Transcript Exploring BIODIVERSITY, AGRICULTURE and CLIMATE CHANGE

Exploring
BIODIVERSITY,
AGRICULTURE and CLIMATE
CHANGE
in NATIONAL LAWS
affecting
LOCAL COMMUNITIES AND
INDIGENOUS PEOPLES
Ambra Gobena, Esq
CONTEXT
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PROTECTION OF BIODIVERSITY
◦ Agriculture (farmers, fishing communities,
forest communities)
◦ Local communities
◦ Indigenous peoples
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IMPACT OF CLIMATE CHANGE
◦ Dependence on natural resources
 vulnerability to climate change impacts
◦ Adaptation strategies
 best placed to adapt to changing climate and impact
on natural resources
STATISTICS
80 percent of the world’s remaining
biodiversity is found in indigenous
peoples’ territories (Toledo, 2001)
 900 million poor in rural areas (FAO, 2009)
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◦ 720 million agriculture-related activities
 Approx 400 million/720million are IPs
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IPs are 5 percent of world population, and
15 percent of poor (World Bank 2003)
SOURCES OF OBLIGATIONS AT
INTERNATIONAL LEVEL
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HUMAN RIGHTS
◦ Conventions
 ICCPR article 27, rights of minorities
 ICCPR and the ICESCR article 1.1, self-determination
 ILO Conventions 107 and 169
◦ Declarations
 UN Declaration on the Rights of Indigenous Peoples
 Mataatua Declaration (1993), Atitlán Declaration (2000), Quito
Declaration (2000), Anchorage Declaration (2009)
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GENETIC RESOURCES
◦ Convention on Biological Diversity (CBD), Bonn Guidelines
◦ Treaty on Plant Genetic Resources for Food and Agriculture
◦ International Convention for the Protection of New Varieties
of Plants
◦ TRIPS
HUMAN RIGHTS, CLIMATE
CHANGE AND INDIGENOUS
PEOPLES
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EXISTING CHALLENGES
◦ Discrimination
 Political and economic marginalization
◦ Legal recognition
 Constitution
 Legislation specifically recognizing IP
rights, customary laws, etc
LEGISLATION AFFECTING
IPs and LCs
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Types of legislation relevant to a discussion of
vulnerability and adaptation potential of IPs and
LCs
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Climate change specific
Disaster-related legislation
Livestock, wildlife and hunting
Natural resources legislation
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Protected areas
Agricultural production
Fisheries
Water
Forestry
LEGISLATION AFFECTING
IPs and LCs
LAND, FORESTS AND PROTECTED AREAS
 Existing legal challenges and legal responses
(vulnerability of IPs)
◦ Land tenure
◦ Land demarcation
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Climate change responses – impact on IPs, LCs
◦ Land use
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Biofuels
Payments for Ecosystem Services (PES) schemes
REDD, REDD Plus
Protected Areas
 Conflicts? – customary law v statutory law
 Negative effects of small-scale agriculture of local communities in
forest areas
LAWS PROTECTING
TRADITIONAL KNOWLEDGE
Importance of traditional knowledge (TK) to
biodiversity and climate change
 Documentation and use of TK
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◦ Opens up door to use of TK without permission
◦ Vulnerability of LCs and IPs to biopiracy
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Positive protection v negative protection
Types of laws protecting TK
◦ Specific TK laws/ sui generis laws
 Common elements of sui generis systems for TK
◦ Plant genetic resources and biodiversity
◦ Intellectual property: patents, designs, TMs,
geographical indications
◦ Specialized indigenous peoples, local communities or
farmer’s rights laws
LAWS UNDER REVIEW
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Selection of countries
◦ Presence of IPs, geographic distribution, comprehensive
legislation governing TK
Brazil - Provisional Measure N° 2186-16 (2001)
OAU - Model Legislation for the Protection of the
Rights of Local Communities, Farmers and Breeders,
and for the Regulation of Access to Biological
Resources (2000)
Peru - Law N° 27811 (2002) Law introducing a
protection regime for the collective knowledge of
indigenous peoples derived from biological resources.
Philippines - Indigenous Peoples Rights Act (1997 )
India - Biological Diversity Act (2002); and Protection
of Plant Varieties and Farmer’s Rights Act (2001)
TK LEGISLATION IN PERU
Law N° 27811
◦ Scope and objectives
◦ Explicit protection of TK and rights of IP
◦ Collective nature of TK
◦ Registers
 3 types
 Protection against (and prevention of) patents granted
using TK
◦ PIC
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 Procedure
License Agreement
Benefit sharing
Institutional mechanisms
Recognition of customary law
Legal remedies
ADDITIONAL ASPECTS
FOUND IN OTHER LAWS
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FPIC CRITERIA
◦ What constitutes consent?
 100%? Majority? Reps? Recognition of customary law
institutions? Entrenchment of discrimination?
◦ Elements of FPIC
 Philippines IPRA (article 3(g))
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ACCESS TO TK
◦ Do CC adaptation and mitigation schemes fit in?
Should they?
 Brazil PM No.2186-16, article 7(v)
 India Biodiversity Act, article 5
ADDITIONAL ASPECTS
FOUND IN OTHER LAWS
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CONDITIONS OF PROTECTION
◦ Brazil PM No.2186-16 requirements in articles 7-9
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SPECIFIC RECOGNITION OF THE ROLE
OF WOMEN
◦ OAU Model Law, farmer’s rights and PIC
procedure (Preamble, objectives, articles 18 and 26)
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FARMERS RIGHTS
◦ OAU Model Law, article 26
◦ India PVPFRA, article 39
METHODOLOGY:
BASIC PRINCIPLES FOR
DRAFTING LEGISLATION
◦ International standards (CBD, UN Declaration etc)
 Compliance with legal obligations
 Benchmarks by which to assess legislation
◦ Participation of all stakeholders (IPs, LCs) during
policy and law-making (also mechanisms in the law)
◦ Best practice from other countries –elements
discussed earlier
◦ Application in a national context (taking into account
local socio-economic considerations, environmental
priorities, customary laws and protocols, feasibility of
implementation etc)
◦ Equality and non-discrimination - corrective
measures in laws and policies to remedy previous
discrimination