Final
Draft for the Secretariat of the Convention
on Biological Diversity
by Teodora Zamudio
Table of contents of this file:
2.0
Overview – regional issues
2.1
Regional and national land use practices
2.2
Incentive measures & Capacity-building measures
2.3
Repatriation of objects and associated information to
communities of origin
2.4
Strategic planning for conservation and sustainable use
of biological diversity
2.4.1 Ethnobotanical gardens (‘in situ’ experiences)
2.4.2 Botanical and ethnobotanical catalogues.
2.5
Legislative measures
2.7 Summary
Protecting and preserving the Traditional Knowledge of Indigenous people
necessarily entails consolidating the fundamental axis of
identity-territory-autonomy which allows the generation and perenniality of
this knowledge. This trilogy is confronted with the dismemberment of
indigenous territories through arbitrarily-defined administrative divisions,
significant gaps in land tenure regulations with respect to ancestral forms
of possession and management of natural resources. These are generally
submitted to regulations that are incompatible with Indigenous peoples’
cultures, lifestyle and customary practices.
In
addition, Indigenous people have to deal with other aspects such as legal
measures related to intellectual property, and the equitable distribution of
benefits derived from the access to such knowledge. These claims are
intimately linked to other rights, such as: full participation; consultation
and prior informed consent for any activity that takes place or affects
their lands and territories; autonomy and self-determination in the exercise
of their own decision-making; and their customary right of decision on the
use of traditional knowledge among other goods.
At
the end of the 20th century, Indigenous social and political movements
achieved significant legislative goals regarding these issues.
Table
4. Indigenous people’s rights in the national
jurisdictions
|
COUNTRY |
Identity
|
Lands/Territory
|
Self
Determination |
|
ARGENTINA |
It recognizes the
ethnic and cultural preexistence of the Argentinian indigenous people
National Constitución
(1994) Article 75, section 17 |
It recognizes the legal
entity of their communities and the comunal property and possession of
the lands they traditionally inhabited
National Constitucion
(1994) Article 75, section 17 |
It guarantees their
participation in the decisions related to their interests
National Constitucion
(1994) Article 75, section 17 |
|
BOLIVIA |
A indigenous people
(nation) is the human colectivity that descends from populations
seated prior to the conquest or colonization, and that is within the
present borders of the State; their members are identified by cultural
history, organization, language or dialect and other characteristics,
they maintain a territorial bond based on the administration of their
habitat and their social, economic, political and cultural
institutions and they recognize themselves like pertaining to the same
sociocultural unit
Supreme Decree N° 23858
September, 9th 1994 |
It guaratees the rights
of the indigenous and original communities on their communitarian
territories of origin, incluiding their economic, social and cultural
implications and the sustainable use of their renewable natural
resources
National Agrarian Reform
Service Act N° 1715. October, 18th 1996 |
The natural
authorities of the communities will be able to exert functions of
administration and application of the own norms, like alternative
solution of conflicts according to their customs and procedures,
whenever they are not opposite to the national constitution and the
laws
National Constitution
(1994), Article 171 |
|
BRAZIL |
It recognizes the
indigenous identity to those persons whom descend from the pre
colombian inhabitants and identify themselves and are recognized as
pertaining to an ethnic group with cultural characterization that
distinguishes them from the rest of the national society. The
indigenous communities are defined as the group of families of
indigenous persons, living isolated from other national sectors or
having social contacts with them, they are not integrated
Indigenous People Status
Act N° 2001 December, 19th 1973 |
It recognizes the rights
on the lands that they traditionally occupy, which means inhabited
with permanent character, fitting the exclusive fruition of the
natural resources, the rivers and the existing lakes.
Federal Constitution
(1988). Article 231 |
It recognizes the
social organization, the originary customs, languages, beliefs and
traditions
Federal Constitution
(1988). Article 231 |
|
CHILE |
It recognizes the Indigenous Community as
ethnic group in one or more of the following situations: comes from a
same familiar trunk; recognizes a traditional headquarter; habit or
has inhabited indigenous lands in common, or come from a same old
people.
