FPIC and TK Repatriation in the Pacific Context
By Sapa Saifaleupolu of the Ole Siosiomaga Society Inc. (OLSSI), Samoa.
A whole two weeks have gone by after the Convention Biological Diversity (CBD) 9th meeting of the Working Group on Article 8(j) and Related Provisions, which was held from 4-7 November in Montreal. It’s time to reflect on the vast amount of information shared, and more importantly, what meaning it has for a small and isolated island country in the Pacific like Samoa. This narrative therefore briefly touches the International Indigenous Forum on Biodiversity (IIFB) caucus meetings; in particular the discussions on Article 8(j) as it holds so much significance for the indigenous peoples and local communities (IPLC’s) in our part of the world. The opportunity could not have come at a better time because many Small Island Developing States (SIDS) in the Pacific including Samoa, are going through land reforms – some of which can be detrimental to indigenous peoples and local communities.
As a new comer to the global arena, I found the discussions very enlightening and rewarding. Indeed the discussions covered a series of very important issues in regards to Article 8(j). In this limited space, the focus will be on two topics only – free prior and informed consent (FPIC) and repatriation of traditional knowledge (TK) associated with the use and application of genetic resources because their implementation will dramatically impact upon IPLC’s.
Discussions in the IIFB caucus were professional and passionate and everyone was fully committed to pursuing the most fair and comprehensive deal concerning IPLC’s and access and benefit sharing (ABS) using FPIC and repatriation of TK. With regards to FPIC there was clear agreement in the IIFB caucus that it is the best approach, at this point in time, to address the complexities of ABS under the Nagoya Protocol. Indeed, in the most general context, FPIC, when properly modified and administered, has proper meaning and usefulness to IPLCs in the long-term.
With specific focus on the Pacific SIDS however, the current FPIC status is highly unlikely to establish proper administering of the ABS mechanism. The very nature of the common tenure system that controls customary land and marine resources in most Pacific SIDS makes the current status of FPIC a constraint to successful application of AB, hence an irrelevant pathway to delivering fair and equitable ABS from the use of genetic materials and associated tk. This is in spite of the strong support from IPLC’s in other parts of the world that FPIC can be justly executed under traditional or customary laws.
When FPIC is applied as it is right now in Pacific SIDS such as Samoa a volatile situation may be generated within extended families and in communities which defeats the whole purpose why it was developed. Land and sea resources in the family context are owned by the whole extended family with the paramount chief as the trustee and the village represented by the council of chiefs as the ultimate authority and owner. This simply means that every family member has right of access and use of any of these resources with blessings from the family leader or the paramount chief. The tenure system provides a safeguard for every family member and reciprocal sharing of land and sea produce has been a key aspect of this resource use which is a very effective and sustainable resource management strategy.
The difficulty with FPIC lies in the fact that people from many Pacific SIDS have been migrating during the last two centuries to the developed Pacific countries like New Zealand, Australia and the USA. Families are now living far apart and each of these family members, under the traditional law, has the right to give her/his consent, thus securing an FPIC is an enormous task. This is a fragile situation as Pacific SIDS governments are ratifying the Nagoya Protocol without rectifying the existing FPIC inadequacies. There seems to be an insensitive attitude in Pacific SIDS government towards those who migrated voluntarily to seek better opportunities in education, health and employment in New Zealand, Australia and USA. FPIC is intimately linked to human rights and if governments move forward without proper modification, human rights will be violated – the exact opposite of what FPIC is meant to achieve.
Besides, absentee family members have been remitting money to resident family members for years. These remittances have been and will continue to play a major role in developing economies of Pacific SIDS. Remittances relative to GDP in many Pacific SIDS are among the highest in the world. And they emigrantmake a significant contribution to the reduction of poverty, as well as promoting saving, investment and human capital. In addition, emigrants not only remit to their immediate and extended families but to community-level organisations like churches, community clubs and relief funds. Without remittances, some Pacific SIDS would be struggling economically much more than they are today.
