INDIGENOUS PARTICIPATION IN THE CONVENTION ON BIOLOGICAL DIVERSITY PROCESS

INDIGENOUS PARTICIPATION IN THE CONVENTION ON BIOLOGICAL DIVERSITY PROCESS IV INTERNATIONAL INDIGENOUS FORUM ON BIODIVERSITY (SEVILLA, SPAIN, 24 26 MARCH 2000) FIRST MEETING OF THE AD HOC OPEN ENDED INTERSESSIONAL WORKING GROUP ON ARTICLE 8J) AND RELATED PROVISIONS (SEVILLA, SPAIN, 27-31 MARCH 2000) V INTERNATIONAL INDIGENOUS FORUM ON BIODIVERSITY (NAIROBI, KENYA, 14-15 MAY 2000) FIFTH MEETING OF THE CONFERENCE OF THE PARTIES TO THE CONVENTION ON BIOLOGICAL DIVERSITY (NAIROBI, KENYA, 15-26 MAY 2000) EDITED BY PATRICIA BORRAZ (ALMÁCIGA GRUPO DE TRABAJO INTERCULTURAL) 1

Introduction D. Jesús Gracia Aldaz General Secretary of the Agencia Española de Cooperación Internacional (AECI) Foreword Patricia Borraz ALMACIGA Grupo de Trabajo Intercultural for WATU Acción Indígena Documents Seville 1. Short report on the IV International Indigenous Forum and Firts Meeting of the Ad Hoc Open- Ended Inter-Sessional Working Group on Article 8j) and Related Provisions by the Coordinating Body of Indigenous Organizations of the Amazon Basin (COICA). 2. Statement of the IV International Indigenous Forum on Biodiversity at the Inaugural Plenary Session of the Working Group. 3. Statement of the IV International Indigenous Forum on Biodiversity at the Closing Session of the Working Group. 4. Annexes to the Report of the Working Group (UNEP/CBD/COP/5/5). Nairobi 1. Statement of the V International Indigenous Forum on Biodiversity at the Inaugural Session of the Fifth Conference of the Parties (COP5). 2. Statement of the V International Indigenous Forum on Biodiversity at the Closing Session of the Fifth Conference of the Parties (COP 5). 3. Position Document of the V International Indigenous Forum for the Working Group on article 8j) and related provisions. 4. The Co-ordinating Body of Indigenous Organizations of the Amazon Basin s (COICA) Statement on Access to Genetic Resources and Benefit-Sharing. 5. Decision V/16 of the Fifth Conference of the Parties. 6. Decision V/26 of the Fifth Conference of the Parties. 2

INTRODUCTION The Spanish Co-operation is actively compromised in supporting Indigenous Peoples in their sustainable development processes, being respectful of those Peoples rights to define their own concept of development, to identify their needs and to establish their priorities, as well as to decide the way in which they want to inter relate with the society surrounding them, according to their own cultures and their expectations for the future. This also implies the support to these Peoples participation in the national and international decision-making mechanisms which can directly affect them. Two main reflections have led us to this standpoint: - First of all, the recognition of the role of Indigenous Peoples as guardians of the majority of the natural spaces in the Planet, who have developed management practices of their environment which have ensured the conservation of the biological and cultural diversity. - Second, but not less important, the consideration that Indigenous Peoples are the actors of a different development, arising from their distinctiveness from the dominant culture and the surrounding society. A development in diversity which, without ignoring the social changes derived from their own dynamics, means also a wide range of factors closely linked to the respect of human rights. In this sense, within the frame of the International Decade for the Indigenous Populations declared by the United Nations for the period 1995-2004, the Spanish Strategy for Co-operation with Indigenous Peoples was defined, being one of its two main guidelines the support of Indigenous participation in international fora. From 1996, Spain has supported the most important participation activities of Indigenous Peoples in the Convention on Biological Diversity process: the Workshop held in Madrid on Traditional Knowledge, in November, 1997 was a millstone in the process and the First Meeting of the Ad Hoc Open-Ended Working Group on article 8j) of the Convention, held in Seville by the end of March 2000, complies with Decision IV/9 of the IV Conference of the Parties (COP) held in Bratislava, (Slovakia, May 1998). Furthermore, with the valuable collaboration of the Spanish non-governmental organisation WATU Acción Indígena, the five meetings of the International Indigenous Forum on Biodiversity have been supported. They have been held from the III COP in Buenos Aires in 1996, prior to the official meetings. The contribution of the Spanish Co-operation to these fora has produced a new, probably avant-garde, way of support concerning co-operation with Indigenous Peoples. From the beginning, it has been based on a previous consensus on the Indigenous autonomy to organise the events and to chose their representatives among AECI, WATU Acción Indígena and the Indigenous representatives constituting the Co-ordinating Committee. The results achieved during this period allow us to consider that this formula fosters self-development and Indigenous participation and opens a new way of intercultural relationship. At the V Conference of the Parties, held in May 2000 in Nairobi, Kenya, the International Indigenous Forum on Biodiversity has been recognised as a consultant instance for the Conferences in future. This represents a decisive step forward in the development and just implementation of the Convention on Biological Diversity concerning Indigenous Peoples. Besides, other substantive aspects which have been relevant in the V COP have been: the consolidation of Working Group on article 8 (j) and related provisions of the Convention, the creation of a Working Group on access to genetic resources and benefitsharing, and the approval of the Programme of Work on traditional knowledge. 3

