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.
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