Article 8(j): Traditional Knowledge, Innovations and Practices
Background and Status

Background and Status

As part of its first medium-term programme of work, the COP decided to address knowledge, innovations and practices of indigenous and local communities and implementation of Article 8 (j) at its third meeting [decision I/9 and decision II/18]. However, the issues of traditional knowledge, innovations and practices of indigenous and local communities have also arisen frequently in COP discussions on intellectual property rights (IPRs), access to genetic resources and benefit-sharing and forest biological diversity.

COP 3 adopted decision III/14 on implementation of Article 8 (j) which set in motion a process for consideration of further work in this area. As part of this process, the COP agreed upon the need for a workshop to advise the COP on the possibility of developing a work plan on Article 8 (j) and related provisions, and to examine the need for an intersessional working group or subsidiary body to consider the role of traditional knowledge, innovations and practices relevant to the conservation and sustainable use of biological diversity [decision III/14, annex, paragraph 1 (g)].

The Workshop on Traditional Knowledge and Biological Diversity was held in Madrid, Spain, in November 1997 and prepared a report for COP 4 [see document UNEP/CBD/COP/4/10/Add.1]. The report contained recommendations for elements of a work plan.

In decision IV/9, COP 4 decided to establish an Ad Hoc Open-ended Inter-sessional Working Group to address the implementation of Article 8 (j) and related provisions [decision IV/9, paragraph 1]. The mandate of this Working Group is to:

1. to provide advice as a priority on the application and development of legal and other appropriate forms of protection for the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity;
2. to provide the COP with advice relating to the implementation of Article 8 (j) and related provisions, in particular on the development and implementation of a programme of work at national and international levels;
3. to develop a programme of work, based on the structure of the elements proposed in the Madrid workshop report [see decision IV/9, annex];
4. to identify those objectives falling within the scope of the Convention; to recommend priorities taking into account the programme of work of the COP, such as the equitable sharing of benefits; to identify for which work-plan objectives and activities advice should be directed to the COP and which should be directed to SBSTTA; to recommend which of the work-plan objectives and activities should be referred to other international bodies or processes; and to identify opportunities for collaboration and coordination with other international bodies or processes with the aim of fostering synergy and avoiding duplication of work; and
5. to provide advice to the COP on measures to strengthen cooperation at the international level among indigenous and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity and make proposals on the strengthening of mechanisms that support such cooperation [decision IV/9, paragraph 1].

The Working Group held its first meeting in Seville, Spain, in March 2000, and provided a report to COP 5 [see document UNEP/CBD/COP/5/5]. Based on the recommendation of the Working Group, the COP adopted a programme of work on Article 8 (j) and related provisions [decision V/16, paragraphs 1, 2]. The programme of work is divided into two phases according to the priority assigned to the tasks. The mandate of the Working Group was extended to undertake specific tasks under the programme of work, to review progress on its implementation, and to make recommendations for further actions [decision V/16, paragraph 9]. The work programme comprises seven elements, based on those identified at the Madrid workshop, as follows:

• Element 1: Participatory mechanisms for indigenous and local communities.
• Element 2: Status and trends in relation to Article 8 (j) and related provisions.
• Element 3: Traditional cultural practices for conservation and sustainable use.
• Element 4: Equitable sharing of benefits.
• Element 5: Exchange and dissemination of information.
• Element 6: Monitoring elements.
• Element 7: Legal elements.

For each element a range of specific tasks to be undertaken by the Parties, the Secretariat and/or the Working Group is identified [decision V/16, annex]. Among the tasks of the Working Group is the elaboration of a number of sets of guidelines, including:

• Guidelines for the development of mechanisms, legislation or other initiatives to ensure benefit-sharing and prior informed consent [decision V/16, annex, II, element 4, task 7].
• Guidelines or recommendations for the conduct of cultural, environmental and social impact assessments regarding proposed developments on sacred sites and on lands or waters occupied or used by indigenous and local communities [decision V/16, annex, II, element 6, task 9].
• Guidelines to assist Parties and Governments in the development of legislation or other mechanisms to implement Article 8 (j) [decision V/16, annex, II, element 7, task 12].
• Guidelines for the respect, preservation and maintenance of traditional knowledge, innovations and practices and their wider application in accordance with Article 8 (j) [decision V/16, annex, III, element 3, task 6].
• Guiding principles and standards to strengthen the use of traditional knowledge and other knowledge for the conservation and sustainable use of biodiversity [decision V/16, annex, III, element 3, task 13].
• Guidelines and proposals for national incentive schemes for indigenous and local communities to preserve and maintain their traditional knowledge [decision V/16, annex, III, element 3, task 14].
• Guidelines to facilitate the repatriation of information in accordance with Article 17 (2) [decision V/16, annex, III, element 3, task 15].
• Standards and guidelines for the reporting and prevention of unlawful appropriation of traditional knowledge and related genetic resources [decision V/16, annex, III, element 6, task 10].

