By Assembly of First Nations, Inuit Circumpolar Council, Union of British Columbia Indian Chiefs, Grand Council of the Crees (Eeyou Istchee).
We strongly object to blanket statements that “welcome” and “endorse” the Nagoya Protocol – without any mention of its inherent injustices. These include the discriminatory treatment of the customary rights and practices of Indigenous peoples globally.
In regard to implementation of the Protocol, Canada has already prepared draft domestic policy documents that would dispossess many Indigenous peoples of their genetic resource rights.
For those unfamiliar with the Nagoya Protocol, we are attaching a detailed analysis that was submitted to the UN Expert Mechanism on the Rights of Indigenous Peoples in July 2011.
1. Zero Draft lacks balance. In the absence of carefully-balanced qualifications, the following statements are highly problematic:
“We welcome the Nagoya Protocol” (paras. 90 bis, 91)
“We welcome the Nagoya Protocol and the Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets” (para. 91)
“We endorse the Strategic Plan for Biodiversity 2011-2020 and the Nagoya Protocol” (para. 80)
2. Discrimination concerns ignored. Indigenous peoples and civil society – from different regions of the world – have repeatedly objected to the discrimination and other substantive and procedural injustices in the Protocol. These objections are well-known to various coordinators of Indigenous positions for Rio + 20 and have been communicated to a wide range of States, UN bodies, agencies and special rapporteurs. In accordance with basic principles of democracy and human rights, these diverse global voices and concerns cannot be ignored in the Zero Draft.
3. In regard to both access to and use of genetic resources in the Protocol, 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 Racial Discrimination (CERD). In its 2011 report, the Permanent Forum on Indigenous Issues has also raised discrimination concerns.
4. The prohibition against racial discrimination is a peremptory norm from which no derogation is permitted. All States are bound to respect this norm. Where discriminatory provisions in the Protocol were adopted by consensus among the Parties, such texts lack validity and require redress.
5. The Supreme Court of Canada has ruled that such kinds of distinctions based on “established” rights are “not honourable”. According to the Court, strong prima facie rights are not “established”. “Established” rights include those that are affirmed in a domestic law, judicial decision, or agreement. If such rights are not so proved, the Nagoya Protocol does not appear to provide any protection – regardless of how strong the evidence that such rights exist.
6. Dispossession and impoverishment. Should the term “established” be interpreted and applied in such a restrictive manner, most Indigenous peoples worldwide could be denied their rights to genetic resources. If so, widespread dispossession and further impoverishment would result. Third party corporations could gain access to and use of such resources in Indigenous territories, without Indigenous peoples’ free, prior and informed consent.
7. In the Convention on Biological Diversity and the Protocol, the central objective of “fair and equitable sharing” of benefits requires that “all rights” to genetic resources be taken into account. The Protocol fails to achieve this objective.
8. UNDRIP devalued in Protocol. States failed to respect Indigenous peoples’ rights to genetic resources, consistent with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP, art. 31). In this regard, the Parties ignored or dismissed the recommendations of the Permanent Forum on Indigenous Issues in its April 2010 report.
9. Aichi Biodiversity Targets derogate from Convention. In regard to the customary use of biological resources (Convention, art. 10(c)), there is no such qualification as “subject to national legislation and relevant international obligations”. Without authority, the Conference of the Parties added this phrase to Aichi Biodiversity Target 18 in the Strategic Plan rather than the Convention phrase “in accordance with traditional cultural practices”.
10. Strategic Plan for Biodiversity 2011-2020 derogates from UNDRIP. The Conference of the Parties (COP) – whose decisions generally are not legally binding – exceeded its authority and unilaterally added the following wording that could be construed as lessening the standard in UNDRIP for its full and effective implementation:
Invites Parties to take note of the United Nations Declaration on the Rights of Indigenous Peoples in the implementation of the Strategic Plan for Biodiversity 2011-2020, as appropriate, and in accordance with national legislation … (COP Decision X/2)
11. In the latest Zero Draft, the significance of UNDRIP should be highlighted in regard to all issues relating to Indigenous peoples. States should commit to full and effective implementation of UNDRIP, in conjunction with Indigenous peoples (in contrast, see Zero Draft para. after 104 bis).
12. Unjust procedures. In regard to the Protocol, States repeatedly exploited the practice of obtaining consensus in order to lower human rights standards relating to Indigenous peoples. In its August 2011 report on participation in decision-making, the UN Expert Mechanism on the Rights of Indigenous Peoples emphasized: “Consensus is not a legitimate approach if its intention or effect is to undermine the human rights of indigenous peoples.”
13. In regard to the Convention and Protocol, existing rules of procedure do not expressly prohibit States proposals that are incompatible with the Charter of the United Nations and States’ human rights obligations. In relation to Indigenous peoples, the UN Expert Mechanism has called for reform of multilateral environmental processes and forums as a “major priority and concern”.
14. Full and effective participation essential. Procedural injustices often lead to substantive injustices that violate principles of democracy and human rights. The right of Indigenous peoples to “full and effective participation” in international, regional and domestic environmental processes should be clearly included in the Zero Draft.