It must be underlined that this Programme of Work, initially formulated at the Madrid Workshop and further developed in the First Meeting of the Working Group in Seville, establishes that those activities needed to adequately insert Indigenous participation in all the dispositions of the Convention and to facilitate the information-sharing among Indigenous Peoples concerning traditional knowledge, should be undertaken within the first phase of the Programme of Work. Furthermore, the fundamental role of Indigenous women in the preservation, keeping and transmission to future generations of their Peoples traditional knowledge, has been recognised. Within the context of Nairobi V COP, Spain s role supporting a greater participation of Indigenous Peoples in the activities of the Convention has been widely acknowledged by many delegations, through consultations and interest on our points of view when defining their own standpoints. On their part, the representatives of Indigenous communities expressed their positive evaluation of the role played by the Spanish delegation, considering it as an adequate conveyor of their concerns and opinions in many occasions. Concerning the compromises acquired by Spain, as a country Party to the Convention on Biological Diversity, related with the Programme of Work approved by the V COP in Nairobi, we have already started to plan the necessary activities to fulfil them, taking into account not only the obligation to develop them as Parties to the CBD, but also considering the leading role our country has played in the support of the discussion and resolutions of the Conferences of the Parties concerning traditional knowledge. Besides, we have taken as a very useful reference the different programmes of the Spanish Co-operation framed within the subjects of the Convention on Biological Diversity. A first activity has already been developed during the last meeting of the UN annual Working Group on Indigenous Populations, held by the end of July 2000 in Geneva. The tripartite co-ordinating scheme worked again among the representatives of the Indigenous Co-ordinating Committee, WATU Acción Indígena and AECI, to develop a Workshop in which Indigenous leaders who were present in Nairobi could explain the results of the V COP of the Convention on Biological Diversity to Indigenous representatives who were not able to attend that relevant meeting. The materials and documents used at the Workshop in Geneva are a good account of the work done there, so it was deemed interesting to compile them in the present publication, thus contributing to their diffusion. This is one of the most consolidated work areas of the Spanish Strategy of Co-operation with Indigenous Peoples. So there are the best perspectives for the continuation of AECI s support to Indigenous Peoples within the context of the Convention on Biological Diversity. Jesús Gracia Aldaz General Secretary Spanish International Co-operation Agency (AECI) 4

FOREWORD This publication is a reflection of the results of Indigenous Peoples participation at the most recent meetings of the Parties to the Convention on Biological Diversity (CBD). The first was held in Seville, Spain in March 2000 (First Meeting of the Ad HocOpen-Ended Inter-Sessional Working Group on Article 8j and Related Provisions) and the second took place in Nairobi in May 2000 (Fifth Meeting of the Conference of the Parties-COP5). Indigenous Peoples participation is demonstrated in the consensus statements presented by the International Indigenous Forum on Biodiversity and in the decisions and final documents resulting from the Parties negotiations. The previous publications 1 of WATU compiled the results of the participation of Indigenous Peoples at the Workshop on Traditional Knowledge (Madrid, Spain, November 1997) and Fourth Meeting of the Conference of the Parties (Bratislava, Slovakia, May 1998). In this document inaugural and final statements of the International Indigenous Forum on Biodiversity in Seville and Nairobi; two documents by COICA (Co-ordinating Body of Indigenous Organisations of the Amazon Basin); a position document of the International Indigenous Forum on the Programme of Work from Nairobi, and related official CDB decisions (annex to the report of the Working Group and Resolutions V/16 and V/26 of the COP5) are presented. The main objective of this publication is to facilitate the circulation of information, targeting mainly Indigenous Peoples, their communities and organisations, so as to guarantee that greater numbers can access relevant documents, allowing them to track CBD developments. It also offers the Parties and international governmental and non governmental organisations the possibility of going through a documentation which, we hope, can help them understand better Indigenous Peoples points of view concerning the CBD, as well as their main concerns and proposals. The Working Group on Article 8j) and Related Provisions resulted from intense and effective lobbying efforts of Indigenous Peoples representatives which, after was unfortunately small due to lack of resources and information at the First and Second Conferences of the Parties but increased since the Third Conference of the Parties (Buenos Aires, Argentina, 1996) and their I International Indigenous Forum on Biodiversity. By then, the deep implications of the CBD for Indigenous Peoples rights and territories were quite obvious. The Convention, which is a contractual agreement among Parties based on the principle of the national sovereignty over biological resources, almost totally ignores the rights of Indigenous Peoples, including the principles of prior informed consent and their participation in implementation, despite the fact most biological diversity is be found within Indigenous Peoples territories (lands and waters). However, not only the biological resources are subject to the Convention. In Article 8j) of the CBD, Indigenous Peoples knowledge, practices and innovations, are asked to be respected, preserved and maintained by Parties and equitable sharing of the benefits arising from the use of such knowledge, practices and innovations is called for, although subject to their national legislation. Although Indigenous Peoples were not involved in the drafting and ratification of the Convention, they effectively participate in the meetings related to the CBD implementation. They were present at the COP2 but it has been since the Third Conference of the Parties when their presence has been impossible to ignore. This participation has been fostered and supported by the International Indigenous Fora on Biodiversity, which are open strategy meetings held prior to the official CBD meetings. The effective work by the Forum contribute to positive decisions taken by the Parties in considering Indigenous Peoples 1 (1999) Indigenous Peoples facing the new millennium, WATU/AECI, Madrid; Participation and prior informed consent of Indigenous Peoples in the implementation of the Convention on Biological Diversity, WATU,Madrid. 5

