Introduction
This edited collection focuses on the topical subject of how researchers, the private sector and various other interests obtain genetic resources from Indigenous territories for research and development of products related to pharmaceuticals, health, personal and sanitary care, agriculture, food, cosmetics, environmental management, etc. Often, these genetic resources are obtained in association with Indigenous peoples’ knowledge – also referred to as traditional knowledge (TK) – of the uses of genetic resources, which have proven valuable for researchers and industries in the making of new products. Mindful of concerns about their inadequacy, we use the terms Indigenous knowledge and TK interchangeably without distinction. Historically, Indigenous or Aboriginal peoples’ (terms deployed here ambidextrously and interchangeably also in their pragmatic essence)1 relationship with researchers or industry bio-prospectors is fraught with suspicion. Research has been conducted by non-Indigenous peoples and entities, and the results and benefits of the research rarely applied to the communities whose Indigenous knowledge and genetic resources contribute to valuable research outcomes. This phenomenon is global and not just particular to Canada. It has given rise to international outrage symbolized in the concept of ‘biopiracy.’ Biopiracy refers to the global exploitation of genetic resources in Indigenous and local communities by external interests. These external interests seek intellectual property rights (mostly patents) without adequate forms of compensation or equitable partnership with the peoples or communities who provide the genetic resources and the knowledge required to unlock the resulting ‘innovations.’
Since the 1990s, the international community has intensified efforts designed to address the injustice in the inequitable use of genetic resources and associated Indigenous knowledge through the concept known as access and equitable benefit sharing (ABS). ABS recognizes that global biological resources – including genetic resources – are essentially the heritage of humankind and should be accessible to those who seek to utilize them for various ends, including research and development, without undermining the interest of the various custodians who conserve those genetic resources. Consequently, the process for accessing those resources must be mediated by equitable framework(s) for sharing benefits arising from their use by all stakeholders, including Indigenous peoples. So far, there is a complex range of international legal instruments and policy initiatives on ABS such as the Convention on Biological Diversity (CBD), its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing over Benefits Arising from their Utilization (NP), and the International Treaty on Plant Genetic Resources for Food and Agriculture (IT). An underlying premise of these instruments is that Indigenous peoples and Local Communities’ (IPLC) epistemic orientations and worldviews regarding genetic resources have strong conservation ethics. As such, ABS is a form of incentive directed at objectives related to justice and equity, support for conservation of genetic resources and mitigation of the earth’s ever-intensifying biodiversity crisis.
For the purposes of this book, it is important to note that while Canada is a party to the CBD and the IT, it has yet to accede to the NP, citing its lack of preparedness to implement ABS into domestic law. The NP and the subject of ABS generally raise complex issues that strike at the heart of Indigenous peoples’ search for equity, justice and reconciled relations with the governments of Canada and the country’s universities, researchers and corporate sector. These historic relationships with Indigenous peoples have been rancorous and a source of great suspicion and distrust. ABS implicates Canada’s relationship with Indigenous peoples in many interconnected and overlapping ways, including resource ownership, Indigenous treaty and constitutional rights, cultural appropriation, the role of Indigenous legal traditions, knowledge systems, heritage and worldviews over the conservation of biological diversity, and environmental stewardship. In 2016, Canada withdrew its lingering reservation against the United Nations Declaration on the Rights of Indigenous peoples (UNDRIPs) and has fully endorsed the instrument in accordance with federal government’s ‘reconciliation agenda.’2 Within and outside the NP framework, researchers, industry and bio-prospectors have continued and will continue to deal with Indigenous peoples, their genetic resources and associated traditional or Indigenous knowledge.
Contributions in this volume seek to explore the diversity of issues implicated in ABS with deliberate sensitivity to Indigenous peoples as key partners. These contributions add to mapping and conjecturing the pathways through which Canada and Indigenous peoples can effectively forge constructive partnerships to fully engage ABS as a crucial subject matter in Canada-Indigenous relations at a time when reconciliation with Indigenous peoples is official government policy. Canada’s experience will resonate with many other industrialized countries, especially those with a history of colonial relations with Indigenous peoples.
Access and Benefit Sharing: Consensus in Stalemate
In 2012, the government of Canada indicated that it would not ratify the NP citing lack of preparedness. Having advised Canada to refrain from ratifying the Protocol, Indigenous peoples argued that the Protocol was negotiated without consultation and therefore without their consent. What Canada may or may not do with the Protocol was not clear to them. Suspicion remains rife. So, for once, both parties are in agreement but for different reasons. Historically, Canada rarely agrees with Indigenous peoples on any issue. But the issue of ABS provides an extraordinary exception. Canada and its Indigenous peoples seem to agree on the need for more time to enable constructive engagements on ABS among stakeholders. Across diverse government departments with mandates that engage or are engaged by ABS, there is presently neither a clear pathway nor a strong interdepartmental strategy on the ABS file. The issue is effectively stalled.
Some attempts by the government to start the conversation on ABS, post-Nagoya, have been at best superficial without the substantive involvement of Indigenous peoples. The latter’s lingering suspicion on the government’s motives is historically informed. Perhaps more specifically, it is deeply influenced by Canada’s role at the negotiations of the NP, which was, arguably, perceived by Indigenous peoples at home as pro-industry and anti-Indigenous interests despite the best efforts of Canadian leadership as permanent co-chair of the ABS negotiations. Such a disposition is consistent with the posture of many of Canada’s industrialized country allies. At the very least, realistically, there are three major partners on ABS: the various levels of governments in Canada (federal, provincial/territorial and municipal), research/industry stakeholders and Indigenous peoples. The latter have yet to be taken seriously as key stakeholders in ABS.
The ABS Canada Research Initiative: Networking, Partnership and Collaboration
In 2011, the first major academic piece in Canada on the NP and ABS, following the signing of the Protocol in 2010, kicked off the conversation over how Canada can best position itself on the subject. Titled ‘Genetic Resources & Access and Benefit Sharing: Politics, Prospects and Opportunities for Canada after Nagoya’ (Oguamanam, Reference Oguamanam2011), the study evaluated Canada’s unique and complex ecological profile and its rich Indigenous knowledge heritage. It found that Canada is both a user and producer of genetic resources as well as endowed with many Indigenous peoples, cultures and knowledge systems. The paper concluded that such a status requires the country to show leadership and play a proactive role on ABS, which is inclusive of industry and Indigenous interests. That study provided the impetus for building a research team that successfully applied for an Insight Grant from the Social Sciences and Humanities Research Council (SSHRC) in 2014, titled ‘Toward an Indigenous Sensitive ABS Policy in Canada.’ This project is premised on the need to start a national dialogue and raise awareness on ABS among various stakeholders, especially Indigenous peoples, and enable all interests to engage one another as Canada mulls the NP.
The SSHRC initiative attracted other supplementary funders and partners resulting in the founding of a research network of professors, researchers, students and Indigenous organization partners, known as ABS Canada (www.abs-canada.org). Among other things, its mandates include the identification and collaboration with Indigenous institutional and other partners for the articulation of Indigenous perspectives on ABS as part of Canadian ABS framework. Also, the project aims to engage policymakers at federal, provincial and territorial levels in the area of awareness raising, networking, collaborative training and capacity building on ABS toward an equitable policy outlook that is sensitive to Indigenous interests and concerns.
Scoping THE Indigenous Pulse on ABS through Participatory Engagement
The ABS Canada initiative organized a series of focus groups and interactive sessions on a regional basis, in partnership with Indigenous organizations and leaders. The first one was in Moncton, New Brunswick for the maritime region in 2015; the second event was held in Ottawa, Ontario for central Canada in 2016; and the last focus group was held in Saskatoon, Saskatchewan for the Prairies and Western Canada in 2017. In a participatory and collaborative environment, through these forums, the ABS Canada research network facilitated a national conversation that gauged Indigenous sensitivity, built capacity and attempted to garner a cross-section of Indigenous perspectives on the subject of ABS. A unique aspect of the partnership with Indigenous participants is the discretion reserved to Indigenous peoples to raise their own account and resolutions arising from the focus groups.3 The Maritime Aboriginal Peoples Council was able to leverage that discretion by issuing the Petkoutkoyek Statement on the Access, Use, and Fair and Equitable Sharing of Benefits Arising Out of the Utilization of Genetic Resources and Associated Traditional Knowledge in Canada promulgated at Petitcodiac (Petkoutkoyek), Moncton, New Brunswick on 16 October 2015. The Pekkoutkoyek Statement dovetails with the 2011 Iskensisk Declaration on the Access, Use, and Fair and Equitable Sharing of Benefits Arising Out of the Utilization of Genetic Resources and Associated Traditional Knowledge in Canada, issued in Iskenisk, Mi’kma’k, Truro, Nova Scotia, on 28 March 2011. The Iskensisk Declaration is perhaps the first major exclusively Indigenous declaratory response and initiative on ABS issues in Canada. It is discussed in greater detail in Oguamanam and Roger Hunka’s contribution to this volume (Chapter 3).
In addition to Indigenous peoples’ active participation, all of these focus groups were resourced by keynotes and capacity building sessions from globally renowned experts on ABS from within (including Indigenous experts) and outside of Canada and, in some cases, with institutional support from the Secretariat of the CBD and the Food and Agriculture Organization. With the further assistance of the Open African Innovation Research (Open AIR) (www.openair.org.za) – one of ABS Canada’s partners – and the generosity of several African delegations, ABS Canada personnel participated at the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, TK and Folklore (WIPO-IGC) in a symbolic gesture of south-north development and capacity building. The WIPO-IGC is charged with developing text-based instrument(s) for effective protection of a range of subject matters pursuant to its self-explanatory nomenclature. In the WIPO-IGC, ABS and incidental matters, including disclosure of source of origin or genetic resources and associated TK in intellectual property, especially patent application, constitute key cross-cutting issues at the jurisdictional intersection of the WIPO and the CBD. Owing to serving as facilitators and active observers of the interchanges in the earlier-enumerated forums, ABS Canada teased out wide-ranging issues on the subject of ABS with consideration for Indigenous peoples as key stakeholders in the Canadian context.
Aside from the Canada-wide focus groups, ABS Canada also partnered with the College of Law at the University of Saskatchewan in organizing a highly successful symposium on 11–13 May 2017 in Saskatoon. The symposium drew Indigenous youth, thought leaders, Canadian academics and researchers who work in the area of ABS. Open AIR sponsored the attendance and participation of members of African Indigenous and local communities to the symposium who shared their experience on ABS with their Canadian counterparts as one of the highlights of the symposium.
Presenters at the symposium were shortlisted from entries received in response to a call for papers. In addition to two keynotes, a total of fourteen presentations were made at the symposium. Complemented by the editor’s articulation of the insights from the three focus groups, the resulting papers from those presentations from members and partners of ABS Canada are presented in this book. The diversity of participants, their opinions and views from the focus groups as well as the diversity of categories of contributors in terms of this disciplinary backgrounds, practical experiences and research profiles in the areas of ABS, Indigenous rights, research ethics, international governance, development and sustainability, is evident in the robust range of arguments and perspectives on ABS in the following chapters. Collectively, the chapters provide multifaceted insights for stakeholders in Canada thereby laying the foundation for future research and policy direction on ABS in Canada and globally.
Strategic Research Approach to a Complex Subject
The edited collection distinguishes itself through a unique mixture of research methodologies. As explained earlier, these involve sourcing opinion and data through on-the-ground participation and partnership with Indigenous peoples; engaging expert resource persons, specialist researchers and scholars; and facilitating their interactions with Indigenous peoples on the subject matter in the course of our research. In addition, the undergirding research and resulting publications are inspired by the opportunity for action on ABS in ways that seek to fill the void between the government and Indigenous peoples on how to move the ABS conversation forward. With eyes on advances on ABS from other jurisdictions since the NP came into effect, the book will be a crucial and handy instrument for all interests in ABS at a time of official stalemate on how to move the conversation forward. Perhaps more importantly, given Canada’s bold initiative on reconciliation and the recent endorsement of the UNDRIPs, this project would contribute in complementing and advancing the reconciliation discourse in the direction of ABS – a subject that draws on multidepartmental or multisectoral interests at many levels of governments across the country.
ABS Issues: Wide-Ranging and Interlinked
Three years of partnership, collaboration and participation by and with Indigenous peoples on the issue of ABS in the Canadian context, albeit with broader ramifications for the global stage, have uncovered an open-ended catalogue of concerns that an Indigenous-sensitive ABS policy must address. As a crucial matter, Indigenous peoples have raised the issue of the trust deficit that historically characterized their relationship with the colonial state. The trust deficit runs deep in the ABS context, as Indigenous peoples accuse Canada of both failing to consult with them and not representing their interests at the NP negotiations, as well as other related antecedent and current initiatives relevant to ABS. Specifically, participants ‘decried Canada’s informal preference for the term “Indigenous and Local Communities,” [over Indigenous peoples and Local Communities] as an attempt to undermine the [UNDRIPs]’ (ABS Canada, Moncton Focus Group Report, 2015, 5).4 The trust question echoes beyond Indigenous peoples’ relationship with the government, to include their long-running rancorous relationship with non-Indigenous researchers, bio-prospectors and corporate entities. There is a shared impression among Indigenous peoples that Canada’s lukewarm approach to ABS emanated from its prioritization of its status as a user of genetic resources and a biotechnology powerhouse for which the country panders to corporate interests (Oguamanam, Reference Oguamanam2011). This stands in contrast to Canada’s dual status as both a user and a provider of genetic resources with associated Indigenous knowledge – a situation that requires the country to seriously consider Indigenous peoples as crucial partners in the discussion of ABS.
Indigenous peoples have associated the ABS discourse with deep-rooted constitutional dynamics in Canada over Indigenous rights. For many, ABS raises treaty rights, resource rights, even the right to Indigenous self-determination and many other considerations at the ever-constant legal and political flashpoints of Indigenous relations in Canada. In addition, Indigenous participants expressed concern that the historical and colonial divisions and fragmentation of Indigenous peoples along multiple classifications, such as reserve, non-reserve and various other categories, pursuant to the Indian Act approach, ‘may, but must not be allowed to draw a wedge between Indigenous peoples, preventing collective action on the issue of ABS’ (Moncton Focus Group Report, 2015, 7). For Indigenous peoples, ABS can be explored in the light of opportunities laid open in some progressive decisions of the Supreme Court of Canada such as Calder v. Attorney General British Columbia; Delgamuukw v. British Columbia; Tsilhqot’in Nation v. British Columbia; Daniels v. Canada; Clyde River (Hamlet) v. Petroleum Geo-Services Inc., etc. ABS may be implicated in these decisions because they deal with a number of considerations, including but not limited to the duty to consult, extinction of rights, considerations of sovereignty, scope of title and whether the rights to genetic resources, mineral rights and associated Indigenous knowledge were ever ceded.
