Frédérique Apffel Marglin & Stephen A Marglin (eds), Dominating Knowledge: Development, Culture and Resistance , (Oxford University Press, Oxford 1990 ).
When the term ‘community’ is used in this work, it should be taken to include indigenous, tribal and traditional communities whose ways of life are predominantly land based and who have strong cultural and spiritual bonds with their traditional lands and its resources. While communities are fluid and are organized along various lines including ethnicity, shared resources, common interest and political structure, the term ‘community’ is used here to denote groups of people with a way of life that is determined by the ecosystem.
Kabir Bavikatte and Daniel Robinson, ‘Towards a People’s History of the Law: Biocultural Jurisprudence and the Nagoya Protocol on Access and Benefit Sharing' (2011) 7(1) Law, Environment and Development Journal, 39–51 at 50, <http://www.lead-journal.org/content/ 11035.pdf>. See further: Mikey Salter and JohannaVon Braun, ‘Biocultural Community Protocols: Bridging the Gap Between Customary, National and International Law’, Effectius Publications at <http://www.effectius.com/publications>, accessed 1 July 2014; Kabir Bavikatte, ‘Stewarding the Commons: Rethinking Property and the Emergence of Biocultural Rights’ (2011) 7 Common Voices 20.
Harry Jonas and Holly Shrumm, ‘Recalling Traditional Resource Rights: An Integrated Approach to Biocultural Diversity’ Natural Justice publication, May 2012, <http://naturaljustice.org/wp-content/uploads/pdf/TRR-HH.pdf>.
Margaret Jane Radin, ‘Property and Personhood’ (May 1982) 34(5) Stanford Law Review 957–1015; see also, Margaret Jane Radin, ‘Market-Inalienability’ (June 1987) 100(8) Harvard Law Review 1849–1937.
Bollier David , Think Like a Commoner: A Short Introduction to the Life of the Commons , (New Society Publishers, British Columbia 2014 ).
As opposed to the first-generation civil and political rights, and the second-generation social and economic rights, codified in the International Covenant on Civil and Political Rights (1966) and International Covenant on Economic, Social and Cultural Rights (1966), respectively.
See Karel Vasak, ‘Human Rights: A Thirty-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights’ (1977) UNESCO Courier 30, 29. Lucienne Zohadi, ‘The Generations of Human Rights’ (2004) 1 International Studies Journal, 95–114 at 112–13.
These rights were first explicitly recognized by treaty in 1957, when the International Labour Organization sponsored Convention No 107 on the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries. Because this Convention was not widely accepted, the ILO sponsored a second Convention No 169 (1989) on Indigenous and Tribal Peoples, which was aimed at revising the earlier treaty, although it did no more than fix general goals, leaving the appropriate methods for achieving them to the states concerned.
An investigation of 21 municipal legal systems by James Crawford, ‘The Aborigine in Comparative Law’ (1987) 2 Law & Anthropology 5ff., showed that ‘aboriginal’ always takes its meaning from a relationship with a non-aboriginal group. See, too, Natan Lerner, Group Rights and Discrimination in International Law (Martinus Nijhoff, Dordrecht 1991) 100–3.
Crawford op. cit. 7–10. See article 1(1)(b) of the Indigenous and Tribal Peoples Convention (1989), which defines peoples as ‘indigenous’ ‘on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation … and who, irrespective of their legal status, retain some or all of their social, economic, cultural and political institutions’.
‘Biocultural’ is a term used here to distinguish this set of rights from the more general ‘group rights’. At present, the term does not enjoy common usage. Regarding the three generations of human rights, see generally, Karel Vasak, ‘Human Rights: A Thirty-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights’, UNESCO Courier 30: 11, Paris: United Nations Educational, Scientific, and Cultural Organization, November 1977.
Robert Ellickson, ‘Property in Land’ (1992–1993) 102 Yale L.J. 1315.
They also propose policies for reducing waste and for recycling, along with the development of environmentally friendly technologies. See generally,
Segal Howard P , Technological Utopianism in American Culture , (Syracuse University Press, New York 2005 ).
Ilse Kohler-Rollefson, ‘Biocultural Community Protocols: A Tool for Pastoralists to Secure Customary Rights to the Commons’ FES (2010) 2 Common Voices 16–18.