and specially in establishing a special Working Group on Article 8j) and Related Provisions (Decision IV/9 of the COP4). At the first Working Group meeting in Seville, a programme of work for the implementation of article 8j) and related provisions (based on the Report from the Workshop on Traditional Knowledge held in Madrid, Spain, in November 1997) was discussed, negotiated and approved. Through its different elements and tasks, it reflects basic needs that Indigenous Peoples have identified as important for further work, such as legal protection of traditional knowledge, the study of alternative systems to recognise and protect the Indigenous Peoples collective property of such knowledge, the need for greater participation in the implementation of the Convention by Indigenous Peoples, the need for an appropriate clearing house mechanism and access to information and documentation, prior informed consent and equitable benefit-sharing, the relevant role of Indigenous women, etc. These results were presented for discussion and adoption to the Fifth Conference of the Parties, held two months later. Indigenous participation at the sessions of the COP5 was of essential importance to achieve the continuation of the mandate of the Working Group, which constitutes an interesting space for the Indigenous participation within the process of the Convention, and to ensure that what the Parties did finally adopt concerning the Programme of Work approved in Seville, would include some of the Indigenous Peoples basic principles. Negotiations during the COP were hard. The Parties considered the Programme of Work too comprehensive and ambitious and they decided that, in order to effectively implement it, it was necessary to prioritise its elements and tasks. Thanks to the excellent work developed by the V International Indigenous Forum on Biodiversity, which held sessions for many hours before and during the COP, it was achieved both the continuation of the Working Group and to have prioritised the tasks which were priorities for the Indigenous representatives themselves. COP5 did also recognise the important contribution of the International Indigenous Forum on Biodiversity to the implementation of the Convention and a relevant role for it in future. The current situation to face future negotiations is sensibly better, from the point of view of Indigenous rights, than it was when the Convention was ratified without taking into account neither Indigenous Peoples nor local communities. This is especially important in a Convention so widely ratified and so comprehensive as the CBD. This presents the International Indigenous Forum on Biodiversity with new challenges. First, the Forum has to ensure that its historical demands are recognised. These include: the right to be considered as Peoples, territorial rights, the recognition of the collective character and rights to traditional knowledge and resources, the need for an appropriate legal protection of traditional knowledge and genetic resources before any bioprospecting arrangements are made, the right to deny access to their resources and knowledge, etc. Second, although Indigenous Peoples are not Parties to the CBD, The Forum needs to provide advice to parties and to the Working Group on the implementation of Article 8j) and related provisions. This implies the necessity of developing capacity to monitor work. The Forum will also have to ensure that Indigenous presence and participation are as wide as possible during the meetings of the Working Group on Article 8j) and related provisions. Many other areas of discussion in the COPs and CBD process need attention by Indigenous Peoples, especially because of the cross-cutting nature of traditional knowledge throughout the Convention, for example the new Working Group on Access and Benefit-Sharing. To develop this work, it is important the support of governmental and non governmental organisations compromised with the recognition of Indigenous Peoples rights. In the case of the Spanish Government, the Spanish International Co-operation Agency (AECI) has played an important role facilitating, through financial backing, Indigenous participation in the Fora, specially those held in Madrid and Seville. It has also hosted, along with other Spanish institutions, the Madrid Workshop and the Seville meeting of the Working Group on 8j). On the non-governmental side, WATU Acción Indígena has supported the Indigenous participation since the Third Conference of the Parties (COP 3) and, while WATU hopes to 6

continue this work, it calls upon other NGOs to realise and support the importance of Indigenous participation in the implementation of the CBD. Only with the full and effective participation of Indigenous Peoples can a truly just implementation of the Convention on Biological Diversity and the fulfilment of its objectives be ensured. Patricia Borraz WATU Acción Indígena 7

