(This is the statement made by the International Indigenous Forum on Biodiversity (IIFB) after they had walked out during the afternoon session of the Working Group II last 16 December 2016.)
The International Indigenous Forum on Biological Diversity (IIFB) has walked out on the Working Group decisions on the development of Voluntary Guidelines for free, prior and informed consent because they are being made without our free, prior and informed consent.
We want to emphasize that these discussions concern our traditional knowledge, that we have traditionally held since time immemorial. This is the knowledge given to use by our Creator and our ancestors.
We think we had a good spirit in the beginning of the Contact Group to consider the Guidelines. The IIFB made early major concessions in order to show good will and move the decisions forward. We showed respect for the parties. While advocating for adding the word “free” to “prior informed consent,” we made a major concession to agree to the use of “approval and involvement” and “according to national legislation.”
This good will was not fully reciprocated by the parties. We appreciated those who supported us. But some parties seemed intent on qualifying and limiting the value of the Guidelines. Instead of respecting the text that had come out of 8j, they spent much time opening up clean text that had already been negotiated and agreed upon by consensus by parties, indigenous peoples and local communities (IPLCs). Parties kept opening up unbracketed texts and adding new text, all designed to subject IPLCs rights to national legislation, or otherwise further limit the rights.
We believe that IPLC rights cannot limited in this way. While we have many issues and hard compromises, we ask for four (4) changes that for us are red line issues:
Paragraph 4: “The guidelines should be applied in a manner that is consistent with national law of the country where the traditional knowledge is being accessed, gives due importance to the customary laws and community protocols and practices of indigenous peoples and local communities, in accordance with national legislation”.
At the end of the sentence add “and relevant international obligations.”
Paragraph 6 (d): “Consent or approval is the agreement of the indigenous peoples and local communities’ holders of traditional knowledge to grant access to their traditional knowledge to a potential user and includes the right not to grant consent or approval, in accordance with national legislation”.
Delete “in accordance with national legislation” Consent is consent. Saying that consent or approval are subject to national legislation potentially makes consent or approval conditional, which makes the concepts contradictory. This should not appear in a definition.
Paragraph 16 (g): "Procedures consistent with customary laws, community protocols, practices and customary decision-making processes, in accordance with national legislation."
Delete “in accordance with national legislation.” Customary laws, community protocols, practices and customary decision-making processes have their origins in the Creator and the First laws of the ancestors, held since time immemorial. They are not subject to national legislation.
Para 15: “Community protocols and customary law, in accordance with national legislation, can play a role in processes for access to traditional knowledge and the fair and equitable sharing of benefits arising from the use of such knowledge. They can contribute to legal certainty, transparency and predictability concerning processes for obtaining :prior informed consent", or "free, prior and informed consent", or approval and involvement, depending on national circumstances, of indigenous peoples and local communities and for establishing mutually agreed terms for benefit-sharing"
Delete “in accordance with national legislation.” Community protocols and customary law cannot be subject to national legislation.