National Corporation for the Indigenous
Dvelopment N° 19.253
(1993). Article 9 |
It recognizes the
property on the historically
occupied lands by the mapuche, aimara,
rapa nui, atacama, quechua, colla, kawárskhar and yamana communities,
whenever their rights are registered in the Indigenous Lands Registry
National Corporation for
the Indigenous Dvelopment N° 19.253
(1993). Article 12 |
It creates the Commission
for Development of the Pascua Island and its members were be elected
by the indigenous inhabitants
National Corporation for
the Indigenous Dvelopment N° 19.253
(1993). Article 67 |
|
COLOMBIA |
It recognizes as
indigenous community or parcialities the group or set of groups of amerindian origin with identification with their native
past, that maintain the characteristics, the uses and the own values
of their traditional culture and own forms of government and social
control which distinguish them of other rural communities
Decree N° 2.655 (1988). Article 124 |
The indigenous reserves, the other
indigenous communal lands and the lands where the indigenous
communities were established or that constitute their habitat, will
only be able to be adjudged to these communities and in quality of
reserves (‘resguardo’ in the original)
Political Constitution (1991). Article
63. Act N° 21 (1991.) Decree N° 2164 (1995). Article 3 |
In accordance with the Constitution and
the laws, the indigenous territories will be governed by the
indigenous councils conformed and regulated according to the uses and
customs of their communities
Political Constitution (1991) Article
330. |
|
ECUADOR |
It recognizes and guarantees to the
indigenous people, the right to maintain, to develop and to fortify
its identity and traditions in spiritual, cultural, linguistic,
social, political and the economic thing.
Political Constitution
(1998). Article 84. |
It recognizes and guarantees to the
indigenous people, the right to conserve the imprescriptible property
of their communitarian lands, that will be inalienable, unattachable
and indivisible, except for the faculty of the State to declare them
of public utility.
These lands will be free of the payment
of taxes. The indigenous communities could not be displaced of their
lands and they will maintain the legal possession of the communitarian
lands or they will obtain his gratuitous awarding, according to the
law.
Political Constitution
(1998). Article 84. |
It recognizes and guarantees to the
indigenous people, the right to conserve and to develop to their
traditional forms of coexistence and social organization, of
generation and exercise of the authority; to be consulted on the
nonrenewable resources that are in their lands and that can
environmentally or culturally affect them and to participate in the
benefits these resources provide.
Political Constitution
(1998). Article 84. |
|
GUYANE |
‘Amerindian’ means: (a) Any person who is
an Amerindian, who is a citizen of Guyana and is from a tribe from
Guyana or a neighbouring country (Suriname, Brazil or Venezuela); (b)
a descendant of a person defined as an Amerindian by the preceding
paragraph and someone who the Chief Officer thinks should be an
Amerindian according to the Act.
‘Amerindian Community’ means: a group of
Amerindians living in an Amerindian Area, District or Village listed
in the schedule to the Amerindian Act.
Amerindian Act (1976) section 2 |
The government transfers all its rights
and interests in the land within the boundaries of any Area, District
or village as mentioned in the schedule to the Amerindian Act, to the
village council of the village in question. This transfer shall be
registered and government departments shall take notice of the
transfer and act accordingly.
Amerindian Act (1976) section 20A |
(1) The Village council’s powers and
duties include:
(a) to hold the village land title for
the benefit of the community as a whole;
(b) to manage and take care of village
titled land;
(c) to implement and obey rules and
regulations made under the Act.
Amerindian Act (1976) section 19 |
|
PARAGUAY |
It recognizes the existence of the
indigenous people, defined them like groups of culture previous to the
formation and organization of the Paraguayan State.
It is recognized and
guaranteed the right of the indigenous people to preserve and to
develop their ethnic identity, in the own habitat.
Political Constitution (1992). Article 62
and 63 |
The indigenous people have the property
right on their communitarian lands, in sufficient extension and
quality for the conservation and the development of their peculiar
forms of life.
The State will provide them gratuitously,
and they will be unattachable, indivisible, intransferibles,
imprescriptible, nonsusceptible to guarantee contractual obligations
nor to be rented; also, they will be free of tribute.
Political Constitution (1992). Article 64 |
They have the right to apply freely their
systems of political, social, economic, cultural and religious
organization, and the voluntary subjection to their customary norms
for the regulation of the internal coexistence, whenever they do not
attempt against the fundamental rights settled down in the Political
Constitution.
In the jurisdictional conflicts the
indigenous customary right will consider.
