BIO-CULTURAL COMMUNITY PROTOCOLS AS A COMMUNITY-BASED RESPONSE TO THE CBD PART I / CHAPTER 2 4.2 Users By setting out details of traditional leadership, values that underpin FPIC and other issues such as local research priorities, BCPs assist users to engage with communities on an ethical potential users of communities’ TK and GR are in a better basis. Business interests in the ABS negotiations have position to appraise whether the community they intend consistently underscored that whilst they support the principles on approaching is suitable for their particular needs. upon which ABS is founded, they find engaging with By detailing the community’s bio-cultural realities, users are traditional leadership and customary laws challenging and put on notice that the TK or GR they seek to access is draw a line between philanthropy and activities driven by the something that constitutes more than just a tradable triple bottom line. For them, uncertainty surrounds a range commodity and forms a part of the community’s very of issues involved in ABS negotiations, such as properly existence. Increasingly, ethical users should find this level of determining the holders of TK, what constitutes FPIC, clarity from ILCs to be a benefit as opposed to a bane. the uncodified nature of customary laws, and additional Moreover, meeting with empowered communities ensures a complicating factors such as trans-boundary resources. more level playing field for any subsequent negotiations While the policy instruments we set out in Chapter I such as and can contribute a heightened legal certainty to any the Bonn Guidelines provide users with guidance on how to subsequent access and benefit-sharing deals. As such, engage with communities, as we noted, they fail to empower BCPs build a bridge between users and providers of GR and ILCs to determine the terms of any negotiations. associated TK. 5. Re-evaluating Local Integrity and Good ABS Agreements In chapter I, we raise the issue of the importance of local At the start of this chapter, we touched on the subject of integrity; in this chapter, this point was brought to the forefront what constitutes a good ABS agreement. Just like the merits by the communities’ views provided above. We can discuss in of ABS, much has been said on this subject. Most answers abstract the pros and cons of an ABS regulatory framework, deal with specifics such as arguing that good ABS agreements but the only way to assess the real worth of ABS is by measuring are those with the following characteristics: communities its tangible impacts at the local level. Those most able to are involved in the research; communities harvest wild plants determine whether ABS might assist to preserve and maintain (along a bio-trade model) and perhaps engage at some level ILCs’ TK and promote the conservation and sustainable use of in the processing of the plants; the deals are with smaller biodiversity are ILCs themselves, according to their local needs. local companies as opposed to multinationals; and either no Once it is accepted that the IRABS and national ABS frameworks patents are taken over innovations based on the TK or the are not a panacea and have some very serious limitations patent is jointly owned, among other stipulations. We agree relating to the full implementation of Article 8(j), but will provide with many of the increasingly nuanced approaches to ABS bio-cultural communities with certain rights and can assist with and understand the importance of learning from past certain challenges, they will become more tangible from the agreements whose initial luster has faded. Though it is another community perspective. Empowered communities can then subject entirely, considered support to communities before, assess from their own contexts whether ABS offers them a during and after an ABS agreement is of utmost importance. means to tackle certain challenges they face and/or a way to However, put simply, we argue that a good ABS agreement is promote the management of certain elements of their TK. Based one that is negotiated by an empowered community according on our work, we argue that the development of BCPs empowers to its bio-cultural values and customary laws on FPIC relating communities to approach other stakeholders involved in ABS to the sharing of its TK or GR, and that the terms of the agreement on a more level playing field, and thus enables them to use the lead to tangible benefits to the community in line with Article legal framework towards their endogenous development plans 8(j). While BCPs are not a panacea, we feel that for many and according to their customary values. Similarly, it helps them communities, engaging with the process of developing a BCP to avoid entering into ABS deals that lead them further from will improve their ability to asses whether ABS offers tangible their bio-cultural ways of life as envisaged in Article 8(j). benefits and if so, to negotiate such agreements. 36

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