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Training of Trainer Manual

Advancing the Nagoya Protocol in the Countries of the Caribbean

Training of Trainer Manual: Advancing the Nagoya Protocol in the Countries of the Caribbean Region

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IUCN IUCN is a membership Union composed of both government and civil society organisations. It harnesses the experience, resources and reach of its more than 1,300 Member organisations and the input of more than 10,000 experts. IUCN is the global authority on the status of the natural world and the measures needed to safeguard it.

www.iucn.org https://twitter.com/IUCN/ The designation of geographical entities in this book, and the presentation of the material, do not imply the expression of any opinion whatsoever on the part of IUCN or Canbean Associates Inc. concerning the legal status of any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. The views expressed in this publication do not necessarily reflect those of IUCN or Canbean Associates Inc. Published by: IUCN, Gland, Switzerland in collaboration with Regional Office for Mexico, Central America and the Caribbean Copyright: © 2018 International Union for Conservation of Nature and Natural Resources


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Reproduction of this publication for educational or other non-commercial purposes is authorized without prior written permission from the copyright holder provided the source is fully acknowledged. Reproduction of this publication for resale or other commercial purposes is prohibited without prior written permission of the copyright holder. This publication has been made possible in part by funding from the Global Environment Facility.

Table of Contents Preface ................................................................................................................................................... v Acknowledgements ............................................................................................................................... vi Acronyms & Abbreviations ................................................................................................................... vii About this Manual .................................................................................................................................. 1 1.0 Nagoya Protocol Overview ......................................................................................................... 2

1.1 Introducing the Nagoya Protocol ............................................................................................. 3 1.2 Implementing the Nagoya Protocol ......................................................................................... 4

2.0 Country Profiles in Relation to ABS & the Nagoya Protocol ....................................................... 8 3.0 Training Theories & Practice .................................................................................................... 18

3.1 Learning Theories and Styles ............................................................................................... 18 3.2 Carrying out ABS Training for Adult Learners ....................................................................... 23 3.3 Teaching Methodologies ....................................................................................................... 27 3.4 Course Management ............................................................................................................ 29 3.5 Presentation Skills ................................................................................................................ 34 3.6 Further Learning Resources ................................................................................................. 37

4.0 Access to Genetic Resources .................................................................................................. 37 4.1 Course Objectives ................................................................................................................. 37 4.2 Key Information ..................................................................................................................... 37 4.3 Designing Access Measures ................................................................................................. 39 4.4 Refining the Approach to Access .......................................................................................... 47 4.5 The Importance of Managing Access in the Caribbean ........................................................ 50 4.6 Further Learning Resources ................................................................................................. 52

5.0 Benefit-sharing ......................................................................................................................... 54 5.1 Course Objectives ................................................................................................................. 54 5.2 Key Information ..................................................................................................................... 54 5.3 Differing Views on Benefit-sharing ........................................................................................ 56 5.4 Designing Benefit-sharing Measures .................................................................................... 57 5.5 Refining the Approach to Benefit-sharing ............................................................................. 58 5.6 Designing an ABS Agreement to establish MAT .................................................................. 64


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5.7 Negotiating MAT ................................................................................................................... 67 5.8 The Importance of Benefit-sharing in the Caribbean ............................................................ 68 5.9 Further Learning Resources ................................................................................................. 69

6.0 Indigenous People & Local Communities (IPLCs) .................................................................... 71 6.1 Course Objectives ................................................................................................................. 71 6.2 Key Information ..................................................................................................................... 71 6.3 IPLCS, the CBD and the Nagoya Protocol ........................................................................... 72 6.4 Nagoya and other International Instruments on IPLCs ......................................................... 75 6.5 Designing IPLC Measures .................................................................................................... 77 6.6 Supporting IPLCs to Engage in ABS .................................................................................... 84 6.7 The Importance of Including IPLCs in the Caribbean ABS Process ..................................... 86 6.8 Further Learning Resources ................................................................................................. 87

7.0 Traditional Knowledge (TK) & Intellectual Property Rights (IPR) .................................................. 89 7.1 Course Objectives ................................................................................................................. 89 7.2 Key Information ..................................................................................................................... 89 7.3 Women and traditional knowledge ........................................................................................ 90 7.4 Why protect traditional knowledge? ...................................................................................... 91 7.5 Objections for protecting traditional knowledge .................................................................... 92 7.6 International approaches to traditional knowledge protection ............................................... 93 7.7 Designing national and regional strategies to protect traditional knowledge ........................ 97 7.8 Further Learning Resources ................................................................................................. 99

8.0 Legal Reform .......................................................................................................................... 101 8.1 Course Objectives ............................................................................................................... 101 8.2 Key Information ................................................................................................................... 101 8.3 Guiding principles for ABS legal reform .............................................................................. 102 8.4 Designing processes for ABS legal reform ......................................................................... 103 8.5 Challenges to ABS legal reform in the Caribbean .............................................................. 110 8.6 Opportunities for advancing ABS legal reform in Caribbean countries ............................... 111 8.7 Further Learning Resources ............................................................................................... 113

9.0 Policy Setting .......................................................................................................................... 115 9.1 Objectives ........................................................................................................................... 115 9.2 Key Information ................................................................................................................... 115 9.3 Policy setting for ABS ......................................................................................................... 117 9.4 Linkages between ABS and other goals ............................................................................. 123 9.5 Further Learning Resources ............................................................................................... 125


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10.0 Institutional Arrangements ...................................................................................................... 126 10.1 Course Objectives ........................................................................................................... 126 10.2 Key Information ............................................................................................................... 126 10.3 Indicative steps for designing ABS institutional arrangements ....................................... 126 10.5 Further Learning Resources ............................................................................................ 138

11.0 Supportive Measures .............................................................................................................. 140 11.1 Course Objectives ........................................................................................................... 140 11.2 Key Information ............................................................................................................... 140 11.3 Protocol Requirements .................................................................................................... 140 11.4 Capacity Building ............................................................................................................. 146 11.5 Tools to Support Implementation .................................................................................... 148 11.6 Further Learning Resources ............................................................................................ 150

12.0 Compliance ............................................................................................................................. 151 12.1 Course Objectives ........................................................................................................... 151 12.2 Key Information ............................................................................................................... 151 12.3 Designing measures on compliance ............................................................................... 152 12.4 Compliance with Mutually Agreed Terms ........................................................................ 158 12.5 Setting Policy Priorities on Compliance ........................................................................... 160 12.6 Key priorities for enforcing and promoting compliance with ABS measures ................... 161 12.7 Further Learning Resources ............................................................................................ 164

13.0 Communications & Leadership ............................................................................................... 165 13.1 Course Objectives ........................................................................................................... 165 13.2 Key Information ............................................................................................................... 166 13.3 The Importance of Good Communication in the ABS Process ....................................... 166 13.4 Communication Fields of Action for ABS Implementation ............................................... 167 13.5 Challenges to Successful ABS Communications ............................................................ 168 13.6 Best Practices in ABS Communications .......................................................................... 170 13.7 A Practical Approach to ABS Communications ............................................................... 180 13.8 The Importance of Good Leadership to ABS .................................................................. 184 13.9 Leadership Types and Theories ...................................................................................... 185 13.10 Vital Leadership Behaviour ............................................................................................. 186 13.11 Leadership and ABS ....................................................................................................... 187 13.2 Further Learning Resources ............................................................................................ 190


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Preface

Access to genetic resources and traditional knowledge has largely remained unrestricted over the history of the Caribbean. Various entities have been able to remove and use genetic resources and traditional knowledge for their own benefit without any obligation to compensate, or even notify, the original holder of the resources or knowledge. Abuse of this freedom has led to degradation of genetic resources and monopolization of benefits by third parties. Concern over the long-term effects and inequality of these practices led the global community to negotiate and adopt the Convention on Biological Diversity (CBD) in 1992. The Convention is concerned with equitable benefit-sharing, the sustainable use and conservation of genetic resources and recognition of the importance and value of traditional knowledge. Subsequently, the Nagoya Protocol was developed in 2010. This international treaty seeks to support the CBD by providing a transparent legal framework for implementing some of the Conventions’ objectives. To date, only two countries in the Caribbean have ratified the Nagoya Protocol, Antigua and Barbuda and Guyana. As such, the “Advancing the Nagoya Protocol in Countries of the Caribbean Region Project” seeks to move Caribbean countries forward in developing Access and Benefit-sharing (ABS) measures in order to benefit the Region and come in line with the CBD and the Protocol. Being home to various unique ecosystems, the Caribbean Islands are of critical importance for global biodiversity conservation. For example, 50% of plant life in the Caribbean is totally unique to the region. Allowing access to these unique resources is a responsibility of the people of the Caribbean, however, this should also be balanced with protecting the resources for sustainable use and acknowledging and compensating the true resource owners. The “Advancing the Nagoya Protocol in Countries of the Caribbean Region Project” under which this Manual is developed, is geared to supporting countries of concern in the move towards acceptance of the Nagoya Protocol and implementation of key measures to make the Protocol operational. The project seeks to tackle obstacles linked to limited understanding and meeting requirements for implementation of the Nagoya Protocol and ABS, as well as enhancing understanding about the implications of ratifying the Protocol.


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This manual has been prepared for the purpose of supporting national trainers who will hold the responsibility of multiplying learning about ABS and the Nagoya Protocol across the Region. It includes key information to be shared with learners and related case studies and reading lists, as well as helpful information on teaching techniques. We trust that the following information will help to build awareness and move the Caribbean forward in the protection and fair and beneficial use of their unique and valuable genetic resources and the traditional knowledge of the people of the Region.

Acknowledgements

In the process of preparing this manual, we were grateful for the direction provided by Ms. Melesha Banhan, Project Coordinator for the ‘Advancing the Nagoya Protocol in Countries of the Caribbean Region Project’, working out of the IUCN Regional Office for Mexico, Central American and the Caribbean (ORMACC).

The information in this manual is gathered from a wide literature review covering the Nagoya Protocol and Access and Benefit Sharing with key focus on experiences in the Caribbean. To this extent the research team at Canbean Associates Inc. acknowledges all authors of documents referenced in this manual, as well as concepts borrowed from various publications by local, regional and international organizations. In cases where references are not included the training consultant still do not claim any intellectual property rights to any of the material (videos, case studies, publications and other concepts and documents) included herein. The material is gathered and presented only for the purpose of knowledge transfer related to the objectives of the Manual. The research team is thankful for permission, through the IUCN, to use ABS training material created by the CBD Secretariat. Much of the technical information and processes about Access and Benefit-sharing for this manual were gathered from the Convention on Biological Diversity’s e-Learning Platform and their course, “Establishing Legal Frameworks to Implement the Nagoya Protocol”, as well as the additional content created under the direction of the IUCN.


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Canbean Associates Inc.

Toronto, CANADA

Acronyms & Abbreviations ABS Access and benefit-sharing ABS-CH Access and Benefit-sharing Clearing House ABSA Access and benefit-sharing Agreement CBD Convention on Biological Diversity CCJ Caribbean Court of Justice CNA Competent National Authority COP Conference of the Parties EPA Environmental Protection Agency FAO Food and Agriculture Organization GEF Global Environment Facility ICJ International Court of Justice IPLC Indigenous People, Local Communities IPR Intellectual property rights ITPGRFA International Treaty on Plant Genetic Resources for Food & Agriculture IRCC Internationally Recognised Certificate of Compliance IUCN International Union for Conservation of Nature LMO Living Modified Organisms MAT Mutually agreed terms MOP Meeting of Parties MoU Memorandum of Understanding MTA Material transfer agreement NBSAP National Biodiversity Strategy and Action Plan NEPA National Environmental Planning Agency NFP National Focal Points NGO Non-Governmental Organisation OECS Organisation of Eastern Caribbean States PGR Plant Genetic Resources


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PIC Prior informed consent TK Traditional Knowledge WIPO World Intellectual Property Organization


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About this Manual This training of trainers’ manual has been developed to assist national ABS instructors in their preparation for and delivery of national ABS training in support of moving towards implementing the Nagoya Protocol in the Caribbean Region. It has been designed to be used after the trainers have completed the IUCN online training course which was built on the CBD training course, “Establishing Legal Frameworks to Implement the Nagoya Protocol” and enhanced, under the direction of the IUCN, to include additional modules and Caribbean content. The manual has been developed with professional, adult learners in mind. The manual begins with a brief overview of the Nagoya Protocol, for orientation purposes, and then provides a summary look at the state of ABS in eight Caribbean countries. Both of these sections provide context for the training and may be shared with workshop participants if deemed valuable and necessary by the instructor. The following section on training theories and practices will prove useful for those instructors with little or no previous experience in facilitating a training workshop. It offers a simple understanding of learning theories, styles and methods that will assist instructors in preparing more effective training sessions. It provides examples of different types of exercises that can be used to support learning, as well as simple guidelines for course management and training presentations. The bulk of the manual provides a summary of key information from each of the ten modules which the instructor may want to share during the training. It should be kept in mind however, that material can and should be supplemented or paired down as is appropriate for the audience. Each module also closes with a list of case studies, readings and videos to support further learning in the area of interest. Instructors can assign these as pre-reading or as homework; they can use them during their class or not reference them at all. These resources are simply provided to enhance the learning experience as deemed fit by the instructor. It is important to note that this Manual is accompanied by a Lesson Plan consisting of guidelines for in-class exercises. The Lesson Plan includes a skeleton schedule, with suggested modules and timing. The schedule is complemented by fully developed class exercises for each module, including step-by-step instructions, materials lists and supporting documentation. It is envisaged that training sessions should be participatory in nature; making the most of different learning techniques for


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engagement, understanding and retention, hence the importance of using, or further developing, class exercises.

1.0 Nagoya Protocol1 Overview The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (ABS) is an international treaty that builds on and supports the implementation of the Convention on Biological Diversity (CBD). Specifically, it provides a transparent legal framework for the effective operationalization of the Third objective of the CBD: the fair and equitable sharing of benefits arising out of the utilisation of genetic resources.

1https://www.cbd.int/abs/text/


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1.1 Introducing the Nagoya Protocol

The Nagoya Protocol was adopted on 29 October 2010 in Nagoya, Japan and entered into force on 12 October 2014. To date, it has been ratified by 97 parties, which include 96 United Nations (UN) member states and the European Union.2

The importance of the Protocol is in its creation of greater certainty and transparency for both providers and users of genetic resources and associated traditional knowledge (TK) by:

• Establishing clear and predictable conditions to access genetic resources and traditional knowledge; and

• Helping ensure a fair and equitable distribution of the benefits obtained from the utilisation of genetic resources and/or application of traditional knowledge.

By enhancing legal certainty and promoting benefit-sharing, the Nagoya Protocol:

• Encourages the advancement of research on genetic resources, which could result in new

discoveries and benefits for all; • Creates incentives for the conservation and sustainable use of biodiversity; and, • Protects the interests and fosters the development of indigenous people and local communities

(IPLCs) in developing countries and around the world.

Figure 1.1 Introducing the Nagoya Protocol

2 CBD. Parties to the Nagoya Protocol. Retrieved from: https://www.cbd.int/abs/nagoya-protocol/signatories/


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1.2 Implementing the Nagoya Protocol

The successful and effective implementation of the Nagoya Protocol at the domestic level requires parties to:3

a) Develop a comprehensive institutional framework to implement ABS measures, manage and administer ABS systems, build capacity and raise awareness on ABS issues, and monitor compliance;

b) Establish a legal, regulatory, and policy framework to define access obligations, benefit-sharing requirements, and compliance measures, as well as the rights and responsibilities of all stakeholders involved; and,

c) Create clear, transparent, and non-arbitrary rules and procedures for Mutually Agreed Terms (MAT) and Prior Informed Consent (PIC).

Figure 1.2 Nagoya Protocol Implementation Framework

3 Secretariat of the CBD. "The Nagoya Protocol on Access and Benefit-sharing." ABS Factsheet Series. Retrieved from: https://www.cbd.int/abs/infokit/revised/print/factsheet-nagoya-en.pdf

UN Convention on Biological

Diversity(CBD), 1992

Objective 1: Conservation of

Biological Diversity

Cartagena Protocol, 2000Bio-safety treaty governing

the movements of living modified organisms (LMOs)

resulting from modern biotechnology from one

country to another.

Objective 2: Sustainable use of

Biodiversity

Objective 3: Fair & Equitable sharing of the benefits arising out of the utilization of

Genetic Resources

Nagoya Protocol, 2014Agreement which aims at sharing the benefits

arising from the utilization of genetic resources in a fair and equitable way


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Following the entry into force of the Nagoya Protocol in October 2014, many countries are actively engaged in making the Protocol operational at the national level. However, the way in which they do so varies significantly based on individual national circumstances, administrative structures, and priorities. As a result, not all countries implement ABS measures to the same extent, or in the same way.

Figure 1.3summarizes the key steps that Caribbean, and other governments, may follow in order to implement ABS frameworks at the domestic level in a manner consistent with the Nagoya Protocol.4

Figure 1.3 Basic Steps for Governments Implementing the Nagoya Protocol

1. • Establish National Focal Points (NFPs) for the provision

of information on access procedures such as, obtaining

4 D. Robinson (2012) "Toward Access and Benefit-Sharing Best Practice: Pacific Case Studies." DSEWPAC, Canberra and GIZ, Retrieved from: http://www.abs-initiative.info/uploads/media/ABS_Best_Practice_Pacific_Case_Studies_Final_01.pdf

UN CBD

The Nagoya Protocol

National Institutional Leadership & Oversight

Legal, Regulatory & Policy Framework

Country & Community Level Access & Benefits Sharing with MAT

Research & Technology

Transfer with PIC


Different Implementation

Approaches: Developing countries, which are the main providers of genetic resources and associated traditional knowledge, are mainly concerned with implementing measures to govern access to those resources and knowledge and to promote a fair and equitable sharing of benefits. Industrialized countries, on the other hand, are the predominant users of genetic resources and associated traditional knowledge. They have focused on adopting measures to ensure compliance with ABS requirements of provider countries. Belgium, Denmark, Germany, and Norway, for example, have amended their patent laws to ensure that patent applications for products based on genetic resources disclose the origin of the genetic resources utilized.


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PIC for the utilisation of genetic resources and associated traditional knowledge.

• Establish Competent National Authorities (CNAs) responsible for granting access.

2. • Take legislative, policy and/or administrative measures, with the aim of ensuring that benefits arising from the utilisation of genetic resources (as well as subsequent applications and commercialisation) and associated traditional knowledge (where relevant), are shared in a fair and equitable way with the Party providing such resources, and with IPLCs, where relevant.

3. • Develop a research permit system to comply with the access provisions of the Nagoya Protocol.

4. • Establish a mechanism for forwarding approved permits to the Access and Benefit-Sharing Clearing House of the Nagoya Protocol.

5. • Determine the conditions and eligibility for obtaining a permit. Article 6 of the Nagoya Protocol makes mention of ‘fair and non-arbitrary rules and procedures on accessing genetic resources.'

6. • Provide clear guidance on how to apply for PIC of local providers of genetic resources and associated traditional knowledge (where relevant).

7. • Create criterion for establishing MATs, including possible clear provisions on dispute settlement, third party uses, changes of intent (e.g. changing from an academic study to development of a commercial product), and intellectual property rights.

• Enact clear provisions on benefit-sharing for subsequent applications and commercialisation.

8. • Take into consideration IPLCs’ customary laws and community protocols and procedures, with respect to traditional knowledge associated with genetic resources.

• Support the development of community protocols by IPLCs, including minimum requirements for MAT, and model clauses for benefit-sharing.

9. • Establish one or more checkpoints for the monitoring of


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the utilisation of genetic resources (Article 17 of the Nagoya Protocol).

10. • Take appropriate legislative, administrative and/or policy measures to ensure that genetic resources and associated traditional knowledge utilised within its jurisdiction have been accessed legally (in accordance with PIC and MATs), as required by other parties.

• Put in place measures to address situations of non-compliance (see Articles 15 and 16 of the Nagoya Protocol).

Several countries from around the world have made significant progress in the implementation of ABS measures. There are many lessons to be learned from their experiences, as well as best practices that can be adopted and adapted to the Caribbean. ABS processes vary from country to country, often guided by manuals, guidelines, rules, policies, or legislations. The approach and the persons involved also depend on the social, political and economic context and the legal systems in place. Despite these variations, some common guidance and key principles can be identified. If considered, these can lead to more effective and successful ABS frameworks. The following set of nine (9) guiding principles and factors can be used inform and support training on the design of ABS processes: 5/6

1. Promote a holistic and integrative approach: The implementation of an ABS system is a

complex, cross-cutting issue, involving heterogeneous stakeholder groups such as, governmental agencies, policy makers, IPLCs, Non-Governmental Organizations (NGOs) researchers, and other users of biodiversity.

2. Build mutual understanding and trust: A holistic and integrative approach helps build bridges of understanding and collaboration between stakeholders through their involvement in relevant planning and decision-making processes and their sharing of experiences. It provides space for open communication and dialogue between researchers, policy makers, indigenous people and other stakeholders that is needed to build mutual understanding of their respective needs and concerns, and to foster mutual trust.

3. Foster inter-sectoral integration and collaboration: Institutional and administrative arrangements supporting this holistic and integrative framework need to rely on inter-sectoral awareness, integration, and collaboration that satisfies and benefits all governmental sectors (e.g. agriculture, environment, technology, health, trade, finance, etc.).

5 S. Biber-Klemm. et al. (2014). "Access & Benefit-Sharing in Latin-America and the Caribbean: A Science-Policy Dialog for Academic Research."Diverditas, ICSU, IUBS, and Swiss Academy of Sciences. Retrieved from: https://portal.fiocruz.br/sites/portal.fiocruz.br/files/documentos/abs-brochure_eng_0.pdf 6 Jorge Cabrera (2007). "ABS Management Tool: Best Practice Standard and Handbook for Implementing Genetic Resource Access and Benefit-sharing Activities .IISD. Retrieved from: http://www.iisd.org/sites/default/files/publications/abs_mt.pdf


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4. Advance capacity building: Capacity building of all the stakeholders in the ABS process is needed so that all groups acquire a clear understanding of ABS legislation and procedures. Lack of knowledge and capacity prevents stakeholders from distinguishing between the practices and processes that comply with the CBD and Nagoya Protocol, and those that do not, and from participating in meaningful ways.

5. Secure economic resources: In order to establish a sound ABS framework and to comply with the requirements of the Nagoya Protocol, necessary economic means need to be allocated to respective activities. Funds should be considered as an investment for the generation of future benefits resulting from the use of genetic resources and traditional knowledge.

6. Develop sound, flexible, and simple legislation: A successful ABS framework requires the implementation of straightforward, impartial, and flexible procedures and rules that avoid unnecessary bureaucracy and conflict amongst the parties involved.

7. Promote efficient administration and procedures: ABS frameworks should enable access to genetic resources and facilitate work on biodiversity by clarifying procedures and criteria for issuing permits and contracts that functional at national, regional and international levels and for meeting the needs of different types of research.

8. Simplify formalities: ABS frameworks should include a mechanism for the formal recognition and approval of requests for access and use, either through a permitting system or customary process.

9. Undertake rigorous monitoring: Monitoring and control measures (e.g. the enforcement of the obligation to disclose the origin of a resource) provide a counterbalance to simplified access for non-commercial research and build trust that, in case of commercialisation, benefits are shared. They rely on establishing effective checkpoints monitored by patent offices, universities, sanitary authorities, etc.

2.0 Country Profiles in Relation to ABS & the Nagoya Protocol

In the Caribbean Region, the implementation of ABS is still in its infancy. Few countries in the Region have ratified the Nagoya Protocol and taken actions to operationalize it. The


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following section outlines the current status of ABS in nine Caribbean countries.

2.1 Antigua & Barbuda Party to the Protocol:12th March 2017 Ratified:12th December 2016 Signed:28th July 2011

Antigua and Barbuda was the first Caribbean island country to sign the Nagoya Protocol. The related Environmental Protection Management Act, 2015, Part VIII, legislates on matters related to Access to Genetic Resources and the Sharing of Benefits. The Act:

a) Establishes that the Government, together with the civil society, exercises sovereign rights over the country’s biological resources

b) Recognises that it is the duty of the state and its citizens to regulate access to biological resources, as well as use of community knowledge and technologies


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c) Defines access to biological resources and their related use, as well as guiding principles for both users and providers, with stated minimum requirements for collectors’ agreements.

d) Recognises the need to promote and support traditional and indigenous technologies that are important in the conservation and sustainable use of biological resources and to complement them by modern technologies

e) Provides guidance for the implementation of an ABS framework including, the identification of core principles, the establishment of responsibilities of local authorities, and the conditions that collectors must meet to carry out activities in the territory

f) Concedes a number of rights to local and indigenous communities g) Establishes a process for appealing the denial or revocation of agreements h) Defines the sanctions and penalties for individuals found guilty of violating

the Act

The existing legal framework for ABS is complemented by the following policy and legal documents:

a) 5th National report to the Convention on Biological Diversity (CBD) b) Antigua and Barbuda National Strategic Biodiversity Action Plan2014-2020 c) Government of Antigua and Barbuda Draft ABS Road Map, 2014 d) Plant Protection Act, 2012 e) Fisheries Act, 2006 f) The Forestry Act, Chap 178, 1952

2.2 Grenada Non-Party Signed:22nd September 2011

Grenada has signed the Nagoya Protocol however, there is no ABS specific policy, regulation, or Act in Grenada.

According to the Fifth National Report to the Convention on Biodiversity, Grenada(2014) recognises the need to:

a) Place emphasis on the fair and equitable sharing of benefits arising from the use of genetic resources;

b) Pass legislation to regulate access to these resources; c) Develop capacity building and strengthen institutional frameworks for the

implementation of the Protocol; and, d) Protect local and indigenous communities and their traditional knowledge.7

On a national level, there are currently no definitions developed on ABS when making reference to biological and genetic resources and material or bio-prospecting and bio-piracy. Neither are there guidelines for harvesting, research or collection and commercialisation, amongst other activities. Also of note, access to Plant Genetic Resources (PGR) has reduced significantly after the passage of Hurricane Ivan and Emily (2004 and 2005 respectively).

7 Government of Grenada. Fifth National Report to the Convention on Biodiversity, 2014. pp. 43-44. Retrieved from: https://www.cbd.int/doc/world/gd/gd-nr-05-en.pdf


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a) Grenada National Strategic Biodiversity Action Plan 2016-2020 b) National Environmental Summary Grenada, 2010 c) Physical Planning and Development Control Act, 2002 d) Fisheries (Marine Protected Areas) Regulations 2001 e) National Parks and Protected Areas Act, 1991 f) National Heritage Protection Act, 1990 g) Birds and Other Wildlife Act, 1990 h) Fisheries Act, 1986 i) Wild Animals and Birds Sanctuary Act, 1963 j) Forest, Soil and Water Conservation Act, 1947

2.3 Guyana

Party to the Protocol: 12thOctober 2014 (accession)

Ratified: 22ndApril 2014

The National Policy on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation was finalized and endorsed by the Government of Guyana in 2007. The general objective of the Policy is to contribute to the conservation and sustainable use of biological resources in order to:

a) Reduce poverty; b) Be supportive to sustainable livelihood and health; c) Promote cultural integrity; and, d) Support and protect knowledge, innovations and practices of Amerindian

(i.e. Indigenous) and local communities

The Policy:

a) Covers all genetic resources, with the exception of human genetic resources, that are within the territorial limits of Guyana, including its territorial sea

b) Defines the mandates and responsibilities of the national agencies directly involved in the implementation of the policy

c) Follows draft ABS Regulations that address prior informed consent, sharing of benefits and genetic resources, among other aspects; the draft regulations are currently being revised to incorporate the requirements of the Nagoya Protocol.8

d) Informs regulations on the access and benefit sharing process, including:

i. the obligation of users to seek free and prior informed consent of providers and /or owners;

8 Government of Guyana. Guyana's Fifth National Report to the Convention on Biological Diversity, 2015. pp. 48. Retrieved from: https://www.cbd.int/doc/world/gy/gy-nr-05-en.pdf


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ii. the identification of basic requirements for mutually agreed terms (MAT);

iii. definitions of the main roles and responsibilities of users and providers/owners;

iv. the importance of the involvement of stakeholders; and, v. the institutional arrangements for monitoring compliance.9

Guyana ABS Process:

All persons (Guyanese or non-nationals) interested in conducting biodiversity research in Guyana must apply for a Biodiversity Research Permit from the Environmental Protection Agency (EPA) as follows:10

a) Applicants send their research applications on access to genetic resources to the EPA via the National Biodiversity Research Information System. Research applications delivered to other Competent Authorities, communities or other stakeholders are forwarded to the EPA.

b) After the processing fee (US$75) is paid, the EPA consults with relevant stakeholders to correctly process the application.

c) EPA, through its Secretariat of the ABS Sub-Committee, forwards the application to the ABS Sub-Committee to review the research proposal and for guidance on benefit-sharing.

d) Negotiations are conducted by the Secretariat with the applicant. e) EPA reports to the ABS Sub-Committee for deliberations on the proposed

benefit-sharing regime, and any relevant issues. f) EPA gives effect to the Sub-Committee’s findings. g) Final contract is negotiated by the EPA, through its Secretariat, with the

applicant. When more stakeholders are involved, the Secretariat and applicant include the relevant Indigenous People or Local Community (IPLC).

h) Stakeholders can choose to be advised by the ABS Sub-Committee but may also seek external advice in the negotiations.

i) Stakeholders are also free to directly negotiate research proposals with applicants however, final approval must be obtained from the EPA under all circumstances.

j) If the application is approved, the EPA issues a research permit.

In 2006, the Government of Guyana recognised the right of the country's indigenous people to their free prior informed consent (PIC) thorough the Amerindian Act. As a result, researchers cannot enter indigenous territories, or access their genetic resources and/or associated traditional knowledge, without the permission of the

9 Ibid. 10 Government of Guyana. Application Process for Biodiversity Research in Guyana. Retrieved from: https://www.epaguyana.org/index.php/downloads/environmental-education-publications/brochures/download/13-brochures/139-biodiversity-application-process


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relevant indigenous community. The existing legal framework for ABS is complemented by the following policy and legal documents:

a) Fifth National Report to the CBD b) National Development Strategy, 2014 c) Biosafety/Biotechnology Safety Bill (Draft), 2014 d) National Biodiversity Strategy and Action Plan 2012-2020 e) Protected Areas Act, 2011 f) Low Carbon Development Strategy, 2009 g) Iwokrama International Centre for Rainforest Conservation and Development

Act, 2006. h) National Environmental Action Plan, 2001-2005 i) Species Protection Regulations, 1999 j) National Forest Policy, 1997 k) National Strategy for the Conservation and Sustainable User of Guyana's

Biodiversity, 1997 l) Environmental Protection Act, 1996 m) Patents and Design Act, 1973

2.4 Barbados Non-Party

Barbados is not a party to the Nagoya Protocol. There is no ABS specific policy, regulation or Act in Barbados. The Government of Barbados has committed, as established under the National Biodiversity Strategy and Action Plan (NBSAP), to promote and implement the necessary actions to facilitate equitable biodiversity access and benefit sharing (Objective 10).11

Actions mapped as part of the strategy to ensure equitable biodiversity access and benefit sharing in the country include:

a) Designate authorities responsible for biodiversity and traditional knowledge access.

b) Identify entities that are involved in granting access to biodiversity and TK and create a database for this information.

c) Debate considerations for biodiversity access, such as expectations of all parties, impacts on stakeholders, resources required, legal framework required, negotiation, training, certificates of origin, protocols for field collection and laboratory work, patents, method of PIC from local/indigenous communities involved, economic benefits, and duration and termination of access.

d) Debate considerations for traditional knowledge access, such as definitions of traditional knowledge, regional harmonization, on-going international efforts, list of informal innovations to be protected, negotiation training, and certificates of origin.

11 Government of Barbados. Barbados National Biodiversity and Action Plan, 2002. pp. 103. Retrieved from: https://www.cbd.int/doc/world/bb/bb-nbsap-01-en.pdf


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e) Create an inventory of local/traditional innovations and technologies. f) Create conditions to facilitate access to genetic resources for

environmentally sound uses only. g) Review by the Government of Barbados whether it is a sufficient beneficiary

in bilateral agreements made between local Non-Governmental institutions, companies inter alia, and overseas companies that involve the sale of biodiversity.

h) Create conditions and policies to facilitate equitable benefit sharing for access.

i) Establish equitable and environmentally friendly, bilateral agreements between local institutions and international pharmaceutical companies.


a) Fifth National Report to the CBD b) Protection of New Plant Varieties Act, 2000 c) Fisheries Management Regulations, 1998 d) Coastal Zone Management Act, 1998 e) The Fisheries Act Cap 391, 1993 f) National Conservation Commission Act, 1982.

2.6 Jamaica Non-Party

Jamaica is not a party to the Nagoya Protocol. There is no ABS specific policy, regulation or Act in Jamaica.

Despite these facts, some strides have been made to ratify the Nagoya Protocol through the development of a roadmap to determine the necessary legislative framework by a technical inter-agency working group which includes the:

a) Jamaica Intellectual Property Office (JIPO) b) National Environment and Planning Agency (NEPA) c) Environment Resource Management Division d) Attorney Generals Department.

By 2020: Jamaica hopes to have the Nagoya Protocol in force and operational, consistent with national legislation, by reviewing ABS agreements to examine ecological, social and economic impacts of different products (e.g. marijuana, marine products, etc.) and the national access and benefit sharing plan. They also plan to organize annual workshops for capacity development and to provide information on the extent to which the legal framework for governing access to and sharing the benefits of Jamaica’s genetic resources has been developed.

By 2021: The Jamaican government seeks to ensure that traditional knowledge, innovations and practices of local communities for the conservation and sustainable use of biodiversity, and their customary use of biological resources, are respected and protected by developing legislation and regulations that protect/govern


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traditional knowledge and cultural practices linked to biodiversity.12

The existing legal framework for ABS is represented by the following policy and legal documents:

a) Fifth National Report to the CBD b) National Strategy and Action Plan on Biological Diversity in Jamaica 2016-

2021. c) Draft National Biosafety Policy, 2007 d) The Executive Agencies Act, 2005 e) Endangered Species (Protection, Conservation and Regulation of

Trade) Regulations, 2000 f) Wildlife Protection Act, 1999 g) Policy for National System of Protected Areas, 1997 h) Forest Act, 1996 i) Natural Resources Conservation Authority Act, 1991 j) Fishing Industry Act, 1975

2.7 St. Kitts & Nevis Non-Party

St. Kitts & Nevis is not a party to the Nagoya Protocol. There is no ABS specific policy, regulation or Act in St, Kitts & Nevis however, there are general provisions for biodiversity and environment in a variety of documents.


a) Fifth National Report to the CBD b) St Kitts & Nevis National Biodiversity Strategy and Action Plan, 2014-2020 c) National Environmental Action Plan, 2010 d) National Environmental Summary, 2010 e) National Physical Development Plan, 2006 f) National Environmental Management Strategy and Action Plan, 2005-2009 g) Development Control and Planning Act, 2000 h) Fisheries Act, 1993 i) Country Environmental Profile, 1991 j) National Conservation and Environment Protection Act, 1987

The Government of St. Kitts and Nevis is currently examining and preparing legislation to ratify the Nagoya Protocol and introduce an ABS framework at the national level. The resulting draft ABS legislation, according to the National Biodiversity Strategy & Action Plan 2014-2020, will be incorporated into the National Conservation and Environmental Management Bill.13

2.8 Saint Lucia Non-Party

St. Lucia is not a party to the Nagoya Protocol. There is no ABS specific policy, regulation or Act in St. Lucia. The Draft Biodiversity Conservation and

12 Government of Jamaica. National Strategy and Action Plan on Biological Diversity in Jamaica 2016-2021. pp. 94-96. Retrieved from: https://www.cbd.int/doc/world/jm/jm-nbsap-v2-en.pdf

13 Government of St. Kitts and Nevis. National Biodiversity Strategy & Action Plan 2014-2020. pp. 54. Retrieved from: https://www.cbd.int/doc/world/kn/kn-nbsap-v2-en.pdf


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Sustainable Use Bill (2016) however, gives effect in domestic law to the Convention on Biological Diversity, as well as provides for the conservation and sustainable use of biological resources generally and for access and benefit sharing resulting from utilisation of genetic resources and related matters.14


a) Fifth National Report to the CBD b) Saint Lucia Forest Policy (Draft), 2008 c) Saint Lucia Forest Act (Draft), 2008 d) Physical Planning and Development Act (29), 2001 e) Saint Lucia Fisheries Act, 2001 f) National Biodiversity Strategy and Action Plan, 2000 g) Forest, Soil, and Water Conservation Act, 1946

The Government of Saint Lucia, as indicated in the Fifth National Biodiversity Report to the CBD,15 is currently in the process of putting measures in place for the ratification and implementation of the Nagoya Protocol on ABS. As part of this process, the government is planning to:

a) Conduct a comprehensive review and enhancement of the existing policy, legislative, institutional, and fiscal framework with regard to biodiversity management; and

b) Develop relevant tools and guidelines for the application of science, technology, and innovation in planning and development for biodiversity management, public awareness and sensitisation, and capacity building and training.

2.9 Trinidad & Tobago Non-Party

Trinidad & Tobago is not a party to the Nagoya Protocol. There is no ABS specific policy, regulation or Act in Trinidad & Tobago. Currently, there is no legal framework for PIC or Mat and no legal framework for genetic resources and associated traditional knowledge.

Trinidad & Tobago has general provisions for biodiversity and the environment in a variety of documents. The existing legal framework for ABS is represented by the following policy and legal documents:

a) Fifth National Report to the CBD b) National Wildlife Policy (Draft), 2013 c) National Forest Policy, 2011 d) National Protected Areas Policy, 2011 e) National Environmental Policy, 2006 f) National Policy and Programmes on Wetland Conservation for Trinidad and

Tobago, 2002

14 Government of Saint Lucia. Biodiversity Conservation and Sustainable Use Bill - Final Draft, 2016. Retrieved from: http://www.oecs.org/public-resources-centre/oecs-library/div-sdu/biodiversity-conservation 15 Government of St Lucia. Fifth National Biodiversity Report for St Lucia 2014. Retrieved from: https://www.cbd.int/doc/world/lc/lc-nr-05-en.pdf


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g) National Biodiversity Strategy and Action Plan, 2001 h) Environmental Management Act, 2000 i) Conservation of Wildlife Act, 1958 j) Fisheries Act, 1916 k) Forests Act, 1915

The Government of Trinidad & Tobago is currently assessing whether the country should ratify the Nagoya Protocol and implement an ABS framework.16 The country's Biodiversity Strategy and Action Plan does not make any reference to a timeline or activities that the government is undertaking in order to implement and comply with the Nagoya Protocol.

Trinidad & Tobago has considerable potential with respect to the utilisation of genetic resources, particularly as a source of genetic materials which would contribute to the stock of biological resources required for research and development by external parties.17

16 Government of Trinidad and Tobago. "Trinidad and Tobago to explore benefits of advancing the Nagoya Protocol." Trinidad and Tobago Gazette, February 21, 2017. Retrieved from: http://www.news.gov.tt/content/trinidad-and-tobago-explore-benefits-advancing-nagoya-protocol#.Wedz-FtSzIU 17 Convention on Biological Diversity. "Trinidad and Tobago - Country Profile." Retrieved from: https://www.cbd.int/countries/profile/default.shtml?country=tt


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3.0 Training Theories & Practice

3.1 Learning Theories and Styles

This Manual is directed at developing trainers in the areas of ABS and implementing the Nagoya Protocol. As such this section deals exclusively with how to teach the 10 modules contained herein. In addressing how to teach, it is noted that the traditional method of lecture, listen and learn as a sole means of teaching is quickly becoming a thing of the past. Armed with a new understanding of how different people learn in different ways, instructors today are using a variety of methods to convey their lessons. To be effective in teaching about a complex subject like ABS it will be important to: understand different learning theories and applying different learning styles to uniquely targeted audiences at the community, national and regional levels in the Caribbean.

3.1.1 Learning Theories

Although there are many different approaches to learning, there are three basic learning theories: Behaviorism, Cognitive Constructivism and Social Constructivism. A Learning Theory describes “how knowledge is absorbed, processed and retained while learning.” 18 Examining these theories will help instructors to better understand how learning occurs in order to create better lessons, connect more effectively with a greater number of people and increase the chances of information retention and application after training is complete.

Table 3.1.1: Overview of Learning Theories19,20

Behaviorism Cognitive Constructivism Social Constructivism

Definition New behaviours or changes in behaviour are acquired through association between stimuli and responses.

Information processing leads to understanding and retention.

Learning and development is socially influenced.

View of Knowledge

Knowledge exists independently and outside of people or their previous experience.

Knowledge is created by humans processing the information they receive in relation to their own previous knowledge and experience.

Knowledge is constructed within social contexts and through interactions with a knowledge community.

View of Learning

Learners are a blank slate. Learning occurs through

Learners play an active role in seeking ways to understand and

Learning requires integration of students

18Wikipedia, Learning Theory (Education). Retrieved from: https://en.wikipedia.org/wiki/Learning_theory_(education).January 29, 2018. 19Graduate Student Instructor: Teaching & Resource Center - Berkley, Overview of Learning Theories. Retrieved from: http://gsi.berkeley.edu/gsi-guide-contents/learning-theory-research/learning-overview/. January 29, 2018. 20The Peak Performance Center, Learning Theories. Retrieved from: http://thepeakperformancecenter.com/educational-learning/learning/theories/. January 29, 2018.


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passive absorption of knowledge and is promoted by repetition and positive reinforcement.

process the information that they receive and relate it to what they already know. Changes in behaviour are an indicator of what is going on in the learner’s mind.

into a knowledge community that is collaborative.

View of Motivation

Extrinsic – Learners are motivated by consequences.

Intrinsic - Learners set their own goals and motivate themselves to learn.

Extrinsic and Intrinsic –Learning goals and motives are determined both by learners and extrinsic rewards provided by the knowledge community.

Implications for Teaching

Instructors should repeat behavioral patterns so that they become automatic and consequences that reinforce the desired behaviour should be arranged to follow the desired behaviour.

Instructors should facilitate learning by providing an environment that promotes discovery and assimilation/ accommodation.

Instructors should facilitate and guide collaborative learning through group work.

Practical Application

Good for recall of basic facts, automatic responses or performing rote tasks. Teaching approaches: • Drill/rote work • Repetitive practice • Bonus points • Participation points • Verbal reinforcement

Good for linking concepts with real world examples and experience. Teaching approaches: • Classifying information • Linking concepts (new

content with something already understood)

• Structured teaching/ organization of lectures in meaningful ways

• Real world examples • Discussions • Problem solving • Analogies

Good for reinforcing and elaborating on course material through peer engagement and encouragement. Teaching approaches: • Case studies • Group research

projects • Group

brainstorming • Collaborative

learning/ group work

• Simulations

Drawbacks to teaching approaches

Does not prepare the learner for problem solving or creative thinking. They simply do what they are told and do not take initiative to change or improve things.

Difficult to carry out effectively if students have no previous experience with the subject matter.

Can impact negatively on the learner if the group influence is misinformed or negative. Additionally, if there are personality


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conflicts within a group this can slow down learning.

Applications for Teaching ABS

There are very few areas in which this theory would be beneficial to teaching ABS. It could be applied in the recall of definition of terms or the steps to writing Mutually Agreed Terms or, in class exercises where proper answers are rewarded. However, the goal of ABS training is to be able to apply the concepts for ABS implementation purposes, not just remember what they are.

Since the ABS training will be presented to adult learners, there will be levels of experience that can be drawn from and linked to that will help with comprehension of the course material. Many cognitive teaching approaches should be used in the delivery of ABS training.

Much of the work needed to support ABS implementation will require working with different groups of people from different knowledge areas. ABS facilitators will need to be able to learn from these people to move forward efficiently. Fostering an attitude of collaboration during ABS training will provide a solid foundation for moving forward in the real world of ABS implementation.

