. A BCP will assistthem to engage with the framework to maximize its localpotential whilst shielding them from the exigencies of themarket. Notably though, as a mechanism it will remain largelyredundant to other ILCs whose knowledge, innovations andpractices are not of commercial value or whose challenges ofsecuring the bio-cultural foundations of their ways of life, suchas the pastoralists referenced above, cannot be assuaged by ABS.As a rights framework, the IRABS makes a more significantcontribution to all ILCs. By acknowledging the importance ofILCs’ knowledge, innovations and practices to the conservationand sustainable use of biodiversity, the IRABS assigns a broadset of rights to communities under Article 8(j) to continuetheir ways of life. By developing BCPs in which communitiesset out those aspects of their lives that fall within Article 8(j),communities are claiming a broad spectrum of rights that arerequired to uphold that way of life, including rights to landtenure, manage their natural resources, have their customarylaws and practices respected, and manage their TK accordingto their values.ILCs are deserving of the bio-cultural and legal empowermentnecessary to draw on their values and current challenges tounderstand their rights under a range of laws, including theIRABS, and to set out a self-determined way forwards. Communitiesare then better able to counter the tendencies of the law, asraised in Chapter I, to separate integrally linked aspects ofcommunities’ lives such as TK from their culture and spirituality.35

PART I / CHAPTER 2BIO-CULTURAL COMMUNITY PROTOCOLS AS ACOMMUNITY-BASED RESPONSE TO THE CBD4.2 UsersBCPs assist users to engage with communities on an ethicalbasis. Business interests in the ABS negotiations haveconsistently underscored that whilst they support the principlesupon which ABS is founded, they find engaging withtraditional leadership and customary laws challenging anddraw a line between philanthropy and activities driven by thetriple bottom line. For them, uncertainty surrounds a rangeof issues involved in ABS negotiations, such as properlydetermining the holders of TK, what constitutes FPIC,the uncodified nature of customary laws, and additionalcomplicating factors such as trans-boundary resources.While the policy instruments we set out in Chapter I such asthe Bonn Guidelines provide users with guidance on how toengage with communities, as we noted, they fail to empowerILCs to determine the terms of any negotiations.By setting out details of traditional leadership, values thatunderpin FPIC and other issues such as local research priorities,potential users of communities’ TK and GR are in a betterposition to appraise whether the community they intendon approaching is suitable for their particular needs.By detailing the community’s bio-cultural realities, users areput on notice that the TK or GR they seek to access issomething that constitutes more than just a tradablecommodity and forms a part of the community’s veryexistence. Increasingly, ethical users should find this level ofclarity from ILCs to be a benefit as opposed to a bane.Moreover, meeting with empowered communities ensures amore level playing field for any subsequent negotiationsand can contribute a heightened legal certainty to anysubsequent access and benefit-sharing deals. As such,BCPs build a bridge between users and providers of GR andassociated TK.5. Re-evaluating Local Integrity and Good ABS AgreementsIn chapter I, we raise the issue of the importance of localintegrity; in this chapter, this point was brought to the forefrontby the communities’ views provided above. We can discuss inabstract the pros and cons of an ABS regulatory framework,but the only way to assess the real worth of ABS is by measuringits tangible impacts at the local level. Those most able todetermine whether ABS might assist to preserve and maintainILCs’ TK and promote the conservation and sustainable use ofbiodiversity are ILCs themselves, according to their local needs.Once it is accepted that the IRABS and national ABS frameworksare not a panacea and have some very serious limitationsrelating to the full implementation of Article 8(j), but will providebio-cultural communities with certain rights and can assist withcertain challenges, they will become more tangible from thecommunity perspective. Empowered communities can thenassess from their own contexts whether ABS offers them ameans to tackle certain challenges they face and/or a way topromote the management of certain elements of their TK. Basedon our work, we argue that the development of BCPs empowerscommunities to approach other stakeholders involved in ABSon a more level playing field, and thus enables them to use thelegal framework towards their endogenous development plansand according to their customary values. Similarly, it helps themto avoid entering into ABS deals that lead them further fromtheir bio-cultural ways of life as envisaged in Article 8(j).At the start of this chapter, we touched on the subject ofwhat constitutes a good ABS agreement. Just like the meritsof ABS, much has been said on this subject. Most answersdeal with specifics such as arguing that good ABS agreementsare those with the following characteristics: communitiesare involved in the research; communities harvest wild plants(along a bio-trade model) and perhaps engage at some levelin the processing of the plants; the deals are with smallerlocal companies as opposed to multinationals; and either nopatents are taken over innovations based on the TK or thepatent is jointly owned, among other stipulations. We agreewith many of the increasingly nuanced approaches to ABSand understand the importance of learning from pastagreements whose initial luster has faded. Though it is anothersubject entirely, considered support to communities before,during and after an ABS agreement is of utmost importance.However, put simply, we argue that a good ABS agreement isone that is negotiated by an empowered community accordingto its bio-cultural values and customary laws on FPIC relatingto the sharing of its TK or GR, and that the terms of the agreementlead to tangible benefits to the community in line with Article8(j). While BCPs are not a panacea, we feel that for manycommunities, engaging with the process of developing a BCPwill improve their ability to asses whether ABS offers tangiblebenefits and if so, to negotiate such agreements.36

CHAPTER 3Community Protocols in the Negotiationsof the International Regime on Accessand Benefit SharingKabir Bavikatte and Harry Jonas1. Introduction“Community protocols”, as they are being referred to in theWorking Group on Access and Benefit Sharing (WGABS), arebeing discussed in the negotiations of the international regimeon access and benefit sharing (IRABS), having been introducedby the Africa Group in their operational text submitted priorto the 7th meeting of the Working Group (WGABS 7).Community protocols have also been raised at severalsubsidiary meetings held in 2009 between WGABS 7 and 8,including the following:The Meeting of the Group of Technical and Legal Experts onTraditional Knowledge (TK) Associated with Genetic Resources(GR), the International Vilm Workshop on Matters Related toTK Associated with GR and the ABS Regime, and the PanAfrican meeting of indigenous peoples and local communities(ILCs) on ABS and TK. This chapter details the increasingreference being made to community protocols at theinternational level and asks what contribution they will maketo ILCs’ ability to engage with the incumbent IRABS.2. African Group Submission to the WGABSAt the 9th Conference of Parties (COP 9), held in May 2008, Partiesto the CBD resolved in Decision IX/12 that Annex 1 1 to the Decisionwould be the basis for further negotiations towards the IRABS.Decision IX/12 required Parties to submit operational textand explanations for the IRABS under each of the maincomponents of Annex 1. Subsequent negotiations, beginningwith ABS 7 in Paris in April 2009, have been based on theoperational text submitted by the Parties. Under the heading“Measures to Ensure Compliance with Customary Laws and LocalSystems of Protection”, which falls under the Compliancecomponent, the African Group of countries introduced operationaltext that explained their attempts to challenge the dominantparadigm within the WGABS that privileges traditionalknowledge (TK) with commercial application over otherknowledge, innovations and practices that promote theconservation and sustainable use of TK. Unique to the Africantext was its focus on ensuring the free, prior and informed consent(FPIC) of ILCs for accessing their TK and the sharing of benefitsarising from its use, while also safeguarding the bio-culturalrelations within which TK is embedded. The African Groupsuggested this was a strong basis for negotiations because ILCscould retain control over their TK and benefit from its entry intonon-traditional sectors while ensuring that its use is not entirelydivorced from the community processes that elicit it in the first place.1 . http://www.cbd.int/doc/decisions/cop-09/cop-09-dec-12-en.pdf37

PART I / CHAPTER 3COMMUNITY PROTOCOLS IN THE NEGOTIATIONS OFTHE INTERNATIONAL REGIME ON ACCESS AND BENEFIT SHARINGAlthough other Parties at ABS 7 bracketed the text due toconcerns about its form, they widely supported its essence.The International Indigenous Forum on Biodiversity, which isthe formal representative of ILCs in negotiations, supportedthe mainstay of the African text as it responded to theircriticisms of the current negotiations towards the IRABS. Thechief concern of the African Group as highlighted in theirexplanation to the operational text was over the restrictiveinterpretation of Article 8(j) in the negotiations. The AfricanGroup argued that:Article 8(j)… is far wider in its reach and should be read in thebroader context of the CBD, particularly its aims of conservingand sustainably using biodiversity. Article 8(j) is clear that theconservation and sustainable use of biological diversity in thecontext of indigenous and local communities is dependent onaspects of their TK which are rooted in their ‘ecologicalvalues’… Such ecologically integral TK is based on a valueframework that regulates the relationship between thecultures of ILCs and their lands. Thus TK relevant for theconservation and sustainable use of biodiversity rests onecological values, which in turn rests on secure rights to landand culture. The truth of the matter is that ILCs have conservedand sustainably used biological diversity for thousands ofyears not because they have been able to trade in their TK butbecause they have been able to live on their traditionallands in accordance with their ecological values. 2relations within which it operates. TK is also viewed asan object separate from the cultural and spiritualrelationships with the land within which it is embedded.TK in reality is the manifestation of a particular kind ofrelationship with nature. TK is not just information but a setof relations that is embodied in traditional lifestyles ofILCs, which ensure conservation and sustainable use ofbiodiversity. Currently there are no internationally agreeddefinitions of TK and all efforts towards defining it tendto treat it as a product rather than as a process.Efforts to protect TK should be oriented less towards protectionof knowledge as information and more towards sustainingthe relationships based on ecological values that producethe knowledge. It is the ecological values that have sustainedindigenous peoples within natural habitats, and the erosionof these values through the dispossession of indigenous landsand consequent annihilation of their cultures has seriouslythreatened biological diversity. 3The African Group laid the foundations of “bio-culturaljurisprudence” in their submissions by stating that ABSagreements under Article 8(j) are not merely sale contractsfor TK, but must affirm the bio-cultural relations that ILCshave with their land. The African Group elaborated on theidea by stating that:The African Group referred to the bio-spiritual virtues thatunderlie TK as the ecological values of ILCs and asserted thatthese virtues are dependent on secure rights to land and culture.The African Group reinforced the argument by adding that:ABS in the context of ILCs focuses inordinately on an agendaof TK protection that perceives TK outside of the relationshipswhich generate it, divorcing it from the ecological valuesthat lead to its formation. The relation that the ILCs havewith nature is one of a perpetual dialogue between land andculture, each constituting and reconstituting the other.Ecological values are therefore rooted in an experience ofrelatedness between community and nature. Current IPRsystems perceive TK in a manner that is quite similar toconventional property systems where land, for example, isviewed as a commodity separate from the network ofThe process and outcome of the ABS negotiations mustuphold the spirit of Article 8(j) and to do so, the emphasisshould not just be on the sale of TK but focus equally on theconservation and sustainable use of biological diversity andprotection and promotion of traditional lifestyles, includingrights to land and culture. This implies ensuring that theecological values of ILCs in question are central to all stagesof the ABS negotiation, i.e. at the stages of FPIC, MAT andbenefit-sharing. While the overarching framework of ecologicalvalues within which ABS agreements must be negotiated doesnot preclude monetary and non-monetary benefits to ILCs inexchange for the use of their TK, these benefits should not bethe sole aim of ABS agreements. The process and the outcomeof an ABS agreement between ILCs and the relevantstakeholders must affirm aspects of their traditional lifestylesthat conserve and sustainably use biological diversity. 4 382 . UNEP/CBD/WG-ABS/7/5 at p.52.3. Ibid.4. Supra n.17.

PART I / CHAPTER 3COMMUNITY PROTOCOLS IN THE NEGOTIATIONS OFTHE INTERNATIONAL REGIME ON ACCESS AND BENEFIT SHARINGIn pursuance of the above arguments, the African Groupproposed community protocols as a community-based meansto ensure that ABS agreements relating to TK affirm the bioculturalways of life of ILCs that Article 8(j) seeks to protect.They explained:A community protocol is an outlining of ecological values onwhich FPIC, MAT and benefit-sharing would be based.It enunciates a community’s core values and while it remainsa flexible instrument, it provides community members andoutside interests a level of certainty about the principles uponwhich any ABS agreement will be negotiated.Community protocols are perhaps the best chance for ILCsto ensure that their ways of life and values are respectedand promoted. Merely relying on the benefits of ABSagreements without affirming their ecological values wouldreduce ILCs to sellers of TK who warm themselves on theembers of a lifestyle that is fast dying out. 5to community protocols under a Main Component D, includingin operational text under the following bricks and bullets:• Measures to ensure the fair and equitable sharing of benefitsarising out of the utilization of TK with TK holders, inaccordance with Article 8(j) of the CBD (brick D/1/1);• Measures to address the use of TK in the context of benefitsharingarrangements (brick D/1/3);• Community-level distribution of benefits arising out ofTK (bullet D/2/4);• Access with approval of TK holders (brick D/1/7);• No engineered or coerced access to TK (brick D/2/8);• FPIC of and MAT with holders of TK, including indigenousand local communities, when TK is accessed (bullet D/2/1);• Measures to ensure that access to TK takes place inaccordance with community-level procedures (brick D/1/2); and• Identification of best practices to ensure respect for TK inABS-related research (brick D/1/4)As we turn to WGABS 8, to be held in Montreal in November2009, the WG will be specifically discussing the provision on TK.The African Group has revised its submission to better orderits text under the bricks and bullets. It has included referenceABS 8 will define the shape of the IRABS as it relates tocommunities’ TK, and the inclusion of community protocolsin the text will determine the level of protection communitiescan exercise over their TK.3. Group of Technical and Legal Experts on TKThere is a growing understanding internationally that the bioculturalrelationships between TK, communities andecosystems have to be taken seriously to ensure conservationand sustainable use of biological diversity. The recent June2009 report of the Meeting of the Group of Technical andLegal Experts on TK associated with GR in the context ofthe IRABS states:…8. In situations where traditional knowledge is associatedto genetic resources… it was highlighted by many experts thattraditional knowledge and genetic resources are inseparable.9. Experts further clarified that there are two types of traditionalknowledge, one that is highly specific and [one] that… is of amore general nature, related to the encompassing ecosystemand is the result of co-evolution.10. In discussing the relationship between traditionalknowledge and genetic resources, the history of co-evolution(of biological and cultural systems) reinforces the inseparabilityof traditional knowledge and genetic resources.Furthermore, co-evolution suggests that there is traditionalknowledge [that]… is highly specific and traditionalknowledge [that]… is of a more general nature as the resultof co-evolved, bio-cultural systems. Research shows thathuman ecosystem management and traditional knowledgepromotes biological diversity and thus genetic diversity.…18. It was also noted that Article 8(j) is a stand-aloneprovision that was not subservient to Article 15 but in fact theyare mutually supportive and the development of theInternational Regime should support Article 8(j) in respecting,protecting and promoting traditional knowledge.It was noted that Article 15 speaks to the sovereignty of Statesover their genetic resources whereas Article 8(j) recognizesholders of traditional knowledge.5 . Supra n.17.39

PART I / CHAPTER 3COMMUNITY PROTOCOLS IN THE NEGOTIATIONS OFTHE INTERNATIONAL REGIME ON ACCESS AND BENEFIT SHARINGIt was further emphasized that Article 8(j) as a standaloneprovision protects all traditional knowledge of indigenousand local communities within the mandate of theConvention on Biological Diversity, including traditionalknowledge associated with genetic resources.Furthermore, associated traditional knowledge does notnecessarily have to be associated with genetic resources,as it can also include the use of traditional knowledgeassociated with biological resources. 6The Expert Report alsohighlighted the importance of BCPs in regulating access toTK of ILCs when there is no clear customary law and localsystems of protection. 7 The Expert Report, like the AfricanOperational Text, stated that national laws of countries partyto the CBD should uphold BCPs as legitimate statements ofthe rights and wishes of ILCs. The Expert Report added thatin situations in which TK is shared between ILCs or spreadacross national boundaries or ILCs with different values,customary norms, laws, and understandings, countries shouldencourage and support the development of BCPs in order toprovide potential users of such associated TK with clear andtransparent rules for acquiring FPIC. 84. International Vilm Workshop on Matters Related toTK Associated with GR and the ABS RegimeBCPs were affirmed at the July 2009 International VilmWorkshop on Matters Related to TK Associated with GR andthe ABS Regime 9 , which was organised by the German FederalMinistry of Environment, Nature Conservation and NuclearSafety. The Workshop had invited ILC representatives to jointlyprepare for and provide input to Parties in the forthcomingnegotiations at WGABS 8 in Montreal in November 2009.The ILC representatives under the head of “Measures toEnsure that Access to TK Takes Place in Accordance withCommunity-level Procedures” proposed operative text forthe IRABS that requires States to facilitate the developmentof BCPs with the full and effective participation of bio-culturalcommunities to prevent the misappropriation of their TK.They stated:The legitimate indigenous or local authorities shall providepotential users of traditional knowledge with clear informationon how to obtain FPIC (free, prior and informed consent) andnegotiate MAT to traditional knowledge based on communitylevelprocedures, customary laws and/or community protocols.Parties shall, with the full and effective participation of theindigenous peoples and local communities concerned,support and facilitate local, national and/or regionalcommunity protocols regulating access to genetic resourcesand associated traditional knowledge, taking intoconsideration the relevant customary laws and ecologicalvalues of indigenous peoples and local communities in orderto prevent the misappropriation of their associated TK. If anagreement on access to genetic resources and/or traditionalknowledge has been reached between an indigenous peopleor a local community and a user, when applicable through anIndigenous Peoples’ Competent Authority and/or the use ofcommunity protocols, the existence of the agreement shall beregistered with the competent national authority. 10Participants at the workshop debated the ILCs’ submissionand despite questions relating to their exact operation andfuture standing under the IRABS, the concept garneredbroad support.6. UNEP/CBD/WG-ABS/8/2.7. Ibid, para 35.8. Ibid, para 60.9. Workshop report forthcoming.10. For a copy of the submission contact Natural Justice (www.naturaljustice.org.za)40

PART I / CHAPTER 3COMMUNITY PROTOCOLS IN THE NEGOTIATIONS OFTHE INTERNATIONAL REGIME ON ACCESS AND BENEFIT SHARING5. The Nairobi Pan African ILC PreparatoryMeeting on ABS and TKThe Pan African ILC meeting on ABS and TK was held in Nairobiin September 2009, with over 50 ILC representatives fromacross Africa. The meeting was organized by the IndigenousInformation Network and the ABS Capacity DevelopmentInitiative for Africa. The ILC representatives concluded their4-day meeting with two sets of recommendations: first,to the negotiators of the African Group on their negotiationon the International Regime on ABS; and second, to AfricanStates on the practicality of community (bio-cultural) protocolsas a tool to ensure FPIC.Specifically, in relation to the IRABS, the ILCrepresentatives requested the following:• The African negotiators should support the inclusionof BCPs as an essential component of the IRABS;• The IRABS should require States to ensure that access tocommunity GR and TK is done in accordance with their BCPs;• The IRABS should require States to ensure that thedevelopment, management and control of BCPs iscommunity-led; and• The IRABS should establish a financial mechanism thatincludes in its objectives support for BCP awareness-raisingand capacity-building.The outcomes of the Vilm workshop and the recommendationsof the Nairobi meeting and the Group of Technical and Legalexperts on TK will inform the negotiations at the WGABS8.The respective participants’ strong support for communityprotocols underscores the growing recognition thatcommunities require means by which to engagewith the IRABS.6. ConclusionWhilst the theory and practice of ABS-related BCPs are stillbeing developed, they are increasingly being recognized atthe international level. The African Group’s submission,supported by ILCs, NGOs and a number of Parties, is a significantattempt to ensure that any future ABS agreements arecontingent on community protocols. Specific reference tocommunity protocols would provide communities with theright to insist on being able to engage in types of bio-culturaland legal empowerment processes described in Chapter 2,and to approach any request for access to their TK or GR onlyafter having informed and prepared themselves.The further support given to community protocols by theGroup of Technical and Legal Experts on TK, the Vilm workshopand African ILC meeting add further weight to the instrument’sinclusion in the incumbent IRABS. For communities, thenegotiations are at a significant turning point. ILCs requireParties’ support of community-based mechanisms such as bioculturalcommunity protocols to ensure that they are protectedagainst any misappropriation of their TK and will benefitfrom their knowledge, innovations and practices thatpromote the conservation and sustainable useof biodiversity.41

