Community Protocols and Biocultural Rights 17
One way of limiting the risk of IPLCs’ local rules and procedures from being
subverted or ignored, and thus their tangible and intangible heritage from being
misappropriated, has been suggested, namely to articulate these communities’
protocols in a form that can be acknowledged by external actors (Anderson,
2015, p. 776). There has been talk and initiatives have been taken about new protection mechanisms, especially for cultural heritage, in Canada and Australasia
for decades. Among the vast array of non-legal (contra, Bowrey, 2006) – or better
still, “primarily ethical in nature” (Gray, 2004) – and community-level mechanisms of protection for intangible culture heritage that have been considered
and proposed by scholars, “Community Research Protocols” or “( Indigenous)
cultural protocols”
56 have garnered considerable attention over the years (even
though the open-textured nature of the expression that covers a “diverse
spectrum of instruments related to principles, processes, and rules of conduct”
(Bannister, 2009, pp. 285–286) is sometimes regretted). These locally developed
instruments were a response to the increasing use of the intangible cultural heritage of First Nations/Aboriginal peoples in research, technology, and mainstream
culture (Anderson & Younging, 2010; Janke, 2005; Nicholas & Bannister, 2004;
Raven, 2010; Riphagen & Stolte, 2016). They are without doubt the main source
of inspiration for BCPs within the context of biodiversity-related contracts.
Simultaneously, while IPLCs sought to consolidate their position through
environmental law, initiatives were multiplying around “Indigenous peoples’
declarations and statements on equitable research relationships”, “Community
research agreements”, “Community protocols”, and “Community codes of conduct”, with a view to setting the foundation for new relationships between IPLCs
on the one hand, and researchers and private companies on the other, in the field
of biodiversity (see, in particular, Laird, 2002). Among these initiatives, those
around “community protocols” – soon to be known as BCPs – gained in popularity due to the considerable publicity given to the Intercommunity Benefit
Sharing Agreement in the Parque de la Papa, in Pisac (in the Cuzco region of
Peru)
57 with the support of the ANDES association (ANDES et al., 2012)
58 and
the International Institute for Environment and Development (IIED),
59 before
being promoted internationally by Kabir Sanjay Bavikatte and Harry Jonas, two
international lawyers and the founders of the NGO Natural Justice.
Although the thread of history seems easy to follow, care should be taken
not to overstate the intellectual continuities. As will be seen, the Potato Park
biocultural protocol is entrenched in a specific theoretical framework and is
but one part of a larger system built around the notion of biocultural heritage ( Argumedo, 2008; Argumedo & Pimbert, 2008; Graddy, 2013; Hall, this
volume, Chapter 3).
BCPs as Legal Tools
While community protocols are broadly defined in the Mo’otz Kuxtal Voluntary Guidelines (2016),
60 they are tightly articulated around PIC and
One way of limiting the risk of IPLCs’ local rules and procedures from being
subverted or ignored, and thus their tangible and intangible heritage from being
misappropriated, has been suggested, namely to articulate these communities’
protocols in a form that can be acknowledged by external actors (Anderson,
2015, p. 776). There has been talk and initiatives have been taken about new protection mechanisms, especially for cultural heritage, in Canada and Australasia
for decades. Among the vast array of non-legal (contra, Bowrey, 2006) – or better
still, “primarily ethical in nature” (Gray, 2004) – and community-level mechanisms of protection for intangible culture heritage that have been considered
and proposed by scholars, “Community Research Protocols” or “( Indigenous)
cultural protocols”
56 have garnered considerable attention over the years (even
though the open-textured nature of the expression that covers a “diverse
spectrum of instruments related to principles, processes, and rules of conduct”
(Bannister, 2009, pp. 285–286) is sometimes regretted). These locally developed
instruments were a response to the increasing use of the intangible cultural heritage of First Nations/Aboriginal peoples in research, technology, and mainstream
culture (Anderson & Younging, 2010; Janke, 2005; Nicholas & Bannister, 2004;
Raven, 2010; Riphagen & Stolte, 2016). They are without doubt the main source
of inspiration for BCPs within the context of biodiversity-related contracts.
Simultaneously, while IPLCs sought to consolidate their position through
environmental law, initiatives were multiplying around “Indigenous peoples’
declarations and statements on equitable research relationships”, “Community
research agreements”, “Community protocols”, and “Community codes of conduct”, with a view to setting the foundation for new relationships between IPLCs
on the one hand, and researchers and private companies on the other, in the field
of biodiversity (see, in particular, Laird, 2002). Among these initiatives, those
around “community protocols” – soon to be known as BCPs – gained in popularity due to the considerable publicity given to the Intercommunity Benefit
Sharing Agreement in the Parque de la Papa, in Pisac (in the Cuzco region of
Peru)
57 with the support of the ANDES association (ANDES et al., 2012)
58 and
the International Institute for Environment and Development (IIED),
59 before
being promoted internationally by Kabir Sanjay Bavikatte and Harry Jonas, two
international lawyers and the founders of the NGO Natural Justice.
Although the thread of history seems easy to follow, care should be taken
not to overstate the intellectual continuities. As will be seen, the Potato Park
biocultural protocol is entrenched in a specific theoretical framework and is
but one part of a larger system built around the notion of biocultural heritage ( Argumedo, 2008; Argumedo & Pimbert, 2008; Graddy, 2013; Hall, this
volume, Chapter 3).
BCPs as Legal Tools
While community protocols are broadly defined in the Mo’otz Kuxtal Voluntary Guidelines (2016),
60 they are tightly articulated around PIC and