3.1.2 Learning Styles

All of the Learning Theories examined have validity and can be applied in varied learning situations for different desired outcomes. And, just as there are many different ways that people learn, there are also various styles of learning that work well for different people. “Technically, an individual’s learning style refers to the preferential way in which the student absorbs, processes, comprehends and retains information.” 21 Individual learning styles can be influenced by cognitive, emotional and environmental factors, as well as previous experience. In his ‘VARK Model of Student Learning’, Neil Fleming identifies four different learning styles. He uses the acronym VARK to refer to them. VARK stands for Visual, Aural (or Auditory), Read/Write and Kinesthetic. These different sensory modalities are all used for learning however, most people tend to rely more heavily on one modality than another. This defines their learning style. Students’ preferred learning styles have a significant influence on their behaviour, learning comprehension and motivation. As such, much study has gone into defining and understanding different learning styles in order to develop more effective educational experiences. It is important for

21Teach, Learning Styles: All Students are Created Equally (and Differently). Retrieved from: https://teach.com/what/teachers-know/learning-styles/. January 29, 2018.


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both the teacher and student to understand the students learning style. This understanding will not only assist the teacher in designing effective lessons, it will also help the student identity and apply learning strategies that will work best for them.

Table 3.1.2: Overview of Learning Styles22,23

Medium Definition Most effective learning strategies

Most effective teaching strategies

Visual Visual learners prefer the use of images and graphics to access and understand new information.

• Highlight the most important points in corresponding colours

• Replace important words with symbols or initials

• Redraw pages from memory

• Use charts, graphs, diagrams and photos in teaching materials

• Support lecture with a visual presentation highlighting key points

• Show instructive videos • Colour code notes

Aural/ Auditory

Auditory learners prefer to learn new content through listening and speaking. They use repetition as a study technique and benefit from the use of mnemonic devices.

• Record notes and listen to them on tape

• Have a discussion with classmates about the topic to expand understanding

• Explain key concepts out loud to peers or fellow aural learners

• Carry out lectures • Show instructive videos • Vocalize instructions • Use detailed descriptions • Use word association • Encourage discussion

and debate

Read/ Write Read/ Write learners learn best through words and are able to translate abstract concepts in words and essays.

• Write and rewrite class notes

• Reword main ideas and principles to gain a deeper understanding

• Organize diagrams, charts and graphic organizers into statements

• Lecture in such a way to support note-taking

• Provide written instructions

• Assign readings • Write out definitions and

processes for students to see in lecture presentation

Kinesthetic

Kinesthetic learners understand information best through tactile representation. They learn best by doing. For example, understanding

• Redo class exercises using various different starting points

• Have a quiet ‘fidget’ activity to do while listening

• Move around a lot • Take frequent breaks • Don’t lecture for long • Use real life examples • Provide case studies to

help explain abstract 22Teach, Learning Styles: All Students are Created Equally (and Differently). Retrieved from: https://teach.com/what/teachers-know/learning-styles/. January 29, 2018. 23VARK: A Guide to Learning Styles, The VARK Modalities. Retrieved from: http://vark-learn.com/introduction-to-vark/the-vark-modalities/. January 29, 2018.


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Medium Definition Most effective learning strategies

Most effective teaching strategies

how a clock works by putting one together.

concepts • Arrange for class

exercises where instructor can move around and put key concepts into practice

Identifying students as visual, aural/auditory, read/write or kinesthetic learners, and including curriculum and exercises “to address each of these learning styles, will prove to be beneficial for the entire classroom. Allowing students to access information in terms they are comfortable with will increase their academic confidence.” 24

Figure 3.1.2-1: Identifying Students Learning Styles25

24Teach, Learning Styles: All Students are Created Equally (and Differently). Retrieved from: https://teach.com/what/teachers-know/learning-styles/. January 29, 2018. 25Web Source: Healthy Family, Home School Fun. Accessed 2nd Feb., 2018. http://www.healthyfamilyhomeschoolfun.com/personality-and-learning-styles-how-to-individualize-your-homeschool/


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3.2 Carrying out ABS Training for Adult Learners

As mentioned in the previous module, different people learn better in different ways. Couple that with the challenge of teaching adults, who have strongly informed opinions, busy lives and haven’t been in the classroom for some time, and teaching a complex subject such as ABS, and the demand to present information in an engaging and effective way can become overwhelming for instructors. To be effective in teaching adults about ABS it will be important to: know the audience; understand their learning needs; create specific learning objectives for the audience; and, understand how adults learn.

3.2.1 Know the Audience and Understand Their Learning Needs

It is an instructor’s responsibility to find out the answers to several questions that will help to know the audience and better shape a teaching plan:

1. Who are the students? Before beginning to design a lesson plan the instructor should try and get as much information as possible about the participants. It would be helpful to know their place of employment, department, job titles and even names.

2. What is their background? It will be vital for the instructor to understand if they are going to be teaching individuals who have extensive experience in ABS, or no experience at all; if they are familiar with the Nagoya Protocol or have never even heard of it. The instructor will need to know if the students come from a legal, environmental, development or economic background, etc., and what types of previous experience and understanding they will bring to the training.

3. Will there be varied levels of understanding? In some cases an instructor may be teaching experts, novices and beginners from different backgrounds all in the same class. They will need to alter the teaching plan to accommodate this challenge and to keep all participants engaged.

3.2.2 Understand the Audience’s Learning Needs

Once an instructor understands who the audience is, it will be easier to determine what training they need. The teacher can begin by determining the Knowledge Gap between what the audience already knows and what they need to know. For example, if the audience is primarily made up of policy makers they may know little about genetic resources but a lot about legal reform however, if the audience is primarily made up of environmental scientists they will likely know very little about the policy creation process but a lot about bio-prospecting.


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Once the instructor has a grasp on the Knowledge Gap which the training will need to close, they can move on to determining what Types of Learning will be required to support participants in ABS matters once they return to work. Will they simply require Knowledge about ABS, or will they require Skills to support ABS implementation and processes? Or, is the instructor just trying to provide them with a new perspective on, and Attitude about, ABS in general. 26 Going deeper than understanding the Types of Learning required would mean determining what Level of Thinking Skills will be needed by participants when the training is complete. Will they simply need to understand the basic principles of ABS to help move their governments towards ratification of the Nagoya Protocol or, will they require an in-depth understanding about access to genetic resources in order to create access policies, regulations and supporting systems? Will they need to apply their learning in the review and acceptance of Mutually Agreed Terms built with standard clauses or, will they need to analyze and evaluate Mutually Agreed Terms for their legality and equity? Higher order thinking skills like creating, evaluating, analyzing and applying will require more in-depth teaching and hands-on exercises than lower order thinking skills like understanding or simply remembering. Higher order thinking skills will also be more easily conveyed in smaller classes that allow for questions, discussions, idea sharing and individual feedback on class exercises and presentations.

Figure 3.2.2-1: Levels of Thinking Skills27

Carrying out a ‘Needs Assessment’ of the audience prior to developing the lesson plan is a useful exercise to both know the audience and understand their learning needs. The

26Effective Adult Learning: A Toolkit for Teaching Adults, Northwest Center for Public Health Practice, 2012.Retrieved from: https://www.ag.ndsu.edu/evaluation/documents/effective-adult-learning-a-toolkit-for-teaching-adults, p5.

27Source: Effective Adult Learning: A Toolkit for Teaching Adults, Northwest Center for Public Health Practice, 2012: https://www.ag.ndsu.edu/evaluation/documents/effective-adult-learning-a-toolkit-for-teaching-adults


Target Audience Target audience descriptions should be brief yet explicit. For example, “The primary audience is made up of various government Ministry employees with no previous ABS experience.”


Types of Learning

Knowledge: specific facts, patterns, concepts Skills: practical abilities, measured in speed, precision and quality Attitude: realizing purpose, feelings, values, motivation


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assessment will result in answers to questions, and the identification of gaps, in regard to:

• Participants profiles • Desired outcome of training • Possible constraints • Content and training level needs • Logistical requirements.

After carrying out the assessment it would be helpful to write a short description of the target audience to keep the lesson plan on track.

3.2.3 Create Specific Learning Objectives

Creating specific learning objectives based on the audience needs assessment will also help to develop a lesson plan. Though basic objectives are provided throughout this manual, once the instructor knows the audience and understands their specific learning needs they can create more targeted learning objectives. “While writing learning objectives may seem like a small task, if they are designed poorly it will be more difficult to produce effective training, and almost impossible to measure results.” 28

Poorly defined learning objectives do not indicate observable behaviours that make assessment of their mastery possible, for example: After completing this course, you should be able to operate your phone. Whereas well-defined objectives are built around specific tasks or elements of understanding, for example: After completing this course, you will be able to:

• Place a caller on hold • Activate the speaker phone • Play new message • Transfer a call 29

Poorly Defined ABS Objective Well-defined ABS Objective Participants understand how to facilitate benefit-sharing negotiations.

Participants are able to facilitate benefit-sharing negotiations where all parties are fairly represented and issues are clearly understood by each stakeholder involved in the negotiation

28Effective Adult Learning: A Toolkit for Teaching Adults, Northwest Center for Public Health Practice, 2012: Retrieved from: https://www.ag.ndsu.edu/evaluation/documents/effective-adult-learning-a-toolkit-for-teaching-adults, p13. 29Ibid, p.13.


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process. The benefits of including well-defined and specific learning objectives before fully developing the lesson plan include:

• Emphasis of major points • Reduction of non-essential material • Simplification of note taking for students • Assistance in organizing the material • Guidance for student as to what is expected from them30

3.2.4 Understand How Adults Learn

It is not anticipated that the ABS training will be part of a high school or college course. Most of the participants will likely be adults who have been away from school for some time, have many competing commitments and priorities and, bring personal experience and expertise to the classroom. These factors affect how they perceive the training before it even starts, how they receive and process information provided in the training and, how they respond to class exercises and participation. When teaching adult learners there are several key principles for instructors to keep in mind:

1. Make sure it is useful: Find out what they need to know and then determine the content required. Otherwise, it will be viewed as a waste of time.

2. Acknowledge other demands: Adult learners have other important things going on in life. Keep that in mind when planning and managing training.

3. Use their experience: Many, or even all of the students, will bring valuable experience to the

classroom with them. Allow them to share that experience to enrich the learning environment and encourage participation.

4. Treat them as a peer more than a student: Adult learning is about sharing knowledge

amongst peers and should look very different than a class for children or youth.

5. Allow time for interaction: A lot of additional and valuable learning can be done when adult learners brainstorm together or share their ideas and experiences with each other.

In addition to these principles, a 2014 study polled adult learners and identified four specific teacher traits that they found beneficial to their learning.31

1. Teachers who use relevant, practical knowledge: Adult learners wanted relevant, real-time 30Ibid, p.15. 31Hill, L. H. Graduate Students & apos; Perspectives on Effective Teaching. Adult Learning, 2014: 25(2), 57-65.


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information with teaching that included practical applications, as well as theory, and material that was up to date and evidence based.

2. Teachers who are prepared: Adult learners were appreciative of instructors who were able to structure classroom learning, implement a variety of teaching techniques, and stimulate discussion. They expected instructors to follow the syllabus and had very little patience for instructors that were unprepared for class.

3. Teachers who are approachable and flexible: Adult learners valued instructors who were available, valued and validated their experience and were sympathetic to outside demands placed on them by jobs and family.

4. Teachers who are fun and enthusiastic: Adult learners appreciated an attitude which conveyed passion about the topic and kept them engaged through different teaching techniques and some levity.

3.3 Teaching Methodologies

Just as there are various learning theories to be applied and learning styles to teach to, there are also many teaching methods that can be used to support learning. These methods can generally be divided into six categories: passive, self-directed, active, experiential, collaborative and narrative. Passive: Passive learning is a method of learning in which students receive information from the instructor by listening and internalizing what they hear. Using passive learning in conveying ABS information would include teaching methods such as lectures, visual presentations and videos. Self-directed: Self-directed learning is a strategy in which students take ownership of their own learning. It requires that the learner be independent and make choices to direct their learning. In self-directed learning the instructor becomes a facilitator of the learning experience, and a source to be tapped into, rather than the leader. 32 Examples of using self-directed learning in conveying ABS information might include exercises like:

a) Take and defend a position on whether or not to ratify the Nagoya Protocol b) Conduct further research a specific element of the ABS process which is of interest and present

it to the class c) Critique or suggest improvements to an ABS process that is already in place.

Active Learning: Active learning is an instructional method that engages students in the learning process by requiring them to do meaningful learning activities and to think about what they are doing. Examples of active learning activities for ABS might include:

32Ryerson University Learning and Teaching Office, Engaging Adult Learners. Retrieved from: https://www.ryerson.ca/content/dam/lt/resources/handouts/EngagingAdultLearners.pdf. January 29, 2018, p3.


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a) A mock negotiation session for creating mutually agreed terms b) A pub quiz competition on instructional elements covered c) A group exercise to create a process flow for requesting access to genetic resources.

To further encourage students to think about why they are doing what they are doing instructors might use the following methods: 33

a) Didactic Teaching - Encourages students to ask questions and, if the answer is not known by the instructor, to research and find the answers for themselves.

b) Socratic Teaching - Introduces questions directed at the learners into the teaching method so that they can respond and express the knowledge that they have.

c) Problem Based Learning – Presents students with real life situations or problems and asks them to explore and attempt to provide a resolution to the problem.

d) Tell-Help-Check – Provides opportunities for students to review and confirm their understanding of critical information by answering questions with a partner. One partner first answers the question and then the second partner fills in any missing information or provides correction or clarification.

Experiential Learning: Experiential learning allows learners to make practical use of the information they have learned by applying it in a context similar to the way that it would be used in real life. Examples of experiential learning activities for ABS might include:

a) Creation of a communications plan for encouraging national governments to ratify the Nagoya Protocol

b) Formulation of policy statements to drive a national ABS program c) Identification of stakeholders that would be involved in the benefit-sharing process for a

particular case study

Collaborative Learning: Collaborative learning allows learners to “use their shared connections and experiences to explain and build upon concepts from class in ways that instructors cannot.” 34 Examples of collaborative learning activities for ABS might include:

a) Presentation by a student of their nation’s ABS journey, including lessons learned b) Group brainstorming on the challenges that may be faced when pursuing legal reform to

support ABS c) Class discussion on possible compliance measures for enforcing ABS rules and regulations

Narrative Learning: Narrative learning gives students the opportunity to “form links between lived

33Ibid, p3. 34Ryerson University Learning and Teaching Office, Engaging Adult Learners. Retrieved from: https://www.ryerson.ca/content/dam/lt/resources/handouts/EngagingAdultLearners.pdf. January 29, 2018, p4.


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experience and curricular content.” 35It encourages them to tell their own story about their experience which is relevant to the course content. Examples of narrative learning in ABS might include, for example, a student’s story about their frustration in negotiating fair and equitable benefits for IPLCs or their community’s loss as a result of bio-piracy.

3.4 Course Management

3.4.1 Content Management

1. Content Selection: This manual provides a lot of information on ABSbut it may not be necessary to teach it all for every training session. Also, there may information missing from this manual that needs to be taught. As discussed earlier, it is important for the instructor to carefully select the material to be covered based on the students and their learning needs. A useful way of selecting the necessary material is by completing the process below for each of the learning objectives:

a. Select the learning objective. b. Determine what Type of Learning is required for that objective (knowledge, skill and

attitude). c. Decide what information needs to be shared. d. Choose an instructional method that will best suit the type of learning required and the

material, as well as be effective for the audience. e. Select an exercise that will reinforce the informational learning and help participants

accomplish the learning objective by doing. f. Explain how this learning experience will help the students meet the learning objectives

that have been identified.

2. Plan for Less but Prepare More: Once decisions have been made on the elements noted above, a good rule of thumb is to plan for less but prepare for more. Content that an instructor thinks may take 10 minutes might instead take 20 minutes due to unexpected questions, spontaneous stories or unanticipated conversations. These are things that an instructor wantsto happen in the classroom to get students involved in active learning. However, many an instructor has selected a class exercise that they thought would take a half an hour, only to have the class finish in 10 minutes. Under these circumstances it is good to have other plans to fall back on like discussion questions for the class or a video to support and reinforce the content which is being learned.

Finally, once the material has been selected and the teaching methods and exercises determined, an instructor should ask themselves, “Is this a class that I would want to take?”

35Ibid, p4.


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3.4.2 Practical Preparation

Planned and practical logistical preparation goes hand-in-hand with good content management. To make for a successful training session, instructors should:

1. Prepare materials in advance: Make a list of all materials required for the training and begin gathering them well in advance. Some materials may need to be purchased or even ordered, support materials will need to be printed and technology tested for compatibility. Each module in this manual provides a list of materials required for the suggested exercises.

2. Confirm everything before the start date: If the instructor is not the person taking care of the logistics for the training course they need to make sure to confirm a few things in advance:

• Location, size and layout of the room, as well as seating arrangements so that they can

create a plan for how lectures and exercises will be carried out • Name of person who made the reservations and a number at which they can be

reached if there are any problems • Time the building opens so that they can set up in advance • Preparation requirements for printed materials; do they need to do that, or will that be

taken care of by someone else? • Availability of a screen and a projector for

presentation • Availability of an IT person; do they have to set

everything up? • Wifi accessibility to play videos and help people

prep for exercises; is the wifi reliable? • Wifi password • Access to whiteboards

3. Create a schedule: Participants like to know the plan for

the day; what they are going to learn and when; the time and length of breaks; and, what time the session will close each day.

4. Know the material: Review, review, review! Review the material thoroughly before the course begins and review each of the upcoming sessions during breaks. Even then, if the instructor doesn’t know an answer to a question, they should admit it and then try to find the answer and present it to the students at the opening of the next session.

5. Arrive early: It is best to arrive at the training venue early so that technology can be set up, checked and re-checked before students arrive. This way any surprises


Suggested Workshop Materials

• A participant list and

attendance sheets • A bag for each

participant with a nametag, pen, writing pad and printed materials, to be presented at registration

• Laptop, overhead

projector, extension cords and any other required technology

• Wall clock • Flipcharts, markers, tape • Copies of required

readings, exercises or other materials


31

or hiccups can be dealt with right away. Also, some students are sure to arrive early as well. They should not be ignored. The instructor should introduce themselves and find out a bit about the students; start building good relationships from the beginning.

3.4.3 Classroom Management

The final ingredient for a smoothly run training session is good classroom management. Even though the instructor will be teaching adults, setting rules and expectations in advance, and meeting their physical and personal needs, will go a long way in keeping everyone happy. To foster good classroom management instructors should:

1. Establish ground rules: Every classroom is different. What is ok with some instructors is not ok with others, like cell phone use during class. The instructor can provide the list of rules or, let the class take ownership by setting their own rules.

2. Check in from time to time: Observe the people being taught. The expressions on their face and willingness to interact will indict their level of interest. If the instructor is not totally sure, they should ask; ask what they have learned that is new and useful; ask if the pace of the teaching is ok. Even check in to see what content they may like to review or elaborate on.

3. Break at Least every 90 minutes: “Take a break every 60 minutes if the audience is seated theatre style; every 75 minutes for classroom style; and never go more than 90 minutes without a break. Adults’ attention spans wane as their bodies (and bladders) tire.” 36

4. Start back from Breaks on Time: If the instructor starts five minutes after they told the audience to return from break they will inadvertently train them to return five minutes late.

5. Stop on Time: Adult learners usually have some other commitments to tend to outside of the course. The instructor should be sure to stop on time, no matter how late they started, to show respect for students.

6. Not Rush Out: Even though students may have to rush away, the instructor should not. When the session is finished the instructor should stay around as much as possible to chat with participants. They may have questions that they were not comfortable asking in the larger group or they may want to share a personal story. Instructors should always make sure to let them know that they are available.

7. Manage Problem Participants: Even though the instructor is teaching adult learners they may still find themselves with “problem participants.” Sometimes students will have been forced to take a course to meet the requirements of their job but, they have so much work back at the office they resent attending. Others may not see the relevant connection between the course

36Training: The Source for Professional Development. Stack, Laura. Top 10 Time Tips for Trainers. Retrieved from: https://trainingmag.com/trgmag-article/top-10-time-tips-trainers . Accessed: February 1, 2018.


32

and their job. The instructor should do their best to make the course interesting, pertinent and even fun to ensure that these participants feel the use of their time was worthwhile.

In addition to those who must attend mandatorily, instructors may find themselves dealing with others who are just flat out irritating: the ‘over participator’ who won’t give anyone else a chance to say anything; the ‘text master’ whose face they never see; ‘the great debater’ who wants to argue against everything they say.37 In these cases the instructor needs to take action; change to a new topic, move people around after break or, quickly end an activity and move to a new one. They should not call people out in front of their peers and colleagues. This can be destructive. Finally, if initial solutions don’t solve the problem, the instructor should take the person aside privately and speak with them.

8. Obtain Feedback: No course will ever be perfect and course preparation and presentation can improve with each new opportunity. If feedback is obtained after a course through a paper or online survey the instructor will be able to determine what worked well and what didn’t. They should not be to be too discouraged if not everyone loved the course. Instead they should use any criticisms constructively in order to improve for next time.

9. Finish Well: Take advantage of opportunities to personally chat with students after the training is complete, providing additional answers or gaining insights directly from students on the course about what was interesting and what was good and bad. And of course, leave everything tidy.

3.4.4 Training Delivery

Once the prep work has been done to create quality material and ensure a smoothly running classroom, the instructor is ready to deliver the training.

1. Opening the session:

a. Icebreakers: It is likely that training workshops will be carried out with a varied audience of participants that do not know each other very well, if at all. As such, it will be important to provide participants with nametags and, to introduce participants and support persons at the start of the training. Introductions can be made fun by using an icebreaker activity. These activities can be used to learn about participants and their expectations. Choose the icebreaker carefully with these goals in mind. The link below will provides several options:

https://www.thebalance.com/best-ice-breakers-for-meetings-and-training-classes-1918430

37Business Training Works,Train-the-Trainer 101. Retrieved from: https://www.businesstrainingworks.com/training-resource/train-the-trainer-tips-and-basics/?ID=1390. Accessed: February 2, 2018.


33

b. Classroom Expectations: Now is also the time to discuss classroom rules and expectations with participants. It is then beneficial to summarise the expectations discussed and display them on a wall to be visible throughout the training.

c. Training Objectives: It is very important for participants to understand the objectives of the training course so that they can readjust, or even share, their own expectations. Some high level objectives are provided in this manual and, as a general rule, the purpose of this ABS training is to move the Caribbean forward in the development of ABS measures and make them ready to ratify the Nagoya Protocol. However, there should be additional and specific objectives set which should be shared with the class from the very beginning.

2. Increasing learner retention: It is important to understand that the most effective courses use a blend of approaches to convey material. The ‘Cone of Learning’ (shown below)38 shows that we tend to remember only about 10 percent of what we read however, our retention of new information increases when we hear and see something together. Even better than that, we remember 90 percent of something that we actually practice. As such, choosing the appropriate blends of methods for delivery is critical to increasing participants’ retention.

Figure 3.4.1: Edgar Dale’s “Cone of Learning”39

38Effective Adult Learning: A Toolkit for Teaching Adults, Northwest Center for Public Health Practice, 2012: Retrieved from: https://www.ag.ndsu.edu/evaluation/documents/effective-adult-learning-a-toolkit-for-teaching-adults, p10. 39Source: Adapted from E. Dale, Audiovisual Methods in Teaching, 1969, NY: Dryden Press.

•After about two weeks we remember:

•10% of what we readReading

•20% of what we hearHearing Words

•30% of what we seeSeeing

•50% of what we see & hearWatching a movie, exhibit

or demonstration on location

Engaged in discussion or giving a talk on the subject

Doing a dramatic presentation, involved in a simulation or doing the

real thing.


Possible Classroom Expectations

• Respect start and end

times • Respect gender and

culture • Respect differing

opinions • One speaker at a time • Phones off! • Participate in class

discussions and team assignments

• Take responsibility for your own learning

Act

ive

Pass

ive


34

3. Identifying learner engagement: Understanding the cues which signal the audiences’ level of interest and engagement in the material being shared will also improve the delivery of training. If an instructor senses that participants are interested in the subject being presented, they should not be afraid to spend a little extra time on it. They should for discussions and provide opportunities for students to share their own experiences. Conversely, if the audience is sending signals that they are bored or disinterested, the material should be covered as efficiently, yet effectively, as possible and then the instructor should move on to the next topic.

3.5 Presentation Skills

As previously discussed, carrying out an effective training workshop will require preparation, an understanding of the audience and an application of effective teaching methods. The final element to lend toward training success will also include a quality visual and verbal presentation.

3.5.1 Visual Presentation

Visual Aids are a vital part of any presentation and, a few simple tips to remember when using these aids will add to their interest and effectiveness. Though low-tech and fairly rudimentary, flipcharts are still an effective tool. There is no need for tech support and no fear of technology failure or incompatibility. Flipcharts can be made even more effective if instructors follow the simple rules noted below: 40

1. Prepare the flipchart ahead of time: Layout the basics on the flipchart pages before the session starts. This way the class can be engaged to fill in the blanks while there is still momentum from the discussion and they won’t have to wait while the instructor writes out headings or creates a brainstorming skeleton. Another handy trick is to write out important points in faint pencil at the bottom of the page. This will jog memory and keep the presentation rolling smoothly.

2. Stand to the side when writing on the flipchart in front of the class: It is never a good practice for an instructor to present their back to the audience or block the information or processes that are being shared.

3. Keep instructor contributions to the chart very simple: Make use of the flipchart as an

interactive tool. Limit the points on the original and solicit the class for further input. Once points from the class have been added, it is a good idea for the instructor to review the information again and make sense of it.

PowerPoint presentations, or the use of other similar kinds of software, are probably the most popular form of visual presentations. They provide an easy to use format for organization and allow for the quick addition or removal of information, as required. However, instructors can make poor use of these kinds

40Ryerson University Learning and Teaching Office, Planning a Presentation. Retrieved from: https://www.ryerson.ca/content/dam/lt/resources/handouts/PresentationSkills.pdf. February 5, 2018, p4.


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of presentations if they are not careful.

Noted below are a few tips that can help instructors make the best of on-screen presentations:41

1. Keep it Streamlined: Students do not have to see everything that will be said up on the screen otherwise they won’t need the instructor. Only the most high-level points should be included. It is the instructor’s job to fill in the blanks.

2. Keep it Simple: Allow for whitespace on slides; limit the use of colours and different fonts to only a few; and, avoid distracting background sounds or slide transitions.

3. Use eye-catching images: Teaching about policy-setting or legal reform in ABS are not

always the most engaging of topics. Insert some memorable graphics or images. It will retain the participants’ attention and give them a visual memory aid.

4. Avoid pre-made templates and clipart: By now students have likely seen hundreds of

PowerPoint presentations. Keep things fresh by using custom made templates and more unique clipart in the design of presentations.

5. Use large font size: The bigger the classroom the larger the font needs to be. Don’t use

anything smaller than 28-point.

6. Leave a border around the text and images: Some projectors will cut off the edges of slides. It is always a good idea to leave a bit of extra room around the edge.

3.5.2 Verbal Presentation

Public speaking is a common fear among many people. To calm nerves before delivering a presentation there a few things a presenter can do: 42

1. Practice: Be familiar with the material; speak it out loud and pre-determine some relevant illustrations.

2. Make notes: Have a print out of the material to be presented and make notes of appropriate illustrations or examples in the margins.

3. Avoid stimulants: Coffee, and the like, will only speed up the heart rate and add to nerves.

To calm nerves during a presentation, below are a few additional suggestions:

41Ibid, p5. 42Ryerson University Learning and Teaching Office, Planning a Presentation. Retrieved from: https://www.ryerson.ca/content/dam/lt/resources/handouts/PresentationSkills.pdf. February 5, 2018, p6.


36

4. Hydrate: Keep water handy at all times.

5. Trust the preparation: Once an instructor is started and moving through the material they are already very familiar with the rest will flow.

Table 3.5.1: Tips for Effective Face-to-Face Communication

Be Aware of and Use Appropriate Body Language

It is very important to be aware of body language when giving a presentation. Body language will cue the audience as to the instructor’s comfort level as a teacher and with the course material. Also, it will either welcome them to join the conversation or shut them down from participating. In short, body language will go a long way in setting the tone for the training workshop.

1. When communicating simple information and facts, a presenter should smile, be engaging and maintain eye contact, otherwise the audience will be lost.

2. When receiving feedback, a presenter should nod or lean in to indicate interest in what is being said.

3. If a presenter disagrees with a statement from a participant, they should not cross their arms, shake their head, sigh or roll their eyes, etc.

4. Even if they are nervous, a presenter should never wring their hands or look away from the audience. They need to be aware of what their particular nervous response is and try not to do it.

5. When a participant is speaking during class, in a presentation or after class, the presenter should never check their phone but rather respect what the participant has to say as they would expect to be respected when presenting.

Speak in an Appropriate Manner

1. Ensure that everyone can hear. If a class is struggling to hear the instructor, they will lose interest and often become frustrated.

2. Speak slowly. If the presenter rushes the message they will be hard to understand, participants will miss information and they will appear nervous.

3. Don’t read the entire presentation. It will indicate to the class that the presenter is not familiar with the material and also becomes very boring.

4. Don’t use unfamiliar jargon or industry terms without explaining them, rather use clear, concise language, with explanations, to ensure that the message is properly understood.

Be Engaging 1. Use humour. This is the fastest way to win over an audience, but it isn’t always easy. A funny personal story is often easiest to tell however, the instructor must make sure it is appropriate!


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2. Use stories. Stories bring content to life, provide flow to a lecture and improve audience retention.

3. Build on prior knowledge. If participants have some prior context for a subject they will feel more personally invested and, the instructor can connect new material to old which will increase retention.

3.6 Further Learning Resources

3.6.1 Reading

1. What Makes for Effective Adult Learning, Wisconsin Union: https://union.wisc.edu/assets/Uploads/Events-Activities/Wheelhouse-Studios/MiniCourses-EffectiveLearning.pdf

2. Delivering an effective presentation, University of Leicester: https://www2.le.ac.uk/offices/ld/resources/presentations/delivering-presentation

3.6.2 Videos

1. How to Train Employees, Vistelar, 2014:https://www.youtube.com/watch?v=nz6SwliUWoE 2. The Six Adult Learning Principles, C. Smith, 2015:

https://www.youtube.com/watch?v=vLJ7cRwKI-I&t=16s 3. Training Activities – 8 Fun Ways to Review Learning, A. Matthews, 2009:

https://www.youtube.com/watch?v=i7wouEhVquM&t=4s

4.0 Access to Genetic Resources 4.1 Course Objectives

a) Define the key concepts related to access to genetic resources under the Protocol; b) Describe the core elements of access procedures required under the Protocol, including access

permits and prior informed consent (PIC); c) Outline other elements and considerations provided by the Protocol that can inform the design of

access rules and procedures; d) Understand the importance of managing access in the Caribbean and the particular challenges in

the Region that will need to be addressed in moving forward

4.2 Key Information

What does ‘Access’ mean?

'Access' in the realm of ABS, is about how individuals, research organizations, private companies and others, known as ‘users’, gain the utilisation of a genetic resource that they do not own. For example, a university research department


38

from the United States, (the ‘user’) seeking permission from a foreign country (the ‘provider’)to collect samples in their rainforest. In this case, the user must gain access to particular genetic resources by getting permission from the provider, which may be the government or a local community, to collect samples from their land. Access activities may include visiting the location where the genetic resources can be found, surveying for and removing the genetic resources from their natural location, performing research on the genetic resources for scientific or commercial purposes, and even deriving new elements from the genetic resource. Access can also include the utilisation of traditional knowledge, including community innovations and practices related to the genetic resource.

What are Genetic Resources (GR)?

“Genetic resources (GRs) refer to genetic material of actual or potential value. Genetic material is any material of plant, animal, microbial or other origin containing functional units of heredity.”43 For example, each variety of cassava has different characteristics such as colour, taste, texture, etc.; some varieties grow better in wetlands while others are more drought resistant. It is these characteristics, which are passed from generation to generation, that are referred to as genetic resources.

What is Bio-prospecting?

“Bio-prospecting can be defined as the systematic search for and development of new sources of chemical compounds, genes, micro-organisms, macro-organisms, and other valuable products from nature. It entails the search for economically valuable genetic and biochemical resources from nature.” 44 Bio-prospecting, from a positive perspective, can benefit local communities and nations as a whole, as well as support the conservation of biodiversity, when it is properly regulated to generate monetary and non-monetary benefits. From a negative perspective, if not properly regulated, bio-prospecting can represent what amounts to theft of biological resources for the benefit of those who do not own them and can lead to environmental degradation.

What is Prior Informed Consent (PIC)?

PIC is based on the principle that providers should be able to make an informed decision on whether or not to grant access to their genetic resources. This requires that the access seeker, or user, provide sufficient information, in advance and in detail, about the planned access activities. This would include information on the genetic resources to which access is sought and the purposes for which the resources would be used in order for the provider to make an informed decision on whether or not to allow access.

43World Intellectual Property Organization. Genetic Resources. Retrieved from: http://www.wipo.int/tk/en/genetic/. January 11, 2018. 44World Health Organization. Essential Medicines and Health Products Information Portal. Retrieved from:http://apps.who.int/medicinedocs/en/d/Jh2996e/6.3.html. January 11, 2018.


39

What are Mutually Agreed Terms (MAT)?

MATs are an agreement reached between the providers of genetic resources and the users on the conditions of access and use of the resources, as well as the benefits to be shared between all parties. This concept will be further discussed in the module on benefit-sharing.

Who are the Key Players in Access and Benefit-sharing (ABS)?

As previously introduced, providers and users are two of the key players in the ABS process. Providers are recognised under the Nagoya Protocol which acknowledges that States have sovereign rights over natural resources in their jurisdiction and that States may in turn choose to entitle others with rights to grant prior informed consent for accessing genetic resources, such as indigenous people and local communities, or private landowners. These entities are the providers. Users are individuals and groups who seek access to genetic resources for a wide range of purposes. They are a diverse group, and can include botanical gardens, industry researchers such as pharmaceutical, agriculture and cosmetic industries, collectors or research institutes. In the administration of the ABS process for providers and users there are two other key entities at a national level. National Focal Points are responsible for making information available on access rules and procedures, relevant authorities, indigenous people and local communities, and other stakeholders. Competent National Authorities are responsible for granting access or issuing written evidence that access requirements have been met and advising on applicable procedures for PIC and MAT.

4.3 Designing Access Measures

Parties to the Nagoya Protocol have great flexibility in choosing how to design their access measures, in recognition of their sovereign rights over natural resources. The Protocol does however, outline some minimum requirements. These include:

1. Deciding whether to regulate access to genetic resources, and if so whether to require PIC as a

condition of access. 2. Parties that decide to regulate access must set out the basic elements of access rules and

procedures, consisting of:


40

• Defining the scope of activities that trigger access requirements • Making clear who has the right to grant PIC • Setting out clear rules and procedures, including the issuing of a written access permit

Once minimum requirements are met, Parties can then further refine their measures as they gain experience in ABS policy setting and regulatory approaches.

Policy Setting: A well-defined policy direction can greatly inform the choice of regulatory approach to set clear rules and procedures on access and set up access and benefit-sharing regimes that contribute to national goals. Setting this policy direction is a key first step for moving forward with ABS in any country. Policy setting in general will be further discussed in a later module however, when defining policies surrounding access there are several important questions with which to begin:

• Who has the right to own, manage and make decisions over genetic resources, and their

collection and use? • What is the property rights regime over genetic resources? Does it differ from that over

biological resources? • What are the contractual law norms, normally set out in

civil or commercial codes to inform provisions on MAT? • What is the existing administrative law governing

permitting systems? • What permitting systems are already in place that could

be adapted for ABS purposes, e.g. permits for collecting specimens in national parks, research permits etc?

Based on the answers to these questions, and others that may be deemed important in a country, a list of key institutions and stakeholders can be defined from whom facilitators can gather an updated understanding of current national interests and capacities relevant to access to genetic resources. This may involve consulting with ministries, IPLCs and other stakeholders to assess their interest in and capacity to participate in the Access process.

Choosing a Regulatory Approach: The next step in building ABS measures on access to genetic resources is to choose the specific regulatory approach that can achieve the defined policy objectives and realistically be implemented in a national context. Parties can get started by understanding what needs to be regulated, and by designing measures that meet the minimum requirements outlined in the Nagoya Protocol, as previously noted.

To regulate or not? To use PIC or not?


Examples of Policy Statements regarding

Access • Create a simple and

flexible access regime aimed at attracting potential users of genetic resources

• Put in place requirements aimed at preventing misappropriation of genetic resources

• Ensure access is granted

only after seeking PIC and establishing MAT

• Promote access that

benefits conservation and sustainable use, and avoids genetic erosion

• Encourage access as a

means to improve understanding of national biodiversity


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Most Parties to the Protocol have chosen to regulate access and require PIC as a condition to access however, a few Parties have chosen not to require PIC. The motivation for this choice is varied and has included a determination that the cost for administering an access system is not worth the benefits expected to be accrued; or the desire is to focus on encouraging research on genetic resources by avoiding administrative barriers to such research.

Parties that do decide to regulate access and require PIC as a condition of access should then design the basic elements of measures on access rules and procedures. A starting point is to decide what types of activities to include and exclude from the scope of the access provisions.

What triggers Access? What is meant by ‘Utilisation’?

Access is triggered by the desire for ‘utilisation’ of genetic resources. Understanding what ‘utilisation’ means will help define what triggers access however, determining what utilisation meanscan be complicated. As the Protocol is still a relatively new instrument, few countries have developed approaches that consider the new innovative definition of “utilisation”. Experiences will have to be gathered in the future to see how countries address the scope of their access procedures in light of their definition of utilisation.

Some experts in ABS have expressed that the Nagoya definition of utilisation does not go far enough in clarifying which specific uses fall under its scope in order to trigger access requirements. Also, it does not address an operational definition of the term ‘derivative’, or deal with the use of genetic resources by a third party.

Countries will need to come up with their own definition of the term ‘utilisation’ and, in their policies, legislation or regulations, address each of these three areas related to utilisation: scope, derivative and third-party.


The Nagoya Protocol and ‘Utilisation’

The Protocol provides some guidance on scope by outlining a definition of the term ‘utilisation’ in Article 2, and clarifying in Article 3, that the Protocol’s scope extends to the “access to genetic resources for their utilisation.” Accordingly, access to genetic resources for purposes other than utilisation would be outside the scope of the Protocol. ‘Utilisation’ is defined by the Protocol as a means to conduct research and/or development on the genetic/or biochemical composition of genetic resources, including through the application of biotechnology.


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In Caribbean, examples of a full definition of the term ‘utilisation’ in relation to ABS and the use of genetic resources, cannot be found. Neither can a definition be found of ‘derivative’ in this same context. However, Guyana has defined specific measures that address the scope of utilisation and the introduction of third-parties into the ABS process.

Many countries with ABS policies in place have included provisions on the scope of measures that outline cases that trigger access requirements. These are often complemented by a provision on exemptions that clearly point to the type of resources, or uses, that fall outside the scope of access requirements. These exemptions have included:

• Exchange carried out by local communities

among themselves and for their own consumption

• Human genetic resources • Genetic resources used for the purposes

of commodity trade or cultivation and plant breeding

Who can grant PIC?

The CBD and the Nagoya Protocol establish that States have sovereign rights over their genetic resources. In the exercise of their sovereignty, States can recognise that different entities can grant PIC for access to genetic resources. This can include indigenous people and local communities, private landowners, ex situ collections, etc. States can also retain rights over genetic resources and decide that PIC for access to genetic resources can only be granted by the State.


The Guyana 2007 National Policy on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from the Utilisation provides some guidelines around changes in use and usage by third-parties. Section 3.6.3 directs that the Government of Guyana take the following measures to direct users of genetic resources: • Use genetic resources only for purposes consistent with the terms and conditions under which they were acquired; • Ensure that uses of genetic resources for purposes other than those for which they were acquired, only take place after renewed free and prior informed consent and mutually agreed terms are given, with an addendum that special conditions may be established under mutually agreed terms to facilitate taxonomic research for non-commercial purposes; • When supplying genetic resources to third parties, honour all terms and conditions regarding the acquired material; • Maintain all relevant data regarding the genetic resources, especially information concerning the use of genetic resources and the benefits arising from such use.


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The concept of state sovereignty differs from domestic legal issues on heritage and property. The latter issues are not addressed by the Protocol, leaving each State free to decide if genetic resources are public or private property and, under what circumstances. As such, the set of actors within each Party with the right to grant PIC over genetic resources will depend on the particular set of rights to own and manage genetic resources as determined by the constitution, legislative heritage and legal cultural traditions of each country.

Determining the applicable legal regime over genetic resources can also be complicated by the fact that few constitutions and legal regimes make specific reference to genetic resources, normally referring to the more general term “natural resources.”

The matter of who can grant PIC is one of the most complex aspects of ‘Access’ in the Caribbean, especially where Indigenous and local communities are concerned and where their community protocols and customary laws may conflict with national and regional requirements.

It is imperative to provide clarity on PIC requirements while taking into account that communities’ customary laws are recognised in the constitutions, legislation or regulations of Caribbean countries. There are currently few laws, regulations or measures across the Caribbean that outline rules around PIC, however two different Caribbean approaches are noted below:

Guyana: The 2006 Amerindian Act of Guyana establishes the requirement for Prior Informed Consent (PIC) by Amerindian communities to enter their territories and undertake research on their genetic resources and traditional knowledge.


Ex Situ Collection: Translated into more common language, this means off-site collection. Biodiversity is conserved in ex-situ collections which are primarily in the form of gene banks where samples are stored in order to conserve the genetic resources of the organism. Rights over natural resources: Some countries contain no specific legislation on genetic resources however, they recognise rights over natural resources in general, including: • Recognition of natural

resources as property of the State

• Recognition of the State right to authorize use of biological resources in general

Rights over genetic resources: Some countries have specific legislation on genetic resources with approaches that include: • Recognition of genetic

resources as a public heritage or property

• Recognition of genetic resources located in public lands as State property

• Recognition of private property rights over genetic resources but with the State preserving power to control their collection and use in specific circumstances, such as when in danger of extinction, public health etc.


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Antigua & Barbuda: In relation to traditional knowledge, innovations and practices associated with genetic resources, the 2015 Environmental Protection and Management Act (EPMA) notes that “no such knowledge, innovations or practices shall be sold, assigned, transferred or dealt with in any manner without the PIC of the local communities concerned”. It also goes on to state that “local communities have the right not to allow the collection of biological resources and access to their traditional technologies, knowledge, innovations and practices, as well as to deny and place restrictions upon such activities when it is provided that such activities threaten the integrity of their natural or cultural patrimony.”

Who owns resources?

Ownership of genetic resources is often not clearly defined in the Caribbean. Going forward, ABS legislation in the Caribbean should clearly identify:

• Who owns what? • Who has the right, or not, to participate in decision-marking processes and

agreements? • Who should be the recipient of potential benefits?

In order to move forward, each country should:

• Catalogue and engage all relevant stakeholders • Create an inventory of genetic resources • Examine existing laws in their country that may grant certain rights to IPLCs in the

Region

There are very few laws, regulations or measures across the Caribbean that outline rules around ownership of genetic resources however two different Caribbean approaches are noted below:

Guyana: The 2006 Amerindian Act of Guyana establishes mechanisms to grant land rights to recognised indigenous or Amerindian communities, including ownership over their genetic resources.

Antigua & Barbuda: The 2015 EPMA of Antigua and Barbuda begins to address the issue of ownership of genetic resources in Section 67 on ‘Sovereign Rights over Biodiversity’. It notes that “the Government of Antigua and Barbuda, together with the civil society, exercises sovereign rights over the biological resources existing in the country”. Section 71 on ‘Community Rights’ goes on to establish local communities’ sole custodianship of “the relevant knowledge, innovations, and practices associated with the genetic resources within their communities”.

What are the procedures to obtain PIC?

The Protocol requires Parties to take legislative, administrative or policy measures to address a number of elements:


45

• Provide for legal certainty, clarity and transparency of domestic ABS legislation or

regulatory requirements • Provide for fair and non-arbitrary rules and procedures to guide decision-making on

access to genetic resources • Provide information on how to apply for PIC • Provide a clear and transparent written decision about PIC, in a cost-effective manner

and within a reasonable period of time • Provide a permit, or its equivalent, to be issued at the time of access as evidence of the

decision to grant PIC • Set out criteria and processes for obtaining PIC, or the approval and involvement of

indigenous people and local communities, for access to genetic resources.

