Nagoya Protocol - Joint Submission on Substantive and Procedural Injustices

June 5, 2011

Mr. Ahmed Djoghlaf
Executive Secretary
Secretariat of the Convention on Biological Diversity
413, Saint Jacques Street, suite 800
Montreal QC H2Y 1N9

Dear Mr. Dhoghlaf,

Kindly find attached a copy of our Joint Submission entitled “Nagoya Protocol on Access and Benefit Sharing: Substantive and Procedural Injustices relating to Indigenous Peoples’ Human Rights”. The Submission currently has been endorsed by 73 organizations globally.

Many Indigenous peoples and their organizations have little opportunity to participate in international meetings, such as those relating to the Convention on Biological Diversity and Nagoya Protocol. Consistent with principles of fairness, democracy and respect for human rights, they have a right to have their voices heard through our joint document.

We request that:

i) the Joint Submission be included in the CBD website as an official document; and

ii) the substantive and procedural injustices elaborated in the Submission be fully addressed in a timely manner, consistent with the UN Declaration on the Rights of Indigenous Peoples and other international human rights law.


Paul Joffe, Legal Counsel
Grand Council of the Crees (Eeyou Istchee)

First meeting
Montreal, 6-10 June 2011

Nagoya Protocol on Access and Benefit Sharing: Substantive and Procedural Injustices relating to Indigenous Peoples’ Human Rights

Joint Submission of Grand Council of the Crees (Eeyou Istchee); Inuit Circumpolar Council; Gwich'in Council International; International Alliance of Indigenous and Tribal Peoples of Tropical Forests/Alianza Internacional de los Pueblos Indígenas y Tribales de los Bosques Tropicales: TARA-Ping Pu; International Indian Treaty Council (IITC); International Organization of Indigenous Resource Development (IOIRD); Assembly of First Nations; Inuit Tapiriit Kanatami; Union of British Columbia Indian Chiefs (UBCIC); First Nations Summit; Assembly of First Nations of Québec and Labrador/Assemblée des Premières Nations du Québec et du Labrador; Network of the Indigenous Peoples-Solomons (NIPS); Atlantic Policy Congress of First Nations Chiefs Secretariat; OGIEK WELFARE COUNCIL; Warã Instituto Indígena Brasileiro; Kus Kura S.C.; Unissons-nous pour la promotion des Batwa (UNIPROBA); Native Women’s Association of Canada; Papora Indigenous Development Association (PIDA); Makatao Indigenous Takao Council (MITC); Nunavut Tunngavik Inc.; Innu Council of Nitassinan; Khan Kaneej Aur ADHIKAR (Mines minerals & RIGHTS); Genetic Resources, Traditional Knowledge and Folklore International (GRTKF Int.); Caribbean Antilles Indigenous Peoples Caucus & The Diaspora (CAIPCD); Na Koa Ikaika KaLahui Hawaii; Taiwan Indigenous Plains Aborigines National Association (TIPANA); Consejo Regional Otomi del Alto Lerma; First Peoples Human Rights Coalition; National Association of Friendship Centres; Servicios del Pueblo Mixe; Treaty 4 Chiefs; Taiwan Indigenous Knowledge Action Network (TIKAN); Tewa Women United, USA; Ontario Federation of Indian Friendship Centres (OFIFC); Association of Taiwan Indigenous Cultures (ATIC); Maya Institute of Belize - U’kuxtal Masewal; ALDET CENTRE-SAINT LUCIA; Miaoli Pazeh Culture Association (MPCA); Hul’qumi’num Treaty Group; Haudenosaunee of Kanehsatake; Self-governing Administrative Mechanism of the Indigenous People (Bethechilokono) of Saint Lucia (SAM-BGC); BC Assembly of First Nations; Samson Cree Nation; Ermineskin Cree Nation; Montana Cree Nation; Louis Bull Cree Nation; Institut Culturel Tshakapesh; Nantou Kahabu Culture and Education Association (NKCEA); Kanien'kehá:ka Onkwawén:na Raotitiohkwa Language and Cultural Center; Indigenous Peoples Council on Biocolonialism; Innu Takuaikan Uashat Mak Mani-utenam; Chiefs of Ontario; Caney de Orocovis; United Confederation of Taino People (UCTP); Indigenous World Association; Maritime Aboriginal Peoples Council; Saint Lucia Commission On Human Rights (SLCHR); IKANAWTIKET Environmental Incorporated; Conseil des Innus d'Ekuanitshit; American Indian Law Alliance; Seventh Generation Fund for Indian Development; Indigenous Peoples Law and Policy (IPLP) Program - University of Arizona Rogers College of Law; First Peoples Worldwide; International Institute for Environment and Development (UK); Canadian Friends Service Committee (Quakers); Center for World Indigenous Studies; Hawai’i Institute for Human Rights; KAIROS: Canadian Ecumenical Justice Initiatives; Orissa Development Action Forum (ODAF); Odisha Adivasi Adhikar Abhijan (OAAA); Netherlands Centre for Indigenous Peoples (NCIV).