Political Constitution (1992). Article 63 |
|
PERU |
All person has the right: To his ethnic
and cultural identity. The State recognizes and protects the ethnic
and cultural plurality of the Nation.
Political Constitution (1993) Article 2,
section 19 |
The property on their lands is
imprescriptible
Political Constitution (1993) Article 89 |
The Farmers and the Native Communities
have legal existence.
They are independent to organize their
communal work and the use and the free disposition of their lands, as
well as their economic and the administrative concerns within the
frame that the law establishes.
Political Constitution (1993) Article 89 |
|
SURINAME |
Indigenous peoples’
rights are not recognized in anyway under Surinamese law. |
It declares all land to which others have
not proven ownership rights, belongs to the domain of the State and
that the state owns all natural resources and has the inalienable to
right to exploit or authorize others to exploit those resources.
Political Constitution (1987) Article 41
1. In allocating domainland, the rights
of the tribal Bushnegroes and Indians to their villages, settlements
and forest plots will be respected, provided that this is not contrary
to the general interest; 2. General interests includes the execution
of any project within the framework of an approved development plan.
Decree Principles of Land Policy (1982)
Article 4
According to the Explanatory Note issued
with the 1982 Decree, this principle [respecting the rights of
hinterland dwellers] will have to be applied during a - possibly long
- transitional period in which the forest population will be
gradually incorporated into the total socio-economic life
|
Indigenous peoples’
rights are not recognized in anyway under Surinamese law. |
|
URUGUAY |
No special rights are
considered |
No special rights are
considered |
No special rights are
considered |
|
VENEZUELA |
It recognizes the existence of the
indigenous people and communities, their social, political and
economic organization, their cultures, uses and customs, languages and
religions,
Political Constitution (1999) Article
119.
The indigenous people have the right to
maintain and to develop their ethnic and cultural identity, sacred
cosmovisions, values, espirituality and their places of cult.
Political Constitution (1999) Article
121.
The indigenous people, like cultures by
ancestral roots, pertain to the unique, sovereign and indivisible
Venezuelan nation.
In accordance with this Constitution they
must have to safeguard integrity and the national sovereignty.
Political Constitution
(1999) Article 125. |
It will correspond to the National
Executive, with the participation of the indigenous people, to
demarcate and to guarantee the right to the collective property of
their lands, which will be inalienable, imprescriptible, unattachable
and intransferibles in agreement with established in the this
Constitution and law.
Political Constitution (1999) Article
119.
It is guaranteed and protected the
collective intellectual property of the knowledge, technologies and
innovations of the indigenous people.
Political Constitution (1999) Article
124. |
The indigenous people have the right to
political participation. The State will guarantee the indigenous
representation in the National Assembly and the deliberative bodies of
the federal and local organizations, according to the law.
Political Constitution (1999) Article
125.
The legitimate authorities of the
indigenous people will be able to apply in their habitat instances of
justice with base in their ancestral traditions and that only affects
their members, according to their own norms and procedures, whenever
they are not opposite to this Constitution, the law and the public
order.
The law will determine the form of coordination of this special
jurisdiction with the national judicial system.
Political Constitution (1999) Article
260.
The term people will not be able to be
interpreted in this Constitution in the sense that it occurs in the
international level.
Political Constitution (1999) Article 126 |
However, it will take time
for these statements to become operational in the sense of their effective
implementation. This task is not only a law-making issue, it also entails a
thorough and idiosyncratic revision of administrative structures.
Despite recent legislative efforts of recognition,
agrarian reforms and protected areas
policies implemented over the last hundred years have barely considered Indigenous people, and have also
made attempts against traditional practices.
A
first result of these policies was the fragmentation of lands, thus
interrupting nomadic ways of life of indigenous peoples, and affecting
animal migrations and reproduction cycles. Second, measures did not
distinguish between Indigenous people and peasants, as they prohibited and
/ or limited the uses of natural resources, therefore impeding the
indigenous practices based on those resources.
The
letter of many national laws recognizes Indigenous people’s rights on their
territories. However, unless its application is judicially requested, it is
not currently possible to allocate land titles to indigenous people within
protected areas, in a way that would allow them to pursue their practices.