Fischer Frank , Citizens, Experts and the Environment: The Politics of Local Knowledge , (Duke University Press, Durham, NC 2000 ).
See generally, Bio-cultural diversity conserved by indigenous peoples and local communities – examples and analysis, Companion document to the IUCN/CEESP Briefing Note No.10, Tehran: CENESTA, 2010. Available at <https://portals.iucn.org/library/efiles/documents/2010-048.pdf> accessed 18 September 2014.
Supra n 18, at 8–9.
Supra n 18, at 50.
Ramachandra Guha, ‘Radical American Environmentalism and Wilderness Preservation: A Third World Critique’ (Spring 1989) 11(1) Environmental Ethics 71–83.
Supra n 21.
‘[T]he term cosmovision has to do with basic forms of seeing, feeling and perceiving the world. It is made manifest by the forms in which a people acts and expresses itself. This means that a cosmovision does not necessarily correspond to an ordered and unique discourse (cosmology) through which it can be described/explained and understood. In some cases the only way to understand a cosmovision is through living it – by sharing experiences with people who sustain that mode of living and that life-world.’ See Ishizawa, Jorge, ‘Affirmation of Cultural Diversity – Learning with Communities in the Central Andes’ (August 2009) 2 Development Dialogue 105–39 at 118.
Post-development theories gained momentum in the 1990s as a critique of the ecological and social fallouts of dominant development paradigms, which had ranged from neo-liberalism to the Green Revolution. Post-development theorists critiqued these development paradigms as top down, techno-bureaucratic solutions that were bound to fail due to their inability to engage genuinely with community needs and experiences.
Ivan Illich, Tools of Conviviality (Boyars, London 1973) argued that politics is no longer about choosing between Left and Right. The real choice is between ‘vernacular values’ and ‘industrial values’ or between ‘conviviality’ and ‘technofascism’.
Escobar Arturo , Encountering Development: The Making and Unmaking of the Third World , (Princeton University Press , Princeton 2012 ) 44.
See generally, Wolfgang Sachs (ed.), The Development Dictionary (Zed Books, New York 2010) and Majid Rahnema et al. (eds), The Post-Development Reader (Zed Books, New York 1997).
One of the most famous examples of this is the work of Vandana Shiva that critiqued the cultural and ecological devastation caused by the Green Revolution in India, stressing the importance of affirming traditional agricultural practices, and recognizing their ability adequately to respond to increased demand for food. Vandana Shiva, Monocultures of the Mind (Third World Network, Penang 1993).
‘The “Andean Project for Peasant Technologies” (Proyecto Andino para las Tecnologías Campesinas, PRATEC) is a Peruvian NGO founded in 1988 and devoted to the recovery and valorization of traditional agricultural practices and associated knowledge. PRATEC participates in the efforts of Andean Amazonian peasant communities to counter the socially and ecologically destructive effects of industrial agriculture and governmental agrarian policies. By using local knowledge and the practice of traditional “ritual agriculture” and through adopting a non-dualistic, eco-centric worldview, PRATEC supports the resurgence of local approaches to agriculture, which it sees as radically opposed to Western industrial agriculture. The Andean peasant practice of ritual agriculture embraces kinship-oriented visions of the land and encourages empathetic actions that illustrate respect for all living entities of the biosphere.’ Agricultural activities include ritual actions, utterances, and offerings that express both a deep respect for Pachamama (Mother Earth) and communitarian aspects that characterize the worldview of the Andean people, <http://www.terralingua.org/bcdconservation/?p=244> accessed 14 March 2014.
The COMPAS network supports field programmes of Community Based Organizations (CBOs) and Non-Governmental Organizations (NGOs) to develop, test and improve the endogenous development approach in dialogue with modern western-based science. COMPAS systematizes the experiences in such a way that other NGOs and government agencies can make use of the endogenous development approach. COMPAS facilitates intercultural dialogues amongst CBOs, NGOs, universities and research centres across countries and continents to enable systematization beyond the national level. According to COMPAS, endogenous development revitalizes ancestral and local knowledge and integrates external knowledge and resources that fit the local context. It leads to increased bio-cultural diversity, reduced environmental degradation, and a self-sustaining local and regional exchange of goods and services, <http://www.compasnet.org/?page_id=22> accessed 14 March 2014.
