6. Conclusions
For decades, Indigenous Peoples have been calling for a holistic and more sensitive approach to their cultures;
one that values the protection and preservation of, and one that nurtures, their traditional knowledge systems
and biocultural diversity - an approach that does not privilege the economic considerations of third parties
at the expense of other priorities. In this debate, the role of Biocultural Systems – a concept inspired by the
interdependence between Indigenous Peoples and their environments – has become critical for the survival
of Indigenous cultures and essential in generating appropriate, effective responses to global change. Benefitsharing agreements involving biological resources and traditional knowledge, such as the one presented in
this case study, should be consistent with the concept of biocultural systems. This study, through participatory
methodologies, sought to provide a pioneering example in the development of a broader approach to access
to genetic resources that does not only include the benefits derived from external access to genetic resources
and traditional knowledge, but also those which come from community activities related to direct and indirect
use of biocultural resources.
Traditional Knowledge does not spring forth ex nihlo (ie. from nothing) but is one product of, and vital element
of, biocultural systems. To this end, strategies for the protection of traditional knowledge must simultaneously
focus on the preservation and propagation of the relationships, biocultural values, and customary laws which
accompany this knowledge. Strategies which do not pursue this aim are ultimately ineffective because they
fail to preserve the territorialities and livelihoods that generate traditional knowledge. As such, there is an
increasingly urgent need for Biocultural Protocols, such as the Inter-community Agreement, that are based in,
and strengthen, customary laws and practices.
18
Through research on traditional norms, it has been shown that there are longstanding customary laws for the
distribution of benefits among communities and their members. Additionally, in some cases, these laws have
been adapted to deal with specific situations arising from the use of elements of collective biocultural heritage
by third parties; these are now expressed in a concrete agreement that represents the vision and expectations
of the communities on these issues. Other methodologies do not provide a “bottom-up” approach that:
conserves biocultural resources; supports the rights of Indigenous Peoples; and that ensures that all heritage
elements of biocultural systems are protected. The revaluing of a holistic approach, based on the concept of
Biocultural Systems, gives rise to a model capable of confronting the obstacles that Indigenous Peoples face
to protect and deliver real, and appropriate benefits from the use of their resources.
The anchoring of Biocultural Protocols in both customary law and national and international formal frameworks
also links modern legal systems with their traditional and customary forebears in a positive manner – a kind
of legal pluralism, with similar advantages, including the reflection of mutual respect and the tendency to
promote equal treatment (and, by extension, empowerment). Further, Biocultural Protocols can be used in
mutually reinforcing frameworks with international treaties (such as the CBD, the International Treaty of the
FAO, ILO Convention 169, and the UN Declaration of Rights of Indigenous Peoples) in an integrated approach
to collective rights. Broadly, treaties promote Biocultural Protocols, while Biocultural Protocols, in turn,
provide pathways for the practical implementation of treaties per se. By providing a link to treaty processes,
Biocultural Protocols also have relevance for technical and policy issues within international treaties. In fact,
insofar as they articulate Indigenous experiences with treaty issues (including long histories of resistance to
treaty-mandated impositions), and reveal critical alternatives to mainstream approaches, Biocultural Protocols
are amongst the most important contributions Indigenous Peoples can make to technical, legal, academic
and policy-led discourses.12
In May 2011, the United Nations Secretary General highlighted the international relevance of the work of
the Potato Park by observing that: “In Peru, indigenous communities are responding to climate change by
re-introducing native varieties of potatoes. They have support from a United Nations-backed fund benefiting
poor farmers.13 Now they are helping conserve the earth’s biodiversity.” However, he went on to observe that
while “Ancient indigenous traditions can help overcome modern problems. The goal is not to appropriate your
knowledge, to extract it or exploit it, but to respect indigenous peoples and help preserve their traditions.”14
12 See, for example, Abrell, Elan, Kabir Bavikatte, Harry Jonas, Ilse Köhler-Rollefson, Barbara Lassen, Gary Martin, Olivier Rukundo,
Johanna von Braun and Peter Wood, Biocultural Community Protocols: A Community Approach to Ensuring the Integrity of Environmental
Law and Policy (Nairobi/CapeTown: UNEP/Natural Justice, 2009).
13 The Potato Park is the recipient of project support from the UN Plant Treaty Benefit-Sharing mechanism.
14 http://www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?statID=1185#
Protecting Community Rights over Traditional Knowledge: Implications of customary laws and practices