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to defend their rights and determine their
own destinies. Situating FPIC and
community protocols within the broader
research and development cycle, this
article emphasises the need to incorporate
participation at key stages throughout the
cycle. It stresses that the development of
community protocols should be grounded
in respect for local knowledge, since the
sidelining of local knowledge in favour of
standardisation induced by western
science will result in ABS regimes that are
extractive and unfair.
3. Whose access and whose benefit? The
Nagoya Protocol and customary rights in
India
Sagari R. Ramdas
This article discusses the limitations of the
Nagoya Protocol from the perspective of
communities in India. As it promotes
access to genetic resources for commercial
use, the Protocol is grounded in the
exclusive intellectual property rights
framework. Yet in the worldview of Adivasi
and pastoralist communities, natural and
genetic resources and traditional
knowledge form the basis of existence and
are sustained through collectivism and
spirituality for future generations, and
cannot be reduced to a commodity.
Although the provisions on prior informed
consent (PIC) and community protocols
provide space for communities to assert
their own worldview, they are subject to
domestic law. This is a severe limitation as
none of India’s ABS-related laws and
institutions require PIC or community
protocols. Instead, Adivasis and
pastoralists are using indigenous rights
laws to defend their customary rights.
4. The spirit of FPIC: lessons from
Canada and the Philippines
Abbi Buxton
The ‘spirit of FPIC’ is to enable
communities to have power over
decision-making, so that decisions reflect
their knowledge, values, practices and
norms. But how can this be put into
practice? Commercial companies often
look to governments and national
legislation to provide guidance and help.
The nature of the relationship between
government and local indigenous groups
and local communities then becomes
crucial. The case studies in this paper look
at this relationship in the context of largescale mining projects, reflecting on how
decision-making structures and processes
can be designed to enable real community
participation and influence and thereby
reflect the ‘spirit of FPIC’. The Philippines
case shows clearly that a legal right to
FPIC is not sufficient and can in fact have
negative impacts where the government
feels the need to engineer consent in
order to comply with the law. By contrast,
the creation of new bodies for
participation in Canada has seen a
process of empowerment of civil society
and local indigenous groups. To
implement the ‘spirit of FPIC’,
institutions need to be flexible and
recognise the importance of bottom-up
design of the structures, processes and
values for achieving FPIC.
5. Indigenous benefit-sharing in
resource development: the Australian
Native Title experience
David Ritter
This article describes the processes of
indigenous representation, negotiation
and agreement-making over mining and
development that is mandated under the
Australian Native Title Act (NTA) of 1993.
It evaluates the lessons and learning from
two decades of experience for similar
processes such as FPIC. The NTA
succeeded in giving indigenous people a
seat at the bargaining table when a
resource developer wanted to mine or
explore on land under claim. As a
consequence, indigenous communities
received large benefits and numerous sites
of traditional significance were probably
saved from destruction. However, the