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of work for implementation of that article. In carrying out its mandate, the Working
Group has sought to improve the role and participation of indigenous
representatives in its work, developing resolutions and guidelines related to
indigenous peoples. In 1993, the International Indigenous Forum on Biodiversity
was established to facilitate indigenous participation in negotiations and dialogue
within the framework of article 8 (j). Importantly, the Working Group has
established a voluntary fund to provide financial support for indigenous peoples to
participate in meetings related to the Convention. However, during recent meetings
of the Working Group, indigenous peoples have highlighted issues regarding their
full and effective participation throughout the processes of the Convention.
Specifically, the Forum emphasized the need for increased monetary support for the
voluntary fund.
58. A recent major development related to the Convention is the Nagoya Protocol
on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits
Arising from their Utilization, which was adopted in 2010. The Nagoya Protocol
was developed, in large part, as a response to concerns regarding the provisions of
the Convention on access and sharing of benefits. Indigenous peoples have
expressed concerns at the lack of adequate participation in the development of the
Nagoya Protocol, although these will not be addressed in detail here. In addition,
representatives of indigenous peoples have expressed concerns over the substantive
standards contained in the Protocol, which have been viewed as weak in terms of the
specific protections afforded to indigenous peoples, although some positive
developments have also been highlighted. It is worth mentioning that in its preamble
the Nagoya Protocol “notes” the Declaration on the Rights of Indigenous Peoples.
59. With respect to provisions regarding the traditional knowledge of indigenous
peoples, the Nagoya Protocol states, importantly, that States parties to the Protocol
“shall take the legislative, administrative or policy measures” necessary to ensure
that benefits arising from the utilization of traditional knowledge associated with
genetic resources are shared in a fair and equitable way with indigenous and local
communities (article 5.5). The article further states that such sharing of benefits
shall take place on mutually agreed terms. Additionally, under article 7, parties are
to take measures to ensure that traditional knowledge associated with genetic
resources held by indigenous and local communities is accessed with their prior and
informed consent, or approval and involvement. These articles are viewed as
containing positive aspects in that they indicate an implicit recognition of
indigenous peoples as the holders of rights to their traditional knowledge and also
require that prior and informed consent be obtained in relation to access to that
knowledge. However, the qualifier “where appropriate” in both articles, and the
condition “in accordance with domestic law” under article 7, has been met with
criticism by indigenous peoples, especially in some countries where domestic laws
are weak in this regard.
60. Provisions of the Nagoya Protocol regarding genetic resources have been
slightly more problematic in relation to the rights of indigenous peoples. In
particular, the Protocol states that parties shall take measures, again with the
qualifier “as appropriate”, to ensure that benefits arising from the utilization of
genetic resources held by indigenous and local communities, in accordance with
domestic legislation on the rights of these communities, are equitably shared (article
5.2). As regards the sharing of benefits in relation to the use of genetic resources,
the Protocol similarly requires that the parties take measures to ensure that the prior
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