1. Exploring BIODIVERSITY, AGRICULTURE and CLIMATE CHANGE in NATIONAL LAWS affecting LOCAL COMMUNITIES AND INDIGENOUS PEOPLES Ambra Gobena, Esq

2. CONTEXT PROTECTION OF BIODIVERSITY ◦ Agriculture (farmers, fishing communities, forest communities) ◦ Local communities ◦ Indigenous peoples IMPACT OF CLIMATE CHANGE ◦ Dependence on natural resources  vulnerability to climate change impacts ◦ Adaptation strategies  best placed to adapt to changing climate and impact on natural resources

3. STATISTICS 80 percent of the world’s remaining biodiversity is found in indigenous peoples’ territories (Toledo, 2001) 900 million poor in rural areas (FAO, 2009) ◦ 720 million agriculture-related activities  Approx 400 million/720million are IPs IPs are 5 percent of world population, and 15 percent of poor (World Bank 2003)

4. SOURCES OF OBLIGATIONS AT INTERNATIONAL LEVEL HUMAN RIGHTS ◦ Conventions  ICCPR article 27, rights of minorities  ICCPR and the ICESCR article 1.1, self-determination  ILO Conventions 107 and 169 ◦ Declarations  UN Declaration on the Rights of Indigenous Peoples  Mataatua Declaration (1993), Atitlán Declaration (2000), Quito Declaration (2000), Anchorage Declaration (2009) GENETIC RESOURCES ◦ Convention on Biological Diversity (CBD), Bonn Guidelines ◦ Treaty on Plant Genetic Resources for Food and Agriculture ◦ International Convention for the Protection of New Varieties of Plants ◦ TRIPS

5. HUMAN RIGHTS, CLIMATE CHANGE AND INDIGENOUS PEOPLES EXISTING CHALLENGES ◦ Discrimination  Political and economic marginalization ◦ Legal recognition  Constitution  Legislation specifically recognizing IP rights, customary laws, etc

6. LEGISLATION AFFECTING IPs and LCs Types of legislation relevant to a discussion of vulnerability and adaptation potential of IPs and LCs ◦ Climate change specific ◦ Disaster-related legislation ◦ Livestock, wildlife and hunting ◦ Natural resources legislation  Protected areas  Agricultural production  Fisheries  Water  Forestry

7. LEGISLATION AFFECTING IPs and LCs LAND, FORESTS AND PROTECTED AREAS Existing legal challenges and legal responses (vulnerability of IPs) ◦ Land tenure ◦ Land demarcation Climate change responses – impact on IPs, LCs ◦ Land use  Biofuels  Payments for Ecosystem Services (PES) schemes  REDD, REDD Plus  Protected Areas  Conflicts? – customary law v statutory law  Negative effects of small-scale agriculture of local communities in forest areas

8. LAWS PROTECTING TRADITIONAL KNOWLEDGE Importance of traditional knowledge (TK) to biodiversity and climate change Documentation and use of TK ◦ Opens up door to use of TK without permission ◦ Vulnerability of LCs and IPs to biopiracy Positive protection v negative protection Types of laws protecting TK ◦ Specific TK laws/ sui generis laws  Common elements of sui generis systems for TK ◦ Plant genetic resources and biodiversity ◦ Intellectual property: patents, designs, TMs, geographical indications ◦ Specialized indigenous peoples, local communities or farmer’s rights laws

9. LAWS UNDER REVIEW Selection of countries ◦ Presence of IPs, geographic distribution, comprehensive legislation governing TK Brazil - Provisional Measure N° 2186-16 (2001) OAU - Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources (2000) Peru - Law N° 27811 (2002) Law introducing a protection regime for the collective knowledge of indigenous peoples derived from biological resources. Philippines - Indigenous Peoples Rights Act (1997 ) India - Biological Diversity Act (2002); and Protection of Plant Varieties and Farmer’s Rights Act (2001)

10. TK LEGISLATION IN PERU Law N° 27811 ◦ Scope and objectives ◦ Explicit protection of TK and rights of IP ◦ Collective nature of TK ◦ Registers  3 types  Protection against (and prevention of) patents granted using TK ◦ PIC  Procedure ◦ License Agreement ◦ Benefit sharing ◦ Institutional mechanisms ◦ Recognition of customary law ◦ Legal remedies

11. ADDITIONAL ASPECTS FOUND IN OTHER LAWS FPIC CRITERIA ◦ What constitutes consent?  100%? Majority? Reps? Recognition of customary law institutions? Entrenchment of discrimination? ◦ Elements of FPIC  Philippines IPRA (article 3(g)) ACCESS TO TK ◦ Do CC adaptation and mitigation schemes fit in? Should they?  Brazil PM No.2186-16, article 7(v)  India Biodiversity Act, article 5

12. ADDITIONAL ASPECTS FOUND IN OTHER LAWS CONDITIONS OF PROTECTION ◦ Brazil PM No.2186-16 requirements in articles 7-9 SPECIFIC RECOGNITION OF THE ROLE OF WOMEN ◦ OAU Model Law, farmer’s rights and PIC procedure (Preamble, objectives, articles 18 and 26) FARMERS RIGHTS ◦ OAU Model Law, article 26 ◦ India PVPFRA, article 39

13. METHODOLOGY: BASIC PRINCIPLES FOR DRAFTING LEGISLATION ◦ International standards (CBD, UN Declaration etc)  Compliance with legal obligations  Benchmarks by which to assess legislation ◦ Participation of all stakeholders (IPs, LCs) during policy and law-making (also mechanisms in the law) ◦ Best practice from other countries –elements discussed earlier ◦ Application in a national context (taking into account local socio-economic considerations, environmental priorities, customary laws and protocols, feasibility of implementation etc) ◦ Equality and non-discrimination - corrective measures in laws and policies to remedy previous discrimination