In light of the fundamental rights and related issues at stake, this Joint Statement is being shared with the UN Secretary-General, High Commissioner for Human Rights, Human Rights Council – Special procedures, treaty bodies, UN specialized agencies, special rappporteurs, UN Permanent Forum on Indigenous Issues, Expert Mechanism on the Rights of Indigenous Peoples, UN Independent expert in the field of cultural rights, UN Framework Convention on Climate Change (Secretariat) and World Intellectual Property Organization. Regional organizations include: African Commission on Human and Peoples’ Rights, Organization of American States, ASEAN Intergovernmental Commission for Human Rights (AICHR), European Council, European Parliament and European Union. It is also being shared with Indigenous peoples and civil society organizations in different regions of the world.


Executive Summary

This Joint Submission examines the Nagoya Protocol on access and benefit sharing arising from the use of genetic resources. The new treaty was adopted in October 2010.

The central purpose of this Submission is to highlight substantive and procedural injustices in the Protocol, in relation to Indigenous peoples’ human rights. These injustices detract from the legitimacy or validity of the Protocol and, therefore, merit serious attention and redress.

The importance of achieving an effective international regime on access and benefit sharing is beyond question. In relation to Indigenous peoples, such a regime must include a principled framework that fully safeguards their human rights and respects their right to full and effective participation.

Indigenous peoples and local communities continue to face dispossession and “biopiracy” in relation to their lands and resources. In the context of the Protocol, biopiracy refers to the unauthorized commercial or other use by third parties of genetic resources and traditional knowledge without sharing the benefits.

Indigenous peoples have an essential role in safeguarding biodiversity that benefits humankind. By respecting and protecting their rights, biodiversity objectives are strengthened.

The new Protocol implements a central objective of the 1992 Convention on Biological Diversity. In regard to the objective of benefit sharing, the Convention requires that such sharing be “fair and equitable ... taking into account all rights”. States are required to exploit their own genetic resources “in accordance with the Charter of the United Nations and the principles of international law”.

These essential obligations were not respected or fulfilled in the Protocol, when addressing the rights of Indigenous peoples and local communities.

In regard to the Nagoya Protocol, substantive injustices include inter alia the following:

• Indigenous peoples’ human rights concerns were largely disregarded, contrary to the Parties’ obligations in the Charter of the United Nations, Convention and other international law;

• progressive international standards, such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) were not fully respected – despite the obligation in the Protocol that it be implemented “in a mutually supportive manner with other international instruments”;

• repeated use of ambiguous and questionable phrases, such as “subject to national legislation” and “in accordance with national legislation” is not consistent with the requirement that national legislation be supportive of the “fair and equitable” objective of benefit sharing;

• excessive reliance on national legislation is likely to lead to serious abuses, in light of the history of violations and the Protocol’s lack of a balanced framework;

• the phrase “indigenous and local communities” is used throughout the Protocol, even though “indigenous peoples” is the term now used for such peoples in the international human rights system. Such denial of status often leads to a denial of self-determination and other rights, which would be discriminatory;

• in regard to access and benefit sharing of genetic resources, only “established” rights – and not other rights based on customary use – appear to receive some protection under domestic legislation. Such kinds of distinctions have been held to be discriminatory by the Committee on the Elimination of Racial Discrimination;

• “established” rights might only refer to situations where a particular Indigenous people or local community can demonstrate that its right to genetic resources is affirmed by domestic legislation, agreement or judicial ruling. This would be a gross distortion of the original intent. Massive dispossessions could result globally from such an arbitrary approach inconsistent with the Convention;

• “prior and informed consent” of Indigenous peoples was included in the Protocol, along with questionable and ambiguous terms that some States are likely to use to circumvent the obligation of consent;

• lack of Parties’ commitment to ethical conduct is exemplified by the Tkarihwaié:ri Ethical Code of Conduct, adopted by the Conference of the Parties – which Code stipulates that it “should not be construed as altering or interpreting the obligations of Parties to the Convention ... or any other international instrument” or altering domestic laws and agreements.

In regard to the Nagoya Protocol, procedural injustices include inter alia the following:

• The procedural dimensions of Indigenous peoples’ right to “full and effective participation” were not respected during the negotiations of the Protocol and in its final text;

• in relation to the formulation and adoption of national legislation and other measures, the democratic requirement of “full and effective participation” of Indigenous peoples and local communities is virtually unaddressed;

• key provisions relating to UNDRIP and “established” rights to genetic resources were negotiated in closed meetings, where representatives of Indigenous peoples and local communities were explicitly excluded; and

• some States exploited the practice of seeking consensus among the Parties, with a view to diminishing or ignoring the rights of Indigenous peoples and local communities and applying the lowest common denominator among the Parties’ positions.

This Joint Submission makes specific recommendations for fair and equitable implementation of the Protocol, as well as possible revisions to its text. Discriminatory and unjust dimensions of the Protocol all require redress – with the full and effective participation of Indigenous peoples and local communities at all stages.

In relation to Indigenous peoples and local communities, the Protocol must be consistent with the principles of justice, democracy, equality, non-discrimination, respect for human rights and rule of law. The rights, security and well-being of present and future generations must be ensured.


UBCIC is a NGO in Special Consultative Status with the Economic and Social Council of the United Nations.