Recognition of Indigenous Peoples in Access and Benefit Sharing (ABS) Legislation and Policies of the Parties to the Nagoya Protocol

Abstract

The Nagoya Protocol on Access and Benefit Sharing (ABS) provides for the rights of indigenous peoples and local communities (ILCs) in accordance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). States Parties are obliged to take legislative, administrative and technical measures to recognize, respect and support/ensure the prior informed consent of indigenous communities and their effective involvement in preparing mutually agreed terms before accessing genetic resources and associated traditional knowledge or utilizing them. Within the ambit of contemporary debates encompassing indigenous peoples’ right to self-determination, this paper examines the effectiveness of the percolation of the legal intent of international law into existing or evolving domestic laws, policies or administrative measures of the Parties on access and benefit sharing. Through an opinion survey of indigenous organizations and the competent national authorities of the Parties to the Convention on Biological Diversity (CBD), the findings indicate that the space, recognition and respect created in existing or evolving domestic ABS measures for the rights of indigenous communities are too inadequate to effectively implement the statutory provisions related to prior informed consent, mutually agreed terms and indigenous peoples’ free access to biological resources as envisaged in the Nagoya Protocol. As these bio-cultural rights of indigenous peoples are key to the conservation and sustainable use of biodiversity, the domestic ABS laws need reorientation to be sufficiently effective in translating the spirit of international ABS law and policies.