As both ideological and philosophical matters, Indigenous peoples argue that ABS is premised on ‘propertization’ of knowledge and natural resources under a market economic framework and constructs that are difficult to reconcile with Indigenous worldviews. One aspect of that disconnect is the singling out of genetic resources and even fragmenting them in relation to their specific applications5 under the ABS framework in contrast to Indigenous holistic outlook on humankind’s interconnected relationship with all natural forces and resources. In Canada, as the effect of climate change continues to bear across all ecological regions (particularly the Arctic), Canada’s intense quest for resource exploitation continues to put pressure on Indigenous ways of life, including indigenous knowledge and various natural resources raising analogues issues of ABS, equity, justice and sustainability in extractive resource contexts. Consequently, Indigenous peoples insist on the ‘need to constitute and support Indigenous legal and organizational structures as part of internal capacity building required by Indigenous peoples’ (ABS Canada Ottawa Focus Group, 2016, 7) in the context of ABS. Similar expectations are expressed in relation to Impact Benefit Agreements (IBA) as a tool to secure and balance interest of Indigenous peoples in the extractive resource industry exploitation. Indigenous concerns over these parallel issues demonstrates the importance of capacity building going forward.
The NP, in the view of Indigenous peoples, is only a prototype of ABS. It neither prejudices relevant existing practices within and outside Indigenous communities nor precludes Indigenous peoples from initiating new options. For example, the FAO International Treaty raises ABS issues in the context of traditional farming, including TK and practices over the utilizations of plant genetic resources for food and agriculture. Yet, Indigenous peoples have noted that under the NP, they ‘have uninhibited freedom to constitute their own competent national authorities, focal points and other structures – including community protocols on ABS in a manner that reflects their ecological identity and the complex dynamic of their historical, regional and political contingencies within the Canadian Federation’ (Moncton Focus Group Report, 2016, 6).
Pushing back on the usual refrain by bureaucrats that it is difficult to identify legitimate stakeholders to effectively perform the duty to consult, Indigenous peoples insist that to the extent that the ‘Canadian “Federation” remains a work in progress, Canada needs to genuinely engage Indigenous peoples on nation-to-nation basis as a threshold imperative for recognition of Indigenous sovereignty and claims for self-determination within the Canadian federation’ (Ottawa Focus Group, 2016, 9). Consequently, the demarcations of authority between the federal and provincial/territorial governments in which the former retains primary jurisdiction over most Indigenous issues while the latter maintains control over natural resources is a derogation of the nation-to-nation principle. In regard to ABS, Indigenous peoples call on the government to recognize the legal status of seventy-three distinct Indigenous Nations across Canada on a nation-to-nation basis (Ottawa Focus Group, 2016, 5) and to establish a national consultation table from the seventy-three Nations of Indigenous peoples ‘to effectively engage with the details of required consultations and negotiations for the implementation of ABS in Canada’ (Moncton Focus Group, 2015, 6)
In the opinion of many Indigenous peoples, the concept of ABS is inherently ironic; it is a regime primarily directed at ensuring justice, fairness and equity, yet governments have capitalized on power and knowledge imbalances among stakeholders with the effect of exacerbating inequality and injustice. For example, as noted earlier, Canada did not fulfill its duty to consult before, during, or after the NP and its antecedent instruments. In addition, there is a lingering concern that Canada continues to engage in sporadically organized sessions on ABS and related matters that have no purposive focus on Indigenous peoples as key partners. As well, ‘federal outreach has largely been directed at large and national Indigenous organizations … and not at regional or local groups, who have a better understanding of the situation on the ground and a more direct line to the people being affected by government decision-making’ (Ottawa Focus Group, 2016, 5). Indigenous peoples are apprehensive that in Canada’s current approach to ABS-related negotiations, ‘all delegations are led by government officials with limited [if any] input from Indigenous peoples’ (Ottawa Focus Group 2016, 7). As noted earlier, the WIPO-IGC is an example of such negotiations where genetic resources, TK, and by extension, ABS, constitute cross-cutting issues between WIPO and the CBD. Further, there is little visible, if any, coordination across the several departments at federal, provincial and territorial levels to demonstrate awareness of the cross-cutting and cross-sectoral nature of ABS.
There is a general recognition that ABS is inherently a complex subject matter due to its cross-sectoral and hi-tech nature. As a consequence, a genuine attempt to recognize and realize the status of Indigenous peoples and enhance their participation in policymaking as key partners would require a proactive commitment on the part of the government to support and finance capacity building and capacity development on ABS and related matters. According to some, such matters could be wide-ranging regarding, for example, development of community protocols, establishment of Indigenous knowledge databases and their management, material transfer and other contractual agreements, revision of existing research protocols to directly accommodate ABS; prioritization of resources to translate relevant documents, simplification of such documents in plain language and enhancing their accessibility, not excluding explanation of key terms, etc. Remarkably, Indigenous peoples were clear that capacity building does not have to be a unidirectional initiative, but ‘a two-way or multidirectional exercise. As such, while the governments need to support ABS capacity building in different directions, Indigenous peoples need to educate governments on how to engage and understand Indigenous peoples as important stakeholders in ABS’ (Ottawa Focus Group Report, 2016, 10).
Capacity building is an initiative that should come from sources internal and external to Indigenous peoples. Internal capacity building refers to efforts within Indigenous communities to mobilize their members and educate individuals in relevant skills to effectively participate in ABS. This approach is consistent with the opinion of Indigenous leadership. For example, Indigenous lawyer and opinion leader, Roberta Jamieson, emphasizes, in another but relevant context, that Indigenous peoples must lead the charge for change as opposed to demanding new promises and wait in passive expectation for their fulfillment (Jamieson, Reference Jamieson2017), which hardly happens. External sources of capacity building include all level of government within Canada and other related development initiatives within and outside of Canada capable of partnering with Indigenous peoples to develop capacity in ABS and related matters. Irrespective of any source or method of capacity building, Indigenous peoples seem to agree: ‘all forms of support for capacity building and consultation must involve a transgenerational approach that deliberately engages Indigenous youths in learning and teaching on ABS and related concepts’ (Ottawa Focus Group, 2016, 11).
Except for those that work in the area, it is quite obvious that most Indigenous peoples have yet to hear about ABS. This situation is no different in regard to other demographics, and for a good reason. ABS is a specialized subject by nature and requires dedicated commitment to raise awareness and build capacity around it. Despite the increasingly topical nature of the subject across national and international forums, some Indigenous people in Canada doubt whether ABS deserves any priority within the myriad challenges that affect them. For them, it is hard to locate where ABS ranks in relation to various competing priorities that constitute the features of Indigenous peoples’ historic struggle for survival in Canada. Some of those priorities include widespread racism directed at Indigenous peoples, missing and murdered Indigenous women, unacceptable rates of youth suicide, disproportionate representation of Indigenous youth, women and men in the prison population, crises of access to quality and culturally sensitive education and health services; lack of access to safe drinking water; mental health and substance abuse issues, and overall poor standard of living.
Notwithstanding the reservations over the significance of ABS in the scheme of Indigenous peoples’ priorities, as a matter of consensus, many seem to agree that ABS designates an opportunity for practical translation or realization of the spirit of UNDRIPs. As noted by participants at the Ottawa Focus Group, ‘while ABS may not assume priority over the abject poverty and abysmal living standards of Indigenous peoples, when Indigenous history and the colonial experience of subjugation and deprivation is considered holistically, then everything – including ABS – is interconnected and assumes the same urgency’ (Ottawa Focus Group, 2016, 9). In the present moment, as Roberta Jamieson (Reference Jamieson2017) puts it, ‘when the spirit of reconciliation is trying to find its footing,’ the prevalent cases of biopiracy or cultural appropriation undermines reconciliation. In principle, ABS is a response, in part, to cultural appropriation at least in the area of genetic resources and aspects of TK and must enjoy priority in the reconciliation initiative as an attempt to retrace centuries long and ‘ongoing tragedy in the entire history of [Canada’s] relationship with Indigenous peoples’ (Jamieson, Reference Jamieson2017).
Indigenous peoples recognize that biopiracy is an aspect of cultural appropriation that has historically done harm to them and their knowledge systems and ways of life. As such, they are in the best position to determine the suitable remedial options, including those within an ABS framework and how to go about them whether on the Nagoya template or in other regimes. In the spirit of reconciliation, the doors should be open for exploring reparation and other compensatory options for past abuses and appropriations of Indigenous knowledge using available mechanisms and remedies, including restorative justice in line with truth and reconciliation. Whatever the promise, prospects and actual results of ABS for Indigenous peoples, they are unequivocal that ‘any preferred benefit sharing framework should be grassroots-driven and should not be conflated with or allowed to be a substitution for Canadian government’s obligations to Indigenous peoples’ (Ottawa Focus Group, 2016, 6). In other words, benefits resulting from the implementation of ABS should not substitute or be made to subsidize government’s responsibilities toward Indigenous peoples.
Indigenous peoples’ unfettered ability to determine an acceptable ABS arrangement could contribute to the sustainability of their communities. One example of the importance of Indigenous intervention over the applications of biotechnology to their genetic resources comes from Mexico. Maize is at the centre of the cultural identity of Indigenous peoples of Mexico, a county said to be the authentic genetic origin of the crop. Similar to other economic crops, maize is a target of R&D through genetic modification and various applications of biotechnology, including terminator technology. Indigenous peoples of Mexico have argued that genetic modification or other applications of biotechnology to maize, or even other culturally sensitive crops, results in genetic erosion and external proprietary control of such crops. It is a development disruptive of Indigenous peoples’ interests in the cultural and genetic diversity of maize that inextricably links the crop to their cultural, economic, and spiritual survival. It does not make much difference even where the undergirding R&D was ABS-compliant with the free, prior, and informed consent of Indigenous peoples. Although the deleterious effect of biotechnology on culturally sacrosanct crops could not necessarily be predetermined before the fact, at the very least, Indigenous peoples should be able to save or reserve the right, on a residual or contingent basis, against an R&D outcome that undermines their economic interests and cultural survival.
The development of TK or genetic resource databases through digitization, inventorying and other documentation options is one of the most prominent measures-based approaches aimed at strengthening Indigenous positions in ABS agreements. Affirming historic or prior applications of Indigenous knowledge, such databases constitute defensive protection against the use of patents to deny pre-eminence of TK as a prior art in specific contexts. Various forms of documentation enhance identification of genetic resources and associated TK and their uses through research and development in ways that ensure accountability for purposes of ABS. Notwithstanding its potential, the idea of TK database draws mixed reaction in Indigenous circles (Oguamanam, Reference Oguamanam and Kono2009), a sentiment that has been re-enforced among Indigenous peoples in Canada. Not least of the concerns is the suitability of digitization and other forms of TK documentation for accurate interpretation of Indigenous knowledge. Yet, as a pragmatic matter, many recognize the value of keeping TK database in specific situations; especially given regard to generational disconnect that results in the loss or erosion of TK with the passing of elders and knowledge keepers. A more sustainable approach to the erosion of TK via the demise of elders is one that prioritizes a healthy intergenerational process of knowledge apprenticeship and transfer.
Assuming technology-enhanced databases remain a viable strategy for augmenting knowledge of the uses of genetic resources, adaptations and transformations of TK, concerns remain among Indigenous peoples over the governance, jurisdiction, control and access to those databases. Fresh apprehensions are raised over the security of such databases, the consequences of their inadvertent disclosure or deliberate compromise through technological sabotage such as hacking. In addition, the status of TK databases, as public or non-public domain assets, remains inchoate. Indigenous peoples identify or categorize their ability to participate in such technologically driven measures-based approach as an area for capacity building, given the burden of cost and expertise required to generate and administer that form of technological infrastructure. While attention is focused on the idea of dedicated TK database, little or no consideration is given to other forms of data generated as incidents of Indigenous-related research, which have consequences of ABS. This volume sheds some light on the increasing relevance of digital sequence information and data aggregation technologies and the ensuing changes in Indigenous research landscape and their ramifications for ABS.
Perhaps, a far more important concern relates to the broader issue of new technological strategies, including biological and digital technologies in the creation, manipulation and virtualization of datasets based on genetic resources and associated TK. These two mutually supportive technologies have redefined the process of doing research generally, even research that involves IPLCs, their genetic resources and associated TK in ways that attempt to disrupt the foundational logic and raison d’être of ABS. For example, the virtualization of various research data and their accessibility over the internet as well as the use of digital DNA or digital sequencing technologies and synthetic biological models readily de-link genetic resources and associated TK from their origins in specific IPLC in ways that circumvent the ABS imperative. While such practices designate the role of big data in the facilitation of research and knowledge production, it underscores a tension between big data and Indigenous peoples’ interest in data sovereignty (Oguamanam & Jain, Reference Oguamanam and Jain2017). Virtualization of data through digital technology and the production of synthetics of new or adaptations of naturally occurring biological formulations through biotechnology enhance the liberalization and accessibility of vital data for R&D. But not only do they de-link genetic resources and associated TK from IPLCs, as may be applicable, they also threaten, if not undermine, Indigenous peoples’ insistence that derivatives of genetic resources and TK constitute subjects of ABS.
Another important sentiment expressed by Indigenous peoples is the need to engage and share experiences on ABS and related issue over the struggle for the protection of TK with their counterparts from the global south. Indigenous peoples have observed that Canada is an active and heavily invested actor in North–South international development, knowledge transfer and capacity building with countries and local communities of the developing world as targets and recipients. So far, the call for South–North directional development, capacity building and knowledge transfer that targets Indigenous peoples as beneficiaries is self-evidently alien to Canada. One reason this expectation has yet to be met is that such action would unmask Canada’s historical subjugation of Indigenous peoples. Canada’s vested interest in image laundering and image preservation does not position it as an enthusiast of this kind of clarion call. For that purpose, the underdevelopment and deprivations in Indigenous peoples and communities in Canada are analogized to a ‘global South encased in the global North.’ For Indigenous peoples of Canada and, certainly, their counterparts elsewhere in the developed countries, it is about time to acknowledge that they can benefit from in-kind development aid for capacity building from their local communities’ counterparts from the global South or elsewhere, in the form of South–North capacity building. The issue of ABS presents an opportunity to creatively explore external development support in capacity and experience outside the conventional framework.
Chapter Synopsis
This volume is divided into three parts. Part I, which opens with the present chapter, focuses on the evolution and the making of the fledgling ABS policy landscape in Canada. In Chapter 2, the duo of Timothy Hodges and Jock Langford, Canada’s leading subject matter experts on domestic and international ABS policy development recount, on a historic basis, Canada’s checkered role in the development of ABS in the international arena. In ‘Canada and the Nagoya Protocol: Towards Implementation, In Support of Reconciliation,’ they insist that new opportunities have opened up for Canada in the context of the current political climate for reconciliation for a more serious approach to ABS implementation. For them, ABS is an important site to give effect to the UNDRIP which has been fully endorsed by Canada without reservation. In Chapter 3, Chidi Oguamanam and Roger Hunka focus on the practical experience of the partnership between ABS Canada and the Maritime Aboriginal Peoples Council to explore insights and lessons for modelling an independent Indigenous capacity building and capacity development on ABS.