Furthermore, once a territory is declared a protected area, the official
jurisdiction overrules and allows other economic groups to obtain
exploitation rights to its ‘untapped’ resources. These seemingly beneficial
programmes not only alter and drain resources involved, but disrupts the
related ones such as the cultural resources of local people.
In
Bolivia the National Revolution of 1952 did not take
into account the indigenous populations of the lowlands nor of the
highlands, forcing on all the common label of ‘farmers’. The agrarian reform
of 1953 considered much of the lands occupied by Indigenous peoples as
uncultivated, and granted them in property to industrial entrepreneurs. In
the 1960s, the will to extend agricultural borders through colonization
policies resulted in the proliferation of new establishments within
Indigenous areas, essentially in Alto Beni and Chapare. Aymaras and Quechuas
migrants, impelled by the desire (and necessity) to find new options of
development that their regions of origin could no longer offer, ran into
very many obstacles: cultural, climatic, etc., their agricultural practices,
for example, were not suitable to the zones where they settled, and often,
these were not apt for agriculture. The 1990s mark a turning point in the
history of Indigenous peoples in Bolivia, because for the first time, the
government admitted their territorial claims, and created a platform for the
development and the implementation of ethnic policies.
In
Ecuador the amazonian people’s slash-and-burn system of
culture (‘roza y quema’) is still preserved. It is used for the
culture of the orchards that commonly provide domestic food products: yucca
and other tubers, maize, banana, citruses, red pepper, among others. Terrain
preparation such as the cutting of trees when necessary, and initial
cleaning, is done by men. Women take part in burns along with their
husbands, and take part in the seeding, weeding and harvest. This system has
enormous advantages in the preservation of biodiversity since the space used
as orchard is maintained for two or three years, after which the terrain is
left to regenerate naturally into a secondary forest. Several plants
regenerate or appear again, such as a new type of wild yucca, from which new
varieties can be created. An Achuar orchard includes at least a hundred
species. The traditional knowledge for the reproduction of plants and
selection of seeds is passed on from mothers to daughters.
In
Peru 42 of the different ethnic groups who have high diversity of
cultures (there are over 44 of them) are settled in the Amazon. Within the 7
400 000 hectares held in communal property, these groups conserve important
knowledge on uses and properties of species, and handling techniques of a
great diversity of genetic resources (4 400 plants of well-known uses and
thousands of varieties) (National
Strategy on Biodiversity)
Box
2. Indigenous lands in Peru. SIP/Geographic
Data Base
Forestry and forest genetic resources are important to many Latin American
countries, as reflected in the wide range of organizations and institutes
involved in conservation programs. However, a clear picture of who is
involved and how they are linked is often lacking.
The
International Plant Genetic Resources Institute is identifying national and
international organizations involved in the conservation or use of forest
genetic resources in this region to promote regional networking as well as
providing information on forestry issues. It is also conducting a three-year
research project on the impact of human activities on forest genetic
resources conservation, in collaboration with International Centre for
Research in Agroforesty and partners in
Brazil,
Argentina and
Germany (Institute International Plant Genetic Resources
Institute. 2001)
The
I.P.G.R. Institute is also planning activities that will be implemented in
Peru’s Ucayali region, a humid tropical area dominated by the
annually flooding Ucayali River. Study sites will be chosen from villages
within the Shipibo communities, one of the twelve native Amerindian ethnic
groups of Ucayali. Particular attention will be paid to how current cultural
and economic pressures are changing the Shipibo indigenous farming system
with respect to landrace genetic diversity and germplasm management
practices (Institute
International Plant Genetic Resources Institute. 2001)
Colombia is going
through the first stage of the implementations of the programs and policy
for the indigenous reserves of Laguna de Guatavita and the Laguna de Suesca.
(Thematic Report: Mountains Ecosystems.
October, 2002). According to the Plan of Action of the
Colombian National Strategy, the inclusion of the traditional knowledge and
practices (rescue, implementations and difussion) and its consideration in
the research programs is a priority (National
Strategy on Biodiversity
).