CHAPTER 4Bio-cultural Community Protocols and REDDPeter Wood 11. IntroductionAn increasing amount of attention has been paid in recentyears to the relationship between forests and climate change,with the most alarming revelation being that deforestationand forest degradation constitute nearly 20% of allanthropogenic sources of greenhouse gases. This has givenrenewed impetus at the international level to save the world’sforests, particularly those in the tropics and sub-tropics, andthe carbon stored within them. One proposal currently beingconsidered as part of a post- Kyoto climate agreement is aprogramme on reducing emissions from deforestation andforest degradation in developing countries that has come tobe known as “REDD”. 2 In essence, the intention of REDDis to channel payments from developed countries todeveloping countries in exchange for reductions in forestrelatedemissions.However, forests ecosystems are diverse and dynamic, as arethe indigenous peoples and local communities (ILCs) thatdepend on them for their livelihoods and traditional ways oflife. Although much remains to be determined regarding themechanics of REDD, a variety of stakeholders are raisingsignificant concerns about its potential to negatively affectnatural forest ecosystems and forest-dependent ILCs. Forestdependentcommunities are some of the poorest on theplanet and have a long history of being marginalized withingovernmental decision-making, and it is uncertain how theirinterests will be protected throughout the implementationof such a potentially powerful international mechanismat the local level. While a great deal of attention has been paidto the international aspects of REDD, there has been muchless focus on how it will affect forest-dependent communities.Whilst ABS and REDD are distinct international mechanisms,there are numerous parallels in the way ILCs can engagewith them. With the right safeguards and local-levelempowerment, both mechanisms could bring much-neededbenefits to developing countries. Yet they also pose significantchallenges to ILCs and have the potential to lead to the furtherdeterioration of the very bio-cultural foundations that underpintheir ways of life. A thorough consideration of communities’forest rights in the context of REDD is required, with emphasison community-based approaches that empower ILCs toensure that they are not further marginalized by national-levelREDD activities.In this chapter we briefly examine the promise that REDDholds for saving the world’s forests and the risks that it couldpresent if designed and administered inappropriately.We also give an overview of how bio-cultural communityprotocols (BCPs) can play a role in reducing these risks andmaintaining the local integrity of this international instrument.1. Peter Wood, PhD, Forest Policy Adviser, Global Witness, and Associate, Natural Justice: Lawyers for Communities and the Environment.2. This is also referred to as “REDD-plus” by many in recognition of the expansion of the mechanism’s mandate to include the role of conservation, sustainable managementof forests and enhancement of forest carbon stocks.42

PART II / CHAPTER 4BIO-CULTURAL COMMUNITY PROTOCOLS AND REDD2. Background to REDD2.1 UNFCCCAlthough the connections between forests, carbon andclimate change are well-established, the idea of payingcountries to reduce deforestation has only recently been givenserious consideration. The specific term “reducing emissionsfrom deforestation and forest degradation” (REDD) was firstproposed by the Coalition of Rainforest Nations in Montrealat the 11th Conference of the Parties to the UN FrameworkConvention on Climate Change (UNFCCC COP 11) in December2005, and has since gained significant momentum.It has effectively eclipsed other forest-related processes andinstitutions in importance, largely because of theunprecedented levels of funding that are expected to flowfrom climate-related funds. However, from the outset,indigenous peoples and various NGOs have been concernedabout the potential for REDD to create perverse incentives tofurther marginalize forest-dependent communities.These communities have proven their abilities to sustainablyuse forests over countless generations, but have often struggledto maintain access to the forests and their traditional ways oflife in the face of national development schemes, which areoften funded by international banks and organizations.At UNFCCC COP 13 in December 2007, REDD first formallyappeared in the negotiated text of the Bali Action Plan. 3A major breakthrough in climate negotiations, the Bali ActionPlan provides the basis for long-term cooperative action (LCA)to implement the UNFCCC up to and beyond 2012, when theKyoto Protocol is set to expire. In contrast to the Kyoto Protocol,this new agreement would apply to all parties to the UNFCCC,not just the developed countries and those with economiesin transition. 4 Most importantly for the forest sector, the BaliAction Plan calls for consideration of “policy approaches andpositive incentives on issues relating to reducing emissionsfrom deforestation and forest degradation in developingcountries… and the role of conservation, sustainablemanagement of forests and enhancement of forest carbonstocks in developing countries.” 5The following year in Poznan, Poland (COP 14), indigenousgroups had become much more organized and vocal aboutthe lack of inclusion of reference to indigenous peoples’ rightswithin REDD. The original omission was due to opposition byCanada, Australia, the US, and New Zealand, the same countriesthat did not sign on to the UN Declaration on the Rights ofIndigenous Peoples (UNDRIP). 6At present, UNFCCC partiesare negotiating the terms of REDD as part of the LCA in aseries of meetings leading up to COP 15 in Copenhagen inDecember 2009. After three rounds of discussions held inBonn in April, June and August 2009, a negotiating textcontaining a range of options was produced and will befurther discussed at subsequent meetings in Bangkok andBarcelona in September and November 2009, respectively.While the current work plan foresees a decision on REDD tobe agreed upon at COP 15, there remain a number ofcontentious issues to be resolved, including the scope,objectives and financing, which raises questions about thelikelihood of the former occurring.2.2 The World Bank and UN-REDDThe Forest Carbon Partnership Facility (FCPF) was launchedat UNFCCC COP 13 in Bali in December 2007, in order tobuild capacity for REDD and establish pilot programmes ofperformance-based incentive payments in select countries,with the intent to expand it into a much larger system in thefuture. The FCPF is composed of the Readiness Mechanismand the Carbon Finance Mechanism. The ReadinessMechanism will provide several forms of technical assistanceand capacity-building in order to prepare countries to engagewith REDD, including the following: determining forest carbonstocks and sources of forest emissions; developing strategiesfor preventing deforestation and forest degradation; anddesigning national monitoring, reporting and verificationsystems. The Carbon Finance Mechanism will select countriesthat have demonstrated “measurable and verifiable” progresstowards REDD and award financing from the Carbon Fundbased on a system of “compensated reductions.”3. Here it was referred to reducing emissions from deforestation “in developing countries” instead of “degradation”.4. These Parties are also known as Annex I Parties.5. Bali Action Plan, paragraph 1b. Report of the Conference of the Parties on its thirteenth session, held in Bali from 3 to 15 December 2007.Addendum Part Two: Action taken by the Conference of the Parties at its thirteenth session. (FCCC/CP/2007/6/Add.1.) 14 March 2008.6. See: http://www.tebtebba.org/index.php?option=com_content&view=article&id=41:hr-day-2008-a-sad-day-for-indigenous-peoples&catid=51:ip-declarations43

01020301. Traditional healers from the Bushbuckridge area ofthe Kruger to Canyons Biosphere Region.02. A Guni from Rajasthan, India.03. Samburu woman and child.04. The flower of a plant used for medicinal purposes bytraditional healers of the Malayali Tribes, Tamil Nadu, India.0405. Samburu women working with NGOs to develop theSamburu Bio-cultural Protocol.06. A Guni from Rajasthan with her husband standing inthe Dharam Bageechis (medicinal plants conservation area)she tends.07. A Raika boy from Rajasthan and buffalo.0508. Samburu women from pastoralist communities, Kenya.09. Traditional leader of a Samburu community duringthe development of the Samburu Bio-culturalCommunity Protocol.10. Sunset over Samburu District, Kenya.11. A community meeting as part of the development ofthe Bio-cultural Protocol of the Traditional Healersof the Malayali Tribes.12. Dallibai Raika, a Raika woman from Rajasthan andholder of ethno-veterinary knowledge.13. Detail of Samburu women’s jewelry.14. A Raika community meeting.15. A Raika man from Rajasthan with camels.16. A Raika woman and camel.060807

091011 1213141516

PART II / CHAPTER 4BIO-CULTURAL COMMUNITY PROTOCOLS AND REDDMany ILCs have expressed concern regarding the FCPF, citingprevious negative experiences with World Bank-initiated forestdevelopment programs. 7 The first major protest occurredoutside the side event at COP 13 at which the Facility waslaunched, and it continues to attract criticism from ILCs. Furtherprotests have emerged in response to various pilot projectsthat have been initiated, each with the underlying message,“No Rights, No REDD”. 8In September 2008, the FAO, UNEP and UNDP launched “UN-REDD,” a programme designed to “support countries to developcapacity to reduce emissions from deforestation and forestdegradation and to implement a future REDD mechanism ina post-2012 climate regime.” 9 UN-REDD also coordinates thenumerous international agencies that are relevant to theseobjectives. In June 2009, UN-REDD released the programme’s“Operational Guidance on the Engagement of IndigenousPeoples and Other Forest Dependent Communities,” which ismeant to inform the design, implementation, monitoring,and evaluation of UN-REDD activities at the global and nationallevels. This document advocates a human rights-basedapproach to consultation and upholds support for importantinternational legal frameworks and norms, including UNDRIP,ILO Convention 169, CBD Article 8j, the Millennium Declaration,and the UN Charter itself.UN-REDD’s objectives are very similar to those of the FCPF,and the two programmes are now working to harmonizedocument templates and operational guidance in order tofacilitate countries’ participation in both programs. 10 However,several substantive differences exist. One of the key distinctionsis that whereas UN-REDD upholds the principle of free, priorand informed consent as stated in the UNDRIP, the FCPF onlyrequires free, prior and informed consultation, which is a lesserprocedural requirement for proponents of REDD-relatedpolicies and projects.Early reports emerging from REDD countries indicate that theparticipation of civil society and ILC organizations has beenconstrained by national governments’ lack of willingness toinclude them in discussions and national REDD programmes.3. REDD: Potential and Pitfalls3.1 Ensured Funding butQuestionable IntegrityForest-dependent communities are among the most politicallyand economically marginalized in their respective countries,which makes them extremely vulnerable to industrial naturalresource extraction and other pressures that degrade forests. 11There is a desperate need for development funding in thesecommunities and high hopes have been pegged on REDD todeliver such benefits. A significant reason for the focus onREDD is the impressive sums of money it may generate forforest-related activities. According to UN-REDD, it mayprovide up to US$30 billion per annum, 12 an unprecedentedlevel of funding, considering the total spent annually oninternational forest assistance has been about US$750million in recent years. 13The anticipated magnitude of this funding has the potentialto engender as many obstacles as opportunities. It willundoubtedly attract a range of interested parties, includingfree-market entrepreneurs who want to profit from themechanism without due consideration for the environmentalor social benefits it is intended to generate. 147. Statement on the Announcement of the World Bank Forest Carbon Partnership Facility made by Victoria Tauli-Corpuz, Chair, UN Permanent Forum on Indigenous Issues,Bali, Indonesia, 11 December 2007: http://www.tebtebba.org/index.php?option=com_docman&task=doc_download&gid=264&Itemid=27.8. See for example: REDD: Reaping Profits from Evictions, Land Grabs, Deforestation and Destruction of Biodiversity. Indigenous Environmental Network, 2009.Available at: http://www.ienearth.org/REDD/index.html. Accessed September 28, 2009.9. See UN-REDD website: http://www.un-redd.org/UNREDDProgramme/tabid/583/language/en-US/Default.aspx10. Activities include harmonizing the FCPF Readiness Plan and UN- REDD Joint National Program Document; developing a joint Roster of Experts; combined missions in REDD countries.11. PROFOR. 2008. Poverty and Forests Linkages: A Synthesis and Six Case Studies. World Bank Program on Forests, Washington, D.C.12. See UN-REDD website: http://www.un-redd.org/AboutREDD/tabid/582/language/en-US/Default.aspx. Accessed 5 September 2009.13. Rice, R., Sugal, C., Ratay, S., da Fonseca, G. 2001. Sustainable Forest Management: A Review of Conventional Wisdom.Center for Applied Biodiversity Science, Conservation International.14. Creagh, S. 2009. Forest-CO2 Scheme Will Draw Organised Crime: Interpol. Thompson Reuters, 1 June 2009.Available at: http://planetark.org/wen/53152. Accessed 2 June 2009.46

PART II / CHAPTER 4BIO-CULTURAL COMMUNITY PROTOCOLS AND REDDThese so-called “carbon cowboys” have been linked to “carbonfraud” or situations of “conflict carbon” in which carbon creditsare generated by projects that are objected to by thelocal communities. 15Many forest-dependent communities are faced with the samedouble-edged sword as ILCs with commercially-lucrative TKin the ABS framework. A community’s participation in a REDDproject may deliver much-needed income and developmentopportunities, but it may also result in their exclusion fromthe forest and the severance of linkages instrumental tothe maintenance of both the forest and the community’sbio-cultural ways of life.There are still major decisions to be made regarding thefinancing of REDD, including whether it will be financed bymarket-linked revenues such as the selling of carbon offsetcredits, by a fund based on contributions from developedcountries or by some combination of the two. The integrityof both systems is in question. Similar to the challenges ofusing TK within the ABS framework, there are seriousconcerns about allowing the market to decide how forestcarbon will be valued and how ILCs’ interests and rights willthen be protected. As for a fund-based mechanism, it isunclear if and how REDD funds received by states will bedistributed to forest-dependent communities that couldbenefit most. 163.2 Governance and Land TenureMany of the countries that suffer from the highest ratesof deforestation and forest degradation are also those withthe poorest governance and highest levels of corruption.There are concerns that this will pose a major barrier to REDDfunds reaching the communities that need it the most,allowing for further entrenchment of the political and socialelites that have benefited the most from deforestation to date.Forest communities often lack formal rights and title to theirtraditional territories and the forests that they depend on.This has led to concerns that they could be effectivelyexcluded from the forests that are earmarked for reducingdeforestation and forest degradation. As observed by Cotulaand Mayers (2009), much has yet to be determined regardinghow REDD benefits will be allocated from the national to locallevel, but it is clear that resource tenure is critical to REDD’sability to benefit ILCs. 173.3 Disembodiment of CarbonAnother underlying issue with REDD is that it encouragesa carbon-centric view of forests, which concerns ILCs thatdepend on forests for their livelihoods and have long playeda role in their conservation. There is a risk that by viewingforest carbon as a tradable commodity, REDD coulddisembody it from ILCs’ bio-spiritual values and bio-culturalways of life that have actively maintained the forests.As with ILCs that have developed TK over many generations,communities that have succeeded in maintaining forestcover have been able to do so not because of theirproprietary rights, but because they maintain a way of lifethat is integrally linked to that of the forest. Thus, because thewell-being of the forests (and the carbon stored within)is contingent on the well-being of forest peoples, REDDmust enable those ILCs to continue to live according to theirbio-cultural values.4. The Potential Role BCPs in REDDThe potential pitfalls highlighted above illustrate the dangersthat a regime intending to save forests may pose to ILCs.The large amount of available funds will inevitably serve asan incentive to establish REDD projects, which may lead tothe further marginalization of ILCs by other stakeholderstrying to minimize threats to the agreements being enteredinto. Like the future IRABS, REDD requires careful localcalibration to ensure that it achieves both environmentaland social justice. The development of bio-cultural protocolsby forest-dependent ILCs is one way in which communitiesmay be able to respond to and ensure the local integrityof REDD. This section explores the ways in which thedevelopment of a REDD community protocol could assistILCs to prepare for REDD deals and to assert their rights tocontinue their ways of life.15. Mongabay.com. 2008. Conflict in PNG between government and landowners over REDD carbon trading. November 17, 2008.Available at: http://news.mongabay.com/2008/1117-png.html16. At the time of writing, the most current version of the negotiating text was FCCC/AWGLCA/2009/INF.2. UNFCCC 2009. Ad hoc Working Group on Long-term CooperativeAction Under the Convention: Annex III C: Enhanced action on mitigation. Available at: http://unfccc.int/resource/docs/2009/awglca7/eng/inf02.pdf Accessed 27 September 2009.17. Cotula, L. and Mayers, J. 2009. Tenure in REDD – Start-point or afterthought? Natural Resource Issues No. 15. International Institute for Environment and Development. London, UK.47

PART II / CHAPTER 4BIO-CULTURAL COMMUNITY PROTOCOLS AND REDD4.1 Bio-cultural and Legal EmpowermentInternational environmental laws and frameworks areinaccessible to many forest-dependent communities.Thus, ILCs require time and information to consider theiroptions within their local contexts before they can beexpected to make informed decisions within novel legaland policy frameworks. REDD must support a process thatenables ILCs to reflect upon the inter-linkages and mutuallyreinforcing relationships between the forests and theirculture, spirituality and customary laws, and to identify thebio-cultural foundations of their ways of life in a formataccessible to other REDD stakeholders. ILCs also requireinformation about REDD and their forest-related rights inorder to better understand the options they have ascommunities living in areas that may be affected byREDD-related policy measures and projects. This will assistthem in clarifying several things for other REDD stakeholders,including the following: the community’s membership andtraditional authority and territory; their customary laws relatingto sustainable forest use and management; their rights underinternational and national law; circumstances under whichthey would be required to provide FPIC; and values that wouldinform any decisions taken as part of their FPIC. These issuesare discussed in more detail below.4.2 Mapping Traditional TerritoriesAn important element of a REDD community protocolwould likely be a mapping exercise through which thecommunity members would identify their traditionalterritories and the forest resources they depend on usingmodern technologies such as geographic informationsystems (GIS) and global positioning systems (GPS). The useof mapping to help communities articulate their bio-culturallandscapes can be an empowering process. 18 Thedocumentation of traditional land uses can help formalize thisinformation in a format accessible to Western scienceand enable ILCs to disseminate it to other REDD stakeholders.Mapping exercises introduce communities to the use ofmodern technologies that could subsequently enable theirparticipation in the monitoring, reporting and verificationactivities that underpin REDD.While this will not necessarily solve the problems related toresource tenure identified above, it may serve as a basis fora deeper level of ILC participation, inter-stakeholdercommunication and engagement.4.3 Understanding What Conserves ForestsThe relationship between ILCs and the forests they live in isdynamic, and in many cases, their local TK offers greatinsight into how to ensure the forest’s conservation.By articulating aspects of their culture such as bio-spiritualityand customary laws and practices that have helped conservethe forests, ILCs are able to directly refer to and call uponthe international and national laws intended to supporttheir traditional ways of life. A REDD community protocolcan be used to express this relationship and examine theforests within a greater ecological and bio-cultural context,thus preventing the disembodiment of carbon.4.4 Free, Prior and Informed ConsentOnly legally empowered ILCs can make informed decisionsabout how to respond to important decisions relating to thegranting of rights over the forests in which they live.The empowerment process should include informationabout international laws pertaining to forests, indigenouspeoples and other frameworks that support ILCs such as theConvention on Biological Diversity. Rather than merelyfocusing on REDD, communities should gain the capacityto comprehend how various aspects of their lives areregulated by a number of laws and to draw on thosemost relevant to supporting their endogenous plansfor development.Responding directly to REDD, communities can set out forother stakeholders their views on the mechanism and asserttheir rights to culturally appropriate consultations towardstheir free, prior and informed consent (FPIC) to any REDDrelatedpolicy measures or projects. They can also go beyondmerely stating that they do or do not want their traditionalterritory to be part of a REDD project by defining specificproject elements to be included. ILCs can also identify thevalues by which they will assess any projects in order to furtherclarify their rights and priorities to other stakeholders.18. See, for example, the Squamish Nation Land Use Plan in British Columbia, Canada, in which indigenous community members used a map to articulate their vision fortheir traditional territories. Available at: http://www.squamish.net/aboutus/xaytemixw.htm. Accessed 10 September 2009.48