Contributions in Part II engage identifiable hurdles to ABS implementation. They cover conceptual questions and practical responses and insights on the path forward to the realization of Indigenous-sensitive ABS policy in Canada. In Chapter 4, Joshua Nichols explores the Canadian domestic and constitutional legal framework for Indigenous rights in relation to the meaning and implication of internationally sanctioned sovereign rights of states over genetic resources for a unitary nation-state structure vis-à-vis the model of shared or collaborative sovereignty, which is a better reflection of Canada’s Indigenous relations. The current federal government of Canada’s rapprochement with Indigenous peoples, Nichols argues, presents a new opportunity to adapt and reconcile the domestic legal framework to fit with the principles of self-determination and the spirit of the UNDRIPs for the implementation of a functional ABS regime in Canada. Writing in Chapter 5 under the title: ‘Making Room for the Nagoya Protocol in Nunavut’ – Canada’s largest Indigenous self-governing territory – Daniel Dylan indicates that current legal regime for resource control is premised on the Nunavut Land Claims Agreement. The latter envisages impacts and benefits sharing over the extractive or non-genetic natural resources with no direct focus on genetic resources as envisaged in the ABS framework. With rapidly melting sea ice, Nunavut’s wealth of genetic resources would become more evident in ways that would exacerbate rights claims. Dylan avers that the lacuna in the current Nunavut territorial legal framework could be tackled through the implementation of the NP which, he argues, will provide the opportunity to amend relevant ABS-related laws in Nunavut like the Scientists Act and to enact new ones to account for ABS and associated concepts.
In Chapter 6, Perron-Welch and Oguamanam harp on the desirability of a nation-to-nation approach to ABS routed through different layers of governments in Canada: Federal, Provincial/Territorial and Indigenous, under the principle of cooperative federalism and distinct orders of government. Despite its conceptual and governance challenges, with adequate political will, they argue, this approach could serve as an effective way to integrate Indigenous peoples’ rights over genetic resources, TK and ABS as aspects of their self-determination. While current attempts at breathing new life into Indigenous relations in Canada are conducive for this progressive approach, for the desired outcome other layers of governments, notably provincial and territorial, ought to demonstrate stronger or commensurate commitment as the federal government which is leading the charge on reconciliation.
In Chapter 7, Oguamanam and Koziol underscore a fundamental flaw in Canada’s approach to ABS. Specifically, they argue that Canada’s tendency to underappreciate not only the interest of Indigenous peoples on the subject but also the country’s status as both a provider and user of genetic resources and associated TK explains, in part, its lacklustre attitude to biopiracy. With predictable and unpredictable effects of climate change affecting genetic resources and biodiversity in Canada’s extreme ecological regions, Canada’s status as a provider of genetic resources will assume greater prominence than before. Oguamanam and Koziol explore concrete cases of what they call ‘flashpoints of biopiracy’ within Canada. They also speculate about potential sites and contexts for the future escalation of that phenomenon in the country. For them, ongoing acts of biopiracy at domestic levels, and its impending exacerbation drive the issue home to Canada contrary to the impression that biopiracy is a matter for Indigenous and local communities in remote parts of the global south and the developing world. Those tendencies constitute reason enough for Canada to identify with international efforts to implement ABS and stem the tide of abuse of Indigenous knowledge.
In Chapter 8, Larry Chartrand et al. chart an inward-looking pathway to identify Indigenous customary laws and practices that approximate an understanding of ABS from Indigenous worldviews. They selectively focus on a few Dene stories, offering some interpretative perspectives on them and extracting legal principles that are amenable to ABS. The essence is to assist researchers and Dene peoples in negotiating ABS agreements consistent with their laws and to elicit an introspective approach to ABS by other Indigenous peoples as a crucial part of internal capacity building and capacity development on the subject. Some of the identified principles extrapolated from the stories such as equality, interdependence, sharing, reciprocity and mutual aid, go beyond the narrow instrumentalist prism of commoditization and commercialization of TK and GRs under the NP and related frameworks.
In Chapter 9, Freedom-Kai Phillips explores experiences on ABS from three national contexts (Brazil, Namibia, and Australia) with better standing on the subject than Canada, drawing out lessons that could influence future implementation of an ABS regime in Canada. Specifically, some of the insights include a phased approach with immediate and long term targets for entrenching ABS; streamlining of both national and local frameworks for ABS implementation; a pooled national ABS fund, and the use of differential permit systems to account for distinctive users and uses of GRs and associated TK in specific contexts.
The four constitutive chapters of Part III are dedicated to new technological dynamics that influence the processing, generating and transfer of information related to genetic resources and associated TK and their ramification for the research ethics and implementation of ABS. In Chapter 10, Peter W.B. Phillips, Stuart Smyth and Jeremy De Beer, writing under the title ‘Access and Benefit Sharing in the Age of Digital Biology,’ argue that digital technology problematizes the issue of physical alignment of genetic and genomic information with associated TK and their origins in IPLC for ABS purposes. They observe that out of expediency, NP could not directly tackle the subject of ‘digital biology’, and that normative studies and literature on ABS fail to engage it adequately. Accordingly, for effective application of ABS to advance R&D and meet industry and IPLCs’ expectations, there is urgent need to plug the gap in law and policy over the practical parameters to govern the relationship between TK and digital biology for ABS purposes. Interestingly, the CBD explores this subject head-on through its Ad Hoc Technical Expert Working Group on Digital Sequence information on Genetic Resources which submitted its report in 2018. In Chapter 11, Oguamanam takes on the same subject matter from a more extended perspective, focusing on the role of digital technology in open data, big data and data sovereignty and their ramifications for ABS and TK. The Chapter highlights the cumulative effect of these phenomena in virtualization and de-linking genetic resources and associated TK from their origins in IPLCs. However, it argues that a combination of purposive interpretation of the NP and progressive development in international law and policy on Indigenous peoples and TK suggests that these technological transformations do not undermine the essence of Indigenous-sensitive ABS. Rather, they underscore the need for a fluid regulatory space to ensure the ABS laws are attuned to fast-changing technological space.
In Chapter 12, Kelly Bannister argues that ABS warrants a new approach to ethics by researchers beyond mere checkboxes and prescriptive formalities and compliance with local community protocols. Rather, researchers and Indigenous peoples must enter into an ‘ethical space’ to learn from each other within the framework of relational ethics and in pursuit of deep-rooted and shared appreciation and respect as the best approach to mutually implement ABS. She selectively highlights established ethical codes and guidelines for research involving Indigenous peoples within the framework of a relational approach in two domains: national ethics policy for academic research involving Indigenous peoples in Canada; and international ethical standards in the discipline of Ethnobiology which must now accommodate considerations for ABS as the new reality of contemporary research. In Chapter 13, Thomas Burelli’s empirical study indicates that researchers and Indigenous peoples have been forging research partnerships through various formal and informal protocols and agreements that reflect varying degrees of ABS sensitivity. It is not fashionable for researchers and bioprospecting entities, Burelli argues, to hide under the guise of the paucity of formal ABS laws in the specific jurisdiction as a licence to exploit TK and Indigenous peoples. Policymakers do not need to reinvent the wheel on ABS. He concludes that insights from the diversity of examined cases could constitute helpful starting points and building blocks for Indigenous-sensitive ABS in Canada and elsewhere.
In Chapter 14, Chidi Oguamanam concludes by synthesizing the various discussions that animated this book, reflecting on the challenges and opportunities which the present momentum for reconciliation in Canada poses for formal implementation of ABS. Noting the litany of precedents and practices within and outside of Canada, he highlights Canada’s potential to tap into what he calls the ‘late comer advantage’ to implement a domestic ABS regime that optimizes lessons and insights including new challenges and opportunities arising from technological developments relevant to implementation of ABS. The chapter maps out a range of advantages to be explored in potential domestic implementation of ABS in Canada. Those advantages, the author argues, far outweigh obvious challenges and inherent obstacles. The chapter incorporates, on constructive and reflective basis, criticisms including highlights of omissions (e.g. the absence of insights or perspectives from corporations as major interests in ABS) in the undergirding methodology of the volume. Nevertheless, the author insists that the project has tried to both underscore the complexity and sophistication of ABS as a global subject matter with significant ramification for Canada while simultaneously contributing to demystify the concept. It is the author’s expectation that the volume contributes in opening the policy space on ABS, as a work in progress, to catalyze conversations and consultations and to energize collaborations and partnerships required to take ABS seriously in Canada.
Introduction
After years of effort, in the early morning hours of 30 October 2010, a protocol on access to genetic resources and benefit-sharing (ABS) was adopted by consensus in Nagoya, Japan, by Canada and some 192 other Parties to the United Nations Convention on Biological Diversity (CBD). In the years preceding adoption, the Canadian delegation played a central role in shaping the instrument. Yet despite its significant role in making the Protocol a reality, Canada now finds itself as a non-Party, and a laggard on domestic implementation of ABS. In stark contrast to countries around the globe that are now implementing their ABS obligations under the CBD and the Nagoya Protocol (NP), the ABS policy process in Canada has seemingly ground to a halt. The reasons are many – including complexity, political disinterest, entrenched interests, senior bureaucratic inertia and a fundamental failure to see Canada as both a user and provider of genetic resources (GRs) and traditional knowledge (TK) (Oguamanam, Reference Oguamanam2011). These impediments are not, however, beyond Canada’s ability to overcome.
With this history in mind, we will use this chapter to argue that genuine opportunity exists to renew investments in ABS governance in Canada. Compelling new imperatives have arisen in the context of reconciliation and the adoption of the United Nations Declaration on the Rights of Indigenous peoples (UNDRIP) (Perron-Welch & Oguamanam, Chapter 6). We offer an analysis of implications of the ABS negotiations and the Protocol for Indigenous peoples from the perspective of our experiences as former Canadian officials engaged in domestic and international ABS policy development and, in the case of Timothy Hodges, as one of the two permanent co-chairs of the ABS negotiations. We describe some of the decisions and actions taken at the co-chairs’ level to elevate Indigenous participation in the treaty talks and empower Indigenous voices. Finally, we pave the way for the important first steps towards ABS implementation in Canada by proposing a roadmap to 2020.1
Strengthening Indigenous Participation in the ABS Negotiations: The Role of the ABS Co-Chairs
Fernando Casas of Colombia and Timothy Hodges of Canada were elected as co-chairs of the Open-ended Working Group on Access and Benefit Sharing at the closing plenary of the eighth meeting of the Conference of the Parties to the CBD (UNEP CBD, 2006, 2). The election of two dedicated and functionally permanent chairpersons marked a shift in the process of negotiating a global ABS regime, which had previously lacked continuity and even-handedness in leadership and was marked by deep distrust among its many stakeholders. The election of co-chairs would have significant implications for the participation of Indigenous representatives in the ABS negotiations.
From the outset, the co-chairs operated with transparency, inclusiveness and fairness. The co-chairs engaged throughout the negotiations with a range of Indigenous representatives and with stakeholders (i.e. both providers and users) many of whom would ultimately find themselves implementing the eventual instrument on the ground (Hodges, personal notes for COP 8 Bureau meeting, Brasilia, May 2006).
Throughout their five-year tenure through to the Protocol’s adoption, the co-chairs expended considerable time and political capital to promote the participation of Indigenous representatives in the negotiations. In relative terms, the CBD has rightly been considered an innovator among international fora in facilitating the participation and influence of Indigenous and local community representatives in its various subsidiary bodies. CBD Parties (including Canada) have volunteered significant monies to support such participation. However, in practice, all States jealously guard their prerogatives – limiting their willingness to accept Indigenous representatives as equals either on a Party’s delegation or sitting independently at the negotiating table.2
The co-chairs were aware of this dynamic but equally aware of the central role Indigenous peoples play in protecting and sustainably using GRs and TK. The co-chairs understood that in order for the Protocol to be successfully implemented at the local level, the views and understanding of Indigenous peoples would need to inform government negotiators and be accounted for in the Protocol (Hodges, Reference Hodges, Wynberg, Schroeder and Chennells2009). A key to facilitating meaningful and effective participation and influence of Indigenous representatives was developing close respectful relations with Indigenous participants. This was a major investment in time and effort but lead to frank and constructive discussions.
One approach employed by the co-chairs to facilitate effective participation of Indigenous representatives, as well as stakeholder representatives, was the use of smaller, informal meetings. In 2010 alone, the co-chairs convened several such meetings in Montreal, Cali and Nagoya (Hodges, personal notes, 2010).
For example, during the first part of the ninth meeting of the ABS negotiating group (ABSWG9) in Cali, Colombia, the co-chairs deliberately placed the Indigenous representatives directly across from them at the centre of the negotiating table – a prime position in any negotiation and one very ably used by the Indigenous representatives (Hodges to Casas email, 10 March 2010). Further, the meeting witnessed the unprecedented nomination by the co-chairs of an Indigenous Canadian representative to co-lead an informal consultation on a key issue (Hodges, personal notes for ABSWG9, Cali, 27 March 2010). This reflected the co-chairs’ deliberate strategy of moving past the understandable frustrations of Indigenous participants, who were emphatic in signalling their concern over the ability of the ABS protocol to advance Indigenous rights while ensuring the continuing active participation of Indigenous negotiators in the ensuing talks.
The co-chairs also promoted the influence of Indigenous and local communities (ILCs). At ABSWG9, for example, it became clear that the Parties did not support the human rights proposals from the International Indigenous Forum on Biodiversity (IIFB). The IIFB, in turn, placed priority on the protection of GRs of ILCs. Respecting the IIFB members’ position, the co-chairs steered the negotiation towards the successful inclusion of Article 6.2 concerning access to GRs.
Key Provisions of the Nagoya Protocol Relevant to Indigenous peoples
ABS, in particular, the benefit-sharing component of ABS, has been justified through analysis of various principles of justice (Schroeder, Reference Schroeder, Wynberg, Schroeder and Chennells2009; Dauda, Reference 38Dauda, Denier and Dierickx2016). Yet despite the ethics-based language framing ABS, CBD Parties negotiating the ABS regime rarely employed a human rights-based approach to the negotiations. Indeed, despite consistent urgings of the co-chairs and relentless appeals from ILCs representatives and civil society organizations, negotiators from both the ‘user’ and ‘provider’ countries often appeared transfixed by GRs and monetary issues (Perron-Welch & Oguamanam, Chapter 6). Human rights and a broader search for justice often appeared of secondary concern during the talks. This is somewhat ironic; the very need for an international ABS regime was framed as a response to growing instances of biopiracy where alleged unethical or illegal behaviour was resulting in injustices to Indigenous holders of GRs and TK. Given the centrality of ethical concerns related to the fundamental questions surrounding benefit-sharing, the continuing paucity of ethical perspectives is noteworthy and troubling (De Jonge, Reference De Jonge2009, 16). Despite these issues, the Protocol text ultimately adopted can clearly be viewed as a rights instrument – promoting equitable outcomes, the pursuit of justice, respect for human rights, and the achievement of fair and sustainable outcomes.
