COMMUNITY PROTOCOLS IN THE NEGOTIATIONS OF THE INTERNATIONAL REGIME ON ACCESS AND BENEFIT SHARING PART I / CHAPTER 3 7 It was further emphasized that Article 8(j) as a standalone systems of protection. The Expert Report, like the African provision protects all traditional knowledge of indigenous Operational Text, stated that national laws of countries party and local communities within the mandate of the to the CBD should uphold BCPs as legitimate statements of Convention on Biological Diversity, including traditional the rights and wishes of ILCs. The Expert Report added that k n ow l e d g e a s s o c i a t e d w i t h g e n e t i c r e s o u r ce s. in situations in which TK is shared between ILCs or spread Furthermore, associated traditional knowledge does not across national boundaries or ILCs with different values, necessarily have to be associated with genetic resources, customary norms, laws, and understandings, countries should as it can also include the use of traditional knowledge encourage and support the development of BCPs in order to associated with biological resources. 6 The Expert Report also highlighted the importance of BCPs in regulating access to provide potential users of such associated TK with clear and transparent rules for acquiring FPIC. 8 TK of ILCs when there is no clear customary law and local 4. International Vilm Workshop on Matters Related to TK Associated with GR and the ABS Regime BCPs were affirmed at the July 2009 International Vilm support and facilitate local, national and/or regional Workshop on Matters Related to TK Associated with GR and community protocols regulating access to genetic resources 9 the ABS Regime , which was organised by the German Federal and associated traditional knowledge, taking into Ministry of Environment, Nature Conservation and Nuclear consideration the relevant customary laws and ecological Safety. The Workshop had invited ILC representatives to jointly values of indigenous peoples and local communities in order prepare for and provide input to Parties in the forthcoming to prevent the misappropriation of their associated TK. If an negotiations at WGABS 8 in Montreal in November 2009. agreement on access to genetic resources and/or traditional The ILC representatives under the head of “Measures to knowledge has been reached between an indigenous people Ensure that Access to TK Takes Place in Accordance with or a local community and a user, when applicable through an Community-level Procedures” proposed operative text for Indigenous Peoples’ Competent Authority and/or the use of the IRABS that requires States to facilitate the development community protocols, the existence of the agreement shall be of BCPs with the full and effective participation of bio-cultural registered with the competent national authority. 10 communities to prevent the misappropriation of their TK. They stated: Participants at the workshop debated the ILCs’ submission and despite questions relating to their exact operation and The legitimate indigenous or local authorities shall provide future standing under the IRABS, the concept garnered potential users of traditional knowledge with clear information broad support. on how to obtain FPIC (free, prior and informed consent) and negotiate MAT to traditional knowledge based on communitylevel procedures, customary laws and/or community protocols. Parties shall, with the full and effective participation of the indigenous peoples and local communities concerned, 6. UNEP/CBD/WG-ABS/8/2. 7. Ibid, para 35. 8. Ibid, para 60. 9. Workshop report forthcoming. 1 0 . For a copy of the submission contact Natural Justice (www.naturaljustice.org.za) 40

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