IV INTERNATIONAL INDIGENOUS FORUM ON BIODIVERSITY 24 26 March 2000 FIRST MEETING OF THE WORKING GROUP ON ARTICLE 8J) AND RELATED PROVISIONS 27 31 March 2000 Seville, Spain SHORT REPORT Background The Convention on Biological Diversity (CBD), which was developed without substantial participation of Indigenous Peoples, was presented for adoption during the Earth Summit held in Rio de Janeiro in 1992. The Convention does not recognise the fundamental rights of Indigenous Peoples, among others, the right to be recognised as Peoples and not only populations; the right to self-determination; rights to their lands and territories; collective right to their traditional knowledge and right to free and prior informed consent. Moreover, the Convention does not deal with biodiversity related questions in an holistic manner, but instead, it is fragmented into technical aspects, which emphasize the commercial value of Nature. The decisions on the implementation of the Convention are taken by the Contracting Parties (the governments which have ratified the Convention) and in this process, Parties are not obliged to take into account the interests and concerns of Indigenous Peoples. Because of these reasons, although we agree with the objectives of the Convention (conservation of biological diversity, sustainable use of its components and equitable sharing of the benefits arising from the use), Indigenous Peoples have not called for the implementation of the Convention but rather for the best way of establishing the principles for national and international implementation and for a full and effective participation in the whole process of the Convention. Since the Third Conference of the Parties (COP 3) held in Buenos Aires, Argentina, in November 1996, we have had important input and exerted strong lobbying pressure into the CBD process. There, we held a preparatory meeting before the COP, which was the I International Indigenous Forum on Biodiversity and we proposed the establishment, under the COP, of a Working Group to deal with the articles affecting Indigenous Peoples, such as: article 8, which deals with protected areas, sustainable use of biodiversity and traditional knowledge (article 8j); article 10c) (sustainable use of biodiversity components); article 12 (research and capacity building); article 14 (impact assessment and reduction of adverse impact of projects); article 15 (access to genetic resources); article 17 (benefit sharing), and many others. COP 3 did not accept our proposal although it was decided to hold a Workshop on Traditional Knowledge, which was celebrated in Madrid, Spain, in November 1997. In Madrid we also held our II International Indigenous Forum on Biodiversity, where we developed in detail our principles and concerns on the Convention article. The result of the Madrid Workshop was a consensus proposal in among the participating governments, Indigenous Peoples and local communities representatives, for the establishment of a Working Group on article 8j) and related provisions. During the COP 4 in Bratislava, Slovakia, where we held our III International Indigenous Forum on Biodiversity, the proposal of creating such working group was approved. The Working Group was established as an ad hoc group, with a very specific mandate and of limited duration (not permanent) to be revised by the next COP. It was agreed that the Group would be open to all the Contracting Parties and not only for some members to the Convention as happens in other instances. The group s mandate was to elaborate a Programme of Work for the implementation of article 8j) 8

(concerning the role of traditional knowledge in the conservation of biodiversity) and related provisions. The Working Group report was submitted to the COP 5 in Nairobi, Kenya, in May 2000. Before this first meeting of the Working Group, we held the IV Indigenous Forum on Biodiversity. IV International Indigenous Forum on Biodiversity The IV International Indigenous Forum on Biodiversity (IV IIFB) was held on 24 to 26 March, 2000 in Seville, Spain. The technical organisation was under the same co-ordinating group which had been established in Buenos Aires: Indigenous organizations COICA (Co-ordinating Body of Indigenous Organizations of the Amazon Basin), International Alliance of Tribal-Indigenous Peoples of the Tropical Forests, Napguana, Consejo de Todas las Tierras, Indigenous Knowledge Programme- Mesoamerica (IKP) and Abya Yala Fund. The Spanish NGO WATU Acción Indígena co-ordinated logistic matters and worked in the edition of a publication detailing the history of Indigenous participation in the Convention. The IV IIFB was funded by the Spanish International Co-operation Agency (AECI), which did also facilitate Indigenous participation at the Working Group sessions. The IV IIFB defined three items to focus on during the meeting of the Working Group on article 8j) and related provisions: - Indigenous Peoples principles, policies and proposals concerning the CBD process - Aspects related to Indigenous participation at the process. - Programme of Work on article 8j) and related provisions. Principles and policies were reflected in an statement presented by two representatives of the Forum at the Inaugural plenary session of the Working Group. The aspects concerning Indigenous participation were reflected in a document entitled Negotiation and lobby strategies. Unfortunately, the Indigenous representatives working on the Programme of Work did not produce a final document, although it was considered that the positions drafted in Madrid were still valid, as they are presented at that Workshop report (UNEP/CBD/COP/4/10/Add.1), especially its annex I (Final statement of the II International Indigenous Forum on Biodiversity) and annex (Proposal for a Programme of Work). Indigenous representatives did also held daily contact sessions during the Working Group meeting to discuss our strategies and the daily agenda items of the Working Group. Working Group on article 8j and related provisions. COP4 in Bratislava decided to establish the Working Group on article 8j) and related provisions. This is reflected in paragraph 1 of Decision IV/9 of the COP 4. This decision defines and breaks down the mandate of the Working Group into three tasks: 1. To provide advice as a priority on the application and development of legal and other appropriate forms of protection for the knowledge, innovations and practices of Indigenous and local communities. 2. To develop a programme of work based on the structures of the elements in the Madrid report (UNEP/CBD/COP/4/10/Add.1) appearing in the annex of decision IV/9. These elements are: a. Participatory mechanisms for Indigenous and local communities. b. Status and trends in relation to article 8j) and related provisions. c. Traditional cultural practices for conservation and sustainable use. d. Equitable sharing of benefits. e. Exchange and dissemination of information. f. Monitoring elements g. Legal elements 9