Supra n 27, at 111.
Ibid., quote from Terre des homes – Germany, Children and Biodiversity in the Andes (Lima, 2001) 23.
Escobar Arturo , 'Imagining a Post-Development Era? Critical Thought, Development and Social Movements ' (1992 ) 31/32 Social Text : 20 -56.
John Tierny, ‘The Non-Tragedy of the Commons’ The New York Times, 15 October 2009, <http://tierneylab.blogs.nytimes.com/2009/10/15/the-non-tragedy-of-the-commons/> accessed 14 March 2014.
Ostrom Elinor , Governing the Commons: The Evolution of Institutions for Collective Action , (Cambridge University Press, New York 1990 ).
Chhatre Ashwini & Agrawal Arun , 'Forest Commons and Local Enforcement ' (2008 ) 105 (36 ) Proceedings of the National Academy of Sciences : 13286 -91.
The problem of the ‘free-rider’ in economic theory arises when individuals who do not contribute to its maintenance consume public goods/resources thereby free riding on the contributions of the rest of the community for the upkeep of the goods/resources. See also Stanford Encyclopedia of Philosophy, <http://plato.stanford.edu/entries/free-rider/> accessed 14 March 2014.
These conditions are what Ostrom terms the eight design principles for effective common pool resource management. They are: (1) define clear group boundaries; (2) match rules governing use of common goods to local needs and conditions; (3) ensure that those affected by the rules can participate in modifying the rules; (4) make sure the rulemaking rights of community members are respected by outside authorities; (5) develop a system, carried out by community members, for monitoring members' behaviour; (6) use graduated sanctions for rule violators; (7) provide accessible, low-cost means for dispute resolution; (8) build responsibility for governing the common resource in nested tiers from the lowest level up to the entire interconnected system. Supra n 41, at 90.
Elinor Ostrom and Harini Nagendra, ‘Insights on Linking Forests, Trees, and People from the Air, on the Ground, and in the Laboratory’ (2006) 103(51) Proceedings of the National Academy of Sciences 19224–31; see also ‘Elinor Ostrom: Taking Sustainability Research Mainstream’, FES (2010) 1 Common Voices 6–9.
Titley Brian E , A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada , (University of British Columbia Press , Vancouver 1986 ) 122.
As a result of persistent lobbying at the UN by indigenous peoples, the Working Group on Indigenous Populations (WGIP) was established pursuant to Economic and Social Council resolution 1982/34 as a subsidiary body of the Sub-Commission on the Promotion and Protection of Human Rights. The work of the WGIP finally led to the Declaration on the Rights of Indigenous Peoples adopted by the UN General Assembly in 2007. Since then the WGIP has been discontinued and replaced with the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) through Resolution 6/36 of the UN Human Rights Council. See <http://www2.ohchr.org/english/issues/indigenous/groups/wgip.htm> accessed 14 March 2014.
Niezen Ronald , The Origins of Indigenism: Human Rights and the Politics of Identity , (University of California Press , Berkeley 2003 ) 4.
Ibid. at 5.
UN Doc. E/CN.4/Sub.2/1986/7 and Add. 1–4. The report further states that: ‘On an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group)’, paragraphs 379–82.
Report of the World Summit on Sustainable Development (Johannesburg, South Africa 2002) para 25; United Nations Declaration on the Rights of Indigenous Peoples, 2007, Preamble: ‘Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment’.
Ashish Kothari with Colleen Corrigan, Harry Jonas, Aurélie Neumann and Holly Shrumm (eds), Recognising and Supporting Territories and Areas Conserved by Indigenous Peoples and Local Communities: Global Overview and National Case Studies, Secretariat of the Convention on Biological Diversity, ICCA Consortium, Kalpavriksh, and Natural Justice, Montreal, Canada (Technical Series no. 64, 2012).
Vicki Grieves, Aboriginal Spirituality: Aboriginal Philosophy. The Basis of Aboriginal Social and Emotional Wellbeing, Discussion Paper No. 9, Cooperative Research Centre for Aboriginal Health, Darwin, 2009.
Guenther Mathias , 'On /Xam San Folklore ', in Miklos Szalay (ed), The Moon as Shoe: Drawings of the San , (Scheidegger and Spiess , Zurich 2002 ) 92.
See generally, supra n 21.