The Working Group held its second meeting in Montreal, Canada, from 4-8 February 2002 and provided a report to COP 6 (see document UNEP/CBD/COP/6/7).

The COP considered the progress made in the integration of the relevant tasks of the programme of work on Article 8(j) in the thematic programmes of the Convention, and identified actions to be taken with respect to forest biological diversity, marine and coastal biological diversity, inland water ecosystems and agricultural biological diversity [decision VI/10, paragraph 2]. The COP also requested the preparation of a progress report for the consideration of the Working Group on Article 8(j) and related provisions at its third meeting [decision VI/10, paragraph 4]. The COP reviewed progress in the implementation of the priority tasks of the programme of work on Article 8(j) and requested a report on progress for the third meeting of the Working Group.

The COP adopted:

• The outline of the composite report on the status and trends regarding the knowledge, innovations and practices of indigenous and local communities relevant to the conservation and sustainable use of biodiversity as contained in annex I to decision VI/10. A report on the first phase of the composite report, based upon elements 1 and 2 of the outline, will be considered by the Working Group at its third meeting [decision VI/10, paragraph 9].
• The recommendations for the conduct of cultural, environmental and social impact assessment regarding developments proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities contained in annex II of decision VI/10 (pursuant to Article 8 (j) and Article 14 of the Convention).

With regard to impact assessment, the COP also requested the Working Group, at its third meeting, to carry out further work on guidelines and with the aim of strengthening the social and cultural aspects and to complement and be in conjunction with the Guidelines for incorporating biodiversity-related issues into environmental assessment legislation and/or processes and in strategic environmental assessment, endorsed by the COP in its decision VI/7A, and address institutional procedural considerations [decision VI/10, paragraph 13].

With regard to its assessment of the effectiveness of existing subnational, national and international instruments, particularly intellectual property rights instruments, that may have implications for the protection of the knowledge, innovations and practices of indigenous and local communities, the COP requested the Working Group to address the issue of sui generis systems for the protection of traditional knowledge and identified the following issues on which to focus:

• Clarification of relevant terminology;
• Compiling and assessing existing indigenous, local, national and regional sui generis systems;
• Making available this compilation and assessment through the clearing-house mechanism of the Convention;
• Studying existing systems for handling and managing innovations at the local level and their relation to existing national and international systems of intellectual property rights, with a view to ensure their complementarity;
• Assessing the need for further work on such systems at the local, national, regional and international levels;
• Identifying the main elements to be taken into consideration in the development of sui generis systems;
• The equitable sharing of benefits arising from the utilization of traditional knowledge, innovations and practices of indigenous and local communities, taking into account the work carried out by the Intergovernmental Committee Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore with a view to promote mutual supportiveness, and existing regional, subregional, national and local initiatives; [decision VI/10, paragraph 34]

COP 6 requested further information on national experiences, case-studies, best practices and lessons learned concerning participatory mechanisms for indigenous and local communities in relation to the objectives of Article 8(j) and related provisions. Noting that conditions may vary among countries, a synthesis report of the information is to be prepared for use by Parties and Governments as a basis for establishing and/or promoting participatory mechanisms for indigenous and local communities, particularly women from those communities, in the decisions-making process regarding the preservation, maintenance and utilization of traditional knowledge [decision VI/10, paragraphs 20 and 21]. The COP is also concerned to identify secure potential sources of funding to facilitate indigenous and local community participation in all geographical regions in meetings organized under the Convention [decision VI/10, paragraph 22]. COP 6 urged Parties and Governments to strengthen their efforts to support capacity-building for the full and effective participation of indigenous and local communities, particularly women, in decision-making processes; management of biological diversity; and accessing national and international laws for the protection of their traditional knowledge [decision VI/10, paragraph 23].

With respect to communication, the COP urged Parties and Governments to support the development of communication mechanisms, such as the Indigenous Biodiversity Information Network, to assist better understanding of indigenous and local communities of the CBD processes and programmes, discussions and invitations to respond [decision VI/10, paragraph 24]. A technical expert group is to be established to develop the roles and responsibilities of the thematic focal point within the Clearing-House Mechanism of the Convention on issues related to Article 8(j) and related provisions [decision VI/10, paragraph 28]. This technical expert group is scheduled to meet in Santa Cruz de la Sierra, Bolivia, in February 2003.

The COP also requested funding agencies, and particularly the Global Environment Facility, to make information on activities, process and criteria for eligibility more easily accessible to Parties and indigenous and local communities, and further invited the GEF to give special consideration to projects that clearly contain elements of indigenous and local community participation, and to apply its policy on public involvement to support the full and effective participation of indigenous and local communities [decision VI/10, paragraphs 29 and 20].