Concluding Thoughts 315
Pacific”): BCPs “can be derived from existing cultural norms and customs or be
newly constructed to serve a particular purpose”.
There is little doubt that BCPs/CPs are never a faithful transposition or codification of what Bavikatte et al. once called the community “space within”,
i.e. the “ethical grammar” of the relationships communities have with their
ecosystems, “a grammar that is coded in culture, values, practices, and customary laws” (Bavikatte et al., 2015). From early on in discussions on the
inclusion of BCPs/CPs in a strengthened ABS framework, the notion was to
prevent misappropriation of TK and genetic resources held by IPLCs through
the laying down of local PIC procedures informed by customary law and traditional decision-making processes. The Mo’otz Kuxtal Voluntary Guidelines
2
highlighted this focus on local PIC, stressing the importance of community
values, worldviews, and praxis. Nevertheless, BCPs/CPs do not just reflect
local values or worldviews. They are embedded in different levels and scales
of normativities (local, domestic, international), they are tools for negotiating
“with a variety of actors”,
3 and finally, they are outward-looking. Thus, BCPs/
CPs morph into “hybrid” objects for cross-cultural engagement and translation processes. In no way can BCPs/CPs eschew the conceptual language
of access law (or natural resource legislation beyond ABS contexts). This is
particularly true of domestic legislation entrenching BCPs as part of the community PIC and MAT process, as seen below. It equally holds true whenever a
community wishes to add a layer of customary rules to the domestic procedure
for community PIC and benefit-sharing; or struggles to have a local PIC formally enshrined in law. An example of the former is the Bushbuckbridge Community Protocol (The Kukula Traditional Health Practitioners Association &
Natural Justice, 2017),
4 one of the two emblematic South African BCPs with
the much-celebrated Rooibos Biocultural protocol studied by Leslé Jansen
and Rayna Sutherland (Chapter 9, “The Khoikhoi Community’s Biocultural
Rights Journey with Rooibos”). The Bushbuckbridge Community Protocol,
intending to unite customary law and state law, refers to the National Environmental Management: Biodiversity Act (2004) and the Bioprospecting, Access,
and Benefit Sharing (BABS) Regulations (2008).
5 The latter is exemplified by
a string of Mexican BCPs developed with the support of the Secretaría de Medio
Ambiente y Recursos Naturales, the civil organisation Red Indígena de Turismo de
México, and with funding from the UNDP.
6 Some of these BCPs strive to put
Mexican law in line with ILO’s Convention No. 169, the jurisprudence of
the Inter-American Court of Human Rights, and Articles 5 (benefit-sharing),
6 (access to genetic resources), and 7 (access to TK) of the Nagoya Protocol
(López Bárcenas, 2016; López Bárcenas & Espinoza Sauceda, 2006).
The outcome is that extant procedures or protocols never quite emerge
unscathed from these encounters with ABS norms and the language of trade, an
undeniable fact when one considers truly ad hoc protocols.
At this point in reasoning, the agency of IPLCs emerges. Interlinkages
between customs and state laws – legally recognised or sought for – between
Pacific”): BCPs “can be derived from existing cultural norms and customs or be
newly constructed to serve a particular purpose”.
There is little doubt that BCPs/CPs are never a faithful transposition or codification of what Bavikatte et al. once called the community “space within”,
i.e. the “ethical grammar” of the relationships communities have with their
ecosystems, “a grammar that is coded in culture, values, practices, and customary laws” (Bavikatte et al., 2015). From early on in discussions on the
inclusion of BCPs/CPs in a strengthened ABS framework, the notion was to
prevent misappropriation of TK and genetic resources held by IPLCs through
the laying down of local PIC procedures informed by customary law and traditional decision-making processes. The Mo’otz Kuxtal Voluntary Guidelines
2
highlighted this focus on local PIC, stressing the importance of community
values, worldviews, and praxis. Nevertheless, BCPs/CPs do not just reflect
local values or worldviews. They are embedded in different levels and scales
of normativities (local, domestic, international), they are tools for negotiating
“with a variety of actors”,
3 and finally, they are outward-looking. Thus, BCPs/
CPs morph into “hybrid” objects for cross-cultural engagement and translation processes. In no way can BCPs/CPs eschew the conceptual language
of access law (or natural resource legislation beyond ABS contexts). This is
particularly true of domestic legislation entrenching BCPs as part of the community PIC and MAT process, as seen below. It equally holds true whenever a
community wishes to add a layer of customary rules to the domestic procedure
for community PIC and benefit-sharing; or struggles to have a local PIC formally enshrined in law. An example of the former is the Bushbuckbridge Community Protocol (The Kukula Traditional Health Practitioners Association &
Natural Justice, 2017),
4 one of the two emblematic South African BCPs with
the much-celebrated Rooibos Biocultural protocol studied by Leslé Jansen
and Rayna Sutherland (Chapter 9, “The Khoikhoi Community’s Biocultural
Rights Journey with Rooibos”). The Bushbuckbridge Community Protocol,
intending to unite customary law and state law, refers to the National Environmental Management: Biodiversity Act (2004) and the Bioprospecting, Access,
and Benefit Sharing (BABS) Regulations (2008).
5 The latter is exemplified by
a string of Mexican BCPs developed with the support of the Secretaría de Medio
Ambiente y Recursos Naturales, the civil organisation Red Indígena de Turismo de
México, and with funding from the UNDP.
6 Some of these BCPs strive to put
Mexican law in line with ILO’s Convention No. 169, the jurisprudence of
the Inter-American Court of Human Rights, and Articles 5 (benefit-sharing),
6 (access to genetic resources), and 7 (access to TK) of the Nagoya Protocol
(López Bárcenas, 2016; López Bárcenas & Espinoza Sauceda, 2006).
The outcome is that extant procedures or protocols never quite emerge
unscathed from these encounters with ABS norms and the language of trade, an
undeniable fact when one considers truly ad hoc protocols.
At this point in reasoning, the agency of IPLCs emerges. Interlinkages
between customs and state laws – legally recognised or sought for – between