While largely eschewing ethics-based language in its final form, and failing to meet the expectations and needs of a number of Indigenous representatives involved in its negotiation, the NP contains a significant number of operative elements directly related to Indigenous interests – and as a whole empowers Indigenous peoples in the stewardship and governance of their GRs and TK. The brief review of the Nagoya text, outlined in Table 2.1, supports this point.
Table 2.1 Nagoya Protocol Provisions Related to Indigenous Interests
| Article | Regarding | Obligations of Parties Related to Indigenous Rights |
|---|---|---|
| 5 | Benefit-sharing | 5.2. Measures to ensure benefits arising from the use of GRs held by ILCs based on MAT |
| For GRs and TK associated with GRs | 5.5. Measures to ensure benefits arising from the use of TK associated with GRs are equitably shared with ILCs based on MAT | |
| 6 | Access to Genetic Resources | 6.2. Measures to ensure that PIC of ILCs is obtained for access to their genetic resources |
| 7 | Access to TK associated with GRs | Measures, to ensure TK associated with GRs is accessed with PIC of ILCs and MAT is established |
| 12 | Traditional knowledge associated with genetic resources | 12.1 Obligations to take into consideration ILC’s customary laws, community protocols and procedures, as applicable with respect to TK associated with GRs |
| 12.3 Support (a) the development by ILCs, including women, of community TK protocols, (b) minimum requirements for MAT to ensure equitable sharing of benefits for the use of TK associated with GRs | ||
| 12.4 In implementing the Protocol, not restrict the customary use and exchange of GRs and associated TK of ILCs | ||
| 16 | Compliance | 16.1 Measures to provide that TK associated GRs has been accessed in accordance with PIC and MAT |
| 16.2. Measures to address situations of non-compliance | ||
| 21 | Awareness-raising | Measures to raise awareness of the importance of GRs and TK associated with GRs and related ABS issues such as: (b) Organization of meetings of ILCs and relevant stakeholders; (c) Establishment of help desk for ILCs; (h) Involvement of ILCs in Protocol implementation; and (i) Awareness-raising of ILC’s community protocols and procedures |
While of discounted importance to some negotiators during the ABS talks, it was clear from the co-chairs’ numerous in-country discussions with Indigenous peoples and stakeholder groups across all major regions that without substantive capacity-building provisions, Protocol implementation was unlikely to occur where it was most needed to assure sustainable development outcomes. Article 22 places particular emphasis on the need for Parties to facilitate the involvement of communities and requires ‘Parties to support the capacity needs and priorities of ILCs and relevant stakeholders, as identified by them, emphasizing the capacity needs and priorities of women (UNEP CBD, 2011, 16). While the specific mention of women is desirable, Indigenous peoples have also called for similar attention to be paid to the needs and priorities of Elders and youth (Oguamanam & Hunka, Chapter 3).
In addition to the specific articles mapped above, the Preamble of the Protocol is noteworthy for the substantive and strong paragraphs related to Indigenous peoples, their profound relationship with GRs and TK, and their existing rights (UNEP CBD, 2011, 2–3). Particularly significant is the reference to the relevance of UNDRIP. As legal scholars have noted, while not considered to be ‘operative clauses,’ preambles are not legally powerless (Hume, Reference Hume2016). Indeed, the Protocol’s preambular language provides powerful and compelling context informing the entire instrument and its interpretation and implementation.
Consultations on ABS with Indigenous peoples in Canada: A Brief Review
The ABS-related consultations held in Canada in the lead-up to Nagoya negotiations were atypical for their relative depth and diversity, and considerable effort was expended over the better part of a decade to inform and be informed on core ABS issues. One significant part of these efforts was Canada’s capacity-building and engagement with Indigenous peoples, especially during the development of a Federal/Provincial/Territorial (F/P/T) National ABS Policy in 2009.3
Bonn Guidelines on Access and Benefit-Sharing (2000–2)
As the Bonn Guidelines were intended to be voluntary, the nature of the federal government engagement with Indigenous peoples in the Guidelines’ development and negotiation reflected this fact (UNEP, 2002). Three National Aboriginal Organizations (NAOs) – Assembly of First Nations (AFN), the Inuit Circumpolar Council (ICC) and the Métis National Council (MNC) – were engaged directly and were all invited to participate on the Canadian delegation to Bonn in October 2001. While the NAOs chose not to attend the Bonn negotiations due to post-9/11 fears of flying, a respected elder (of the Okanagan First Nation) and holder of TK participated in the delegation. Her participation was helpful and valued, but hardly reflective of the broad and diverse views held by Indigenous communities across Canada. And while Canada was notably active in negotiations regarding GRs and TK of Indigenous peoples and local communities, Canada did not speak for the inclusion or reflection of Indigenous laws, customs, and perspectives in the resulting final text.
Post-Bonn Period (2001–3)
The period following adoption of the Bonn Guidelines witnessed several ad hoc regional workshops/meetings held on Article 8(j) and on the Guidelines (held with Yukon First Nations, the Nisga’a Nation, Saskatchewan Federation of Indian Nations, Cree of Quebec). During this period, representatives for the AFN, ICC and MNC actively participated before and during the negotiations of the CBD Working Groups on Article 8(j) and ABS (Langford, personal notes, 2001–2003).
Building Awareness and Scoping ABS (2003–6)
This was a very active period in which a number of sectoral workshops were held, a discussion paper and reports were issued and visits by Environment Canada officials were made to provincial/territorial capitals to engage these governments with responsibilities over public lands. In many capitals, discussions were held with Indigenous representatives from within the province/territory. In 2004, an ABS workshop co-hosted by Council of Yukon First Nations was held in Whitehorse (Government of Canada, 2005). This workshop was attended by elders from the 14 Yukon First Nations, who called for a moratorium on access to GRs and associated TK (Langford, personal notes, 2004). In this same period, a scoping paper, ABS Policies in Canada: Scoping the Questions and Issues, was published for comment (F/P/T Working Group on ABS, 2005).
This period also saw the formation of a federal Interdepartmental Committee on ABS (ICABS), whose membership comprised all relevant federal departments, and the F/P/T Committee on ABS (F/P/T Committee on ABS), co-chaired by officials from Environment Canada and the Government of British Columbia. To our knowledge, this is the only period in Canadian ABS policy development in which governments made ABS documents public.
During this same period, Environment Canada’s ABS Unit and Biodiversity Convention Office organized with the AFN the Tsleil-Watuth International Gathering on the Protection of Traditional Knowledge. The Gathering included a range of Indigenous participants from across the globe. A resulting statement, drafted by Elders, was presented by a delegation from Tsleil-Watuth First Nation at CBD COP8 in Curitiba (2006). A full report of the Gathering was not prepared by Environment Canada, as per the wishes of the Tsleil-Watuth First Nation.
A noteworthy report was prepared, however, during the same period by Environment Canada’s ABS Unit on an international experts workshop co-hosted by Canada and Mexico in Cuernavaca, October 2004 (CONABIO and Environment Canada, 2005). The meeting convened a number of lead ABS negotiators and thinkers, including a good number of Canadian experts. Notably, the sole Indigenous participant at Cuernavaca was a representative from the AFN.
Developing a National ABS Policy (2006–9)
In this period, the federal Interdepartmental Committee on ABS (ICABS) frequently met. ICABS was established and chaired by Environment Canada, and included, inter alia, officials from Foreign Affairs and International Trade, the Department of Justice, Agriculture and Agri-Food Canada, Industry Canada and the Canadian Forest Service. The F/P/T Committee on ABS also met regularly. However, the NAOs who requested to participate on this committee were ultimately not included (due to a lack of consensus among the levels of government on allowing such participation). The NAOs did attend one F/P/T Committee on ABS in order to brief the Committee on their issues of interest, but the overall inclusion of Indigenous perspectives in the federal government’s deliberations was clearly lacking.
On the capacity-building side, Environment Canada provided some funding for NAOs to develop their positions as the ABS regime negotiations progressed in parallel with the domestic discussion. However, as noted in the ABS Canada focus groups, there remains a great deal of tension and mistrust between the NAOs and grassroots Indigenous communities and organizations. Government officials turned to the NAOs as a matter of efficiency, wishing to consult with Indigenous groups but clearly not too broadly or deeply – as this risked delay and had the potential to cause Canada bureaucratic and diplomatic headaches, as the Protocol talks accelerated.
Given the failings outlined above, one bright spot in the record remains; the 2009 consultations by the F/P/T working group, which included 19 regional meetings held coast to coast to coast with Inuit, Métis and First Nations. These meetings were held to receive a range of Indigenous views which would be taken into consideration when developing a F/P/T National ABS Plan. Participation was diverse -- participants included knowledge holders (hereditary chiefs and elders), chiefs, provincial executives, lawyers and resource managers. There was widespread support among participants for the PIC/MAT obligation with a strong preference for legal ABS protection over a voluntary regime. However, many elders were more concerned about ensuring continued access to and use of medicinal plants, and protection for these plants from pollution and harvesting by others (Langford, personal notes, 2009).
The F/P/T National ABS Strategy was adopted at the Deputy Minister level but not at the Ministerial level, given that the mechanism for doing so (the F/P/T Council of Resource Ministers) was eliminated. During this period, no ABS documents were published or released publicly by the governments.
Nagoya Negotiations (2009–10)
The focus of international ABS negotiating strategy was developed by the federal government’s ICABS with input from provinces and territories. Canada based its negotiating positions to be consistent with the F/P/T National ABS Strategy so one view within the governments was that consultations with Indigenous peoples on the Strategy was sufficient for negotiating the Protocol. The engagement was primarily with NAOs, which were provided with funds to develop positions and to participate on Canadian delegations. The Canadian delegation met periodically with IIFB members (including from Canada) during 2010 negotiations – in particular on human rights issues (Langford, personal notes, Cali 2010).
In final talks in Nagoya, as anticipated, the drafting group on Indigenous-related articles was regrettably closed to all but Parties – effectively disbarring IIFB participation. However, Indigenous representatives on the Canadian delegation were present through to the adoption of the Protocol. A Regional Chief of the AFN and a former Vice President International of the ICC participated at all the negotiating sessions in 2010. It is our view that the NAOs had a constructive influence over the delegation on a number of issues, for example, their opposition to the disclosure of TK through the monitoring system. Nevertheless, as already borne out from the ABS Canada focus groups, limiting consultations to NAOs was clearly insufficient.
Canada’s failure to broaden the spectrum of Indigenous voices at the negotiating table is reflected in the dismay voiced by many Indigenous participants in ABS Canada’s focus groups. The general sense that representation amounted to little more than tokenism, and that the final outcome was more or less preordained, was a common refrain across communities and regions. These sentiments reflect important lessons for Canada as it participates in other international negotiations where Indigenous rights and interests are engaged.
Post-Nagoya Protocol (2010–17)
To move forward with implementation after the adoption of the NP, Canada should have consolidated its resources and turned its efforts to capacity-building. Instead, the federal government began to dismantle its ABS policy capacity. Following the Protocol’s adoption and during the one-year period to sign the Protocol, budgets and human resources were significantly diminished. The result was a beclouding of earlier and genuine efforts by governments to develop ABS policy in Canada in consultation with Indigenous peoples and stakeholders. It may also, in part, serve to explain the current skepticism in many Indigenous quarters about Canada’s ABS preparedness and engagement over the years.
Engagement with Indigenous peoples during the development of the national ABS Plan and NP negotiations involved considerable effort and financial resources. One could say that these efforts were progressive at the time, both within the Canadian government and among Parties to the CBD.
While these early efforts are notable, Canada appears to have subsequently lost interest in pursuing them seriously; after an initial burst of activity, Canada ceased significant consultations, postponed a final determination on whether or not to sign and ratify the NP, and effectively relegated the ABS issue to the margins as other issues and priorities diverted staff, material resources, and political attention.
Canadian Indigenous peoples’ Views on ABS
As noted above, for many Indigenous peoples there was no opportunity to engage in policy decision-making or to be formally consulted by Canada, which tainted the process while further driving a wedge of misunderstanding and mistrust between Indigenous communities who hold TK and the government agencies and officials ostensibly acting in their best interests.
While impossible to fully characterize the wide-ranging views expressed over many years by Indigenous peoples and stakeholders on ABS and the Protocol, it is useful to note that a number of recurring themes have emerged. Not generally opposed to ABS in principle, some Indigenous peoples noted that the various engagements/consultations undertaken were at odds with the government’s obligations regarding consultation and accommodation. At the regional meetings, there was widespread support for PIC/MAT and legal protection. A starting point for ABS governance in Canada must be the adequate recognition of the rights of Indigenous peoples over GRs and TK. Capacity challenges were of central concern. Canadian governments were reminded that GRs and TK have significance beyond mere economic value. Several years later, Indigenous peoples have reinforced these views, with renewed intensity, while expressing even greater reservations as captured in the three reports of the ABS Canada focus groups (2015, 2016, 2017).
The United Nations Declaration on the Rights of Indigenous peoples (UNDRIP) and ABS in Canada
It is important to recall that at COP9 (Bonn, 2008), Canada entered the critical final two years of ABS negotiations as one of only three CBD Parties that had not endorsed UNDRIP. While Canada ended the negotiations in 2010, having endorsed the UNDRIP with certain reservations,4 it was not until 2016 that the Prime Minister announced Canada’s endorsement of the UNDRIP without reservations – consistent with Canada’s commitment to reconciliation with First Nations, Inuit and Métis. The recent endorsement of UNDRIP without reservations was a significant commitment in itself. Furthermore, it has significant implications for NP implementation in Canada.
UNDRIP is an aspirational document, without the same international legal force as legally-binding trade and environmental agreements. In our view, it has not yet attained the status of customary international law. Nevertheless, significant potential for demonstrating adherence and support for UNDRIP lies in implementing UNDRIP under national law to operationalize these Indigenous rights. In this context, national implementation of the Protocol provides a unique opportunity to make progress and thus support Indigenous rights to GRs on their traditional lands and waters and their associated TK (Oguamanam, Chapter 14).
UNDRIP Articles 31, 29 and 24 are most relevant to the implementation of the NP in Canada. These articles call for:
(1) the protection of TK including GR, seeds, medicines and knowledge of the properties of fauna and flora whereby States shall take effective measures to recognize and protect the exercise of these rights (UNGA 2008, 11–12);
(2) the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources (i.e. sustainable use) including Canada’s obligation to establish and implement assistance programs for Indigenous peoples for such conservation and protection including taking effective measures to recognize and protect the exercise of these rights (UNGA, 2008, 11); and
(3) the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals including taking effective measures to recognize and protect the exercise of these rights (UNGA, 2008, 9).
