BIO-CULTURAL COMMUNITY PROTOCOLS AS A COMMUNITY-BASED RESPONSE TO THE CBD PART I / CHAPTER 2 diversity and ensure that TK is only shared with people who to forests if they are to continue their way of life, as every will use it responsibly. Although they do not have specific year they have to reduce their flocks of sheep and caravans laws to suit the new IRABS framework, they are able, with time of camels due to lack of grazing areas. The Bushbuckridge and information, to build on the existing ethical frameworks traditional healers require access to new areas to harvest to extrapolate and set out the values that should govern any medicinal plants if they are to continue to treat their potential access to TK and genetic resources. communities’ ailments. Yet none of them listed bio-piracy as a significant concern because the threat to their TK is not, Similarly, just as the IRABS poses new conceptual challenges prima facie, of paramount importance to them. about the values that should inform FPIC, it also raises issues for communities about the most appropriate governance To these communities, therefore, the IRABS has only limited level at which to deal with them. As we have illustrated above, potential to deal with their core challenges and to promote each community approached the issue in its own way, with Article 8(j) in their local contexts. As a mechanism, the IRABS the Samburu providing the most nuanced framework. They will be useful to empowered communities that are able to directly acknowledged that while some knowledge is localized, use it according to their values to assist them to manage their the issue of outsiders accessing a common resource such as TK. To most effectively implement Article 8(j), IRABS should their Red Maasai sheep would have implications for all Samburu, be considered by cohesive and empowered communities as meaning that governance of the issue must therefore be one of a number of different laws that provide them with elevated to the regional level. TK also transcends communities, rights from which they can draw depending on their endemic so processes that foster thinking about other holders of strengths, challenges and development plans. A BCP will assist common TK and instigate intra- and inter-community them to engage with the framework to maximize its local discussions become increasingly valuable. potential whilst shielding them from the exigencies of the market. Notably though, as a mechanism it will remain largely When a community is approached with a potential ABS deal, redundant to other ILCs whose knowledge, innovations and the terms of the negotiation may be set from the beginning practices are not of commercial value or whose challenges of by other parties, potentially skewing the way the community securing the bio-cultural foundations of their ways of life, such approaches it. Once a commercial framework is established, as the pastoralists referenced above, cannot be assuaged by ABS. it becomes more difficult for a community that has never considered these issues before to work through the conceptual As a rights framework, the IRABS makes a more significant and practical considerations it needs to properly appraise the contribution to all ILCs. By acknowledging the importance of access request and offer of benefits from a more bio-cultural ILCs’ knowledge, innovations and practices to the conservation perspective. The values that underpin any sharing of TK and and sustainable use of biodiversity, the IRABS assigns a broad the level at which they choose to do so highlight the critical set of rights to communities under Article 8(j) to continue need for communities to have the time and relevant their ways of life. By developing BCPs in which communities information to appraise IRABS from their perspectives, and to set out those aspects of their lives that fall within Article 8(j), consider it within the framework of their endogenous communities are claiming a broad spectrum of rights that are development plans. required to uphold that way of life, including rights to land tenure, manage their natural resources, have their customary Fourth, all communities pointed strongly to certain issues laws and practices respected, and manage their TK according that were either affecting or in some cases threatening their to their values. ways of life. Sustainability has roots in their spiritual understanding of nature and is ritualized in their cultural ILCs are deserving of the bio-cultural and legal empowerment practices, yet their ways of life are becoming increasingly necessary to draw on their values and current challenges to threatened by climate change, competition for land and understand their rights under a range of laws, including the over-harvesting, among other issues. The Samburu realized IRABS, and to set out a self-determined way forwards. Communities that as the Kenyan droughts continue, they need to increase are then better able to counter the tendencies of the law, as the numbers of their indigenous breeds, as the exotic breeds raised in Chapter I, to separate integrally linked aspects of are dying in droves. The Raika are now desperate for access communities’ lives such as TK from their culture and spirituality. 35

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