PART II / CHAPTER 4BIO-CULTURAL COMMUNITY PROTOCOLS AND REDDREDD investors are understandably looking fortransparency and security in any future REDD projects, and ithas been noted that achieving FPIC from ILCs improves localsupport for agreements and increases their overall stabilityand longevity. 19 By approaching REDD as more equal partners,ILCs are better able to engage with investors on their ownterms and to negotiate according to their bio-cultural values.Subsequent agreement on the terms of REDD-related policymeasures or projects and the provision of FPIC is also beneficialnot only to ILCs but also to REDD investors and otherstakeholders.4.5 Expressing Development Needs,Avoiding ExclusionBCPs provide forest-dependent communities with anopportunity to define their development aspirations.REDD is premised on the idea that funds received will bedirected towards the provision of alternative livelihoods toany ILCs whose activities were causing deforestation.Yet it remains unclear how these funds will be transferredfrom the national to local level. BCPs are an innovativeand culturally sensitive way to articulate ILCs’ needs andpriorities and understand the underlying drivers ofdeforestation and degradation in their region.There is a desperate need to ensure that ILCs are notexcluded from the forests they inhabit throughout thecourse of national REDD-related initiatives to preventdeforestation or forest degradation. There is a widely-heldview that a return to a “fines and fences, guns and guards”approach to forest protection must be avoided at all costs.By articulating the needs of communities in terms oftraditional, non-destructive uses of forests that should beallowed to continue, BCPs can provide opportunities for ILCsto more visibly contribute to REDD objectives and potentiallyquantify the carbon benefits of such activities.4.6 A REDD BCP in OutlineWhilst every forest-dependent community is culturally diverseand lives in areas of biological diversity, the following outlineof a REDD BCP is intended to set out a broad framework forthe types of issues referenced above that a community maywant to set out in a BCP. It is intended as a illustrative guideand not as either a rigid framework or as a precedent.Who we areA description of the community’s cultural identity,milestones in the community’s development andtraditional authority.Our traditional territoryWith the aid of GIS and GPS technologies (which mayinvolve provision of such technology and capacitybuilding), the community will map out the land thatthey inhabit and depend on, including spirituallysignificant places, areas for collection of non-timberforest products, important hunting, fishing andgrazing areas, etc.Our customary laws that governthe use of our forestsA description of the rules that govern the people thatlive in the community, with emphasis on the rules thatsupport conservation and sustainable use of the forest.We face a number of pressuresA description of the underlying drivers of deforestationand forest degradation that the community faces(agricultural expansion, legal/illegal logging, fire, etc).This could also include an assessment of thegovernance systems they are engaged with (includingrelationships with national and sub-nationalgovernmental authorities, level of corruption, etc.).This is our preferred development pathWhat economic activities are necessary to ensure thecontinued existence of the community? What is neededto maintain the unique relationship between thecommunity and the forest (spiritual/sacredsustainability)? What activities would offset pressureon the remaining primary forests? This may also includea reflection on lessons learned from earlierdevelopment initiatives.19. Lewis, J. Freeman, L. and Borreill, S. 2008. Free, Prior and Informed Consent and Sustainable Forest Management in the Congo Basin. Swiss Foundation for Developmentand International Cooperation/ Anthroscape.49

PART II / CHAPTER 4BIO-CULTURAL COMMUNITY PROTOCOLS AND REDDThese are our rightsAn inventory of national and international laws andagreements that apply to the community. This willprovide a framework that can be drawn upon to asserttheir rights (including relevant aspects of REDD, CBD,UNDRIP, UNFCCC, etc).Our views on REDDWhat are the benefits they foresee by engaging in REDD?What are their concerns? Specifically, what informationwould the community require to consider a REDDrelatedpolicy measure or project, on which terms wouldthe community want to engage in REDD and what arethe guarantees they would require? The communitycould include the role it would like to play in reducingdeforestation and forest degradation, as well as adeclaration that such activities are not welcome.This is how we want to be consultedSetting out the community process for granting FPIC,including details of the traditional leadership and thevalues that will guide their decisions.5. Reducing Risk, Increasing CertaintyThe negotiation of the REDD mechanism is at a stage wheremany details remain undecided. Yet due to the significantsums of money that REDD will generate and the governancechallenges in many of the counties in which large forests exist,it is reasonable to argue that REDD will become a strugglebetween profit on the one hand and environmental and socialjustice on the other. Safeguards are required to ensure thatforest-dependent communities whose ways of life haveconserved forests are supported instead of further marginalizedby the mechanism. Like other environmental regulatoryframeworks, the efficacy of REDD will be judged at thelocal level. BCPs offer a promising option for forestdependentcommunities to take a proactive role in determiningwhat REDD will look like on the ground and to assert theirrights in what has become a very complex and politicallycharged environment.From an investor’s perspective, there are reputationalrisks associated with funding an initiative that does nothave the support of the local communities. This appliesboth to country donors contributing to a fund and toprivate companies looking to buy carbon offsets.BCPs could promote transparency and lead to increased legalcertainty by promoting the empowered engagement of ILCswith the REDD framework, specifically by assisting otherstakeholders to engage with them according to their valuesand on their terms.The use of community-based approaches to REDD such asBCPs could help ensure the local integrity of internationalefforts to save forests from degradation that contributes toclimate change by rewarding ILCs for conserving their forestswithout excluding activities that they people rely upon fortheir livelihoods and bio-cultural ways of life.50

CHAPTER 5Bio-cultural Community Protocolsand Protected AreasBarbara Lassen, Gary Martin and Olivier Rukundo 11. People and Protected Areas: A Paradigm ShiftSignificant changes have taken place in internationalconservation policies in the last few years. There is growingawareness of the role of indigenous peoples and localcommunities (ILCs) in the management of protected areasdesignated by governments, and equally, of the importanceof sites and landscapes managed by communities themselves.The contribution of these communities and their traditionalknowledge, innovations and practices (TK) to the conservationand sustainable use of biodiversity in and around protectedareas is gradually being recognized. Yet this paradigm shiftfrom exclusionary protection towards inclusive and localparticipatory management models poses many challenges.Integrating governmental and private conservation institutionsand management practices with local values and customarygovernance of biodiversity is a complex task for all actorsinvolved. It involves multifaceted issues of rights andresponsibilities, land tenure, contemporary and customaryknowledge, relevant institutions, and sharing of costs andbenefits. 2 Bio-cultural community protocols (BCPs) can playa significant role at this interface of these issues, assistingILCs to assert their bio-cultural values and rights to engagewith protected area authorities and protect their TK.This chapter briefly explores the interplay between protectedareas, ILCs and TK within the framework of the Conventionon Biological Diversity (CBD) and the Programme of Work onProtected Areas (PoWPA). It then evaluates the contributionthat BCPs can make to improving ILCs’ participation in twotypes of protected areas, namely: collaboratively managedprotected areas (CMPAs) and indigenous and communityconserved areas (ICCAs).1.1 Protected Areas and TraditionalKnowledge under the CBD:Making the LinkThe UN Convention on Biological Diversity (CBD) situatesprotected areas as a central instrument to achieve in situconservation. As stated in Article 2 of the CBD, a protectedarea is “a geographically defined area, which is designated orregulated and managed to achieve specific conservationobjectives”. More specifically, Article 8 of the CBD clearly callson each Contracting Party to:(8a) Establish a system of protected areas or areas wherespecial measures need to be taken to conserve biologicaldiversity;(8b) Develop, where necessary, guidelines for the selection,establishment and management of protected areas or areaswhere special measures need to be taken to conservebiological diversity. 31 . Barbara Lassen, Programme Officer, Implementing the Biodiversity Convention, Deutsche Gesellschaft fuer Technische Zusammenarbeit (GTZ); Gary Martin, PhD, Directorof the Global Diversity Foundation, and Lecturer, Centre for Biocultural Diversity, School of Anthropology and Conservation, University of Kent; and Olivier Rukundo,Legal Research Fellow, Centre for International Sustainable Development Law, and Associate, Natural Justice: Lawyers for Communities and the Environment.2. Kothari, Ashish, Protected areas and people: the future of the past, in: PARKS Vol. 17 No 2, 2008, p. 23-34.3 . Article 8a and 8b, text of the Convention available at, http://www.cbd.int/convention/articles.shtml?a=cbd-08.52

PART II / CHAPTER 5BIO-CULTURAL COMMUNITY PROTOCOLS AND PROTECTED AREASTo achieve this, the Parties agreed in 2004 on a PoWPA thatfeatures goals and activities that specifically relate to the rightsof ILCs, especially through Element 2, which is premised ongovernance, participation, equity, and benefit-sharing. 4 In turn,the CBD Programme of Work on the Implementation of Article8(j) on traditional knowledge includes a component thatspecifically refers to the management of protectedareas by ILCs. 5The three goals of the CBD (conservation, sustainable useand fair and equitable sharing of benefits) and the resultingcommitments are designed to be interrelated and mutuallysupportive. Thus, the provisions of the CBD have to be readand interpreted in a holistic and integrative manner.Commitments to promote the sustainable use of biologicalresources should, for instance, have direct bearing on thechoice of strategies for the management of protected areas.Similarly, the obligation to support ILCs and protect TK appliesto communities in and around protected areas, which in turnentails an obligation to take into account the rights of ILCs totheir resources and TK in the elaboration of protected areapolicies. The provisions of the CBD on Access and BenefitSharing (ABS), including those related to traditional knowledgeassociated with genetic resources, are of equal importancefor their application to a range of activities that could takeplace within or in the vicinity of protected areas.This point is affirmed when we look at the CBD’s provisionsfrom a community perspective. The Makuya community,for example, is situated on the northwest perimeter of theKruger National Park in northeast South Africa. The Makuyalive outside the park, but engage with the Kruger NationalPark officials in a quid pro quo relationship in which communitymembers receive saplings and plants for a medicinal plantsconservation area in return for community-based actionagainst poaching. They also own the Makuya Nature Reserve,a community-run ICCA, and are also holders of a wealth of TKrelevant for the conservation of biological diversity, aboutwhich they been approached by researchers. The Makuya,therefore, engage with all three elements of the CBDsimultaneously, and each aspect – the Kruger park (protectedarea), the Makuya Nature Reserve (conservation andsustainable use) and their TK (relevant for benefit sharing)– supports and promotes the others.1.2 Governance of Protected AreasThe International Union for the Conservation of Nature (IUCN)defines a protected area as “an area of land and/or sea especiallydedicated to the protection and maintenance of biologicaldiversity, and of natural and associated cultural resources,and managed through legal or other effective means[emphasis added]” 6 This definition reflects an evolving viewof conservation that can accommodate the social, economicand cultural interests, and values, rights and responsibilitiesof people living in and around protected areas. The revisedIUCN Guidelines for Applying Protected Area ManagementCategories 7 further recognize that protected areas can begoverned not only by state agencies, but also by a range ofother actors, including ILCs. The IUCN distinguishes four broadprotected area governance types according to who holdsdecision-making and management authority and responsibility:governance by government; shared governance; privategovernance; and governance by ILCs.PoWPA invites parties to recognize and promote a broadset of protected area governance types related to theirpotential for achieving biodiversity conservation goals inaccordance with the Convention, which may include areasconserved by indigenous and local communities and privatenature reserves. 8 This was reiterated at the 9th Conferenceof Parties to the CBD (Bonn, May 2008), at which parties adoptedDecision IX/18 on protected areas with a recommendation to:• improve and, where necessary, diversify and strengthenprotected area governance types, leading to or inaccordance with appropriate national legislation includingrecognizing and taking into account, where appropriate,indigenous, local and other community-basedorganizations; and• recognize the contribution of, where appropriate,co-managed protected areas, private protected areasand indigenous and local community conserved areaswithin the national protected area system throughacknowledgement in national legislation or othereffective means. 94 . See Decision VII/28.5 . See Decision VI/10.6 . IUCN (1994). Guidelines for Protected Areas Management Categories. IUCN, Cambridge, UK and Gland, Switzerland.7 . Dudley, Nigel, editor. 2008. Guidelines for Applying Protected Area Management Categories. Gland, Switzerland, IUCN.8. See, Conference of the Parties, Decision VII/28, full text of the decision is available at http://www.cbd.int/decision/cop/?id=7765.9. See, Conference of the Parties, Decision IX/18, full text of the decision is available at http://www.cbd.int/decision/cop/?id=11661.53

PART II / CHAPTER 5BIO-CULTURAL COMMUNITY PROTOCOLS AND PROTECTED AREAS2. Bio-cultural Community Protocols and Protected AreasBCPs can be of great use in the two governance types ofprotected areas in which ILCs have a say in decision-making:CMPAs, protected areas in which the governance is sharedbetween communities and other actors, and ICCAs,protected areas governed by ILCs themselves.2.2 Bio-cultural Community Protocolsand Co-managed Protected AreasCMPAs can be defined as “officially designated protected areaswhere decision-making power is shared between stateagencies and other partners, including ILCs, and/or NGOs andindividuals or private sector institutions”. 10CMPAs are based upon a negotiated joint decision-makingapproach and involve some degree of power-sharing and fairdistribution of benefits among all institutional actors.Co-management arrangements involving ILCs often emergewhen territories under their occupation or management,including ICCAs, are brought under the protected areasnetwork either at the insistence of the communities orthrough government initiative. 11BCPs can be a valuable instrument to empower ILCs toparticipate effectively in the decision-making andmanagement of CMPAs. First of all, the process of developinga BCP is an opportunity for the community to assess andarticulate the bio-cultural values associated with the areaunder protection and to develop its own vision of its desiredfuture. The BCP can also serve as a basis for dialogue withother institutions involved in the management of the protectedareas by demonstrating the contribution of the community’sTK to the conservation of the area and clarifying the needsof the community to access natural resources. Furthermore,the process of drafting a BCP raises the community’s awarenessabout its rights under national and international law, whichis essential to negotiating towards the equitable sharing ofmanagement authority. Finally, a BCP can clarify theexpectations of the community for the sharing of benefitsarising from the protected area, such as tourism revenues.A major challenge for effective co-management arrangementsinvolving ILCs is the recognition and co-existence of localor customary and governmental or formal institutions, policiesand practices. By referring explicitly to the customarygovernance institutions, management rules and values ofthe community, BCPs can further facilitate the institutionaland inter-cultural dialogue.In some cases, lands and resources traditionally inhabited andused by ILCs have been incorporated into official protectedareas without their consent or agreement. In such situations,BCPs could assist communities in demanding the restorationof traditional land and resource rights over all or part of anofficial protected area.Co-management agreements are based in part on therecognition that ILCs have TK that allow them to play asignificant role in protected area management. Ideally, theseagreements should explicitly identify the specific areas andresources ILCs can access, and under what terms andconditions. For effective negotiation and proper monitoringof agreements involving TK, community ethno-ecologicalstudies are required. Best practice dictates that communityresearchers conduct their own research, often in collaborationwith representatives of external agencies, and include avariety of methodologies such as household surveys,mapping, biological collections, and detailing of TK ofresources and landscapes.Since the results of this community-based research will bedisclosed to some extent to collaborating academics,government staff (such as rangers and wardens from parkagencies) and civil society throughout the course ofnegotiating co-management decisions, a large corpus ofinformation about local beliefs, knowledge, practices,and innovations will become publicly available.Before any collaborative research begins, the communitymust ensure some degree of protection of its intellectualproperty and traditional resources rights through the10. Kothari, Ashish, Collaboratively Managed Protected Areas. In: Managing Protected Areas, a Global Guide. Michael Lockwood, Graeme L. Worboys andAshish Kotari (editors). IUCN, Earthscan, London, 2006, p. 528.11. Ibid.54

PART II / CHAPTER 5BIO-CULTURAL COMMUNITY PROTOCOLS AND PROTECTED AREASprocesses of free, prior and informed consent (FPIC) andcommunity research agreements that establish mutuallyagreed terms (MAT). During the course of the study, thereshould be periodic participatory evaluations that assess theperspectives of a broad range of community members toensure there is general agreement about the researchapproach, methods and results. A BCP can serve to establishthe terms and conditions of any transfer of knowledge andresources outside the community, which should coverdisclosure through internal reports, published materialsand web-based bioinformatics and mapping approachessuch as searchable ethno-biological databases andonline mapping.Bio-prospecting has yielded valuable commercial products inrecent history and protected areas are seen as reservoirs ofgenetic materials that might serve important functions inagriculture or medicine. Bio-prospecting in protected areas isbound to increase as they contain much of the world’sbiodiversity and are likely to serve as increasingly importantrepositories of disappearing habitats, species and geneticresources. 12As national ABS frameworks are developed, bioprospectingagreements with protected areas are also likelyto increase because management authorities see them asa promising source of sustainable financing. In this context,BCPs can be a crucial instrument to ensure that the rightsof ILCs in and around protected areas over their resourcesand knowledge are respected, that bio-prospecting activitiestake place only after FPIC is established, and that ILCs receivea fair share of the benefits arising out of such agreements.BCPs can inform researchers about appropriate researcherbehavior, the community’s research priorities, localrequirements for obtaining FPIC, and the types ofbenefits that should be shared.2.3 Bio-cultural Community Protocolsand Indigenous and CommunityConserved AreasICCAs are defined as “natural and/or modified ecosystemscontaining significant biodiversity values, ecological servicesand cultural values, voluntarily conserved by indigenouspeoples and local communities – both sedentary andmobile – through customary laws or other effective means”. 13Territories and lands occupied or used by ILCs encompass aconsiderable proportion of areas important for biodiversityand wildlife conservation. They are found in both terrestrialand marine areas and range in size from sacred groves of lessthan 1 ha to over 30 000 km 2 indigenous territories in Brazil. 14Many of these ICCAs encompass conservation knowledgeand practices intertwined with local strategies for livelihoods,the spiritual and material values of ILCs and a varietyof customary and legal collective rights over land andnatural resources.ICCAs have until recently largely been ignored, if notundermined, by formal conservation policies and many areunder severe threat. However, the recent recognition ofICCAs at the international policy level is encouraging, andin some countries ICCAs have been recognized andincorporated into national protected area systems.For example, about 20% of Australia’s protected area consistsof 20 indigenous protected areas. 15 Despite this, the interfacebetween state-based institutions and the customaryinstitutions of ILCs remains a challenging and complex arena.All too often, the official recognition of the conservationvalue of ICCAs and their incorporation into national protectedarea systems is achieved through the imposition of newinstitutions that undermine the very customary governancestructures and bio-cultural values that conserve the ICCAsin the first place. Additionally, under the influence of rapideconomic, demographic and cultural changes, the traditionalknowledge, values and practices linked to ICCAs are oftenbeing abandoned or lost.At the same time, public recognition of ICCAs can be crucialfor some communities to be able to defend these areas againstexternal threats or to seek various forms of support for themanagement of their natural resources. Indeed, the recognitionof ICCAs needs to be based on the respect of the communities’strategies for conservation and sustainable use and theircustomary governance institutions. It should take into accountthe range of bio-cultural values that help conserve the areaand the role these values play in the communities’ ways of life.12. United Nations University Institute of Advanced Studies (UNU/IAS), Biodiversity Access and Benefit–Sharing Policies for Protected Areas, an Introduction. UNU/IAS, Tokyo, 2003.13. Borrini-Feyerabend, Grazia, Recognizing and Supporting Indigenous and Community Conservation – Ideas and Experiences from the Grassroots, IUCN CEESP.Briefing Note 9, September 2008.14. See: Kothari, Ashish, Community Conserved Areas: Towards Ecological and Livelihood Security, in: PARKS 16, pp 14-20, 2006; and Berkes, Fikret, CommunityConserved Areas: Policy Issues in Historic and Contemporary Context, in: Conservation Letters 2, pp 19-24, 2009.15. Smyth, Dernoth, Indigenous Protected Areas in Australia, in: PARKS 16, pp 14-20, 2006.55