Parties have flexibility in defining their own country-tailored access rules and procedures. A variety of approaches have been taken which are often dependent on the particular administrative and contractual regimes in the country. Many countries have in place existing permitting systems in relation to biological resources, for instance for research in protected areas or for the collection of wildlife. Parties can look to these procedures and requirements, and to the experience gained in their implementation, to determine how they can be adapted for ABS purposes.

As part of the National Policy on ABS (Guyana, 2008) a process was created around access to genetic resources. This process requires that all people, whether Guyanese or non-national, apply for a Biodiversity Research Permit from the Environmental Protection Agency (EPA) in order to conduct biodiversity research in the country and/or export genetic resources from the country. The basics of the process are outlined below:

1. Potential researchers register via the

National Biodiversity Research Information System (NBRIS).

2. Registration is approved or denied. 3. If approved, the research application is

submitted to the EPA and a processing fee paid.

4. Application is reviewed by the


Information to request on Access applications

• Who is accessing, when,

where and what genetic resources?

• How long will the access and

related activities continue? • What would be the impact of

access on conservation and sustainable use?

• What is the intended use of

resources, purpose and expected results of research, as well as budget?

• Who else is involved, e.g. are

local bodies collaborating or third parties involved?

• What are the types of

potential benefits, and any agreed benefit-sharing terms?

• How will the need for

confidentiality of information be addressed?


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Application Sub-committee of the National Biodiversity Committee.

5. Application is approved or denied. 6. If approved, the researcher pays a

research permit fee. 7. Research permit is issued. 8. Specimen export permit is issued,

if necessary. In order to obtain the permit the researcher is required to provide a complete list of the specimens to be exported, including the number of each, as well as information on the research permit under which the specimens were collection. The permit must be approved by the EPA.

What constitutes evidence of PIC?

Permits, licenses or the equivalent, can act as legal proof of access and should outline any further conditions or requirements on the entity accessing the resource. Parties should design measures that make clear the instrument that they will use as their permit, or its equivalent, and mandate its issuance once the CNA has assessed the access applications and decided to grant access.

Parties are required to publish information on any permit granted in the ABS Clearing-House. Once published, this information serves as an internationally recognised certificate of compliance, or IRCC.

Figure 4.3.1: The Access and Benefit Process


ABS Clearing House: Article 14 of the Protocol establishes the ABS Clearing-House. The Clearing-House is “a key tool for facilitating the implementation of the Nagoya Protocol, by enhancing legal certainty and transparency on procedures for access and benefit-sharing and for monitoring the utilization of genetic resources along the value chain, including through the internationally recognised certificate of compliance.”


Providers of Genetic Resources


Users of Genetic Resources


Government Level: Competent National

Authority (CNA), EPA, Biodiversity

Authority


Local Communities, Indigenous Peoples,

Trusts and other Direct Beneficiaries


Corporations Universities

Research Groups Individuals


Seeking PIC


Seeking PIC


MAT & Contract Implementation


Contract Finalized for Grant of Access



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4.4 Refining the Approach to Access

Once the basics are in place Parties have the option to tailor their access rules and procedures to suit national contexts. In doing so there are three important questions they should ask:

• Should access rules distinguish between different uses and types of genetic resources? • How can we achieve mutually supportive implementation with other relevant international

instruments? • How can we address special considerations which are required to be taken into account in the

development ABS measures? In examining these questions, the Protocol requires Parties to create conditions to promote and encourage research that contributes to the conservation and sustainable use of biodiversity. These conditions can include simplified measures on access for non-commercial research purposes. In this case, care is needed to clarify when there is a change of intent to commercial purposes and any new requirements.

Some countries have adopted simplified rules and procedures for access for non-commercial purposes with the intent to ensure that ABS measures do not impose conditions that would stifle research and innovation. Different approaches have been taken including:

• Requiring less documentation to obtain PIC • Imposing less strict requirements on MAT, including only requiring that a contract integrating

benefit sharing terms be signed at a later stage • Offering exclusive access for non-commercial purposes, particularly by domestic research and

educational institutions • Excluding some categories of non-commercial research from access requirements

Other countries have chosen to impose different access requirements at different stages of research, development and commercialisation. A common approach is to request increasing levels of information through the use of standard forms at key stages including, initial access, transfers to third parties and patent applications. And, some countries have chosen to have a single set of rules that applies to both commercial and non-commercial access, or to have measures that distinguish between these types of access, but in practice apply similar rules and procedures to both cases.

To date, there are no provisions for differentiation between commercial and non-commercial research in the Caribbean. As a result, determining whether an application is for non-commercial or commercial purposes will be difficult. As previously noted, there are intrinsic advantages of non-commercial, scientific research and its contribution to the conservation of the sustainable use of biodiversity. As


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such, it is important to grant access under these circumstances. Access for commercial use however, should be more tightly controlled and monitored. Caribbean countries may want to:

• Build a differentiation between commercial and

non-commercial research into their applications and processes

• Provide more flexibility for non-commercial, scientific research

• Guarantee the protection of the rights of the provider when a commercially valuable result is obtained from an activity that was originally considered ‘non-commercial’

• Allow for a process of ‘change of intent’ that ensures benefits for both users and providers

Identifying Intent, and other Factors that Impact the PIC process The Bonn Guidelines45 note that PIC should be based on the specific uses for which consent has been granted and any change in use may require a new application for PIC. This may require the design of a two-track system. However, that raises the challenge of distinguishing between the two types of uses and identifying milestones that indicate a “change in intent” when an activity moves from non-commercial to commercial purposes. Few country experiences exist to date that clearly identify activities which should be considered milestones to signal “change in intent.” Some suggested milestones however, include when a non-commercial user:

• Indicates a direct and immediate intention to take to market any resulting product from the research • Transfers research results to a third party for a price • Applies for intellectual property rights • Registers a product linked to the use of the genetic resource or traditional knowledge

It is also possible to address the issue of change of intent in the mutually agreed terms entered into with the user. The topic of MAT will be addressed in more detail in the Benefit-sharing module.

Some access measures also provide for differentiated treatment of nationals, specific national

45Convention on Biological Diversity. The Bonn Guidelines. Retrieved from: https://www.cbd.int/abs/infokit/revised/web/factsheet-bonn-en.pdf. January 12, 2018.


Bonn Guidelines: “The Bonn Guidelines are intended to assist governments in the adoption of measures to govern access and benefit-sharing in their countries. They were adopted by the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD) in 2002. The guidelines have two mains aims:

• To guide countries, as providers, in setting up their own national legislative, administrative or policy measures for access and benefit-sharing, such as recommending the elements that should make up a PIC procedure.

• To assist providers and users in the negotiation of MAT by providing examples of what elements should be included in these agreements.”


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institutions or, users that collaborate with national actors. In these cases, nationals are normally exempt from the scope of access measures or faced with less stringent requirements.

And finally, some countries have chosen to set up separate access procedures for different types of genetic resources, often administered by specialized competent national authorities, for example those found in protected areas or ex situ collections. This approach can leverage the technical expertise or administrative experience of existing institutions in these areas.

Achieving Mutually Supportive Implementation

The Protocol sets out a global framework to regulate access and benefit sharing while still recognizing that other relevant international instruments/agreements exist or may be developed by the international community in the future. Article 4 of the Protocol states that, “Where a specialised ABS instrument applies that is consistent with and does not run counter to the objectives of the Convention and the Protocol, the Protocol does not apply for the Parties to the specialized instrument in respect of the specific genetic resource covered by and for the purpose of the specialized instrument.”

At present, the only recognised, specialised international ABS instrument is the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) which creates a Multilateral System of Access and Benefit Sharing that covers the most common crops used for human consumption. Some countries have mentioned the ITPGRFA, in the scope of provisions for their ABS measures, as an exemption to their application. This exemption can be framed in several ways, including as:

• A general exemption for all plant genetic resources for food and agriculture covered by the Treaty • A qualified exception limited to the crops and forages listed in Annex I of the Treaty • A broad exemption to any genetic resources whose ABS regime are, or will be, defined by another

international convention to which the country is a Party. Additional detail on these exemptions can be defined in subsequent decrees and regulations.

Many countries have not developed specific legal measures to implement the ABS requirements of the ITPGRFA. Instead, they have implemented the ITPGRFA through existing national authorities and mandates.

Addressing Special Considerations

Article 8 of the Protocol identifies three categories of special considerations that Parties are required to take into account in the development of their ABS measures. Parties are required to:

1. Create conditions to promote and encourage research that contributes to the conservation and

sustainable use of biological diversity, particularly in developing countries. The Protocol suggests a possible way of doing this is by creating simplified measures in cases of access for research for non-commercial purposes. In this case, care is needed to clarify when change of intent to commercial purposes occurs – Article 8 (a).


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2. Pay due regard to emergencies that threaten or damage human, animal or plant health. Parties

may take into consideration the need for expeditious access to genetic resources that are useful to address such emergency or, for expeditious fair and equitable benefit-sharing arising from the use of such genetic resources, including by providing access to affordable treatments for those in need, especially in developing countries – Article 8(b).

3. Consider the importance of genetic resources for food and agriculture, and their special role for

food security. – Article 8(c)

4.5 The Importance of Managing Access in the Caribbean

By the end of the 1990s, the estimated world market value for products derived from genetic resources was calculated to be in the range of 500 to 800 billion dollars. By 2020, it is estimated that this number could reach 5 trillion.46 Ensuring clear and transparent access to genetic resources through appropriate rules and procedures is of utmost importance, especially in the Caribbean due to its particular richness in biodiversity and traditional knowledge:

• The Caribbean Sea covers 2.75 million square

miles and includes resource rich areas such as, reefs, mangrove swamps and sea grass beds

• The Region is home to various unique ecosystems • 72% of plant species are endemic to the Region • Up to 35% of marine species found globally are

native to the Caribbean • Traditional knowledge and practice using local

genetic resources has resulted in many preparations for various industries such as, health, cosmetics, medicine, industry, etc.47

Allowing access to these unique resources is a responsibility of all parties to the Nagoya Protocol, as outlined in Article 8 of the same. However, this should be balanced with protecting the resources for sustainable use and acknowledging and compensating the true resource owners. In order for Caribbean countries to become prepared to implement the Protocol, significant attention should be paid to matters

46Latin American and Caribbean Economic System (2009). Protection of traditional knowledge, traditional cultural expressions (folklore) and related genetic resources: SELA's approach. (Caracas, Venezuela: SELA). Retrieved from: http://www.sela.org/media/266765/t023600003470-0-protection_of_traditional_kowledge.pdf 47The ABS Capacity Development Initiative. The Caribbean. Retrieved from: http://www.abs-initiative.info/countries-and-regions/caribbean/, November 15, 2017.


Pedro Rocha, Coordinator of the Biotechnology and Biosafety Area at the Inter-American Institute for Cooperation on Agriculture (IICA), during his presentation (Nov 21, 2011)at the VIII International Symposium on Genetic Resources in Latin America and the Caribbean: In speaking about Latin America and the Caribbean, Mr. Rocha indicates that the Americas have “the genetic resources to be the main food supplier worldwide, to develop crops that are resistant to drought or floods, and to create new businesses that contribute to the economy. But, in order to achieve this, policies aimed at promoting biotechnology and biosecurity must be adopted.”


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of Access.

Importance of the Protection and Proper Use of Genetic Resources

Creating rules around Access to Genetic Resources in the Caribbean will promote sustainable eco-systems while providing Regional economic benefits: The Caribbean is part of the European Union African, Caribbean and Pacific (EU-ACP) BIOPAMA project. This project aims to address threats to biodiversity in the ACP Regions, while still making good use of the protected resources to provide economic benefits to the resource owners. The reality is that in spite of efforts in many countries, “the rate of biodiversity loss in ACP countries has not slowed down. This is in part due to the fact that existing human and institutional capacity to deal with the issues of conservation and sustainable use of biodiversity is limited.” Creating rules and procedures around Access in the Caribbean is vital to supporting initiatives such as BIOPAMA which will promote economic benefit in the Region through the responsible use of sustainable resources to contribute to industries such as medicine, cosmetics and much more.

Creating rules around Access to Genetic Resources in the Caribbean will assist with food security in the Region and around the world: Much work is being done by Caribbean-related agricultural organizations like the Inter-American Institute for Cooperation on Agriculture (IICA) and Caribbean Agricultural and Research Development Institute (CARDI), and being supported by entities like the Caribbean Development Bank (CBD) and the Caribbean Agriculture Business Association (CABA), to improve Caribbean plant germplasm to withstand climate change and develop more hearty and productive varieties. These initiatives will go a long way in improving food security in the Region and eventually on a global scale. Protecting regional genetic resources by managing Access for further research will ensure that Caribbean genetic resources are used in a way that provides benefits regionally and globally, while still protecting Caribbean rights to exploit their own resources.

Importance of Acknowledging and Compensating the True Resource Owners

Creating rules around Access to Genetic Resources in the Caribbean will improve potential for Regional stakeholders to benefit from their genetic resources and traditional knowledge: The first step in protecting genetic resources and traditional knowledge is regulating Access. If anyone can access resources, anytime, with no controls, then the rest of the process for benefit-sharing cannot be initiated.

An example which highlights the need for such controls is found in the case of ‘Rupununine’. Dr. Conrad Gorinsky is a Guyanese-born chemist who studied in the UK. He spent time with


Minister of Natural Resources and the Environment (Guyana), Mr. Robert Persaud, at the capacity building workshop (May 20th, 2014) on the Nagoya Protocol: “As nations rich in biodiversity, it is important to have in place a system that will safeguard our resources. In many instances, we have been victims of misappropriation or bio-piracy of our genetic resources and associated traditional knowledge, which have often been patented in other countries. We hope to prevent this in the future.”


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Wapishana tribe of the Amazon and then later (2000) obtained a US patent for a chemical protein from the nut of a greenheart tree traditionally used by the tribe for preventing infections, stopping hemorrhages and more. Gorinsky’s patent for the chemical tapir, which was renamed under the patent as ‘Rupununine’, claims that it may be used to treat malaria and cancer. The Wapishana community felt their knowledge had been stolen and wanted the patent rescinded. Gorinsky’s reply:

“Tough, isn’t it. I was not the only person looking at the greenheart. I just picked up a nut and said, ‘what can I do with this?’…How can I tell the Wapishana about the science? They just inherited the greenheart. They don’t own it. I have invested in this with my own money.”

If rules around Access to genetic resources had been in place in Guyana at the time, this scenario could have been avoided. Dr. Gorinsky would have been bound to follow rules around research and export of genetic resources such as the ones that were put in place in Guyana in 2008.


4.6.1 Case Studies 1. Access and Benefit Sharing: Iwokrama’s Experience, Iwokrama International Centre,December,

2013: http://www.abs-initiative.info/fileadmin//media/Events/2013/3-5_December_2013__Georgetown__Guyana/ILC_ABSTK_Workshop_Guyana-Iwokrama.pdf

2. Towards Access and Benefit-Sharing Best Practice: Pacific Case Studies, Dr Daniel Robinson, Institute of Environmental Studies, The University of New South Wales, Australia: http://www.abs-initiative.info/uploads/media/ABS_Best_Practice_Pacific_Case_Studies_Final_01.pdf

4.6.2 Readings

1. The Nagoya Protocol on Access and Benefit-Sharing, CARICOM: http://www.abs-

initiative.info/fileadmin/media/ABS_Simply_explained/Nagoya_Protocol/CARICOM_Secretariat_Nagoya_Protocol_Fact_Sheet.pdf

2. Methodology for Developing Policies and Laws for Access to Genetic Resources and Benefit Sharing, International Plant Genetic Resources Institute, 2006: https://www.bioversityinternational.org/fileadmin/user_upload/online_library/publications/pdfs/1150.pdf

3. Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilisation, Secretariat of the Convention on Biological Diversity, 2002: https://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf

4. The ABS Agreement: Key Elements and Commentary, The ABS Capacity Development Initiative, July 2014: http://www.abs-initiative.info/fileadmin/media/Events/2014/5-8_August_2014__Nadi__Fiji/The_ABS_Agreement_-_Key_Elements_and_Commentary.pdf

5. Convention on Biological Diversity: ABS - Uses of Genetic Resources, Secretariat of the Convention on Biological Diversity, 2010: https://www.cbd.int/abs/infokit/factsheet-uses-en.pdf


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6. Convention on Biological Diversity: ABS - National Implementation, Secretariat of the Convention on Biological Diversity, 2011: https://www.cbd.int/abs/infokit/revised/web/factsheet-national-implementation-en.pdf

4.6.3 Videos

1. ABS Simply Explained, The ABS Initiative, November

2016:https://www.youtube.com/watch?v=0FdKu_YHTfE 2. The Nagoya Protocol, International Union for Conservation of Nature (UICN):

https://www.youtube.com/watch?v=lltjhz6iyoA 3. What is Bio-Prospecting?, Convention on Biodiversity (CBD), November 2014:

https://www.youtube.com/watch?v=-4a9QYr486k 4. International Treaty on Plant Genetic Resources for Food and Agriculture, Food and Agriculture

Organization (FAO), June 2009: https://www.youtube.com/watch?v=dYYWe-0Dvyc


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5.0 Benefit-sharing 5.1 Course Objectives

a) Describe the concept of benefit-sharing as developed under the CBD and Protocol; b) Outline an indicative three-step process for designing measures to support benefit-sharing; c) Explain the core Protocol requirements on benefit-sharing; d) Review options for refining and tailoring measures to national contexts, including a definition of

what benefits accrue, who is entitled to benefits, when and how benefits are shared; and e) Discuss trans-boundary issues and options for addressing them f) Understand the importance of supporting and employing benefit-sharing measures in the

Caribbean and the particular challenges in the Region that will need to be addressed in moving forward

5.2 Key Information

What does ‘Benefit-sharing’ mean?

‘Benefit-sharing’ seeks to ensure that the benefits that result from the use of genetic resources are shared between those using the resources (users) and the people or countries that provide them (providers). “The benefits to be shared can be monetary, such as royalties when resources are used to create a commercial product, or non-monetary, such as the development of research skills and knowledge.” 48 Benefit-sharing is preceded by the access process and obtaining PIC and is then initiated through a negotiation process between both parties to develop Mutually Agreed Terms (MAT) to ensure the fair and equitable sharing of genetic resources and associated benefits. Benefit-sharing should then be supported by administrative and monitoring measures.

What are Mutually Agreed Terms? (review)

MATs are an agreement reached between the providers of genetic resources and the users on the conditions of access and use of the resources, as well as the benefits to be shared between all parties.

What is an ABS Agreement (ABSA)?

“An ABS agreement is essentially an agreement between parties regarding the terms of access and utilisation of genetic resources and associated traditional knowledge, including the sharing of benefits arising from utilisation, subsequent applications and commercialisation. An ABS agreement while

48Convention on Biological Diversity. Convention on Biological Diversity: ABS Introduction to access and benefit-sharing. Retrieved from: https://www.cbd.int/abs/infokit/brochure-en.pdf. January 14, 2018.


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unique to ABS shares some characteristics with ordinary contracts.”49 What is misappropriation?

The basic definition of misappropriation is the “dishonest use of another’s funds or property for one’s own use.” 50 The definition of this term in relation to ABS, genetic resources and traditional knowledge however is not quite as straightforward and has been the topic of much debate. Establishing a clear definition of this word, and obtaining agreement on the same, in the development of ABS measures around the world will be important for legal certainty.

What is legal certainty?

“Legal certainty is the principle that a legal system be predictable and transparent. It is considered a protection that guarantees that the law will not be used in an arbitrary way.”51 It is a principle that is subscribed to in both national and international law.

What are transboundary resources?

"Transboundary resources" are biological resources that are shared among multiple user groups, with diverse values and different needs, and physically cross traditional, cultural and/or political boundaries.

49The ABS Development Initiative. The ABS Agreement: Key Elements and Commentary. Retrieved from: http://www.abs-initiative.info/fileadmin/media/Events/2014/5-8_August_2014__Nadi__Fiji/The_ABS_Agreement_-_Key_Elements_and_Commentary.pdf. January 15, 2018. 50BD Dictionary. Misappropriation. Retrieved fromhttp://www.businessdictionary.com/definition/misappropriation.html. January 14, 2018. 51Simplicable. What is Legal Certainty? Retrieved from: https://simplicable.com/new/legal-certainty. January 14, 2018.


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5.3 Differing Views on Benefit-sharing

Benefit-sharing is a concept grounded in the text of the Convention on Biological Diversity.“The fair and equitable sharing of the benefits arising out of the utilisation of genetic resources” lies at the core of the 1992 Convention’s text as one of its three main objectives. Over the years, the implementation of the CBD’s provisions on benefit-sharing proved challenging with diverging perspectives from developing and developed countries. Developing countries traditionally focused on the need to prevent misappropriation and ensure benefit-sharing. In the view of many developing countries, the potential for misappropriation and/or misuse of genetic resources was one of the challenges left inadequately addressed by the CBD. This contributed to an atmosphere of mistrust between developing and developed countries. Developing countries asserted that developed countries, hosts to the primary users of genetic resources, had an obligation under the Convention to take measures to prevent misappropriation and misuse and, to assist in ensuring the sharing of benefits. Developed countries, on the other hand, generally focused on the need to ensure legal certainty to attract bio-prospectors and associated benefits. From the perspective of many developed countries, and those seeking to access genetic resources, some first-generation laws on ABS proved difficult to navigate due to a restrictive approach. Additionally, they felt that legal uncertainty dissuaded potential bio-prospectors and created an impediment to domestic and international scientific research, resulting in fewer opportunities to develop the very benefit streams that developing countries had hoped for and were entitled to capture. A call was made in 2002 for the negotiation of an international regime to advance implementation of this third objective of the CBD on benefit-sharing. Negotiations focused on finding a balance between the different interests expressed by developed and developing countries.


The main aims of benefit-sharing under the CBD are to achieve the following

goals:

• To promote greater equity: For many developing countries, a major aim was to redefine benefit flows from the use of genetic resources - to rectify what was viewed as an inequitable situation whereby genetic material was used, with no requirements to direct benefits back to the original provider once the material was physically obtained.

• To create incentives for conservation: Benefit-sharing was envisioned as a concept that could create economic incentives to conserve and sustainably use biological diversity. In effect, genetic resources were innovatively viewed as a means to assign a value to biodiversity and to direct a stream of benefits - at the time viewed primarily in monetary terms - to create an economic basis for its conservation.


Questions to ask when taking stock of your national benefit-sharing capacity?

• What stakeholders have the right to own,

manage and make decisions over natural and genetic resources?

• What rights do indigenous peoples and local communities (IPLCs) hold over their lands and territories in accordance with domestic law?

• What administrative law regime governs the responsibilities and functions of public institutions on the management of resources?

• What are the contractual law norms set out in civil and commercial codes?

• What is the existing scientific research capacity in the country, and how can benefit-sharing be supported in a way that promotes research and technology transfer?

• What development goals can benefit from the utilization of genetic resources and traditional knowledge?


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The result of these negotiations was the Nagoya Protocol which balances interests by ensuring:

• Legal certainty for access; • Equity in benefit-sharing; and • Incentives for biodiversity conservation and sustainable use.

5.4 Designing Benefit-sharing Measures

Similar to access measures, Parties to the Protocol have great flexibility in choosing how to design their benefit-sharing measures. Initial efforts in this area should include a review of the national policy vision for ABS and then the creation of specific policy statements related to benefit sharing. Attention should also be paid to the minimum requirements laid out in the Nagoya Protocol. These include:

1. Making clear the scope of activities that

trigger benefit-sharing requirements. 2. Requiring benefit-sharing to be negotiated

into written MATs: Once minimum requirements are met, Parties can then further refine their measures as they gain experience in ABS policy setting and regulatory approaches.

Policy Setting: The policy-setting process can be valuable in helping to define what benefit-sharing systems should be designed to achieve, and how they can be designed to do so. This process involves:

• Stock-taking of the set of capacities,

roadblocks and priorities for engaging in benefit-sharing activities;

• Reviewing policy, law and institutional frameworks to identify national sectors, processes and programs relevant to benefit sharing;

• Consulting with ministries, IPLCs and stakeholders about types of benefits, rights to participate in benefit-sharing and mechanisms


Excerpts from the Nagoya Protocol – Article 5

1. …benefits arising from the utilisation of genetic resources as well as subsequent applications and commercialization shall be shared in a fair and equitable way with the Party providing such resources … Such sharing shall be upon mutually agreed terms. 2. Each Party shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilisation of genetic resources that are held by IPLCs, in accordance with domestic legislation regarding the established rights of these IPLCs over these genetic resources, are shared in a fair and equitable way with the communities concerned. 3. … each Party shall take legislative, administrative or policy measures, as appropriate. 4. Benefits may include monetary and non-monetary benefits... 5. Each Party shall take legislative, administrative or policy measures, as appropriate, in order that the benefits arising from the utilisation of traditional knowledge associated with genetic resources are shared in a fair and equitable way with IPLCs holding such knowledge. Such sharing shall be upon mutually agreed terms.


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to distribute benefits, and; • Defining a policy vision on what benefit-sharing

can achieve for national environmental and development goals

Choosing a Regulatory Approach: The next step in building ABS measures on benefit-sharing is to choose the specificregulatory approach that can achieve the defined policy objectives and is realistically implementable, given the national context. Parties can get started by understanding what needs to be regulated and then designing measures that meet the minimum requirements outlined in the Nagoya Protocol. In this regard, ABS measures are required to account for three types of situations that trigger benefit requirements:

• Utilisation of genetic resources, in general • Utilisation of genetic resources over which IPLCs have established rights • Utilisation of traditional knowledge associated with genetic resources held by IPLCs

Under Nagoya, benefit-sharing measures must also require that specific benefits are negotiated and agreed upon in mutually agreed, and such terms must be written.

5.5 Refining the Approach to Benefit-sharing

Once Parties have designed measures to outline the scope of situations that trigger benefit-sharing and require written MAT, the minimum requirements of the Protocol have been met. Once these basics are in place, Parties have the option to tailor their benefit-sharing rules and procedures to suit national contexts. In doing so there are several important questions they should ask:

What types of benefits should be sought?

The Protocol does not prescribe detailed obligations on the types of benefits, requiring only that they be negotiated and agreed to between the user and provider in written MAT. The Protocol does however require Parties to encourage users and providers to direct benefits towards the conservation and sustainable use of biological diversity and to encourage access to and transfer of technology to developing countries. The Protocol makes clear that benefits may be monetary and non-monetary. Its’ Annex provides a non-exhaustive list of potential benefits that contractual parties may consider in the negotiation of MAT. This list demonstrates the wide range of possible benefits that can accrue. The list of suggested benefits included in the Protocol can be found at:


Questions to ask when determining ‘types of benefits’: • Should general guidance on

types of benefits be provided? • Should a detailed list of benefits

be provided? • How can it be ensured that

benefits accrue to the provider? • How to promote benefits related

to national goals?


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https://www.cbd.int/abs/text/articles/default.shtml?sec=abs-37 Consideration of non-monetary benefits can be key - given that often there is no guarantee that monetary benefits will arise and, in many cases, non-monetary benefits offer more immediately identifiable and concrete benefits. Additionally, Parties can guide negotiations towards the agreement of benefits that contribute to national goals, prioritize certain benefits over others, and help stakeholders set realistic expectations on the types of benefits and the amount that may be accrued.

Who should be entitled to share in benefits?

The Protocol outlines a core set of beneficiaries. Such beneficiaries may include governmental, non-governmental or academic institutions, and indigenous people and local communities. Parties should provide clarity in their measures on the rights to benefit-sharing of the provider-State and IPLCs, in the cases outlined by the Protocol. Aside from that, Parties have flexibility to choose who else is entitled to receive benefits, keeping in mind that this distribution can provide incentives to other actors to contribute to the Protocol’s goals and related national goals. Some countries have identified other stakeholders as beneficiaries and require that monetary benefits are targeted to support them, even when they do not qualify as direct providers of genetic resources. Other potential beneficiaries include government agencies and other institutions legally responsible for the management of genetic resources, contributors to the development of scientific and commercial applications (e.g. research institutes), and related businesses, farmers and private landowners. The voluntary Bonn Guidelines provide further guidance about benefit-sharing, including the suggestions that:

• Benefits should be fairly and equitably shared with all those who contributed to the resource management, scientific and/or commercial purposes

• Benefits should be directed in such a way that promotes conservation and sustainable use of biological resources


Questions to ask when determining when and how

benefits should be negotiated and shared:

• When should benefit-

sharing terms be negotiated?

• When should benefit-sharing requirements be triggered?

• What mechanisms can be used to distribute benefits?


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To date there are limited inventories of genetic resources and traditional knowledge in the Caribbean, as well as very minimal assignment of ownership, that would help determine who should benefit from the use of genetic resources and traditional knowledge. There are times when a group may claim that they are the holders of specific traditional knowledge however, there is no legal recognition of such ownership. In other instances, there may be a request for access to traditional knowledge or genetic resources that have no obvious owner. Finally, what is to be done with traditional knowledge that has become mainstream and part of the public domain? The Nagoya Protocol does not address these factors. Under each circumstance, and in accordance with the national and customary laws in each Caribbean country, regulations need to be formulated on how to respond when access is sought and MAT needs to be negotiated. Additionally, inventories of traditional knowledge and genetic resources with assigned ownership should be created and maintained in each country. There are many varied projects underway in the Caribbean, supported by NGOs, various advocate groups and governmental organizations, to inventory traditional knowledge. It would be of great benefit for these groups to work together in each country to amalgamate resources and information to create national inventories, including ownership. Some Caribbean countries also have partial and informal inventories of their genetic resources which are reported on by Ministries of Agriculture, Fisheries and Forestry. The ABS process would benefit from these ministries working together to create and maintain an official catalogue of genetic resources from which ownership could be assigned. When and how should benefit be negotiated and shared?

The voluntary Bonn Guidelines provides guidance on the timing of benefits (paragraph 47), recommending that contractual parties consider the negotiation of near, medium and long-term benefits on a case by case basis. It also suggests that the time-frame of benefit sharing be clearly stipulated by the contractual parties in the MAT.


Representation of Indigenous Peoples

The fair representation Indigenous People and their ownership of and right to benefit from traditional knowledge and genetic resources have long been a problem around the world. The Caribbean is no exception. Each Caribbean country has a different approach to the legal status and rights of indigenous peoples with regard to making contracts. These rights, and how indigenous peoples can operate within the legal system of each country, must be made clear to facilitate proper negotiation of benefit-sharing and creation of MATs. Caribbean legislation and regulations also need to formalize customary rights of IPLCs so that they can be addressed in the benefit-sharing process. One of the best regional examples of formalizing the rights of Indigenous Peoples is the 2006 Amerindian Act of Guyana: http://www.moipa.gov.gy/wp-content/uploads/2015/02/AMERINDIAN-ACT-2006.pdf


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The Guidelines also note that the mechanisms for benefit-sharing may vary depending on the type of benefits, national context and stakeholders. R&D processes can take several years to deliver results. Even then, the development and latter commercialisation of a product based on the information obtained from the genetic resources and/or associated traditional knowledge accessed is uncertain. For these reasons, measures can provide guidance to contractual parties on how to identify the most appropriate time to negotiate the sharing of benefits, the time period in which benefits should be disbursed and the mechanisms for distribution of benefits. This effort can help to ensure that a minimum level of benefits are shared, while allowing benefit-sharing to be renegotiated over time as research and commercial potential and/or profits grows. What further guidance can be provided for MAT negotiations?

Parties also have flexibility to further tailor their rules and procedures for establishing MAT. The Protocol encourages Parties to consider providing further guidance to inform users and providers in their negotiation of MAT - with an aim to promote MAT that results in fair, equitable and concrete benefits. “It is important to keep in mind that each access situation has its specificities. Different types of users and sectors use genetic resources and associated traditional knowledge in different ways and for different purposes. While some elements of an ABS agreement may be standardized, others need to be handled flexibly, and on a case by case basis, in light of the legal and factual context.”52 In the Caribbean there is a significant lack of knowledge and experience in creating Mutually Agreed Terms which require careful design to support a fair, equitable and legally sound benefit-sharing process. This problem is exacerbated by several factors. First, the level of education for people in IPLCs is often low and they have limited experience in the commercial world. In addition to this, IPLCs often have their own cultural forms of negotiation and doing business that don’t line up with potential users of their traditional knowledge and genetic resources. Second, the environmental officers and scientists that are often part of creating these agreements have a limited understanding of the laws and concepts that govern these types of business contracts.

Figure 5.5.1: Access and Benefit Sharing Model

52The ABS Development Initiative. The ABS Agreement: Key Elements and Commentary. Retrieved from: http://www.abs-initiative.info/fileadmin/media/Events/2014/5-8_August_2014__Nadi__Fiji/The_ABS_Agreement_-_Key_Elements_and_Commentary.pdf. January 15, 2018.


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Two initiatives which will help in overcoming this roadblock in the Caribbean include: a) education and training and b) the provision of access to experts.

a. Education and training in the proper negotiation and creation of MATs will need to address an extremely wide-range of participants, from policy makers, to environmental advocates, to local community representatives. It will need to cover high level concepts which address MAT however, it will also need to account for the different customs and communities in the specific Caribbean country of concern. The training should aim to raise awareness and build capacity amongst all stakeholders to ensure that they are each fairly and properly represented in the benefit-sharing process.

b. Even with education and training, certain groups of people will still be at a disadvantage in the benefit-sharing process. It will be important for each entity to have access to professional legal and technical advice in order for them to obtain an equitable and fair share of the benefits arising from granting access to their traditional knowledge and genetic resources.

Several initiatives are underway across the Caribbean to inform and educate stakeholders about ABS. Some specific workshops addressing benefit-sharing have already been carried out and could be borrowed from and enhanced to address the needs of different Caribbean countries.


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• Transforming Knowledge into Wealth, Guyana, December 2013: http://www.abs-initiative.info/fileadmin//media/Events/2013/3-5_December_2013__Georgetown__Guyana/Report_Transforming_Knowledge_Workshop_Guyana_3-5_Dec_2013_FINAL.pdf

• Capacity-building Workshop on the Negotiation of Mutually Agreed Terms for Access to Genetic Resources, to Support Effective Implementation of the Nagoya Protocol on Access and Benefit Sharing, Suriname, December 2015: http://www.abs-initiative.info/fileadmin//media/Events/2015/30_November-3_December_2015_Paramaribo_Suriname/Report-Workshop-MAT-CARICOM_ABS_Initiative-201511.pdf

How to address transboundary benefit-sharing

Genetic resources can be found across national borders - they can be in situ within the territory of more than one country. In these instances, the Protocol (Article 11) provides that Parties are to cooperate to implement the aims of the Protocol. When genetic resources situated across State borders are accessed and utilized, the benefits arising may be shared amongst multiple beneficiaries or Parties, including as appropriate, IPLCs. ABS legal frameworks may regulate how to handle these situations.


The Nagoya Protocol – Article 11

1. In instances where the same genetic resources are found in situ within the territory of more than one Party, those Parties shall endeavour to cooperate, as appropriate, with the involvement of indigenous and local communities concerned, where applicable, with a view to implementing this Protocol.

2. Where the same traditional knowledge associated with genetic resources is shared by one or more indigenous and local communities in several Parties, those Parties shall endeavour to cooperate, as appropriate, with the involvement of the indigenous and local communities concerned, with a view to implementing the objective of this Protocol.


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5.6 Designing an ABS Agreement to establish MAT

In very recent days, several Caribbean countries have begun to establish their own negotiation procedures to be followed and even templates for MAT. These should be examined accordingly. Noted below, however, are the standard Elements of an ABS Agreement: 53

1. The Preamble

This section acts as an introduction to the Parties to the agreement, the subject and nature of the agreement and the objectives of the contract. It should be simple, straightforward and free of too many details. Where applicable though, the preamble may outline past or existing regulations that are relevant to the contract. It may address memorandums of understanding (MOUs) between the parties to the contract or, it may invoke prior or on-going developments that are relevant to the agreement. Preambles are not legally binding.

2. Terms and Definitions

In order to avoid misunderstandings on the particular definition of a term, a good agreement will have a section that defines key terms used in the body of the agreement. It can be reasonably assumed that Parties will share a common understanding of very common terms however, other terms, such as genetic resources, traditional knowledge or utilisation, for example, can be understood in different ways by each Party and therefore should be defined.

3. Parties to the Agreement

Details of parties to the agreement should be stated including, representation authority of signatories, legal and financial ability to undertake the contract, authority to determine access to GR and TK etc., the Parties to the agreement on both sides need to be clearly identified and must have legal authority to sign the agreement, for example, as representative of a company with authority to bind it, a national authority, or as a legitimate representative of an IPLC. It is also important that the agreement makes allowances for future changes in the composition of the Parties.

4. Details regarding the Genetic Resources

The genetic resources that are being accessed for utilisation need to be clearly identified. It is recommended that Parties list each type of genetic resource, specifying its taxonomical determination and common name, the quantity of the material and the parts of the organism, if applicable, to be collected. A collection schedule should also be provided.

5. Details regarding the TK associated with the Genetic Resources

It is important to provide details regarding the specific and concrete traditional knowledge associated with the genetic resources being accessed. This can be done in the definition of terms section of the agreement or addressed separately. This will prevent misunderstandings between parties and the courts to have a better understanding of the subject matter if problems with compliance or contractual enforcement arise.

6. Purpose and Scope of Utilisation

ABS agreements should, to the extent possible, contain a detailed description of the exact purpose and scope of utilisation of the genetic resources and associated traditional knowledge. Where an exhaustive list of activities that would

53The ABS Development Initiative. The ABS Agreement: Key Elements and Commentary. Retrieved from: http://www.abs-initiative.info/fileadmin/media/Events/2014/5-8_August_2014__Nadi__Fiji/The_ABS_Agreement_-_Key_Elements_and_Commentary.pdf. January 15, 2018.


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constitute utilisation of the resources or knowledge is not possible, it should be substituted by a non-exhaustive description of the type of activities that would constitute utilisation for the purposes of the agreement. The agreement should also lay out obligations on the part of the user to disclose any utilisation that was not in the initial agreement and require the negotiation of a new agreement under “change of utilisation” circumstances. It is also recommended that the agreement include concrete clauses outlining penalties that would be applicable in the case of a breach.

7.Material transfer conditions

This section of the agreement should address conditions if genetic resources are going to be exported. Most countries already have standard material transfer agreements as part of their national export policy, but these may need to be refined to suit ABS conditions and be addressed directly in ABS agreements.

8. Access rights granted

The agreement should clearly identify the access rights and any rights retained (e.g. the provider retains ownership of the material). It may also address the issue of exclusivity/non-exclusivity, i.e. whether the accessing Party may have exclusive rights to access and utilize the genetic resource and/or associated traditional knowledge for a specific purpose or, whether the providing Party may give similar rights to other potential users and on what terms or circumstances. Another issue may be further re-supply. Depending on the kind of research and development taking place, a continuous supply of the genetic resources may be required. In this context, it is advisable to identify the providing Party e.g. as the first source of supply, as well as agree on other specific requirements of the supply chain (e.g. sustainable collection methods, quality, time frames etc.)

9. Benefit-sharing arrangements

As previously discussed in this module: 1. Monetary 2. Non-monetary 3. Timeline or phases of benefit-sharing scheme 4. Distribution and use of benefits

10. Change of Intent

This generally refers to a change from non-commercial to commercial intent for utilisation of the genetic resource. Indications of a change of intent might include an application for Intellectual Property Rights (IPR) or the transfer of material to a commercial partner. It may also, however, include a change of utilisation to a new and different commercial use other than what was stated in the original agreement. For example, due to a discovery of unexpected properties of the resource. In any case, it is important to include a clear requirement to apply for a new permit, including new PIC, and to negotiate a new or modified agreement when change of intent or utilisation takes place.

11. Third Party Transfer

The agreement should include provisions regarding whether the genetic resources and its derivatives and/or associated traditional knowledge may be transferred to third parties and, if so, what conditions should apply. Users will often transfer the resource, or sometimes derivatives thereof, to other individuals or partners for further research or commercialisation. In this situation, the


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conditions and terms of the agreement with the initial user are to be transferred to this new user or third party.

12. Intellectual Property Rights (IPRs)

An agreement for non-commercial use of genetic resources normally excludes the use of IPRs over any resource, or derivative. An agreement for commercial use will require a more comprehensive agreement that addresses this matter in detail. The kind of intellectual property rights sought, ownership, as well as the distribution of the value derived from the IPRs will need to be addressed in the agreement. Parties to an agreement should also clarify who will have ownership of those IP rights. Joint ownership is one option however it needs to be carefully considered as it does not necessarily represent an ideal benefit-sharing mechanism. The topic of IPRs will be covered in detail in a later module.

13. Confidential Information

Parties to the agreement should clearly state in the agreement what information should be treated as confidential. Confidential information includes privileged commercially valuable information, which may be in the nature of trade secret or restricted information but is incidental to the information exchange between parties to the ABS agreement. Parties may therefore need to agree on the level of confidentiality needed in a particular case in light of the privileged information which is being shared.

14. Publication and ownership of research results

The agreement should include provisions that clarify, in detail, the extent, timing, and nature of any limits imposed on publishing any information on the genetic resources, traditional knowledge or relevant research results. The obligation to acknowledge the provider as the source of the material, as well as any other contributions to the research, should also be addressed in the agreement.

15. Reporting requirements

Detailed provisions on reporting requirements, including procedures of data-sharing and regular reports regarding activities to be carried out under the contract, are of major importance. Reporting requirements represent the basis for monitoring and compliance control for the agreement, as well as an integral aspect of accountability. They are the basis for a transparent and long-term relationship based on trust between the provider and the user.

16. Meetings The agreement should specify the predetermined timing, location and frequency of meetings, as well as addressing who should bear what costs for these meetings.

17. Duration and Termination of the Agreement

All contract agreements include duration and termination clauses. In the context of an ABS agreement, duration may be defined by the length of a given research project. However, the issue of termination may be challenging if the genetic resource and associated traditional knowledge have already been transferred. In this context, an agreement on provisions that survive termination may be useful.


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18. Survival Clause

Certain rights and responsibilities of the Parties will often survive beyond termination, for example, confidentiality or ownership of research results. The agreement should provide clarity on these matters, as well as what happens to any material that was transferred.

19. Breach of Agreement

The agreement should include provisions specifying the consequences of breach of the agreement, for example, obligation of the user to pay a penalty for any material breach to the agreement.

20. Dispute resolution and settlement

Parties to the agreement should agree on how to solve disputes related to the contract.

5.7 Negotiating MAT

Once Parties understand what should be included in an ABSA they can proceed with negotiation. There are several criteria which define a successful ABS contract negotiation:

1. Produces a wise agreement which meets the interests of each party, respects rights, resolves conflicting interests and is durable.

2. Creates trust, improves collaboration and maintains a positive relationship between parties. This will sometimes require separating individual people and strong personalities from the problems or issues which arise.

3. Invents options for mutual gain. Parties should see negotiation as working together to attack a problem, not each other, in order to achieve mutual benefits.

4. Employs objective criteria where solutions are based on reason, principles and merits of the problem, not on pressure or power.

5. Focuses on interests, not positions. Negotiation is not about proving a point or position but rather reaching end goals which support the interests of all Parties.54

“Due to political and economic reasons, ABS negotiations carry a “historic burden” with them.” 55 Some groups who are critical of ABS have called ABS agreements disguised bio-piracy and view the use of genetic resources by outside parties as an extension of colonial practice in post-colonial times. 56 ABS measures also reach into the realm of human rights for indigenous people and awaken challenging discussions on historic and current injustices and distribution of resources and power, all of which are accompanied by strong emotions. For these reasons, negotiation of MAT should be carried out thoughtfully, carefully and respectfully.