Which are dealt with in article 27 of the ICCPR. In 1992, this article was supplemented by a General Assembly Declaration 47/135 on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Karel Vasak, ‘Human Rights: A Thirty-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights’, UNESCO Courier 30: 11, Paris: United Nations Educational, Scientific, and Cultural Organization, November 1977.
The AU has origins in the Organization of African Unity (OAU) established in 1963 and the African Economic Community (AEC) of 1981. In 1999, at an annual meeting of heads of state of the OAU, the Libyan President, Muammar Gaddafi, proposed a more comprehensive institution with greater supranational powers than the OAU. See Magliveras Konstantinos and Gino Naldi, ‘The African Union – A New Dawn for Africa’ (2002) 51 ICLQ 415–26. This idea captured popular imagination, and members of the Organization issued a declaration calling for the creation of an African Union. This declaration was followed by a summit in 2000, at Lomé, when a Constitutive Act was adopted. See
Packer Corinne & Rukare Donald , 'The New African Union and Its Constitutive Act ' (2002 ) 96 The American Journal of International Law : 365 -79.
Articles 20, 21, 22 and 24.
This instrument consisted of more than 2500 plans, embracing all parts of the environment, from the outermost limits of the atmosphere to the depths of the oceans, and it was intended to guide all human activities. Developed countries agreed to contribute 0.7 per cent of their gross domestic product towards implementing Agenda 21, but these commitments have yet to be honoured.
The Convention has 193 states parties and aims to ensure the conservation and sustainable use of biological diversity and the fair and equitable sharing of benefits arising from its commercial and research utilization. Many developing countries view the CBD as a way to redefine historical benefit flows from the use of genetic resources. See generally, Lyle Glowka et al., A Guide to the Convention on Biological Diversity (IUCN, Gland 1994). See also,
Glowka Lyle , 'Emerging Legislative Approaches to Implement Article 15 of the Convention on Biological Diversity ' (1997 ) 6 (3 ) RECIEL : 249 -62.
Bragdon SH , 'The Evolution and the Future of Law of Sustainable Development: Lessons from the Convention on Biological Diversity ' (1996 ) VIII (3 ) Georgetown International Environmental Law Review : 389 -513.
Sustaining Life on Earth: How the Convention on Biological Diversity Promotes Nature and Well-Being (Secretariat of the Convention on Biological Diversity, Montreal 2000) 5.
Ibid. See also
Argumedo Alejandro , Community Biocultural Protocols: Building Mechanisms for Access and Benefit Sharing Amongst the Communities of the Potato Park Based on Quechua Customary Norms , (IIED, London 2011 ).
See <http://www.ipcb.org/resolutions/htmls/dec_heartopeoples.html> accessed 14 March 2014.
Article 8(j) of the Convention on Biological Diversity (CBD) reads: Each Contracting Party shall, as far as possible and appropriate (chapeau) subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices', <http://www.cbd.int/convention/text/> accessed 14 March 2014.
Article 10(c) of the CBD reads: Each Contracting Party shall, as far as possible and appropriate protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements', <http://www.cbd.int/convention/text/> accessed 14 March 2014.
Article 29. In addition, article 31 recognizes indigenous peoples' right to determine their own priorities and strategies for the development of their lands and resources.
Customary Sustainable Use of Biodiversity by Indigenous Peoples and Local Communities: Examples, Challenges, Community Initiatives and Recommendations Relating to CBD Article 10(c), A Synthesis Paper by the FPP and Partner Organizations, October 2010, <http://www.forestpeoples.org/topics/convention-biological-diversity-cbd/publication/2010/synthesis-paper-10c-case-studies> accessed 14 March 2014.
The Programme of Work on Protected Areas (PoWPA) of the CBD was adopted in 2004 at the Seventh Conference of the Parties. It enshrines the development of participatory, ecologically representative and effectively managed national and regional systems of protected areas, where necessary, stretching across national boundaries. PoWPA consists of four interlinked elements: Element 1: Direct Actions for Planning, Selecting, Establishing, Strengthening, and Managing, Protected Area Systems and Sites; Element 2: Governance, Participation, Equity and Benefit Sharing; Element 3: Enabling Activities; Element 4: Standards, Assessment, and Monitoring. See also,
Stevens Stan , 'Implementing the UN Declaration on the Rights of Indigenous Peoples and the International Human Rights Law through the Recognition of ICCAs ' (2010 ) 17 Policy Matters , October : 181 -94.