PART II / CHAPTER 5BIO-CULTURAL COMMUNITY PROTOCOLS AND PROTECTED AREASIt is also crucial that communities are allowed to decide forthemselves whether and how they want their ICCAs to berecognized, whether that may be through self-declaration,listing in national or international databases or formalincorporation into a national system of protected areas.BCPs can play an important role in communities’ processesto gain such recognition. By elucidating the bio-culturalvalues of the communities conserving the ICCAs, theirgovernance systems and management practices, and theconditions for access to resources and TK, BCPs can be asignificant part of the interactions between ILCs andgovernment institutions. Ideally, they can serve as the basisof agreements between communities and these institutionsfor the recognition, respect and support of the ICCAs.Moreover, the process of discussing and establishing BCPscan help communities halt the loss of the traditional valuesand knowledge that have conserved the ICCA over time.Formal recognition of ICCAs, especially when it goes beyondself-declaration by the community, requires some level ofdisclosure of conservation strategies and TK. In Mexico,for example, certification of voluntary conserved areas bythe National Commission of Natural Protected Areas requiresthat communities fulfill specific obligations such asdeveloping an explicit environmental management program,conducting inventories of flora and fauna and carrying outenvironmental education programmes for residentsand visitors.Inclusion of ICCAs in public databases also requires thatsome amount of data collected by community memberspasses into the public domain. For example, the UNEP WorldConservation Monitoring Centre is currently developing aglobal registry for ICCAs modeled on the World Database ofProtected Areas but also including data on historical,cultural and governance aspects. An integral part of thisproject is to develop procedures for obtaining FPIC of thecommunities in concern before disclosing information atvarious levels.Communities can control the flow of information to theoutside by selectively revealing TK, achieving FPIC throughconsensual decision-making and regulating interactions withoutsiders through community research agreements that areperiodically reviewed in participatory evaluations.BCPs can play a role in this process by recording communities’bio-cultural values and asserting their rights underinternational or national law to manage and benefit frombiodiversity and to protect and use their TK according tocustomary law and values.Beyond being an instrument for public recognition ofICCAs, the BCP concept can also become an active driver ofcertification, joining mechanisms such as communityforestry enterprises, community territorial planning andpayment for ecosystem services, all of which areencouraging ILCs predisposed to declaring ICCAs totake the steps needed for formal recognition.3. ConclusionThe significant role of the TK of ILCs in conserving biodiversityis enshrined in the provisions of the CBD and is increasinglybeing recognized in protected area policies. However, thecustomary governance and knowledge systems of ILCs arestill being threatened by a number of factors, includingtop-down conservation policies. At the same time, thecurrent advancement of regulations for access and benefitsharingis creating new roles for actors managing protectedareas as providers of genetic resources and associated TK.Within this framework, it is crucial to develop instrumentsthrough which ILCs can interact with other actors in andaround their protected areas to assert their rights overresources and knowledge and to safeguard or developtheir own systems for sharing this knowledge on theirown terms. BCPs provide ILCs with a means to articulate thebio-cultural foundations of their ways of life and negotiatewith other stakeholders on the basis of their customary lawsand practices. By fostering dialogue between implementingagencies and ILCs, BCPs bridge the gap between local peopleand conservation policies, thus promoting the integrity ofenvironmental laws and policy by improving the likelihoodthat the three goals of the CBD are integrated andachieved at the local level.56

CHAPTER 6Bio-cultural Community Protocols in theContext of Payment for Ecosystem ServicesJohanna von Braun 11. IntroductionSince the emergence of the concept of Payment for EcosystemServices (PES), a vast array of literature has surfaced analysingits potential for promoting conservation whilst enablinglivelihoods. At a time when nearly two-thirds of the provisioning,regulating, supporting, and cultural services provided by theenvironment on which human well-being depends aredeclining, 2 PES is being celebrated as an economic modelthat integrates environmental externalities into the market.At the same time, however, experts warn against the manychallenges that are in place in order to make PES work in practice.The list of challenges put forward is long, and includes: thedifficulty of putting an economic value on ecosystem services;the required level of detailed scientific understanding of thenature of these services and their impact; the potentiallyprohibitive transaction and start-up costs; the necessity of theexistence of institutions that facilitate PES schemes; and thedanger of PES schemes generating perverse incentives suchas provoking a threat to an ecosystem in order to besubsequently integrated into a PES scheme.In this chapter, we explore a further group of associatedchallenges relating to the implementation of PES schemes incommunity-based settings. While the concept of PES is notbased on a specific legal framework that gives certain rightsto indigenous peoples and local communities (ILCs), some ofthe challenges ILCs face when engaging in PES schemes areremarkably similar to examples that we reference elsewherein this book. We suggest that bio-cultural community protocols(BCPs) can play an important role in addressing some of thesechallenges while ensuring an appropriate integration ofcommunities into PES schemes.2. PES Schemes2.1 BackgroundEcosystem Services (ESS) are the benefits that humans obtainfrom their environment, consisting of all plants, animals andmicroorganisms in their surroundings and their interactionswith the environment as a functional unit. Essentially, ESSare “processes which support human life.” 3 The MillenniumEcosystem Assessment classifies ESS into four main categories:provisioning services (such as wood, food and water),regulating services (such as water quality and1. Johanna von Braun, PhD, Post-Doctoral Fellow, Unit on IPR Research and Policy, University of Cape Town and Associate,Natural Justice: Lawyers for Communities and the Environment.2. Markets for Ecosystem Services: A Potential Tool for Multilateral Environmental Agreements by Anantha Kumar Duraiappah, IISD, 2007.3. Hemholtz Centre for Environmental Research, 2008, BESS – Biological Ecosystem Services, from last visited 2 June 2009.58

PART II / CHAPTER 6BIO-CULTURAL COMMUNITY PROTOCOLS IN THECONTEXT OF PAYMENT FOR ECOSYSTEM SERVICESflood and air control), cultural services (such as aesthetics,recreation and spirituality), and supporting services(such as the cycling of nutrients or other mechanisms thatmaintain the conditions for life on earth). 4The Assessmentexercise, which included more than 1,300 scientists frommore than 95 countries, found that 60% of the resourcesexamined were being degraded faster than theycan recover. 5In the context of PES schemes, ESS are usually divided intothe following related categories based on the type of servicethey are providing: carbon sequestration, biodiversityprotection, watershed protection, and landscape beauty.The management or protection of one ecosystem oftengenerates more than one type of service, which is referred toas the bundling of services. ESS can also be divided based onwhether the spatial boundaries of the services are providedlocally, regionally or globally. 6A landmark study by Robert Constanza et al. in 1998, whichbecame the basis of a significant amount of thinking onESS valuation, estimated the global value of ESS to over $33trillion per year, the vast majority of which remains outsidethe market. 7Although the quantitative valuation of ESSis complex and susceptible to subjectivity 8the economicvalue of ESS remains undisputed, with an increasingacknowledgement that such costs need to be integratedinto the market in order to increase the protection ofecosystems generating ESS in the first place.2.2 Payment for Ecosystem ServicesThe PES framework promotes the conservation of naturalresources in the marketplace by providing incentives toincorporate sustainable practices into production andresource management. PES hinges on the principle that“resources users and communities that are in a position toprovide ESS should be compensated for the cost of theirprovision and those who benefit from these services shouldpay for them, thereby internalizing these benefits.” 9PES agreements are mutually beneficial contracts betweenconsumers of ESS and the suppliers of these services.A widely accepted definition of PES by Sven Wunderdescribes them as …a voluntary transaction in which a welldefinedenvironmental service (ES), or a form of land uselikely to secure that service is bought by at least one ES buyerfrom a minimum of one ES provider if and only if theprovider continues to supply that service (conditionality). 10PES seeks to reward individuals who conserve theirenvironment by offering them financial or other incentivesin an effort to positively reinforce and improvetheir behavior. 11 The party supplying the environmentalservices, known as the provider, holds the property or relatedrights over an environmental good that provides a flow ofbenefits in terms of a certain ESS to the demanding party(user) in return for compensation. Interestingly, users of ESSare willing to pay a price lower than their welfare gain due tothe services acquired, while providers are willing to accept apayment that is greater than the cost of providing the services. 12There is currently no commonly agreed-on definition ofPES schemes, but there is a series of classifications underwhich PES schemes fall, based on the nature of the ESSprovided, its geographical scope, the structure of the market,and the type of payment involved. There is a great diversityof existing models of PES schemes usually adapted to veryspecific conditions of each scheme and location. 13The most common forms of PES are carbon storage andsequestration, wetlands conservation, watershed protection(including soil protection), and species, habitat andbiodiversity conservation. 144. Millennium Ecosystem Assessment. 2005. Ecosystems and Human Well-Being. Synthesis Report. http://www.millenniumassessment.org/en/index.aspx5. UNEP, 2008, PES – A Primer. http://www.unep.org/pdf/PaymentsForEcosystemServices_en.pdf6. “Payments for ecosystem services – issues and pro poor opportunities for development assistance” by Helle Munk Ravnborg, Mette Gervin Damsgaard andKim Raben, DIIS Report, 2007:6.7. “The value of the world’s ecosystem services and natural capital” Robert Constanza et al. Ecological Economics 25 (1998) 3–15.8. See for example: Pagiola, S., von Ritter, K., and Bishop, J. 2004. How Much is an Ecosystem Worth? Assessing the Economic Value of Conservation. IUCN, TNC, The World Bank.9. Mayrand, Karel, and Marc Paquin, 2004, Payments for Environmental Services: A Survey and Assessment of Current Schemes, Unisféra International Centre, from10. Supra note 6.11. Oliver, J., Emerton, L., Smith, M., 2008, Design Payments for Ecosystem Services: Report from the East Asian Regional Workshop (Hanoi, April 2008),IUCN, last visited 5 June 2009.12. Bulte, E., Lipper, L., Stringer, R., Zilberman, D., 2008, “Payments for ecosystem services and poverty reduction: concepts, issues, and empirical perspectives,”Environment and Development Economics, 13 , pp 245-254.13. Supra note 10.14. Ferraro, Paul, 2007, Regional Review of Payments for Watershed Services: Sub-Saharan Africa, Andrew Young School of Policy Studies Department of Economics atGeorgia State University, from last visited 9 June 2009.59

PART II / CHAPTER 6BIO-CULTURAL COMMUNITY PROTOCOLS IN THECONTEXT OF PAYMENT FOR ECOSYSTEM SERVICESThere are also many different types of PES deals, rangingfrom hundreds of small and private site-specific schemes tolarger government-regulated schemes 15and multilateralenvironmental agreements such as the Clean DevelopmentMechanism under the Kyoto Protocol.PES schemes have the potential to be more cost-efficientthan regulatory and subsidized approaches to environmentalconservation that rely heavily on public financial resourcesto function. PES schemes usually have flexible and need-basedstructures that can support themselves in the long run.Overall, PES schemes can be more adaptive and effective thana purely regulatory approach to conservation.For example, PES schemes can be implemented when thecreation of protected areas would be impossible due to socioeconomicor political contexts. They are easy to administerand can be flexible with respect to which land uses are andare not allowed under its scheme, thus targeting its effortstowards local conservation and socio-economicdevelopment. 16In spite of the promising basis of the PES concept, manyPES experts urge caution against accepting it as a panacea,arguing that the success of PES schemes are highly dependenton a large set of circumstances and demand substantialgroundwork before they can succeed. In addition to theconcern that PES systems only work in conditions with aclear market demand, they also seem to rely on well-organizedproviders and users with clear and secure property rights.Furthermore, transaction costs of a PES scheme must notbe too high to offset any potential gains for both theuser(s) and provider(s). 173. Community Engagement with PES SchemesThe principle objective of PES schemes is to establish aneconomic incentive to foster more efficient and sustainableuse of biological resources and ecosystems. 18Nevertheless,PES schemes can also contribute to poverty alleviation,particularly among rural communities whose livelihoods arehighly dependent on the use of natural resources insurrounding areas. Population pressures or lack of economicopportunities based on anything other than short-termincentives can lead to unsustainable forest managementor farming practices. PES schemes can mitigate this cycleby offering longer-term incentives for the sustainable useof resources through opportunities for low-incomecommunities to gain additional employment or othereconomically valuable benefits for their conservationof ecosystems. Supporting livelihoods through smalleconomic incentives over many years may offer animportant increase to net income in the community whilefunctioning as impetus for adopting a more sustainableapproach to land and ecosystem management. 19However, it is not always the case that communities engagein unsustainable use of biological resources. Indeed, manyexamples exist in which local communities actively maintainand conserve the biodiversity on which their livelihoodsand bio-cultural heritage depend. It is often highlightedhow ILCs such as the Raika, discussed earlier in this book,contribute to and sometimes become leaders in theconservation of local biodiversity through their sustainableland use practices. In such cases, PES schemes can offer areward for the maintenance of such services and anacknowledgement of the contribution of their bio-culturalpractices to conservation.15. See for example the case of Costa Rica: “Payment for Environmental Services and Rural Communities: Lessons from the Americas” Herman Rosa, Susan Kandel,Leopoldo Dimas and Ernesto Mendez, PRISMA (Programa Salvadoreño de Investigación sobre Desarrollo y Medio Ambiente)16. Supra note 10.17. Ibid.18. Supra note 6.19. Ibid.60

PART II / CHAPTER 6BIO-CULTURAL COMMUNITY PROTOCOLS IN THECONTEXT OF PAYMENT FOR ECOSYSTEM SERVICES4. Challenges Faced by ILCs Regarding PES SchemesAs mentioned above, designing and implementing PESschemes is riddled with diverse challenges, including howto face transaction costs, the need for scientific andeconomic data, the real contribution and value of ESS,and the need for institutions that can manage and monitorthe scheme. Furthermore, experts highlight a range ofchallenges that are particularly relevant when PESschemes include one or more ILCs as providers of ESS.This section provides an overview of these challenges anddraws parallels to the ABS scenario where relevant.Finally, it will identify how PES schemes, similar to ABSagreements, can offer opportunities to the strengtheningof conditions that allow ILCs to bring their bio-culturalvalues to the fore.4.1 Participation and Capacity-buildingSimilar to the ABS context, in order to set up an effectivePES scheme with an ILC, the community must be involved inits design and agree to the changes that it may bring to certainland use activities that the community is engaged in ordepends upon. A precondition to entering into negotiationsof a PES scheme is that community members understand thelegal ramifications of such a scheme as well as the technicalimportance of the services they are going to provide. Accordingto UNEP, the following criteria should be considered:of value to potential users. Only with this awareness willcommunities be able to negotiate PES schemes withpotential users that will have long-term benefits to andthe support of the greater community.4.2 Representation and GovernanceIn the ABS framework, communities have to negotiate withpotential users about the conditions under which they wouldbe willing to share their TK. Similarly, communities in a PEScontext have to engage with potential users about theconditions under which they would be willing to maintainor change certain land use practices for the generation ofcertain ESS. Negotiations in both cases require an individualor committee to represent the rest of the community,which in turn requires the existence of a certain governancestructure. Such a committee needs to have been giventhe authority to engage in negotiations on behalf of theentire community. Without local representation, the PESscheme may not only lead to negative consequences for arange of members of the community, particularly the mostvulnerable, but is also likely to be unsustainable. In cases inwhich PES schemes have certain requirements of local landuse practices, the community must collectively agree on theterms and conditions, otherwise it may be difficult to enforceand is likely to lead to internal community conflict.• The need for participatory processes as a basis of decisionmaking,ensuring adequate ‘buy-in’ from the community;• The need for members of the community or communitybasedorganizations to be experienced with projectmanagement and technical support;• The need for analysis of whether the investments meet thegoals of the larger community, including women and lowerincomemembers; and• The need for integrating members of the community intoevery level of the project, from design throughimplementation and monitoring.Thus, in order to prepare for PES schemes that integrate theparticipation of local communities, a certain amount ofcapacity-building is needed. Communities first requireinformation about the nature of the scheme, why it isimportant and how their land use generates ESS that are4.3 Distribution of BenefitsDebates over how communities can benefit from PESschemes mirror similar debates within the ABS framework.Notably, PES schemes can take place in a range of forms,not just monetary payments, including the followingidentified by UNEP:• Direct financial payments, including compensation foropportunity costs or loss of livelihoods incurred fromchanges in land use practices for ESS protection, such asthe conversion of managed farmland to natural forest;• Financial support for specific community needs, such asbuilding of infrastructure like schools, boreholes orclinics to remunerate for ecosystem services;61