54The ABS Capacity Development Initiative. The Negotiation of ABS Agreements: Some Key Considerations. Retrieved from: http://www.abs-initiative.info/fileadmin/media/Events/2014/24-27_November_2014__Saint_Lucia/4.1-Normand-MAT.pdf. January 15, 2018. 55The ABS Capacity Development Initiative. Negotiation Dynamics: Introduction. Retrieved from: http://www.abs-initiative.info/fileadmin/media/Events/2015/30_November-3_December_2015_Paramaribo_Suriname/Day_4/Hartmut_Meyer-Negotiation_Dynamics-20151202.pdf. January 16, 2018. 56 Ibid


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Watch: https://www.youtube.com/watch?v=1FeM6kp9Q80

5.8 The Importance of Benefit-sharing in the Caribbean

As Small Islands Developing States (SIDS) having to compete in a global market, the nations of the Caribbean should take advantage of the opportunities available to them to transform their rich genetic resources and traditional knowledge into wealth. Having come through a long history of colonialization, the time has come for the people of the Caribbean to become the greatest beneficiary of their own resources. Whether it be through direct financial benefits, or through the provision of education, health care or opportunities for new economic enterprises, it is vital that the benefits from access to Caribbean resources be fairly and equitably distributed among the people. This position is supported in the Revised Treaty of Chaguaramas, which established the Caribbean Community (CARICOM), including the CARICOM Single Market and Economy (CSME), in 2001.

Caribbean Development Goals & Benefit-sharing

In his statement at the United Nations Summit on the Post 2015 Development Agenda the Secretary-General of CARICOM, Irwin Larocque, stated that development gains were under threat from a number of challenges, including:

• 10 years of low or negative growth

performance • Lingering impact of the global financial and

economic crises of 2007 and 2008 • Geographic location in a region described as

one of the most natural disaster prone areas in the world

• Public debt burden of US $24 billion

Fair and equitable benefit-sharing will contribute to achieving development goals that have been set for the Caribbean. As previously noted, benefits which can be arranged through MATs can be monetary as well as non-monetary, including things like the provision of healthcare, education and training. MATs can also call for partnerships in industry and commerce, the establishment of manufacturing and processing in-country for job creation and much more. Benefit-sharing also seeks to ensure that the correct party is compensated for access to resources. This often includes groups that have traditionally been overlooked.

All of these factors will contribute to achieving some of the Caribbean’s most urgent priorities, such as reducing inequality and promoting inclusive economic growth.

Sustainable Development Goals: All of the CARICOM countries have signed on to the United Nations 2030 Agenda for Sustainable Development which includes 17 goals and 169 targets to wipe out


The Revised Treaty of Chaguaramas – Article 64:6

“COTED (the Council for Trade & Economic Development, CARICOM) shall co-operate with the Member States and competent organisations to devise means of Protecting, Developing and Commercialising LOCAL KNOWLEDGE about the VALUE and USE of the Region’s biodiversity for the BENEFIT of their populations, especially their Indigenous Peoples.”


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poverty, fight inequality and tackle climate issues over the next 15 years. Progress on achieving many of these goals can be helped with fair and equitable benefit-sharing practices. Two of the goals in particular – SDG 2 on zero hunger and SDG 15 on life on land – contain targets calling for the promotion of access to and fair and equitable sharing of benefits arising from the utilisation of genetic resources and associated traditional knowledge. Some of the other SDGs that can be addressed through benefit-sharing include:

• No Poverty • Good Health and Well-being • Quality Education • Decent Work and Economic Growth • Industry, Innovation and Infrastructure • Reduced Inequalities

CARICOM Strategic Priorities, 2015 to 2019: Two of the seven CARICOM Strategic Priorities can also be addressed through benefit-sharing, including:

• Building Economic Resilience: Stabilization and Sustainable Economic Growth and

Development • Building Social Resilience: Equitable Human and Social Development

OECS Strategic Objectives: The Organisation of Eastern Caribbean States (OECS) recognises that “ending poverty and creating a brighter future for all must go hand-in-hand with strategies that build economic growth and which address a range of social needs including education, health, social protection, and job opportunities, while tackling climate change and environmental protection.”57 This statement reflects many of the principles behind ABS, and helps to highlight the importance of establishing good benefit-sharing practices in the Caribbean. Two of the six OECS Strategic Objectives can be addressed through benefit-sharing, including:

• Drive Key Economic Priorities (including jobs and food security and production) • Assure the Security and Well-Being of Citizens


5.9.1 Case Studies

1. The International Cooperative Biodiversity Groups (ICBG) Program: A Benefit-sharing case study for the Conference of Parties to the Convention on Biological Diversity, Fogarty

1 Organisation of Eastern Caribbean States. OECS Strategic Objectives. Retrieved from: http://www.oecs.org/strategic-objectives. December 7, 2017.


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International Center, National Institutes of Health, 2013: https://www.cbd.int/doc/case-studies/abs/cs-abs-icbg.pdf

2. Value Chain Development with GR from the Bahamas, The ABS Capacity Development Initiative, 2014: http://www.abs-initiative.info/fileadmin/media/Events/2014/24-27_November_2014__Saint_Lucia/2.7-Meyer-BahamasUtilisation.pdf

3. Bioprospecting in Practice: A Case Study of the Suriname ICBG Project and Benefits Sharing under the Convention on Biological Diversity: https://www.belfercenter.org/sites/default/files/legacy/files/pdf2.pdf

4. Pharmaceutical Sector – Salinispora tropica (The Bahamas), Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), June 2015:http://www.abs-initiative.info/fileadmin/media/interactive_infographics/pharmaceutical/index.html

5.9.2 Readings

1. The ABS Agreement: Key Elements and Commentary, The ABS Capacity Development

Initiative, July 2014: http://www.abs-initiative.info/fileadmin/media/Events/2014/5-8_August_2014__Nadi__Fiji/The_ABS_Agreement_-_Key_Elements_and_Commentary.pdf

2. Agreement on Access and Benefit-sharing for Academic Research: A toolbox for drafting Mutually Agreed Terms for access to Genetic Resources and to Associated Traditional Knowledge and Benefit-sharing, Swiss Academies of arts and Sciences, 2016: https://sciencesnaturelles.ch/uuid/e575e2b7-4880-5851-9008-2003f05c1567?r=20170706115333_1499298589_6e5f6e91-f43e-5814-b74c-abb04d867d2d

3. How (Not) to Negotiate Access and Benefit Agreements, The ABS Capacity Development Initiative: http://www.abs-initiative.info/fileadmin//media/Events/2014/5-8_August_2014__Nadi__Fiji/How__Not__to_Negotiate_ABS_Agreements-_for_circulation.pdf

4. Capacity-building Workshop on the Negotiation of Mutually Agreed Terms for Access to Genetic Resources, to Support Effective Implementation of the Nagoya Protocol on Access and Benefit-sharing, The ABS Capacity Development Initiative, Paramaribo, Suriname, December 2015: http://www.abs-initiative.info/fileadmin//media/Events/2015/30_November-3_December_2015_Paramaribo_Suriname/Report-Workshop-MAT-CARICOM_ABS_Initiative-201511.pdf

5. Notes: Getting to Yes: Negotiating Agreements Without Giving In, by Roger Fisher and William Ury: http://richardstep.com/downloads/tools/Notes--Getting-to-Yes.pdf

5.9.3 Videos

1. Negotiation, World Bank Institute, October

2010:https://www.youtube.com/watch?v=1FeM6kp9Q80 2. Tips for Negotiating Agreements, Kellogg School of Management, 2015:

https://www.youtube.com/watch?v=QCT1BWZByko 3. Bio-piracy, Union for Ethical BioTrade, September 2010:


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https://www.youtube.com/watch?v=Wtw704KDipg

6.0 Indigenous People & Local Communities (IPLCs)

6.1 Course Objectives

a) Describe the link between IPLCs and ABS as outlined in the CBD and Nagoya Protocol; b) Outline options for setting policies related to IPLCs; c) Understand the scope of activities that trigger the Protocol’s obligations to IPLCs and advise on

steps to take to define the scope in national measures; d) Inform on core elements of national ABS measures on IPLC issues related to ABS and

compliance; e) Recall measures that Parties can take to support implementation of ABS measures on IPLC

issues f) Understand the importance of including IPLCs in the Caribbean ABS process.

6.2 Key Information

What does Indigenous People and Local Community (IPLC) mean?

IPLC stands for Indigenous People& Local Communities. “Indigenous communities, people and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them.” 58 “In their capacity as traditional knowledge holders, indigenous people and local communities (IPLCs) are an important stakeholder group in the ABS process. IPLCs face many challenges; social marginalisation based on culture and language being the most prominent. They often struggle for recognition of their status and rights. From this weak position they are forced to negotiate with government and private sector representatives for fair and equitable benefit sharing, in particular for adequate Prior Informed Consent (PIC). It is therefore essential that they stand on equal footing with their counterparts.” 59

58United Nations, Indigenous Peoples at the UN, Retrieved from: https://www.un.org/development/desa/indigenouspeoples/about-us.html. January 17, 2018. 59The ABS Capacity Development Initiative, Indigenous Peoples and Local Communities. Retrieved from: http://www.abs-initiative.info/topics/integrating-iplc/. January 17, 2018


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What is Traditional Knowledge (TK)? (See Module 7 for full details on Traditional Knowledge)

Traditional Knowledge (TK) refers to the knowledge, know-how, skills, innovations and practices of IPLCs around the world.60 Developed, sustained, and passed on from generation to generation through oral tradition and first-hand observation, it is continuously adapted to the local culture and environment and often forms part of the community's cultural and spiritual identity TK can be found in a wide variety of contexts, including: agriculture, science, technology, ecology and medicine, as well as biodiversity-related knowledge. Unlike the western custom of disseminating knowledge through publication, TK takes the form of, and is transmitted through, stories, songs, folkloric expressions, proverbs, cultural values, beliefs, rituals, community laws, local language, and agricultural practices, including the development of plant species and animal breeds.61

What is a sui generis regime?

Something that is sui generis is entirely unique. For example, if someone were to write a sui generis book about making eye cream from poison ivy it would be the only one in existence. In the area of law, the term is used to describe a form of legal protection that is outside typical legal protections.

What is Customary Law?

Customary law is “traditional common rule or practice that has become an intrinsic part of the accepted and expected conduct in a community, profession, or trade, and is treated as a legal requirement.” 62

What are Community Protocols?

“Community protocols articulate community-determined values, procedures, and priorities. They set out rights and responsibilities under customary, state, and international law as the basis for engaging with external actors such as, governments, companies, academics, and NGOs. They can be used as catalysts for constructive and proactive responses to threats and opportunities posed by land and resource development, conservation, research, and other legal and policy frameworks. Although each community protocol is adapted to its local context, it is generally a community-led instrument that promotes participatory advocacy for the recognition of and support for ways of life that are based on the customary sustainable use of biodiversity.” 63

6.3 IPLCS, the CBD and the Nagoya Protocol

The CBD makes clear links between IPLCs and biological resources. In its Preamble the CBD notes:

60 World Intellectual Property Organization. "Traditional Knowledge." Accessed from: http://www.wipo.int/tk/en/tk/ 61Fulvio Mazzocchi (2006). "Western Science and Traditional Knowledge" EMBO Reports 7, 463-466. 62BD Dictionary. Customary Law. Retrieved from: http://www.businessdictionary.com/definition/customary-law.html.January 17, 2018. 63Natural Justice, Community Protocols. Retrieved from: http://naturaljustice.org/community-protocols/. January 17, 2018.


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• The close and traditional dependence of many indigenous people and local communities embodying traditional lifestyles on biological resources; and

• The desirability of sharing equitably

the benefits arising from the use of traditional knowledge, innovations and practices that are relevant to the conservation of biological diversity and the sustainable use of its components.

The CBD recognises the value of indigenous people and local communities and their traditional knowledge to meeting the core CBD objectives to conserve and sustainably use biological diversity. The CBD text refers specifically to issues related to indigenous people and local communities in its Article 10 and Article 8(j).

Article 10 contains a general requirement for Parties to “protect and encourage the customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation and sustainable use requirements.”

Meanwhile, Article 8(j) is the key provision of the CBD on IPLC issues requiring parties to:

• Respect, preserve and maintain knowledge,

innovations and practices of indigenous people and local communities embodying traditional lifestyles relevant for conservation and sustainable use of biodiversity;

• Promote the wider application with the

approval and involvement of the holders of such knowledge, innovations and practices; and,

• Encourage the equitable sharing of the benefits arising from the utilisation of such knowledge,

CBD – Article 8 (j): Each contracting Party shall, as far as possible and as appropriate:

Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous people and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices.

CBD – Article 10 (c), (d) and (e):

Each Contracting Party shall, as far as possible and as appropriate:

(c) Protect and encourage customary

use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements;

(d) Support local populations to develop

and implement remedial action in degraded areas where biological diversity has been reduced; and

(e) Encourage cooperation between its

governmental authorities and its private sector in developing methods for sustainable use of biological resources.


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innovations and practices.

The CBD recognises that each Party may have different sets of rights and responsibilities related to indigenous people and local communities in their country, and thus, the obligations outlined above are “subject to national legislation.” This means that Parties can implement these obligations in a manner aligned with their national context and requirements.

The Nagoya Protocol further evolves the understanding of the linkages between indigenous people and local communities and access and benefit-sharing, and the unique nature of associated traditional knowledge. In the preamble it notes the close interrelationship of genetic resources and associated traditional knowledge, and their inseparable nature for indigenous people and local communities. It also calls attention to the importance of traditional knowledge for both the conservation and sustainable use of biodiversity and the sustainable livelihoods of these communities. It notes the diversity of circumstances in which traditional knowledge associated with genetic resources is held, or owned, by these communities and calls for recognition that the right to identify the due holders of such traditional knowledge rests with the indigenous people and local communities themselves. Finally, it highlights the diversity of circumstances where traditional knowledge is held within different countries, which may be oral, documented or in other forms. This diversity reflects a rich cultural heritage around the world relevant to conservation and sustainable use of biodiversity.

In essence, the Protocol calls on Parties to recognise these core concepts and take measures to strengthen the ability of indigenous people and local communities to benefit from the use of their knowledge, innovations and practices.

Figure 6.3.1: The Linkages between IPLCs and ABS


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6.4 Nagoya and other International Instruments on IPLCs

The Protocol, in its Preamble, affirms that nothing in the Protocol shall be construed as diminishing or extinguishing the rights of IPLCs. Additionally, the global community as a whole now view attention to IPLCs as an important aspect of human rights. As such, Parties should consider other key international texts and processes to understand the nature of IPLCs rights over genetic resources and associated traditional knowledge. Many countries of the Caribbean have committed to international measures which recognise the rights of IPLCs, including protection of their intellectual property and land rights, as well as their genetic resources and associated traditional knowledge. These include:

The United Nations Declaration on the Rights of Indigenous People

This overarching international text on IPLC issues was adopted as a Declaration by the UN General Assembly in 2007. It sets out the individual and collective rights of indigenous people and emphasizes their right to maintain, control, protect and develop their traditional knowledge, as well as

IPLCs & ABS

Addresses the inseparable

interrelationship between Genetic

Resources and Traditional

Knowledge in the Community

Addresses community sustainable

development depends heavily

on the Traditional Knowledge

relating to Bio-diversity

Addresses the varied

circumstances in which Tradional

Knowledge is held and related in the

Community

Addresses the Rigth of

communities to identify the

rightful owners of Traditional Knowledge.

Addresses the unique

circumstances where Traditional Knowledge is held by the Country in oral, documented

of other forms.


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the manifestations of their genetic resources and associated traditional knowledge. Caribbean countries voting in favour of adopting this Declaration include Antigua and Barbuda, Barbados, Cuba, Dominica, Dominican Republic, Guyana, Haiti, Jamaica, Saint Lucia, St. Vincent & the Grenadines and Trinidad and Tobago.

The World Intellectual Property Organization (WIPO)

Within the World Intellectual Property Organization negotiations continue under the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (called the IGC) to reach agreement on an international legal instrument. Negotiations have resulted in the development of draft articles providing for three international instruments for the protection of traditional knowledge, traditional cultural expressions and intellectual property issues related to genetic resources. Caribbean members of WIPO include Antigua and Barbuda, Barbados, Cuba, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, St. Kitts & Nevis, Saint Lucia, St. Vincent & the Grenadines, Suriname and Trinidad and Tobago.

The International Treaty on Plant and Genetic Resources for Food and Agriculture (ITPGRFA)

This treaty contains a section on “Farmer’s Rights”. It recognises the enormous contribution of local and indigenous communities, and farmers, to the conservation and development of plant genetic resources important for food and agriculture production. It calls on Parties to protect relevant TK and promote the rights of IPLCs to share in benefits and participate in decision-making. The Secretariat of the International Treaty continues to work on the concept of farmer’s rights and its advancement. Caribbean countries contracting to this treaty include Cuba, Dominican Republic, Guyana, Haiti, Saint Lucia and Trinidad & Tobago.

United Nations Convention to Combat Desertification

This convention recognise the importance of “traditional and local technology, knowledge, know-how and practices” to combating desertification, and thus, promote information exchange, research and development, and technology transfer. In doing so, the Convention requires Parties to ensure adequate protection and ensure benefits are shared equitably and based on mutually agreed terms. Caribbean countries who ratified this convention include Antigua and Barbuda, Barbados, Cuba, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, St. Kitts & Nevis, Saint Lucia, St. Vincent& the Grenadines, Suriname, Trinidad and Tobago and the British Virgin Islands.


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6.5 Designing IPLC Measures

Policy Setting: A clear policy vision can be key to guiding the design of ABS measures that properly address IPLCs. As with other areas of concern, Parties have flexibility to define their own policy visions related to IPLCs while keeping in mind established rights of IPLCs in international and national law. Adhering to the Protocol: The Protocol’s provisions related to IPLCs are one its’ key innovations. Consequently, very little practical experience exists in the development of measures to implement these IPLC provisions since the adoption of the Protocol. In articles 5, 6 and 7 the Protocol outlines a set of core obligations that Parties must meet on issues related to IPLCs regarding access, benefit-sharing and compliance. Further to that, obligations on the design of measures to address traditional knowledge associated with genetic resources can be found in Article 12. Under the Protocol, Parties must:

• Clearly identify the scope of cases that trigger the application of domestic ABS measures by setting clear definitions and establishing legal rights of IPLCs where needed;

• Aim to, as far as is possible, not restrict the customary use and exchange of GR and associated traditional knowledge within and amongst IPLCs;

• Design measures to set up the core elements of ABS systems that implement the Protocol's obligations on IPLCs in Access, Benefit-sharing and Compliance, and;

• Support the effective implementation of the Protocol's requirements related to indigenous people and local communities by:

§ Establishing mechanisms to inform potential users of traditional knowledge associated

with genetic resources about their obligations § Building up institutional arrangements to engage IPLC’s in all stages of the ABS policy

and decision-making processes § Raising awareness on the importance of genetic resources and associated traditional

knowledge and related ABS issues § Supporting the capacity needs and priorities of IPLCs as identified by them,

emphasizing the capacity needs and priorities of women


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Identifying the Scope: The Protocol sets out two cases that trigger benefit-sharing obligations:

• Access to traditional knowledge associated with genetic resources that is held by IPLCs (Article 5.5), and;

• Access to genetic resources where IPLCs have the established right to grant access, in accordance with domestic legislation.

The Protocol does not provide a definition of “associated

traditional knowledge” or outline specific activities that constitute “utilisation” of such knowledge. It does however recognise the diversity of circumstances in which traditional knowledge associated with genetic resources is held or owned. As such, establishing an understanding of the scope and meaning of genetic resources and traditional knowledge that are based on the specific legal, social and cultural conditions of each country and their IPLCs is the first step. As previously noted, these definitions should be undertaken in collaboration with IPLCs within their jurisdictions.

A next consideration is to clarify the set of rights recognised at the domestic level that IPLCs hold over their genetic resources and associated TK. For genetic resources, the Protocol makes it clear that IPLC held rights to grant access depends on national legislation. The sources of these rights can often be found in legal frameworks related to land tenure and property rights. Relevant laws can include those on IPLC rights, land or territorial rights, water, biological diversity or wildlife issues, environmental and natural resources, customary laws, and community protocols and procedures. As such, a careful assessment of the current domestic legislation and regulations that may be relevant to IPLCs should be undertaken. For associated traditional knowledge, the Protocol recognises that IPLCs have the right to grant access to traditional knowledge that is held by them and to identify the rightful holders of traditional knowledge. It also recognises the diversity of circumstances in which such traditional knowledge can be held or owned by IPLCs and highlights the need to consider IPLC’s customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources.

Overarching Priority: IPLC Engagement

Remember, indigenous

peoples and local communities should be consulted along the entire process of design and implementation of ABS measures that will directly affect them. Information gathered from the communities, including through community protocols, will provide a better understanding of their specific interests and needs, leading to better-informed choices about the measures to take to fulfil the Protocol’s obligations in a country-tailored manner.


Questions to ask when defining scope from a national perspective?

• What is the nature of

traditional knowledge associated with genetic resources in your country?

• What are established legal

rights of IPLCs, in the national context, concerning genetic resources and associated traditional knowledge?


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To develop a proper understanding of these rights a comprehensive evaluation of both codified and non-codified law is needed. A good evaluation will examine:

• National Constitutions and national laws, policies and programmes pertaining to IPLCs, on issues such as the environment and wildlife, recognition of traditional land tenure and customary use of biological resources;

• International and regional human rights instruments and relevant jurisprudence;

• International instruments and processes relevant to IPLC issues, such as the United Nations Declaration on the Rights of Indigenous People, Convention No. 169 of the International Labour Organization (ILO), and Ad hoc Working Group on Article 8(j);

• Customary laws, practices, procedures and mechanisms governing decision-making within

IPLCs, including community protocols; and

• Consideration of the status of customary law in national legal frameworks.

Setting up Core Measures: A second step to designing ABS measures to address IPLC issues is to set up the core elements of such measures. This step entails setting out effective rules and procedures for the establishment of PIC and MAT with IPLCs, along with measures to ensure compliance with these requirements across States. In establishing PIC with IPLCs, Parties should consider:

• The obligation to set out criteria for obtaining PIC or approval and involvement of IPLCs for access to genetic resources, where applicable;

• The need to involve the concerned IPLCs in transboundary cooperation efforts that may be needed in cases when access is sought to genetic resources found in situ within the territory of more than one Party or, associated traditional knowledge is shared by one or more IPLC in several Parties;

• IPLC’s customary laws, community protocols, as well as their procedures with respect to

associated TK, in accordance with domestic law.

• The need to support the development by IPLCs, especially women within these communities, of community protocols related to ABS; and,

• That IPLCs themselves retain the right to identify the rightful holders of TK within their own

communities.

In terms of benefit-sharing, Parties should ensure that benefits are shared with IPLCs in a fair and equitable way, based on mutually agreed terms. In implementing this obligation, the Protocol calls on


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Parties to endeavor to support, as appropriate, the development of:

• Minimum requirements for mutually agreed terms; and • Model contractual clauses.

These tools should support the fair and equitable sharing of benefits arising from the utilisation of traditional knowledge associated with genetic resources; and be developed by IPLCs themselves, especially with the involvement of women within these communities.

In terms of compliance, the Protocol requires Parties to provide that users in their jurisdiction comply with ABS requirements related to IPLCs located in other jurisdictions. To do so, Parties must:

• Take measures to ensure that genetic resources and associated traditional knowledge utilised within their jurisdiction have been accessed in accordance with PIC, or the approval and involvement of IPLCs, and with MAT, as required by the domestic legislation of the other Party where the IPLCs are located;

• Address situations of non-compliance with the measures adopted; and,

• Cooperate in cases of alleged violations of domestic requirement as appropriate.

Compliance obligations are further discussed in detail in the learning module on Compliance.

Setting up Processes for PIC and MAT: In designing rules and procedures for access regimes relevant to IPLCs, countries have typically taken two approaches. The first is to regulate IPLC issues within an existing ABS framework. This promotes a coherent single approach to ABS activities in the country. The second approach is to regulate IPLCs through a sui generis regime. This serves to highlight the importance of traditional knowledge and makes clear linkages to policy areas beyond ABS. It also recognises the unique nature of traditional knowledge. Once the approach has been confirmed, specific procedures and requirements that users must meet to legally obtain PIC and establish MAT with IPLCS needs to be set up. The measures created should provide legal clarity on these processes.

Addressing transboundary and shared Traditional Knowledge: The rightful holders of traditional knowledge may be difficult to identify in jurisdictions with numerous IPLCs situated across


Questions to ask when pursuing implementation of PIC, MAT and

Compliance with IPLCs?

• What process should be used in obtaining PIC and establishing MAT with IPLCs?

• How to address access to

transboundary and/or shared TK?

• How to take into consideration IPLCs customary laws and procedures?

• How to support and promote community protocols?


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State borders, especially if they have migrated over time. The Protocol recognises these situations, noting in Article 11 that cases may arise in which:

• The same genetic resources are found in situ within the territory of more than one Party; or, • The same traditional knowledge associated with genetic resources is shared by one or more

IPLC in several Parties.

In these cases, Parties should endeavor to cooperate with the involvement of the communities concerned. ABS measures are needed that make clear who has the right to grant access and by what means, and how, to share benefits amongst beneficiaries. Several approaches can be taken, such as:

• Choosing to include inter-state cooperation on these issues within the mandate of a Parties CNA;

• Enacting an obligation to cooperate or take into consideration the interest of other countries;

• Establishing national funds to distribute benefits to multiple beneficiaries. A funding mechanism could also be considered for use in the case of shared traditional knowledge across multiple communities and States.

Considering Community Protocols: Community protocols are emerging instruments that are explicitly recognised in the text of the Nagoya Protocol as tools that could support the implementation of its provisions related to IPLCs. The Voluntary Guidelines on PIC and MAT adopted at the 13th Conference of Parties to the CBD offers guidance on how Parties can fulfill the obligation to support the development of community protocols, as required under Article 12 of the Nagoya Protocol. The guidelines also provide a definition of the term “community protocols” and offer a list of what these instruments may contain and issues they can be helpful in addressing. There is no single, one-size-fits-all model for community protocols, but rather, they may be developed for a variety of processes and contain different content. Overall, community protocols are potential tools that can allow IPLCs to contribute meaningfully to the setting of the rules, procedures and terms on ABS in relation to their genetic resources and associated traditional knowledge. Considering Customary Laws and Procedures: Customary laws refer to the mostly uncodified norms followed within, and developed by, IPLCs. The Protocol recognises the importance of these traditional or customary norms and the need for Parties to consider them in the design of ABS measures for regulating IPLC issues. Recognition of customary law and practices can be a key approach to ensuring that IPLCs have a significant opportunity to inform and influence the design of ABS measures that affect them and their livelihoods.


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How do Caribbean Common Law and Customary Laws address IPLC rights?

Throughout the modern history of the Caribbean, acknowledgement of the customs, laws and practices of indigenous people groups has been greatly ignored in mainstream politics and decision-making. With recent attention to the advancement of indigenous people around the world, and their right to self-determination, things are beginning to change.

Acknowledging the rights of indigenous people and providing them with benefits through ABS will go a long way in bringing about this much needed change in the Caribbean. The challenge however, is reconciling the Customary Laws of IPLCs with the Common Law system generally employed in the Caribbean. Challenges to incorporating Customary Law into mainstream practices include:

• Historical prejudice • Lack of historically verified customs and legal processes • Customs that can actually be verified are biased towards those identified from the date of

reception of the law during the colonial period • Possible incompatibility between customary law and common law

As a result of these challenges, in the Caribbean today many legal systems have taken a detached stance in their treatment of Customary Law where common law just won’t intervene in an indigenous matter, at least in relation to well-defined indigenous communities.64 This passive approach will not be helpful at all in addressing indigenous laws, customs and rights in new ABS measures which are yet to be created for the Caribbean. When it comes to property rights however, some advancements have been made. Under Caribbean Common Law, ‘Native Title’, or ‘Indigenous Title’, is now an accepted concept. This legal doctrine will provide important support for the representation of IPLCs in matters of Access and Benefit-Sharing. ‘Indigenous Title’ is a form of property title which is derived from a recognition of and respect for the customs of indigenous populations as they relate to land. It is a common law doctrine that the land rights of indigenous people continue after the assumption of control under settler colonialism based on customary occupation. Characteristics of Indigenous Title under Common Law include:

• Having its origins in customs of land use and occupation • Acknowledging privileges to free-standing rights to fish, hunt, gather, use other resources and

have access to the identified lands • Is collective in nature, to be held and enjoyed by the particular indigenous population as a

64Commonwealth Caribbean Law and Legal Systems. Rose-Marie Belle Antoine. Routledge, 2008. p. 190. Retrieved from: https://books.google.ca/books?id=oxBSaPgP6b8C&pg=PA190&lpg=PA190&dq=caribbean+laws+indigenous+peoples&source=bl&ots=4PlYogtvUD&sig=n1gtMNOYEZy-tqesv0P0dWH1OwY&hl=en&sa=X&ved=0ahUKEwjZlM_6qdDXAhWi5oMKHcOxCj4Q6AEIVTAH#v=onepage&q=caribbean%20laws%20indigenous%20peoples&f=false. December 13, 2017.


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whole • Can be formed out of customs that are of a

cultural, and even spiritual nature • May be protected under a statute or treaty, or

simply exist independent of any legislative instruments and still be judicially acknowledged65

What examples of Indigenous Title exist in the Caribbean?

The Amerindian Act of Guyana provides for the recognition and protection of the rights of Amerindian Villages and Communities, and the promotion of good governance within Amerindian Villages and Communities. Section 8 of the Act is an example of the formal granting of Indigenous Title. It states:

“All the rights, titles and interest of the State in and over the lands situated within the boundaries of any district, area or village shall, without further assurance, be deemed to be transferred to and vested in the respective (Amerindian) Council for, and on behalf of, the Amerindian Community.”

Today, most indigenous communities in Guyana have legal title to their lands, holding approximately 13% of national territory. The majority of the land is comprised of tropical or savannah eco-zones, making it unsuitable for sustainable agriculture however, it does include almost 4 million acres of forested land.

Though a good model to examine, the original Amerindian Act and the revised Act of 2006 still have some shortfalls according to many NGOs which support Indigenous People, and the groups themselves.

Their main issues of concern include:

• A lack of autonomy given to community

governing institutions • The degree of power held by the Minister of Amerindian Affairs

65Ibid, p192.


There is growing institutional support for IPLCs in the Caribbean. These organizations can be accessed as resources by both IPLCs and those looking to work with IPLCs in collaborating on new ABS measures for the region. Caribbean examples of some of these institutions include: • Indigenous Peoples Regional

Competent Authority (IPRCA) of the Association of Caribbean States (ACS)

• Fund for the Development of Indigenous Peoples of Latin America and the Caribbean (FILAC)

• Network of Indigenous and Tribal Peoples of the Caribbean Region

• The Caribbean Organization of Indigenous Peoples

• Caribbean Heritage Network • Caribbean Amerindian

Development Organization • National Toshao Council • Indigenous People

(Bethechilokono) of IOUANALAO-Saint Lucia Governing Council (BGC)

• Indigenous Peoples’ Commission • National Amerindian Council • The Santa Rosa First Peoples

Community of Trinidad and Tobago

• Trinidad and Tobago Organization of Indigenous People

• Caribbean Rastafari Organization


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• The inadequacy of land and resource rights • The use of the term ‘Amerindian’ rather than

‘Indigenous’

6.6 Supporting IPLCs to Engage in ABS

As previously mentioned, Parties are required to support IPLCs inactively and meaningfully engaging in ABS activities. These requirements go beyond establishing rights of IPLCs and developing measures on access and benefit-sharing, to also ensuring that these rights are respected on the ground.

The Protocol outlines a set of measures to support effective implementation of its requirements related to IPLCs, including:

• Establishing mechanisms to inform potential users of traditional knowledge associated with genetic resources, about their obligations, including through the ABS Clearing-House (Article 12.2);

• Establishing institutions and institutional arrangements to support and engage IPLCs and their interests;

• Raising the awareness on the importance of

genetic resources and associated traditional knowledge, and related ABS issues amongst IPLCs (Article 21);

• Supporting the capacity needs and priorities of IPLCs, as identified by them, emphasizing the

capacity needs and priorities of women (Article 22.3). Inform potential users of obligations: Another innovation of the Protocol is the creation of the global Access and Benefit-sharing Clearing House (ABS-CH). This mechanism was designed to act as a global platform that allows countries to share information on procedures for accessing genetic resources and monitoring the utilisation of the resources along the value chain. It enhances the legal certainty and transparency sought by both providers and users. Parties are primarily responsible for submitting information to the ABS Clearing-House, particularly about their legislative measures, key ABS institutions, and any permits issued for their constitution as


ABS-CH supports the effective implementation of ABS related to

IPLCs by providing a central information source where:

• Parties can make available

information on procedures and requirements that potential users must fulfill to access genetic resources and associated traditional knowledge of IPLCS

• IPLCs can submit information

directly to the ABS-CH as “reference records” such as, Community Protocols and Procedures and Customary Laws, or model contract clauses developed by IPLCs.

• General information can be made available on Capacity-building or awareness raising materials that can be useful to help IPLCs engage meaningfully with ABS. These materials can include documents, videos or audio recordings, some of which are available in indigenous and local languages.


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internationally recognised certificates of compliance.

Establish Institutions to Support IPLCs: The Nagoya Protocol, in several of its Articles, outlines a series of obligations for Parties to support the effective participation of IPLCs in ABS activities. Parties can choose to assign the functions to implement the obligations to existing institutions or, establish new and specialized bodies to undertake them. Core Functions related to IPLC support would include:

• Setting out criteria and/or processes for obtaining the prior informed consent of IPLCs for access to genetic resources;

• Cooperating, as appropriate, with the

involvement of IPLCs concerned in instances where the same genetic resources are found in situ within the territory of more than one Party;

• Cooperating, as appropriate, with the

involvement of IPLCs where the same TK associated with genetic resources is shared by one or more IPLCs in several Parties;

• Taking into consideration IPLCs’ customary laws, community protocols and procedures, as applicable, with respect to TK associated with genetic resources in implementing the Protocol;

• Establishing mechanisms, with the effective participation of the IPLCs concerned, to inform

potential users of TK associated with genetic resources;

• Issuing written evidence that access requirements have been met, and advising on applicable procedures and requirements for obtaining PIC and entering into MAT;

• Ensuring compliance with the domestic ABS legislation or regulatory requirements of other

Parties; and


How to Build Awareness About and Within IPLCs:

• Inclusion of IPLCs in the

development of a communications and awareness-raising strategy.

• Development of tailored

awareness strategies to reach IPLCS, including translation of materials into indigenous languages.

• Organisation of IPLC meetings, education and training.

• Establishment and maintenance of a helpdesk for IPLCs.

• Promotion of voluntary codes of conduct, guidelines and best practices and/or standards in consultation with IPLCs.

• Involvement of IPLCs in the implementation of the Protocol.

• Awareness-raising on community protocols and procedures of IPLCs.


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• Encouraging providers and users of genetic resources and/or TK associated with genetic

resources to include provisions in MAT to cover, where appropriate, dispute resolution. Support Functions related to IPLCs would include:

• Supporting, as appropriate, the development by IPLCs, including women within these communities, of community protocols, minimum requirements for MAT, and model contractual clauses for benefit-sharing arising from the utilisation of TK associated with genetic resources;

• Raising awareness of the importance of genetic resources and TK associated with genetic resources; and,

• Identifying and supporting the capacity needs and priorities of IPLCs on ABS, as identified by

them, and emphasizing those of women. Specific assignments could include:

• Competent National Authorities to guarantee that access requirements have been met by providing written evidence.

• Competent National Authorities, or other institutions already working on IPLCs issues, to act as intermediaries to ensure fairness and equity in benefit-sharing and effective implementation of ABS measures and negotiated MAT.

• Parties to set up committees or commissions, with representative membership of IPLCs and

other actors, to provide technical guidance to inform decision-making, or perform specialized tasks.

• Relevant competent authorities of IPLCs could also be assigned ABS functions and be formally

recognised.

6.7 The Importance of Including IPLCs in the Caribbean ABS Process

In May of 2016, at the University of West Indies (UWI) conference of indigenous people, the indigenous people of the Caribbean called for representation at national and regional political tables in order to safeguard their rights to ancestral lands and resources.

Two proposals coming out of the conference included:


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• Investigating the use of New Zealand’s model of representation for its indigenous Maori people

which reserves seats for the indigenous group in parliament and where each electoral district is covered by both a general and Maori electorate.

• Creation of a formal consultative process which gives a voice to indigenous people’s rights

when there are discussions about exploitation of indigenous lands

As pointed out at the conference by a justice from the Caribbean Court of Justice (CCJ), Adrian Saunders, the regions’ indigenous people have been affected “by centuries of exclusion, denial, discrimination and disproportionately high poverty rates.”

This reflected desire by Indigenous People to be actively and effectively involved in the political process, along with statements by forum participants, reinforce the importance of clearly and intentionally recognizing and involving IPLCs in the ABS process in the Caribbean. Finally, many countries also have local communities that are not mentioned specifically in this training. This is largely because they are not identified, officially, and they are not given legal status. However, it is important to ensure that ABS legislation still acknowledges these groups and it is the responsibility of ABS advocates in each country to make sure that they are properly identified and included.


6.8.1 Case Studies 1. Wai-Wai People: Konashen Community Owned Conservation Area :

https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/wiki/Wai-Wai_people.html

2. Kanuku Mountains Protected Area – Management Plant 2015-2019, Protected Areas Commission (PAC), Guyana, 2015http://dev.ultimate-dimensions.net/nredev/wp-content/uploads/2016/05/Protected-Area-Mgmt-Plan-Kanuku-Mountains.pdf

6.8.2 Readings

1. IPLP Wins Landmark Human Rights Case in Belize, The University of Arizona, James E. Rogers College of Law, April 2015: https://law.arizona.edu/iplp-wins-landmark-human-rights-case-belize

2. Caribbean Indigenous People want “seat at the table”, Caribbean 360, May 2016: http://www.caribbean360.com/news/caribbean-indigenous-people-want-seat-table

3. The Nagoya Protocol and Indigenous People, The International Indigenous Policy Journal, 2015: http://www.abs-initiative.info/fileadmin//media/Events/2015/30_November-3_December_2015_Paramaribo_Suriname/Report-Workshop-MAT-CARICOM_ABS_Initiative-201511.pdf

4. Protecting the Traditions of the Maroons and Rastafari: An Analysis of the Adequacy of the


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Intellectual Property Laws of Jamaica and Proposals for Reform, SCRIPTed, Marcus Goffe, 2009:https://script-ed.org/wp-content/uploads/2016/07/6-3-Goffe.pdf

5. Bio-cultural Community Protocols, Natural Justice: Lawyers for Communities and the Environment: http://naturaljustice.org/wp-content/uploads/2013/08/Brief-intro-BCP.pdf

6.8.3 Videos

1. The Indigenous People of the Caribbean, CAHM, Episode 3, Lyndsay Elizabeth, June 2017: https://www.youtube.com/watch?v=PeTa6UjXjX0

2. FAO, Indigenous People and the Free, Prior and Informed Consent (FPIC), Food and Agriculture Organization of the United Nations, May 2017: https://www.youtube.com/watch?v=yvsf0wfMcwo


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7.0 Traditional Knowledge (TK) & Intellectual Property Rights (IPR)

7.1 Course Objectives

a) Comprehend the obligations imposed by the Nagoya Protocol in regard to traditional knowledge; b) Understand the characteristics, value, and use of traditional knowledge; c) Identify the approaches and strategies that Caribbean nations can undertake to protect traditional

knowledge held by indigenous people and local communities and to prevent the acquisition of patents for inventions that utilized genetic resources and/or associated traditional knowledge without the consent of the customary holders;

d) Recognise the challenges and limitations of protecting traditional knowledge through intellectual property regimes;

e) Develop a solid understanding on how to design national and regional strategies to protect TK; and f) Assess opportunities for regional collaboration in the area of traditional knowledge protection.

7.2 Key Information

What is traditional knowledge? Traditional Knowledge refers to the knowledge, know-how, skills, innovations and practices of IPLCs around the world.66 Developed, sustained, and passed on from generation to generation through oral tradition and first-hand observation, it is continuously adapted to the local culture and environment, and often forms part of the community's cultural and spiritual identity.

The Value and Use of TK

In 1960, during a speech at United Nations Educational, Scientific and Cultural Organization (UNESCO), the Malian writer Amadou Hampâté Bâ stated “En Afrique, quand un vieillard traditionaliste meurt, c’est une bibliothèque qui brûle” (when an old traditional African dies, a whole library burns to the ground).Over the years, there has been increasing appreciation and recognition of the value of TK. This knowledge is valuable not only to those communities and individuals who depend on it in their daily lives, but to modern industry and agricultural systems as well. Many widely used products, such as plant-based medicines, health products, cosmetics, pesticides, fertilizers, amongst many others, are derived from TK. TK, most importantly, can make significant contributions to environmental protection and sustainable development. Some traditional knowledge practices have been proven to enhance biodiversity at the local level and aid in maintaining healthy and balanced ecosystems. TK can be used to directly inform strategies and policies to tackle climate change, biodiversity loss, land degradation and desertification, pollution and food insecurity, amongst others.

66 World Intellectual Property Organization. "Traditional Knowledge." Accessed from: http://www.wipo.int/tk/en/tk/


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As noted in the module in IPLCs, TK can be found in a wide variety of contexts and, unlike the western custom of disseminating knowledge through publication, TK takes more traditional forms of dissemination, for example through stories, songs, folkloric expressions, proverbs, cultural values, beliefs, rituals, community laws, local language, and agricultural practices, including the development of plant species and animal breeds.67 TK is often considered collective to the community, not private to one individual or small group. It is important to recognize, however, that in most traditional societies there is secret traditional knowledge which is only known to certain individuals or kept within certain groups. In these instances, a secret code or language is used to maintain its secrecy.68 Often, TK systems contain a rich understanding of plant, crop and tree species, medicines, animal breeds, and local ecological and biological resources. They may also include useful technologies and adaptations to local environments. TK is not static; it is often in current use; It is sophisticated and adaptive; it evolves and responds to changes in the physical and social environment; it can be as contemporary and advanced as scientific knowledge.

7.3 Women and traditional knowledge

TK that is held by women needs special consideration for two fundamental reasons:69

1. Indigenous women, as the primary harvesters of medicinal plants, seed stocks and small game, are the keepers of knowledge about a significant sphere of biodiversity in their own right, and as such, are the only ones able to identify the environmental indicators of ecological health in those spheres.

2. Women often share with men the responsibility for stewardship of values in their society. They feel a keen responsibility to future generations for action undertaken today that affects the world that their descendants will inherit. It is women, for the most part, who transmit to the next generation these values as part of their stewardship role.

There are several characteristics of women's TK that make it important for solving some of the complex environmental issues faced by humanity. 70/71

67Fulvio, Mazzocchi (2006). "Western Science and Traditional Knowledge" EMBO Reports 7, 463-466. 68 International Institute for Environment and Development (IIED). (2010). “Protecting Community Rights over Traditional Knowledge: Implications for Customary Laws and Practice – Key Findings and Recommendations 2005 – 2009.” London, UK. Retrieved from: http://pubs.iied.org/pdfs/14591IIED.pdf 69 Rebecca L. Oxford et al. (2011). " Transformative Eco-Education for Human and Planetary Survival (Transforming Education for the Future)." Information Age Publishing. 70 Shiva, V. (1992). “Women’s Indigenous Knowledge and Biodiversity Conservation.” India International Centre Quarterly 19 (2), p. 205-214. 71 Alaska Native Science Commission. "Traditional Knowledge Systems in the Arctic." Retrieved from: http://www.nativescience.org/issues/tk.htm


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1. Holistic knowledge: Nature is a complex interconnected system that contains a staggering variety of life. To know it involves understanding the relationships within the parts and within the whole. Modern reductionist science breaks down the system into its parts, studies them, and never understands how they relate to the whole. Women's TK is based on knowing the whole.

2. Experimental knowledge: Women's TK has evolved through practice and experience. It is grounded and tested through life. Women's expertise differs from the abstract and disconnected knowledge of today's experts.

3. Knowledge for the common good: Women's TK is aimed at maximizing the common good, not private gain. Women apply their knowledge to attack the root causes of problems, rather than symptoms. Their motivation is to maximize happiness, health, well-being, and unity, not private profit.

