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1 Community Protocols and Biocultural Rights Unravelling the Biocultural Nexus in ABS
Fabien Girard, Ingrid Hall, Christine Frison1
DOI: 10.4324/9781003172642-1
To introduce this collection of chapters, we explore the âbiological diversity/cultural diversityâ nexus against the backdrop of biocultural community protocols (BCPs) and biocultural rights. BCPs and biocultural rights signal the development of biocultural approaches in biodiversity conservation. However, by no means, they can be confined to the sphere of conservation. They speak to the heart of sovereignty and the politics of identity, as much as they have a bearing on land claims and touch upon issues that we may venture to place under the heading of political ontology. The coming together of BCPs and biocultural rights, the success of which is in large part credited to the lawyer and activist Kabir Bavikatte (Bavikatte, 2014), shows that we are treading new ground. In the Moâotz Kuxtal Voluntary Guidelines, (Biocultural) Community Protocols (CPs) are broadly defined as a
[âŠ] term that covers a broad array of expressions, articulations, rules and practices generated by communities to set out how they expect other stakeholders to engage with them. They may reference customary as well as national or international laws to affirm their rights to be approached according to a certain set of standards. Articulating information, relevant factors, and details of customary laws and traditional authorities helps other stakeholders to better understand the communityâs values and customary laws. Community protocols provide communities an opportunity to focus on their development aspirations vis-a-vis their rights and to articulate for themselves and for users their understanding of their bio-cultural heritage and therefore on what basis they will engage with a variety of stakeholders. By considering the interconnections of their land rights, current socio-economic situation, environmental concerns, customary laws and traditional knowledge, communities are better placed to determine for themselves how to negotiate with a variety of actors.2
While these guidelines address âprior and informed consentâ, âfree, prior and informed consentâ, or the âapproval and involvementâ of Indigenous peoples and local communities (IPLCs) in order to access their knowledge, innovations, and practices, the expansive acceptance of CPs shows the extent to which theoretical work on biocultural rights has percolated into the framing of BCPs/CPs. Bavikatte conceived of biocultural rights as a âbundleâ encompassing (i) the right to land, territory, and natural resources; (ii) the right to self-determination, principally understood here in its âinternalâ dimension, i.e. the right of communities to autonomy and self-administration; and (iii) cultural rights. Additionally, âstewardshipâ (or âguardianshipâ), which Bavikatte saw as the cornerstone of biocultural jurisprudence (Bavikatte & Bennett, 2015), is now enshrined in another document emanating from the Convention on Biological Diversity3 (CBD), the TkarihwaiĂ©:ri Code of Ethical Conduct.4 It is also reflected in the first decision to build on biocultural rights and BCPs, the Atrato River Case from the Constitutional Court of Colombia (Macpherson et al., 2020).5
The remaining part of this introductory chapter investigates the popularisation of BCPs within the Access and Benefit-Sharing (ABS) context, linking it to the rise of biocultural jurisprudence and against the short history of the interlinkages between cultural diversity and biological diversity in conservation. It begins with the context, marked by the high profile which has been progressively gained by âtraditionalâ communities at the end of the last century. It situates this progression within an institutional and political context markedly concerned with North-South imbalances in access to genetic resources and the shifting ground in conservation which saw a dramatic reappraisal of the role of IPLCs and peasants/farmers in the management of biodiversity. This series of shifts, to which biocultural approaches gave decisive impetus, have gone so far as to open fresh, sweeping debates on self-determination and sovereignty over resources for IPLCs.
The chapter then moves on to introduce the scope of the book. To begin with, the first section traces the history of BCPs/CPs from the emergence of the so-called âcultural protocolsâ to the enshrinement of CPs in the Nagoya Protocol. BCPs/CPs are then successively assessed as legal and political tools, against the backdrop of biocultural jurisprudence, while a final note investigates the contentious concept of âstewardshipâ in conservation. The last section briefly outlines the content of the remaining chapters in the volume.
While this book is not devoid of Indigenous voices, it does not claim to speak on behalf of Indigenous peoples, local communities, or peasants. We do hope, at the very least, that it speaks to the depth of knowledge and perspectives shared with us by Indigenous peoples, local communities, and peasants over the course of our research.