PART II / CHAPTER 6BIO-CULTURAL COMMUNITY PROTOCOLS IN THECONTEXT OF PAYMENT FOR ECOSYSTEM SERVICES• In-kind payments, such as the beehive-for-conservationpayment transaction that Fundación Natura is makingin Bolivia; 20 and• Recognition of rights, such as increased land or accessrights and increased participation in decision-makingprocesses. 21Additional methods are also listed by UNEP, including a “payper tree” scheme, forest protection or restoration schemesand payment through improved service delivery.There are many other options for PES schemes that couldbe adapted to the local needs of the involved providercommunities. 22In order to identify the optimal form of PES scheme, theremust be dialogue about the different options. This shouldinclude increasing the provider community’s understandingof the benefits of the different forms of PES available inorder to strengthen its capacity to make effective decisionsand increase its bargaining power in negotiations.4.4 High Transaction Costs ofCommunity-based NegotiationsIn a study on forest ESS and the impact of payment schemesfor poor communities living in or near the forest, theInternational Institute for Environment and Development(IIED) warns: …transaction costs are likely to be highestfor small forest holders who lack basic organisational,forest management and marketing skills. Monitoring andcertifying delivery of biodiversity management, for instance,will tend to be more expensive for a number of small plotsthan for larger landholdings. Where a minimum area isrequired to qualify for a biodiversity protection contract,additional costs are born by smallholders who mustco-ordinate amongst themselves before negotiatingwith buyers. 23 Furthermore, overcoming any of the abovementionedchallenges that are a part of participatoryengagement with communities will be time-consuming andexpensive. Most potential ESS buyers will seek out negotiationpartners with the lowest transaction costs, which tendto be larger landowners, minimizing the need for prolongednegotiations or pre-negotiations. This is a clear disadvantagefor involving communities in PES schemes and donor fundingmay be necessary to cover the high initial transactionand set-up costs.4.5 The Need for a Clear Definitionof Property RightsWhile PES schemes are often set up privately and in the largemajority of cases do not rely on a specific regulatory framework,it is important to remember that they also do not take placein a legal or political vacuum. For example, certain nationalfiscal policies or subsidies may run counter to the conceptsof PES schemes and may prevent the introduction ofalternative forms of land use in certain areas. Some countriessuch as Ecuador and Costa Rica have recently revisited theirforestry laws precisely to update such national fiscal policiesand facilitate the success of PES schemes. 24Furthermore, clarity of property rights is central to thefunctioning of any PES scheme. 25 In situations in which landownership and tenure and access and use rights are ambiguous,it is unclear who is the provider of ESS and thus very difficultto create PES schemes. Particularly if PES schemes are tobenefit small and local communities, it is of utmost importanceto ensure that their rights to accessing the land are inplace and clarified.20. http://www.naturabolivia.org/Informacion/Proy2.pdf21. Supra note 5.22. Furthermore, communities are likely to also experience certain secondary benefits from engaging in PES schemes. These include: the transfer of technical skills such asmapping, surveying, and new, alternative and sustainable forms of land use. It may also lead to economic empowerment of communities that are seen as providing aservice rather than engaging in ‘practice as usual’, and they may also gain experience in engaging with outside business. In cases in which communities already activelycontribute to the maintenance of the local environment through sustainable harvesting practices, they should be rewarded for such activities as an incentive to maintainthe status quo in the future. Indeed, as case studies in Costa Rica have shown, communities above all derive benefits from the secondary effects of PES schemes.This includes their engagement with the supporting organizations, such as training to develop forestry activities, strengthened organization and improved externallinkages. When local landscape is transformed, it may also generate value for local communities through its impact on other ESS on which they depend, such as waterquality and quantity. In turn, this may generate increased local tourism and scientific opportunities, which would also benefit them in the medium-term.See: “Payment for Environmental Services and Rural Communities: Lessons from the Americas” Herman Rosa, Susan Kandel, Leopoldo Dimas and Ernesto Mendez,PRISMA (Programa Salvadoreño de Investigación sobre Desarrollo y Medio Ambiente)23. “Silver bullet or fools’ gold? A global review of markets for forest environmental services and their impact on the poor” Natasha Landell-Mills andIna T. Porras March 2002, IIED. Page 62.24. See for example: Pagiola, S. 2002. “Paying for Water Services in Central America: Learning from Costa Rica,” and Echevarría, M. 2002. “Financing Watershed Conservation:The Fonag Water Fund in Quito, Ecuador,” both in Pagiola, S. et al. “Selling Forest Environmental Services. Market-based Mechanisms for Conservation and Development.”London: Earthscan Publications Ltd (2002).25. Supra note 11.62

PART II / CHAPTER 6BIO-CULTURAL COMMUNITY PROTOCOLS IN THECONTEXT OF PAYMENT FOR ECOSYSTEM SERVICESILCs often have unresolved and insecure land rights. If thisfundamental issue is not addressed, PES schemes are likelyto only benefit large land owners who can influence theway the land is used and thus qualify for a PES scheme,which in turn may lead to further marginalisation of ILCs.PES schemes may also further undermine local communitiesby enabling more powerful actors to secure land tenurebefore ILCs can assert their rights based on customary lawor a history of use. 26Comparative studies between Mexico,where ILCs have access to and control over 80% of forestcover, and Brazil, where access to resources by localcommunities is much less secured, have highlighted theimportance of affirming rights in making PES work forlocal communities. 27IIED makes a similar observation based on their work on forestecosystems, warning that there is a risk of poor communitiesbeing negatively affected by PES schemes. As the market forESS raises the value of biodiversity-rich areas, it may lead tocompetition for controls of these areas. If ILCs living in thearea have no formal title to them, they are at risk of expulsion.In this sense, instead of empowering local communities, PEScan actually lead to their further marginalization. 28However, the opposite can also occur. A Danish Institute forInternational Studies report found examples of how PESschemes have actually helped clarify communities’ land userights. As a result of community participation in themaintenance or strengthening of ESS through ecosystemmanagement, communities’ land tenure wasactually strengthened. 29all stakeholders have a holistic understanding of howresources are used before the introduction of any PESschemes in order to avoid unintended consequencessuch as depriving some members of the community ofbasic resources required for day-to-day survival;• As a result of PES schemes and associated land use changes,ESS providers may suffer from loss of employment.PES schemes could also lead to the loss of control over andflexibility of local development policies, as they may limitland management options in the medium- tolong-term future. Those involved in PES schemes mustconsider and calculate other opportunity costs aswell; and• Sometimes the provision of ESS can be inhibited byunexpected natural events such as droughts, wildfiresor insect plagues. Communities have to ensurethat either they offer a large variety of ESS that makethem less vulnerable to times of “non-delivery”, or thatthe PES scheme addresses how to deal with the riskof unforeseen circumstances beyond communities’control; and In some ILCs, the commodification of ESSthrough financial valuation may be culturally unacceptable.This may particularly be the case if a PES scheme leadsto changes in land use that conflict with traditionalresource use. Thus there is a need to examine thecompatibility of PES schemes with the bio-culturalvalues of communities.4.6 Preventing Perverse OutcomesIn addition to the above challenges implicit in PES schemes,there are concerns about the possibility of certain unintendedconsequences, including the following:• PES schemes may prevent ESS providers from harvestingcertain products or benefiting from certain ESS that areessential for the ILCs’ livelihoods. Before entering into aPES deal, consultations need to be held to ensure that26. “Payment for Environmental Services and Rural Communities: Lessons from the Americas” Herman Rosa, Susan Kandel, Leopoldo Dimas and Ernesto Mendez,PRISMA (Programa Salvadoreño de Investigación sobre Desarrollo y Medio Ambiente)27. Ibid.28. Supra note 24.29. Supra note 7.63

PART II / CHAPTER 6BIO-CULTURAL COMMUNITY PROTOCOLS IN THECONTEXT OF PAYMENT FOR ECOSYSTEM SERVICES5. The Options Provided by BCPs toAddress these ChallengesWhile integrating communities into PES schemes will remaincomplex, the use of BCPs, as described in the context of ABS,could offer clear support in facilitating the process andenabling sustainable schemes that positively contribute tolocal livelihoods and strengthen their bio-cultural ways of life.The following section outlines some of the possible benefitsthat BCPs offer in the context of PES schemes.5.1 The BCP Process as a Tool forCapacity DevelopmentSimilar to the ABS context, a BCP in a PES scheme wouldserve both as process and outcome. The process would helpwith the identification of the community and its differentstakeholders. The development of the BCPs would set outwho is included in the community, which resources andpractices they rely on and other characteristics relevant toa PES scheme such as the community’s bio-cultural valuesconcerning land use. The process of engaging communitymembers in the design of a BCP would also facilitate thesharing of information about the concepts of PES schemesand how they could be integrated into endogenousdevelopment planning. It would also allow communitymembers to discuss the nature of individual PES schemes,their local adaptability and relevance and their accompanyingopportunities and challenges, including how they maysupport their bio-cultural ways of life.5.2 Affirmation of LocalDecision-making ProcessesIn order to set up a PES scheme, a community has to enterinto a negotiation process with one or more actors, suchas other communities serving as ESS providers, possibleusers of ESS or intermediaries. To do so, the communityhas to decide on who should represent them in suchnegotiations, which could be existing representatives,local leaders who represent the community in othermatters or new representatives. In communities that arewell-organized and already have a history of negotiatingthe use of natural resources at the local level, the selectionof such representatives is likely to be fairly easy. In othercases in which no such process has taken place before,the selection of a representative to negotiate on behalf ofthe community will be more challenging. Either way, theprocess of developing a BCP will be beneficial as it willconfirm existing representatives and give them the authorityto negotiate a PES scheme on behalf of the community,or it will lead to the selection of a new group ofrepresentatives or committee. Through the BCP process,the representatives will be given a clear mandate abouthow to engage in the negotiations. The protocol itselfwill also help outsiders who would like to enter intonegotiations with the community to identify a point ofcontact to approach.5.3 Reducing Transaction Costs throughPrepared CommunitiesOne of the biggest challenges to making PES work is thehigh transaction costs associated with setting up andmaintaining a PES scheme. If transaction costs outweigh thepossible gains made by an ESS user for paying an ESS providerto maintain or improve land use practices, then the wholePES scheme is redundant. Thus, reducing transaction costsof setting up and maintaining a scheme is essential.While BCPs will not be able to prevent all transaction costs,they have the potential to reduce some of the costs associatedwith negotiating with ILCs. First, communities that havedeveloped BCPs are better prepared for entering intonegotiations with visions of what they want to achieve fromsuch a scheme. They will have also decided who will representthem in negotiations and will have given that representativea clear mandate. Furthermore, building local capacity andunderstanding the concept of PES through the BCP processwill further facilitate the efficacy of negotiations. Finally, whenseveral neighboring communities are integrated into onePES scheme, the joint formulation of a BCP can helpparticipating communities collectively align their visionswith respect to the scheme, thus reducing some of thetransaction costs of working with different groups atthe same time.Other factors associated with the BCP process are likely tolower transaction costs directly or indirectly.64

PART II / CHAPTER 6BIO-CULTURAL COMMUNITY PROTOCOLS IN THECONTEXT OF PAYMENT FOR ECOSYSTEM SERVICESSimilar to the ABS context, an informed and empoweredcommunity is in a much better negotiating position than onethat is uninformed about its rights and opportunities. It is alsolikely that a PES scheme built on a strong foundation such asthe one created through the BCP process would be sustainablein the medium- or long-term, thus preventing high costs ofrenegotiating previous deals.5.4 Affirming Access and Land RightsMany countries in the developing world are characterizedby legal plurality in determining who has access to orownership over land and associated natural resources.These rights are granted under different legal systems thatare often a fusion of international, national andcustomary law. They may be as diverse as the UN Declarationon the Rights of Indigenous People 30 , formal land titles, rightsthrough use, ancestral rights, or membership in communityownedor occupied land. 31One of the key contributions of a BCP in the context of PESschemes is the affirmation of ILCs’ existing rights to land orland use by listing all relevant national and internationallegal frameworks. When ILCs are in danger of beingmarginalized by a PES scheme, BCPs can help them clarifyand assert their existing rights. Highlighting these rightslegally empowers communities to enter into such schemeswith confidence and understanding of their values andpriorities. Given the centrality of clear land rights to theestablishment of effective PES schemes, BCPs could providefurther clarity about the legal status of ILCs and their useof land and natural resources.5.5 Determining Types of PaymentIn cases in which ILCs do not have clear access or rights toland, official land tenure could be granted in exchange fortheir agreement to engage in sustainable land use practices.Kerr et al. describe an example in Indonesia in whichinformal forest occupants that had previously engagedin detrimental agriculture agreed to refrain from suchactivities if they were given official land tenure and grantedaccess to associated government services. 32Such non-monetary benefits are an example of the vastarray of options available for the type of payments underPES schemes. Non-monetary benefits may be particularlyuseful in local contexts in which certain service provisionsor the clarification of land tenure may be more importantthan monetary income. While many factors will influencethe size and nature of payment possible, the visioningcomponent of BCPs can help in establishing what type ofpayment would be most desired by ILCs.5.6 Addressing Possible SecondaryEffects through a Bio-cultural Analysisof Existing Use of Biological ResourcesWhen entering into PES schemes, ILCs have to be aware ofpossible secondary effects such as the socio-economicimpact of restricted future land use. While there is always arisk of unanticipated consequences emerging from theimplementation of such schemes, the use of BCPs canreduce some of the associated risks.Part of the BCP process is a discussion about the nature ofthe current resource use of all members of the community;within a PES context, it will also include discussion abouthow the conditions attached to a PES scheme will affectsuch resource use. The designers of the PES scheme can thenuse the BCP to ensure that community members will not beadversely affected by the scheme and, in cases in whichlocal land use practices have to be changed or stopped,to ensure that any negative consequences are mitigatedwherever possible. On top of that, highlighting thecommunities’ bio-cultural values in this regard will furtherprevent cultural conflict emerging from certain landusage change.30. Article 26 of the UN Declaration on the Rights of Indigenous People:- Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or othertraditional occupation or use, as well as those which they have otherwise acquired.- States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditionsand land tenure systems of the indigenous peoples concerned.”31. Supra note 7.32. TRIP Report: Property Rights, Environmental Services and Poverty in Indonesia, by John Kerr et al., 2004: . Footnote 5 (UNEP 2008) also mentions land and access rightsas a possible form of payment as part of a PES scheme.65

PART II / CHAPTER 6BIO-CULTURAL COMMUNITY PROTOCOLS IN THECONTEXT OF PAYMENT FOR ECOSYSTEM SERVICES5.7 Bio-cultural Checks and Balances AgainstCommodification of ESS and TowardsILCs’ Rights to a Bio-cultural Way of LifeA final fundamental contribution of BCPs to the PES contextlies in its facilitation of ILCs’ expression of their bio-culturalvalues and knowledge. BCPs add an additional angle to ESSthrough the qualitative valuation of ecosystems’ bio-culturalresources. In other words, BCPs describe ecosystems in termsof their bio-cultural rather than their economic value, whichprovides a much more holistic assessment of their true value.Even when bundled, ESS can only be measured in terms ofthe values they add to certain economic activities or to acertain user. Yet, ecosystems that generate economicallyvaluable ESS do so much more than that in terms of theservices they provide to the livelihoods of ILCs, which are rarely,if ever, measured economically. For example, a forest is notmerely a carbon sink, but also provides ILCs with food,shelter, medicine, and spiritual guidance, all of which theyhave come to depend upon for their livelihoods and bioculturalways of life. It is for these reasons that ILCs such asthe pastoralist Raika community described in previouschapters has not only become dependent on having accessto the land, but has also taken on the stewardship of thevery ecosystem upon which it relies for survival.During a long history of interaction, the land and thecommunity have co-evolved a symbiotic relationship inwhich they mutually reinforce each other’sbio-cultural integrity.Therefore, basing PES schemes on BCPs allows for theintegration of bio-cultural values into a previously economicallyvaluedsystem and further acknowledges the importanceof bio-cultural values for the preservation of ecosystemsthat generate ESS in the first place. Therefore, BCPs generatea holistic approach to ESS that extends beyond an economicvaluation and includes broader valuation criteria for thedevelopment of a PES scheme. PES schemes may become anadditional mechanism through which ILCs can assert theirrights and gain recognition for the bio-cultural principlesof conservation and sustainable use entrenched in theirtraditional ways of life.6. ConclusionsWhile BCPs are not the panacea for making PES work, weargue that they can be highly supportive in integratingcommunities into PES schemes. What may otherwise seemtoo complex for possible users of ESS may become feasiblethrough the BCP process.BCPs can also serve as a capacity development mechanismfor ILCs that are confronted with the opportunity to enterinto a PES scheme. Participation, capacity development andincreased awareness of what such a scheme entails leadsto empowered communities that are much better preparedto not only enter into PES negotiations, but also to committo the conditions of specific schemes. In addition, basing aPES scheme on a BCP will highlight ILCs’ bio-cultural valuesabout the ecosystem in question and allow for a moreorganic community-based decision-making process thanwhat typically occurs in a purely economic transaction.Many other challenges exist, including the need that stillexists for solid scientific and economic analyses to assignvalue to ESS. While BCPs will only address some of thechallenges associated with this new and promising PESscheme, policymakers and entrepreneurs working in thisfield should strongly consider integrating them into theirwork as they collaborate with ILCs to design and implementlong-term and effective PES schemes well into the future.66

CHAPTER 7Bio-cultural JurisprudenceElan Abrell, 1 Kabir Bavikatte & Harry Jonas1. IntroductionThis book is intended to further amplify the call fromindigenous peoples and local communities (ILCs) to beaffirmed within international and national legal frameworksas custodians of their landscapes and to enjoy secure rightsto manage their territories, natural resources and traditionalknowledge, innovations and practices (TK) according to theirvalues and customary laws. In the preceding chapters wedetail a variety of legal and policy frameworks such as theinternational regime on access and benefit sharing (IRABS),programme on reducing emissions from deforestation andforest degradation in developing countries (REDD), protectedareas and payment for ecosystems services (PES) that arebeing developed with the aims of delivering environmentalgains and securing social justice. Whilst acknowledging theimportance of the regulatory frameworks, we also highlightthe potential each has to further marginalize ILCs as custodiansof their landscapes.Because the success of international regulatory frameworksof dealing with modern global concerns such as theappropriate use of TK, biodiversity loss or climate changedepends on their careful implementation at the locallevel, ILCs are integral to the decision-making processrelating to any of those activities. The local implementationof environmental legal frameworks is most likely to lead toenvironmental and social benefits when ILCs have the rightof free, prior and informed consent (FPIC) over any activitiesthat affect them. FPIC in this context also includesexercising the right to determine the types of use of theirTK, land, territories and natural resources and to influencethe details of any intended projects or activities.In this context, ILCs’ ability to articulate and assert their values,customary laws and practices becomes the indispensablecondition for ensuring the local integrity of environmental law.This book focuses on use of bio-cultural community protocols(BCPs) by ILCs as one way in which communities can increasetheir capacity to drive the local implementation of internationaland national environmental laws, with reference to the IRABS,REDD, protected areas and PES. Whilst we argue that this is apractical and immediately available tool for ILCs to asserttheir right to self-determination, we acknowledge that a moreradical paradigm shift is required within the law itself if ILCsare to be recognized as drivers of the conservation andsustainable use of biodiversity and the generation ofculturally appropriate livelihoods. This chapter sketches anascent form of legal thought, namely, bio-culturaljurisprudence that marks a movement in that direction. Itexplores FPIC’s twin foundations, namely, the right to selfdeterminationand respect for customary laws and practices,and argues that bio-cultural jurisprudence places the valuesof ILCs at the heart of environmental law, initiating a radicalrethink of the ‘facts’ of property jurisprudence that thelaw takes for granted.1. Elan Abrell, Associate, Natural Justice and Doctoral Student, Department of Anthropology, City University of New York.68