4. Knowledge as commons: Women's TK is a shared heritage. It is collective and cumulative, not private property covered by patents and intellectual property rights.

5. Diversity as a way of knowing: Women's TK is based on diversity, pluralism, and multiplicity.

6. The real-life sciences: Women's TK is knowledge for life and from life; not knowledge that is destructive, short-term or non-sustainable.

7.4 Why protect traditional knowledge?

Traditional people from around the world, and their knowledge, are threatened with destruction as a result of many interrelated factors. These include the destruction of ecosystems in search for expanded agricultural lands, deforestation associated with the harvesting of timber and other forest products, and appropriation of TK with no rewards to the holders of that knowledge. The appropriation of TK without reward for its holders does not necessarily destroy it. In most circumstances, traditional communities lack the means and the resources to develop, commercialize products, and compete in the market with wealthy corporations. While these communities can keep the TK for their use, countries must protect and guarantee their right to do so and refrain from forcing them to use the products and/or inventions developed by those who appropriated their TK in the first place. There are plausible reasons to protect TK include. These include:72

To improve the lives of TK holders and communities: Great as its wider economic potential may be, TK is valuable first and foremost to indigenous and local communities that depend on TK for their

72 Graham Dutfield (2006). "Protecting Traditional: Knowledge Pathways to the Future." International Centre for Trade and Sustainable Development. Retrieved from: http://www.iprsonline.org/unctadictsd/docs/Graham%20final.pdf


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health, livelihoods and general wellbeing. Thus, a TK regime that encourages the conservation and continued use of TK relating to health and food production could potentially improve the lives of millions of people.

To benefit national economies: Protecting TK has the potential to improve the performance of many developing country economies by enabling greater commercial use of their biological wealth and increasing exports of TK-related products.

To prevent "bio-piracy": “Bio-piracy” has emerged as a term to describe the ways that researchers and corporations from the developed world, and also increasingly from developing countries, misappropriate, or free ride on, the genetic resources, TK and technologies of IPLCs. It refers, in other words, to the use and exploitation, for commercial gain, of biological resources and related knowledge, without the consent of their customary holders and without providing adequate reward to the communities that have nurtured the resources and developed the knowledge over generations.

To protect cultural heritage: The loss of TK is not only relevant to the destruction of biodiversity and ecosystems. As traditional societies transform into modern societies, TK losses its value, relevance and is often forgotten. TK, however, as other cultural heritage, can give people a connection to certain social values, beliefs, religions, and customs. It allows them to identify with others of similar mindsets and backgrounds. It can provide an automatic sense of unity and belonging within a group and allows for a better understanding of history.

7.5 Objections for protecting traditional knowledge

Objections for protecting TK are not necessarily motivated by bad faith but rather deserve a considered response. There are three commonly expressed objections:

1. TK and the public domain:73To some critics, the creation of a TK regime would represent the removal from the public domain of a very large body of practical knowledge about the biosphere including solutions to health, agricultural and environmental problems affecting many people. Since the existence of a large public domain is good for everybody such removal, it is argued, would be a bad thing.

One may counter such a view in the following grounds:

a. Many traditional societies and communities have their own custom-based regimes to regulate access and use of knowledge. In spite of this, there is a tendency to treat such rules with disrespect or to ignore them as if they do not exist by the fact that they often differ from western intellectual property formulations. Accordingly, traditional knowledge must be protected since it is not part of the public domain.

73 Ibid.


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b. Demands for TK protection are not necessarily seeking the creation of new rights but the wider recognition and enforceability of those which already exist, basically those custom-based knowledge regulatory regimes referred to above. In this sense, TK protection regime would merely translate and codify existing rights, thus making them enforceable in national and international courts.

c. Not everything in the public domain should be in the public domain. There is no doubt that a tremendous amount of TK has been disclosed and disseminated over the years without the authorisation of the holders.

2. "There's no such thing as biopiracy":74To some critics, concerns about biopiracy have been exaggerated. In their view, most of the evidence put forward to justify concerns about the misappropriation of genetic resources and TK is anecdotal in nature.

In order or delegitimize this type of claims that only misinform and create confusion, it is necessary to achieve a consensus and clearly define what 'biopiracy' is. Furthermore, steps must be taken to ensure that cases of misappropriation of TK are documented in reliable sources.

3. The disincentive effect:75Some representatives of industries that conduct research and product development from genetic resources claim that imposing complex and stringent TK requirements would discourage those activities.

In assessing the validity of these arguments, it is imperative to take into account that genetic resources of rich biodiversity regions, such as the Caribbean, offer endless opportunities to companies that operate in several sectors. Therefore, it can be argued that these companies will not likely be discouraged or abandon the possibility of making billions of dollars just by the fact that they have an obligation to negotiate access to the genetic resources and TK that they need.

7.6 International approaches to traditional knowledge protection

In recent years, IPLCs, NGOs, and governments, mainly in developing countries, have demanded protection for TK systems through the establishment of “sui generis” systems. There is an increasing recognition, as discussed below, that Intellectual Property Rights (IPRs) are inadequate and insufficient to prevent unauthorized or inappropriate uses by third parties. In 2000, member countries of the World Intellectual Property Organization (WIPO) established an Intergovernmental Committee on IP and Genetic Resources, TK and Folklore to undertake negotiations with the objective of reaching agreement on the text(s) of an international legal instrument(s) which will

74 Jin Chen (2006). "There's no Such Thing as Biopiracy... and It's a Good Thing Too." McGeorge Law Review 37. 75 Prashant Reddy et al. (2015). " Protecting Traditional Knowledge Related to Biological Resources: Is Scientific Research Going to Become More Bureaucratized." Cold Spring Harb Perspect Med 5(10), 1-10.


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ensure effective protection of TK, traditional cultural expressions, and genetic resources. The negotiations continue to this day.

What are IPRs?

The WIPO defines IPRs as creations of the mind: inventions, literary and artistic works, symbols, names, and images used in commerce. IPRs allow creators of patents, trademarks or copyrighted

work to benefit from their own work or investment in a creation without worrying about competition for a specific period of time(generally 20 years). Courts can enforce IPRs through civil lawsuits.76

Patents, trademarks, and copyrights are different types of IPRs. A patent is an exclusive right

granted for an invention – a product or process that provides a new way of doing something, or that offers a new technical solution to a problem. Trademarks protect words, phrases, designs, or a

combination of them, as used by one individual or company to identify its products and services from those of a competitor. Copyrights protect original works of authorship, such as website content,

books, and music. The protection of TK has taken two approaches: defensive and positive.

Defensive protection is a form of protection that aims to prevent the acquisition of IPRs over TK by parties other than the holders of such knowledge through the establishment of legislative or regulatory measures.77 According to the WIPO, defensive protection can be valuable and effective in blocking illegitimate IPR, but it does not stop others from actively using or exploiting TK.78 Therefore, they need to be complemented with other measures.

Defensive Protection Strategy

TK data banks This strategy consists of creating a digital system (i.e. bank) to document, classify, and preserve TK. In the first instance, such databases, which are not accessible to the public, may enable patent officers to quickly examine if the proposed invention is completely original, or whether it was created utilizing existing TK.79 TK data banks can also serve as an effective mechanism for the preservation of TK. Databases of TK can be a useful measure, especially for preventing bad IP grants, but they are costly to implement and bear their own set of risks if they are not appropriately secured. There is no guarantee, for instance, that patent officers will not disclose valuable information to third parties.

76 World Intellectual Property Organization. "What is Intellectual Property." Retrieved from: http://www.wipo.int/about-ip/en/

77 Graham Dutfield (2003). "Protecting Traditional Knowledge and Folklore: A review of progress in diplomacy and policy formulation." International Centre for Trade and Sustainable Development. Retrieved from: http://www.iprsonline.org/resources/docs/Dutfield%20-%20Protecting%20TK%20and%20Folklore%20-%20Blue%201.pdf 78 World Intellectual Property Organization. "Intellectual Property and Traditional Knowledge." Retrieved from: http://www.wipo.int/edocs/pubdocs/en/tk/920/wipo_pub_920.pdf 79 N. V. Kumar (2012). " Protection of Traditional Knowledge: International and National Initiatives and Possible ways ahead." Retrieved from: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2012724


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Disclosure of origin requirements

This form of protection refers to domestic legislation that requires voluntary or mandatory disclosure of genetic resources or TK that is incorporated into the invention being patented.80 In countries with mandatory disclosure requirements, the applicant for patent is asked to provide details of the country where the TK associated with the invention was obtained. The applicant is required to provide evidence demonstrating compliance with all requirements and procedures established by that country. In some countries, any omission of information or insufficient evidence results in the rejection of the application. In other countries, however, this is not the case. Since international patent law does not recognize lack of disclosure as reason to reject an application, many countries do not foresee any consequences in national patent law. Lack of or erroneous disclosure might have consequences under civil law, but the patent application remains untouched. One of the limitations of this strategy is the lack of effective documentation. Even though the origin of the genetic resource and/or TK is disclosed, it is difficult for patent officer to determine whether the invention being patented constitutes a prior art or not, due to the non-systemic recording of TK.

Positive protection, on the other hand, refers to the rights that empower IPLCs to protect and promote their TK, control its uses, and benefit from its commercial exploitation. 81 Some uses of TK can be protected through the existing IPRs, and a number of countries have also developed specific legislation to address the positive protection of TK.

However, any specific protection afforded under national law may not hold for other countries. This is one of the main reasons why IPLCs, non-governmental organizations, and governments in developing countries are pressing for a fair and effective international legal instrument.

Asserting property rights over TK is insufficient to prevent abuses when so much of that knowledge has fallen into the public domain and can no longer be controlled by the original TK holders. Consequently, positive approaches can be complemented with defensive protection strategies.

Positive Protection Strategy

80 Johanna Gibson (2005). "Community Resource: Intellectual Property, International Trade, and Protection of Traditional Knowledge." Routledge. 81Dutfield (2006). "Protecting Traditional: Knowledge Pathways to the Future."


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Sui generis protection systems

The establishment of “sui generis” systems is increasingly used as a TK positive protection strategy. This type of protection consists of a set of nationally recognized laws and ways of extending IPRs for the holders of genetic resources and TK.82

• A country, for example, could protect a community's genetic resources and TK by granting patents, trade secrets, copyrights, farmers' and breeders' rights, or another creative form not currently established in the IP regime for an indefinite period.

• A sui generis system may adopt measures to nullify patents of inventions that illegitimately used the genetic resources and/or TK of a given community.

• A sui generis system legally acknowledges and protects TK related to the use of genetic resources even when it is not officially documented, but instead exists in the form of oral information and historic use. In these cases, the government's IP office needs to know about the knowledge or practice in order to enforce protection. It is important, therefore, for IPLC to establish a working relation with the IP office and to collaboratively develop measures to protect the valuable information provided.

• A sui generis system may impose an obligation on users to obtain PIC and to negotiate ABS agreements with the custodians of genetic resources and associated TK.

Sui generis systems, in short, can be designed and customized to address particular needs and circumstances.

In the Caribbean, Cuba and Guyana are the only two countries that have taken action to protect TK associated with biodiversity. While Cuba has passed legislation to require PIC and mandatory disclosure of origin, Guyana has an ABS national policy that establishes requirements for PIC, MAT, and the fair and equitable sharing of benefits. Other Caribbean nations, including Antigua and Barbuda, Barbados, Belize, Dominica and Jamaica, have established IPR regimes that provide protections for folklore and other forms of traditional cultural expressions but that fail to incorporate TK regarding scientific subject matters. Jamaica has been particularly active in the area of copyright law due to its status as the world’s recognised originator and primary producer of reggae and dancehall music.83

Challenges and limitations of intellectual property regimes in protecting traditional knowledge

The difficulty experienced by IPLCs in trying to protect their TK under IPR law stems mainly from its failure to satisfy the requirements for protection under existing IP law. The nature and characteristics of

82 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (2002). Elements of a Sui Generis System for the Protection of Traditional Knowledge. World Intellectual Property Organization. Retrieved from: http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_3/wipo_grtkf_ic_3_8.pdf

83 Darryl C. Wilson (2013). "The Caribbean Intellectual Property Office (CARIPO): New, Useful, and Necessary." Michigan State International Law Review 19(3), 551-558.


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TK make it incompatible with IP regimes. These are the main barriers:84

a) IP regimes represent a profit based, proprietary system protecting the individual. TK, in contrast, is collectively and communally owned. It is not part of an entrepreneurial system. For many traditional communities, TK is a means of developing and maintaining group identity and survival, rather than promoting individual economic gain.

b) Under IP law, IP must be new, original, innovative, or distinctive to qualify for protection. These requirements make it hard for TK to obtain IP protection since this form of knowledge, as previously discussed, is passed down through generations.

c) IP regimes require full disclosure to stimulate "innovation." TK, however, is a community held

resource that can only be disclosed on community terms.

d) IP laws grant protection on a first-to-file basis. This is problematic when the invention is based on TK that was stolen, misused, or misappropriated.

e) IP regimes are "component based," meaning that they protect individual pieces or inventions

within a knowledge system. This is problematic for the protection of TK because it is holistic and represents entire knowledge systems, epistemologies, and paradigms.

f) IP systems grant protection to tangible inventions or written/recorded intellectual ideas. TK is not

necessarily tangible, written, or recorded.

g) IP laws protect "static" knowledge, meaning that protection extends to an unchangeable piece of knowledge or invention, with new knowledge or inventions requiring new protection. This is problematic because TK is a constantly evolving body of knowledge.

h) Under IP regimes, protection is granted for a limited period. The problem with this is that TK is

perpetually owned by the community.

i) Present IPR regimes favour multinational and other non-indigenous interests. The prohibitive costs of registering and defending a patent, or other IPR, effectively, limits the ability of the vast majority of IPLCs to access and benefit from the regime.

7.7 Designing national and regional strategies to protect traditional knowledge

National laws are currently the prime mechanism for achieving protection of TK. While there may be several approaches for TK protection, developing an IP protection strategy that reflects the diversity of TK and its social context requires the following key components:85

84ToninaSimeone (2004). "Indigenous Traditional Knowledge and Intellectual Property Rights." Government of Canada. Retrieved from: https://lop.parl.ca/content/LOP/ResearchPublications/prb0338-e.pdf 85 World Intellectual Property Organization (2016). "Developing a National Strategy on Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions." Retrieved from: http://www.wipo.int/edocs/pubdocs/en/wipo_pub_tk_3.pdf


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1. Policy Initiatives

A first step towards policy development is to have a clear understanding of the IP interests of the holders of TK. It is imperative to determine what forms of TK exist and which TK needs e legal protection.As part of this analysis, countries must assess whether TK protection is needed at all and whether the costs of doing this can be justified. Countries may find that there is no need to protect TK or that TK holders are not interested in doing so. The next step is to set out general objectives their protection. A decision on the objectives will assist in the design of legal mechanisms and in assessing needs for capacity building.

2. Legislative Initiatives

When considering legislative options for the IP protection of TK, it is first necessary to examine the available legal and policy options under conventional IP systems, and assess whether existing IPRs can be useful for the protection of TK. If there are gaps in existing national legislation, it may be possible to fill them by adapting the existing IP framework. In cases where adapting existing IPRs may not be considered sufficient to cater for the holistic and unique character and nature of TK, a decision may be taken to protect TK through sui generis systems. When considering a sui generis system, it is imperative to identify the subject matter to be protected and clarify what the TK is to be protected against. This includes defining what forms of behaviour or activities should be considered unacceptable or illegal. Other issues to consider include the formalities to be required (such as registration), the sanctions and penalties that should apply, the exceptions and limitations attached to the rights, the duration of protection, the enforcement of rights and dispute resolution mechanisms, and the protection of foreign beneficiaries.

3. Infrastructure Inventories, databases and other information systems can form part of the infrastructure that complements and supports policies and legal systems. Over the past decades, initiatives to document TK have taken place all over the world (e.g. India's TK data bank), sometimes in conjunction with the legal protection of TK. While documentation does not in itself ensure legal protection of TK, inventories and databases may nevertheless create rights, whether these are to restrain use by third parties or to be used by the holders themselves to derive economic benefits from their TK.

4. Practical tools and steps

Practical tools such as, contracts, guidelines and protocols, and practical steps such as, community consultations, capacity-building and awareness-raising activities, are also valuable, if not necessary, to support the overall policy objectives and complement the development and implementation of legal measures.


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Opportunities for regional collaboration

The fact that Caribbean nations, with the exception of Cuba and Guyana, have not taken meaningful actions to protect TK associated with genetic resources, offers an opportunity to develop and implement a regional strategy. However, countries must conduct a careful examination and assessment on whether TK does in fact need to be protected not only at domestic but at the regional the regional level as well. Furthermore, it is imperative to answer questions such as: what benefits can be achieved by taking a collaborative approach? Which countries and stakeholders are willing to participate in the process? How can countries justify the costs and actions to protect TK? Which parties would be benefited, and which ones would be disadvantaged? There are many other questions that Caribbean countries must consider prior to taking any concrete action.

The African Union and the Andean Community have understood the value of cooperation and introduced regional laws to protect TK associated to genetic resources. These laws promote common standards to ensure that no country in the region becomes a haven for bio-piracy.


7.8.1 Case Studies 1. Traditional Knowledge Digital Library.

http://www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng 2. WIPO (2011). “Protecting India’s Traditional Knowledge.”

http://www.wipo.int/wipo_magazine/en/2011/03/article_0002.html 3. Alvarez, R. G. (2007), “Intellectual Property and the Protection of Traditional Knowledge,

Genetic Resources and Folklore: The Peruvian Experience.” University of Heidelberg Law and the University of Chile. http://www.mpil.de/files/pdf3/mpunyb_14_thesis_rosa_12.pdf

7.8.2 Readings

1. WIPO. Traditional Knowledge and Intellectual Property – Background

Brief..http://www.wipo.int/pressroom/en/briefs/tk_ip.html 2. Reddy, P. and Lackshmikumaran, M. (2015). “Protecting Traditional knowledge Related to

Biological Resources: Is Scientific Research Going to Become More Bureaucratized? Cold Spring HarbPerspect Med 5 (10): a020974. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4588132/

3. Phillips, F.-K., (2016). “Intellectual Property Rights in Traditional Knowledge: Enabler of Sustainable Development. “ Utrecht Journal of International and European Law. 32(83), pp.1–18. https://utrechtjournal.org/article/10.5334/ujiel.283/


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4. Hadi, S. (2016), “Putting Traditional Knowledge into the Intellectual Property System.” University of Pennsylvania Journal of International Law. http://pennjil.com/putting-traditional-knowledge-into-the-intellectual-property-system/

5. Intellectual Property Watch (2015). “No need of IPRs for Protecting Traditional Knowledge.” https://www.ip-watch.org/2015/09/03/no-need-of-ipr-route-for-protecting-traditional-knowledge/

7.8.3 Videos

1. Massai Indigenous Knowledge, Conservation International, September 2017: https://www.youtube.com/watch?v=MdxeoIlvHTQ

2. The importance of indigenous rights and knowledge in conservation, International Union for Conservation of Nature, April 2017: https://www.youtube.com/watch?v=agQDKkueT-c

3. Traditional knowledge, Genetic Resources and Folklore, IPO Trinbago, September 2013: https://www.youtube.com/watch?v=h0Myk3KGJis

4. The Nagoya Protocol: Opening doors for Caribbean people, International Union for Conservation of Nature Mesoamerica, June 2013: https://www.youtube.com/watch?v=-GFeU7UuW_0


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8.0 Legal Reform 8.1 Course Objectives

• Identify and understand the different mechanisms and measures that countries can adopt to operationalize the requirements of the Nagoya Protocol;

• Recognise the main principles and steps to undertake ABS legal reform processes; • Comprehend the imitations, risks, advantages, and opportunities of the different types of regulatory

measures available to governments; • Develop a general understanding of the law-making process in countries of the Caribbean • Learn how to select appropriate regulatory measures based on the specific needs, circumstances,

and characteristics of a particular country; and • Explore ideas to effectively carry out ABS legal reform processes and to monitor and evaluate the

impacts of the impacts of the adopted measures.

8.2 Key Information

The Nagoya Protocol calls for Parties to develop legislative, policy, and/or administrative measures to operationalize its requirements at the domestic level. The Protocol’s text sets a framework with core requirements and additional guidance to inform the design of domestic ABS measures. Within these parameters, Parties have significant flexibility and latitude to develop measures that suit their unique contexts. In spite of this flexibility however, certain core elements are found in most ABS measures. These include:

• Provisions on the scope of application of the law • The legal status of genetic resources and

associated traditional knowledge • Designation of institutional arrangements to

administer the ABS system • Procedures to obtain genetic resources

(permitting process, prior and informed consent (PIC) requirements, conditions for mutually agreed terms (MAT), and rules for fair and equitable benefit sharing)

• Monitoring and compliance measures to ensure proper implementation

• Additional complementary measures to support implementation such as, capacity-building and awareness-raising

The implementation of the Nagoya Protocol does not follow the same process in every country. In countries that have developed measures to address ABS issues, it may only be required to adapt and align existing measures with the innovative provisions of the Protocol. In other countries, it may be necessary to start from scratch and establish new ABS measures.

Why build ABS measures? ABS measures provide legal certainty, clarity, and transparency and fair and arbitrary rules to guide ABS transactions, building the confidence of users and providers to work together. ABS measures, in addition, bring coherence by setting out a common vision for ABS, along with guiding principles and mechanisms to achieve that vision.


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In the latter scenario, it is imperative to take into account the experiences of other countries and ensure that best practices are adopted and adapted to local needs and circumstances. These countries, furthermore, should recognise that ABS issues are crosscutting, linking issues of environment, health, research and development, indigenous rights, intellectual property, jobs, etc., for which effective inter-state collaboration on administrative and judicial matters is essential.

8.3 Guiding principles for ABS legal reform

Countries can consider a set of seven guiding principles that inform and underpin the ABS legal reform processes:

1. Set policy priorities early: Given the complex and crosscutting nature of ABS issues, early

work is key to define agreed policy objectives in inclusive processes across the ministries and stakeholders that could interact and benefit from ABS activities. This effort can help avoid contentious legislative roadblocks and delays and build the buy-in and coherency in a national vision to make measures effective.

2. Meet core obligations: To implement the Protocol, Parties can start by creating measures that meet the core requirements to be in compliance with the Protocol, and then decide when and how to regulate other aspects that go beyond these minimum requirements. Starting with a simple, rather than complex, approach allows countries to acquire experience with ABS before moving on to draft more complex and detailed measures.

3. Commit to inclusive policy-setting: Early engagement of all relevant ministries increases the legitimacy of the legal reform process and mitigates the potential for obstacles in the latter stages of the process. This engagement recognises the political nature of the legal reform process, and the need for high-level buy-in across sectors for ABS laws to be effectively implemented.

4. Understand ABS stakeholders: The range of potential ABS stakeholders is broad, calling for a robust stakeholder analysis and inclusive consultation process. This process can also allow stakeholders to also set realistic expectations on what ABS can offer, identify risks, interests and opportunities, and build buy-in to engage with the law once passed.

5. Build up knowledge base gradually: Given that data on ABS is often limited, technical studies should be commissioned to inform policy and law making when possible. Since relevant information on ABS is often not readily available, countries can conduct an initial scoping and then prioritize regulatory approaches that collect information on how ABS transactions work in the country. This can inform further refinements to the chosen measure in the learning-by-doing process.

6. Ensure realistic approaches matched with capacity: Legal drafters should keep in mind the need to minimize transaction costs while maximizing engagement while detailing the design and implementation of ABS measures. Actions can be taken to undertake regulatory impact


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assessments to understand the status quo and adopt adaptive management approaches that enable authorities and stakeholders to build capacity as they implement the ABS measure – allowing for further refinements as capacity grows.

7. Chose adaptive, flexible approaches: Measures that take flexible approaches may be preferable, setting out a core framework and leaving details to be worked out in regulations, guidelines, codes and future reforms to the initially chosen measure.

8.4 Designing processes for ABS legal reform

This section identifies and discusses the steps that Parties can take to undertake effective processes to design ABS measures. These measures should be developed and implemented keeping in mind the guiding principles and, with full participation of all those responsible for the administration of ABS systems and those being affected by it. Care should be taken to ensure that representatives officially and legitimately represent their group. Similarly, support can be provided to stakeholders that may lack financial means to participate or are located remotely.

The first step in the legal reform process is a careful assessment of the legal and institutional situation of the country. This step involves compiling existing laws and regulations, and international instruments of relevance to ABS, and undertaking a gap analysis to determine the assets, gaps, barriers, and challenges in relation to the Nagoya Protocol.

Compile relevant laws and regulations:

A stock-taking of the existing legal status of ABS-related laws, regulations, and institutions set a baseline for legal reform. This involves, specifically, the following actions:

• Understand the existing ABS regulatory approach. In some countries, a dedicated ABS law or

regulation exists. In other countries, ABS measures are embedded within broader environmental laws or pieces of legislation. In a third group are the countries where no ABS laws or measures have been developed.

• Compile the other legal and regulatory instruments relevant to achieving the identified benefit-sharing policy priorities.

• Ensure mutually supportive implementation with related international treaties.


Legal Reform Stage 1: Assess existing legal frameworks


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• Assess the need to consider other international processes underway that are related to ABS.

Undertake a gap analysis:

After the stock-taking, Parties should undertake an analysis for the following purposes:

• Determine the extent to which the legal and

regulatory landscape meets, or should be adapted to meet, the obligations set out in the Nagoya Protocol.

• Initiate and guide an appropriate legal reform process by providing information that decision makers can use further down the line to make policy decisions on the development of new or amendment of existing legal, regulatory, and institutional frameworks.

The next indicative stage of legal reform is selecting the appropriate instrument to give effect to the obligations set out in the Nagoya Protocol. This involves understanding legislative, administrative, and policy measures, assessing the characteristics of different legal instruments, choosing the appropriate next regulatory step, and considering costs and impacts of regulatory approach.

Understand legislative, administrative, and policy measures:

The Nagoya Protocol allows Parties flexibility in the choice of measures to implement its various requirements, with a focus on legislative, administrative, and policy measures:

Policy measures: Public policy can be defined as “a system of laws, regulatory measures, courses of actions, and funding priorities concerning a given topic promulgated by a governmental entity or its representatives.”

Legislative measures: Legislative measures refer to legal instruments such as, Constitutions, legislations, regulations, decrees and customary law.


Legal Reform Stage 2: Select appropriate regulatory approach

What is a Regulation?

A regulation is a legal provision issued by the executive branch of government, by an individual minister, or by a designated authority within, or under the supervision of a minister. While the process of preparing and reviewing legislation is usually long and complex, the preparation and updating of regulations is a more dynamic and simple process.


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Administrative measures: Administrative measures refer to guidance documents, administrative manuals, protocols, and codes of conduct and model contracts.

While these instruments are not legally binding, they can provide important information and examples to support the implementation of policies and legal measures.

Assess the characteristics of different legal instruments:

Parties can choose from a large range of legal instruments to operationalize the Nagoya Protocol at the domestic level, including:

Constitutional provisions: The Constitution is the document that explains the distribution of power between the various organs of government – legislative, executive and judiciary, and sets out the fundamental rights and freedoms of citizens and other persons within the country’s jurisdiction. There are both pros and cons to using the Constitution in implementing ABS measures. The main advantage is that Constitutional provisions can raise ABS issues to the highest level and raise public awareness of its importance to national development. The process of amending the Constitution, however, is extremely long, difficult, costly, and politically charged. In addition, in most countries, constitutional amendments require an overwhelming majority of legislative or parliamentary support and, depending on the country, public approval through a referendum.

Regulations: Regulations are issued by the government, by an individual minister, or by a designated authority within or under the supervision of a ministry. The process of preparing or reviewing regulations is considerably shorter, simpler, and more dynamic. In this case, a regulation would be more suitable if a country opts to undertake implementation of the Nagoya Protocol through a “learning by doing” process. Customary law: A reflection on customary law may be key, especially when dealing with issues related to IPLCs. This reflection can build trust within these communities and increase the suitability of the approaches chosen. Legislation: Legislation is usually passed by the legislative body of a country and establishes the general framework of principles within which the government is expected to act, and within which regulations are issued.

The process of enacting ABS legislation can be lengthy. Once adopted, legislation requires formal amendment to be changed. This can be beneficial where certainty and longevity is desired. Alternatively, this process can be less suitable if the content of the law needs to be updated frequently.

To illustrate the complexities and challenges associated with the process of creating or amending a law, it is worth reviewing the steps that most Caribbean countries would have to take in order to create an ABS Act:


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1. Presentation of an Idea for ABS Legislation

An idea or proposal to change, amend, or create a new law is presented by a concerned citizen, or group, to a Representative. This could emanate out of a national symposium, workshop or public hearing on research or bio-diversity and/or ABS. A group, agency or institution could be tasked with framing the idea based on the need for action for submission in order to gain ‘sponsorship’. This will require a good understanding of all existing legislation which may support the implementation of ABS in the country.

2. Securing Sponsorship and Support for the ABS Legislative Process

Ideally a Ministry adopts, or in the first place creates, the proposal for the ABS legislative reform. This body becomes the Representative for the ABS legislative process and agrees to sponsor the idea and to introduce a ‘Bill’ to the House of Representatives/ Parliament.

3. Drafting of a Green Paper for ABS Legislation

Once there is sponsorship of the idea for ABS legislative reform, a Green Paper is commissioned from a technically competent department (Sustainable Development, EPA, Bio-Diversity)to detail specific issues and possible courses of action in terms of policy and legislation in the area that the Government feels new ABS legislation is required, or existing legislation needs to be re-vamped. Of note, a Green Paper is often the first formal step towards changing the law but it contains no commitment to action. It is more of a tool for stimulating discussion.

4. Drafting of the Proposed ABS Legislation: The ABS Bill

At this stage the proposed ABS legislation is drafted by a parliamentary draftsman (the Draft ABS Bill) on behalf of the Representative or government department that will introduce it to parliament. The legal drafting is based on the technical content of the Green Paper.

5. First Reading of the ABS Bill in Parliament

The proposed ABS legislation, in the form of the first draft of the Bill, is formally introduced to Parliament. The document is printed and distributed to all Members of the House. At 'first reading' no debate on the Bill is allowed.

6. Second Reading of the ABS Bill in Parliament

Here, the Bill receives a second reading where it is thoroughly examined and debated. At this stage, Members of the House wishing to express their views on the draft legislation will get an opportunity to do so. At the end of the debate, which may extend for a few weeks, a vote is taken to move forward with refining and processing the Bill.

7. ABS Bill Reviewed at the ‘Committee Stage’

If the bill passes the second reading, it moves on to the Committee Stage to be examined in detail, clause by clause. Committee members are a select group from the Parliament designated to dissect and scrutinize the Bill. They may hold hearings where individuals from both inside and outside the government can make comments about the Bill. The Committee can ask for government officials and experts, or witnesses, to


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come and answer questions. They could arrange public hearings, workshops and symposiums to gather input from indigenous communities, environmental groups, research centres and conservation authorities. After the hearings, the Committee prepares amendments to the Draft Bill and votes on each amendment, and on the Bill as a whole, and reports the amended Bill back to the Parliament.

8. Third Reading of ABS Bill in Parliament

Debate at this stage focuses on the final form of the ABS Bill. No amendments of a substantial nature may be made. The Bill may be accepted or rejected by means of a vote.

9. Passage through the Senate (for Caribbean countries whose Parliament has this Upper House in their Parliament)

Once the Bill is passed by the House of Representatives/ Parliament, it is sent to the Senate (in Caribbean countries where the British Monarchy is still the Sovereign), where it goes through the same process as in Steps 5 to 8. If the Senate disagrees with any aspect of the Bill and makes an amendment, the Bill is sent back to the House of Representatives for consideration. If the House of Representatives disagrees with the Senate’s amendment, it informs the Senate, which is then asked to reconsider the Bill. When an agreement is reached, and the Bill has been passed through all its stages in both the House of Representatives and Senate, it requires only Presidential approval or Royal Assent.

10. ABS Bill Assent At this stage the Bill is sent to the Governor General or to the President for assent if the country is a Constitutional Monarchy or Republic. Upon assent/ approval, the Bill becomes an Act, legislative amendment or a new legislation.

11. ABS Legislation Publication and Commencement

Once assent/ approval have been obtained, the Act is printed and published in the official gazette of the country. The text of the Act will contain a specific date in which it will come into force.

Choosing the appropriate next regulatory step:

The manner in which ABS measures are implemented varies from one county to another. Countries have different legal and political systems, and administrative set ups. The types of genetic resources and associated traditional knowledge that exist within territories differ, as well as their potential for research, accessibility, and commercialisation. A country’s history, culture, demographics, and social realities are factors that can also influence the choice of ABS measures. A range of options to guide ABS have been chosen by countries to date as follows:

Define a national vision for ABS in strategies and policies

This approach can promote consistency in regulation and identify ABS as a national priority. Policies and strategies can help define a common national vision and engage stakeholders into a national discussion.


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Establish ABS as a priority in NBSAPs or other related laws or policies

Integrating ABS as a component of a National Biodiversity Strategy and Action Plan (NBSAP), or as part of broader environmental, biodiversity, forest, wildlife or protected areas legislation, can set the pathway and priorities for future development of more detailed ABS measures. This is a common approach to clarify key institutions and highlight priority issues to be addressed.

Draft a stand-alone ABS legislation

Comprehensive legislation provides the opportunity to address ABS in a clear and concise manner, regardless of whether preexisting ABS legislation exists. ABS laws focus on establishing general principles, mandates and procedures, with specific aspects of applications left to further regulations allowing for easy reform.

Amend, revise or update general environmental legislation to introduce ABS

ABS legislation can also be incorporated into broader statues, commonly biodiversity or environmental Acts, that incorporate comprehensive chapters addressing access to genetic resources and associated traditional knowledge. ABS provisions could also be included in other relevant laws and regulations (e.g. laws on intellectual property; approval of products like medicines, cosmetics, or food; funding of public research; etc.)

Adopt ABS regulations under broader legislation

Regulations offer a flexible and adaptable legal avenue to operationalize the requirements of the Nagoya Protocol. Regulations can be used to establish the fine details of the implementation of ABS systems. In the Caribbean context, the implementation of regulatory measures would be an appropriate approach to move forward in countries that already have or that are planning to develop a stand-alone ABS legislation, or to incorporate ABS into other broad legislation. This is based on the grounds that most of the countries in the region will likely have to update and reform their ABS rules and measures on a constant basis as information and implementation experience is gained.

Gain experience through adoption of administrative measures

Administrative measures can be employed as a flexible approach to gaining experience and testing and refining implementation of the Nagoya Protocol. These instruments can be used with or without an existing ABS regulatory measure in place. Approaches can include providing awareness or guidance information, imposing taxes or fees, enacting targeted changes in intellectual property regimes, and promoting the development of self-regulation within target industries.

Consider cost and impact of regulatory approach:


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A comprehensive evaluation of the costs and benefits of the proposed regulatory action should be undertaken and compared to other options. The evaluation should, specifically, assess the environmental, social, and economic impacts and impact on public authorities or other stakeholders. It should also identify potential risks and steps to mitigate adverse consequences. Similarly, it should assess the institutional capacity to implement the measure. Finally, opportunities and sources to raise additional funds should be explored.

The formal adoption of legal instruments is not the final step in the legal reform process. Often, the most challenging aspect is the implementation of the legal priorities set out in the new or amended legal measures due to the lack of awareness and support from stakeholders and society at large. At this point, ideally, there should be certainty and clarity about the importance of taking action on ABS issues and strong societal support for the measures developed.

The specific steps and length of the implementation process can vary, depending on the goals and legal reform pathway selected. The following figure summarizes the actions that should be undertaken to implement the ABS measure effectively:

Develop a Work Plan:

Work plans are useful implementing tools that set out clear roles, actions, timelines and budgets, and set out consistent and regularly scheduled reporting.

The work plan should assign clear institutional roles and responsibilities, ensure long-term planning and commitment of resources, and establish realistic time frames for adoption and development of implementing legal measures.

Build Capacity and Legal Awareness:

Effective implementation of ABS measures requires capable authorities and empowered citizens. Various actions can be taken, including:

• Training programs for public authorities and private actors relevant to implementation;

• Technical assistance for more specialized groups of government officials working on technical

issues of implementation;


Legal Reform Stage 3: Implement the regulatory approach effectively


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• Joint training workshops or dialogues between relevant ministries to enhance synergies, or

public and private actors to advance ABS partnerships and collaboration;

• Legal awareness materials and campaigns on internet, radio, television, and/or cell phones to introduce new rights, responsibilities and incentives available; and,

• Targeted outreach to IPLCs and train the trainer workshops.

Monitoring and Evaluation:

Monitoring and evaluation can determine whether the ABS systems put in place are effective, to identify issues in the implementation process, and to design corrective measures. Benefits can be gained by committing to a monitoring and evaluation framework with clear indicators and means of data collection. Monitoring is especially important for ABS issues given that initial measures will likely need to be redefined and adapted as implementation progresses.

Monitoring can focus on the following aspects:

• Identification of both implementation (progress in carrying out the legal roadmap) and impact

(progress in achieving the policy objective defined in Step One) indicators;

• Consulting with stakeholder and data providers to evaluate whether indicators reflect needs and are measurable given available data;

• Defining data sources and stakeholders from which information can be gathered to assess

chosen indicators; and • Regularly schedule, carry out and report on assessments and reviews.

8.5 Challenges to ABS legal reform in the Caribbean

Limited Capacity: Implementation of ABS frameworks is a relatively new area of policy development in the Caribbean context. As a result, legislators and policy makers may lack awareness, capacity, and knowledge to implement a functional ABS framework compliant with all of the requirements of the Nagoya Protocol.

Lack of Information: Caribbean governments often lack the ecological information needed for understanding and determining the most effective ABS approaches and proposed changes to legislation or regulations. As a result, government authorities should work in collaboration with local universities and research institutes to identify existing data on species targeted for collection and their


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ecosystems. This process should provide opportunities for stakeholder engagement and incorporate relevant traditional knowledge of species, their status and their habitats.

8.6 Opportunities for advancing ABS legal reform in Caribbean countries

In order to understand the role that Courts can or could play with regards to the implementation of the Nagoya Protocol at the domestic level in the Caribbean, it is necessary to understand how the Court system functions in the Caribbean context. “Precedent” grounded in Common Law depends on a system of hierarchy of courts. In the majority of the Commonwealth Caribbean, The Privy Council86 sits at the top of the hierarchy of courts, making their decisions the most authoritative in the hierarchy.

Figure 8.8 .1 Hierarchy of Courts in the Caribbean

Judicial Committee of the Privy Council

Courts of Appeal

High Courts or Supreme Courts

Intermediate Courts Family courts and resident magistrates’ courts (Jamaica)

Magistrates’ Courts and Juvenile Court

Each court is bound by a decision of the court above itself in the hierarchy. In addition, a court is sometimes bound by decisions of a court of equivalent status.

Resolution of constitutional disputes and ABS legal issues

In the Caribbean, the judiciary plays an important role in interpreting legislation and reviewing executive decisions. Courts that have jurisdiction to decide cases on Constitutional and administrative matters (i.e. the Supreme Court, the Court of Appeal, the Eastern Caribbean Supreme Court, and the Privy

86 The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for certain Commonwealth countries. Established on 13 August 1833 to hear appeals formerly heard by the King-in-Council, the Privy Council formerly acted as the court of last resort for the entire British Empire (other than for the United Kingdom itself), and continues to act as the highest court of appeal for several independent Commonwealth nations, the Crown Dependencies, and the British Overseas Territories (https://en.wikipedia.org/wiki/Judicial_Committee_of_the_Privy_Council : accessed 12/11/2017)

Barbados, Belize, Dominica, and Guyana have replaced the Privy Council with the Caribbean Court of Justice (the CCJ). In those countries the CCJ hears appeals as the regional integration and it is ultimately aimed at replacing the Privy Council.

In the Eastern Caribbean

recognition is given to the regional court known as the Eastern Caribbean Supreme Court. This is a superior court of record, which sits immediately below the Privy Council, for nine member states, namely: Antigua and Barbuda, Dominica, Grenada, St. Kitts-Nevis, St. Lucia, St. Vincent and the Grenadines and three British Overseas Territories, Anguilla, the British Virgin Islands and Montserrat.


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Council) have the authority to strike down and invalidate laws or government actions that are deemed unconstitutional or inconsistent with higher laws.

The CCJ does not have this power since it can only decide appeals on criminal and civil cases.

It is only a matter of time until the Supreme Court in one of the Caribbean countries that has ratified the Nagoya Protocol has to hear a case involving a particular ABS law, policy, or regulation. In deciding the case, the Court will have an opportunity to:

1. Assess whether the law, policy, or regulation in question violates the Constitution or conflicts with other legislation;

2. Decide if the legislation that operationalizes an international agreement or treaty has more weight than domestic statutory or administrative laws with which it may conflict;

3. Assess whether the country in question has a framework in place to operationalize and comply

with the requirements of the Nagoya Protocol;

4. Force the government to introduce legislation, or amend the existing one, to ensure that necessary measures are taken to meet obligations imposed by the Nagoya Protocol.

If the decision of the Supreme Court is appealed, then it would be the turn for the Court of Appeal or for the Eastern Caribbean Supreme Court to consider the matter and to render a decision. If that verdict is appealed, then the Privy Council would have the last word.

International Law

The development of domestic ABS frameworks in Caribbean countries can also be influenced by international law. Caribbean countries that have ratified the Nagoya Protocol have a legal obligation, under international law, to honor it and to take the necessary steps and measures to comply with its requirements. They are also bound by other environmental treaties such as:

• Convention on International Trade in Endangered Species of Wild Fauna and Flora • United Nations Framework Convention on Climate Change • United Nations Convention to Combat Desertification • United Nations Convention on Biological Diversity • Montreal Protocol • Cartagena Protocol on Biosafety • Paris Agreement

International Courts and Tribunals

In the Caribbean, there are other international courts and tribunals that may also influence the development of ABS frameworks:


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• The Caribbean Court of Justice (CCJ) is a significant actor, considering that it has jurisdiction to

settle disputes between Caribbean Community (CARICOM) Member States (Antigua and Barbuda, The Bahamas, Barbados, Belize, Cuba, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, St. Kitts and Nevis, Saint Lucia, St. Vincent and the Grenadines, Suriname, and Trinidad and Tobago). Serving as a the highest court of appeals on civil and criminal matters, the CCJ may play a substantial role in ensuring that access to genetic resources does not violate human and Constitutional rights of Indigenous people and local communities in CARICOM states.

• Involvement of the International Court of Justice (ICJ) in environmental issues has increased significantly in recent years. Although some environmental cases were frustrated for various reasons, an advisory opinion and several judgments have already been delivered by the Court.


8.7.1 Case Studies

1. Cabrera Medaglia, J. et al. (2014). “Overview of National and Regional Measures on Access and Benefit Sharing: Challenges and Opportunities in Implementing the Nagoya Protocol. CISDL. p. 81-85 and p.87-88. https://www.absfocalpoint.nl/upload_mm/5/f/4/008c9cc8-19f3-4926-b380-5f13fd1eb705_Overview%20of%20national%20and%20regional%20measures%20on%20access%20and%20benefit%20sharing.pdf

2. Fentahun, Y. (2017). “A Review of Access and Benefit Sharing (ABS) of Genetic Resources and Associated Traditional Knowledge in Ethiopia: Status, Trends, and Lessons learned.” Journal of Plant Science & Research 4(1). http://opensciencepublications.com/fulltextarticles/JPSR-2349-2805-4-164.html

3. The Republic of Uganda (2007). “Guidelines for Accessing Genetic Resources and Benefit Sharing in Uganda.” p. 1-3. http://www.wipo.int/edocs/lexdocs/laws/en/ug/ug021en.pdf

8.7.2 Readings

1. Rose, J. (2015). “Implementing the Nagoya Protocol in Pacific Island Countries.” In Science, technology, and new challenges to ocean law, p. 165-184. Edited by H. N. Scheiber et al. (Boston: Brill Nijhoff).

