ABSTRACT
Indigenous peoples and local communities have denounced the unfairness and the persistent inequality in community-business encounters in the context of biotrade (Wynberg, 2004). It is estimated that between 25,000 and 75,000 plant species are used for traditional medicine and only 1% of these are known to scientists
and utilized for commercial purposes (Aguilar, 2001). Traditional knowledge plays an important role in the discovery of new leads for the development of drugs and also in the marketing argument for “exotic” products (Laird and Wynberg, 2008). However, few Indigenous peoples have ever received any kind of benefit from these technological developments and some have even experienced further exclusion in being denied access to knowledge or plants that have become privatized (Wynberg, 2010). In 2010 a transnational regulation, the Nagoya Protocol, was created to regulate access and benefit-sharing (ABS) of genetic resources and associated traditional knowledge under the Convention on Biological Diversity (CBD). ABS initiatives recognize the rights of resource providers to free prior informed consent (FPIC) and promote the distribution of the benefits resulting from the exploitation of natural resources (Morgera and Tsioumani, 2010). This global regulation is relevant for Indigenous peoples because it recognizes their right to FPIC, as defined in the UN Declaration on the Rights of Indigenous Peoples (United Nations, 2008). Importantly, the Nagoya Protocol, in its article 12.1 requires countries to “take into consideration indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources.”1 Community protocols are a way for communities to engage with ABS processes determining the terms and conditions of access to their lands and knowledge by external stakeholders, in accordance with customary norms and values (Bavikatte et al., 2015). Important to communities is that the right to FPIC and self-determination go hand in hand, since for Indigenous peoples to decide their own paths of economic, political, and cultural development, they should have the right to make informed decisions (Pimbert, 2012). From the business side, the United Nations Global Compact (2013) suggests that business must try to create shared value when building relations with communities, building trust that increases the likelihood of obtaining FPIC.2 In particular, the Business Reference Guide to the Declaration on the Rights of Indigenous Peoples specifies that businesses should “commit to obtain (and maintain) FPIC of Indigenous peoples for projects that affect their rights, in line with the spirit of the UN Declaration” (United Nations Global Compact, 2013, p. 25). However, there are several challenges in ensuring a meaningful FPIC process. Buxton (2012) points out that FPIC processes rely heavily on Western bureaucratic norms, which do not reflect the knowledge, values, and practices of communities. Moreover, the urgency of the business world pushes communities to discuss and agree on complex issues in a timeframe that is aligned with the economic project, not necessarily with community needs and aspirations (Pimbert, 2012).