PART III / CHAPTER 7BIO-CULTURAL JURISPRUDENCE2. Free, Prior and Informed ConsentWithin the context of the Convention on BiologicalDiversity (CBD), there is a tendency by parties to equatethe idea of FPIC of ILCs only with the notion of consentin contract law. This perception is unduly limited. The right toFPIC in Article 8(j) in the context of bio-cultural communitiesrests on the twin foundations of the right to self-determinationand customary law. The FPIC that Article 8(j) refers to is aconsent that at its core affirms and furthers a bio-culturalway of life. Such consent stems from the bio-cultural valuesof ILCs, constituting an act of self-determination and affirmingcustomary law. Article 8(j) indicates that the currentenvironmental emergency is not a result of the inability ofILCs to freely alienate their ‘physical and intellectual property’to the highest bidder but stems from their diminishing abilityto use and share their TK, lands, territories and natural resourcesin accordance with their bio-cultural values - values that haveensured the conservation and sustainable use of biologicaldiversity through history.We turn briefly to explore each of the twin foundations ofFPIC, namely, the right to self-determination and respect forcustomary laws and practices, and highlight their importancefor ILCs to be able to secure their way of life.2.1 Self- DeterminationAt the heart of the right to self-determination lies the challengeof articulating the ‘self’ that needs to be determined. The ‘self’that gives consent in contract law is rooted in propertyjurisprudence, which at a fundamental level splits the worldinto legal subjects and objects that can be traded and alienatedby such subjects. This begs the question of whether thedetermining ‘self’ of bio-cultural communities that Article 8(j)refers to is the same ‘self’ that gives consent in contract lawand whether such consent can ensure a way of life that hasconserved and sustainably used biodiversity.The nature of the legal subject or the self in propertyjurisprudence is conceived of as an enclosed entity and therole of law is to resolve conflicts that arise out of competingrights between such entities and to safeguard their rightsover objects which include land, property, knowledge etc.The legal subject is therefore separate from the thing s/he hasrights over and ‘Nature’ for e.g. is separate from the ‘self’ or thelegal subject who has rights over it. The legal subject has noobligations towards Nature nor does Nature havecorresponding rights over the legal subject. Nature in propertyjurisprudence is a commodity over which legal subjectsexercise different sets of competing rights.The legal subject as separate from Nature emerges when apart of experience is cut from the general stream of experienceand classified as the separate self. This allows for a differentkind of relationship - one of self and other. Our ability todiscriminate between self and Nature is merely one functionof consciousness of splitting up our conscious universe intoparts. But this ability to discriminate provides us with endlesspossibilities and not just a self/Nature binary.The state of duality between self/Nature and the state of unitywhere Nature becomes an extension of the self is a tensionthat constantly needs to be maintained to have a holisticpicture of reality. This tension is crucial since it comprehendsthe essence of our consciousness that cuts up theundifferentiated stream of experience into a variety of binarycombinations of subject/object, thought/thing, knower/knownetc. The problem of the legal subject is the privileging of thesubject/Nature binary at expense of its interconnectedness -the legal subject as separate from Nature is not an absolutebut a functional category and this functional separation fromNature should not deny our integral connectedness. 2Article 8(j) poses a challenge to the classical notion of thelegal subject as an insular bearer of property rights byjuxtaposing it with the understanding that ILCs have of the‘self’ as a bio-spiritual relationship with the ecosystem. The ILCsthat Article 8(j) refers to are bio-cultural communities whosecultural practices and spiritual beliefs are integrally tied to theecosystem. The wellbeing of the community is contingent onthe wellbeing of the ecosystem and the cultural rituals andspiritual foundations of the community continually makesacred and affirm the self’s connectedness to the land, its floraand fauna.2. James, William, ‘Does Consciousness Exist’, Essays in Radical Empiricism (1904) ; Nishida, Kitaro, An Enquiry into the Good, New Haven: Yale University Press,1990 and Banoobhai, Shabbir, If I Could Write,69

PART III / CHAPTER 7BIO-CULTURAL JURISPRUDENCEIt is the determination of such a bio-spiritual ‘self’ thatArticle 8 (j) seeks to protect and promote. The ‘bio-spiritualself’ that seeks to be determined through the act of freeconsent is constituted through its relations to the land ratherthan its proprietary rights over it. While property jurisprudencedivides the world into subjects and objects and givescoherence to a title claim that ‘this land is mine’, bio-culturaljurisprudence that Article 8(j) seeks to develop emphasizeson the connectedness of the bio-spiritual self to the land givesmeaning to the statement ‘this land is me’.The bio-spiritual self that is determined in the act of providingFPIC poses an alternative conception of the self, which is morethan just an insular bearer of property rights. It emphasizesless on rights in its engagement with the Nature and moreon bio-spiritual virtues that foregrounds one’s connectednesswith nature rather than separateness through the practice ofkindness, love, compassion and reciprocity towards the land.While justice from the point of view of the contemporary legalsubject is the upholding of one’s property rights, justice forthe bio-spiritual self is the removal of any obstruction to thissense of virtuous connectedness with the land.2.2 Customary LawsIn his 1924 classic essay ‘The Gift’, French sociologist MarcelMauss addressed the issue of customary law and the moraluniverse it operates in when analyzing gift giving in traditionalsocieties. Mauss’s explorations provide us with a keen insightinto a dimension of FPIC in bio-cultural communities that isoften missed out in property jurisprudence. The act ofconsenting to sharing or use of knowledge, resources, landand territory in bio-cultural communities is circumscribed andregulated by their customary values and spiritual obligations.It is these values and obligations that Article 8(j) seeks toforeground in its affirmation of the right of FPIC of bio-culturalcommunities.Mauss asked an important question that drove his enquiryinto the anthropology of the gift: ‘What power resides in theobject that causes its recipient to pay it back?’ Mauss wasinterested in looking at ‘giving’ as a ‘total prestation’ where giftexchanges in traditional societies are viewed as completesocial movements and are at the same time economic, juridical,moral, aesthetic, religious, mythological and sociomorphologicalphenomena- meaning can only be grasped ifthey are viewed as a complex concrete reality. 3In the context of ILC’s lands, territories, natural resources or TK,Mauss’s point about ‘total prestation’ becomes all the moreurgent by asking two important questions: First, ‘what is thetotal context from within which land, territories, naturalresources or TK arises i.e. what are the customary and spiritualobligations that regulate its sharing and use? Second, howcan these customary and spiritual obligations be manifestedin ABS, REDD, payment for ecosystem services, protectedareas or any other such agreements relating to the use ofsuch land, territories, natural resources or TK? Both thesequestions are crucial because these customary and spiritualobligations are a part of a way of life that has conserved andsustainably used biological diversity and is the way of life thatArticle 8(j) seeks to protect and promote.A language of property is totalizing in the sense that itoverwrites all other languages of social relations, whichmay have existed. If, for instance, a community had variousnorms through which it dealt with questions of the controlover natural or cultural resources, these cannot coexist witha property claim. The introduction of property transformsdiverse practices by rendering them illegitimate or erasingthem from the official memory of the community.When John Locke theorized the state of nature, one of themost important insights that he drew on was the idea thatthe state of nature lacked a regime of private property.And it was this lack of private property, for Locke that resultedin the unpredictable nature of life since there was no rule oflaw, which regulated society. It is important to note thatLocke’s state of nature was not merely an imaginary one.While writing about the state of nature, he really had in mindpractices of indigenous and aboriginal people in Belize andGuyana. Under English common law, land that was alreadyoccupied or in possession of another could not simply betaken by force. But Locke helped redefine the concept ofproperty ownership to overcome the legal bars toappropriation of land in the possession of the Aboriginalsand to facilitate the colonial purpose of theEuropean settlers.3. Evans-Pritchard, “Introduction” in The Gift, Marcel Mauss, Norton Library: New York, 1967, p. vii.70

PART III / CHAPTER 7BIO-CULTURAL JURISPRUDENCELocke also remains one of the exemplar philosophers ofthe 17 th and 18 th century, a period in which many of our ideasof selfhood emerges. In many ways, the question of personalidentity was the primary question that motivated Locke’senquiry…While the question of personal identity troubledmany philosophers even before Locke, it was only with thepublication of Locke’s Two Treatises on Government andEssay Concerning Human Understanding that you havethe establishment of the most coherent argument linkingtheories of identity to property. If property is both anextension and a pre requisite of personality then we should beaware of the possibility that different modes of property maybe seen as generally encouraging different modesof personality. 4Mauss in his work when analyzing the giving of gifts intraditional societies was emphasizing their inalienabilityfrom the giver. The gift can therefore never become acommodity that is separate from the person who gives it, butrather the very act of giving creates a social bond with anobligation to reciprocate on the part of the recipient.While property jurisprudence that underlies FPIC in contractlaw emphasizes the rights of the legal subject to alienate anobject that s/he owns, the nature of the gift in traditionalsocieties is an example of customary law where a gift is anaffirmation of a relationship that obliges reciprocation,the gift therefore can never become a commodity in the strictsense of the word since it is always tied to the giver throughthe obligations it creates in the receiver.Mauss by observing the culture of gifts amongst theMaori and in Polynesia established the very opposite ofcommodification that ‘the bond created between thingsis in fact a bond between persons, since the thing itself isa person or pertains to a person’. Hence it follows that togive something is to give a part of oneself. In this systemof ideas one gives away what is in reality a part of one’snature and substance, while to receive something is to receivea part of someone’s spiritual essence. 5Social, cultural andspiritual bonds that underlie gifts in traditional societies alsounderlie relationships bio-cultural communities have withtheir knowledge, lands, territories and resources, which arethe heart of their conservation and sustainable use practices.Therefore the right to FPIC in the context of Article 8(j) for itto truly affirm the way of life of bio-cultural communitieshas to underpin the right to consent in accordance withthe customary laws and values of these communities 63. Towards a Biocultural JurisprudenceThe trade route is the Songline’ said Flynn, ‘Because songs, notthings are the principle medium of exchange. Trading in “things”is the secondary consequence of trading in song’. Before thewhites came, he went on, no one in Australia was landless,since everyone inherited as his or her private property a stretchof the Ancestor’s song and the stretch of country over whichthe song passed. A man’s verses were his title deeds to territory.He could lend them to others. He could borrow other verses inreturn. The one thing he couldn’t do was sell of get rid of them.Bruce Chatwin, The SonglinesProperty jurisprudence when dealing with ILCs is estranged.This estrangement taints even the best-intentioned effortsof the different international environmental laws and policesthat attempt to secure the interests of ILCs. Estrangement inenvironmental law and policy is generally manifested inpaternalistic attempts at protecting the rights of ILCs, withoutaddressing the root of the matter, which is securing thefoundations that support a way of life i.e. self-determinationand customary law.It is possible that causes of legal estrangement are cognitive,due to certain habits of legal thinking that determine what isobserved and what is ignored when property jurisprudenceencounters ILCs. An effective counter to property jurisprudenceis a bio-cultural jurisprudence that takes as its starting pointthe right of bio-cultural communities to determine their wayof life in accordance with their customary and spiritual values.4. Lawrence Liang et al. ‘How Does an Asian Commons Mean?’ . See also Etienne Balibar, My self and My own: One and the Same? In Bill Maurer & Gabriele Schwab,Accelerating Possession: Global Futures of Property and Personhood, New York: Columbia University Press, 2006.5. Mauss, Marcel, The Gift: Forms and Functions of Exchange in Archaic Societies, Norton Library: New York, 1967, p.10.6. Hyde, Lewis, The Gift: Imagination and the Erotic Life of Property, Random House: New York, 1983.71

PART III / CHAPTER 7BIO-CULTURAL JURISPRUDENCEBio-cultural jurisprudence seeks to identify and name thosehabits and devices of property jurisprudence that underlieenvironmental law and policy that estranges it from ILCs andproposes alternative habits and devices that help toadequately take on board bio-cultural values in law making.The estrangement of property jurisprudence from bio-culturalcommunities is a result of it being unable to relate to thesecommunities with its current legal concepts and definitionsof ‘owner’ and ‘property’. These legal concepts of propertyprevent the law from seeing enough to relate to. If theopposite of being estranged is to find a people believable,then bio-cultural jurisprudence seeks to counter theestrangement of property jurisprudence by makingbio-cultural values believable not just by articulating them,but also by highlighting, historicizing and deconstructingthe values of property jurisprudence that are hithertotaken for granted. 7Traditional healers in Rajasthan who refer to themselvesas Gunis have a strict virtue code on sustainably harvestingmedicinal plants, caring for the land and not profitingfrom their TK but rather unconditionally serving those whoare ailing. In fact the Sanskrit term ‘guna’ means bothknowledge and virtue, and a guni is one who is bothknowledgeable and virtuous. The gunis on a number ofoccasions have stated that one cannot be a true healer withonly knowledge and no virtue, for the very efficacy of one’sknowledge depends on one being virtuous. The gunis havea saying that captures this sentiment clearly: ‘In the gunionly the guna/knowledge/virtue is worthy of respect,irrespective of the guni’s gender or age’. Traditional healers ofthe forest dwelling Malayali tribes of Tamil Nadu, beforeharvesting pray to the medicinal plant asking it permissionif they could harvest it and harvest it with their thumb andlittle finger to cause it as little harm as possible all the whilethanking it for its medicinal properties and praying that thelife within it stays strong after the harvest 8 They also collectthe seeds of the plant, which they harvest and plant themelsewhere so as to conserve the plant. 9Nature disconnected from the bio-cultural relationships thatunderlie it, is understood as property and this is presentedas a self-evident fact in property jurisprudence. Facts arediscourse dependent - they do not exist out there waiting tobe discovered by us but rather what we describe as facts arebased on our perception of the world. The dichotomybetween facts and values is illusory to the extent that ourvalues inform what we perceive as facts rather than the otherway round. 10Bio-cultural jurisprudence ultimately is anattempt to place the bio-cultural values of ILCs at the heartof environmental law making and therefore initiate aradical rethink of the ‘facts’ of property jurisprudence thatthe law takes for granted.4. Biocultural Commmunity Protocols asBio-cultural Jurisprudence in ActionILCs are increasingly reading their right to self-determinationand customary laws into existing and emerging environmentallaws and policies thereby actively creating bio-culturaljurisprudence. They do so by relying on the internationalhuman rights instruments such as the International Covenanton Civil and Political Rights (ICCPR) and the InternationalCovenant on Economic, Social and Cultural Rights (ICESCR).In both the ICCPR and the ICESCR, Article 1 states, “All peopleshave the right of self-determination. By virtue of that rightthey freely determine their political status and freely pursuetheir economic, social and cultural development.” 11While this right has been historically construed to apply toindividuals, both the U.N. Human Rights Committee - the U.N.7. Gearing, Fredrick O, The Face of the Fox, Sheffield Publishing Company: Wisconsin, 1970, pp 3-5.8. “Om mooli, maha mooli, jeeva mooli, un uver, un udalilinirka Swaha” This Tamil prayer recited before harvesting a medicinal plant is roughly translated as‘O great living plant, let your life not be harmed by this harvest’. The healers believe that a plant has the power to curse them if not harvested respectfully.9. Based on interviews with Gunis and the Malayali healers - interview transcripts with Natural Justice at www.naturaljustice.org.za10. Putnam, Hilary, Reason, Truth and History, cited in Margret Jane Radin “Market Inalienability”, 100 Harv.L.Rev.1849 (1987), p.1882-1883.11. The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations General Assembly on December 16, 1966, and entered into forceon March 23, 1976, and ICESCR, The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the UN General Assembly onDecember 16, 1966, and entered into force on January 3, 1976.72

PART III / CHAPTER 7BIO-CULTURAL JURISPRUDENCEbody with the authority to interpret the ICCPR – and the UNCommittee on Economic, Social and Cultural Rights haveheld that to the extent that an indigenous group constitutesa “people,” it does have the collective right toself-determination. 12 Article 3 of the Declaration of the Rightsof Indigenous Peoples (UNDRIP) reinforces this view with itsassertion that “[i]ndigenous peoples have the right to selfdetermination.”13Article 3 of UNDRIP further states that by virtue of the rightto self-determination, indigenous peoples “freely determinetheir political status and freely pursue their economic, socialand cultural development,” while Article 4 adds that indigenouspeoples “have a right to autonomy of self government inmatters relating to internal affairs,” and Article 5 asserts thatindigenous peoples have the right to maintain and strengthentheir distinct political, legal, economic, social and culturalinstitutions.” 14 In 1984 the IV General Assembly of the WorldCouncil of Indigenous Peoples ratified the Declaration ofPrinciples of the World Council of Indigenous Peoples, thesecond principle of which declares, “All Indigenous Peopleshave the right to self-determination. By virtue of this rightthey can freely determine their political, economic, social,religious, and cultural development.” 15If the right to self-determination is going to have anysignificance, it must be accompanied by an expansion ofStates’ recognition of ILCs’ customary laws. In fact, the rightof ILCs to their customary legal systems is also recognized inthe system of international human rights. Article 8 of theInternational Labour Organization Convention No. 169concerning Indigenous and Tribal Peoples (ILO 169) specifiesthat in applying national laws and regulations to indigenouspeoples, “due regard shall be had to their customs or customarylaws.” 16 The UNDRIP expands on this with Article 34, whichasserts that indigenous peoples “have the right to promote,develop and maintain their institutional structures and theirdistinctive customs, spirituality, traditions, procedures, practicesand, in the cases where they exist, juridical systems or customs,in accordance with international human rights standards.” 17Of course, recognizing the importance of ILCs’ rights to selfdeterminationand to the recognition of their customary legalsystems to the protection of their way of life is not sufficientto ensure these rights are respected. As lawyer and authorBrendan Tobin notes:Legal pluralism cannot be envisaged as mere acceptance ofco-existence of legal regimes, with customary law applicableonly to indigenous peoples within their territories and inrelation to their own internal affairs. Rather it will requireincorporation directly or indirectly of principles, measures andmechanisms drawn from a customary law within nationaland international legal regimes for protection of TK.Achieving such an end makes it imperative that full andeffective participation of indigenous peoples is secured fromthe outset in the development, implementation, monitoringand enforcement of relevant law and policy. 18As the preceding chapters show, ILCs are through their BCPsalready doing what Tobin suggests. They are activelydeveloping bio-cultural jurisprudence by using their BCPs astools to read their bio-cultural values into environmental lawsand policy, thereby exercising control over the interpretationand implementation of such laws and policy. The BCP at itscore is a tool that ILCs have developed in an attempt to speakfor themselves from their value position rather than be spokenfor in laws that affect their cultures and their lands. Moreimportantly however, BCPs are just one manifestation of a bioculturaljurisprudence that seeks to stem the direct applicationof property jurisprudence into environmental law and policy.The growth of support for BCPs internationally and the highpossibility of the forthcoming IRABS providing legalrecognition to BCPs is a jurisprudential landmark. If the lawis a site of struggle where different interest groups lobbyfor space, then BCPs mark the emergence of ‘bio-culturaljurisprudence’ as a serious attempt at genuine legal pluralism.12. Merle Alexander, Preston Hardison, Mathias Ahren, et. al., “Study on Compliance in Relation to Customary Law of Indigenous and Local Communities, National Law,Across Jurisdictions, and International Law,” Consultancy Paper, p. 14.13. Declaration of the Rights of Indigenous Peoples, United Nations document A/61/L.67, adopted by vote of the United Nations General Assembly on September 13, 2007.14. UNDRIP, supra note 13.15. The Declaration of Principles of the World Council of Indigenous Peoples, ratified by the IV General Assembly of the World Council of Indigenous Peoples inPanama on September 23-30, 1984.16. International Labor Organization Convention No. 169 concerning Indigenous and Tribal Peoples (C169), adopted on June 27, 1989, by theInternational Labor Organization General Conference at its 26th session.17. Supra note 13.18. Brendan Tobin “Setting TK Protection to Rights: Placing Human Rights and Customary Law at the Centre of TK Governance,” draft article on file with author.73

APPENDIXThe meaning of the Raika Bio-cultural Protocolfor Livelihoods and Biodiversity ConservationIlse Köhler-Rollefson 1The Raika (or Rebari) are the largest group of pastoralists in WesternIndia and their roots can indirectly be traced back to Afghanistan.There is historical and folkloric evidence that the Rebari filtered intowhat is now Rajasthan and Gujarat in the turmoil and displacementthat accompanied the Muslim incursions to the Thar Desert in the periodfrom the 12th to the 17th centuries. The Maru Raika and Godwar Raikacurrently live across Rajasthan and several other groups live in Gujaratand across the border in the Tharparkar area of Pakistan. Especially inRajasthan, their identity is closed linked to the camel and they wereappointed by the Maharajahs of Bikaner, Jaisalmer and Jodhpur,and other kingdoms to take care of their camel breeding herds.This relationship lasted until India obtained Independence in 1947.Looking at the larger social context in which Raika society isembedded, it is evident that they have a medium positionin the caste-system - on a par with agricultural communities- and are not resource poor. As livestock is a self-replenishingresource they have always been able to generate cash byselling a few animals and because livestock can migrate towherever rain has fallen, they have many advantages overthe settled farming communities, at least as long as therewere ample common grazing lands available.Despite seemingly favourable factors, the Raika are commonlydescribed as the most backward community in Rajasthan andhave very low literacy levels, especially among women.Their general progress has been slow by comparison withsome of the untouchable castes, such as the Meghwal, whohave managed to get their people into ministerial positions,while the Raika do not have a single M.P. and only recentlytheir first representative became elected into the LegislativeAssembly of Rajasthan.1. Ilse Köhler-Rollefson, PhD, Projects Coordinator of League for Pastoral Peoples and Advisor to Lokhit Pashu-Palak Sanstan.74