2. Benjamin, L. & Stevenson, M. (2015). “A Greener Future for Caribbean Constitutions? The Bahamas as a Case Study.” Widener Law Review 21 (2). http://widenerlawreview.org/files/2008/10/12-Benjamin-and-Stevenson.pdf


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8.7.3 Videos

1. Indigenous law: an introduction, UVic Indigenous Law Research Unit, September 2015: https://www.youtube.com/watch?v=7uNgq7raxk4

2. Parliament of Victoria Explains: How Parliament Makes Laws, Parliament of Victoria, May 20th, 2012: https://www.youtube.com/watch?v=pSCMpX9stW0


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9.0 Policy Setting 9.1 Objectives

• Develop a general understanding of the ABS policy cycle process. • Understand the concept of ABS policy setting and its importance in the design of ABS measures; • Recognise the main components that are frequently found in ABS policies; • Comprehend the three indicative steps for the development of ABS policies and strategies; • Explore the different alternatives and approaches to prepare ABS policies and strategies.

9.2 Key Information

Countries have chosen different strategies to inform the design and implementation of domestic ABS systems. The creation of policies is one mechanism that Parties may use to operationalize the Nagoya Protocol.

Public policy, broadly speaking, is the principled guide to action taken by the executive branch of the state on a particular issue that is considered to be of public interest. The historical experience is that resolving public policy with public interest is led principally by the ‘Government of the day’ through national debates at national Parliaments. This is changing. More and more public policy, especially in the area of the environment, is driven through Non-Governmental Organizations (NGOs) and community-based activism, as well as through international measures such as the Nagoya Protocol. In each case, action on public policy is carried out in a manner consistent with the Constitution, existing legislation and customs.

Policy-making is a complex, involved, and continuous process. The policy cycle is a model used to simplify public policy creation by breaking the process into five discrete and sequential stages:

Fig. 9.2.1: The Policy Cycle

ADGENDA SETTING DEFINED BY THE NAGOYA

PROTOCOL

POLICY FORMULATION &

STRATEGIC PLANNING FOR

ABS

DECISION MAKING ON

INSTITUTIONAL MECHANISMS

POLICY IMPLEMENTATION :

NEGOTIATIONS & MANAGEMENT

POLICY EVALUATION:

ASSESSMENT & REALIGNMENT


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Agenda Setting:

The Nagoya Protocol presents a broad framework by which ABS problems come to the attention of governments. The Protocol itself is deliberately characterized by incomplete definitions of the problem such that countries can look at their own situation, define unique challenges and tailor policies to suit. In this way, local policy makers, community groups and special interest groups, which can offer various proposals for policy formulation to address ABS issues, set the agenda. Agenda Setting goes hand-in-hand with a situation and gap analysis of existing legal and regulatory mechanisms in the country to support ABS, as well as an assessment of the genetic resources in the relevant jurisdiction. The legal and genetic parameters should be understood for effective agenda setting.

Policy Formulation:

Policy options are developed within government regarding ABS. An initial calculation of the risks, costs and benefits associated with each solution (strategy, law and/ or regulation) are made. Similarly, at this stage, institutional and capacity assessments are made, legal consequences in terms of land rights and conflicting land uses assessed and investor confidence in affected sectors (e.g. forestry, trade and agriculture) are weighed against the potential benefits from success in utilisation of genetic resources.

Decision Making:

Through the Policy Formulation process, an optimized ABS policy is adopted by the Government. If the costs of adopting a policy outweigh the benefits, then the government may choose to not adopt a policy and disengage from acting in the area of ABS. To avoid this, it is imperative to quantify the monetary value of the bio-diversity resources present in the country. This in turn calls for increasing knowledge about local customs at community levels, traditional use of genetic resources and potential for research and commercialisation of, and value chain linkages in, product development. In the particular context of Caribbean Small Island States, if these linkages are not presented in the decision-making process then the government might not be able to see the benefits of adopting an effective ABS Policy.

Policy Implementation:

At this stage, detailed regulations, negotiation processes, permit procedures to grant access to genetic resources, compliance monitoring and institutional capacity to manage these processes are activated. The first step the Government should take in implementation is the establishment of institutional frameworks and assurance of necessary human resources to manage ABS in the country. The groundwork for this is usually set in the Policy Formulation stage of the policy cycle where the cost and benefits of adopting an ABS policy is worked out.


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Policy Evaluation:

The implementation of policy is closely related to assessing ‘compliance’ in the ABS process. Evaluation can be done at all levels, from observing the decisions on legal processes related to infractions of ABS rules, to assessing the effectiveness of, and outputs and benefits from, individual ABS ‘projects’ at the community level. Usually the evaluation process can be informed through predetermined reporting mechanisms (monitoring) to the ABS oversight body/ agency. Alternatively, there could be independent external reviews, or evaluations. Ideally, all stakeholders should be involved, leading to the revision, reconceptualization, and redefinition of ABS policy problems and implementation solutions.

9.3 Policy setting for ABS

An important first step to building up ABS legislative, administrative and policy measures is to reflect on the policy priorities that ABS systems can be designed to achieve. ABS policy setting refers to the process of developing a clear, agreed upon vision, and goals, for domestic ABS systems. It entails a process of determining, ideally with broad stakeholder involvement, a unified vision on what ABS systems should achieve.

Defining ABS policy objectives is an important stage in the design of ABS measures. A clear understanding of ABS policy objectives can provide the basis for coherent, workable and needs-based laws. With this guidance, legal drafters can ensure that the chosen measure not only meets the Protocol’s core requirements, but also is tailored to national realities and designed to achieve national development and environmental goals.

The policy planning process, in addition, can be an opportunity for stakeholders to set realistic expectations on ABS benefits, build buy-in from key ministries, identify co-benefits across sectors, and create clear channels of communication amongst related stakeholders. These building blocks can greatly support any subsequent process to design and implement ABS laws and measures.

Elements of an ABS Policy

The Nagoya Protocol does not specifically require the development of a national policy or strategy however, the usefulness of an early policy-setting approach was recognised in the Bonn Guidelines.

Article 22 of the Bonn Guidelines defines four elements of an “ABS strategy”:

Timing: Should be developed at an early stage to inform the design of ABS systems

Level: Can be national or regional


Policy Development in the Caribbean

A good resource to gather a broad perspective on policy setting in the Caribbean Region was developed by the Caribbean Policy Development Center (CPDC) and can be found at this link: http://cpdcngo.org/


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Goals: Should aim for the conservation and sustainable use of biological diversity and equitable sharing of benefits

Form: One option is to integrate ABS strategies into National Biodiversity Strategies and Action Plans, known as NBSAPs, which are the main instruments to implement the CBD at the national level, or to create other policy instruments.

Countries have flexibility to choose the type of policy instrument and its content. It is important to get started, beginning to develop policy priorities on a modest scale and learning-by-doing approach. This is recommended over developing no strategy at all or a strategy that is too ambitious to implement. Indicative steps for the development of ABS policies and strategies Effective policy instruments are both technically sound in clearly articulating national priorities and politically supported, with sufficient buy-in and ownership by key ministries and stakeholders. There is no one-size-fits-all approach to defining a national ABS policy and strategy. However, Parties can consider three indicative steps in the design of their domestic ABS policy setting process.

This step consists of conducting a comprehensive stock-tacking of the existing conditions within the country related to ABS issues and the relevant stakeholders. Public consultation amongst ABS stakeholders can help to explore the possible impacts and opportunities of the Protocol and gather concrete ideas on the practical challenges of implementation from different perspectives. Undertaking situational, stakeholder, and gap analyses is imperative to set policy priorities and goals. Parties should conduct an assessment in six key areas:

Genetic resources and associated traditional knowledge

Where are genetic resources and associated traditional knowledge found in the country which are of value, current or potential, for research and development, commercialisation, or socio-economic benefits? It is imperative to understand the range of genetic resources and associated traditional knowledge that exist in the country. Potential sources include in situ or ex situ. Gathering this information can be time-consuming and costly. Countries can get started by collecting a baseline of available information of current uses, and/or developing a valorization strategy to identify potential values. Mechanisms can be incorporated into ABS systems that allow for the continuous gathering and recording of relevant data, as experience grows, to inform


Policy Setting Step 1: Situational and stakeholder analysis


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subsequent revisions of ABS policies and measures.

Legal rights and framework

What set of legal rights of IPLCs and other stakeholders exist, and what legal framework regulates activities related to genetic resources and associated traditional knowledge in the country? The CBD recognises the sovereign right of States over their resources. At the national level, each country will have their own set of established rights for IPLCs and specific stakeholder groups. These can include the rights to participate in policy and decision-making, to grant prior informed consent (PIC), to obtain benefits, etc. The set of rights are often dependent on domestic land tenure systems, property law, and rights over natural resources. Approaches differ. In common law jurisdictions, natural resources are commonly viewed as private property with the state having limited powers to regulate. Meanwhile, in civil law jurisdictions, the State commonly holds rights over public property as national patrimony for their citizens.

Current and potential users

Who are the current and potential actors to access and utilize, for both research and commercial purposes, genetic resources and associated traditional knowledge in the country? It is imperative to identify the stakeholders that are currently accessing genetic resources and associated traditional knowledge in the country. This assessment should consider all different sectors that benefit from the use of those resources and knowledge. Efforts should also be made over time to map out potential users, both foreign and domestic. An ABS policy or strategy can highlight certain types of genetic resources and associated traditional knowledge of national interest and/or note preferences for mutually agreed terms (MAT) on benefit-sharing that contribute to national development goals.

Responsible Institutions

Who is responsible for managing genetic resources and associated traditional knowledge, and administering related systems? It is essential to develop a comprehensive understanding of the range of ministries and agencies with responsibilities over the management of genetic resources and associated traditional knowledge. Collaboration and coordination mechanisms are key amongst relevant ministries and authorities. This analysis can identify challenges and opportunities for building up a coherent institutional arrangement to define ABS policies and administer ABS systems.


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Capacity to implement

What is the existing capacity of authorities and stakeholders to implement the ABS system and negotiate ABS agreements in the country? A key consideration is to understand the current capacity of relevant institutions and stakeholders, and to match the policy ambition and goals to best support them. Countries can assess, for instance, the capacity of ministries and authorities responsible for implementation, domestic research institutions as potential users, and IPLCs and other stakeholders to negotiate ABS agreements. This understanding can help decide whether a flexible, rather than a rigid, regulatory approach is needed to enable adjustments to be made as implementation progresses, and capacity and understanding of ABS issues grows.

Linkages between ABS and other goals

How are ABS issues addressed or related to other national policies and goals? ABS issues are cross-cutting, touching on more than simply environmental issues. A key realization is that ABS systems can be designed to advance goals on innovation, science and technology, rural poverty, health, trade, economic development, and other areas of national priority. Therefore, it is imperative to develop an understanding of the linkages and potential co-benefits across sectors.

Circumstances vary from country to country and some of the issues just discussed may not be relevant or applicable in all countries. Countries are encouraged to adapt and tailor their baseline assessments to fit with their specific national circumstances. Once Step One has been completed and an understanding has been developed of the existing policy and regulatory framework and potential for the domestic ABS system to contribute to national goals, countries can focus on the next step of defining the country’s vision, mission, goals and policy guidance on ABS.


Policy Setting Step 2: Define the content of ABS policies and strategies


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At a basic level, the content of ABS policy instruments should make clear what the country wants to achieve with developing and implementing an ABS system. Some policy instruments, like strategies, go further and set out concrete action plans that respond to the question - “How does the country plan to achieve the stated policy objectives and goals?” The content of an ABS policy or strategy will depend on the specific priorities and circumstances in each country. The International Union for Conservation of Nature (IUCN) Guide to the Nagoya Protocol proposes a set of elements that countries can consider for inclusion in the development of ABS policies. Vision A vision is brief statement that sets out the long-term aspirations for the domestic

ABS system. Countries have flexibility in defining their ABS Vision according to domestic priorities and circumstances. Most vision statements are brief and reflect broad goals aligned with the Nagoya Protocol and CBD, or related national policies. Some ABS policies or strategies, such as the one in Guyana, omit a vision statement.

Goal The Goals and Objectives set out more specific aims, achievable within a shorter time period, that are linked to the ABS Vision.

Guiding Principles

Guiding principles usually set out the agreed norms and standards underpinning the domestic ABS system. These may facilitate the drafting process by providing a clear orientation for the approach and potential content of the ABS legal measures.

Themes, objectives, and actions

Many ABS policy instruments go beyond the general terms used in vision statements, goals, objectives and guiding principles to present specific actions. The details provided in these sections of policy instruments provide detailed information to inform the design of ABS regulatory frameworks.

In addition to the vision, goal, objectives and guiding principles, some countries have decided to include in their ABS policy instruments the following elements: Preamble It provides the background leading up to the development of the policy instrument

to provide context in its interpretation.

Rationale It provides elements justifying the adoption of an ABS policy or strategy and can provide some information about the country and challenges faced regarding the utilisation and management of Genetic Resources and associated Traditional Knowledge.


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Definitions Various policy instruments include a list of definitions of key terms such as, biological resources, bio-prospecting, genetic resources, traditional knowledge, and material transfer agreements. This can be quite useful in avoiding misinterpretation.

Countries can decide to add other elements matching the needs and priorities identified during the analysis phase and through ongoing stakeholder consultations.

The choice of policy instrument is a strategic decision that requires attention to both technical content and the political processes to build support and political will. Each instrument entails a different consultative process, engages a different group of sectors and stakeholders, and denotes differing levels of political buy-in across relevant ministries and agencies. It is also important to note that instruments can be combined. Options to develop and adopt ABS policy instruments include:

Develop a stand-alone policy document

Only a few countries (e.g. Guyana, Bhutan and Kenya) have chosen to develop stand-alone ABS policy instruments to date. Doing so entails designing a separate policy-setting process focused on ABS issues. The countries mentioned have taken this approach as a vehicle to:

• Recognise the importance of ABS issues nationally and to mainstream ABS issues into national development-planning and decision-making;

• Raise awareness and buy-in among key stakeholder groups through the policy-setting process; and,

• Promote coherent design and implementation of ABS measures across the country or region.

Integrate ABS issues within the NBSAP

Many countries (e.g. Belgium, Egypt, Malta, and Suriname) have chosen to integrate ABS issues within their NBSAP. Parties to the CBD are required to prepare NBSAPs as their central policy on biodiversity, and to mainstream NBSAP objectives into the planning and activities of other sectors that can


Policy Setting Step 3: Choice of policy approach


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impact, positively or negatively, on biodiversity. Motivations for choosing this approach include:

• Highlighting the importance of ABS to achieve national biodiversity goals and align with efforts to promote NBSAPs as the key national policy to mainstreaming biodiversity; and,

• Linking ABS actions to a comprehensive national response to biodiversity under the CBD.

Include ABS issues into other sectoral policies and strategies

Another choice increasingly being made by countries (e.g. Australia, Colombia, South Africa, and Honduras) is to integrate ABS issues into other sectoral policies and strategies. Countries have integrated ABS into policies related to environment, biotechnology, intellectual property, science and technology, green business, enterprise development, healthcare, agriculture, rural development and protected areas. Motivations for choosing this approach include:

• Recognising the cross-cutting nature of ABS issues; and

• Making it clear and explicit how ABS can contribute to goals in other sectors.

No ABS policy instrument

Countries may also choose to address ABS at only the legal and/or administrative level, and not to adopt any policy instruments. Countries that have selected this approach (e.g. European Union and Switzerland) have undertaken lengthy consultation processes and commissioned technical studies.With the inputs obtained, they have defined clear ABS policy priorities, which although not formalized in a policy instrument, have directly informed the development and implementation of ABS measures.

9.4 Linkages between ABS and other goals

The implementation of ABS frameworks in Caribbean countries supports and advances a number of national and regional goals. It will be key to keep these goals in sight when creating ABS policies for the Caribbean.

Sustainable Development: As mentioned in the module on benefit-sharing, all Caribbean states committed to the 17 Sustainable Development Goals (SDGs) of the 2030 Agenda for Sustainable Development.87 The creation and implementation of ABS policies could help contribute to achieving some of these goals. Specifically, they could help reduce poverty and economic marginalization,

87 United Nations. "Sustainable Development Goals: 17 Goals to Transform Our World." Accessed from: https://www.un.org/development/desa/disabilities/envision2030.html


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alleviate food scarcity, reduce inequalities, promote responsible consumption and production, and protect ecosystems and biodiversity.

Economic Development: The implementation of the Nagoya Protocol also has the potential to accelerate economic growth in Caribbean states, and in the region as a whole, by strengthening and promoting job creation in biotechnology, and other industries, by attracting foreign investments and by stimulating research and development activities.

Indigenous Rights: Indigenous rights issues are gaining increasing political and public attention in the Caribbean. In fact, all Caribbean states voted in favour of adopting the United Nations Declaration on the Rights of Indigenous People.88 The creation of effective policies, and implementation of ABS legislation, would effectively empower these populations to take control over access to their biological resources, to protect their traditional knowledge, and to benefit from granting access to their resources and/or associated knowledge.

Case of Guyana's National ABS Policy Guyana is one of the few countries in the world, and the only one in the context of this training, that has developed a national policy as a strategy to inform the design of its ABS framework. The National Policy on Access and Benefit Sharing was finalized and endorsed in 2007. It was developed through an extensive consultative and participatory process that involved a wide range of stakeholders providing continuous input from the earliest stages of policy formulation. This allowed the policy to be continually reformulated and redefined to meet the needs and expectations of all the actors involved and to set clear, agreed upon visions and goals.

Guyana's ABS policy includes the following elements: • A short introduction to biodiversity in Guyana, followed by some background information on

Access and Benefit Sharing (ABS) and a discussion on Guyana and the CBD. • Presentation of the policy statement and objectives. The general objective is "to contribute to the

conservation and sustainable use of biological resources of the country in order to reduce poverty, be supportive to sustainable livelihoods and health, and promote cultural integrity."

Specific Objectives of the Policy: • Articulate a national policy on Access and Benefit-Sharing that is consistent with other

national policies and regulations, and with international treaties to which Guyana is a contracting Party.

• Set the conditions to facilitate access to the genetic resources of Guyana and enable the Government of Guyana (GoG) to access the genetic resources of other contracting Parties of the CBD, as well as those Parties that are not as yet CBD-compliant. This scope of access includes in situ or ex situ genetic resources and data.

88 See the UN Declaration on the Rights of Indigenous Peoples (http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf)


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• Facilitate access on the basis of free and prior informed consent on mutually agreed terms, with respect to national sovereignty and the rights of citizens, with particular regard to the genetic resources and knowledge held by Amerindian and local communities.

• Establish conditions and promote cooperation/collaboration among the national subject agencies, foreign parties, and companies in fields such as research, development and commercialisation of genetic resources and associated knowledge in Guyana.

• Promote fair and equitable sharing of the benefits arising from the use of genetic resources and associated knowledge between the GoG and Foreign Parties; and among national partners (GoG, Amerindian and local communities, and other stakeholders).

• Define clear roles and responsibilities of national stakeholders and provide a transparent and secure framework for national and foreign partners for access to genetic resources and fair and equitable sharing of benefits.

• Assign additional values (such as short- and long-term benefits) to genetic resources to increase local and national incentives for the sustainable use and conservation of biodiversity.

• Create definitions of the mandates and responsibilities of national authorities to implement the ABS policy and proposed regulations and the participation of associated stakeholders.

• Make a statement on the need for free and prior informed consent, mutually agreed terms, and the sharing of benefits.

• Provide section on intellectual property rights and additional information on a number of specific types, conditions or uses of genetic resources.


9.5.1 Readings

1. Swiderska, K. (2001). “Stakeholder Participation in Policy on Access to Genetic Resources, Traditional Knowledge, and Benefit Sharing: Case Studies and Recommendations.” International Institute for Environment and Development. http://www.eldis.org/vfile/upload/1/document/0708/DOC11439.pdf

2. Arjjumend, H. et al. (2016). “Evolution of the International Governance of Biodiversity.” Journal of Global Resources 3. http://www.ipan.in/wp-content/themes/ipan/ebooks/57581305699ef_Evolution%20of%20International%20Biodiversity%20Governance_IPAN.pdf

9.5.2 Videos

1. What is Policy? BrandmanCII, December 2016: https://www.youtube.com/watch?v=GgBax4WjdPA

2. The issue attention cycle: A beginner’s guide, Mark Hudson, July 2016: https://www.youtube.com/watch?v=VsMEdSO7Xzk

3. Demystifying Stakeholder Engagement, Service Resources, May 2017: https://www.youtube.com/watch?v=CCeahgLCTyo


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10.0 Institutional Arrangements 10.1 Course Objectives

• Recognise the ways in which policy-setting can inform the choice and design of ABS institutional arrangements;

• Review a number of indicative questions that Parties must consider during the stock-taking process in order to assess existing institutional frameworks to understand current capacities, mandates, priorities of existing institutions, gaps, and opportunities;

• Understand the core functions to be assigned to domestic ABS institutions; • Assess different policy alternatives and approaches for establishing ABS institutional frameworks;

and • Learn mechanisms to refine and further tailor the chosen institutional arrangement to the national

context and as experience grows.

10.2 Key Information

The Nagoya Protocol requires Parties to set up an institutional arrangement or system to support the implementation of ABS measures and administration of ABS systems. The United Nations Development Program defines institutional arrangements as the “policies, systems, and processes that organizations use to legislate, plan and manage their activities efficiently, and to effectively coordinate with others in order to fulfill their mandate”89

Under the Protocol, however, countries to are not obliged to establish a prescribed type of institutional arrangement. Rather, it sets out core and recommended functions and allows flexibility for countries to decide which entity should be assigned each function. The right choice for institutional arrangements will vary from country to country, determined by existing national laws, institutional capacities, and ABS goals.

10.3 Indicative steps for designing ABS institutional arrangements

Parties can follow this guidance to take a step-by-step, learning-by-doing approach to building up institutional arrangements to support the development and implementation of domestic ABS measures and systems.

89 United Nations Development Program. (2013). Institutional Arrangement. Capacity Development. Retrieved February 1, 2018, from http://www.undp.org/content/undp/en/home/ourwork/capacitybuilding/drivers_of_change/institut_arrangemt/


Institutional Arrangements Step 1: Define policy priorities


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First and foremost, as discussed in the Policy Setting module, a key early step is to define the policy vision for ABS. A clear policy direction can greatly inform the choice of institutional arrangement needed to achieve it.

Policy-setting can inform the design of institutional arrangements in the following steps:

Stock-taking: Parties should review existing institutional frameworks to understand current capacities, mandates, priorities of existing institutions, gaps, and opportunities. There are a number of indicative questions that Parties should consider during the stock-taking process:

• Which ministries are responsible for foreign affairs, representation in international processes and international cooperation?

• Which ministries are responsible for the genetic resources of national priority interest?

• Which authorities are responsible for relevant permit systems, e.g. research permits or access permits to protected areas?

• Which ministries may be affected or impacted by ABS issues, e.g. science, technology and innovation, rural development, trade, economy, business, etc.?

• What mechanisms exist for inter-ministerial collaboration on issues related to genetic resources?

• What level of government holds responsibility for natural resource management?

• What authorities exist to deal with issues related to ABS, particularly on intellectual property, research and development, innovation, business enterprises, IPLCs? What are their capacities?

• Who has established rights to participate in natural resource management? • What mechanisms exist to engage technical expertise and IPLC’s input into

government decision-making? Consultation: Parties should also consult with relevant ministries and stakeholders for an updated

perspective on the level of awareness, interest, and capacity to engage in ABS issues.

Policy priories:

At this stage, Parties can define a vision for the ABS institutional arrangement that matches current capacities and contributes to national goals. The policy statement set out by countries can help define the choice of best-suited institutional arrangement. Countries may also choose to set out specific policy priorities relevant to institutional arrangements. Policy statements can be used as a vehicle to:

• Empower a clear lead agency within a single ministry responsible for ABS


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issues; • Raise awareness and commitment across various ministries to collaborate

on cross-cutting ABS policy and decision-making; • Build capacity and collaboration across relevant authorities to administer

ABS systems; • Promote informed decision-making that considers relevant technical input

and stakeholder perspectives; and, • Ensure the effective participation of IPLCs.

The next step is to establish core institutions to meet the minimum requirements of the Nagoya Protocol. These core institutions are the National Focal Point (NFP), Competent National Authority or Authorities (CNAs), one or more Checkpoints, and a Publishing Authority.

National Focal Point

The NFP acts as a liaison between stakeholders. It is responsible for:

• Making information available for users seeking access on procedures for obtaining prior informed consent (PIC) and mutually agreed terms (MAT) including benefit-sharing;

• Making information available on CNAs, relevant IPLCs, and other relevant stakeholders; and

• Liaising with the CBD Secretariat.

NFPs are generally named individuals within key ministries responsible for ABS issues. Key questions to help determine which entity should be designated as NFP include:

• Which ministry has the most relevant mandate?

• Should one institution act as both NFP and CNA?

• Should ABS measures set out a legal mandate for NFPs?

Often, the choice of NFP is aligned to the ministry responsible for the specific ABS priorities within each country. Common choices for NFPs are ministries responsible for international affairs, the environment, natural resources, forests, agriculture, science and technology, or specialized biodiversity institutes. It is important to mention that Parties have the option to identify both political and technical focal


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points.

Competent National Authority

The CNA or CNAs are responsible, in accordance with national legislation, for administering the ABS systems. Their main duties are:

• Granting access or issuing written evidence that access requirements have been met; and

• Advising on applicable procedures for obtaining PIC and establishing MAT.

The 2002 Bonn Guidelines offer a more extensive list of potential functions that countries could voluntarily assign to the CNAs. These functions include:

• Advising on the process of access applications and negotiation of ABS agreements;

• Consulting on mechanisms to implement, monitor, evaluate, and enforce ABS measures and agreements;

• Promoting and supporting the effective participation of stakeholders, especially IPLCs; and,

• Fostering the conservation and sustainable use of genetic resources accessed.

Parties may choose to adapt existing institutions or create new ones to fulfill the institutional functions required under the Protocol. When making this choice, it is important to consider whether relevant experience is present in existing institutions (e.g. knowledge, skills, and available human resources), or whether capacity development will be needed. The budget implications are also an important factor to consider. Parties may choose, similarly, to take a centralized institutional approach, with one ministry or institution in charge of all the functions of the CNA. Many countries have, for instance, selected the ministry responsible for the environment and natural resources. Advantages of a centralized approach:

• Designating a single authority can avoid inefficiencies and roadblocks caused by conflicting institutional interests;

• A centralized approach reduces the complexity of the ABS system.

Disadvantages of a centralized approach:

• ABS issues may be sliced into one sector, potentially within limited political


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influence, rather than recognised as cross-cutting and requiring inter-ministerial collaboration.

Conversely, Parties may choose to take a decentralized approach, with several institutions at different levels, or inter-ministerial committees, assigned functions associated with the CNA. Ministries or institutions involved may include those responsible for the environment, natural resources, agriculture, rural development, fisheries, forests, indigenous people, and state or local level authorities. Advantages of a decentralized approach:

• This approach can raise awareness of the cross-cutting nature of ABS issues;

• It can formally mandate relevant ministries and agencies to work together;

• It can take advantage of the specialized experience or expertise present in existing institutions.

Disadvantages of a decentralized approach:

• Under this approach there is a greater risks of encountering gridlocks in decision-making due to the lack of communication and coordination mechanisms and poor delineation of roles and responsibilities between institutions and actors;

• A decentralized system may be more difficult to understand and navigate.

A single institution can be assigned to act both as the NFP and the CNA. This can be suitable especially in the early stages of ABS implementation or when ABS issues are confined to a single ministry. When separate institutions are chosen to act as NFP and CNA, it is advisable to set up coordination and communication mechanisms.

Checkpoints Checkpoints are responsible for monitoring and compliance. They collect or receive,

as appropriate, relevant information related to:

• PIC and the establishment of MAT;

• The source of a genetic resource; and

• The utilisation of genetic resources.

Publishing Authority

The publishing authority is responsible for updating and sharing information on domestic ABS measures. To this end, the publishing authority submits information on ABS institutions, measures and activities to the ABS Clearing House (ABS-CH). The ABS Clearing House is a global online platform for exchanging information on


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ABS managed by the CBD secretariat. The publishing authority should ensure that all information submitted is complete, up to date, and contains no confidential data. Parties may also designate national authorized users who may assist with the drafting of national records for submission to the ABS-CH.

Once Parties have set up their core ABS institutions, and reported this information to the ABS-CH, the minimum requirements of the Nagoya Protocol have been met. Parties can then consider a third step in the design of ABS institutional arrangements, that is, to refining and further tailoring the chosen approach to the national context as experience grows. The Protocol outlines other functions that Parties can assign to their ABS institutions to support implementation, either to the core ABS institutions (i.e. the NFP, CNA, or checkpoint) or by designating new specialized institutions. These functions include: Supporting IPLCs (Articles 5, 11, 12)

In countries where IPLCs have established rights over genetic resources, or where IPLCs are holders of traditional knowledge, an institution may be established to support these populations. This institution will have functions to:

• Inform potential users of IPLCs’ rights (including granting access through PIC and sharing in benefits through MAT);

• Support IPLCs, especially women, in the development of community protocols, minimum requirements for MAT, and model contractual clauses for benefit sharing; and,

• Cooperate with the involvement of IPLCs in cases where genetic resources are found in situ within the territory of more than one Party or where the same traditional knowledge is shared by one or more IPLCs in several Parties.

Addressing special cases of access (Article 8)

The Protocol highlights certain situations that may require special or expedited access procedures, including:

• Enabling simplified access for research that contributes to the conservation and sustainable use of biodiversity;

• Allowing expeditious access in emergency cases where human, animal, or


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plant lie are threatened and access to affordable treatment is needed; and,

• Considering the importance of genetic resources for agriculture and food security.

Parties may choose to establish specialized regulatory requirements in ABS measures and designate institutions to coordinate these cases.

Ensuring compliance with domestic legislation and MATs (Articles 15, 16, 18)

Institutions may be needed to address situations of non-compliance with domestic ABS measures. Parties may also need to set up institutions capable of cooperating across borders to address alleged violations of domestic ABS legislative and regulatory requirements.

Building capacity and raising awareness (Articles 21, 22, 23);

Institutions may be needed to raise awareness and build capacity amongst ABS stakeholders and promote collaboration in technical and scientific research and development programs. Such institutions can make a meaningful contribution in supporting the implementation of the Protocol, particularly in Parties with minima experience with ABS issues.

Encouraging tools to support ABS negotiations (Articles 19, 20)

Institutions can be assigned responsibilities to raise awareness of and promote tools such as voluntary codes of conduct, guidelines, and best practices or standards on ABS and sectoral and cross-sectoral model contractual clauses for MAT. Institutions may also be needed to act as a liaison between users and providers of genetic resources and help guide negotiations of ABS agreements. Similarly, they can provide criteria for negotiators to consider, such as to include mandatory contract terms on dispute resolution and to negotiate benefits that contribute to the conservation and sustainable use of biodiversity.

Throughout the design and refinement of ABS institutional arrangements, countries can keep in mind a few overarching issues that can improve ABS policy and decision-making. Two overarching priorities include the need to engage technical expertise and stakeholder views to inform decision-making, and to foster collaboration and communication amongst the many institutions that may be involved or impacted by ABS issues. Engaging technical expertise and stakeholder views

The Protocol contains no specific requirements to engage technical expertise in ABS policy and decision-making. However, country experience has shown that engaging expertise on scientific, technical, and legal issues can lead to improved and informed decision-making on ABS issues. Relevant experience can be drawn from government, civil society, universities and research centers, and/or IPLCs. Technical committees can fulfill the following functions:


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• Provide advice and guidance to support the process of access applications;

• Develop mechanisms to identify and integrate local knowledge and best practices;

• Evaluate access applications;

• Monitor compliance on ABS agreements;

• Support and guide IPLCs; and,

• Maintain and update registries of genetic resources and traditional knowledge.

Fostering collaboration and communication

An overarching priority in the design of ABS institutional arrangements is the need to foster coordination and collaboration among the organizations involved in the system. An ABS framework typically involves different types of institutions. These include:

• Institutions involved in administering the ABS system;

• Government agencies involved in the implementation of related systems; and.

• Indirect institutions such as those that focus on science, technology and innovation, trade and economy, intellectual property rights, rural development, entrepreneurship, green markets, etc.

Several mechanisms can be used to bring agencies together for the implementation of ABS systems. Parties should consider whether existing collaboration mechanisms are already in place that can be leveraged, whether existing ABS institutions have the political influence to lead collaboration efforts, or whether new inter-ministerial are needed to formally mandate collaboration. Many countries have created inter-ministerial councils or institutions to coordinate national access to genetic resources and associated traditional knowledge. These councils can also engage and empower authorities and technical bodies at the sub-national level. Alternatively, ABS institutions (commonly the CNA) can be given a clear mandate to foster coordination and communication across relevant institutions. A variety of mechanisms can also be used such as meetings, regular information exchanges, development of joint capacity building, and awareness raising activities.

Institutional gaps for ABS in the Caribbean90

90 See GENIVAR, Thematic Report on ABS, UNDP, EPA, GEF, 2009, submitted to the Secretariat of the Convention on Biological Diversity.


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Limited technical skills for ABS implementation: Caribbean countries, like most developing countries, face a shortage of skilled technical people, particularly in the scientific and academic fields. In recent years, there has been a constant mass exodus of trained and educated individuals who have emigrated to developed countries, seeking better employment opportunities. As a result, it has been observed that the organizations responsible for implementing and enforcing the Nagoya Protocol and/or ABS laws and regulations face issues such as:

• Insufficient technical staff with a limited working knowledge about the experiences and

challenges faced by other developing countries in the implementation of ABS. • Limited pools of trained technical staff which has created high workloads and lead to high

turnover rates. • Staff members, particularly those that are new to their position, that are not adequately trained

and are unaware of important ABS issues and the role of their organization in the ABS framework.

• Staffing levels which are often inadequate therefore, activities such as enforcement, research, monitoring, and evaluation are not undertaken on a consistent basis.

• Low salaries, unattractive benefits, and limited opportunities for upward mobility and career development which are key factors that discourage staff members from becoming more acquainted with ABS issues and from committing to improving their personal as well as their organizational performance.

Insufficient budgetary resources: In addition to inadequate technical and human resources, institutions responsible for ABS issues face insufficient financial resources to adequately perform their functions. As a result of budgetary constraints, CNAs and enforcement agencies in the Caribbean struggle to ensure that conditions of research agreements are adhered to and to prevent misappropriation of genetic resources and/or traditional knowledge.

Absence of clear mandates: In most Caribbean countries, CNAs and other organizations that are expected to play roles in ABS administration do not have clear mandates on what those roles should be and what institutional investments should be made in order to make them efficient in executing this regime. The lack of clear mandates and responsibilities hampers the development of a coordinated strategy for the implementation of the Nagoya Protocol. Further, it leads to duplication of efforts, to inefficient use of scarce human and financial resources, and to confusion among other ABS stakeholders.


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Poor collaboration and coordination: The lack of clear mandates and responsibilities hinders the development of synergies and cooperation between organizations. In most Caribbean there are no formalized relations between the agencies and organizations that constitute the ABS institutional framework. As a result, research, implementation, enforcement and monitoring efforts and activities are disconnected from each other.

Limited monitoring and verification capacity: The ability of government agencies to monitor on-the-ground research activities has proven to be extremely difficult given the limited resources with which they are equipped to fulfill such a substantial mandate. This task is further complicated by the fact that researchers have little supervision while conducting field work, and that it is easy for them to leave most Caribbean countries using illegal exit points.

A related problem is the lack of formalized verification procedures for genetic products during customs clearance. In most Caribbean countries, customs officers are not aware of the permits that researchers require when seeking to export specimens and, lack the knowledge and the tools to differentiate between the hundreds of thousands of types of specimens. As such, there is usually no way to guarantee or verify that the products being exported are the ones that have been granted authorization.

Limited stakeholder involvement: Participatory committees as part of the ABS operational and institutional framework, inclusive of IPLCs, are non-existent in many Caribbean countries, with some exceptions. Additionally, there is generally limited involvement of stakeholders within the private sector. One of the main reasons for which stakeholder organizations fail to actively engage in ABS issues is the poor understanding of the responsibilities and roles that agencies and organizations should play.

Key priorities for strengthening ABS institutional capacity in the Caribbean

Fulfilling the mandates of the Nagoya Protocol will require Caribbean governments to address ABS institutional gaps through the development and implementation of long-term strategies and short-term measures. In the immediate future, governments should take action to:

1. Attract and retain skilled technical workers, with knowledge and experience on ABS issues, through competitive salaries, benefits, and career development opportunities. Similarly, it is imperative to provide adequate training and to ensure that agencies and organizations are adequately staffed to perform their duties.


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2. Secure sufficient financial resources for agencies and institutions responsible for ABS issues. Additionally, it is necessary to create and establish mechanisms to ensure efficiency, accountability, and transparency in the use of financial resources.

3. Define the roles and responsibilities of key agencies and institutions within the ABS framework.

4. Foster greater and more effective communication, collaboration, and coordination between

agencies and organizations in the ABS institutional framework. It is also imperative to formalize relationships in order to provide certainty for all stakeholders.

5. Create mechanisms to supervise researchers while conducting field work in order to prevent

genetic resources from being removed without the explicit authorization of the relevant CNA. Similarly, efforts should be made to increase vigilance and prevent the smuggling of specimens through illegal exit points and to implement a system, and/or procedures,for verification of genetic resources.

6. Meaningfully engage IPLCs and other stakeholders in decision-making processes. Securing

active participation of the people in the ABS management processes is critical if lasting changes are to be made.

Opportunities for strengthening ABS institutional capacity in the Caribbean

An important question to consider is, how can Caribbean countries enhance ABS institutional arrangements and move forward towards the successful implementation of the Nagoya Protocol? Areas where opportunities exist to improve ABS management systems include:

Financing mechanisms: Due mainly to their size, countries in the Caribbean have limited resources for developing ABS measures and regimes. Under these circumstances, it is imperative to develop and implement mechanisms designed to secure sufficient financial resources without placing additional pressure on national budgets.

Financing should be seen in the broader context of economic policies and instruments that will be used to promote biodiversity conservation and sustainable use. Thus, Caribbean countries can use all, or a combination of, the following tools: 91/92

Application fees: Specific fees imposed to review research applications on genetic resources and issue permits. Access fees: Specific fees imposed in return for access to genetic resources.

91 Convention on Biological Diversity (2013). "Caribbean: Financial Planning for Biodiversity." Retrieved from: https://www.cbd.int/financial/doc/id51-caribbean-financial-planning-en.pdf 92 Government of Quebec. "National level implementation of access to genetic resources and benefit sharing arising out of their utilization (ABS)." Retrieved from: http://www.mrif.gouv.qc.ca/document/spdi/fonddoc/FDOC_doc_3472_ABS_sensitiz_EN_2008-07.pdf


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Licensing fees: Specific fees imposed for granting commercialisation licenses for products developed using acquired genetic resources. Export fees: Specific fees imposed to allow the export of genetic resources. Royalties: Percentage of revenues made from the commercialisation of products developed using acquired genetic resources. Special fees: Specific fees to be paid to trust funds supporting conservation and sustainable use of biodiversity. Fines: Financial penalties imposed by regulatory authorities or courts for breaching research or ABS agreements, or for misappropriating, or attempting to misappropriate, genetic resources and/or traditional knowledge.

Caribbean governments, in addition, should foster partnerships between governmental and non-governmental organizations in order to mobilize resources. These partnerships have proven to be an effective mechanism to advance biodiversity conservation efforts in the Caribbean.

In Trinidad and Tobago, for example, the Royal Bank has a long tradition of supporting environmental initiatives, including through its Young Leaders Program. The Guardian Life Wildlife Fund has supported several conservation projects, including those of Nature Seekers Inc. for protection of leatherback turtles. Additionally, the First Citizens Bank recently formed ‘Citizens in Action to Restore the Environment’ (CARE).93

The general feeling by the public about corporate involvement in the Caribbean is that there is much more that can be done by this sector in terms of supporting existing initiatives with their organizational resources and through financial commitment.

Institutional Collaboration: With the need for improved communication and collaboration among institutions responsible for ABS issues and biodiversity management, Caribbean governments should establish mechanisms to promote effective cooperation and coordination.

In Guyana, formal Memorandums of Understanding (MoU) have successfully been used to define relationships between agencies and institutions involved in ABS management. An MoU is an agreement between two (bilateral) or more (multilateral) parties. It expresses a convergence of will between the parties, indicating an intended common line of action.

The use of MoU formalizes relationships and helps define and/or clarify functions and responsibilities of organizations, thus strengthening the ABS process and the overall institutional framework. Furthermore, MOUs ensure that the role of organizations in the ABS process will continue, even in light of staff or management changes.

Stakeholder Engagement: Caribbean governments should also strive to meaningfully engage IPLCs and other stakeholders in ABS decision-making processes and biodiversity management.

93 Biodiversity Strategy and Action Plan for Trinidad and Tobago. Retrieved from: https://www.cbd.int/doc/world/tt/tt-nbsap-01-p2-en.pdf


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In Trinidad and Tobago there have been attempts to achieve this through the development of a Programme of Work which is operationalized with the establishment of Working Groups based on stakeholder clusters e.g. public agencies, NGOs, CBOs, research institutions, the private sector, and other interest groups. The mandate of the Working Groups is defined in specific Terms of Reference (ToR).In some cases, Working Groups meet and exchange views through electronic means (e.g. intranet), which improves logistics and facilitates consultations since stakeholders can make inputs as their schedules allow.

Implementing this mechanism in other Caribbean countries will require commitment. Governments would have to establish financial, or other types of incentives, to ensure ongoing participation. Additionally, within the public sector, such involvement should be institutionalized so that participation is not seen as an "add on" to already heavy workloads.


10.5.1 Case Studies

1. Ruiz Muller, Manuel (2016). “Access and Benefit-Sharing Policy and Legal Framework in Central America and the Dominican Republic.” Comisión Centroamericana de Ambiente y Desarrollo. (p.14 -17) https://absch.cbd.int/api/v2013/documents/76AAE394-EB57-FB19-64F6-F2FB9CDD07DB/attachments/ABS%20Policy%20and%20Legal%20Framework%20Central%20America%20and%20Dom.Rep_english.pdf

2. Al-Janabi, Suhel et al. (2016). “Concept for National ABS Gap Analysis.” The ABS Capacity Development Initiative. https://snrd-asia.org/concept-national-abs-gap-analysis/

10.5.2 Readings

1. Richerzhagen, Carmen (2014). “The Nagoya Protocol: Fragmentation or Consolidation” Resources 3(1).http://www.mdpi.com/2079-9276/3/1/135/htm

2. Treml, Eric A. et al. (2015). “Analyzing the (mis)fit between the institutional and ecological frameworks of the Indo-West Pacific.” Global Environmental Change 31. http://pedrofidelman.com/pdf/Treml_et_al.2015.AnalysingTheMisfitBetweenInstAndEcolNetworks.pdf

10.5.3 Videos

1. Institutional Learning – Conservation International. Amargit CI. January 2008: https://www.youtube.com/watch?v=b4n11O594zM

2. Talk Africa: Conservation through cooperation. CGTN Africa. May 2017: https://www.youtube.com/watch?v=vk71nA4A-qI


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11.0 Supportive Measures 11.1 Course Objectives

• Identify and understand the different tools and mechanisms that can be used to assist with the implementation of the Nagoya Protocol at the domestic level;

• Understand the role of the ABS Clearing-House in facilitating the sharing of information related to ABS and relevant to the implementation of the Protocol;

• Develop an understanding of the indicative steps that Parties can undertake to design and develop awareness-raising activities, plans, and strategies;

• Learn a strategic and coordinated approach to capacity-building and development for the effective implementation of the Nagoya Protocol; and

• Recognize the role and value of tools such as, model contractual clauses, voluntary codes of conduct, guidelines, best practices, and standards, in supporting the implementation of the Nagoya Protocol.


The Nagoya Protocol includes obligations that outline a range of tools that Parties can develop as a “package of actions” needed to support its implementation at the domestic level. Supportive measures are institutional, administrative, or policy mechanisms. They also include tools, instruments and actions that aim to assist with the operationalization of the Protocol and to contribute to a more effective and tailored implementation suited to national contexts and the needs of particular stakeholders and sectors.