The contribution of the emigrants to their respective families and countries is enormous. Although they are physically absent from their original homes, their remittances have been a life changing contribution to many and their influence will endure as the emigrants continue to pay homage to their original homelands and economies. Governments should therefore acknowledge both the emigrants enormous input to the local economy and their rights to the land and marine resources. Although literally displaced, their presence is acutely felt within their original homes and communities and they are still impacting on local socio-political decision-making process. Thus FPIC should also respect the rights of the emigrants who at the moment are effectively conserving the biodiversity via remittances. Applying traditional laws to administer FPIC will not work because these laws were originally designed to safeguard the rights of every family member regardless of place of residence. Applying FPIC in Pacific SIDS without the consent of the absentee members (who are continuously paying homage to the family, village and nation via remittances) is not doing justice when perceived from the traditional laws. It is hard to have a genuine benefit-sharing arrangement in the absence of an effective implementation of FPIC of indigenous peoples that includes the diaspora in many developed countries overseas.
Repatriation of TK
Repatriation of TK associated with uses and practices of genetic material on the other hand is just as important for ILPC’s in Pacific SIDS. All Pacific island countries in the past were either colonies or territories of the major world powers. During those years of foreign occupation some of the customary lands belonging to IPLCs were alienated through devious means. For example, in Samoa, three villages were displaced forcefully by the foreign power (New Zealand and the USA) to make way for an airport during the 2nd World War. Since then, these villages never gained control of huge tracts of good arable lands. But like many IPLC’s, these lands represent the identity and the livelihoods of those displaced. Since that time, indigenous people in these communities have been marginalised and are still struggling to make ends meet due to the lack of access to good arable land and marine resources in their current locations.
According to the Report of the International Indigenous and Local Community Consultation on Access and Benefit Sharing and the Development of an International Regime – “The Expert meeting stressed that any discussions on benefit-sharing arrangements must be mindful of the fact that past injustices have left most indigenous peoples in poverty and marginalization.” This is noble indeed because it is likely to lead to the repatriation issue however, the statement should have included an allusion to the fact that the same past injustices have also led to the loss of lives of many indigenous people. It is normal diplomacy to use genuinely convincing language; but there is nothing more convincing than stating the simple truth. The whole report for that matter looks absolutely fantastic and has an appeal to many, the problem however is that certain details are left out – the very details that means a lot to some indigenous groups and communities.
The idea of repatriation of lands to those displaced – the rightful owners and custodians, is not just about the lands. It is also about all the embraced biodiversity and ecosystems which indigenous peoples enjoyed and learnt their trade prior to being displaced. This should not be regarded as separate from the repatriation of TK because both are about the use of genetic material to improve the quality and standard of living within IPLCs. Hence, repatriating these huge tracts of lands should give the displaced people more access to biodiversity and thereby apply their expertise on genetic resource as part of the daily activities in supporting their livelihoods.
Although repatriation here focuses upon TK associated with use of genetic resources, it is also very crucial for displaced IPLCs to be reconnected to their place of origin. Repatriating displaced IPLCs themselves will strengthen their cultural identity and revive skills and capabilities long underutilised to promote the use of TK with conservational influence on land and marine resources. Repatriating IPLCs at this point through the UNCBD perseverance to conserve and protect the biodiversity for all generations is an act of justice, hence should have a liberating influence on human rights that have been violated for a long time. The opportunity to participate in the CBD meeting in Montreal came at a crucial time when IPLCs in Pacific SIDS are becoming more involved in the fight against biodiversity loss and climate change. When properly administered, repatriation of TK will provide an enabling environment for IPLCs to support and participate more in CBD effort in Pacific SIDS where biodiversity is limited, fragile and extremely vulnerable to the impacts of climate change.
Featured image: Chief Charles Patton of the Mohawk Nation opened the meeting of the Article 8(j) Working Group and welcomed delegates to Mohawk traditional territory. Credit to IISD Reporting Services