APPENDIXTHE MEANING OF THE RAIKA BIO-CULTURAL PROTOCOLFOR LIVELIHOODS AND BIODIVERSITY CONSERVATIONA notable feature of the community is the deep split thatruns between its educated and non-educated members.On the one hand, Formal education has been inculcating asense of disdain for traditional knowledge and lifestyles intothe young people and political leaders appeal to herders to“stop running after the tails of their animals”. A group of welleducatedRaika in elevated positions in society has establishedan educational trust that coaches young Raika to preparethem for professional careers. These efforts are necessarybecause the increase in population precludes every youngRaika from becoming a pastoralist. Yet, the same group seesno merit in their pastoralist heritage and seems disinterestedin promoting and preserving the community’s historyand culture.On the hand, active herders and especially the elders (panches)are very opposed to calls to abandon their animals andusually do not provide proponents with any political support.The panches revel in their traditional customs and their formerglory as independent herders; and are also are in charge ofsorting out community problems. While their decisions canbe considered wise, they often mete out punishments whichseem unwarranted to onlookers. For this reason, there is alsowidespread disgruntlement with these traditional institutionsand in some locations they have been dissolved bythe communities.The Raika usually list three reasons why livestock keepinghas become unattractive for them: loss of grazing areas,problems of animal diseases and lack of respect for their wayof life and traditions. The group of Raika which establishedthe bio-cultural community protocol (BCP) has especiallysuffered from the loss of their grazing rights in the KumbalgarhSanctuary which represents their traditional rainy seasonground and for which they had grazing privileges duringthe times of the Maharajahs. With the help of Lokhit Pashu-Palak Sansthan, they have engaged in an extended legal battleto resurrect their rights, a battle with many ups and downsand that has been fought both at the Rajasthan High Courtas well as at the Supreme Court in New-Delhi. The latestepisode relates to the “Forest Rights Act” whose adoption byparliament as law was hailed as a major step forward since itwas extended to include pastoralists after lobbying by theLIFE-Network. Unfortunately, there are powerful interests,including the wildlife lobby, against this Act and politicians,including some who purport to support the Raika and evenhail from the community, have been conniving to undermineand ignore the implementation of this legal framework.While the Raika currently have access to the KumbalgarhSanctuary, this is due to a silent agreement with local forestofficials and without solid legal basis. It is this uncertaintyabout their legal position and status that makes it risky forthe Raika to put focus solely on herding. It is also at thisjuncture where the process of establishing the BCP was ofenormous importance because it made the Raika aware ofthe rights that they actually have and because the writtenversion includes a summary of all relevant laws that can serveas a reference point for lawyers that they may hire.Another crucial aspect of the BCP is that is highlights theinternational and global value attached to the knowledgeand lifestyle of the Raika from the perspective of biodiversityconservation. It thereby sends a message to two groups ofpeople: the educated Raika who would like nothing betterthan to dissociate themselves from their heritage and historyand recast themselves as modern Indians. The second groupis government officials, especially technical ones from theDepartment of Animal Husbandry who have traditionallylooked down upon the Raika and their way of keeping animals.Despite the lure of the city, herding traditions are still strongand at the time of writing huge deras (groups of Raika goingon long distance migration with thousands of sheep, goatsand camels) are walking south on the new four-lane highwayto Udaipur in search for greener pastures. The Bio-culturalProtocol will support appreciation of this traditional wayof life as an astute response to drought and climate changerather than a colorful but otherwise quaint andoutdated phenomenon.A Raika woman and camel75

APPENDIXRaika Bio-culturalProtocolOVERVIEWThis protocol specifically:• Sets out our biocultural values and explains how we,the Raika, have developed and preserved unique breedsof livestock and traditional knowledge associated withthem, and how our pastoral lifestyle has developed theco-evolved ecosystem of Rajasthan’s forests which wehave traditionally conserved and sustainably used;• Details our customary decision making process involvedin providing free prior informed consent to any actionsthat relate to our grazing rights, animal genetic resourcesand associated traditional knowledge;• Illustrates the disastrous impacts that our exclusion frompreviously communal grazing areas and forests is havingon our lives, livestock, genetic resources, traditionalknowledge and the forest ecosystem itself;• Articulates our forest access rights and rights over ourgenetic resources and associated traditional knowledgeunder Indian law;• Calls upon the National Biodiversity Authority to:• Recognize our local breeds and associated traditionalknowledge as set out in the Raika Biodiversity Registerand to include it in the Peoples Biodiversity Register;• Facilitate the setting up of Biodiversity ManagementCommittees under the local bodies (Panchayats orMunicipalities) where we live and to support theseCommittees in ensuring the conservation and sustainableuse of our breed diversity and traditional knowledge;• Strengthen in situ conservation of breeds of the Raikaand include them in the BMC being initiated bythe government.• Advise the Central Government and coordinate theactivities of the State Biodiversity Boards to protect thecustomary grazing rights of the Raika so as to safeguardour traditional lifestyles that ensure the conservationand sustainable use of the our breed diversity, associatedtraditional knowledge and the local ecosystem;• Ensure that our prior informed consent (according tocustomary law) is obtained before any decision aretaken that affect our traditional way of life or access isgranted to our breed diversity and associated traditionalknowledge for research or for commercial purposes, andfurther ensure that we receive a fair and equitable shareof the benefits arising from the utilization of our breedsand traditional knowledge according to mutually agreedterms; and• Calls on the Secretariat of the UN Convention on BiologicalDiversity, specifically under Article 8(j) of the Convention,to recognize the contribution of our traditional lifestylesto the conservation and sustainable use of biologicaldiversity in Rajasthan; and calls on the UN Food andAgriculture Organization to recognize the importance ofour animal genetic resources and to recognize livestockkeepers’ rights.76

APPENDIXRAIKA BIO-CULTURAL PROTOCOLOUR BIOCULTURAL VALUESWhere we live:We are the Raika, an indigenous pastoral community wholive in Rajasthan, North West India. We number about 1mpeople, with the Maru Raika living across the State and theGodwad Raika living in Pali, Jalore and Sirohi.and way of life. We have always considered ourselves adistinct indigenous community, a fact that is recorded,for example, in the 1891 Marwar census undertaken onbehalf of the Maharaja of Jodhpur.Our traditional livelihoods:Despite the arid climate and the region’s dryland ecosystem,we have lived in the region for over 700 years rearing uniquelivestock and acting as custodians of the local environment.Our origins:At a spiritual level, we believe that we were created byLord Shiva. The camel was shaped by his wife, Parvati, andit was brought to life by Lord Shiva. But the camel’splayfulness caused a nuisance, so Lord Shiva created theRaika from his skin and sweat to take care of the camels.Our spiritual universe is linked to our livestock breeding,and our ethnicity is inextricably intertwined with our breedsWe are indigenous nomadic pastoralists who havedeveloped a variety of livestock breeds based on ourtraditional knowledge and have customarily grazed ourcamels, sheep, goats and cattle on communal lands and inforests. This means that our livelihoods and the survivalof our particular breeds are based on access to forests,gauchar (village communal grazing lands) and oran(sacred groves attached to temples). In turn, our animalshelp conserve the biodiversity of the local ecosystems inwhich they graze and we provide assistance to the area’slocal communities. In this way, we see our indigenouspastoralist culture as both using and benefitting from theforests, in a virtuous cycle.WE PRESERVE UNIQUE ANIMAL GENETIC RESOURCESAND HAVE ASSOCIATED TRADITIONAL KNOWLEDGEAnimal genetic resources:Through our interaction with the forests, gauchar andoran, and through selective breeding for generationswe have created breeds that are particularly hardy, ableto forage and digest rough vegetation, withstand the dryRajasthani environment and to walk long distances –all attributes that “high performance” exotic breeds donot have. Local breeds need fewer inputs and are lesssusceptible to disease and are well-suited toharsh conditions. The animal genetic diversity they embodyenables us to respond to changes in the natural environment,important attributes in the context of climate changeadaptation and food security. Their genetic traits and ourtraditional knowledge associated with them will also beof use in breeding for disease resistance, and mayprovide us with other diverse economic opportunitiesunder the forthcoming International Regime on Accessand Benefit Sharing or a future International Treaty on AnimalGenetic Resources for Food and Agriculture.Specifically, we maintain the following breeds that are morefully described in Appendix I:• Cattle: Nari and Kankrej;• Sheep: Boti (officially the Marwari) and Bhagli(officially the Sonadi);• Goat: Marwari and Sirohi;• Camels: Mewari, Marwari, Malvi; Bikaneri, Jaisalmeri.Many of our breeds are intrinsically migratory, and cannotbe stall bred. Just as our lifestyles are suited to theconditions they require to survive, these breeds aresuited to our biocultural realities.77

APPENDIXRAIKA BIO-CULTURAL PROTOCOLTraditional knowledge:Our traditional knowledge relating to breeds and breedinghas arisen from centuries of experience of tending theseparticular breeds in Rajasthan. We have traditional customsthat ensure the genetic diversity of our breeds, such as therotation of bulls between villages for stud. We have alsodeveloped extensive local treatment systems (ethnoveterinaryknowledge) with which to care for wounded orill animals, and much of this traditional knowledge isheld by both the men and women of our community.We share our ethno-veterinary knowledge freely withother communities that own livestock and are perhaps theonly veterinary care for livestock in remote areas ofrural Rajasthan.Women also take care of the newborn animals, makedecisions about the sale or transfer of our livestock and sellmilk. Our animal products are totally organic, attributes thatare highly desired in some parts of India. The wool of ouranimals is used for making carpets, rope and blankets andthey also provide draught.Spiritual understanding of our breeds:Our breeds are more than just a livelihood. They form anintegral part of our social fabric and are interwoven withspiritual meaning. A number of important holy days involverituals that involve our animals and underscore the sacredties between our livestock, the environment and ourtraditional knowledge.WE CONSERVE AND SUSTAINABLE USERAJASTHAN’S BIODIVERSITYWe are integral to Rajasthan’s forests, gauchar and oran.Our animals have contributed to the ecology of the regionto such an extent that they cannot be separated from the“natural” state of the forests, gauchar and oran.as well as by our camels that eat the twigs and leaves ofthe upper branches. Studies on our grazing patterns haveshown stronger tree growth in areas where our livestockhave traditionally grazed.As our animals graze, they provide manure to otherwiseinfertile ground. At the same time, the seeds in the manurehave a higher chance of germination, provide gestation andincrease the natural propagation of local trees. Because ouranimals consume the foliage on the ground, it helps tokeep termite numbers low. The feeding on ground fall andtall grass has also lowered the incidence of forest fires.For generations we, the Raika, have acted as custodians ofthe forest. We have always fought forest fires, dealt withinvasive species poisonous for animals (such as Angrezi Babuli.e. Prosopis juliflora and the Rukadi i.e. Lantana camara)and reported illegal logging and poaching. Our customarylaws ban practices that degrade the environment, includingthe lopping of sacred trees, and heavy punishments aremeted to community members who break the rules.Our grazing patterns are based on our traditional ecologicalknowledge and establish a strict rotation based on theseasons over a five year period. At the same we stimulatetree growth by our practice of lopping of selected trees,Our livestock has become integral to the animal diversity inforest areas. Predators such as leopards and wolves havetraditionally preyed on our livestock and we consider theresulting loss of livestock as a natural part of our integralrelationship with the ecosystem. Studies in the KumbhalgarhSanctuary have shown how the leopard population in theregion has been sustained by our livestock and the negativeimpacts caused by the exclusion of livestock from theSanctuary which include increased encroachment byleopards into villages leading to dangerous conflicts.We also provide services to the villages near our grazinglands and migratory routes. We provide manure to farmers,either by keeping our animals on their land on a temporarybasis, or by selling it to them directly. People from surroundingvillages use the forest for a variety of needs, includingcollecting dry wood, fodder, agricultural nutrient inputs,medicines, thatch and famine foods. Villagers consider us tobe their guardians in the forest, offering guidance andprotection to them in an otherwise dangerous area.78

APPENDIXRAIKA BIO-CULTURAL PROTOCOLMembers of our community use the forest for the collectionof medicinal plants that are used to provide free healthassistance to our community and to people in otherneighbouring villages.Just as our breeds are unique because of the areas we grazethem in, so the forests, gauchar and oran have evolved intoparticular kinds of pastoral based ecosystems because ofour long-term interaction with them. We are integral to theforests, gauchar and oran: we cannot survive without themand they will suffer without us.We want to continue to graze our animals in forests, gaucharand oran, in a way that sustains the natural plant and animalecology of these areas, maintains our diverse breeds,sustains our rich traditional knowledge.PRIOR INFORMED CONSENT & BENEFIT SHARINGOur animal genetic resources and our associated traditionalknowledge about breeding and ethno-veterinary practicesare collectively owned by the Raika.We have customary laws that regulate decisions makingin our communities. For issues that relate to all communitymembers, we form a samaj (community) panchayat thatis constituted by our elders who stretch from one totwenty four villages depending on the gravity andapplicability of the decision. Our elders who constitutethe community panchayat follow our customary laws andnorms of decision making that have been followedfor generations.Our community panchayat should be engaged any timeoutside interests take decisions that may affect ourlivelihoods or relate to our breeds and associatedtraditional knowledge. For example, before any of ouraccess rights to customary grazing areas are altered wemust be consulted. Also, where researchers or commercialinterests want to access our animal genetic resources and/ or associated traditional knowledge, we must be givenall relevant information with which to take a decision andgiven time to discuss the issues within the communitypanchayat as our breed diversity and traditional knowledgeare collectively held and their ownership does not vestin any single individual. In cases where we decide to grantaccess to our animal genetic resources or associatedtraditional knowledge, we have the right to negotiate abenefit sharing agreement that includes mutuallyagreed terms.WE ARE BEING EXCLUDED FROM CUSTOMARY GRAZINGAREAS WITHOUT OUR PRIOR INFORMED CONSENT -AND BIODIVERSITY IS BEING LOSTDespite this incredible genetic diversity and associatedtraditional knowledge that we have developed, we remainmainly landless people and are highly dependent on ourcustomary grazing rights over forest and communal lands.Traditionally we have grazed our animals in Rajasthan’sforests and in the gauchar and oran over the monsoon(July-September). Our exclusion from the forests,and shrinkage of gauchar and oran severely threatens ourentire existence and the co-evolved ecological systemof these biodiversity rich areas that have been developedthrough generations of complex interplay between livestock,livestock keepers and the local ecosystem.A. ForestsWe have customarily grazed our livestock on a seasonal basisin Rajasthan’s forests for centuries. The Kumbhalgah WildlifeSanctuary is a case in point. The Kumbhalgarh Wildlife Sanctuaryis a 562 square kilometre range of reserved forest under themanagement of the Rajasthan State Forest Department.79

APPENDIXRAIKA BIO-CULTURAL PROTOCOLWe have been historically provided with grazing permitswhich have over the last few years been revoked and allgrazing in the forest has been banned without due processby the Forest Department. We were neither consulted aboutthe decision, nor compensated in any way.We respect the need to conserve the KumbhalgarhSanctuary’s biodiversity. Better than anyone, we understandthe importance of the ecosystem because it is has sustainedour livestock and our communities just as we havecontributed to its conservation. Our exclusion from the foresthas deeply affected our livestock numbers and is having anegative effect on the forest ecosystem.B. Gauchar and oranWe have experienced the same fate regarding the shrinkageof gauchar (village communal grazing lands) and oran(sacred groves attached to temples). These areas havebecome increasingly diverted for other economicdevelopment projects. It is ironic that we - the very peoplewho for centuries have been the custodians of biodiversityand whose traditional lifestyles have developed andsustained the biodiversity of the region - are now beingdenied access to it based on a limited understanding ofthe complex relationship between us, our livestock andthe local ecosystem.C. The combined effect on our animalgenetic resources and on theregion’s biological diversityWe are deeply concerned about the impacts that ourexclusion from previously accessible communal areas forgrazing our livestock is having on areas’ biodiversity, ouranimal genetic resources and our future.Biodiversity: Our exclusion from forested areas is changingthe ecosystem and leading to a degraded ecology.The reduction in grazing is resulting in an excess of grassand foliage on the ground that is leading to an increase inthe prevalence and severity of forest fires. The pits that aredug to inhibit the spread of forest fires are proving to beineffective in combating this serious issue due to the drygrass that has begun to grow in these pits. The excessground fall is leading to disequilibrium in termite numbersthat can affect the health of the trees.At the same time, we are unable to act as custodians ofthe forest, so illegal logging, poaching and crimes are beingcommitted in areas that we once managed according toour customary laws. The continual work we undertook toeradicate harmful or invasive species has ceased, andwith it precipitous increases in plants that are either harmfulto animals or risk destabilizing the local ecology.The reduction in available prey for wild predators has led totheir encroaching on villages, causing conflict betweencommunities and the wildlife. At the same time, we areunable to assist members of other communities who needto access the forest, which is reducing the ability ofcommunities to benefit from the forests.Animal genetic resources: due to the significantly decreasedamount of grazing lands available to us, we have been forcedto sell significant numbers of our livestock over the last5 years. We are literally being forced to sell our livelihoodsto feed ourselves. Our camel stocks have been hardest hit,suffering a 50% decrease in the last 10 years, and this droprepresents a significant threat to the survival of the breed.With the sale of our livestock goes our traditional knowledge.As our herds diminish, so does the transmission of breedingtechniques, medicinal practices and ecological understandingof the areas we used to graze on. The potential loss ofthe important animal genetic resources that we havedeveloped, in co-evolution with the Rajasthani ecologyis significant for a world that is suffering from climatechange and food shortages.Our future: the continuing exclusion from areas for grazingraises serious doubts about the viability of our way of life.With it will disappear our livestock, our culture and thevirtuous relationship between our herds and the Rajasthanilandscapes we have sustained. We require grazing rights anda corresponding increase in the market for our products tocontinue to sustain our livelihoods and keep our uniquebreeds, including the camel.Our children no longer want to carry on our traditional wayof life because of the hardships associated with the lack ofgrazing but at the same time are returning frustratedfrom low paying jobs in cities where they went as unskilledlabourers. We are caught in a no man’s land of being unableto carry on their traditional occupations and unwilling tosuffer the indignities of life as unskilled labourers.80

