This article has been written by Mustafa Chitalwala., a student of Symbiosis Law School, Pune.
The Convention on Biodiversity was signed at the 1992 Rio Earth Summit. By acknowledging the importance of biodiversity at genetic, species, and ecosystem levels, the Convention breaks new ground in international agreements. It seeks to bind natural resources and human actions by linking conservation, sustainable use, and the sharing of benefits from biodiversity exploitation. The apprehension of biodiversity loss has contributed to States adopting the Convention on Biodiversity; however, if not correctly understood, it risks adversely affecting the very indigenous peoples who have accomplished so much to conserve biodiversity through history.
“…to remove him and rehabilitate him in the plains is like taking a fish from the river and putting it into an artificial reservoir or an aquarium where it might survive but can never be happy.” – The Supreme Court of India[1]
However, the Biodiversity Convention will reinforce the pre-existing relationship between indigenous peoples and biodiversity, and a significant opportunity to promote mutual conservation would be missed unless indigenous peoples are put at the center of the protection and management of biodiversity in their territories. Instead, indigenous rights are violated, the conflict is intensified, and biodiversity is suffering.
The participation of people living in and around natural resource-rich areas in the management and use of these resources is a valuable conservation tool that has been recognized worldwide. This was supported by the International Union for the Conservation of Nature (IUCN) ’s 1980 World Conservation Plan and the 1992 Declaration on Forest Values and the Convention on Biological Diversity from the Earth Summit. The Convention could pose a significant threat to indigenous peoples as well as to the biodiversity. Negative impacts may include expanding of the term ‘indigenous’ to include local communities living in isolated conditions; increasing the power of states to regulate land and resources; promoting further creation of protected areas without the consent of the affected populations; promoting and encouraging access agreements between states and bio-prospecting firms.
State sovereignty must not override indigenous rights in order for the Convention to be useful; indigenous groups must be accepted as ‘peoples’ whose cultures will evolve and grow. Some positive elements in the Convention appear in 8; the collective interests are recognized by the term’ nation,’ and the consent of the indigenous people is recognized as essential in the term ‘approval’. Article 14 advocates environmental assessments on the development projects in sensitive areas with public participation. No access to indigenous knowledge, innovation, or practices should take place without the prior and informed consent of the people concerned. The fact the indigenous peoples have nurtured species variation for thousands of years has made possible the current breadth of biodiversity. Indigenous knowledge, expertise, and understanding of rainforest biodiversity have been amply documented and demonstrated to be based on sustainable principles. Throughout forest regions, indigenous peoples carry out agricultural practices that rely extensively on promoting biodiversity.
The purpose of the Convention is to protect biodiversity and so indigenous people’s local practices, and knowledge is essential to take into consideration[2]. It seems to indicate the critical priority of the Convention’s beneficiaries, who are also the very instigators of the degradation of biodiversity. Besides, several national laws and policies are following universal standards for indigenous peoples’ rights. These also refuse land rights to pursue forcible resettlement and allow the national colonists and foreign corporations to take over indigenous territories.
To facilitate exploitation, the capacity of indigenous peoples to protect biodiversity is threatened. States have a responsibility according to the aims of the Convention to enhance local and indigenous communities. Unfortunately, there is an emphasis on state control of resources throughout the Convention. A common property of humanity has been replaced by a recognition of the sovereign rights of states to ‘exploit their own resources according to their own environmental policies’ (Article 3).
The Convention is governed by the Conference of The Parties. Substantive problems were first addressed at the 1994 COP conference, and it was decided that the topic of forests and indigenous peoples would be looked into in-depth. Concerns about the Convention on Biodiversity The Treaty was quickly concluded at the Earth Summit, and while there had been some preparatory committee meetings and some consultations, the process for indigenous peoples was remarkably simple.
Article 3 of the Convention says: ‘States have, as per the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources according to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction’.
Article 10(c) of the Convention on Biological Diversity (CBD) states that Parties shall: (…) protect and encourage customary use of biological resources following traditional cultural practices that are compatible with conservation or sustainable use requirements[3]. Indigenous rights to territories must be respected within the framework of the state while avoiding a clash of continuing sovereignties.
The Convention on Biodiversity does not discuss this issue but, on the contrary, reaffirms unilateral state sovereignty, which states could easily use to revoke indigenous territorial rights to their territories, lands, and resources. According to the view projected in Article 14.2 and Article 15.1, states have open access to all genetic resources and yet are not necessarily liable for any damage caused. This could easily be used by states as ‘open season’ for the plundering of indigenous territories.
The problem of exclusive state sovereignty is the most critical in the Convention because unless it is interpreted in a positive manner, which respects indigenous peoples’ rights, it stands to undermine the very cultural diversity with which biological diversity closely relates.
Another point of concern relates to the presentation of indigenous people in the Convention as there is no definition of what a community is. By using the terms’ indigenous and local’, the Convention tries to distinguish, but it remains unclear. Only by addressing the distinct rights of indigenous peoples and local communities can the Convention meet its aims.
Protected areas that are under the control of indigenous peoples working in harmony with states and environmentalists is an important goal, and several organizations, including the WWF, are trying to implement policies in this direction. Unfortunately, when the Convention establishes that central bodies to cooperate over biodiversity issues in preambular paragraph 14, it completely ignores indigenous people, saying: “Stressing the importance of, and the need to promote, international, regional and global cooperation among states and intergovernmental organizations and the non-government sector for the conservation of biological diversity and the sustainable use of its components.”[4]
Through encouraging ex-situ conservation in the country of origin, the Convention overlooks the fact that this may be used as a justification for national institutions to use and grow indigenous genetic resources in the ‘public interest’ on the grounds that they are endangered, and compensation will not be needed.
[1] Laws Relating to Forest Protection in India: A Study with Special Reference to Rights of Forest Dwellers.
[2] Lesni, Claudiu. “Novelties In Engagement And Marriage Matters In The Light Of The New Civil Code.” Contemporary Readings in Law and Social Justice, vol. 6, no. 1, Addleton Academic Publishers, Jan. 2014, p. 332.
[3] James, K., and Pierre, R., 2009. Achieving Effective Implementation Of CBD Article 10(C): Challenges And Recommendations From Indigenous Peoples’ Case Studies. [online]Forestpeoples.org. Available at: <http://www.forestpeoples.org/sites/fpp/files/publication/2010/11/10cpaperwg8j6nov09eng.pdf>.
[4] Cbd.int. 2007. Convention Text. [online]Available at: <https://www.cbd.int/convention/articles.shtml?a=cbd-00>.