3. To provide the Conference of the Parties with advice related to the implementation of article 8j) and related provisions, in particular on the development and implementation of a programme of work at national and international levels. Working Group on article 8j) and related provisions (referred to as WG8j from now on, but keeping in mind that the Working Group is not only concerned with article 8j) but also with the rest of the articles related to Indigenous Peoples) convened in Seville, Spain, from 27 to 31 March, 2000 and considered those items of its mandate in the agenda, as well as international co-operation among Indigenous and local communities. Following the rules of procedures of the Convention, Juan Luis Muriel from Spain was elected the meeting s Chairman. He was also responsible for reporting on WG8j to the COP5. The proposal by Indigenous representatives to have an Indigenous Co-Chair for each of the two sub-working groups dealing with the different agenda items was accepted. The two Indigenous co-chairs were Antonio Jacanamijoy, of the Inga people of Colombia, from COICA for subgroup 1 and Aroha Mead, of the Maori people in Arotearoa, New Zealand, for subgroup 2. It was also agreed that the Indigenous representatives would constitute an advisory body to the Bureau (Friends of the Bureau). This advisory body also assisted in the drafting of the reports, proposals and decisions, although the final decisions on what was included or not in the final texts were taken by the Chair, the Bureau members and, informally, by the Secretariat of the CBD. An important procedure we agreed to was that the final report of the meeting was to be adopted by consensus, which means that an objection by one of the Contracting Parties to the Convention would be enough not to accept a change to the final text. In one instance, an objection made by an Indigenous representative was not taken into account, and the text was passed with the approval of all the Parties. Although the Chairman of the meeting did not give the Indigenous Forum representatives the chance to address the plenary during the inaugural programme, we had reasonable opportunities to speak and submit our ideas and proposals in the other plenary sessions and the sub groups sessions. But it must be stressed the it is the Secretariat to the Convention who decides in many cases what they consider relevant to be included in the official documents and in many instances distinct from the original principles of the submission. Among others, Parties did not consider it appropriate to include in the draft decision the principle of using the term Indigenous Peoples (and not only Indigenous populations or communities); nor the recognition of the rights to our lands and territories and the proposal for a moratorium on biopiracy. In the end, after much insistence, these three fundamental aspects were included in the narrative report of the final text but not among the final considerations and decisions. WG8j final report is divided into two parts: the narrative report, where the meeting itself is described, and Annex I, which included the decisions and recommendations to the COP5, and another Annex to it with the programme of work. Annex II is a tribute to the government of Spain for hosting the meeting. Decisions and recommendations going forward to COP 5 were divided into the three themes of the WG8j agenda: 1. legal elements appropriate for the protection of traditional knowledge 2. proposal of a programme of work, divided into priority and middle term (second phase of the programme of work) elements and tasks to be implemented 3. international co-operation among Indigenous and local communities. Key points and recommendations Some key points and recommendations for the Indigenous strategy during the COP 5, Nairobi, Kenya, 15-26 May 2000 are the following: Concerning the rules of procedure of the COP: 10

1. Take into account that the report of the Working Group on 8j) and related provisions is one of the few substantial items appearing separately on the COP 5 agenda. 2. Insist on the idea that the Madrid Workshop and the WG8j itself have established precedents for a more effective participation of Indigenous Peoples, therefore it is necessary to keep this in mind and refer to other processes within the UN where spaces for effective Indigenous participation exist. 3. Make a request to the COP Chair that the V International Indigenous Forum on Biodiversity be given an opportunity to present a statement at the Inaugural plenary session 4. Propose to the Chair of the COP to establish a friends of the chair or friends of the bureau and permit the Indigenous representatives participation in contact and drafting groups. On the points which will be probably be discussed with governments: 1. Our stance on the use of the term Indigenous Peoples and local communities 2. The main principles from an Indigenous point of view, among other the fundamental role we have had, have and will continue to have in the conservation of biodiversity; our holistic vision and cosmovision of biodiversity; the close relationship between the recognition of land and territories and biodiversity protection; the principle that traditional knowledge are collective and not subject to commercialisation; the principle of free prior informed consent; the lack of effective protection for traditional knowledge and our call for a moratorium on biopiracy. 3. Propose the extension of the Working Group s mandate for at least five years in order to deal with the work related with the implementation and monitoring of the programme of work on article 8j) and related provisions (made at the first intervention). 4. The proposal, at the same intervention, to secure financial assistance for Indigenous Peoples participation in the WG8j) and other intersessional processes under the Convention. 5. Ensure that Working Group on 8j takes into account not only article 8j but all the related provisions, which are all articles that impact on Indigenous Peoples and their knowledge. 6. The recognition that before a just implementation of article 8j and related provisions at local, national and international levels can occur, principles for implementation and the full and effective participation of Indigenous and local communities at all stages and levels of its implementation must be established and ensured. 7. The proposal that future WG8j) meetings always include on their agenda: - status and trends where Indigenous representatives make presentations of the current situation of the environment and biodiversity, including violations of Indigenous Peoples rights by governments or international organizations while implementing the Convention (not unlike the system in place at the annual July Working group on Indigenous Populations meetings in Geneva). - national and international monitoring of the Programme of Work. - co-ordination with other international processes and instruments, such as: the UN s permanent Forum of Indigenous Peoples, the UN Draft Declaration on the Rights of Indigenous Peoples, ILO Convention 169, World Intellectual Property Organization (WIPO), Commission on Sustainable development (CSD), the UN Conventions on Climate Change and Desertification, policy development of the World Bank and UNDP etc. 8. The assignment of appropriate UN and CDB bodies for the implementation of different elements and tasks of the Programme of Work (the assignment of appropriate CDB bodies to the Programme of Work was not fully discussed). 9. The further development of Indigenous participation in the: - CHM (Clearing-house Mechanism) - Liaison group with the Secretariat - Roster of experts COICA May, 2000. 11