APPENDIXRAIKA BIO-CULTURAL PROTOCOLOUR RIGHTS UNDER INDIAN LAWS & POLICIESA. The Biological Diversity Act of 2002 andthe Biological Diversity Rules of 2004The Biological Diversity Act of 2002 in its efforts to fulfil India'scommitments under the Convention on Biological Diversityprovides for the conservation of biological diversity,sustainable use of its components and the fair and equitablesharing of benefits arising from the use of such biologicaldiversity and associated traditional knowledge (TK).The Biological Diversity Act sets up the National BiodiversityAuthority (NBA) and the Biological Diversity Rules of 2004lists the functions of the NBA as including regulatingaccess to biological resources and associated TK forcommercial and research purposes. The NBA is alsoempowered to advise the Central Government on anymatter relating to the conservation and sustainable useof biodiversity and associated TK and the fair and equitablesharing of benefits arising from the utilization of biologicalresources and associated TK. The Biological Diversity Actamong other things requires the Central Government underSection 36 to promote the conservation and sustainable useof biological diversity through in situ conservation andminimize the adverse effects on biological diversity of anyproject undertaken through environmental impactassessments that includes public participation. The CentralGovernment is tasked with ensuring respect and protectionof associated TK of local communities in accordance withthe recommendations of the NBA including registration ofTK and other sui generis methods for its protection.Under Sec 38 the Central Government is also required topreserve and protect those species that are on theverge of extinction.In order to ensure the effective fulfilment of the role of theNBA at a local level, local bodies such as the Panchayats orMunicipalities are required under Sec 41 to set up BiodiversityManagement Committees (BMCs) to promote conservationand sustainable use and documentation of biological diversityand associated TK. The NBA and the State Biodiversity Boardswould consult with the BMCs while taking any decisionrelating to the use of biological resources and associated TKwithin the territorial jurisdiction of the BMC. Under Rule 22(6) of the Biological Diversity Rules of 2004 the main functionof the BMC is to prepare a Peoples Biodiversity Register inconsultation with the local people which shall containcomprehensive information on availability and knowledgeof local biological resources and their associated TK.The Biological Diversity Act under Sec 21 envisages that theNBA will base its approval regarding any application foraccess to biological resources or associated TK on the whethera mutually agreed terms and fair and equitable benefitsharing has been negotiated with the local community thatprovides such resource or associated TK (benefit claimersaccording to Sec 2 (a) of the Biological Diversity Act).The local community or benefit claimers in question will beidentified according to the Peoples Biodiversity Registerunder the territorial jurisdiction of the local BMC.The Biological Diversity Act and Rules therefore providescertain rights to the Raika community:• The right to consultation and public participation priorto any project that may affect the livelihoods of Raika,their animal breeds and associated TK;• The right to conservation and sustainable use of ouranimal breeds;• The right to give prior informed consent and negotiatemutually agreed terms when any Raika animal geneticresources or associated TK is accessed and share fairlyand equitable in any benefits arising from the utilizationof their animal genetic resources and associated TK;• The right to a Peoples Biodiversity Register that willdocument Raika biological diversity and associated TK;• The right to a BMC to advise the NBA on how the Raikabiological resources and associated TK can be conservedand sustainably used; and• The right to carry on the Raika traditional lifestyles whichinvolves continued access to grazing lands in order toconserve the biological diversity of our breedsand associated TK.81

APPENDIXRAIKA BIO-CULTURAL PROTOCOLB. The Scheduled Tribes and otherTraditional Forest Dwellers (Recognitionof Forest Rights) Act, 2006The preamble of the Forest Rights Act in accordance withArt 8j of the Convention on Biological Diversity recognizesthat the forest dwelling scheduled tribes and other traditionalforest dwellers are integral to the survival of the forestecosystem. The Forest Act seeks to address the long terminsecurity of land tenure and of these communities andtherefore recognizes the rights of forest dwelling tribes andother traditional forest dwellers, which include nomadic orsettled pastoralists, on all forest lands.The Forest Rights Act therefore provides certain rightsto the Raika community:• The right of ownership, access to collect, use, and disposeof minor forest produce which has been traditionallycollected within or outside village boundaries (Section 3c)• Community right of use or entitlements including grazing(both settled or transhumant) and traditional seasonalresource access, of nomadic or pastoralistcommunities (Section 3d)• The rights in or over disputed lands under anynomenclature in any State where claims aredisputed (Section 3f )• The right to protect regenerate or conserve or manageany forestry resource which we have been traditionallyprotecting and conserving for sustainable use (Section 3i)• The right of access to biodiversity and community rightto intellectual property and TK related to biodiversityand traditional knowledge related to biodiversity andcultural diversity (Section 3k)• The right to traditional rights customarily enjoyed bythe Raika (Section 3l)We acknowledge the limitation of these rights under Section4 of the Act in cases where forests are designated as NationalParks or Sanctuaries, but point out that the processes setout under Section 4(2) – such as ascertaining whether otherreasonable options such as co-existence are not available -remain to be complied with.C. NATIONAL POLICY FOR FARMERSThe National Policy for Farmers (NPF – 2007) is an attemptto reorient agricultural policy to take a more holistic visionof agricultural production to include a focus on socioeconomicwellbeing. Animal genetic resources andpastoralists are among the areas it focuses on to achievein situ conservation according to the NBA.The NPF acknowledges livestock keepers’ inherent rightsto continue to use and develop their own breeding stockand breeding practices and calls on the government torecognize these rights, acknowledge livestock keepers’contribution to the national economy, and adapt its policiesand legal frameworks accordingly. As part of this effort,it underscores the need to document the local knowledgeof pastoral communities about animal conservation,maintenance and breeding.To achieve these aims, the NPF calls for:• Restoration of traditional grazing rights and campingrights in respect of forest areas and in those areasearmarked for grazing purpose in village common lands;• Formalizing entitlements (including issue of permanentgrazing cards) for traditional pastoralists/herdersmaintaining native animal breeds to enable free accessto notified or demarcated grazing sites andmigration routes;• Conservation and expansion on grazing land and drinkingwater sources for livestock;• Documentation of indigenous livestock breeds torecognize and protect the intellectual property rightsof the local communities / individuals conserving theselivestock breeds; and• Involved of pastoralists in all local natural resourcemanagement programs, including village forestcommittees and joint forest management.82

APPENDIXRAIKA BIO-CULTURAL PROTOCOLWE CALL ON THE NATIONAL BIODIVERSITY AUTHORITYWe call on the National Biodiversity Authority to:• Recognize our local breeds and associated traditionalknowledge as set out in the Raika Biodiversity Registerand to include it in the Peoples Biodiversity Register(under Rule 22(6) of the Biological Diversity Rules);• Facilitate the setting up of Biodiversity ManagementCommittees under the local bodies (Panchayats orMunicipalities) where we live and to support theseCommittees in ensuring the conservation and sustainableuse of our breed diversity and traditional knowledge(as per section 41 of the National Biodiversity Act);• Strengthen in situ conservation of breeds of the Raika andinclude them in the BMC being initiated by thegovernment (under sections 36 and 41 of the NationalBiodiversity Act).• Advise the Central Government and coordinate theactivities of the State Biodiversity Boards to protect thecustomary grazing rights of the Raika so as to safeguardour traditional lifestyles that ensure the conservation andsustainable use of the our breed diversity, associatedtraditional knowledge and the local ecosystem(under section 36 of the National Biodiversity Act).• Ensure that our prior informed consent (according tocustomary law) is obtained before any decision are takenthat affect our traditional way of life or access is grantedto our breed diversity and associated traditionalknowledge for research or for commercial purposes, andfurther ensure that we receive a fair and equitable shareof the benefits arising from the utilization of our breedsand traditional knowledge according to mutually agreedterms (under section 21 of the national biodiversity Act);WE COMMIT TO PROTECTING THEBIOLOGICAL DIVERSITY AND ASSOCIATEDTRADITIONAL KNOWLEDGEWe commit to protecting the biological diversity of theregion, our animal genetic resources and associatedtraditional knowledge, by:• Upholding our traditional roles as custodians of theforests and as sustainers of the co-evolved forestecosystem of the region;• Protecting the forest against fires by regulating the grassgrowth by grazing and by fighting forest fires whenthey break out;• Sustaining the predator population in the forest throughthe customary offering of some of our livestock as prey;• Continuing to increase forest growth through thecustomary manuring of the forest from the dung ofour livestock;• Ensuring strong tree growth by the customary pruningof the upper branches and twigs of trees by our camels;• Grazing the fallen leaves on the forest floor therebykeeping the termite population in check;• Combating illegal logging and poaching in the forest;• Continuing our traditional rotational or seasonal grazingthat facilitates forest growth;• Eliminating invasive species in the forest;• Promoting and sustaining the breed diversity ofour livestock; and• Preserving and practicing our traditional breeding andethno-veterinary knowledge and innovations, andsustainable management of forest resources relevantto the protection of the co-evolved forest ecosystemof the region.83

APPENDIXRAIKA BIO-CULTURAL PROTOCOLOUR RIGHTS UNDER INTERNATIONAL LAWWe the Raika in our biocultural community protocolidentify the following principles and rights based oninternational law, (that are further elaborated inAppendix II, namely:A. Principles• We are creators of breeds and custodians of their animalgenetic resources for food and agriculture;• The Raika and the sustainable use of traditional breedsare highly dependent on the conservation ofour ecosystem; and• Our traditional breeds represent collective property,products of local knowledge and our cultural expression.B. RightsWe have the right to:• Make breeding decisions and breed the breedsthey maintain.• Participate in policy formulation and implementationprocesses on animal genetic resources for foodand agriculture.• Receive appropriate training and capacity building andequal access to relevant services enabling and supportingus to raise livestock and to better process and marketour products.• Participate in the identification of research needs andresearch design with respect to our genetic resources,as is mandated by the principle of Prior Informed Consent.• Effectively access information on issues related to ourlocal breeds and livestock diversity.We call on the Secretariat of the UN Convention on BiologicalDiversity, specifically under Article 8(j) of the Convention,to recognize our contribution to the conservation andsustainable use of biological diversity in the Rajasthan’sforest ecosystem. We also call on the UN Food andAgriculture Organization to acknowledge the importanceof our animal genetic resources and to recognizelivestock keepers’ rights.Our contact detailsThe Raika Samaj Panchayatc/o Lokhit Pashu-Palak Sansthan, Butibagh, Rajpura,Via Sadri 306702, Distt. Pali, IndiaNOTE ABOUT THE PROCESSThis Biocultural Protocol was established and recorded bythe Raika community around Sadri (District Pali, Rajasthan,India) from 8-13 June 2009. It was facilitated by NaturalJustice, Lokhit Pashu-Palak Sansthan, and the League forPastoral Peoples and Endogenous Livestock Development.APPENDIX I: RAIKA BIODIVERSITY REGISTEROmitted. For more information contact LPPS.84

APPENDIXRAIKA BIO-CULTURAL PROTOCOLAPPENDIX II: OUR RIGHTS UNDER INTERNATIONAL LAWWe the Raika in this Raika Biocultural Community Protocolidentify the following principles and rights based oninternational law:Principle 1: The Raika are creators of breedsand custodians of their animal geneticresources for food and agriculture.Over the course of history, the Raika have managed andbred livestock, selected and used them, thus shaping themso they are well-adapted to our environment andits extremes. Keeping these breeds is a vital part of our cultureand livelihoods. Yet these breeds and our livelihoodsare under risk through loss of access to our traditionalgrazing lands. This has endangered our food security andour way of life. As recognised in the Global Plan of Actionfor Animal Genetic Resources and the Interlaken Declarationon Animal Genetic Resources, livestock keeping communitiesare thus the creators and custodians of the breeds that theymaintain. We have therefore earned certain custodianshiprights over these breeds, including the right to decide howothers use the genetic resources embodied in our breeds.Principle 1 is supported by:farmers since the origins of agriculture, and have co-evolvedwith economies, cultures, knowledge systems and societies.Unlike most wild biodiversity, domestic animal resourcesrequire continuous active human management, sensitiveto their unique nature”.Principle 2: The Raika and the sustainableuse of traditional breeds are dependent onthe conservation of our ecosystem.Our traditional breeds are developed through the interactionbetween our livestock, the Raika pastoralists and our naturalenvironment. This natural environment is conserved, interalia, through traditional practices of the Raika, and traditionalbreeds lose their specific characteristics once removed fromthis ecosystem. The Raika therefore have a right to accessour natural environment, so as to ensure the sustainable useand conservation of our breeds and the environment.Principle 2 is supported by:Article 8 of the Convention on Biological Diversity: “geneticresources should be conserved in the surroundings inwhich they have developed their distinct properties”.Point 9 of the Interlaken Declaration on Animal GeneticResources recognizes “that the genetic resources of animalspecies most critical to food security, sustainable livelihoodsand human well-being are the result of both natural selection,and directed selection by smallholders, farmers, pastoralistsand breeders, throughout the world, over generations”.Point 12 of the Interlaken Declaration on Animal GeneticResources recognizes “the enormous contribution that thelocal and indigenous communities and farmers, pastoralistsand animal breeders of all regions of the world have made,and will continue to make for the sustainable use,development and conservation of animal genetic resourcesfor food and agriculture”.Part I Point 10 of the Global Plan of Action for Animal GeneticResources: “all animal genetic resources for food andagriculture are the result of human intervention: they havebeen consciously selected and improved by pastoralists andArticle 10 (d) of the Convention on Biological Diversitydemands that “local populations are supported to developand implement remedial action in degraded areas wherebiological diversity has been reduce”.Chapter 15 (5) (g) of Agenda 21: requires States to“Take action where necessary for the conservation ofbiological diversity through the in situ conservation ofecosystems and natural habitats,… and the maintenanceand recovery of viable populations of species in theirnatural surroundings.Principle 22 of the Rio Declaration: “Indigenous people andtheir communities and other local communities have avital role in environmental management and developmentbecause of their knowledge and traditional practices.States should recognize and duly support their identity,culture and interests and enable their effective participationin the achievement of sustainable development”.85

APPENDIXRAIKA BIO-CULTURAL PROTOCOLPrinciple 3: Our traditional breeds representcollective property, products of local knowledgeand cultural expression of the Raika.While the Raika have collective custodianship rights overour breeds and the genetic traits of these breeds, it is crucialthat these rights are supported and promoted by thegovernment. Our government must therefore respect,preserve and maintain the knowledge, innovations andpractices of the Raika embodying lifestyles relevant forsustainable use and conservation of livestock diversity.Principle 3 is supported by:Article 8 (j) of the Convention on Biological Diversity:“Contracting parties shall…subject to national legislation,respect, preserve and maintain knowledge innovations andpractices of indigenous and local communities embodyingtraditional lifestyles relevant for the conservationand sustainable use of biological diversity…“Article 10 (c) of the Convention on Biological Diversity:“customary use of biological resources is protected andencouraged in accordance with traditional culturalpractices that are compatible with conservation andsustainable use requirements”...Chapter 15 (4) (g) of Agenda 21 calls on governments at theappropriate level “to recognize and foster the traditionalmethods and knowledge of indigenous people and theircommunities… relevant to the conservation of biologicaldiversity and the sustainable use of biological resources”.Chapter 15 (5) (e) of Agenda 21: Governments should“subject to national legislation, take action to respect,record, protect and promote the wider application of theknowledge, innovations and practices of indigenous and localcommunities embodying traditional lifestyles for theconservation of biological diversity and the sustainableuse of biological resources …” Based on these principlesarticulated and implicit in existing legal instruments andinternational agreements, the Raika who belong to a traditionallivestock keeping community and adhere to ecological principlesof animal production affirm the following rights:1. The Raika have the right to make breedingdecisions and breed the breeds they maintain.This right is supported by:Article 10 (c) of the Convention on Biological Diversity: obligesParties to “protect and encourage customary use of biologicalresources in accordance with traditional cultural practicesthat are compatible with conservation and sustainableuse requirements”.2. The Raika shall have the right toparticipate in policy formulation andimplementation processes on animalgenetic resources for food and agriculture.This right is supported by:Article 8 (j) of the Convention on Biological Diversity:obliges Parties to “promote the wider application of theknowledge, innovations and practices of indigenous andlocal communities with their approval and involvement”.Article 14(1) (a) of the Convention on Biological Diversity:obliges Parties to “introduce appropriate procedures requiringenvironmental impact assessment of its proposed projectsthat are likely to have significant adverse effects on biologicaldiversity with a view to avoiding or minimizing such effectsand where appropriate allow for public participation insuch procedures”.Article 3 (a) of the United Nations Convention onDesertification: compels Parties to “ensure that decisions onthe design and implementation of programmes to combatdesertification and/or mitigate the effects of drought aretaken with the participation of populations and localcommunities and that an enabling environment iscreated at higher levels to facilitate action at nationaland local levels”.Article 10(2) (f ) of the United Nations Convention onDesertification: obliges the “effective participation at thelocal, national and regional levels of non- governmentalorganizations and local populations, both women and men,particularly resource users, including farmers andpastoralistsand their representative organizations, inpolicy planning, decision-making, and implementationand review of national action programmes”.86

APPENDIXRAIKA BIO-CULTURAL PROTOCOL3. The Raika shall have the right toappropriate training and capacitybuilding and equal access to relevantservices enabling and supporting us toraise livestock and to better process andmarket our products.This right is supported by:Article 12 (a) of the Convention on Biological Diversity obligesParties to 'establish and maintain programmes for scientificand technical education and training in measures for theidentification, conservation and sustainable use of biologicaldiversity and its components'Article 11 of the Convention on Biological Diversity obligesParties to 'adopt economically and socially sound measuresthat act as incentives for the conservation and sustainableuse of components of biological diversity'4. The Raika shall have the right toparticipate in the identification of researchneeds and research design with respectto our genetic resources, as is mandatedby the principle of Prior Informed Consent.This right is supported by:Article 8 (j) of the Convention on Biological Diversity (seeabove) and Article 10 (d) which says Parties shall “supportlocal populations to develop and implement remedialaction in degraded areas where biological diversity hasbeen reduced”. Chapter 15(4) (g) of Agenda 21 requirestates to “Recognize and foster the traditional methodsand the knowledge of indigenous people and theircommunities … and ensure the opportunity for theparticipation of those groups in the economic andcommercial benefits derived from the use of suchtraditional methods and knowledge”.Article 19 (1) (e) of the United Nations Convention onDesertification obliges parties to promote capacity building“by adapting, where necessary, relevant environmentallysound technology and traditional methods of agricultureand pastoralism to modern socio-economic conditions”.Strategic Priority 6 of the Global Plan of Action for AnimalGenetic Resources requests governments to “Supportindigenous and local livestock systems of importance toanimal genetic resources, including through the removal offactors contributing to genetic erosion. Support may includethe provision of veterinary and extension services, deliveryof microcredit for women in rural areas, appropriate accessto natural resources and to the market, resolving land tenureissues, the recognition of cultural practices and values,and adding value to their specialist products.”5. The Raika shall have the right to effectivelyaccess information on issues related toour local breeds and livestock diversity.This right is supported by:Article 13 (a) of the Convention on Biological Diversity:obliges Parties to “Promote and encourage understandingof the importance of and the measures required for theconservation of biological diversity, as well as itspropagation through media, and the inclusion ofthese topics in educational programmes”.87

UNITED NATIONS ENVIRONMENT PROGRAMME (UNEP)Division of Environmental Law and Conventions (DELC).UN Complex at Gigiri, PO Box 30552 (00100), Nairobi, Kenyawww.unep.orgLAWYERS FOR COMMUNITIES AND THE ENVIRONMENTNatural Justice is a South Africa-based NGO facilitating the legalempowerment of indigenous peoples and local communities.Natural Justice takes its name from the legal principle that people should beinvolved in decisions that affect them. Accordingly, we assist communities toengage with legal frameworks to secure environmental and social justice.Mercantile Building, 63 Hout Street, Cape Town, 8001, South AfricaTel / fax: +27 21 426 1633 | email: scott@naturaljustice.org.zawww.naturaljustice.org.za