The Context: âTraditionalâ Communities and Biodiversity Conservation
Since the late 1980s, the key role played by IPLCs in the sustainable management of complex ecological systems has increasingly been recognised. As early as 1987, the Brundtland Report took the view that IPLCs (referred to as âindigenous or tribal peoplesâ) are âthe repositories of vast accumulations of traditional knowledge [TK] and experience that links humanity with its ancient originsâ, and warned that âtheir disappearance is a loss for the larger society, which could learn a great deal from their traditional skills in sustainably managing very complex ecological systemsâ (Brundtland and the World Commission on Environment and Development 1987). At about the same time, the Declaration of BelĂ©m (1988), very much imbued with Poseyâs tenacious work on debunking misconceptions about Indigenous peoples, emphatically declared that â[âŠ] native peoples have been stewards of 99 percent of the worldâs genetic resourcesâ and forcefully stressed the âlink between cultural and biological diversityâ.6
In the following years, as concerns on environmental deterioration and the erosion of biodiversity were beginning to reach the broader public, and alternative, much more participative, people-centred, and place-based approaches were gaining momentum (Altieri et al., 1987; Freeman, 1989; Oldfield & Alcorn, 1987; Toledo, 1990), âattention has expanded to include a wide range of local communities, including forest peoples, farmers, fishers, herders, pastoralists, diversely manifested around the worldâ (IPBES, 2019). The increasing awareness to local communities is probably best captured by the CBD, Article 8(j) of which requires each contracting party 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 with the approval and involvement of the holders of such knowledge, innovations and practices.7
According to estimates, there are around 5,000 groups of Indigenous peoples in the world (Hall & Patrinos, 2012), amounting to 476 million people (ILO, 2021, p. 10). Some have never been in contact with other human societies, others are isolated (sometimes voluntarily after disastrous contacts), and yet others have had brief contact. Other much larger groups can be found across the globe, including in peri-urban areas and urban centres. Local communities represent an even larger population, and are as diverse and widely distributed around the world. When considered together, IPLCs8 represent about 1 billion people and it is estimated that they hold, either under customary tenure or a community-based regime (formally recognised in domestic law), between half and two-thirds of the worldâs lands (Wily, 2011).9
In recent years, much effort has been undertaken to document and appraise the role of IPLCs in shaping the ecologies and resource of vast regions of the world, for instance, in the management of forests, soil fertility, grasslands, mountains, watersheds, and coastal areas (IPBES, 2019). Furthermore, there is now ample evidence that farmer-managed seed systems have been instrumental in building viable and diverse crop types over millennia and that they continue to provide more than 70% of the seeds used around the world today (McGuire & Sperling, 2016).
In addition, after centuries of disregard or contemptuous treatment, Indigenous and Local Knowledge (ILK), also referred to as Traditional Ecological Knowledge (TEK) or simply TK, has recently stirred up a great deal of interest from conservation biologists, ecologists, âsustainabilityâ scientists, and, of course, geographers, anthropologists, sociologists, and political scientists. TEK refers to
[âŠ] the worldviews, knowledge, practices, and innovations embedded in the relationship between people and nature, as expressed in local knowledge about the natural world, techniques and technologies of resource management, as well as in local institutions governing social relations and relationship to nature.
(IPBES, 2019, p. 37)
TEK is placed-based, is embodied in social structures, and has a holistic dimension. In contrast to the way it was previously commonly pictured as backward, static, and self-contained, it is now commonly described as open and hybrid, dynamically evolving, as IPLCs appropriate new forms of knowledge and interact with animals, plants, and land (Berkes, 2012, p. 7; Berkes & Berkes, 2009, p. 7).
These significant changes in perspective have contributed decisively towards IPLCs being recognised as major actors in the struggle against climate change (IPCC, 2015, pp. 758, 765â766) and the erosion of biodiversity (Secretariat of the Convention on Biological Diversity, 2020, p. 115). The IPBESâ most recent Global Assessment Report on Biodiversity and Ecosystem Services underlines, in singularly forceful fashion, that:
While local in action, IPLC management of nature and biodiversity provides contributions to the larger society, in rural and urban areas alike, includi...