Article 28 also provides that Indigenous peoples have the right to redress by just, fair and equitable compensation, for resources that they have traditionally owned or otherwise occupied or used, and which have been taken or used without their free, prior and informed consent (UNGA, 2008, 11–12). Article 38 requires states to take effective measures to recognize and protect the exercise of these rights (UNGA 2008, 13). It follows that Canada should provide effective mechanisms for prevention of, and redress for, any action that has the aim or effect of dispossessing First Nations, Inuit and Métis peoples of their lands, territories or resources, which of course would include their GR. While policy and administrative measures may be effective in most cases (especially as they relate to research conducted by public research institutes and universities) for implementing the Protocol in Canada (Oguamanam, Chapter 11; Bannister, Chapter 12; Bureli, Chapter 13) we believe such measures are insufficient for obtaining redress in Canada or other Parties to the Protocol.
While Canada currently has legal duties to consult the First Nations, Inuit and Métis, UNDRIP also states that Canada and other subscriber countries must consult and cooperate in good faith in order to obtain free, prior and informed consent of Indigenous peoples before adopting and implementing legislative or administrative measures that may affect them. The challenge for Canada is to consult efficiently and effectively as required by the SCC in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017-SCC 40 and Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (Oguamanam & Hunka, Chapter 3) to develop a draft NP implementation strategy that recognizes the practical and very real constraints posed by consultations.
Article 18 is also particularly relevant to the implementation of the Protocol in Canada. This article expresses the principle that Indigenous peoples have the right to participate in decision-making in matters that would affect their rights, through representatives chosen by themselves. This obligation has relevance at the local level, whereby First Nations, Inuit and Métis should determine the contact person/institution and process by which access to GRs and/or associated TK shall be granted. Users need only know the PIC/MAT contact and procedures, whereas the local community can follow their customary laws and community decision-making. Development of such customary laws and cognate requirements such as biocultural community protocols are aspects of community preparedness and competence and incidental organizational capacity-building and development for ABS (Oguamanam & Hunka, Chapter 3).
Government of Canada’s Principles on its Relationship with Indigenous peoples and Implications for Implementing the Nagoya Protocol
On 19 July 2017, the Government of Canada made public its Principles respecting the Government of Canada’s relationship with Indigenous peoples (Government of Canada, 2017; Perron-Welch & Oguamanam, Chapter 6). These principles have profound implications for the implementation of the NP and for the advancement of reconciliation. The Government of Canada has committed ‘to achieving reconciliation with Indigenous peoples through a renewed, nation-to-nation, government-to-government, and Inuit-Crown relationship based on recognition of rights, respect, co-operation, and partnership as the foundation for transformative change.’ In addition to committing to implement UNDRIP through a review of laws and policies, Canada has further committed to respect the inherent rights of Indigenous peoples including ‘the rights that derive from their political, economic, and social structures and from their cultures, spiritual traditions, histories, laws, and philosophies, especially their rights to their lands, territories and resources.’ Through these Principles, the government ‘recognizes the reality that Indigenous peoples’ ancestors owned and governed the lands which now constitute Canada, prior to the Crown’s assertion of sovereignty’ (Government of Canada, 2017). These commitments clearly have implications for ABS (Nichols, Chapter 4).
Relevant to implementing the Protocol, the government has indicated that in upholding the honour of the Crown, it requires ‘the federal government and its departments, agencies, and officials to act with honour, integrity, good faith, and fairness in all of its dealings with Indigenous peoples including through fulfillment of its fiduciary obligations’ (ibid.). The Principles, informed by UNDRIP, state that ‘Indigenous peoples have a unique connection to and constitutionally protected interest in their lands, including decision-making, governance, jurisdiction, legal traditions, and fiscal relations associated with those lands.’ Through the Principles, the government has committed to ensuring ‘that Indigenous peoples and their governments have a role in public decision-making as part of Canada’s constitutional framework and ensure that Indigenous rights, interests, and aspirations are recognized in decision-making’ (ibid.). Importantly, the Principles state that Canada’s commitments to a new relationship build on and go ‘beyond the legal duty to consult’ (ibid.).
The Government of Canada has stated that it will look for ‘opportunities to build processes and approaches aimed at securing consent, as well as creative and innovative mechanisms that will help build deeper collaboration [and] consensus.’ NP implementation clearly provides one such opportunity. These Principles have significant implications for developing a post-Nagoya national ABS policy, since there is now a higher standard for the inclusion of Indigenous peoples in consultations and decision-making than there was during past developments of a national ABS policy, of Canada’s strategy and positions for the negotiation of the NP and for ABS discussions on whether or not to sign the Protocol.
The Government of Canada now recognizes ‘that meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources’ and ‘extends beyond title lands’ (ibid.). During the early period of Protocol talks (2008–9) Canada had not endorsed the UNDRIP. However, Canada endorsed the Declaration with reservations during the final stages of Protocol negotiations in 2010. Canada would not agree to the language of Free, Prior, and Informed Consent (FPIC) during the negotiations, instead only agreeing to the ‘approval and involvement’ of ‘Indigenous and local communities.’ Relatedly, Canada expressed little to no flexibility in defining the relationship between the NP and UNDRIP. Canada ultimately dropped its objections to a reference to UNDRIP in the NP’s preamble near the end of the negotiations (ENB, 2010).5 As Canada accepts FPIC in its endorsement of UNDRIP, it follows that Canada could now employ ‘free, prior and informed consent’ rather than ‘approval and involvement’ when implementing the Protocol.
Finally, it is noteworthy that the Government supports a renewed fiscal relationship that will ‘enable Indigenous peoples to have fair and ongoing access to their lands, territories, and resources to support their traditional economies and to share in the wealth generated from those lands and resources as part of the broader Canadian economy and these new approaches…include the negotiation of resource revenue sharing agreements’ (ibid.). This commitment is relevant to Protocol implementation regarding benefit-sharing from the utilization of GRs in Canada.
A Roadmap from Nagoya to Ottawa by 2020
Canada’s ABS policy development experience to date has yet to bear fruit. ABS at the national/federal level appears to be suffering from a form of paralysis, despite significantly increasing efforts and resulting progress effected across the globe at national, sub-national and community levels. Retrospectively, it appears that the drivers of action or determinants of inaction in Canada on ABS over the past decade have predominantly been those related to concerns of certain industry and research sectors over implications for intellectual property rights and the transaction costs of introducing ABS governance in Canada. Such concerns have been amplified by the enduring misperception of Canada as solely a user of GRs (Oguamanam, Reference Oguamanam2011). As well, we see no concrete evidence that key federal government departments consider accession to and implementation of the Protocol as priorities.
We perceive an important shift in Canada regarding the relevance and significance of ABS. The principles and aims of reconciliation, together with the implementation of Canada’s Principles and UNDRIP, compellingly argue for broadening Canada’s approach to ABS – moving beyond a focus on a narrow set of (sector-specific) economic interests towards a strategy that also seeks to advance Indigenous rights and interests. Furthermore, there is scope for viewing ABS in the context of implementing the 2030 Sustainable Development Goals. (The ABS Capacity Development Initiative, 2016).
Throughout the following section, we offer recommendations for five key components to ensure substantive progress: leadership within Canada; timely action; international leadership; consultation; and community-level action.
Leadership
The first step, albeit a large one, is for the Prime Minister to lead in initiating the implementation of UNDRIP in Canada by committing to implement the NP. His leadership and that of the Cabinet is needed to overcome the inherent inertia of the bureaucracy and the apparent reluctance of some industry sectors to respect Indigenous peoples’ rights, in a manner appropriate within a nation-to-nation relationship. If implementing the NP were deemed a Prime Ministerial priority, the resulting positive political energy would mobilize action and capacity required for legislative, administrative and policy development, voluntary measures, meaningful consultations and community-level implementation.
Such leadership could come in the form of a commitment to legal protection (i.e. not just voluntary approaches), for access and benefit-sharing from the use of GRs on traditional lands and waters of Indigenous peoples and the protection of their associated TK, taking into consideration customary protocols and laws. This strategy was supported by most Indigenous participants in regional meetings prior to NP negotiations.
Leadership could also be demonstrated through the development of a new model for sharing resources on traditional territories (i.e. Crown lands and private lands) under an ABS regime. Indigenous peoples in Canada want control over access to and use of their GRs and associated TK. We propose that control over access be co-decided by Canadian governments and Indigenous peoples. With respect to negotiating MAT, we propose that Indigenous peoples have majority control over use and property rights issues and that a significant portion of scientific and monetary benefit-sharing flow to Indigenous peoples. Co-management of GRs in a nation-to-nation relationship would aid Indigenous peoples in that F/P/T governments, with more resources and capacity, would lead in ABS-related litigation in civil courts on behalf of Indigenous peoples. Granted, this arrangement would be a significant derogation from the historical (and contemporary) trend of the governments’ spending large amounts of money to fight Indigenous nations’ legal claims through litigation. We assume, based on the government’s commitment to reconciliation, that they will rethink this position in the future, as they move towards true reconciliation that recognizes and respects UNDRIP rights.
Urgency
Speed in the exercise of leadership and policy development is of utmost importance. The year 2020 marks the culmination of the CBD’s Aichi Biodiversity Targets 2010–20 initiative. Implementation of the Protocol is one of the Aichi Targets. Again, if Protocol implementation was judged a priority for the Prime Minister, it is not untenable that elements of a domestic framework ABS regime (including policy, administrative and legislative measures) could be in place by 2020. Such a possibility is increasingly slipping by as 2020 fast approaches.
There is also an urgent need to act: the longer Canada takes to implement a legal regime, the longer that Canada will remain at a disadvantage in the ongoing global ABS policy-making debates. There are three notable implications of Canada not acceding quickly to the NP. Perhaps most important is that there will not be legal protection in other countries for the PIC/MAT of Canadian providers or users of GRs and associated TK. This lacuna is becoming increasingly significant now that Canada’s wealth of GRs is being unravelled in an unprecedented scale through the effects of climate change especially in the Arctic, which is the focus of intense economic activity (Oguamanam & Koziol, Chapter 7). Second, as a non-Party, Canada would continue to be absent from the decision-making table where NP Parties exercise the exclusive privilege of determining the further development of the international ABS governance regime, including concerns of Indigenous peoples. Third, there is a risk that Canadian science and industry sectors will lose opportunities to access and utilize the GRs of other countries, in the absence of Canadian measures to enforce compliance with those countries’ ABS laws.
An important potential benefit of Canada’s speedy progress on ABS implementation is the political capital and goodwill it would generate among the 195 other CBD Parties. As leading proponent of the CBD and host to the CBD Secretariat in Montreal, the advantages of Canada becoming Party to at least one of the CBD’s protocols are patently obvious to all concerned.6
International Leadership
Once committed to a legal ABS regime in Canada, leadership could, in turn, be demonstrated internationally by developing an exemplary national system for implementing the NP. While legislation would form the core of legal protection and compliance measures, administrative, policy and funding measures would be necessary for effective implementation of the Protocol as a whole. The Canadian regime could involve regulatory, civil, customary law and perhaps criminal law in extreme cases. The goal could be to develop an effective and pragmatic national model that other countries could follow, especially in the context of implementing UNDRIP through ABS policy. The Protocol is the minimum standard for enforcing PIC/MAT; Canada could decide to have a policy with broader policy scope than the Protocol. Indeed, this proposal is one of the outcomes from ABS Canada’s nation-wide focus groups on an Indigenous-sensitive ABS policy.
Consultations and Engagement
Given that the implementation of the Protocol will directly affect Indigenous rights, consultations should allow for consensus on a national ABS strategy. While the views of stakeholders will be important in developing a national ABS strategy, Indigenous peoples are rights holders and therefore there are associated legal obligations that need to be respected.
First Nations, Métis and Inuit should be included at the Ministerial level of a Federal/Provincial/Territorial/Indigenous peoples Resource Council to approve a national ABS strategy. Indigenous participation would also occur at the working level and senior executive committees. The National Aboriginal Organizations should also receive funding to participate in the NP implementation process, including in consultations. Measures should be undertaken to ensure that Indigenous women, elders and youths are well represented. Appointment of an Indigenous co-chair could be considered.
Consultations must necessarily include, but go beyond, the engagement of NAOs. Extra effort should be made to consult hereditary chiefs, knowledge keepers and other elders with TK of their biodiversity and plant-based medicine because they hold the TK associated with GR. The federal government would also be responsible for consulting more broadly, through a multi-pronged regional strategy, in order to seek out the range of available ABS expertise (i.e. among hereditary chiefs and elders, chiefs and band managers; national, provincial and territorial Indigenous leaders; Inuit regions; environment and resource managers; academics and sustainable development lawyers; science and industry sectors; and civil society representatives).
Given the significant effort needed to raise awareness and develop a working knowledge of ABS, consultations could best be focused on organizations and individuals who have been active or want to be active on ABS issues in the years to come. This is one of the lessons from the ABS Canada initiative. While there has been a void in ABS consultations in recent years, current Indigenous capacity for consultation can be found, for example, through members of the Social Sciences and Humanities Research Council (SSHRC) sponsored research program ‘Intellectual Property in Cultural Heritage (IPinCH)’7 and the ABS Canada initiative.8
In implementing UNDRIP and the Government of Canada’s Principles via ABS, we would advocate the establishment of an independent Indigenous body to promote Indigenous biodiversity-related issues (regarding the CBD’s Articles 8(j) and 10(c) and NP). This ‘Indigenous Council on Biodiversity’ should be reflective of elders’ concerns about access to and protection for medicinal plants, as well as the need to respect traditional Indigenous protocols governing the use of traditional medicines. Some elders at the 2017 spring session of the ABS Canada Focus Group held in Saskatoon expressed similar sentiments.9 Main roles of the Council could include: leading on ABS capacity-building at the community level (e.g. development of codes of conduct, community protocols); administering a UN-like financial mechanism for local capacity-building for respecting, maintaining and protecting TK; providing for the protection of medicinal plants; and supporting sustainable use/development and ecosystem approach to management on traditional lands and waters.
Community-Level Actions
The PIC/MAT obligations of the Protocol provide that users of GRs and associated TKs held by ILCs follow the community process for their access and use. In this manner, customary protocols of the community are recognized. Of course, this means that communities need to take measures to prevent unauthorized disclosure by individual community members. By designating a community ABS focal point, the procedure for users would be clear. Users do not need to know details of the community decision-making processes (i.e. customary laws) except that time is necessary for communities to make their decisions.
The PIC/MAT process also means that communities that want a moratorium on accessing TK have that option. Furthermore, communities wishing to prevent access to sacred medicines and medicinal plants have the option to deny access to those outside the community (Oguamanam, Reference Oguamanam2003). To support community control over access and use of GRs and associated TK, Indigenous peoples will need the capacity and tools to negotiate PIC/MAT on fair terms (Oguamanam & Hunka, Chapter 3).
Consistent with Protocol Article 12, the government could immediately begin the work of developing documents with model language for adaptation by each community. Communities will likely need first to negotiate a confidentiality agreement at the outset of research (Burelli, Chapter 13). So, a model confidentiality agreement would be desirable. There are many existing examples of ABS model contract provisions for benefit-sharing that could be adapted for Indigenous peoples; for example, clauses that set out allowed uses and ownership of GRs and associated TK provide important legal clarity in MAT (ABS Capacity Development Initiative, 2017) 10.
