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Kabir Sanjay Bavikatte and Tom Bennett

1 THE EMERGENCE OF BIOCULTURAL RIGHTS Environmental law is at a political crossroads. Although, on the face of it, governments have a clear-eyed response to the ecological crisis confronting the planet, beneath the surface a battle is being fought over the most appropriate solutions. 1 The terrain of this battle is the law itself. In contention are solutions which are either technocratic in nature or ones derived from the experiences of local communities that have long-term attachments to the soil. 2 This article argues that affirmation of the latter is a

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Edson Beas Rodrigues

5. Property rights, biocultural resources and two tragedies: Some lessons from Brazil Edson Beas Rodrigues Jr1 INTRODUCTION Intellectual Property Rights (IPRs) temporarily confer on their holders the exclusive right to determine the use of the protected subject matter, taking into account their personal interests.2 Because IPRs grant holders the freedom to control their intangible assets and extract income,3 the right to exclude nonauthorized third parties from the enjoyment of protected subject matter is deemed the fundamental attribute of IPRs.4 The right to

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Giulia Sajeva

1 INTRODUCTION This article explores the meaning and significance of the theoretical construction of biocultural rights as proposed by Kabir Bavikatte. 1 Bavikatte uses the term ‘biocultural rights’ to describe a ‘basket’ 2 of group rights aimed at protecting the stewardship role towards the environment that certain indigenous peoples 3 and local communities 4 are presumed to have – rights which, he argues, are emerging from the interpretation of the texts and negotiating documents of multilateral environmental agreements. 5 This article suggests some non

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Edited by Anna Grear

enriching philosophical one to bear in mind when thinking about biocultural rights discourse – as is the emergent construct of the Anthropocene species-subject. Among other things, at the heart of Anthropocene discourse is an important tension that also emerges in biocultural rights discourse. This is the tension between a universalized conception of ‘humanity’ (or of any of its sub-groups) and the related risks of freighting all such ‘identities’ (universal and localized) with essentialisms. Essentialisms, in short, stalk Anthropocene ‘humanity’ and the human subjects of

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Edited by Johanna Gibson and Lord Hoffmann

Property Rights (TRIPs) in achieving just dealings in intangible biocultural heritage. The author argues that, rather than simply an obstacle to relevant frameworks for dealing with biological resources, traditional knowledge and traditional cultural expressions, TRIPs offers an as yet neglected tool for negotiating the relationship between intellectual property, intangible biocultural heritage and unfair competition. In his analysis of the new Customs Border Regulation, Ashley Roughton shows us that despite appearances, the relationship between substantive intellectual

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Claudia Ituarte-Lima

contest, for example, the imperatives of the Trade Related aspects of Intellectual Property Rights (TRIPS) Agreement9 which has generally favoured transnational corporations from relatively more industrialised countries (Dutfield, 2001). Likewise, conceptual advances under the CBD and the Nagoya Protocol may offer possibilities of fostering social equity within states in terms of linking the intangible dimensions of the bundles of property rights with tangible dimensions of property rights, specifically through notions such as the recognition of biocultural community

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Sarah Holcombe and Terri Janke

locally and the growing international movement toward developing bio-cultural community protocols that define customary rights and interests in biological resources is, we argue, a potentially valuable path forward.30 One of the reasons such an approach is even more compelling for Indigenous peoples currently, in Australia, as for Africa or Asia, is the adoption in 2010 by the parties to the Convention on Biological Diversity 1992 of the Nagoya Protocol 2010. 29 30 Davis, Michael (2009), Maintain and Strengthen your Culture: Handbook for Working with Indigenous

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Brendan Tobin

, London: Earthscan, 2009, 114. 111 Article 12(3)(a) of the Nagoya Protocol 2010. 112 Alejandro Argumedo, ‘Decolonising Action-Research: The Potato Park Biocultural Protocol for Benefit-Sharing’, in Krystyna Swiderska, with Holy Shrumm, Wim Hiemstra, Maria Julia Olivia, Kanchi Kohgli and Harry Jonas (eds), Biodiversity and Culture: Exploring Community Protocols, Rights and Consent, Participatory Learning and Action 65, IIED, 2012. 110 109 Columns Design XML Ltd / Job: Rimmer-Indigenous_Intellectual_Property / Division: 24-Ch /Pg. Position: 20 / Date: 12

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Claudia Ituarte-Lima and Suneetha M. Subramanian

the intervening period have taught us are useful lessons to manage expectations on rewards from incentives. These have to be tempered with realistic notions of rights of various stakeholders over bio-cultural resources, knowledge and property. Given that REDD-plus agreements can also be categorised as pertaining to bio-cultural agreements, we think that it would be useful for these discussions to take cognisance of some of the debates, especially those related to equity, within the ABS context. To better illustrate our arguments we use specific case studies from the

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Kirsten Davies, Sam Adelman, Anna Grear, Catherine Iorns Magallanes, Tom Kerns and S Ravi Rajan

that implies for their right to exist as the people they are. They are thus serially marginalized by failure to take the impacts upon their geospatial locations seriously, by the cultural genocide implicit in that failure and by the continuing subordination of their indigenous ontologies, epistemologies and agencies, even in legal forms of protection ostensibly aimed at their ‘inclusion’. While developments such as the emergence of discourses on biocultural rights hold out hope of much-needed recognition of indigenous agency and of unique indigenous forms of