FIRST MEETING OF THE WORKING GROUP ON ARTICLE 8J) AND RELATED PROVISIONS 27 31 march 2000 Seville, Spain Opening Statement by the IV International Indigenous Forum on Biodiversity Inaugural Plenary 27 march 2000 PREAMBLE Indigenous Peoples have a spiritual obligation to uphold the sacredness of life, as well as to uphold the integrity of the Earth. We are given life from the Earth. We relate to the Earth as our mother we understand that the role of our mother is a life-giving force that nurtures, protects and promotes life. The integral role and values Mother Earth has nurtured within us is that we are responsible for the assurance of life. These teachings entail the essence of our being, the core of our life and spirit of our peoples, which are not negotiable nor compromised. Exploitation of our traditional knowledge is to severe the umbilical cord between our mother and our peoples. If this cord is severed, it would threaten the survival and well-being of our future generations and bring an end to life. Mr. Chairperson, My name is Atencio Lopez and I am speaking on behalf of the IV International Indigenous Forum on Biodiversity held from 24 26 March 2000 in Seville, Spain. We take this opportunity to express our appreciation to the government and the people of Spain and the city of Seville particularly for hosting this Working Group, as well as to WATU Acción Indígena of Spain who has put many efforts into the logistical aspects of this forum. We congratulate the chairperson of this Working Group on his election and wish him much success in the work ahead of us. The International Indigenous Forum on Biodiversity is the forum that unites representatives of Indigenous organizations from all parts of the world. We had previously convened international Indigenous forums on biodiversity prior to the Third Conference of the Parties (COP 3) in Buenos Aires, Argentina, November 1996, the Workshop on Traditional Knowledge in Madrid, Spain, November 1997, and the Fourth Conference of the Parties (COP 4) in Bratislava, Slovak Republic, May 1998. The results of each of these Indigenous forums have been considered useful in the deliberations of the COP, and the current Working Group on article 8j) and related provisions is the result of the relation between ourselves and the Convention s process. Although we are now discussing specific articles of the Convention on Biological Diversity (CDB), we want to mention that this is a convention to which we, the Indigenous Peoples and local communities of the world, fundamental actors in the convention, are not part of. We mention that we are fundamental actors because ninety (90) percent of world s biodiversity has been conserved and developed in Indigenous territories, precisely because we are the ones who best know of the management of this diversity and who have the authority to take decisions regarding this biodiversity. Indigenous Peoples have not asked for the development of a convention on biodiversity, because for us, all the procedures that are used in spaces such as the United Nations, are very distant from Indigenous Peoples concepts and principles, and from the way in which we work, analyse and take decisions within our communities. Notwithstanding the proven importance of maintaining ethnic and cultural diversity, in many countries there has still not been recognition of Indigenous Peoples. We emphasize again that we are Indigenous Peoples and not just simply Indigenous groups or populations. The CBD process and its documents 12

should therefore take this concept into account. In those states as well as in the Convention on Biodiversity itself where this step has not been taken yet, it is necessary to move towards recognition of the existence and importance of Indigenous Peoples which also implies the recognition of the collective sovereignty over our lands and territories, the right to self-determination and the recognition of the right to choose our own priorities for development. Even though some states have ratified Convention 169 of the International Labour Organization (ILO) or other agreements related to Indigenous Peoples, there has not been a beneficial implementation of these. Mr. Chairperson: In the framework of the CBD and other related instruments, it is important to recognize our collective sovereignty over our Indigenous knowledge, science, technology, innovations and practices. This implies that the various Indigenous Peoples have a legitimate right to participate in decision-making processes related to access to our knowledge and our resources. We are here not only referring to free prior informed consent but also to the right to deny access to our knowledge, and to say NO to bioprospection, exploration, exploitation, or application of intellectual property rights when these procedures go against the principles and collective rights of our peoples. We are very concerned that our knowledge and even we ourselves are being used as research objects for reasons of bioprospection or biopiracy, which increasingly harms biodiversity and even human life. It is also necessary to return genetic resources and traditional knowledge of Indigenous Peoples and local communities from where they originated. Moreover, we require the application of the precautionary principle when Indigenous Peoples rights are at stake. Following this order of ideas, we think it is appropriate to express here that we do not agree with the application of intellectual property right regimes on different forms of life and associated traditional knowledge, under any circumstance. Likewise, we do not agree on an artificial distinction between tangible and intangible components in the case of genetic resources. It is also necessary to have a prior discussion on the fundamental principles of Indigenous Peoples before talking about equitable benefitsharing, as this could imply the acceptance of patent systems with which we do not agree. Mr. Chairperson, I thank you for this opportunity to address the plenary and would now like to share this opportunity with my Indigenous sister, Lucy Mulenkei. Mr. Chairperson: My name is Lucy Mulenkei and I also speak on behalf of the International Indigenous Forum on Biodiversity as well as for the Second Meeting on Indigenous Women and Biodiversity that was held on the 26 th of March 2000 during the Indigenous Forum. It is sad that the CBD has not yet recognized the role of Indigenous women s knowledge in the protection and maintenance of biodiversity. It was also stressed that Indigenous women have the right to control and use the biological diversity in our territories and to be included in decision-making processes at all levels, in accordance to the cultural principles of Indigenous Peoples. Again we have to make mention of the lack of space for participation of Indigenous Peoples and local communities in the CBD process. The application of the Convention in many of our territories continues to violate our rights and threaten our lives. This is something that the Parties need to consider. Not even the documents for the meetings are easily available. In our communities we do not have access to the Internet. The document UNEP/CBD/WG8J/1/INF/1 is not available in Spanish. We urge you, Mr. Chairperson, to maintain the spirit of the workshop of Madrid of full and open participation at all levels of the CBD, including in the bureau and contact groups, discussion and drafting committees. 13