A National ABS Focal Point should lead in coordinating the development of these model clauses; however, these initiatives also need to be complemented by awareness-raising and capacity-building. Given that most communities are unlikely ever to have users request access to GRs and associated TK, it could be most efficient for the National ABS Focal Point to provide resources for expert legal capacity at the time users request access.
While it has been noted that Canada is lagging behind much of the rest of the world in genetic resource and TK governance development at the national level (i.e. in the context of implementing the current global benchmarks established by the NP), instructive experiences exist in community-level ABS development in other parts of the world. There are also successful local examples in Canada (Oguamanam & Koziol, Chapter 7). Canada can and must learn from these experiences. One could envision the establishment of a pilot project among Canadian and overseas partners to support a South-North or North-North capacity-building initiative designed to support ‘Indigenous community–to–Indigenous community’ collaboration to jump-start concrete work on ABS at the local level in Canada. Indeed, there is nothing to disallow the establishment of such collaboration, even in the current absence of full national ABS leadership (Oguamanam & Hunka, Chapter 3).
Conclusion
Canada and Indigenous peoples in Canada have played pivotal roles in developing international ABS policy and governance instruments. While there has been an apparent hiatus on ABS within the federal government post-Nagoya, previous wide-ranging efforts at policy development and engagement conducted by the federal, provincial and territorial governments represent a firm, substantive foundation still valuable for advancing ABS governance in Canada.
Now that it has dropped its objections to UNDRIP, and with its population seized by the need to move forward on reconciliation, Canada has reached a historic juncture. The NP, when understood as a rights instrument supporting justice and fairness, offers a tool to promote UNDRIP and reconciliation. It is time for a fundamental shift in perspective on ABS in Canada – away from a narrow, user-based view towards a deeper and more inclusive rights-based understanding of the Protocol.
The rationale for implementing the NP has never been stronger and the need never greater. The opportunities inherent in ABS must now be pursued, and Canada should re-join the global ABS push. Our roadmap highlights the critical need for leadership at many levels – beginning with the Prime Minister of Canada and including Canada’s Indigenous peoples.
Introduction
‘Capacity building’ and ‘capacity development’ are buzzwords in contemporary development, including international development and policy discourse. They designate a variety of support mechanisms, including processes and interventions directed to enable or empower institutions, communities, collectives or even individuals to obtain or acquire required skills, expertise, competences or knowledge to optimally perform or bridge existing performance or skills and competence gaps in an identified area. Although in the strict sense, the two phrases do not mean the same thing, they are used interchangeably here for simplicity and pragmatic reasons. Theoretically, capacity building presumes there is no pre-existing capacity on the part of the target, whereas capacity development assumes the converse but aims at improving existing capacity. Capacity building and capacity development may define an intra-institutional need, i.e. it can apply within a firm or across related firms or institutions or their component departments (organizational capacity building and capacity development) or within a community or across related communities and their constitutive segments (community capacity building and capacity development).
However, in the context of the development discourse, these phrases find traction within the usual fault line of global North–South relations and power dynamics. However innacurate, the South is often portrayed as lacking capacity and the North as having the desired capacity, notably in technology and infrastructure. The South is, therefore, a subservient or docile recipient of capacity building and capacity development in the fashion designed by the North. That approach is a corollary of colonial ideology, that is often knowingly or unknowingly weaved into the contemporary development narrative and policymaking. As a result, Indigenous peoples in Canada and elsewhere in the global North have often been characterized as the ‘South in the North,’ the ‘Fourth World’ that are perennially circumscribed in the historical inequities of colonialism (Wilmer Reference Wilmer1993). Ironically, Canada is on the frontline of international development aids and other intervention initiatives in the global South. Canada and its developed colonial and industrialized counterparts are heavily invested in exporting ‘development,’ including its adjuncts such as capacity building and capacity development, to the global South. Not only does Canada have some of the globally reputable international development agencies, in addition to trade, international development is the fulcrum of Canada’s foreign relations. In this benevolent endeavour, Canada prefers to revel in its enviable, albeit suspect, recognition as a model of justice, equality, and an example of a viable multicultural liberal democracy and polity.
Yet, Canada remains in denial of the injustices that characterize the Aboriginal experience domestically, which have carved a deep scar on Canada’s national conscience. Today, the Indigenous peoples of Canada continue to remain the South in the ‘True North’ in terms of their living conditions and standard of living. For example, in a 2012 visit to Canada, then-United Nations Special Rapporteur on the Right to Food, Olivier de Schutter, lamented the magnitude of food insecurity among Northern Aboriginal communities and other remote Indigenous communities in Alberta and Manitoba. In his scathing remarks during that visit (which the then-Conservative government of Stephen Harper snubbed), the envoy characterized the conditions as not only ‘very desperate’ but the people as being in ‘extremely dire straits’ in regard to food insecurity. He counselled that ‘Canada needs to drop its “self-righteous” attitude about how great a country it is and to start dealing with its widespread problem of food insecurity’ (Kilpatrick, Reference Kilpatrick2012) that is visibly prevalent among Indigenous peoples.
Few things underscore the prominence of capacity building and capacity development more than their inclusion into modern treaties, other international legal instruments, and into the language of various manners of development agencies – World Bank, IMF, WTO, UNCTAD, UNDP, etc. While the focus on infrastructure remains constant, in most of these contexts, the specific subject matters or targets, as well as triggers for capacity building and capacity development, are either novel or emerging phenomena including contingency situations such as disaster mitigation response. Some examples of the focus of capacity building and capacity development in miscellaneous areas most relevant to Indigenous peoples include information communication technology, other paradigmatic innovations and technologies such as bio and digital technologies, the climate change phenomena, ocean ecosystems and fisheries management (Rutherford, Herbert and Coffen-Smout, Reference Rutherford, Herbert and Coffen-Smout2004; Weng et al., Reference Weng, Glazier, Nicol and Hobday2015) conservation, livelihood improvement and poverty alleviation (Haque, Deb and Medeiros, Reference Haque, Deb and Medeiros2009); research collaboration (Broad and Reyes, 2008; Smith et al., Reference Smith, Mount, Bennett and Shed2014); tourism development (Bennett et al., Reference Bennett, Lemelin, Koster and Budke2012) pandemics, and various forms of natural and human-made disasters of unprecedented magnitude, to mention a few.
In other cases, what may be new and in need of capacity building and capacity development is espoused as intervention or mitigation strategies, including governance, institution building, legal or regulatory capacity enhancement. Often, some of the prescribed responses are alien, to variable degrees, in relation to the existing worldviews, priorities or even aptitude of the target IPLCs. As well, they come with questionable and often paternalistic assumptions in regard to these target beneficiaries of capacity building and capacity development initiatives. With specific regard to the Nagoya ABS framework, Perron-Welch and Oguamanam (Chapter 6) observed that ‘the global norms on ABS reflect aspects of colonial legacy of fixation on economic appeal of raw materials’ through access mechanisms, while benefit-sharing takes the form of platitudes (Wright, 2017). In this market economic consideration, the valourization of genetic resources (GRs) as resources takes precedence over other cultural affinities that undergird Indigenous peoples’ relationship with life forces, including biological diversity, GRs and TK. There is often an unrecognized need to build and develop capacity for those who seek to build and develop capacity to understand their target beneficiaries.
The foundation of the modern international legal system, and more broadly the international order, is largely a derivative and continuation of the legacy of colonial relations. The Indigenous peoples of Canada and their counterparts elsewhere have been co-opted into that order. Until recently, that order called into question their humanity. It has yielded an intimidating or asymmetrical power relation that has taken Indigenous peoples’ priorities, worldviews and values hostage. Millennia of policies of cultural subjugation, even cultural genocide, epistemic discrimination and devaluation, and determined but thankfully failed attempts to permanently ‘solve’ the ‘Indian question’ (Angie, Reference Angie1996; Anaya, 2004) (through the eradication of the Indian) has left the ‘Indian’ and their counterparts, and victims of colonialism permanent targets and recipients of all kinds of capacity building and capacity development, in a way, as an inevitable form of a new and barely interrogated orientation.
In this Chapter, we address the capacity building and capacity development dynamic in the context of, and beyond the NP, with a focus on how Aboriginal capacity building and capacity development on ABS could be engaged in Canada against the backdrop of Canada’s profile as an active actor in the international development space. We examine the first major ongoing and evolving capacity building and development initiative on ABS in Canada (courtesy of the MAPC and the ABS Canada research initiative) and how the outcome of that partnership helps foreshadow capacity building and capacity development towards an Aboriginal-friendly ABS regime in Canada.
Capacity Building and Capacity Development as an Imperative
Without question, there are conspicuous bases for capacity building and for capacity development as strategies for tackling historic injustices in specific and variegated cases (Department of Justice, 2017). The most notable one is in relation to ABS over GRs and TK (Davis et al., Reference Davis, Smit, Kidd, Sharrock and Allenstein2015), as part of an important step towards justice, reconciliation and international and national cohesion on the Indigenous question. Perron-Welch and Oguamanam (Chapter 6) indicate that the protection of traditional knowledge issue, of which ABS is an adjunct subject, is fairly new in international law. Because of its cross-cutting nature, it is the focus of diverse sites for ongoing legal and policy capacity building and capacity development, as evident in various international law-making processes that have ramifications for ABS. For example, outside of the formal international institutional framework, the German-based ABS Capacity Development Initiative has been involved in building and developing capacity on the implementation of ABS regimes in Africa since 2006. This work has been on both a continent-wide basis throughout the African Union and on national basis across select countries in the region in a classical form of North-South capacity building and capacity development. This is but one example to show that ABS is a novel concept. Even the international community that, in part, collectively invented ABS, as a response and mitigating strategy to biopiracy, needs capacity building and capacity development with regard to the ramifications and applications of ABS.
In the Canadian context, part of the legal preparedness or lack thereof for an Aboriginal sensitive ABS lies in the broader dynamic of Canada’s relationship with its Aboriginal peoples. As explored by Joshua Nichols in Chapter 4, Aboriginal people’s claims to GRs and associated traditional knowledge can be broached from within the flawed but salvageable architecture of s. 35 of the Charter (i.e. the Constitution Act, 1982). Nichols has highlighted and disclaimed the defective sovereign-to-subject foundation and the questionable presumptions that have since animated the interpretational orientation of s. 35 by the courts. That approach has created a series of barriers, scrutiny and constraints with regard to Aboriginal peoples’ inherent rights to self-determination and self-government. These are intrinsic rights of any sovereign, which no other sovereign can grant to another, let alone extinguish.
Indigenous peoples’ rights claims over biogenetic resources and traditional knowledge must, of necessity, issue from and be recognized as part of sovereign-to-sovereign relationship within the Canadian State. According to Nichols and other contributions to this volume (such as Perron-Welch & Oguamanam in Chapter 6), a progressive interpretational outlook on s. 35 and other frameworks of Canada’s relationship with Indigenous peoples has become imperative. These approaches debunk the terra nullius doctrine and unequivocally recognizes the pre-contact, unbroken, and unceded sovereignty of Indigenous peoples and their relationship with Canada on a nation-to-nation basis. It is an outlook that grounds Indigenous peoples’ rights to natural resources, including, of course, GRs and TK. By extension, such rights constitute the warrant for Indigenous peoples as parties whose interests are significantly engaged in ABS.
As Canada pursues the reconciliation agenda and portends to heed the Truth and Reconciliation Commission (TRC)’s call to action on UNDRIP, there appears a gap for building and developing capacity for a more progressive jurisprudence on Indigenous peoples in the context of new national and international interest on GRs and associated traditional knowledge and, by extension, ABS. Canada’s first Aboriginal Minister of Justice, Jody Wilson-Raybould, has indicated that part of Canada’s renewed rapprochement with Aboriginal peoples, in the spirit of reconciliation, is breathing new life into s. 35 of the Constitutional Act, 1982 (Perron-Welch & Oguamanam, Chapter 6). That, in itself, is conceivably the first site for legal and jurisprudential capacity development1 that would have direct ramifications for ABS.
International law vests the sovereign rights over natural resources and authority over ABS on states. But that authority is subject to the national law (CBD, Articles 15(3)). In exercising that authority, the NP supports consideration for and the incorporation of ‘indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge and associated genetic resources’ (NP, Article 12(1)) for the implementation of ABS. Already, the principles of free, prior, and informed consent and consultation of Indigenous peoples in making decisions that affect them is affirmed in the NP. Those principles are now also part of the international law on Indigenous peoples and cemented in Canadian law, as recently affirmed by the Supreme Court of Canada in Clyde River (Hamlet) v. Petroleum Geo-services Inc. (2017).2 In Canada and elsewhere, recognition of Indigenous sovereignty includes the recognition of Indigenous legal traditions, customary practices and protocols. Doing so situates Canada as a country with plural legal traditions beyond its much-touted official Anglophone (common law) and Francophone (civil law) bi-juridical status. A fuller realization of that approach remains contentious in the history of Canada’s relations with Indigenous peoples. It is a site for capacity building and capacity development for Aboriginal communities and all tiers of government in Canada. Such capacity building and capacity development could not be more urgent and compelling if Canada was to embark on implementing Aboriginal sensitive ABS within or outside the Nagoya framework.
From the foregoing, it is clear that capacity building and development is not a one directional top-down process with Indigenous peoples as the default recipients. Along these sentiments, Indigenous partners and participants at the 2016 ABS Canada Focus Group on ABS held in Ottawa, observed: ‘[c]apacity building [and development] on ABS need to be a two-way or “multidirectional” exercise. As such, while governments need to support ABS capacity building in different directions, Aboriginal peoples also need to educate the government on how to engage and understand Aboriginal peoples as important stakeholders in ABS’ (ABS Canada, Ottawa, 2016, 10). There is much to be said for building and developing capacity of public servants and various policy-makers on cross sectoral scales on awareness of Aboriginal issues throughout the entire accoutrement of Canada’s public service and national life generally, even more so in complexly lawyered and novel fields in which ABS is implicated.
Capacity Building and Capacity Development in the Nagoya Protocol (NP)
Article 22 of the NP is devoted to capacity building and capacity development. That provision deploys the two phrases interchangeably. It prescribes that Parties shall cooperate in capacity building and capacity development for effective implementation of the NP. The NP’s design of capacity building mimics the classical international development approach. Its blatant targets for capacity building include ‘developing country Parties, in particular, the least developed countries and small island developing States among them, and Parties with economies in transition’ (NP, Article 22). For the most part, this is a direct reference to the global South. The Article further provides that Parties shall draw expertise from ‘existing global, regional, subregional and national institutions and organizations’ to build and develop capacity. There is no direct reference to Indigenous peoples, in the strict sense, as direct targets for capacity building. Rather, the NP provides that in the context of capacity building and capacity development, Parties ‘should facilitate the involvement of indigenous and local communities and relevant stakeholders including non-governmental organizations and the private sector’. In a way, Indigenous capacity building and development is not conceived as an imperative but rather as an adjunct or subservient aspect of building capacity in a state Party. This approach does not address glaring situations of lingering colonial relations such as in Canada, where there is rarely a unity of purpose between a state Party and its IPLCs (Oguamanam, Reference Oguamanam2004).