Supportive measures are key to ensuring that realistic regulatory approaches are adopted, and, once passed, are implemented effectively and in a manner that contributes to national goals. The key ingredients to effective ABS measures include, capable authorities, empowered IPLCs and relevant stakeholders, sufficient human and financial resources, and mechanisms to monitor implementation that enables adaptation as experience grows.

11.3 Protocol Requirements

The Nagoya Protocol contains a number of obligations that outline a range of tools and mechanisms to assist with the implementation of domestic ABS measures, including:

Obligation to take supportive measures

Parties are obliged under the Protocol to take measures to: • Designate ABS institutions, including one national focal point (NFP), one

or more competent national authority (CNAs), one or more checkpoints, and a publishing authority;

• Make information available to the ABS Clearing-Hose, including on ABS measures, contact information of the NFP and CNAs, and the issuance


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of permits or their equivalent; • Raise awareness of the importance of genetic resources and associated

traditional knowledge, and related benefit-sharing issues; • Build capacity to support key aspects of implementation based on a

country’s self-assessment of national needs and priorities including capacity to develop ABS legislation, negotiate mutually agreed terms (MAT), and in country research capability and institutions; and,

• Facilitate inter-state collaboration on technology transfer and

transboundary issues.

Obligation to encourage supportive measures

Parties must promote and encourage the development, update, and use of: • Sectoral and cross-sectoral model contractual clauses for MAT; • Voluntary codes of conduct, guidelines, and best practices or standards.

Obligations to Consider

Parities should consider providing financial assistance to developing country Parties, and Parties with economies in transition, to effectively implement the Protocol. This can be done through contributions to the Global Environment Facility (GEF), which is the financial mechanism of the CBD, or through bilateral, regional, and/or multilateral channels of cooperation.

Some of these obligations were discussed in previous modules therefore, this module will focus on the supportive measures that are meant to assist with implementation of the Nagoya Protocol but have not been addressed in other modules, specifically:

• Overview of the ABS Clearing-House; • Awareness –raising; • Capacity-building; • Model contractual clauses; and • Voluntary codes of conduct, guidelines and best practices or standards.

ABS Clearing-House

Article 14 of the Nagoya Protocol establishes the ABS Clearing-House as a means for sharing information related to ABS. Its goal is to provide widespread, easy access to information made available by each Party and relevant to the implementation of the Protocol.

In practical terms, the sharing of information is done through an online platform designed to enable Parties, non-Parties, IPLCs, international and Non-Governmental Organizations (NGOs), research institutions, and businesses, to make ABS related information available and accessible. The Clearing-House is a platform where countries can share information on procedures for accessing genetic


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resources and mechanisms to assist in monitoring such resources along the value chain. By doing so, it contributes to enhancing the legal certainty and transparency that both providers and users of genetic resources and associated traditional knowledge are looking for.

What does the Protocol require in terms of the ABS Clearing House?

To ensure that the ABS Clearing-House fulfills its role, Article 14 states that Parties to the Protocol are required to make available certain key types of information through the ABS Clearing-House, such as:

• ABS legislative, administrative, and policy measures; • Information on the NFP and CNA, or other authorities; • Information on permits, or their equivalent which are issued at the time of access, as evidence

of the decision to grant PIC and of the establishment of MAT.

In addition to this key information, Parties can voluntarily provide information on:

• Relevant competent authorities of IPLCs; • Model contractual clauses; • Methods and tools developed to monitor genetic resources; or, • Codes of conduct and best practices.

Non-Parties are encouraged to use the ABS Clearing House and make information available under the same conditions as Parties.

Information made available in the ABS Clearing-House can be classified into three major categories:

National records National records are managed and published by governments of both Party

and non-Party countries. The ABS Clearing-House hosts the following records:

• Information of NFP and CNAs; • Designated checkpoints; • Legislative, administrative, and/or policy measures on ABS; • Information on the permits, or their equivalent, for constituting an

internationally recognized certificate of compliance; • Interim national report on the implementation of the Nagoya Protocol; • Information for the checkpoint communiqué; and • ABS national websites and databases.

In the ABS Clearing-House, records are submitted under common formats. Common formats are standardized forms to facilitate submission of information for all countries in a harmonized manner. The common formats make the use of a controlled vocabulary and metadata in order to facilitate


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consistent registering and search properties. In order to ensure that records made available in the ABS Clearing-House are reliable, each country, through its NFP, is required to designate a single person, known as the Publishing Authority, to be responsible for publishing all their national records.

Reference Records Reference records include a number of ABS relevant resources and information that can be submitted by any registered user of the ABS Clearing-House (including Parties, non-Parties, governments, NGOs, IPLCs, and relevant stakeholders. The ABS Clearing-House hosts the following types of reference records: • Community protocols and procedures, and customary laws; • Model contractual clauses, voluntary codes of conduct, guidelines and

best practices and/or standards; • Capacity-building initiatives (including projects, programmes, and

activities); • Virtual library resources including, among others, general literature,

awareness-raising materials, case studies, videos, capacity-building resources, etc.

Secretariat of the Convention on Biological Diversity managed records

The ABS Clearing-House also hosts records managed and registered by the Secretariat of the Convention on Biological Diversity (SCBD). These records contain information related to the work of the SCBD, such as, notifications, press releases, statements, news and information on meetings organized by the SCBD.

Awareness Raising

In many countries, relevant stakeholders and ministries have limited awareness on ABS issues and its potential. Awareness-raising efforts are critical from the early stages of Protocol implementation and should be maintained and refined throughout the design and implementation of measures. These efforts can help ensure that stakeholders set realistic expectations and provide meaningful input on their concerns, interests, and priorities. This can build buy-in and lead to a better implementation of ABS measures and to the achievement of concrete benefits for the country.

What does the Protocol require in terms of Awareness Raising? Article 21 requires Parties to take the following measures:

• Raise awareness on the Nagoya Protocol and the importance of fair and equitable benefit-sharing for genetic resources and associated traditional knowledge;


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• Raise awareness and support IPLCs and relevant ABS stakeholders on ABS issues by

organizing meetings, establishing a help desk, disseminating information through a national ABS Clearing-House, and promoting voluntary codes of conduct, guidelines and best practices in consultation with IPLCs;

• Support IPLCs, in particular, by ensuring their meaningful involvement in implementation

activities and by raising awareness of community protocols and IPLCs’ procedures relevant to ABS;

• Raise awareness of users and providers about their ABS rights and obligations through

education and training programs; and,

• Raise awareness of authorities, IPLCs and stakeholders involved in the ABS implementation process and build partnerships by promoting the exchange of experiences, as appropriate, at the domestic, regional, and international levels.

Effective communication, education, and public awareness are essential for the successful implementation of the Nagoya Protocol and related national ABS measures.

In developing awareness-raising activities, plans, and strategies, Parties may consider the following approaches:

Develop situational analysis and awareness-raising strategies:

A starting point for ABS communications is to understand the current state of communication on ABS issues in the country by: 1) Undertaking a communications situational analysis through the following

steps: • Define communication goals on ABS: Parties can define their

own strategic communication goals on ABS suited to national priorities and ABS potential. A core goal can be to raise awareness of the importance of genetic resources and associated traditional knowledge.

• Survey attitudes and awareness: ABS issues involve a variety of actors, each with their own priorities and interests, from governments, NGOs, research institutions and industry, to the education and training sector, media, and IPLCs. Parties can conduct surveys to identify key target groups, understand their current level of awareness and information needs, and determine appropriate messages and channels of communication.


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• Audit existing material: Awareness-raising efforts need not start from scratch. Parties can review and evaluate the relevancy and adequacy of existing communication tools to achieve ABS communication goals. The audit should include tools and initiatives of partners in different government ministries, NGOs, businesses and research communities, as well as IPLCs.

• Create a roster of experts: Parties are encouraged to create a

roster of experts that includes communication professionals with experience in ABS, and technical and legal experts that can act as subject matter experts for the creation of awareness-raising materials.

2) Developing awareness-raising strategies, at national, regional, or sub-

regional levels. These must consider key messages, along with timelines, resource requirements, and an evaluation framework to ensure messages are refined according to stakeholder reactions and changing information needs.

2. Create awareness-raising materials:

Once the target stakeholder group and key messages are known, Parties can move to adapting existing or developing new communication materials for ABS, including:

• Print materials such as brochures and factsheets; • Electronic media products, such as videos, radio spots, and

websites; • Materials for use in formal education; • Others.

In creating materials, Parties should seek the input of key stakeholders, including IPLCs, to ensure that they would be effective in raising awareness.

3. Train communicators and engage target groups:

Parties can proceed to implement their ABS awareness–raising strategies. Indicative steps can include:

• Training ABS communication experts: It is imperative to assign an institution or expert(s) to carry out the awareness-raising strategy. Training can be important to enable these communications experts to reach out effectively to target groups and deliver the key messages developed.

• Hosting awareness-raising events: Communication experts should convene events, workshops, and other forums tailored to different stakeholder groups, to disseminate key messages.


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4. Evaluate and provide feedback:

Through the process of awareness-raising, Parties should collect information on the effectiveness and reception of materials, and suitability of events organized. With this information, awareness-raising strategies can be fine-tuned and improved as experience with ABS systems grows across the key stakeholder groups and in general.

5. Make information available to the ABS Clearing-House:

Parties and non-Parties are invited to share their awareness-raising analyses, strategies, and materials on the ABS Clearing-House. By doing so, countries can learn from each other’s experiences and exchange materials, avoiding repeated efforts. Information can be submitted through the Virtual Library Form.

11.4 Capacity Building

In most countries, including those in the Caribbean, capacity building activities are needed to train and support key authorities, IPLCs, and other ABS stakeholders on mechanisms and partnerships needed to effectively support the implementation of the Nagoya Protocol. In carrying out capacity-building activities, Article 22 of the protocol requires Parties to:

Take into account the needs of developing countries and Parties with economies in transition

Parties have to consider capacity development needs, including financial resources, of developing country Parties, in particular those of the least developed countries and small island developing States, as well as Parties with economies in transition.

Identify national capacity needs and priorities

Developing country Parties should conduct national capacity self-assessments as a basis for designing appropriate capacity building activities. These assessments must include input from IPLCs and relevant stakeholders, emphasizing the needs and priorities of women.

Focus on key stakeholders

Capacity building activities should involve all relevant national actors, including government authorities responsible for implementation, IPLCs, and key stakeholders.

Focus on priority areas

The Protocol outlines four key areas for capacity building, including capacity to:

• Implement and comply with the obligations of the Protocol; • Negotiate MAT; • Develop, implement, and enforce domestic legislation and

administrative and policy measures on ABS, and, • Build endogenous research capabilities to add value to national

genetic resources.


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Consider a range of activities

The Protocol provides an indicative list of capacity building activities (Article 22.5), including:

• Legal and institutional development; • Promotion of equity and fairness in negotiations, such as training to

negotiate MAT; • Monitoring and enforcement of compliance; • Employment of best available communication tools and internet-

based systems for ABS activities; • Development and use of valuation methods; • Bio-prospecting, associated research and taxonomic studies; • Technology transfer and infrastructure; • Enhancement of the contribution of ABS to the conservation and

sustainable use of biodiversity; and • Other special measures to increase capacity of IPLCs with special

emphasis on women in the communities and relevant stakeholders.

Submitting information to the ABC Clearing-House

Parties should submit information on their capacity building resources and initiatives to the ABS Clearing-House. Doing so can promote synergy and coordination across Parties on these initiatives.

A strategic and coordinated approach to capacity-building and development is key for the effective implementation of the Protocol. In developing capacity-building initiatives, projects, and activities, Parties may consider the following questions:

What measures may require capacity building?

Parties must implement short, medium, and long-term capacity building activities focuses on the priority areas mentioned above.

What capacity building activities could be organized?

Parties can choose from a wide range of potential activities to build national capacities in the priority areas noted above. The following is a list of indicative activities that can be adopted: • Development of guidelines, manuals, toolkits, case studies on policy-

setting and legal reform; • Provision of technical and legal assistance; • Organization of trainings (e.g. workshops, courses, e-learning courses)

to develop and implement measures; • Facilitating sharing of knowledge and expertise; • Development of explanatory notes and guidelines for PIC procedures; • Other.

What funding could be allocated?

The main sources of funding that Parties can consider for capacity-building are: • The Global Environment Facility;


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• Bilateral and multilateral development assistance; • Technical cooperation with regional and international partners; • Other innovative ways of mobilizing resources at the national level,

including resource recovery, application fees, fundraising, support from foundations, public-private partnerships, etc.

How to ensure sustainable capacity development initiatives?

Some tips for building sustainable initiatives: • Involve relevant actors in the design and implementation of initiatives in

order to build ownership and political commitment; • Integrate ABS into national development plans and strategies; • Incorporate activities into regular programmes of existing institutions,

e.g. local universities and research institutions; and • Diversify the training of staff and minimize rate of turnover of personnel

for ABS capacity building activities.

How to avoid duplication of efforts and build on best practices?

In the ABS Clearing-House, it is possible to find resources that can be used for capacity-building activities. Examples of resources included in the Virtual Library are: books, articles and publications, case studies, ABS agreements, literature about ABS measures, and awareness-raising and capacity building materials, such as power point presentations, brochures, videos, guides, toolkits, booklets, etc. The ABS Clearing-House also hosts initiatives for building capacity on the Nagoya Protocol. These can provide opportunities for coordination among actors involved in capacity-building in the same geographical area, or covering similar thematic issues, and learning from each other’s experiences.

11.5 Tools to Support Implementation

The Protocol outlines other tools that can be used to support and tailor its implementation. These tools are, namely, contractual clauses, voluntary codes of conduct, guidelines, best practices, and standards.

Model contractual clauses (Article 19)

MATs are essential for the development of fair and equitable ABS arrangements. Model ABS agreements can be useful tools to: • Provide guidance in the negotiation of MAT, by suggesting terms that

enhance legal certainty, support fair and equitable benefit-sharing, and promote compliance with MAT;

• Build capacity to negotiate MAT and promote equity and fairness in negotiations.

Voluntary codes of conduct, guidelines, best practices, and/or standards

Different types of genetic resources (e.g. animal, plant, microorganisms) are used by different types of users (e.g. botanic gardens, academic researchers, private companies) for different purposes (research, commercialization) in a variety of sectors (e.g. agriculture, pharmaceutical,


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horticultural, cosmetics, biotechnology). These tools can be useful to assist these different groups to undertake ABS activities tailored to their specific needs, interests, and capacities.

Parties are responsible for encouraging the development, update, and use of model contractual clauses, voluntary codes of conduct, guidelines, best practices, and standards. These tools can be developed by various actors, including governments, international organizations, IPLCs, and relevant stakeholders.

Benefits arising from the Implementation Tools:

• Promote consistency, legal certainty and transparency; • Reduce transaction costs; • Support compliance with national ABS measures; • Assist in the development of ABS agreements consistent with the CBD and the Nagoya

Protocol; • Build trust and a shared understanding of ethical behaviour and standards; and • Raise awareness and engagement of actors in sectors with ABS interest but limited

familiarity with the Protocol.

Some options that Parties can consider in order to promote the development of these tools include:

• Outlining a specific mandate for the CNA or other authority to promote the development and use of these tools by users or providers of genetic resources;

• Foreseeing the endorsement of the use of model clauses, codes of conduct and other tools developed by third parties;

• Providing favourable treatment, including quicker processing or reduction incompliance checks, on access or applications of users that adhere to these tools;

• Organizing capacity building and awareness raising activities, or sectoral dialogues, to encourage the development of these tools in specific sectors.

It is also possible for Parties to develop model contractual clauses, codes of conduct, guidelines, best practices, and standards by themselves. These can be part of ABS measures for implementation of the Protocol or, they can provide guidance on the steps to be taken to access genetic resources and/or associated traditional knowledge in a given country in order to facilitate compliance.

Supporting ABS Measures in the Caribbean In the Caribbean, efforts and initiatives to raise awareness, to share knowledge, ideas, and opinions on ABS issues, and to build capacity have been predominantly undertaken by non-governmental organizations (NGOs) such as the International Union of Conservation for Nature


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(IUCN) and the ABS Capacity Development Initiative. These NGOs are actively collaborating with the Secretariat of the Caribbean Community and Common Market (CARICOM) to support its member states in developing legal frameworks and building capacity to implement the Nagoya Protocol. As part of this effort, the ABS Capacity Development Initiative has organized a number of regional events, including:94

• Capacity Building on the Negotiation of MATs for Access to Genetic Resources, to Support Effective Implementation of the Nagoya Protocol, 30 November-4 December 2015, Paramaribo, Suriname;

• 3rd ABS Workshop for the Caribbean Region, 24-27 November 2014, Saint Lucia. • 2nd ABS Workshop for the Caribbean Region, 25-29 November 2013, Kingston, Jamaica; • CARICOM Regional Training Workshop on Drafting Legislation for the Implementation of the

Nagoya Protocol, 26-28 June 2013, Roseau, Dominica. • BIOPAMA Inception Workshop for the Caribbean, 22-25 January 2013, Bridgetown,

Barbados; and, • 1st ABS Workshop for the Caribbean Region, 3-4 September 2012, Port-of-Spain, Trinidad

and Tobago. •

Reports on some of these workshops should be reviewed by training participants and can be found at: http://www.abs-initiative.info/countries-and-regions/caribbean/


11.6.1Case Studies

1. Royal Government of Bhutan. (2015). ”General Process for Access & Benefit Sharing (ABS).” Ministry of Agriculture and Forests. http://www.moaf.gov.bt/poster-of-general-process-for-access-and-benefit-sharing-abs/

2. Government of Guyana. (2012) “Knowledge Café Guyana – Access to genetic resources and benefit- sharing.”http://www.portalces.org/sites/default/files/migrated/docs/Knowledge_Cafe_2012.pdf

3. Government of Ethiopia,(2012). “Code of Conduct to Access Genetic Resources and Community Knowledge and Benefit Sharing in Ethiopia.” Institute of Biodiversity Conservation. https://www.cbd.int/abs/submissions/icnp-3/Ethiopia-code-of-conduct.pdf

4. India’s ABS Model Contractual Agreements (Guidance for filling up of Forms). http://nbaindia.org/content/26/59/1/forms.html

11.6.2 Readings

1. Heidbrink, K., & M. Oepen. (2012) “Strategic Communication for ABS: A Conceptual Guide and 94 The ABS Capacity Development Initiative. "The Caribbean." Available from: http://www.abs-initiative.info/countries-and-regions/caribbean/


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Toolkit for Practicioners.” ABS Capacoty Development Initiative. https://www.cbd.int/cepa/toolkit/other-toolkits/cepa-abs.pdf

2. Convention on Biological Diversity. (2014), “Measures to Assist in Capacity Building and Capacity Development. https://www.cbd.int/doc/decisions/np-mop-01/np-mop-01-dec-08-en.pdf

11.6.3 Videos

1. What is Capacity Development. Food and Agriculture Organization of the United Nations. April 2015: https://www.youtube.com/watch?v=8ac5zFqtN2w

12.0 Compliance 12.1 Course Objectives

• Recognize issues that hinder and undermine the ability of States to effectively monitor the utilization of genetic resources and associated traditional knowledge and to enforce the requirements of the Nagoya Protocol;

• Develop an understanding of measures that Parties may adopt to ensure user compliance with domestic ABS requirements;

• Learn strategies that Parties can implement to take appropriate, effective, and proportionate measures to address situations of non-compliance with domestic ABS measures and cooperate in cases of alleged violation of such measures;

• Identify institutions that can potentially be assigned to effectively and efficiently act as checkpoints; • Understand the role of Internationally Recognized Certificates of Compliance in tracking and

monitoring the utilization of genetic resources; and • Recognize approaches, methods, and tools that Parties may utilize to promote and support provider

and user compliance with mutually agreed terms.


The compliance measures contained in Articles 15-18 of the Nagoya Protocol are a key innovation of the Protocol. The following issues motivated the call for compliance measures:

Jurisdictional issues Often, providers and users of genetic resources can be located in the same

county. In these cases, the regulation, monitoring, and enforcement activities related to access and the use of resources is clearly subject to the legal requirement and judicial processes of the country where the provider and user are present. A more complicated situation arises when genetic resources accessed in one country are utilized in another country. The innovative compliance provisions of the Protocol are needed to address these situations ensuring that the


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country where genetic resources are utilized takes measures to ensure that users within its jurisdiction respect the ABS requirements imposed by the country where the genetic resources were originally accessed.

Lack of compliance measures in user countries

Measures developed prior to the adoption of the Nagoya Protocol often established mechanisms for monitoring, inspection, and verification, such as periodic reporting, that were useful within the country where the genetic resources were accessed. However, they commonly proved to be inefficient to monitor all potential activities along the full value chain from research, development, innovation, pre-commercialization and commercialization, especially once genetic resources had left the provider country. Indeed, when genetic resources leave the country where they have been accessed for uses in other jurisdictions, the challenge of monitoring and compliance is compounded and requires inter-state cooperation. This experience over the years demonstrates that effective compliance measures are needed not only in the county where genetic resources are accessed, but also in the country where they are being utilized to ensure that ABS requirements of the provider country, and agreements between providers and users in different countries, are enforced. Compliance measures were considered an essential element of the Protocol as a means to ensure domestic ABS requirements and negotiated terms are complied with by users wherever they are located.

12.3 Designing measures on compliance

The key provisions of the Nagoya Protocol related to Compliance are:

Take measures to ensure user compliance Articles 15.1, 16.1

Parties should take legislative, administrative, or policy measures to ensure that genetic resources and associated traditional knowledge utilized in its jurisdiction has been accessed in accordance with PIC based on mutually agreed terms (MAT), as required by the domestic ABS regulatory requirements of the provider country. Provider country means the country:

• In the case of genetic resources, where it is accessed; or • In the case of traditional knowledge, where the Indigenous Peoples

and Local Communities (IPLCs) are located.

Address non-compliance and cooperate in alleged violations

Parities should take appropriate, effective, and proportionate measures to address situations of non-compliance with domestic ABS measures and cooperate in cases of alleged violations of such measures, as far and as appropriate as possible.


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Articles 15.2, 15.3, 16.2, 16.3

Monitor utilization Article 17

Parties should take measures to monitor and enhance transparency about the utilization of genetic resources in ABS activities along the full ABS value chain.

Support compliance with mutually agreed terms Article 18

Parities should take measures to support compliance with MAT negotiated between users and providers of genetic resources and/or associated traditional knowledge. While this type of compliance is a matter between the negotiating parties and regulated by private contractual law, the Protocol outlines obligations on Parties to take complementary measures to encourage and facilitate the enforcement of these terms.

Obligation 1: Taking Measures to Provide for User Compliance

The Protocol provides flexibility for Parties to determine the kind of measures (legislative, administrative, policy) that they want to implement. That said, the Protocol requires that any measures taken must be appropriate, effective, and proportionate.

Users of genetic resources and associated traditional knowledge may come from any country, therefore all countries will need to consider the design of compliance measures. Only a few examples exist of compliance measures developed to meet the obligations established. Some of the approaches taken include:

Establishing a legal standard for utilization

Some countries have established measures requiring users to meet a legal standard, such as due diligence, to ensure that genetic resources and traditional knowledge utilized in their jurisdiction were accessed in accordance with domestic legislation. Countries have made different choices on the scope of application of their due diligence requirement, in terms of its geographic and temporal application. Geographically, some countries have limited the application of the due diligence requirements to only Parties to the Nagoya Protocol, while others have chosen to apply it to any country with ABS regulatory requirements in place. Some countries have limited application to cases of access that occur after the entry in force of the Nagoya Protocol, while others have chosen to apply to all cases of access. Countries that choose the broader temporal application must provide a mechanism for countries to “regularize” past cases of access.


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Imposing direct obligation on users

Other countries have chosen to establish a direct obligation on users within their jurisdiction to utilize genetic resources and associated traditional knowledge only in accordance with the PIC and MAT of the provider country. Using this approach, Parties may establish a requirement on users to provide information and evidence that access to genetic resources in foreign countries was done legally, with PIC obtained and MAT established. (e.g Norway, Denmark, draft legislation in Malaysia).

Registering designated or trusted collections

In some jurisdictions, procedures have been put in place to register designated in situ and ex situ collections as “trusted sources.” The concept of trusted source aims to establish entities that have undertaken the steps needed through pre-approved procedures and documentation that demonstrate compliance with legal requirements (e.g. European Union)

Obligation 2: Address Non-Compliance and Cooperate

The following approaches may be taken to meet obligations established under Articles 15.2, 15.3, 16.2, and 16.3 of the Nagoya Protocol:

• Imposition of civil sanctions on users that fail to comply with requirements of user measures; • Collaboration between ABS authorities in cases of non-compliance reported by various actors,

such as other ABS authorities, IPLCs, and stakeholders; • Exchange of information on several aspects (e.g. PIC and MAT established, contract

concluded, applicable legal framework, existing national civil and criminal procedures and remedies);

• Sharing results of investigations such as, details on the alleged violation, relevant reports, evidence collected, etc.;

• Facilitating dialogue and mediation, if appropriate, between the NFP, CNA(s), the provider, the IPLC and the user involved in the alleged misappropriation.

Obligation 3: Monitor Utilization of Genetic Resources

Actions called for under this obligation are intended to ensure that Parties receive and share timely and accurate information about how genetic resources are being used in their jurisdiction. This information is critical to ensuring that domestic ABS requirements are being met wherever utilization is taking place. An effective monitoring system must consider how to collect and share information along many stages of the ABS value chain; from initial access to product marketing, especially when foreign actors are involved.

Artcile17 of the Protocol sets out the core requirements on monitoring. Parties should:


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Designate one or more checkpoints

Parties should designate one or more checkpoints to collect or receive relevant information related to PIC, to the source of the genetic resources, to the establishment of MAT, and/or to the utilization of genetic resources. As part of this requirement, Parties should:

• Require users to provide information to the checkpoint; • Take measures to address non-compliance with this requirement; • Provide the information received to national authorities, provider

Parties, and the ABS Clearing-House.

Parties can take a step-by-step approach to choosing the most suitable institutions as checkpoints. As a first step, it can be helpful to diagnose, or map out, which actors are using, or may be interested in using, genetic resources found in a given country. Next, Parties can examine whether administrative procedures are already in place that these actors commonly interact with. If so, it maybe efficient to designate the institutions responsible for these administrative procedures to also act as ABS checkpoints. A few countries have identified official checkpoints and provided this information to the ABS Clearing-House. Countries are increasingly considering and designating ABS checkpoints, however this information is still limited. Some choices made to date and possible options to consider include:

1. Competent National Authorities: CNAs are required to fulfil the core functions outlined in Article 13 but can also be designated as a checkpoint. A key issue is to ensure that the CNA, if chosen as a checkpoint, has the capacity and resources to carry out the additional verification functions of a checkpoint, as well as its core CNA functions, in an effective and functional manner. This option has been adopted by South Africa, Switzerland, Croatia, Denmark and Peru, amongst other countries.

2. Agencies that fund research: As funding is necessary for research on genetic resources, public research funding agencies act as checkpoints. Further, given that grantees are usually required to report regularly on research progress, research funding agencies could require that this regular reporting include information on whether PIC and MAT have been established.

3. Institutions that publish research: Publishers and entities

engaged in the publication of research results related to the utilization of genetic resources could act as checkpoints. These institutions could create a requirement that journal articles and


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materials submitted for publication disclose information related to PIC, MAT, and/or the utilization of genetic resources.

4. Intellectual Property Rights Offices: Intellectual Property Rights

offices can act as checkpoints when they are responsible for granting intellectual property rights, such as patents and plant variety rights, on inventions or innovations that are based on the utilization of genetic resources.

5. Agencies responsible for product approval or market

authorization: Authorities that regulate or grant authorization for selling of products in the market may also be suitable checkpoints. Before granting approval for a particular product that was produced utilizing genetic resources, or associated traditional knowledge, these agencies can require proof that the user complied with applicable PIC and MAT requirements.

Parties have flexibility in choosing relevant institutions and authorities to

act as checkpoints. When considering the feasibility of potential checkpoints, Parties should consider how to:

• Assess existing institutional, legal, or administrative frameworks to

identify relevant institutions, such as those that govern the granting of public funding, set criteria for granting intellectual property rights, oversee market approval for products based on the utilization of genetic resources, import and export regulations, amongst others;

• Leverage existing mechanisms and practices that require disclosure of information related to the use of genetic resources and traditional knowledge;

• Identify opportunities to harmonize and avoid disruption with other related regulatory and permitting processes;

• Assess the need for capacity building and awareness–raising of institutions or entities identified as potential checkpoints; and

• Minimize transaction costs and potential effectiveness or bottlenecks associated with the functioning of selected checkpoints.

Encourage reporting requirements in mutually agreed terms

Parties must encourage provisions in MAT to share information on the implementation of such terms such as, through reporting requirements. A reporting requirement, or similar tool, can be an effective tool for monitoring the utilization of genetic resources through the full ABS value chain. It is common practice that MAT, or contracts between users and providers, include reporting requirements. These can take the form of research progress reports (e.g. to be submitted annually or biannually) or final research reports. Research reports can also function as a mechanism for


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non-monetary benefit sharing as the information within the reports can contribute to enhancing the knowledge related to the value of the country’s biodiversity. The following approaches can be taken by countries to implement this obligation:

1. Include reporting requirements directly in ABS measures: Some countries have included provisions with reporting requirements directly in their ABS legislation (e.g. Australia). These provisions can require users and providers to include a clause on reporting requirements in the negotiated ABS agreements that details what information should be reported and at what frequency.

2. Include reporting requirements in the permit or contracts: Parties may choose to leave reporting requirements as terms to be negotiated between the user and the CNA when it acts as a provider, or other providers. Thus, even in the situation where ABS measures do not require mandatory inclusion of reporting requirements, the user and provider can negotiate and agree on this clause (e.g. Costa Rica, Andean Community, Australia, and South Africa).

Encourage use of cost-effective communication tools and systems

Parties must encourage the use of cost-effective communication tools and systems to share and track information on the utilization of genetic resources. Article 6(3)(e) requires Parties to issue a permit, or its equivalent, as evidence of PIC and MAT. This information is to be made available to the ABS Clearing-House. This permit, or equivalent, when made available to the ABS Clearing-House, constitutes an Internationally Recognized Certificate of Compliance (IRCC). The IRCC is designed to be a globally authoritative certificate that provides evidence that domestic ABS requirements have been met. It is a tool that can offer proof of legality and provide legal certainty to users of genetic resources, as they are able to provide information and evidence of PIC and MAT to checkpoints. The IRCC, in addition, helps enhance transparency on how the genetic resource is being utilized through all stages of the value chain until commercialization of final product, and under different jurisdictions while at the same time ensuring confidentiality of data. In order to establish an IRCC, Parties need to use the IRCC form on the ABS Clearing-House site to publish information on their permit or equivalent. Once published, an IRCC is issued, with courtesy copies sent electronically to the NFP and CNA of the country responsible for issuing the permits or


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equivalent, the provider (if not confidential) and the person or entity to whom PIC was granted (if not confidential).

12.4 Compliance with Mutually Agreed Terms

Under Article 18 of the Protocol, Parities should take measures to support compliance with MAT negotiated between users and providers of genetic resources and/or associated traditional knowledge. As mentioned at the start of this module, this type of compliance is generally a matter of private contractual law between the user and provider. However, the Protocol recognizes that Parties can play a key role in ensuring compliance with the MATs negotiated between users and providers. This role can be especially important in situations when the provider and user are from different countries (i.e. when the user has left the provider country and is utilizing the genetic resource in a country other than the country in which the resource was accessed).

While approaches taken will depend on national context, specifically the justice system and mechanisms for alternative dispute resolution, the Protocol highlights certain measures and tools that can be useful to ensure compliance with MAT. Article 18 outlines three specific justice measures for Parties to promote:

Encouraging the inclusion provisions in MAT on dispute resolution

Parties must encourage providers and users of genetic resources and associated traditional knowledge to include dispute resolution processes, including on:

• The jurisdiction to which they will subject any dispute resolution processes;

• The applicable law; and/or • Options for alternative dispute resolution.

The determination of how disputes are settled may be a matter to be determined by the provider and users during contract negotiations. Commonly, each actor expresses a preference for their own home jurisdiction. However, national legal measures may be put in place to oblige the user to accept the law and jurisdiction of the provider. Some approaches taken by countries to date include:

• Incorporating dispute resolution provisions within ABS measures. For example, the law, the decree, or administrative decisions or resolutions could specify compulsory elements on dispute settlement that must be included in the MAT of negotiated ABS agreements;

• Providing voluntary orientation and guidance. For instance, through non-mandatory guidance like voluntary guidelines or codes of conduct;

• Include dispute settlement provisions within model contractual


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clauses. These clauses may be mandatory or indicative.

Ensuring an opportunity to seek resources is available in legal systems to deal with disputes

Article 18(2) of the Protocol establishes an obligation on each Party to ensure at the domestic level that resources are available under its legal system if a dispute arises from MAT. This provision arose from the desire of some Parties to get some kind of assurance from the Protocol that remedies (e.g. civil and commercial) could be sought in all jurisdictions independent of the nationality of the claimant.

Adopting effective measures for access to justice, mutual recognition, and enforcement of foreign judgments and arbitral awards

Access to Justice: The Protocol does not define the concept of access to justice. Its broad understanding was based on the challenges of obtaining access to justice in a foreign jurisdiction, as well as concerns about the high cost of litigation, especially in developed countries. Access to justice can be defined as the ability of people to seek and obtain a remedy through formal or informal institutions of justice for grievances. Access to justice involves normative legal protection, legal awareness, legal aid and counsel, adjudication, enforcement, and civil society oversight. Measures on access to justice do not need to be specifically designed for the Nagoya Protocol or ABS issues and are often related to human rights. The following are possible components of access to justice measures:

• Ensure equal access to justice mechanisms; • Address barriers to both quantity and quality; • Enhance physical access; • Increase access through provisions of legal aid (e.g. representation

and pro-bono actions); • Promote legal awareness; • Strengthen civil society as the foundation for promoting access to

justice; • Understand informal justice mechanisms; • Support the enforcement of remedies; • Facilitate transparency in all judicial processes; • Ensure effective application of the law, ensure adequate authority to

enforce judgements, and improve the efficiency of court administration and management;

• Promote procedural fairness.

There is very limited country experience on developing measures specifically to facilitate access to justice for non-compliance with MAT. Given this lack of specific country experience, it can be helpful to explore related areas of law for guidance. A range of international instruments exist with guidance on designing access


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to justice measures in general, which may provide a useful inspiration for ABS. Meeting the obligations of the Protocol may be achieved through various legal instruments, not necessarily requiring a specific instrument to address ABS cases. Some possible approaches to promote access to justice on disputes over MAT include:

• Mandate the NFP or CNA to share information: National ABS authorities, such as the NFP or CNA, can be mandated to assist claimants to access information on legal and court procedures. Such authorities can also provide information on opportunities to obtain legal aid or support through public attorneys, pro-bono lawyers and organizations, ombudsperson offices, etc.

• Create specialized support for foreign claimants and witnesses: Parties may consider providing support to enable foreign actors to be present in their jurisdiction for any legal or court proceedings, through visa support and other means.

Recognition of foreign judgments and arbitral awards: The recognition and enforcement of foreign judgments and arbitral awards is a common provision usually found in commercial or civil procedural codes or similar legal sources. This legal concept is guided by the basic principles that promote the enforcement of foreign judgments and arbitral awards under international private law. However, very limited experience to date exists in applying this justice concept specifically to ABS transactions. A key reference is the 2005 Convention on Choice of Court Agreements adopted in the framework of The Hague Conference on Private International Law. The Convention regulates when a court must take jurisdiction or refuse to do so where commercial parties have entered into an agreement with a provision on exclusive choice of court. It also provides for the recognition and enforcement of resulting judgments, with an option for States to agree on a reciprocal basis.

12.5 Setting Policy Priorities on Compliance

Prior to designing measures to support compliance, it is important to reflect on the existing legal and institutional framework to identify opportunities to leverage existing mechanisms and capacities, as well as to identify areas where capacity must be built up to support an effective ABS system. This reflection should also support the definition of national policy priorities on compliance, thus providing a direction on what goals compliance measures should be designed to achieve.


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Setting policy priorities on compliance is necessary in order to:

• Build trust and confidence amongst providers of genetic resources and associated traditional knowledge to engage in ABS agreements and negotiations; and

• Build confidence of provider countries to welcome users from other jurisdictions with compliance measures in place.

In keeping with these principles, a range of issues should be considered to ensure informed decision-making on the design of provisions to support compliance as follows:

12.6 Key priorities for enforcing and promoting compliance with ABS measures

Which authorities are relevant to the ABS value chain?

Which authorities are currently responsible for regulating and administering activities related to the ABS value chain, from research, development and intellectual property rights? Relevant authorities may include entities responsible for market approval of products (e.g. medicines, cosmetics, herbals, etc.), public research funding and import and export, amongst others.

What legal regimes govern international private law?

What domestic framework is applicable to govern private international law (considering relevant obligations in national, regional, and international instruments and provisions), especially regarding judicial competence of courts, conflicts in laws and recognition of foreign judgments and awards? Potentially relevant frameworks may include the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the Hague Convention on the Choice of Courts, amongst others.

Which mechanisms exist for access to information and justice?

Which mechanisms are in place to support access to information and access to justice at the national level? How are international or regional Conventions that include provisions on access to justice translated into the national legal regime? This review can identify mechanisms to facilitate access to justice for nationals and/or foreigners, including options to provide access to public attorneys, clarify the role of human rights organizations and ombudsperson offices and create specialized visa procedures for claimants and witnesses, etc.

Are inter-state cooperation mechanisms currently in place?

Which mechanisms exist to cooperate with other countries to address violations of national legislation?


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Fulfilling the mandates of the Nagoya Protocol will require Caribbean governments to develop and implement short term measures and long-term strategies to ensure that both providers and users of genetic resources comply with local ABS requirements. In the immediate future, governments must take action to:

• Address non-compliance; • Support compliance with MATs; • Improve and strengthen monitoring activities on the utilization of genetic resources; and, • Establish checkpoints to verify compliance with ABS requirements.

Addressing non-compliance with ABS requirements

Caribbean countries should take immediate action to put in place legislative, administrative or policy measures to encourage compliance and to penalize, or where possible, prosecute individuals or organizations that violate ABS agreements and/or are found guilty of misappropriating, or attempting to misappropriate, genetic resources or associated traditional knowledge.

This would send a clear and strong message for users all over the world. Furthermore, it could encourage neighboring countries, as well as other developing countries, to implement similar measures. However, sanctions and penalties will have to be sufficiently strong in order to deter bio-piracy.

One option to address non-compliance with national legislation is to establish civil and criminal penalties for unlawfully accessing biological resources and, as mentioned in the module on legal reform, to use the court system as mechanism to resolve disputes.

Supporting compliance with MATs

Another point where Caribbean countries can avoid losing control over the use of genetic resources and traditional knowledge accessed in their territories is at the moment of negotiating MATs. Governments should use MATs as a mechanism to:95 • Prohibit the transfer of genetic resources and/or traditional knowledge to third parties

without authorization;

• Require the user, and any subsequent users, to seek new PIC and MAT with every change of intent in the utilization of the genetic resource or traditional knowledge;

95 African Union. "African Union Practical Guidelines for the Coordinated Implementation of the Nagoya Protocol in Africa. " Retrieved from: https://www.bioversityinternational.org/fileadmin/user_upload/campaigns/Treaty_and_Nagoya_Workshop_2015/AU_Practical_Guidelines_on_ABS-English.pdf


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• Create provisions to cover dispute resolution, including the jurisdiction in which any dispute resolution process will be conducted, the applicable law, and alternative dispute resolution mechanisms; and,

• Require users to disclose the origin or source of the genetic resource or traditional knowledge in Intellectual Property applications.

Another important aspect of monitoring compliance is for the CNA or NFP to follow up on fulfillment of MAT, including regular reporting requirements. If a user fails to comply with agreed reporting obligations, the intervention of relevant ABS authorities in the user country should be sought. Another option is to establish sanctions in national ABS laws for failing to report as agreed in the MAT.

Countries would need to retain the services of good commercial lawyers to advise the NFP, CNAs, IPLCs, or other stakeholders involved. Caribbean countries would also need to become aware of, and develop, networks with partner ABS compliance institutions both regionally and extra-regionally. The relationships from these networks will greatly improve the ability to hold accountable users of genetic resources in the countries of their domicile.96

Strengthening monitoring activities

Caribbean governments should commit to guaranteeing that sufficient technical, human, and financial resources are allocated to agencies and institutions responsible for biodiversity conservation and ABS monitoring and enforcement. In the module on Institutional Arrangements, we reviewed the strategies that Caribbean governments can implement to raise and secure financial resources for ABS activities without placing additional pressure on national budgets. These include: • Application fees; • Access fees; • Licensing fees; • Export fees; • Royalties; • Special fees; and • Fines.

The resources collected should be used to: • Deploy qualified personnel for monitoring field work and research activities closely; • Train and provide adequate tools for custom officers so that they can detect when genetic

resources are leaving the host country without the required permits or proper documentation;

96 Barbara Lassen (2016). "The two worlds of Nagoya: ABS legislation and provider countries - discrepancies and how to deal with them." Natural Justice and Public Eye. Retrieved from: https://www.publiceye.ch/fileadmin/files/documents/Biodiversitaet/The_two_worlds_of_Nagoya_11-16.pdf


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• Secure the country's borders so that illegal exit point are shut down; and, • Establish checkpoints to verify compliance with ABS requirements.

Establishing checkpoints to verify compliance with ABS requirements

Another key priority for Caribbean countries is to take measures to establish checkpoints to monitor the utilization of genetic resources. Checkpoints, as previously discussed, are a mechanism to help ensure that any genetic resources utilized in a country for research or development were accessed following the requirements of the country from which the genetic resources were originally obtained.

In the Caribbean, a central system linked to CNAs can be developed to verify if PIC and MAT have been obtained, and to guarantee that IPLCs will receive a fair share of the benefits. This system can also be used to provide standardized permits for the utilization of genetic resources that successfully pass through the checkpoints. These permits may become internationally recognized certificates of compliance if the verification process is thorough, transparent, and inclusive.

The process of verification and certification should involve different ABS stakeholders. These include: • NFPs; • Intellectual property offices; • IPLCs; • Product approval bodies; • Universities and research institutes; • Research funding organizations; • Customs departments; • National ethic committees; • Marketing and standards bodies; • Crop and breed registration bodies; and, • Export permit offices


12.7.1 Case Studies

1. The African Union (AU) Practical Guidelines for the Coordinated Implementation of the Nagoya Protocol (p. 31-39). http://www.abs-initiative.info/fileadmin/media/Knowledge_Center/Pulications/African_Union_Guidelines/AU_Practical_Guidelines_On_ABS_-_20150215.pdf

12.7.2 Readings

2. International Union for the Conservation of Nature. (2012). “Compliance with Domestic ABS


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Legislation and Regulatory Requirements.” https://www.iucn.org/sites/dev/files/import/downloads/short_paper_on_art__15_17.pdf

3. International Union for the Conservation of Nature. (2012). “Compliance with Mutually Agreed Terms.” https://www.iucn.org/sites/dev/files/import/downloads/short_paper_on_art__18.pdf

4. Feng, W. (2017). “Appropriation without Benefit-Sharing: Origin-of-Resource Disclosure Requirements and Enforcement under TRIPS and the Nagoya Protocol.” Chicago Journal of International Law 18 (1). https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://scholar.google.ca/&httpsredir=1&article=1724&context=cjil

5. Prajeesh, P. (2017). ”India Lays the Cornerstone of Biodiversity Access and Benefit Sharing.” Curent Science 112 (1). http://59.160.153.185/library/sites/default/files/India%20lays%20the%20cornerstone.pdf

12.7.3 Videos

1. Why you should care about access to justice? TEDx Talks. November 2013.https://www.youtube.com/watch?v=P63p8lBFsr8

13.0 Communications & Leadership 13.1 Course Objectives

• Understand the importance of good communication and leadership in the ABS Process;


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• Describe best practices in and challenges to successful communication in ABS; • Outline various leadership activities required at the different stages of ABS implementation and

practice;


Given the challenges of placing environmental and bio-diversity issues at the top of the political agenda in the Caribbean, in comparison to say immediate social and economic issues, Communications and Leadership will be the most critical element to the successful implementation of the Nagoya Protocol in the Region. The objective of this module is to introduce the key principles of good communication practices to support the implementation of ABS at a national level and, to educate ABS advocates and actors about various leadership approaches and qualities that will foster success in ABS implementation. It is targeted at policy analysts and technicians working in the environmental and sustainable development departments, and other related agencies across the Region. Since the work required for moving the implementation of the Protocol forward must happen in the field, at the grassroots level and in the national parliaments, a range of theoretical communication and leadership concepts are introduced. These concepts are supplemented by notes on their applicability to ABS in the Region.