On the seven elements of a program of work and other matters on the agenda, we have a number of observations that we will present to you during the rest of this day and during the week. We note with concern, Mr. Chairperson, that the documents of the Executive Secretary do not touch on the other provisions in the CBD related to Indigenous Peoples and local communities, whereas it has been expressly decided not to limit the scope of this Working Group to article 8j). Having said this, Mr. Chairperson, at this opportunity we would like to make a number of recommendations and proposals: 1. To continue the Working Group on article 8j) and related provisions, as a mechanism of contact between Indigenous Peoples and the CBD process, with a mandate to develop a more detailed work program and to monitor its implementation; however, with improved Indigenous participation in this Working Group. 2. To provide all the necessary logistical resources for our full and effective participation. We especially require simultaneous interpretation, as a minimum, in the official languages of the United Nations during all sessions of the Working Group and the sub-working groups. We think that this is just a minimal demand because the languages that Indigenous delegates speak best, are those of our respective peoples. 3. To establish an Indigenous clearing house mechanism under the CBD. 4. To maintain the liaison group between Indigenous Peoples and local communities and the Secretariat of the Convention, based however, on a composition according to the criteria of representation defined by the International Indigenous Forum. We will develop the terms of reference for this liaison group. 5. To appoint Indigenous co-chairs for the two sub-working groups. 6. To have Indigenous participation with voice and vote in all contact groups, drafting groups, discussion groups and decision-making bodies during all sessions of the Working Group. 7. To secure funding for the Working Group for its future sessions within the regular budget of the CBD. 8. To articulate the role of Indigenous women as an integral component at every stage of the CBD process and within every element of the program of work. 9. To urge the Working Group to consider in its future sessions in an integral way, the themes of traditional knowledge, legal regimes and other appropriate mechanisms for protection of traditional knowledge, intellectual property rights, human rights, customary rights, trade, tourism, protected areas, etc. Likewise, we need an integral approach to the process within the WTO, WIPO, and other bodies and instruments. Finally, Mr. Chairperson, we insist that the report of the Working Group meeting be adopted by consensus where the voice of the Indigenous caucus is taken into account. Also, as long as there are no mechanisms for effective and full protection of our rights, we will call for a moratorium on the illegitimate access and use of genetic resources and traditional knowledge. Thank you Mr. Chairperson. 14

FIRST MEETING OF THE WORKING GROUP ON ARTICLE 8J) AND RELATED PROVISIONS 27 31 march 2000 Seville, Spain Statement by the IV International Indigenous Forum on Biodiversity Closing Plenary 31 march 2000 Mr. Chair, Distinguished Participants of this Working Group: In name of the Indigenous Organisations participating in this Working Group, we would like to express our recognition for having improved the mechanisms of participation of the representatives of Indigenous Peoples in this first Working Group on Article 8 (j) and Related Provisions. We would like here to communicate some of the concerns of Indigenous representatives that are not reflected in the final documents of this first Working Group and that were discussed during the two subworking groups of this meeting. These concerns are priority issues for Indigenous Peoples throughout the world and we request that these be corrected and included in the final recommendations resulting from this Working Group, to be presented to the COP5 in May 2000 in Nairobi, Kenya. These concerns are the following: Mr. Chair: 1) We manifest that the International Indigenous Forum on Biodiversity, constituted since COP3 in Buenos Aires, is the contact group among Indigenous Peoples for dealing with aspects related to Biodiversity. 2) ILO Convention 169, a legally binding instrument recognized under international law, should be considered as the basis to guide the principles of Indigenous rights underlying discussions on Article 8 (j) and related provisions. 3) We demand the Parties to the CBD and all governments to use the expressions Indigenous Peoples and local communities as has been used in the Ramsar Convention, as well as in several international instruments and fora, as we have self-identified ourselves. 4) We require recognition of our rights to land and to our territories as a fundamental base, not only materially but spiritually, for the survival of our peoples, the conservation of biodiversity, and the protection of Indigenous knowledge. These elements sustain our identity and constitute our cultural patrimony with respect to our Mother Earth. Finally, we request the full participation of our Indigenous representatives throughout the entire meeting of COP5 to be held in Nairobi, and to this end, the provision of the necessary logistic and financial means (such as have been detailed in our opening statement to this meeting). Financing for our participation should be provided for under the regular budget of the Secretariat, as well as considering the possible establishment of a Voluntary Fund, taking into account as a possible model the current Voluntary Fund for Indigenous Populations of the United Nations, as guided by ECOSOC resolution 1995/32. We also ask that the Secretariat of the CBD provide all necessary information in the six official languages of the United Nations well ahead of the meeting, as well as throughout the discussion processes in order to guarantee the full and effective participation of all Indigenous delegates. 15