The omission of Indigenous peoples as direct targets for capacity building and capacity development and the ambiguous and non-binding reference to facilitating their involvement in capacity building and capacity development is one of the gaps in the NP. The question begs asking, in what ways, to what extent and to what end can States ‘facilitate the involvement of indigenous and local communities’ in capacity building and capacity development? Despite the importance of ABS as a subject critical to Indigenous peoples’ interests, in Canada and elsewhere, the focus of the capacity building provision on the global South reflects one of the perennial fault lines of international development – the presumption that Indigenous peoples of the global North are at parity with dominant populations in their current ancestral-homeland-turned-colonial enclaves and, as such, could not be the primary or legitimate target of capacity building and capacity development. This correlates to the tendency by colonial states, such as Canada, to direct their international development efforts, including capacity building and capacity development, to the global South under the pretext or assumption that there is no domestic development deficit in segments of its constituent units or populations as mentioned in Olivier de Schutter’s remarks.
Under the NP, capacity building and development aims at strengthening human and financial resources, and institutional capacity. Targets of capacity building are required to ‘identify their national capacity needs and priorities through national capacity self-assessments’ while supporting ‘the capacity needs and priorities of indigenous and local communities … as identified by them with special consideration for “the capacity needs of and priorities of women”’ (NP, Art 22.3). The NP identifies key areas for capacity building and capacity development. They are: the overall capacity to implement and comply with NP obligations, to negotiate mutually agreed terms with users of GRs, to implement and enforce domestic legislative and administrative measures, and to develop valued-added endogenous research capacities to their genetic resource (NP, Article 22(4)(a–d)).
Finally, the NP outlines measures aimed at building and developing the capacity for implementation of ABS as follows: legal and institutional measures, training for skill in negotiating MAT, monitoring and enforcement of compliance, use of effective communication tools and internet-driven systems for ABS activities, and development and application of valuation methods. Other capacity-building and development measures relate to bioprospecting, including related research and taxonomic studies; sustainable transfer of technology; measures ensuring that ABS contributes to biodiversity conservation outcomes; and devising special measures to boost the capacity of ILCs, and capacity of women members of those communities to participate and benefit from ABS.
Pursuant to Article 22 of the NP on capacity building and capacity development, conceivably, the ability of ILCs to benefit from capacity building and development is at the discretion of state Parties to the NP. Two points should be addressed here: First, under the NP, there is a presumption that the developed, industrialized countries of the global North, who are essentially the users of GRs, have no need for capacity building and capacity development on ABS. Second, as outlined above, since ILCs are technically not parties to the NP, their interest in capacity building and capacity development is essentially secondary. In the Canadian context, both presumptions are fundamentally flawed because ABS is a novel concept. Both the providers and the users of GRs and TK (even if that categorization is misleading) are in need of capacity building and capacity development. As we argued earlier, even though international law recognizes sovereign states as Parties to the international conventions, that position is without prejudice to nation-to-nation or sovereign-to-sovereign status of component nations in a given State, where there is shared sovereignty with full rights of self-determination (Nichols Chapter 4).
In addition to the enduring trust deficit that defines Indigenous peoples’ relations with colonial laws, including the international law-making process, the problematic approach to capacity building and capacity development underscores, in part, their lingering skepticism over the Nagoya ABS framework. At the ABS Canada Focus Groups, Indigenous partners and participants questioned the legitimacy of the NP as it relates to their experiences. They expressed deep resentment over Canada’s perceived reprehensible role at the Nagoya deliberations. Specifically, as pointed out by Hodges and Langford (Chapter 2), the role included Canada’s objections to the reference to ‘Indigenous peoples’ and preference for the term ‘indigenous and local communities’3 as well as Canada’s attempted but failed resistance to the inclusion of the UNDRIP in the preamble to the NP. Not only did Canada participate at the negotiations without consulting Indigenous peoples, Indigenous partners and participants argued that the NP is premised on principles that are irreconcilable with their worldviews.
Some of these objections are no longer as striking as when they were raised. This is largely due to policy shakeups on Aboriginal relations via the implementation of the TRC Report, unqualified endorsement of UNDRIP and progressive approach to s. 35 and nation-to-nation relations pursuant to the Justin Trudeau government’s program on reconciliation. Yet Indigenous peoples remain cautious, insisting that the NP represents one ideology or pathway for ABS that does not preclude them from developing their own vision of ABS. As true as that is, many of the NP’s elements for capacity building and capacity development are encouraging and can be adapted or internalized to drive Indigenous sensitive ABS within the overarching framework of self-determination. That is the approach taken by the MAPC in its partnership with ABS Canada dating back to 2011 to which we shall return later.
A Partnership Strategy for Capacity Building and Capacity Development
The United Nations has deployed partnership building as a tool for sustainable development. Specifically, through both the millennium development goals (MDGs) (2000–15) and the Sustainable Development Goals (SDGs) (2015–30), the UN enunciated the instrumentality of partnership for advancing developmental goals. Although in those contexts, the UN’s familiarity or preference for public sector cooperation or partnership with the private sector (the so-called PPP model) is evident (Chon, Roffe and Abdel-Latiff, Reference Chon, Roffe and Abdellatif2018). However, it does not underestimate the flexibility and inclusiveness required to put partnership at work for addressing capacity building and capacity development gaps. Accordingly, pursuant to SDG #17, the UN observes: ‘A successful sustainable development agenda requires partnerships between governments, the private sector and civil society. These inclusive partnerships built upon principles and values, a shared vision, and shared goals that place people and the planet at the centre, are needed at the global, regional, national and local level’ (UN, SDG, 2015).4
As we demonstrate below, after the NP was signed in 2010, perhaps the first Aboriginal-driven initiative to open a conversation on the NP and ABS, in general, has been at the instance of MAPC. MAPC is a regional Aboriginal leadership organization with a strong democratic ethos and deep roots in Aboriginal grassroots in the three Canadian maritime provinces: Nova Scotia, New Brunswick and Prince Edward Island. These provinces represent the traditional ancestral homelands of the Mi’kmaq, Maliseet, and Passamaquoddy Aboriginal peoples of Canada. MAPC is a federating Aboriginal institution for the region, through which the component native councils are able to exert relevance, project and protect the historic and contemporary Aboriginal interests in the region, as well as nationally and internationally. At the core of its objectives, MAPC is committed ‘[t]o remain ever vigilant and to take any and all measures available: at law, by politics, or through proactive advocacy to ensure that decision-makers do not subject our community of traditional ancestral homeland Aboriginal Peoples to social, economic, educational, political or individual disadvantage, stereotype, vulnerability, prejudice or discrimination’ (MAPC, 2017, http://mapcorg.ca/).
Over the years, MAPC has remained resolute to the realization of that mandate and earned for itself integrity in advocacy, Aboriginal entrepreneurship and research. Today, it is an authoritative institution involved in continuing capacity building and capacity development that is required for Aboriginal peoples to effectively participate in the evolution or transformations of historical Aboriginal interests and in the emergent fields in which those interests are engaged. So far, given its commitment to capacity building and capacity development, MAPC has partnered with relevant national organizations, including the National Congress of Aboriginal Peoples in establishing the ‘SAR Ikanawtiket’ in 2005 (Maritime Aboriginal Peoples Council, 2017). SAR Ikanawtiket is a project dedicated to fostering environmental respect and the realization of the Species at Risk Act (SARA). It is now the foremost and the most resourceful biodiversity conservation, capacity building and capacity development educational tool arising out of Aboriginal knowledge and worldviews of the living environment.
In addition to the SAR Ikanawtiket initiative, MAPC is a contact and contracted partner with constitutive native regional councils and relevant government agencies for a project on Oceans and Aquatic Resources Management, a region-wide initiative aimed at continuing, environmentally respectful and sustainable use by communities of the five regional watersheds in the maritime region, namely the Bay of Fundy, Eastern Shore Atlantic Ocean, Northumberland Strait, Bai De Chaleur and Atlantic Ocean. Using proactive and constructive partnerships, MAPC executes work under this project through the Maritime Aboriginal Aquatic Resources Secretariat (Maritime Aboriginal Aquatic Resources Secretariate (MAARS) 2017) – an incredible resource on Aboriginal sensitive, equitable and sustainable resource management.
As its modus operandi, MAPC is in the practice of using its ‘expertise and capacity to undertake a range of “pilot or regional” programs or initiatives’ as may be agreed to by member councils (Projects & Initiatives, 2017). According to it, ‘Sometimes, in the context of international subjects, MAPC will be mandated responsibility by the Member Councils, or National Organization, or Traditional Leaders, to follow a subject, make attendances, draft submissions, present same, and report on the outcomes by informal brief or by public paper’ (ibid.). MAPC undertakes these kinds of tasks through various commissions, the most ‘effective way to gather a large range of views from the traditional ancestral homelands of Aboriginal Peoples, and also serve as one vehicle to raise awareness about important topics, and help to build regional solidarity and focus of the advocacy’ (MAPC Commissions, 2017). Given its track record on issues relating to biodiversity conservation, MAPC readily focused on the NP and ABS to raise awareness and gather the views of aboriginal peoples on ABS immediately after the NP was signed in 2010.
In 2010, MAPC led the first major Canadian Indigenous initiative on ABS through a partnership that involved expert support from then Dalhousie University’s Professor Chidi Oguamanam, which resulted in a well-mobilized and well-attended Indigenous ABS forum. The partnership strategy reflected a constructive leveraging and adaptation of capacity building and capacity development vision of the NP text explored above. It also involved a significant degree of community awareness-raising on the subject of the NP and ABS even though not in the scale elaborated in Article 21 of the NP. The ongoing MAPC initiative is instructive in many respects, including but not limited to the following. First, by taking charge of capacity building without waiting for Canada, it rejects the location of IPLCs as second layer targets for capacity building under the NP.
Second, by seeking out its own partner(s) on the basis of trust without too much formalism, MAPC underscores Aboriginal initiative and exercise of freedom of judgment and decision-making in matters that concern them. Third, as an entirely MAPC initiative, the first major ABS forum was able to broach the issue of identifying, at least at the regional level, capacity needs and priorities, and consequently opened up a national dialogue on the need for Indigenous capacity self-assessments through broadened conversations on Indigenous-friendly ABS. Fourth, the deliberate attempt by MAPC to ensure equitable gender and transgenerational representation at the first major Aboriginal-initiated ABS forum demonstrated Aboriginal peoples’ expansion of capacity need and priority to include not only women but also elders and the younger generation of Aboriginal youths.5
After two-day deliberations on ABS, under the auspices of the MAPC commissions program, men, women, elders, younger generations and members of traditional ancestral homelands of Mi’kmaq, Maliseet, and Passamaquoddy Aboriginal peoples of Canada, their collaborating partners and other indigenous delegations enunciated a fifteen-Article Iskenskisk Declaration on ABS. The document is the first major Aboriginal charter on ABS in Canada and it is reproduced here in ex tenso without the preambles:
We the Aboriginal organizations and individuals assembled in our traditional ancestral homeland gathering site continuum of 10,500 years, declare the following as essential to keep under constant advisement in implementing the intent of the Convention on Biological Diversity in Canada for the access, use, and fair and equitable sharing of benefits arising out of the utilization of genetic resources and associated traditional knowledge …
Article 1: Mother Earth concentrates all energy to give life to everything, without asking for anything in return. Our worldview, as Aboriginal Peoples, requires us to respect Mother Earth and to conduct ourselves in a manner that does not violate our interconnected and interdependent relationship with our soils, waters, air, ice, mountains, and all natural life (biodiversity) on Mother Earth.
Article 2: Aboriginal Peoples within the Federation of the Peoples of Canada have survived the derogation of our complete liberties (rights) under treaties, dislocation from our traditional ancestral homeland territories, denial of our birthright identity, and forced disassociation from our languages, cultures, traditions, and practices thereto.
Article 3: Mother Earth and Aboriginal Peoples have been victimized by greed, the doctrine of terra nullius, the doctrine of dominance, and more, all of which have brought about the devastation of biodiversity; destruction of soils, waters, air, and ice; disassociation from respectful and caring practices; denial of peoples duties to future generations; discord between Peoples; disproportionate distribution of wealth from ingenuity and progress; disharmony in the manner and dislocation in the approach for the utilization of natural resources, their genetic characteristics, and their derivatives; and the dishonest treatment of traditional knowledge of Aboriginal Peoples.
Article 4: Aboriginal Peoples within the Federation of Canada must be allowed the responsibility to effectively demonstrate our vital role in conservation, sustainable development, and benefit-sharing under fair and equitable terms, as members of the family of humanity on Mother Earth.
Article 5: Aboriginal Peoples must not allow Canada to undermine or percolate subversive meaning to the Convention on Biological Diversity, or the decisions or protocols thereto, including the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, to accommodate economic incentives alone or to slip the Convention, decisions, or protocols away from public view.
Article 6: Aboriginal Peoples’ respect, knowledge, and holistic approach to natural resources and biodiversity includes the genetic properties of such resources and their derivatives. A restricted interpretation of the term ‘genetic resources’ disrespects the worldviews of Aboriginal Peoples and upstages or puts on hold discussions and concurrent work on the subject.
Article 7: There is within the Federation of Canada both a ‘user’ and a ‘provider’ construct to access and benefit-sharing. Accepting this ‘user and provider’ reality, reshapes the opportunities available and reveals the benefits and value of seriously engaging with Aboriginal Peoples in effective, meaningful, and open partnerships; no less than aspired in the Nagoya Protocol, and keeping under review the Convention on Biological Diversity, on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization.
Article 8: Canada’s assertion of complete authority to determine access to genetic resources is qualified and limited by the provisions of Sections 25 and 35 of the supreme national domestic law - the Constitution Act, 1982.
Article 9: Bio-technology activities which may affect Aboriginal Peoples’ resources, access, and use rights require consultation and accommodation. If no accommodation can be achieved, then compensation must be made to the affected Aboriginal People. Anything less is considered to be an act of biopiracy.
Article 10: Canada’s implementation of the Nagoya Protocol must have the full and effective participation and involvement of all Aboriginal Peoples within the Federation of the Peoples of Canada.
Article 11: Aboriginal Peoples, continuing within the boundaries of the Federation of the Peoples of Canada, take issue with the Nagoya Protocol restriction on capacity building limited to Peoples only of ‘developing countries’. Aboriginal Peoples in ‘developed countries’, like Canada, require access to financial mechanisms and broad supports to develop capacity and awareness and for meaningful involvement and effective participation on access and benefit-sharing matters.