Capacity building concerning use and retention of traditional
biodiversity-related knowledge and practices points toward, on the one hand,
empowering indigenous and local communities on related issues and
activities: (a) rescue and protection their traditional lands and resources;
(b) opportunities for promoting the use of traditional technologies arising
from the use of their knowledge, innovations and practices and benefiting
from their transfer. On the other hand, supporting the appropriated design
and implementation of data bases and registered evidence of the existing
traditional biodiversity-related knowledge; strengthening –if feasible–he
intellectual property rights systems, in order to mitigate any negative
side-effects (UNEP/CBD/COP/7/5). The value of germoplasm that is being used
by the pharmaceutical industry has been estimated to be over 47 billion
dollars every year. Information with respect to the use and knowledge of
plants that local communities possess, especially shamans and other
traditional healers, has been given freely without benefit-sharing or at a
very insignificant rate (Friends of the Earth International. 2002).
According to national reports and private and public agencies, the
information about those instances would be implemented, but their
achievements and follow up are scarcely traceable and measurable.
The
GEF Small Grants Programme [SGP] is an important source to identify
initiatives in the region aiming to protect, promote and facilitate the use
of traditional knowledge. Established in 1992, the year of the Rio Earth
Summit, the GEF Small Grants Programme
gives priority to activities such as those that recognize the
roles and importance of indigenous knowledge and resource management
systems, and of local institutions and patterns of social organization,
therefore the implementation of those kind of projects can be used as a
reliable indicator of the activities that address to the empowerment of
traditional knowledge holders and the capacity building in the retention of
traditional biodiversity-related knowledge of Indigenous communities.
Table
5. UNDP/GEF Small Grant Programme (South America
Region)
|
COUNTRY |
Total Grant Amount |
Significant Participation of
Indigenous Peoples |
Involving TBRK |
|
US$ |
Projects |
US$ |
Projects |
US$ |
Projects |
|
BOLIVIA |
1.780.550 |
76 |
1.356.411 |
55 |
164.708 |
7 |
|
BRAZIL |
1.795.217 |
82 |
216.147 |
10 |
201.131 |
12 |
|
CHILE |
2.573.600 |
99 |
344.615 |
12 |
126.489 |
4 |
|
ECUADOR |
1.868.011 |
97 |
149.090 |
3 |
149.090 |
3 |
|
PERU |
1.173.251 |
35 |
110.332 |
4 |
3.000 |
1 |
|
TOTAL |
9.190.629 |
389 |
2.176.595 |
84 |
644.418 |
27 |
Source: http://www.undp.org/sgp/index.htm
Although other international agencies and organizations work on this issue,
the information is not coordinated and an inclusive and consistent scope of
the situation is not feasible. The figures do not allow to be optimist so
far, and according to estimations that can be made a focussed development
has not been addressed yet.
|
Graphic
2. Incidence of the projects on traditional
biodiversity-related knowledge in the capacity-building actions
through UNDP/GEF Small Grant Programme (South America Region) |
 |
Table
6. UNDP/GEF S. G. P. Projects associated to
TBRK (South America Region)
|
Field of development
|
Country – Project
(Note: Titles are in the language they were registred in the UNEP/GEF
database) |
Amount US$ |
|
General |
Brazil - Recovery of
common knowledge on preservation and recuperation of the Cerrado -
Phase 2 |
|
|
|
Chile - Comunidad Rafa
Burgos protege su biodiversidad, IX Región. |
|
|
|
Ecuador -
Conservation and Management of the Ethnobotanic and Endemic Species of
the Tsáchila Tribe |
|
|
|
Ecuador - Indigenous
Nationalities and Biodiversity |
|
|
|
Chile - Fortalecimiento
de la presencia de los kimche para la restauración simbólica y
ecológica del territorio Nagche |
|
|
|
Peru - Planificación Participativa para la
Conservación de la Diversidad Biológica de la Reserva Comunal Yanesha
del valle del Palcazú, Oxapamapa, Pasco, Selva Central |
|
|
|
|
191.924 |
|
Food |
Bolivia - Control
Ecológico de plagas para el manejo sostenible de la agrobiodiversidad
de papa. |
|
|
|
Bolivia - Estudio
fenológico de especies que proporcionan frutos silvestres al pueblo
indígena Weenhayek. |
|
|
|
Bolivia - Revalorización
de variedades de papa nativa con enfoque de género para zonas de alto
riesgo climático en el Ayllu Chullpas |
|
|
|
Chile - Curadoras de
semillas contribución del conocimiento tradicional al manejo
descentralizado de la biodiversidad |
|
|
|
|