Notwithstanding these remarks, Mr. Chairperson, we express our great appreciation for the positive and constructive attitude and the co-operation of the Parties, Secretariat and Bureau, Governments, NGOs, and other participants in this meeting. We trust that this constructive attitude will be the basis for a continued partnership between Indigenous Peoples and local communities and the process under the Convention, characterised by our full and effective participation. Thank you, Mr. Chair. 16

FIRST MEETING OF THE WORKING GROUP ON ARTICLE 8J) AND RELATED PROVISIONS 27 31 march 2000 Seville, Spain Annex I RECOMMENDATIONS ADOPTED BY THE AD HOC OPEN-ENDED INTER-SESSIONAL WORKING GROUP ON ARTICLE 8j) AND RELATED PROVISIONS OF THE CONVENTION ON BIOLOGICAL DIVERSITY AT ITS FIRST MEETING 1/1. Application and development of legal and other appropriate forms of protection for the knowledge, innovations and practices of Indigenous and local communities The Ad Hoc Open-ended Inter-Sessional Working Group on Article 8j) and Related Provisions of the Convention on Biological Diversity recommends that the Conference of the Parties: 1. Emphasizes once again the need for case-studies developed in conjunction with Indigenous and local communities requested in paragraphs 10 (b) and 15 of its decision IV/9, to enable a meaningful assessment of the effectiveness of existing legal and other appropriate forms of protection for the knowledge, innovations and practises of Indigenous and local communities; 2. Requests the Executive Secretary to review activities relating to the knowledge, innovations and practices of Indigenous and local communities being undertaken by United Nations organizations and agencies and other relevant bodies, including Indigenous, local and regional organizations and activities, with a view to identifying areas of complementarities and synergy and mechanisms for promoting coordination and mutual supportiveness of activities aiming at implementing Article 8j) of the Convention; 3. Reaffirms the importance of making Article 8j) and related provisions of the Convention and provisions of international agreements related to intellectual property rights mutually supportive; 4. Recognizes the importance of sui generis and other appropriate systems for the protection of traditional knowledge of Indigenous and local communities and the equitable sharing of benefits arising from its use to meet the provisions of the Convention on Biological Diversity, taking into account the ongoing work on Article 8j) and related provisions, and transmit its findings to the World Trade Organization and the World Intellectual Property Organization, as suggested in paragraph 6 (b) of recommendation 3 of the Inter-Sessional Meeting on the Operations of the Convention; 5. Invites Parties and other Governments to review or, as appropriate, develop, with the participation of Indigenous and local communities, national, regional and international legislation or other measures, including sui generis, interim and other appropriate systems for the protection of the knowledge, innovations and practices of Indigenous and local communities as appropriate incorporating the elements recommended by the Panel of Experts on Access and Benefit-sharing; 6. Further invites Parties and other Governments to exchange information and share experiences regarding, national legislation and other measures for the protection of the knowledge, innovations and practices of Indigenous and local communities; 7. Recognizes that the maintenance of knowledge, innovations, and practices of Indigenous and local communities is dependent on the maintenance of cultural identities and the material base that 17

sustains them and invites Parties and Governments to take measures to promote the conservation and maintenance of such identities; 8. Requests Parties to support the development of national registers of traditional knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity through participatory programmes and consultations with Indigenous and local communities, taking into account the principles of strengthening legislation, customary practices and traditional systems of resource management, such as the protection of traditional knowledge against unauthorized use; 9. Invites Parties to ensure the participation of Indigenous and local communities in the negotiation of the conditions for the access and utilization of their knowledge, innovations and practices, including, inter alia, their prior informed consent. 1/2. Development of a programme of work on Article 8j) and related provisions of the Convention on Biological Diversity The Ad Hoc Open-ended Inter-Sessional Working Group on Article 8j) and Related Provisions of the Convention on Biological Diversity recommends that the Conference of the Parties: Recalling its decision IV/9, Noting the need for a long-term approach to the programme of work on implementation of Article 8j) and related provisions, within a vision to be elaborated progressively, in line with the overall objectives set out in Article 8j) and related provisions, Recognizing the need to respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application, Noting also that the methods of implementation of Article 8j) and related provisions differ among regions and countries in approach and capacity, Further noting the linguistic and cultural diversity among Indigenous and local communities as well as differences in their capacities, Further noting that there are existing international agreements, intellectual property rights, current laws and policies that May have influence on the implementation of Article 8j) and its related provisions, Emphasizing the fundamental importance of ensuring the full and effective participation of Indigenous and local communities in the implementation of Article 8j) and related provisions, Recognizing the vital role that women play in the conservation and sustainable use of biodiversity, and emphasizing that greater attention should be given to strengthening this role and the participation of women of Indigenous and local communities in the programme of work, Noting, the importance of integrating with the full and effective participation of Indigenous and local communities the work on Article 8j) and related provisions into national, regional and international strategies, polices and action plans, Noting existing declarations by Indigenous and local communities to the extent they relate to the conservation and sustainable use of biodiversity, including, inter alia, the Kari Oca Declaration, the Mataatua Declaration, the Santa Cruz Declaration, the Leticia Declaration and Plan of Action, the Treaty for Life Forms Patent Free Pacific, the Ukupseni Kuna Yala Declaration, the Heart of the Peoples 18