14 Fabien Girard et al.
that, in addition to the benefits of relying on local ecological processes,
people-centred conservation is cost-effective and more readily accepted than
command-and-control conservation projects. Furthermore, as local populations in the South are still seen as a major source of resource depletion (Peet
& Watts, 1996, p. 7), participation coupled with benefits cannot but align with
the development blueprint laid out by experts from the late 1980s. This can
be drawn from Article 15(1) which states that the rights of the “peoples concerned to the natural resources pertaining to their lands” “include the right of
these peoples to participate in the use, m anagement and conservation of these
resources”. At the same time, what is well entrenched is the relatively new idea
that Indigenous peoples have the right to seek development on their own terms
(Posey, 2001, p. 388). This implies, at the very least, giving them the right
to be consulted whenever legislative or a dministrative measures or plans and
programmes for national or regional development “may affect them directly”
(Articles 6.1(a) and 7.1).
As the links between TK and conservation deepened, the rights-based
approach to development gave rise to procedural rights which were deemed
crucial to achieving “sustainable development” (Gilbert, 2018, p. 65). It also
pushed for the recognition of substantive rights based on the premise that good
management of land and resources implies a level of “control” thereof.
46 Against
this background, the progressive shift in international instruments and regional
jurisprudence from consultation to consent (free prior and informed consent – FPIC
– or prior and informed consent – PIC) – and then the advent of the principle
of benefit-sharing – expresses difference of kind rather than of degree.
47 The
first inroads into PIC and benefit-sharing were visible in Articles 8( j) and 10(c)
of the CBD, and the emergence of the right to FPIC/PIC was confirmed in the
UNDRIP. The major breakthrough can be credited to the Nagoya Protocol, the
stipulations of which, however qualified they remain when it comes to IPLCs’
rights over genetic resources (Morgera et al., 2014, pp. 122–125), strongly support the view that, for the “custodians of biodiversity”
48 to carry on stewarding
the seeds and plants and cultivating their knowledge, they must be able to “control” and therefore to decide (collectively) whether, when, with whom, and in
consideration of what they want to share elements of their heritage (Posey, 2001,
pp. 388–389).
In other words, as some scholars have suggested, PIC and benefit-sharing in
the Nagoya Protocol are
implicitly underpinned by a substantive environmental right of indigenous and local communities to their genetic resources. It embodies an
obligation owed directly to them, deriving from established international
human rights, in their collective dimension, to indigenous peoples’ selfdetermination, ownership and cultural identity.
(Morgera et al., 2014, p. 118; also see ibid., pp. 42, 113)
that, in addition to the benefits of relying on local ecological processes,
people-centred conservation is cost-effective and more readily accepted than
command-and-control conservation projects. Furthermore, as local populations in the South are still seen as a major source of resource depletion (Peet
& Watts, 1996, p. 7), participation coupled with benefits cannot but align with
the development blueprint laid out by experts from the late 1980s. This can
be drawn from Article 15(1) which states that the rights of the “peoples concerned to the natural resources pertaining to their lands” “include the right of
these peoples to participate in the use, m anagement and conservation of these
resources”. At the same time, what is well entrenched is the relatively new idea
that Indigenous peoples have the right to seek development on their own terms
(Posey, 2001, p. 388). This implies, at the very least, giving them the right
to be consulted whenever legislative or a dministrative measures or plans and
programmes for national or regional development “may affect them directly”
(Articles 6.1(a) and 7.1).
As the links between TK and conservation deepened, the rights-based
approach to development gave rise to procedural rights which were deemed
crucial to achieving “sustainable development” (Gilbert, 2018, p. 65). It also
pushed for the recognition of substantive rights based on the premise that good
management of land and resources implies a level of “control” thereof.
46 Against
this background, the progressive shift in international instruments and regional
jurisprudence from consultation to consent (free prior and informed consent – FPIC
– or prior and informed consent – PIC) – and then the advent of the principle
of benefit-sharing – expresses difference of kind rather than of degree.
47 The
first inroads into PIC and benefit-sharing were visible in Articles 8( j) and 10(c)
of the CBD, and the emergence of the right to FPIC/PIC was confirmed in the
UNDRIP. The major breakthrough can be credited to the Nagoya Protocol, the
stipulations of which, however qualified they remain when it comes to IPLCs’
rights over genetic resources (Morgera et al., 2014, pp. 122–125), strongly support the view that, for the “custodians of biodiversity”
48 to carry on stewarding
the seeds and plants and cultivating their knowledge, they must be able to “control” and therefore to decide (collectively) whether, when, with whom, and in
consideration of what they want to share elements of their heritage (Posey, 2001,
pp. 388–389).
In other words, as some scholars have suggested, PIC and benefit-sharing in
the Nagoya Protocol are
implicitly underpinned by a substantive environmental right of indigenous and local communities to their genetic resources. It embodies an
obligation owed directly to them, deriving from established international
human rights, in their collective dimension, to indigenous peoples’ selfdetermination, ownership and cultural identity.
(Morgera et al., 2014, p. 118; also see ibid., pp. 42, 113)