Shrumm Holly et al. , 'Exploring the Right to Diversity in Conservation Law, Policy and Practice ' (2010 ) 17 Policy Matters , October : 10 -14.
The LIFE Network is a global network of organizations and individuals that support community conservation of livestock breeds.
The FAO is an inter-governmental organization with 191 Member Nations, two associate members and one member organization – the European Union. The FAO was set up with the mandate to raise levels of nutrition, improve agricultural productivity, better the lives of rural populations and contribute to the growth of the world economy. See <www.fao.org> accessed 14 March 2014.
The ITPGRFA currently has 127 state parties.
See <http://www.farmersrights.org/about/index.html> for discussions on interpreting farmers' rights under the ITPGRFA. The website is an excellent resource on farmers' rights maintained by the Fridtjof Nansen Institute (accessed 13 September 2011). Article 9.2 of the ITPGRFA dealing with farmers' rights states: ‘9.2 The Contracting Parties agree that the responsibility for realizing Farmers’ Rights, as they relate to plant genetic resources for food and agriculture, rests with national governments. In accordance with their needs and priorities, each Contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote Farmers' Rights, including: (a) protection of traditional knowledge relevant to plant genetic resources for food and agriculture; (b) the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and (c) the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture'.
Tobin Brendan , '“Law Giveth and the Law Taketh Away”: The Case for Recognition of Customary Law in International ABS and Traditional Knowledge Governance ' (2010 ) 17 Policy Matters , October : 16 -24.
Established by the World Intellectual Property Organization (WIPO) General Assembly in October 2000 (document WO/GA/26/6), the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is undertaking text-based negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection of traditional knowledge (TK), traditional cultural expressions (TCEs)/folklore and genetic resources. See <http://www.wipo.int/tk/en/igc/> accessed 14 March 2014. For a spillover of biocultural rights into the WIPO-IGC negotiations, see generally, Intellectual Property and Traditional Knowledge, Booklet no. 2 (WIPO Publication, New York).
The Commission on Genetic Resources for Food and Agriculture (CGRFA) is a permanent forum where governments discuss and negotiate matters relevant to biodiversity for food and agriculture. The main objectives of the Commission are to ensure the conservation and sustainable utilization of genetic resources for food and agriculture, as well as the fair and equitable sharing of benefits derived from their use, for present and future generations. The Commission on Genetic Resources for Food and Agriculture was established in 1983 to deal with issues related to plant genetic resources. In 1995, the FAO Conference broadened the Commission's mandate to cover all components of biodiversity of relevance to food and agriculture. Since its establishment, the Commission has overseen global assessments of the state of the world's plant and animal genetic resources for food and agriculture and has negotiated major international instruments, including the International Treaty on Plant Genetic Resources for Food and Agriculture. See, Biodiversity for a World Without Hunger: The Commission on Genetic Resources for Food and Agriculture (FAO, Rome), <www.fao.org/nr/cgrfa> accessed 14 March 2014. See also
Köhler-Rollefson Ilse et al. , 'Livestock Keepers' Rights: A Rights-Based Approach to Invoking Justice for Pastoralists and Biodiversity Conserving Livestock Keepers ' (2010 ) 17 Policy Matters , October : 113 -15.
The UNCCD (United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa) was adopted in 1994 and has 194 parties. The objective of the Convention is to combat desertification and mitigate the effects of drought in countries experiencing serious drought and/or desertification, particularly in Africa, through effective action at all levels, with a view to contributing to the achievement of sustainable development in affected areas. See Article 2 of the Convention for the objectives of the UNCCD. For a spillover of biocultural rights into the UNCCD, see generally, Human Rights and Desertification: Exploring the Complementarity of International Human Rights Law and the United Nations Convention to Combat Desertification, Issue paper 1, Desertification, Land Degradation and Drought (UNCCD, Bonn 2008).