13.3 The Importance of Good Communication in the ABS Process

Implementing fair, effective and complete ABS measures across the Caribbean will take a significant amount of effort and cooperation by a diverse group of people. The main element that will connect all of these people is Communication. Stakeholders involved in the ABS process will include people from international organizations, national and local governments, NGOs, civil society groups, universities, business associations, the private sector, and IPLCs. These people represent:

• Diverse levels of knowledge about ABS • Varied levels of education • Different cultural backgrounds and worldviews • A wide-range of understanding about

environmental issues • Varied levels of knowledge about, and

comprehension of, current laws and legal measures available to support the ABS process

• Different levels of opportunity to access the financial, technical and legal resources needed to negotiate in the ABS process

• Diverse political stances and priorities


Goals of ABS Communication:

• Explain the principles and potential of ABS

• Gain support of all actors in making ABS operational

• Promote the win-win opportunities that can be reached through ABS partnerships for all stakeholders

• Support the processes necessary to make ABS work


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• Disparate views and interests • Different understanding of the primary objectives of the ABS process

The creation and practice of ABS measures also includes a broad range of what would generally be considered expert issues in fields such as governance, policy, law, science, and even social justice. It also involves many different sectors and markets such as agriculture, pharmaceuticals, cosmetics and bio-technology. In addition to being complex, ABS is also relatively new. Even the community of ABS practitioners is still learning, and in many countries ABS measures are being created and implemented from scratch. In order for communication under these complex circumstances to be effective it should be:

• Informed • Planned • Strategic • Inclusive • Concise • Comprehensible • Consistent • Frequent • Trustworthy

13.4 Communication Fields of Action for ABS Implementation

It is important for all stakeholders involved in ABS implementation to understand and be able to apply good communication practices. To provide direction for these groups in moving ABS forward, participants of an African workshop in early 2011 developed a list of ‘Eight Fields of Action for ABS Implementation’. Borrowing somewhat from that list, and providing some additional insights, eight fields of action are noted below. Solid communication practices with the correct stakeholder groups will be required in each of these fields in order to achieve ABS success across the Caribbean.

Table 13.4.1: Communication Fields of Action for ABS Implementation

Field of Objective Importance of Stakeholders


Priorities of ABS Communication: • Ensure that all key messages

are being clearly understood • Promote a shared

understanding of the issues at all levels

• Encourage agreement on the specific objectives to be achieved through the ABS process

• Foster trust in the ABS process by all parties/stakeholders


Finding success in ABS will be about “leading, coordinating

and facilitating a socio-political negotiation process. The Nagoya Protocol has the potential to reduce the

complexity of ABS, but only if all stakeholders can arrive at a

shared understanding of how to implement it – which requires

good communication.”


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Action Communication Ratification of the Nagoya Protocol

To decide whether or not to ratify the Protocol

To provide information to government/parliament which is required to make informed decisions on ratification

• Political decision makers • Parliamentarians • Political parties • Lobbyists

Promoting Domestic ABS Legal Reform

To create legal reform and ensure legal certainty

To provide clarity about ABS for parliamentarians, legal drafters and decision makers

• Parliamentarians • Legal drafters • Line Ministries • Government agencies

Defining Overall ABS Policies/ Strategies

To clarify the national approach to ABS

To collect and consider relevant views and options

• Line Ministries • Research Institutes • Private sector companies • Business associations • Indigenous People and

Local Communities (IPLCs)

Establishing Institutional Arrangements

To facilitate ABS implementation with clear institutional responsibilities

To facilitate co-ordination and engender an attitude of accountability between and within institutions

• Line Ministries • Research Institutes • Private sector companies • Business associations • IPLCs • NGOs • Civil Society groups

Dealing with Traditional Knowledge

To include those in the ABS process who are entitled to benefit from the possession or control of Traditional Knowledge

To empower holders of TK with information and an understanding about their rights and opportunities and how to exercise them, and to inform all stakeholders of those same rights

• IPLCs • NGOs • Civil Society groups • Line Ministries • Government agencies • Users of genetic

resources (i.e. Universities, research organizations etc.)

Managing Access

To determine appropriate access requirements and communicate those requirements.

To ensure that all stakeholders are aware of and able to negotiate, or manage, the national access process

• Government agencies • Line Ministries • IPLCs • Users of GR

Negotiating Benefit-sharing

To facilitate benefit-sharing with holders of TK and GR

To guarantee that all parties are fairly represented and that issues are clearly understood by each stakeholder involved in the negotiation process

• Line Ministries • IPLCs • Users of GR

Making ABS Work

To enable the overall ABS process to function effectively and improve over time

To facilitate connections and ongoing dialogue between all stakeholders in the ABS processes

• Government Agencies • Line Ministries • IPLCs • Users of GR

13.5 Challenges to Successful ABS Communications


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Good communication provides the missing link between the legal, technical, environmental and scientific issues connected with ABS, and the socio-political process of legal reform, policy making, and fair and effective stakeholder participation. However, successful communication in any arena involves more than just sharing a message. Before one can even begin creating their message they should be aware of the many potential pitfalls involved in, and possible barriers to, conveying that message.

Listed below are some common pitfalls in ABS communication strategies:

• Lack of communication planning • Poorly defined communication objectives • Belief that facts are enough • Expectation that getting the word out is enough • Misunderstanding about what is important to each stakeholder group • Failure to simplify complex scientific, economic, political and social issues that are related to

ABS • Inability to bridge the knowledge gap between what the experts know and what ABS

stakeholders understand • Lack of trust between the source and receiver of the message • Failure to recognise and address political barriers • Perceived bias in communications • Neglect in equal representation of all stakeholders • Limited funds to support necessary communication • Inadequate scope of communications to reach all necessary parties • Failure of some stakeholders to participate in the communications process

Many of these pitfalls can be avoided through a well-planned communication strategy that is supported by research on, and a relationship with, the target audiences. Communications can also be ineffective due to some common barriers. Understanding the barriers to communication in ABS will help to build better communication strategies.

Table 13.5.1: Common Barriers in ABS Communications

Resentment and Distrust

Over the centuries, many indigenous groups, local communities and developing countries have been taken advantage of by larger or more powerful entities that have exploited and benefited from traditional knowledge and genetic resources that did not belong to them. This has created a culture of resentment and distrust which may be present between ABS stakeholders who will need to negotiate agreements and create partnerships. Any communications between or on behalf of stakeholders should be upfront, honest and transparent in order to overcome possible feelings of resentment and distrust.


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Perception is Reality

How people interpret messages is shaped by their worldview, culture, socio-economic background and experience. How they perceive the sender of the message also affects their interpretation. The perception the receiver creates from these influences becomes their reality which often distorts the original, intended message. Effective communications should identify influences on the perception of the message and work to directly address them.

Limited Communication Flow

Since “the receiver interprets the message based on his or her own perceptions…only feedback and exchange can create shared meaning.”97 If communication is only a one-way process it becomes a barrier to correct understanding of the message. Communication therefore should be interactive, allowing for a two-way flow of information. Furthermore, in ABS, communication is not just limited to one sender and a few receivers but rather different stakeholder groups exchanging views as both senders and receivers. In this case, the communicating agent becomes more of a moderator who facilitates the flow of information between stakeholders.

13.6 Best Practices in ABS Communications

Getting Started In light of the complexities of ABS communications it is important to be intentional and strategic when planning a communications approach. “Being strategic is about setting goals and identifying means to achieve them. Strategic communication for ABS means reaching shared meaning of its underlying concepts, principles and implications with a variety of stakeholders, and defining workable, co-operative solutions.”98

There are four simple questions to ask during the inception of an ABS communication strategy. The answers to these questions will drive the approach:

6. Where are we now? What do people know; how do they feel about ABS; and how does it affect their actions/approach?

7. Where do we want to be? What do we want people to know; how do we want them to feel/behave?

8. How will we get there? What can we do to move them from current to desired levels of knowledge, attitudes and behaviour?

9. How will we know if we are getting there? What indicators will show us if we are making progress?

97Access and Benefit-sharing: Strategic Communication for ABS, A Conceptual Guide and Toolkit for Practitioners. The ABS Capacity Development Initiative, September 2012: p8. 98Ibid, p22.


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A tool which supports this approach is to create a Communications Logic Model like the one shown in the example below: Figure 13.6.1: Basic Elements of the Communications Logic Model99 Adopted from ABS

Scan Inputs Outputs Outcomes - Impact

Activities Audiences Short term Medium Term Long Term

Conduct a Situation Analysis to determine the challenges of implementing the Nagoya Protocol at the National and Community levels in the Caribbean. [Consider: Mission, Vision, Local Values, Mandates and Genetic Resources which can be used as a platform for promotion in the particular community or country.]

What resources do we have to deal with ABS at the level of the National Focal Points?

What type of Communication Activities do we plan to do?

Who are the people/ authority do we wish to influence?

What do we hope to achieve in the short term at the country and community levels?

What do we hope to achieve in the medium term at the country and community levels?

What is the longer term aim we wish to achieve in making ABS a part of national policy and legislation?

• Money • Staff • Time • Information • Equipment • Media

Technology • Partners • Research

Support

•

• Community outreach

• Use of Radio and TV

• Use of social media

• Build strategic partnerships

• Seminars and presentations

• Indigenous and local communities and leaders

• Youth groups • Politicians and

Decision Makers • Land Trusts • Women’s

Organizations • Vendors in the

local ‘natural remedy’ arena.

• Increase awareness on ABS

• Public engagement on ABS

• ASB finds its place in the media

• IPLC motivated on ABS issues

• Behavior changes in IPLCs on valuing genetic resources

• ABS policy changes at the national level

• Political ‘sponsorship’ of ABS on the national agenda

• Activism among local NGOs to promote ABS for community and national development

• Adoption of ABS legislation and policy framework

• IPLCs and country as a whole benefitting from granting access to genetic resources

Cognizance of assumptions made that will determine whether the communication strategy will be successful.

Cognizance of external factors such as existing patents, legislation, land use and administrative frameworks

which could enable or hinder success.

The goal of these questions, and the Communications Logic Model, is to arrive at a clear picture of the current situation being faced so that decisions can be made on the challenges that need to be tackled and messages that should be conveyed. Once there is clarity in these areas a team can move ahead with defining the appropriate communications approach. Know the Audience Who Are They? In order to move forward successfully in the planning of an ABS Communications Strategy practitioners will need to know their audience; to understand which stakeholders should be reached to achieve goals in a particular field of action. Not every stakeholder must be reached with each message or be involved in every flow of communication. This would not be desirable, practical or cost-efficient.

99Flowchart adopted to ABS considerations from: Vanguard Communications. Evaluating for Social Change, www.vancomm.com. https://www.vancomm.com/2012/07/01/evaluating-social-change/ (accessed: May 4, 2017)


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Instead, certain groups should be identified to receive specific messages or be involved in particular discussions. For example, political decision makers will only need a general understanding of ABS issues; enough to understand the value of implementing these processes, whereas researchers and private sector stakeholders will need to understand the detailed processes that support the ABS system in order to navigate them successfully. According to the Food and Agriculture Organization and the ABS Capacity Development Initiative, there are five different degrees of participation:100 Information: Participation in this approach is almost non-existent. People are simply informed as to what is going to happen but have no chance to express their views. Examples include, press conferences, information booths. Consultation: Stakeholders participate to the degree that they provide information and views, and decision makers listen to them. However, the consulted groups have no control over the results of this process. Others define the problem and the solutions, while the stakeholders’ views may or may not be considered. Whether or not the proceedings are shared is up to those who control the process. Examples include, public hearings, panel discussions with interest groups Joint Planning: Stakeholders participate in situational analyses and the definition of action plans. All views are taken into account in a transparent process and final decisions are derived from this process, though not everyone has a chance to control the final outcome. An example would be an Advisory Committee. Decision making: Based on joint analyses and planning, stakeholders participate equally in final decision making, for example, with ABS policy makers. This allows for shared meaning and responsibilities for any outcomes that may result. The practice involves a negotiation process amongst stakeholders. It works best when the level of knowledge and information among the participants is not too diverse, and they have similar negotiation capabilities. Examples include, Inter-sectoral commissions or task forces. Empowerment: Stakeholders jointly analyse a given situation and derive conclusions and decisions, based on legal or other formal provisions, without being subject to external interventions in the process. In this approach, stakeholders take control over their own decisions and for the consequences that follow from them. Such self-initiated mobilization and collective action may, in some situations, challenge an existing inequitable distribution of wealth or power. Examples includes, Multi-stakeholder steering groups, Inter-sectoral Competent National Authorities Stakeholders can be identified, along with their appropriate level of participation in different situations, by working with colleagues to brainstorm all of the individuals and groups that may be relevant. This can be done by using two tools:

100Access and Benefit-sharing: Strategic Communication for ABS, A Conceptual Guide and Toolkit for Practitioners. The ABS Capacity Development Initiative, September 2012: p32.


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Overview of Strategic Groups Table: Lists the main strategic groups, their major interests and related critical practices. Stakeholder Map: Differentiates the relevance and potential impact of each stakeholder group by creating a visual representation of the various stakeholders (individual and groups), their level of interest in the ABS implementation process, and their importance to the process.

Figure 13.6.2: Stakeholder Map101

What Do They Know and How Do They Feel? Next, practitioners need to gain insight into what the relevant stakeholders already comprehend and what they need to learn, as well as an understanding of the key characteristics and motivational forces that drive their attitudes and actions. Data alone will not be sufficient at this time to identify and properly address the intended audiences. There are several tools that can be used to supplement statistical data with real world experiences and perspectives.

Four Field Analysis: This tool “allows the user to build hypotheses around what motivates each stakeholder group, what they need to know, how they look at themselves and others, and how they arrive at decisions.” 102 It looks at each stakeholder from four angles:

101Source: https://www.stakeholdermap.com/images/stakeholder-analysis-strategy.gif; Stakeholder Analysis, Project Management, templates and advice: accessed 27th January, 2018


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• Interests • Relationships • Organization • Perception

Force Field Analysis: This tool looks at driving and restraining forces – but this time with a focus on specific stakeholder groups. The tool is useful for mapping forces for or against the plan or policy, and different stakeholders’ power to influence the process.”103

Figure 13.6.3: Forces Influencing Implementation of ABS in Caribbean

Forces Supporting Change Forces Opposing Change

Rate of ABS Im

plementation

Surveying and sampling: Includes simple information surveys to more complex Knowledge-Attitudes- Practices (KAP) surveys, Participatory Rapid Appraisals (PRA) or Transect Walks.

What Messaging Techniques Will Work Best? There are several approaches that can be taken to provide valuable, quality, accurate information that

102Access and Benefit-sharing: Strategic Communication for ABS, A Conceptual Guide and Toolkit for Practitioners. The ABS Capacity Development Initiative, September 2012: p27. 103Access and Benefit-sharing: Strategic Communication for ABS, A Conceptual Guide and Toolkit for Practitioners. The ABS Capacity Development Initiative, September 2012: p27.


Benefits to IPLCs


Cost to Gain Access


Environmental Protection


Sustainable Development


ABS Policies


Low Levels of Public Awareness


Entrepreneurial Interests


Limited ABS Legislation


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is needed by the audience, while still addressing the elements of perception and attitude that create common message barriers. The following are some of the most commonly used messaging techniques:

Table 13.6.1: Commonly Used Messaging Techniques

Approach Description Example

Knowledge-to-Action Appeal

This approach provides information about ABS related issues or problems but also includes suggestions for courses of action that can be taken to address this issue.

A campaign to inform potential users of genetic resources about the new requirements around accessing those resources which also provides practical information on how complete an application for research.

Values-based Messages

Each person’s worldview, or set of values, influences the way they interpret the information provided to them. A key to good communication is understanding the values of the audience, and appealing to them appropriately, while still using accurate information.

A campaign aimed at encouraging IPLCs to provide access to their genetic resources and negotiate MATs which appeals to community leaders about the use of ABS for the greater good of the whole community.

Attention to External Influence

People tend to conform to the behaviors of those around them. Highlighting pro-ABS international actions is an effective way to influence change.

A campaign aimed at ratification of the Nagoya Protocol which features countries who have already taken action and the benefits which they are experiencing as a result.

Localized Messages

People are often put off by the wider political arguments over an issue. They will respond in a much more positive manner when they see a connection between the issue and their local experience.

A campaign to use ABS as an end to bio-piracy which highlights historical and specific regional, national and even local examples of loss of benefits due to bio-piracy.

Locally-informed Messages

People often don’t want to listen to politicians or policy makers that don’t live in their communities. They often feel that these people don’t properly

A campaign aimed at teaching IPLCs about the benefits of MATs which is carried out through public, face-to-face meetings led by


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understand the issues that the community faces. Effective messages are built on trust and local input. People need to know that their opinion on an issue matters and see it reflected in the message.

community leaders.

Target-based Communications

There is no “one-size fits all” approach when it comes to communication. Practitioners should know their audience and direct the communication accordingly. For example, communication will be different for parliamentarians versus NGOs, or research institutes versus IPLCs.

A campaign aimed at collecting information to define ABS policies which uses online surveys for public servants and research institutes versus interviewing and PRAs for IPLCs.

Planning

With an understanding of the general audience, potential barriers and some techniques to overcome those barriers, it would be time to formulate communications objectives. These objectives should:

1. Identify the target audience. 2. Reflect the intent of the communication as

well as respond to the needs of the audience.

3. Describe the intended result of the communication activity rather than the process of communication itself.

4. Describe the intended result of the communication activity in terms of the target groups’ knowledge, attitudes and practices.

5. Identify what is to be accomplished with regard to a particular ABS issue, specifically reflecting the desired impact of a communications and the anticipated change in behaviour, or adoption of practice.

6. Outline a timeframe for expected change.


An incorrect communication objective would be: • To inform parliamentarians

about the Nagoya Protocol through lobbyists.

Correct communication objectives would be: • To hold face-to-face meetings

with at least 70 percent of parliamentarians about the Nagoya Protocol and its' benefits for the economy and for the well-being of its' citizens.

• To answer questions and ease

concerns about the legal complexities and costs of preparing for ratification of the Protocol.

• To gain the support required

and ratify the Protocol within one year.


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After defining the communication objective(s), a communications strategy for reaching the communications objectives should be developed. The strategy should be based on the issues to be addressed, audience analysis, identified barriers and communication objectives. For example, using the results of a survey to help build a communications strategy is a helpful and informed approach. Reviewing survey results will help summarize the needs and attitudes of stakeholders and therefore draw conclusions about strategic priorities and the most effective communication channels. Information gathered from a survey can be organized using a simple ‘If-Then’ approach: IF the stakeholder (individual or group) already has a high level of knowledge and a relatively positive attitude towards the ABS policy at hand, but has not yet turned that into practice, THEN the strategy should focus on action. There is no need to provide more information or motivate them much further. Instead, skills training and coaching could be offered. Mass media will play a subordinate role in this case, while platforms for dialogue or training, as well as interpersonal communication, will be very important.104 A good communication strategy should determine the way information, education and communication will be used to solve problems, meet needs and reach goals. It should be detailed and organized in order to make the best possible use of resources such as time, money and staff, to achieve the maximum returns or results. All communication strategies should include a variety of communications approaches. Research shows that using a combination of mass, group and interpersonal communication is the most cost-effective. The media selected should be appropriate to the target audience’s:

• Information seeking habits and sources • Media access and consumption patterns • Communication Networks • Group communication behavior105

104Access and Benefit-sharing: Strategic Communication for ABS, A Conceptual Guide and Toolkit for Practitioners. The ABS Capacity Development Initiative, September 2012: p31. 105Environmental Communication: Applying Communication Tools Towards Sustainable Development, Working Party on Development Cooperation and the Environment, OECD, 1999: p30.


Questions to be answered by a Communications Strategy: 1. What action are we going to

take? 2. Who is going to carry out the

action? 3. How will the action be carried

out? 4. When and where is the action

to be accomplished? 5. How will we measure the

success, progress and impact of our communications through meaningful indicators?

6. What resources are required/available to carry out the communications plan?


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Each medium and tactic should be presented and explained in detail during planning. Practitioners should decide what tactics they will use, when they will be employed and who is responsible for each particular approach. It is also important to create and implement all communications material in a coordinated manner to ensure that one initiative supports the other and make the most of a campaign. Communications schedules should take into consideration:

• T

iming for each message, type of media and target audience

• Particular events, opportunities and places for optimal exposure and impact • Staged events to generate media inputs such as VIP visits, etc. • Use of existing communication channels, such as community group meetings, and how they fit

into the schedule

Production

Armed with a deeper understanding of the target audience, clearly defined communication objectives and a basic communications strategy, practitioners should now be ready to determine and create the key messages they wish to deliver as part of the communications campaign.


Successful messages are: • Verifiable • Timely • Accurate • Complete • Relevant • Unique • Memorable


Questions to ask about the message: • Does the audience care about the message? • Do they comprehend the message as it was intended? • Are they moved to act as a result of the message? • Do they accept the message as true? • Do they view the message as credible? • Do they feel the message respects them? (non-

patronizing, culturally sensitive, etc.)


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Identifying the key messages is very important “to ensure that all spokespersons and communications products formulate messages, arguments, and ideas in the same way for consistency purposes.”106 Questions to ask when defining the Key Messages include107:

• What are the main things we need to say and that need to be understood by target audiences? • What do they already know? • What do they want to know? • Can these messages be understood? • Will most people understand the message in the same way? • Is this message offensive to anyone? • Are we appealing to the core values of our target audience? • Are we making personal links with our target audience?

Once the key messages have been selected it is time to design specific messages. The effectiveness of the message depends on its ability to catch attention and be understood by the target audience.

Execution

There are many options for delivering the message depending on the tone desired for the message, and the audience. Several options are noted below: 108

Media Relations Electronic Communications Marketing and

Advertising • Press conferences • Press briefing • Media release • One-on-one interviews

• Social media • Internet • Emails • Blogs

• Television • Internet • Radio • Newspaper • Magazine • Trade Papers • Posters/billboards • Newsletters/Memos • Exhibits/Displays

Internal Communications Public Outreach • Internal Newsletters • Town halls • Lunch and learns • Policy Briefs

• Public events – information booth, special speaker

• Community group meetings, consultations

• Government relations

Monitoring

106Communications Strategy Planning Template, Harley House Consultants Inc., 2008: p10. 107 Ibid, p10. 108Communications Strategy Planning Template, Harley House Consultants Inc., 2008: p13.


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All communications strategies should include a clear definition of agreed-upon criteria that will be used to determine whether or not the strategy, approach and medium were successful. These criteria, or success indicators, should be defined during the planning phase of communications and should be clearly linked to the achievement of the communication objectives. In evaluating the success of communications practitioners should seek to determine:

• The efficiency of communication implementation from the perspectives of time, cost and other resources

• The effectiveness of each activity and the overall programme • The lasting impact of each activity and the overall programme • If the communications goals and objectives have been met

13.7 A Practical Approach to ABS Communications

There are specific qualities and activities for each of the fields of action for ABS Communications that were introduced earlier in this module. They are noted below: Ratification of the Nagoya Protocol: Ratification is the action of signing or giving formal consent to a treaty, contract, or agreement by the responsible national institution. The objective in this field of action is to “enable the parliament and other responsible national institutions to decide about ratification of the Nagoya Protocol. This decision will greatly depend on the successful creation of political momentum and will.” 109

Communication in this field will provide decision makers with the information they need about ABS in order to make informed decisions about the Nagoya Protocol and other ABS measures. Communication activities may include:

• Identifying who is involved in decision making

• Gathering information about what stakeholders already know and how they feel about ABS

109Access and Benefit-sharing: Strategic Communication for ABS, A Conceptual Guide and Toolkit for Practitioners. The ABS Capacity Development Initiative, September 2012: p12.


An interesting aspect of, and key to success for, creating an ABS message is pointed out by the ABS Capacity Development Initiative: “Do NOT talk about ABS. Most people are not the least interested in ‘ABS’ or ‘Nagoya’. What they want to know is: ‘What’s in it for me and my group or community? How does it affect me and my constituency?’…Instead of talking about how complex and conflictive all these ABS issues are, you draw an attractive image in front of your audience of how great the future will feel and look like once people engage in providing access to and sharing the benefits from the use of genetic resources.”


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• Determining what specific information different stakeholders need to know about ABS • Deciding how, where and when information should be presented to decision makers • Ensuring information is being understood as intended • Determining what role the media will have in the process, if any • Working through various bodies to promote political will at a national level110

Promoting Domestic ABS Legal Reform: The national approach to ABS will require legislative support in the form of new rules, regulations and laws which create legal certainty for both users and providers of genetic resources. Countries will need to either create new ABS legislation or adapt existing legal frameworks to support the necessary regulatory requirements for ABS. Communication in this field of action will facilitate understanding between legal drafters and decision makers, who are often not familiar with ABS, and ABS experts and stakeholders who are often not familiar with legal matters.111 Communication activities may include:

• Holding stakeholder consultations on the draft law • Developing drafting instructions • Identifying any possible unintended consequences and see to remove or counterbalance them • Following the cabinet approval and/ or parliamentary process • Answering questions about ABS from many different sources • Ensuring clear and straightforward communication about new legislation • Preparing press releases and press conferences for the responsible authorities112

Defining Overall ABS Policies/Strategies: The Nagoya Protocol does not prescribe how member states should go about implementing ABS therefore, every country is free to decide on its own national approach. There are many choices in how to tackle ABS through policy decisions such as, a market versus protective approach, the nature of the regulatory system, the structure of permitting systems, monitoring versus scrutinizing, etc. 113

Communication in this field will help to clarify ABS matters and find consensus on the policy decisions that will shape the national approach to ABS. Communication activities may include:

• Clarifying which stakeholder groups need to be involved in developing the strategy • Deciding on the nature and extent of involvement of different stakeholders

110The communication-related activities listed for this Field of Action are based on the results of an ABS communication experts’ meeting in March 2011 in Bonn, Germany. 111Access and Benefit-sharing: Strategic Communication for ABS, A Conceptual Guide and Toolkit for Practitioners. The ABS Capacity Development Initiative, September 2012: p14. 112The communication-related activities listed for this Field of Action are based on the results of an ABS communication experts’ meeting in March 2011 in Bonn, Germany. 113Ibid, p13.


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• Defining how to work with each group and how to brief them about their role • Planning milestones for the consultation process and gathering feedback to support the

creation of the strategy • Drafting and gathering feedback on the strategy • Identifying audiences who need to be aware of the strategy • Deciding about methods of presentation and dissemination of the strategy114

Establishing Institutional Arrangements: Various national institutions will be assigned to take the lead in and be responsible for implementing the Nagoya Protocol. Some of these institutions may already exist, some may only be temporary, while others will be established to support the ABS process for the long-term. The purpose of communication in this field is to enable implementation with clear institutional roles and responsibilities. Communication activities may include:

• Designing communication and co-ordination mechanisms across agencies and institutions such

as inter-departmental committees, including strengthening the role of the ABS Focal Point • Establishing mechanisms for decision making and management of genetic resources at the

appropriate sub-national levels, and for co-ordination between the different levels • Developing partnerships with NGOs, local businesses and other local actors whose activities

directly impact the use and conservation of genetic resources115

Dealing with Traditional Knowledge: IPLCs often hold traditional knowledge about genetic resources. “To protect the rights of these communities, countries with large rural populations, ethnic diversity and a rich legacy of traditional knowledge have a particular need to clarify how such knowledge can be accessed and utilised. The Nagoya Protocol requires that traditional knowledge associated with genetic resources that is held by IPLCs is accessed with PIC, or approval and involvement of the IPLC.” 116Good communication in this field of action will increase the capacity of stakeholders to manage and work with traditional knowledge. It will also inform holders of traditional knowledge to understand their rights and opportunities. Communications activities may include:

• Helping holders of TK to understand ABS policies and legislation • Assisting holders of TK to manage their expectations • Assisting holders of TK to identify and document their knowledge, including customary laws

and rules for access • Consulting and agreeing with holders of TK on methods for sharing information about the ABS

system, respecting established traditional governance structures • Working with intermediaries who have the respect and trust of IPLCs

114The communication-related activities listed for this Field of Action are based on the results of an ABS communication experts’ meeting in March 2011 in Bonn, Germany. 115Ibid. 116Access and Benefit-sharing: Strategic Communication for ABS, A Conceptual Guide and Toolkit for Practitioners. The ABS Capacity Development Initiative, September 2012: p16.


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• Working with IPLC representatives in universities as intermediaries for documenting TK, and helping them to create an environment where TK and science can meet

• Facilitating communication between groups of holders of the same TK • Encouraging seminars and informal meetings between members of different communities • Helping holders of TK to develop relevant negotiation capacities and skills • Monitoring expectations and other perspectives on ABS by regular surveys117

Managing Access: Providing access to genetic resources has great value for both users and providers, as well as society in general. Through access and research, important discoveries are made in areas such as medicine and food security. Also, there is great economic value to be found in the sustainable use of genetic resources and application of traditional knowledge for national holders of these resources. Regulating access however, is equally as important as granting it. Regulation helps to protect sustainability, limit bio-piracy and ensure that holders of resources are properly acknowledged in the access process. Communication in this field of action will provide information to support legislation around access, as well as support the access process. It will facilitate clarity throughout the process from government processes through to the end users. Communications activities may include:

• Identifying the relevant stakeholders for input on the creation of ABS processes that support

access • Identifying, cataloguing and publishing the taxonomy of species and their potential for bio-

discovery • Creating awareness among providers and users about the concept and implications of

“utilisation of genetic resources”, as outlined in the Nagoya Protocol • Informing users of genetic resources and associated TK about requirements for and processes

to obtain PIC • Creating communications mediums and supporting documentation for both users and providers

that supports the access permitting process Negotiating Benefit-sharing: Across the globe there has been a long history of exploitation of resources where the true owner of those resources does not receive benefit from their use. The Nagoya Protocol, and ABS measures in general, were created, in part, to ensure that this no longer happens. Communication in this field of action will facilitate an understanding of benefit-sharing requirements and practices amongst users and providers and will support the creation of fair and equitable Mutually Agreed Terms (MAT). Communications activities may include:

117The communication-related activities listed for this Field of Action are based on the results of an ABS communication experts’ meeting in March 2011 in Bonn, Germany.


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• Creating awareness among providers and users about the concept and implications of “benefit-sharing”, as outlined in the Nagoya Protocol

• Creating awareness among holders of TK and GR about their rights and opportunities to receive benefits

• Informing both users and providers of genetic resources and associated TK about requirements for benefit-sharing

• Answering questions, and providing further access to information and support for both users and providers, on the subjects of benefit-sharing and MAT

• Assisting in education of both users and providers on the creation and negotiation of MAT

• Facilitating the MAT negotiation process

Making ABS Work: Good communication will be a key to making ABS work. Enabling the entire ABS process to function smoothly will be about facilitating and fostering adequate participation and co-operation of different stakeholders across all fields of action. Ensuring stakeholder commitment and compliance will also require information availability at all stages and for all stakeholders that is tailored to their specific needs. Communications activities in this field of action may include:

• Identifying relevant stakeholders • Creating awareness about ABS amongst identified stakeholders • Clarifying roles and responsibilities for each stakeholder • Developing channels of communication with and between different stakeholders • Developing plans for the participation of relevant stakeholders • Creating new communications products and mediums to provide information support for

stakeholders

13.8 The Importance of Good Leadership to ABS

Leadership skills are absolutely critical in driving processes of change. As discussed in the previous modules, there are many challenges on the road to ABS success and implementing the changes that it requires. Access and Benefit sharing is a new practice across the globe which faces limited understanding of its principles in the necessary realms of action. As previously mentioned, it involves numerous fields of study and complex subject matter and, it requires agreement amongst parties with disparate priorities, and sometimes a history of distrust. It involves changes to laws and policies, which can be slow moving and politically hindered and, there is little expertise to lead the way.


Leadership is the art of directing and motivating a group of people, through the process of influence, to maximize their efforts towards achieving a common goal. Leadership is NOT…

• A title • Management • One’s position

A Leader is NOT…

• Always charismatic • A Dictator • In direct control of

everything


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Rather than just administering and organizing the change activities required to implement ABS, ABS leaders will need to:

• Enable interactions between multiple actors • Foster motivation among stakeholders • Sustain collective action toward shared ABS goals • Minimize resistance to change • Maintain trust and respect across multiple disciplines and with various groups

13.9 Leadership Types and Theories

There are many different type of leaders, including: Formal Leaders: Hold an elected or assigned leadership position within an organization, company or group of people

Emergent Leaders: Take on an informal leadership role based on the perception that team or group members have towards them. Change Agents: Any individual or group that initiates or facilitates change, whether they are from inside or outside of a group, organization or system. Champions: A person or group who voluntarily takes an elevated interest in the adoption, implementation, and success of a cause, policy, program or project, and seeks to motivate and lead others to support the same. Leadership theories have evolved over the years and different theories have been viewed as ‘best practice’ over time. Transformational, Distributed and Complexity leadership are the dominant theories in leadership thinking today. There is value in understanding each of the theories as they can offer some helpful insights into ones’ own leadership practice. Additionally, different leadership theories can be applied under different circumstances, depending on what will bring the greatest success.

Table 13.9.1: Theories of Leadership118

Theory Perspective Further Description Distributed Leadership Theory

Leadership is a process that occurs in groups and involves many leaders.

Spreads the decision-making ability throughout a team, encouraging initiative and collaboration to bring about success.

Transformational Leadership Theory

Leaders use charisma, intellectual stimulation, individualized consideration and

Suggests that leaders and followers raise one another to higher levels of motivation.

118Andre, T. Dr. The Role of Leadership for Environment and Sustainability. Guest lecture: Perspectives on Environment and Sustainability, Monash University, April 2011.


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inspirational motivation to inspire others to create and strive for shared goals.

Complexity Leadership Theory

Leadership in complex systems is an emergent phenomenon that is an outcome of interactions between many people.

This is a relatively new theory that states that three forms of leadership are needed in complex systems: Administrative, Enabling and Adaptive.

13.10 Vital Leadership Behaviours

As illustrated in the previous section, there are many different ways to lead however, there are some core practices that are vital to successful leadership: Model Ethical Behaviour: “Moral purpose is always essential for leadership.” 119Once a leader loses credibility through immoral actions, or breaks trust in a relationship, their power to lead is greatly diminished or can be destroyed altogether. Carryout Stakeholder Analysis: This is an important leadership tool which “allows frontline leaders to consider the other actors that are likely to influence efforts to bring about change in their activities, whether inside or outside their organizations or systems.” 120It causes leaders to consider what motivates other actors and what kind of power they hold over the desired change. These considerations provide a basis for building coalitions of support for decisions or an understanding of which actors need to be most carefully managed because of their power or potential resistance to change. They also provide insight on how to influence the most powerful actors.121 On the other hand, by analyzing and listening to resistors of change, a good leader may also gain insights of value from what they offer about challenges and possible new approaches. Understanding and considering the views of other stakeholders will also help to build collective commitment to decisions and the resulting future actions required.

119Fullan, M. Leading in a culture of change. San Francisco: Wiley; 2001 120Taylor & Francis Online. Everyday Politics and the Leadership of Health Policy Implementation. Retrieved from: http://www.tandfonline.com/doi/full/10.1080/23288604.2016.1217367. Accessed: December 20, 2017 121 Ibid


“Producing change is about 80% leadership and 20% management, in most change efforts those percentages are reversed. We continue to produce great managers; we need to develop great leaders.” John Kotter, Professor of Leadership, Emeritus, Harvard Business School


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Acknowledge the Position and Needs of Other Actors: Leaders should develop and support collective meaning amongst all stakeholders for the purpose of motivating certain behaviours, even if this means working with invisible or incorrect norms and beliefs that influence their behaviour. Leaders should identify real and perceived problems amongst actors in the system; find the root causes; and, find ways to resolve those problems. Leaders should also overtly recognise their importance of all actors in the process and acknowledge their contributions. They should ‘role model’ respect for others that is important for good relationships in any system. Pursue Small Wins, as well as Large: “Small wins can be understood as easy-to-take steps that demonstrate success and therefore may build actors' confidence, mindset, and the momentum for future change.” 122 Small wins are easier to implement and less likely to experience resistance to change. They can also lay the groundwork of a positive experience which will increase support for larger changes moving forward.

13.11 Leadership and ABS

ABS implementation and its supportive processes will require leadership in several different arenas and different leadership skills and activities will be required to navigate and find success in those areas.

Political Leadership: Implementing ABS, in the beginning, is a political matter. National governments need to lead the way in order to make ABS happen in their countries. Leadership to address politics “entails the practice of power and support for collective-sense making.” 123 Navigating tentative political relationships and complicated political processes to achieve a common goal through efficient practices will take solid political leadership in the various ‘Fields of Action’ discussed earlier in this module, including:

• Ratification of the Nagoya Protocol • Promoting Domestic ABS Reform • Defining Overall ABS Policies/ Strategies • Establishing Institutional Arrangements

Successful leaders in the politics of ABS will be those who can:

• Facilitate the creation of new policies which fairly reflect the rights and needs of all stakeholders and can become an efficient part of existing political and legal frameworks

• Gather high-level political consensus and support, from all parties, for the proposed policies 122 Taylor & Francis Online. Everyday Politics and the Leadership of Health Policy Implementation. Retrieved from: http://www.tandfonline.com/doi/full/10.1080/23288604.2016.1217367. Accessed: December 20, 2017 123Ibid


Political Leadership in ABS will require…

• Persistence • Patience • Influence • Political savvy • A general

understanding of legislative processes

• Ability to negotiate • Power to motivate • Excellent

communication


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• Translate policies into the necessary legislative, regulatory and administrative instruments required to support ABS implementation

• Secure the necessary resources to support the policy implementation process

Process Leadership: Once ABS implementation has successfully passed through the political arena, challenges will begin on a process level. Process is involved in ABS in almost every ‘Field of Action’ and involving many actors, including:

• The creation of new legislation and polices with different levels of government

• Managing access and monitoring access permits by Line Ministries, government workers and other organizations

• Requesting access by researchers, universities and private companies • Coordinating action amongst various institutions • Ensuring and reporting compliance to ABS rules and regulations by Line Ministries, government

workers and other organizations Creating processes with too many steps can be frustrating for participants, whereas creating process with too few steps won’t address the necessary elements to support a proper ABS system. Even ‘perfect processes’, if there is such a thing, will be difficult to implement as people are often resistant to change. Successful leaders in the process of ABS will be those who can:

• Develop a positive relationship with those intimately involved in the required processes

• Avoid a command and control approach to process implementation

• Adopt a consultative, or distributed leadership approach to process implementation

• Influence emergent leaders to become change agents and champions for processes

• Provide motivation and clarity to those who must navigate the processes

• Listen and learn from those engaged closely with the new processes

• Be willing to work and re-work a process until it becomes as efficient as possible, while still achieving its purpose

• Tackle resistance to change in a positive and


Community and Advocacy leaders in ABS will need to be… • Open • Trustworthy • Able to motivate • Concerned with the

protection of IPLC rights • Able to deal with more

powerful entities • A skilled negotiator • An advocate for the best

interests of the community but able to overcome protectionism

• Able to bridge the gap between disparate entities

• A practiced facilitator


Process Leadership in ABS will require…

• Empathy • Insight • Patience • Influence • A general understanding

of administrative processes

• Ability to tackle resistance to change

• Power to motivate • Excellent communication


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motivational manner • Appropriately address those who refuse to adopt new, required processes • Look ahead to anticipate and plan for challenges • Identify opportunities for developing new ways of meeting goals • Facilitate an effective audit process

Community and Advocacy Leadership: Community and Advocacy leaders play a very important role in the ABS process. Gaining access to genetic resources and traditional knowledge often means working with IPLCs; building relationships of trust and negotiating fair MAT. Working with Community Leaders is often the best way to gain the confidence of a community and engage them in the necessary ABS processes. Oftentimes, it will also take a trusted advocate to bridge the gap between ABS users and IPLC providers. Community and Advocacy leadership will be required in the various ‘Fields of Action’ discussed earlier in this module, including:

• Defining Overall ABS Policies/ Strategies • Dealing with Traditional Knowledge • Managing Access • Negotiating Benefit-sharing • Making ABS Work

Leadership during ABS Phases: Implementing ABS measures will go through various phases before becoming fully operational. During each phase, different elements of leadership will be required. Leaders during the Initiation Phase should:

• Be active and visible as an advocate for ABS initiatives • Understand, and preferably have experience in, many different roles and settings related to

Caribbean traditional culture, cultural changes, parliamentary and legislative processes, sociology and community development

• Hold strong environmental and social justice values • Be persistent, enthusiastic and optimistic • Articulate long-term vision • Communicate clearly and often • Question the status quo and promote the cultural and economic value of traditional knowledge

where it is often ‘down played’ in the Region. • Tailor communication activities for specific audiences, especially indigenous people and people

at the grassroots level who might have less access to social media in the Region • Plant the ‘seeds of ideas’ about the benefits of implementing the Nagoya Protocol with

stakeholder groups • Prepare for anticipated criticisms of new ideas and conflicting political interests • Persist under adversity • Provide inspiration and motivation to other staff working on the implementation of the Protocol


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Leaders during the Endorsement Phase should:

• Be a strong networker with good understanding of government and institutional networking • Be able to laterally work with diverse groups to gather the widest cross section of political

support • Be seen as politically neutral • Be willing to invest time in building relationships between agencies and government

departments • Take advantage of strategic political opportunities and seize them when they arise, as in the

case of new and existing genetic resources in the respective country • Demonstrate the feasibility of ABS through rigorous economic, social and environmental

analysis • Build coalitions to support the passage of ABS Bills and Regulations

Leaders during the Implementation Phase should:

• Demonstrate a ‘care factor’ for sustainability of processes for genetic resources at the community level

• Maintain a high level of trust amongst all of the actors in the process • Be able to foster communication between organizations, institutions and individuals to conclude

fair and equitable contracts with MAT based on PIC of ABS participating communities • Be able to tackle resistance to change in various stakeholder groups and streamline benefits

from implementing the Nagoya Protocol to all stakeholders in the national and community development process

• Address non-compliance in implementing ABS Contracts and the Nagoya Protocol with authority and tact

• Understand the legal recourses to deal with non-compliance; conflict resolution and mediation.


13.12.1 Readings

1. Environmental Communication: Applying Communication Tools Towards Sustainable Development, OECD, 1999http://www.pumagua.unam.mx/assets/pdfs/publicaciones/recomendadas/applying_communication_tools_sust_dvt_oecd.pdf

2. Communicating Research: Policymakers’ Perspective, Population and Poverty Research Network, March 2016: http://poppov.org/~/media/PopPov/Documents/Communicating%20Research%20Policymakers%20Perspective.ashx

3. How to Communicate Research for Policy Influence: Toolkit No.2 – Policy Briefs, CIPPEC, 2012: http://www.vippal.cippec.org/wp-content/uploads/2013/09/Guia-02-serie-3-ingles.pdf

4. Leading in a Culture of Change (Summary), Michael Fullan, 2003: http://www.csus.edu/indiv/j/jelinekd/edte%20227/fullanleadinginacultureofchange.pdf


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13.12.2 Videos

1. The Recipe for Great Communication, Dean Brenner, 2014:https://www.youtube.com/watch?v=qFWsTsvJ8Xw

2. Ten Leadership Theories in Five Minutes, Christianity 9 to 5, 2013: https://www.youtube.com/watch?v=XKUPDUDOBVo