Fifth meeting of the Working Group on Access and Benefit-Sharing (ABS WG 5)
Fifth meeting of the Working Group on Article 8(j) and Related Provisions (Article 8(j) WG 5)
8 October – 19 October 2007 (Montreal, Canada)
Adapted from the Earth Negotiations Bulletin review
The fifth meeting of the ABS Working Group represented the first half of a single session that will be completed at the Working Group’s sixth session to be held from 21-25 January 2008 in Geneva, Switzerland. ABS WG 5 considered substantive elements of an international ABS regime including: access to genetic resources; fair and equitable sharing of benefits arising from their use; measures to support compliance with prior informed consent and mutually agreed terms; an internationally recognized certificate of origin/source/legal provenance of genetic resources; traditional knowledge and genetic resources in the context of ABS; capacity building; and indicators for ABS. ABS WG 5 adopted a report stating that the Co-Chairs’ notes on proposals made by delegates during the meeting will be circulated as information documents together with further submissions by parties and stakeholders prior to ABS WG 6.
Article 8(j) WG 5 adopted recommendations on: the UN Permanent Forum on Indigenous Issues; indicators for traditional knowledge (TK); the progress report on implementation of the Article 8(j) work programme; the composite report on the status and trends of TK; the TK action plan; elements for the development of sui generis systems for TK protection; and an ethical code of conduct. Delegates did not reach agreement on a recommendation on inputs by the Article 8(j) WG to the negotiation of an international ABS regime.
On TK and genetic resources…
Delegates stressed the need to define links between ABS and the protection of TK and to develop measures to prevent users from circumventing provider countries’ national access legislation. Some delegates called for measures to prevent biopiracy and for special protection for indigenous peoples rather than obliging them to prove misappropriation.
On the TK Action Plan…
Deliberations on a plan of action for the retention of TK measure,s and mechanisms to address the underlying causes for the decline of TK, focused on: TK databases; toolkits of measures and mechanisms to address the causes of TK decline; indigenous prior informed consent (PIC); interactions between conservation, sustainable use and TK; and reporting on measures to retain TK.
In the recommendation adopted, the Article 8(j) WG recommended that COP 9:
- note the advancement of the elements of the plan of action and decides that future work should focus on capacity building;
- urge parties and governments to develop toolkits of measures and mechanisms to address the underlying causes of TK decline, with the full and effective participation of indigenous and local communities, and report on experiences, emphasizing positive measures, through the national reporting process, the Clearing-House Mechanism and the TK information portal;
- invite the financial mechanism of the Convention and other donors to fund the development of national action plans; and
- invite parties and governments with the input of indigenous and local communities to report on positive measures for the retention of TK in areas relevant for the conservation and sustainable use of biodiversity such as those contained, but not limited, to an annex.
Mechanisms for participation…
Deliberations on mechanisms for participation included discussions on web-based, community-based and alternative forms of communication.
In its recommendation, the Article 8(j) WG recommended that the COP:
- welcome the convening of the Latin American and Caribbean Region capacity-building workshop;
- note the work of the International Indigenous Forum on Biodiversity (IIFB) and other organizations promoting understanding of the work of the CBD and indigenous participation;
- note the need for translation of notifications and other information resources into the six official UN languages;
- invite parties and others to donate to the voluntary trust fund for indigenous participation;
- encourage parties and others in collaboration with the Executive Secretary to develop alternative means of communicating public information on TK in community-friendly formats, while supporting the development by indigenous and local communities of their own media tools;
- request the Executive Secretary to: convene further regional workshops; develop electronic communication mechanisms; monitor the use of the CBD website and identify gaps and shortcomings; make available information on funding sources for information dissemination on TK; provide in a timely fashion meeting documentation in the six official UN languages in order to facilitate the consultation process with indigenous and local communities; and intensify efforts to promote the trust fund for indigenous participation; and
- reiterate its request to the Executive Secretary to strive to make documentation for meetings of the Article 8(j) and ABS WG available three months prior to the meeting.