In 1992, the United Nations Framework Convention on Climate Change (UNFCCC) was adopted as the basis for a global response to the problem of climate change. With 194 Parties, the ultimate objective of the Convention is to stabilize greenhouse gas concentrations in the atmosphere at a level that will prevent dangerous human interference with the climate system. The Convention is complemented by the 1997 Kyoto Protocol, which has 192 Parties. Under this treaty, 37 industrialized countries and the European Community have committed to reducing their emissions by an average of 5 per cent by 2012 against 1990 levels. Industrialized countries must first and foremost take domestic action against climate change. But the Protocol also allows them to meet their emission reduction commitments abroad through so-called ‘market-based mechanisms’. See, An Introduction to the United Nations Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol, Fact Sheet, UNFCC, February 2011. For a spillover on biocultural rights into the UNFCCC, see generally, Peter Wood et al., ‘REDD Community Protocols: A Community Approach to Ensuring the Local Integrity of REDD’, Outreach, Special Post-COP 15 Issue, 2010, p. 7.
The Akwé: Kon Guidelines were developed pursuant to task 9 of the programme of work on Article 8(j) and adopted by the Conference of the Parties of the CBD at its 5th meeting 2000. The Guidelines state their purpose as providing a collaborative framework within which Governments, indigenous and local communities, decision-makers and managers of developments can: (a) support the full and effective participation and involvement of indigenous and local communities in screening, scoping and development planning exercises; (b) properly take into account the cultural, environmental and social concerns and interests of indigenous and local communities, especially of women who often bear a disproportionately large share of negative development impacts; (c) take into account the traditional knowledge, innovations and practices of indigenous and local communities as part of environmental, social and cultural impact-assessment processes, with due regard to the ownership of and the need for the protection and safeguarding of traditional knowledge, innovations and practices; (d) promote the use of appropriate technologies; (e) identify and implement appropriate measures to prevent or mitigate any negative impacts of proposed developments; (f) take into consideration the interrelationships among cultural, environmental and social elements. See <www.cbd.int/doc/publications/akwe-brochure-en.pdf> accessed 14 March 2014.
The 10th meeting of the Conference of Parties to the CBD in 2010 adopted the Tkarihwaié:ri Code of Ethical Conduct in its decision X/42.
One of the main elements of the Code relevant for biocultural rights is Principle 20 dealing with traditional guardianship/custodianship. It states that ‘[t]raditional guardianship/ custodianship recognizes the holistic interconnectedness of humanity with ecosystems and obligations and responsibilities of indigenous and local communities, to preserve and maintain their traditional role as traditional guardians and custodians of these ecosystems through the maintenance of their cultures, spiritual beliefs and customary practices. Because of this, cultural diversity, including linguistic diversity, ought to be recognized as key to the conservation and sustainable use of biological diversity. Indigenous and local communities should, where relevant, be actively involved in the management of lands and waters traditionally occupied or used by them, including sacred sites and protected areas. Indigenous and local communities may also view certain species of plants and animals as sacred and, as custodians of biological diversity, have responsibilities for their well-being and sustainability, and this should be respected and taken into account in all activities/interactions’. See <http://www.cbd.int/decision/cop/ ?id=12308> accessed 14 March 2014.
<http://www.cbd.int/abs/text/> accessed 14 March 2014. In the African context, biocultural rights preceded the Nagoya Protocol through the African Model Law for the Protection of the Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resources prepared in 1997 by an Organization of African Unity (OAU) Task Force. The OAU Ministerial Session, followed by the OAU Summit of Heads of State and Government, adopted this Model Law in Ouagadougou in 1998, and recommended that it be the basis of African national law. Article 16 of the African Model Law states:
‘The state recognizes the rights of communities over the following:
These conclusions have been drawn from our interpretation of specific articles of the Nagoya Protocol on Access and Benefit Sharing and Bavikatte's work on the domestic law and policy of several countries implementing the Protocol.
Helene Suich (ed), Evolution and Innovation in Wildlife Conservation: Parks and Game Ranches to Transfrontier Conservation Areas , (Earthscan, London 2009 ).
Supra n 4.
McClenaghan Theresa N , 'Why Should Aboriginal Peoples Exercise Governance over Environmental Issues? ' (2002 ) 51 UNB Law Journal : 211 -30.
Supra n 90.
Darrell Addison Posey and Graham Dutfield, ‘Beyond Intellectual Property: Towards Traditional Resource Rights for Indigenous Peoples and Local Communities’ (International Development Research Centre, Ottawa 1996) 95.