First, the limited scope, and low level, of the requirement for mandatory payments is unlikely to generate
significant funds. Unless the obligation for mandatory payments is expanded to include all commercialized
seeds, in manner that would match the Benefit Sharing Fund’s rhetoric, the funds available from this mechanism
are likely to remain negligible. Second, the absence of an efficient compliance mechanism for the Multilateral
System and the Standard Material Transfer Agreement means that the benefit-sharing requirements and the
restrictions for patents now stand on shaky ground (Chiarolla & Jungcurt, 2011). Third, the funds that are
currently available through the Benefit Sharing Fund largely consist of voluntary donations from a limited
number of sources and questions arise as to whether this largely represents the diversion of funds that have
been removed from other projects relating to agriculture and development or whether it is additional money.
Finally, if the funds available through the Benefit Sharing Fund are, at least in part, redirected money, this
raises questions as to whether the Benefit Sharing Fund or the previous mechanisms for the distribution of
these funds are the most relevant to indigenous and local community interests. The competitive proposal and
‘wise person’ review panel approaches used by the Benefit Sharing Fund create clear risks of structural bias
towards dominant patterns of institutionalized research in the system.
The CBD and the Nagoya Protocol
From its origins, the CBD has considered the nature of traditional knowledge and its relationship with
biodiversity through various decisions of the COP and, particularly, through the Ad Hoc Open- ended Working
Group on Article 8(j) and Related Provisions (WG-8j). Articles 8(j), 10(c) and the preamble of the CBD highlight
the interdependence between biodiversity, culture, traditional knowledge, and customary practices. Most
recently, the decision “Elements for sui generis systems for the protection of traditional knowledge” adopted
by the CBD COP-10 (CBD, 2011) states that the rights conferred to protect knowledge can include “rights to
all components of the biocultural heritage associated with the traditional knowledge — including rights over
the biodiversity, customary laws, cultural and spiritual values and lands and waters traditionally occupied or
used by indigenous and local communities.”
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The Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising
from their utilization to the Convention on Biological Diversity (Nagoya Protocol) was adopted in late 2010
in and is currently waiting for the depositing of the fifty instruments of ratification necessary for it to enter
into force (Nagoya Protocol, Art. 33). The Nagoya Protocol follows on from the Bonn Guidelines in seeking to
develop the implementation of Article 15 of the CBD, the third pillar of that Convention.
Indigenous peoples and local communities continue to face biopiracy; therefore, the importance of the
Protocol for ensuring appropriate access to their knowledge associated with genetic resources and benefit
sharing should be beyond question. However, in common with general concerns about the Protocol’s lack
of detail and overwhelming deference to the discretion of national governments, there is concern that the
Protocol does not provide adequate safeguards to ensure indigenous peoples’ human rights and their full and
effective participation, as reflected in and required by other instruments (Joint Submission by Grand Council
of the Crees et al., 2011).
The main features of the Protocol follow the established framework of access to genetic resources, including
provisions on prior informed consent, mutually agreed terms and equitable benefit sharing. These do generally
include explicit references to the need to accommodate indigenous and local community interests, but there
are very few guidelines, and no guarantees, on these references.
From an indigenous perspective, perhaps the most interesting element of the Nagoya Protocol is its treatment
of customary law in relation to traditional knowledge. This includes:
i) The general consideration of customary laws, protocols and procedures (Art 12.1).
ii) A requirement to establish mechanisms to inform users of TK about their obligations (Art. 12.2).
iii) Encouragement for support to indigenous and local communities to develop their own (Art. 12.3):
a. Community protocols in relation to access and benefit sharing.
b. Minimum requirements for mutually agreed terms.
c. Model contractual clauses for benefit sharing.
iv) A requirement to not restrict the customary use and exchange of genetic resources and associated TK
within and amongst ILCs (Art. 12.4).
Points ii) and iii) are further supported by awareness raising and capacity building commitments in articles
21 and 22. The lack of binding commitments, at least to minimum standards, in the treatment of traditional
knowledge is a matter for concern. The sometimes ambiguous nature of the relationship between traditional
knowledge and genetic resources, and the associated highly qualified references to community rights over
knowledge and genetic resources, are also a concern.
Protecting Community Rights over Traditional Knowledge: Implications of customary laws and practices