55 Whose access and whose benefit? The Nagoya Protocol and customary rights in India 3 by SAGARI R. RAMDAS Introduction Adivasis (the indigenous people of India) and peasants, pastoralists and fisherfolk need to defend their rights to the resources on which they depend (land, forests and water) in order to live and carry out their livelihoods with dignity. These communities have nurtured, shaped and conserved these resources, including their genetic diversity (crops, trees, livestock, poultry, micro-organisms). Their mutually sustaining, complex, multi-layered relationship with the living world is one based on custodianship and stewardship over the resources to be handed down to future generations. It sustains life, livelihoods and spirituality, sows the seeds for future generations, and is grounded in the moral and political economy of the rights of mother Earth. This relationship, in the worldview of indigenous and other local communities, cannot be reduced to a commodity to be traded or ‘accessed and benefited’ via monetary payment, as is implied by the recently agreed Nagoya Protocol to the Convention on Biodiversity (CBD). This article provides a critique of the Nagoya Protocol in the Indian context, concluding that it is unlikely that the Protocol’s provisions on prior informed consent (PIC) and community protocols will enable communities to protect their customary rights. It then explores how Adivasi and pastoralist communities have used other national laws and self-mobilisation to protect their biodiversity and intellectual rights and safeguard their access to genetic resources for livelihoods and ‘benefits’, as understood according to their worldview. The Nagoya Protocol in the Indian context The Nagoya Protocol elaborates Article 15 of the CBD that deals with access to genetic resources and benefit-sharing (ABS). ‘Access’ and ‘benefits’ in this case are grounded in an intellectual property rights (IPR) framework because they often involve the development and patenting of commercial products to generate benefits. IPRs include patents, geographical indications, trademarks, plant variety protection, copyrights and protection of undisclosed

Select target paragraph3