Article 12: The structure and operational framework of any ABS Clearing-House in Canada must be negotiated with the full and effective participation and involvement of all Aboriginal Peoples within the Federation of the Peoples of Canada.
Article 13: For basic transparency and representative governance in Canada, Aboriginal Peoples must be a part of the decision-makers and have seats within an oversight council for any National ABS Clearing-House.
Article 14: A National ABS Clearing-House and a National ABS Focal Point in Canada must comply with the constitutional provisions of Section 25 and 35 of the Constitution Act, 1982 and must honour jurisprudence on the subject of ‘dealings with Aboriginal Peoples’, which must not appear to be sharp – the Honour of the Crown is at stake.
Article 15: Access, use, and benefit-sharing of natural resources, genetic properties, and traditional knowledge has a moral, social, political, and economic dimension, which must be addressed through international norms and an international regime. Failure to adequately address or police access, use, and benefit-sharing from abuse, violates sustainable use of natural resources and the need to protect human health and the environment from adverse effects and from products or activities with suspect Source of Origin.
In 2014, four years after the Iskenisk Declaration, MAPC engaged with the ABS Canada research initiative as a core Aboriginal partner, as part of ABS awareness-raising and nation-wide capacity building and capacity development through, among other things, the instrumentality of focus groups. ABS Canada is comprised of interdisciplinary researchers, national and international experts, including Indigenous experts, students/trainees and experienced policy-makers working as a team on a project titled: ‘Building Capacity: Toward an Aboriginal Sensitive Access and Benefit Sharing over the Utilization of Genetic Resources in Canada.’ Its objectives as outlined in Chapter 1 include capacity building and development through education, training, networking and participatory partnerships with Indigenous peoples for an exchange of ideas between them and other stakeholders on ABS. As part of its strategy and in partnership with MAPC, ABS Canada has convened nation-wide loosely guided focus groups on ABS allowing for open conversations about the challenges and prospects for a Canadian ABS policy that is respectful of Indigenous peoples as core partners. The initiative aims at seeking common grounds and deeper appreciations of the interests, challenges and perspectives of all stakeholder groups on ABS with special consideration and direct articulation of Indigenous peoples’ interests and concerns.
The MAPC-ABS Canada partnership is a confidence and trust-based relationship operating within a sanctioned Canadian research ethical framework of doing or conducting research partnerships by and with Indigenous peoples. It is premised on full consciousness and sensitivity to the long-standing relationship of mistrust and perennial suspicion, which characterize the checkered engagement between Indigenous peoples and researchers. Through personal goodwill of both individual and institutional actors behind ABS Canada and MAPC, the partnership has been able to navigate across occasional suspicion-laden low moments and trust-redeeming high-points on the field, with each occasion representing a mutual teaching and learning moment for all participants. The ABS Canada team leveraged its mutual goodwill with MAPC in order to reach other Indigenous groups, peoples, leaders and participants in the nation-wide focus groups on ABS conducted across the regions.
A significant aspect of the partnership is MAPC’s ability to assume ownership of the focus group process it hosted and, beyond that, its ability to provide advice and support on how to engage kindred Indigenous peoples, leaders and hosts of other regional focus groups. The focus groups were sites of intensive Indigenous participation in terms of recruitment, mobilization and agenda setting. After each focus group, ABS Canada released its factual summary account of the outcomes as pre-approved by participants. MAPC reserved the right to author and disseminate as it deems fit its own account of the focus group proceedings and outcomes from an exclusively Indigenous perspective. In the exercise of that right, after the first of the three nation-wide focus group proceedings hosted by MAPC in Moncton, NB on 15–16 October 2015, MAPC released the Petkoutkoyek Statement on the Access, Use, Fair and Equitable Sharing of Benefits Arising Out of the Utilization of Genetic Resources and Associated Traditional Knowledge in Canada. Stripped of its preamble, the ten-Article Petkoutkoyek Statement reads:
A representative group of Maritime Aboriginal Peoples continuing throughout the traditional ancestral homeland territories of the Mi’kmaq, Maliseet, and Passamaquoddy Aboriginal Peoples, together with ABS Canada (A Social Sciences and Humanities Research Canada Project titled: ‘Towards an Aboriginal Sensitive ABS Policy for Canada’) with several national and international experts on Access and Benefit Sharing (ABS), participated with the Maritime Aboriginal Peoples Council in a two day Maritimes Regional ABS Focus Group Session convened at Petitcodiac (PETKOUTKOYEK), Moncton, New Brunswick …
We promulgate our Petkoutkoyek Statement and commend this partnership initiative with ABS Canada to promote Aboriginal capacity building and awareness-raising on access and benefit-sharing, and urge ABS Canada to ensure that Aboriginal Peoples across regions share knowledge and engage on community solidarity and mobilization on the subjects of ABS, and we urge Councils of Governments within the Federation of Canada to take on ABS subject matter with deserving seriousness and genuine commitment.
Article 1: We require Canada to work with Aboriginal Peoples to develop our aboriginal human capacity on ABS, and to support us with the necessary financial and human resources to conduct effective, meaningful and transparent participation at fora on ABS, the Nagoya Protocol and the Convention on Biological Diversity;
Article 2: The Aboriginal Peoples of the 73 Aboriginal Nations of Aboriginal Peoples continuing throughout the Federation of the Peoples of Canada, assert our Aboriginal Right to maintain, control, protect and develop our cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of our sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna, flora, oral traditions, literatures, designs, sports, and traditional games, visual and performing arts. We also have the right to maintain control, protect, and develop our intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions;
Article 3: We require Canada to work and consult with all the Aboriginal Peoples of Canada to develop the necessary Aboriginal Peoples National Institutions on Access and Benefit Sharing throughout Canada, where Canada shall recognize multiple Aboriginal Peoples National Focal Points and multiple Competent National Authorities reflective of the 73 diverse Aboriginal Nations of Aboriginal Peoples continuing throughout the Federation of the Peoples of Canada;
Article 4: We require Canada to establish a national consultation table with representatives from the 73 Aboriginal Nations of Aboriginal Peoples, to discuss and determine the number of Aboriginal National Focal Points and Aboriginal Competent National Authorities necessary to implement and deal with the: protocols, processes and procedures on access to genetic resources and the fair and equitable sharing of benefits therefrom;
Article 5: The Councils of non-Aboriginal Governments must recognize that their homocentric worldview is dramatically different from our eco-centric worldview which must be recognized as a fundamental starting construct in formulating protection regimes for ‘Community Shared Ownership with Responsibility Rights’ as compared to formulating ‘Individual Proprietary Rights’;
Article 6: We require Canada to support our Aboriginal Peoples’ work to develop a framework on which to build a protection regime for ‘Indigenous peoples Intellectual Manifestations’ (IPIM), drawing from sacred, restricted or communal Traditional Knowledge about biodiversity – ‘Aboriginal traditionology’;
Article 7: We require Canada to support a representative table of the 73 Aboriginal Nations of the Aboriginal Peoples to expand on the monetary and non-monetary benefits and Annex of the Nagoya Protocol;
Article 8: We Aboriginal Peoples of our 73 Aboriginal Nations of Aboriginal Peoples within the Federation of the Peoples of Canada seek ‘full benefit capture’, from access to our genetic resources and use of our traditional aboriginal knowledge – ‘traditionology;’
Article 9: We Aboriginal Peoples of our 73 Aboriginal Nations of Aboriginal Peoples confirm that the transgenerational learning and teaching of our youth must always be foremost considered and incorporated into all aspects of our discussions about Access and the Fair and Equitable Sharing of Benefits advanced in the Nagoya Protocol and championed in the Convention on Biological Diversity:
Article 10: We the Aboriginal Peoples of our 73 Aboriginal Nations of Aboriginal Peoples as partners in the human family, approach the subject of ABS as State Parties to the Nagoya Protocol and the Convention on Biological Diversity, holding as a minimum standard and guide, the Purpose and Articles of UNDRIP.
Lessons in Capacity Building and Capacity Development on ABS
We can draw a few lessons regarding capacity building and capacity development on ABS from the lens of the MAPC experience with ABS Canada on the basis of the 2010 Iskenisk Declaration and 2015 Petkoutkoyek Statement on ABS. First, even though the NP’s vision of capacity building reinforces the gap in international development that ignores the genuine deficit in capacity building and capacity development in the global North, Indigenous people can seize the moment, invert the omission and seek real capacity development partners from both within the North and outside of it. For example, ABS capacity and awareness are far more advanced in the global South among developing countries such as India, Brazil, Peru, South Africa and Namibia to mention a few. This presents an opportunity for South-North capacity building outside the default North-South traffic of capacity building and development.
Second, and in a related vein, courtesy of MAPC and indeed all other Indigenous partners’ contributions to the ABS Canada Focus Groups, an eloquent case was made for the need to build and develop the capacity of capacity builders. Specifically, development agents at state and non-governmental levels need to build and develop the capacity to fully understand the usual targets or recipients of capacity building and capacity development, namely IPLCs. There is much to be mutually learned from one another by all partners in capacity building and capacity development, warranting analysts to frame the experience as a solidarity-based partnership for co-development (Eade, Reference Eade2007). Put differently, capacity building and capacity development need to be multidirectional interchanges. In a related observation, Bockstael (Reference Bockstael2017) argues that meaningful capacity building should not be a disguise to fit Indigenous people into an unjust colonial structure for ease of social control in furtherance of subjugation. Rather, it should support the enhancement of practical skills within the Indigenous community.
Third, Indigenous peoples have called attention to the need for transformational legal capacity building and development on ABS. Such orientation is necessary to fully engage an interpretative orientation of Canadian constitutional and jurisprudential architecture in favour of sovereign-to-sovereign relationship in which Indigenous peoples’ rights to natural resources, including GRs, constitute inherent and inalienable right to self-determination (Perron-Welch & Oguamanam Chapter 6; Nichols Chapter 4). In this regard, Article 10 of the Petkoutkoyek Statement bears repeating for emphasis sake: ‘We the Aboriginal Peoples of our 73 Aboriginal Nations of Aboriginal Peoples as partners in the human family, approach the subject of ABS as State Parties to the NP and the CBD, holding as a minimum standard and guide, the Purpose and Articles of UNDRIP’ (Hedges & Langford Chapter 2).
Fourth, Indigenous peoples are fully mindful of the capacity building and development architecture of the NP. Without underestimating its inadequacy, they have demonstrated pragmatism in appropriating and adapting those while striving to fill apparent gaps therein. For example, in its work, the MAPC undertakes grassroots mobilization and awareness-raising on novel developmental issues, including ABS. To this end, they have gone beyond special accommodation of women in the NP to include elders and youths with emphasis on transgenerational knowledge mobilization and exchange as a feature of the indigenous capacity building and capacity development. They also recognize the need for capacity building and development to enhance Aboriginal human, financial, organizational and institutional resources, and the role of government. Perhaps more importantly, as part of their right to self-determination, Aboriginal peoples have demonstrated commitment to self-assess, identify or set own capacity needs and priorities as an ongoing matter. In these regards, they have demonstrated the separate and unique historical colonial trajectories and shared experiences of the 73 Aboriginal nations which they insist should be units for nation-to-nation engagements for political and economic rapprochement. They have also gone beyond the economic appeal of ABS to include spiritual ramifications of the relationship with life forces, customary laws, practices and various other considerations that could expand suggested benefit categories under the NP.
Lastly, even within and outside of the Nagoya framework, the latter articulates significant insights and specifics for capacity building and development which Indigenous peoples consider very important to enhance equitable ABS. As technology, innovation, business and industry practices, knowledge – including traditional knowledge innovation and practices of Indigenous peoples – continue to evolve, ABS capacity building and capacity development would remain a work in progress. Overall, on a pragmatic basis, Indigenous peoples would benefit from capacity building and development on a wide array of areas including those identified under Article 22 of the NP.
Among priority areas for capacity building and development are research and development capacity on GRs and associated traditional knowledge, which are necessary to facilitate the understanding of their valourization and dynamics in the value chain as well as to enhance effective participation and engagement of Indigenous peoples with researchers and industry actors. Related to that is building and developing Indigenous peoples’ capacity to use information and communication technologies to leverage ABS opportunities and potentials. Another area of capacity building and development priority is the development of customary laws, procedures and processes, in particular, biocultural protocols or forms of community protocols for ABS. In addition to customary law regimes, capacity building and development is required to boost formal legal skills for negotiating mutually agreed terms and incidental contractual or benefit-sharing, including intellectual property or related agreements. As well, strategies for effective involvement of Indigenous peoples not only in the making of ABS policies but also in their implementation are areas in need of Indigenous capacity building and development. Overall, legal, institutional, and organizational capacities for ABS-preparedness represents a priority area for capacity building and development. Aside from targeting Indigenous governance and organizational frameworks, such preparedness could account for inter-community (transboundary) and intra-communities’ interests as may be potentially implicated in ABS. For example, Indigenous participants and partners in the ABS Canada Focus Groups expressed their desire to have their own competent national authorities, which is captured in the Petkoutkoyek Statement above. They also indicated that their customary laws and jurisprudence are able to deal with inter-communities or transboundary issues.
The level or degree of capacity building and development required in these priority areas are not even across jurisdictions within and outside Indigenous communities in Canada. For example, as Thomas Burelli notes in Chapter 13, there are many practices and protocols relevant to ABS used by many Indigenous communities in their relationship and collaboration with researchers. Those are indications of existing capacity, requiring further development, rather than starting from scratch to develop capacity. Another example is the German-based ABS Capacity Development Initiative, which has significant experience with ABS capacity development in the global South, especially in Africa, including among others the development of biocultural protocols and facilitation of ILC-industry linkages for ABS. Those experiences can be rendered handy and scaled to fast-track Indigenous capacity building and capacity development in Canada and elsewhere in the global North on a South-to-North basis, a proposition that is currently within policy contemplation between ABS Canada and the ABS Capacity Development Initiative. That approach provides a vent for an alternative direction for capacity building and development to the narrative discussed earlier in this chapter.
Conclusion
There is potential and actual tendency to mirror capacity building and capacity development within the faultiness of North-South development constructs and its colonial undertones. As evident from our textual analysis of Article 22 of the NP on capacity building and capacity development, that construct hardly accounts for genuine capacity deficits among Indigenous peoples of the global North, such as Canada. The experience of the MAPC and ABS Canada in forging one of the earliest awareness-raising, capacity building, and capacity development on ABS in Canada underscores the imperative for trust, solidarity, equality and respect in the power and role of partnership in driving the process. The NP has elaborate provisions and opportunities that effectively articulate ABS capacity building and capacity development priorities. It is clear from our analysis that those can be adopted or adapted, as the case may be, and inverted to further Aboriginal capacity development and capacity building in specific national, regional and local contexts. Within that flexibility and framework, there is a possibility to explore more opportunities for South-North or North-North solidarity for ABS capacity building and capacity development as an evolving and continuing experience. In Canada, all levels of government need to be proactive in supporting Aboriginal capacity building and development on ABS in the spirit of justice, equity and reconciliation.
Open access