Sui generis systems for TK protection…
Deliberations on sui generis systems for TK protection were based on the existing draft guidelines and focused on: modalities of future work; relevant work of WIPO and consistency with the WTO Agreement on Trade Related Aspects of Intellectual Rights (TRIPS); and wording of the draft recommendation in regard to PIC and mutually agreed terms (MAT), linkages between sui generis systems and work on ABS, and misappropriation.
In its recommendation, the Article 8(j) WG recommended that the COP:
- take into account the elements of the sui generis systems for TK protection and recognize that they provide useful elements to consider as parties develop sui generis systems for TK protection;
- invite parties and governments to consider the development of sui generis systems that are local, national and regional in nature, taking into consideration the relevant customary law of the indigenous and local communities concerned and ensure the fair and equitable benefit-sharing;
- invite parties and governments to share their experience in the development of sui generis systems and to submit to the Executive Secretary concise case studies that underpin the elements of sui generis systems. The reference to the effective implementation of PIC and MAT remains bracketed;
- request the Executive Secretary to make case studies available and update the draft guidelines for sui generis systems for TK protection for consideration at Article 8(j) WG 6; and
- note the clear linkage between effective sui generis systems and the implementation of ABS provisions and the need to halt the misuse and misappropriation of knowledge, innovation and practices of indigenous and local communities, as stated in Decision VII/16. This entire paragraph remains bracketed.
Ethical code of conduct…
The WG addressed the revised draft of elements of an ethical code of conduct to ensure respect for the cultural and intellectual heritage of indigenous and local communities.
In the resulting recommendation, the Article 8(j) WG recommended that COP 9:
- take note of the further revised draft elements of a code of ethical conduct as annexed to the recommendation;
- request parties, indigenous and local communities and others to submit written comments to the Executive Secretary on the revised draft elements, at least six months prior to Article 8(j) WG 6;
- request the Executive Secretary to transmit the present decision to UNPFII and seek collaboration in the development of the elements and to compile views and make a compilation available at least three months prior to Article 8(j) WG 6; and
- request the Article 8(j) WG to further develop the draft elements of a code of ethical conduct and submit them to COP 10 for consideration and possible adoption.
The recommendation also contained an annex comprising preambular paragraphs and four sections on: nature and scope, rationale, ethical principles, and methods. The ethical principles are divided into two sections, general ethical principles and specific considerations. The general ethical principles address: respect for existing settlements; intellectual property; non-discrimination; transparency; approval or free prior informed consent of the knowledge holders; respect; collective or individual ownership; fair and equitable sharing of benefits; protection; and the precautionary approach. Matters addressed under specific considerations include: recognition of sacred sites and culturally significant sites; recognition of land and waters traditionally occupied or used by indigenous and local communities; traditional resource rights; restitution and/or compensation and repatriation. All references to PIC, lands and waters traditionally occupied or used by indigenous and local communities and the precautionary approach remain bracketed along with a number of the options contained in the annex.
During consideration of TK indicators for assessing progress towards the 2010 target, debate centered on whether to adopt the indicator list as a basis for future work, or whether to restrict it.
In its recommendation, the Article 8(j) WG recommended that COP 9, inter alia:
- note the importance of both qualitative and quantitative indicators to provide a broad picture of status and trend of TK;
- recommend that a maximum of two additional indicators are included in the framework by the Article 8(j) WG 6 and take note of the proposed indicators contained in Annex I of the report of the International Experts Seminar on Indicators for Indigenous Peoples;
- invite parties, governments and relevant organizations, in consultation with and participation of, indigenous and local communities, to design and, as appropriate, test, indicators at the national level for status and trends of TK in order to assess progress towards the 2010 biodiversity target; and
- request Article 8(j) WG 6 to continue its work on the identification of a limited number of meaningful, practical and measurable indicators.
COP 9 will face a significant challenge in charting the course for the ABS process without causing collateral damage to other instruments and programmes essential for the achievement of the 2010 target. These two meetings have shown that the protection of traditional knowledge is one of those areas in which the linkages to ABS can create unexpected stumbling blocks.