Biocultural Community Protocols: Justice, biodiversity and Law – BioCulturalis

The aim of our project is then to prove this assumption by combining three approaches.
The first is local-based and aims at unravelling the rationale behind the creation and implementation of BCPs, as well as their content. This part of our project draws on field-based studies with an ethnographic research approach. The work is primarily focused on four case-studies covering two countries (Madagascar and Panama). We aim to compare them with the findings of a research already conducted on the BCP of the Parque de la papa (Peru) by one member of our team (Hall).
The second is a study of the BCPs’ content and political and legal efficiency, with a particular focus on the stated socio-cultural and ontological principles. BCPs are hybrid instruments, and in many instances their legal value is unclear. Except for these few instances where BCPs can be part of the prior and informed consent process set up by domestic ABS regulations, BCPs seem to be floating above the formal legal system. Our approach is therefore twofold: (i) studying pioneering legislation which have recognized BCPs and made compliance with their provisions mandatory (e.g, Benin, Madagascar), with a view to better understanding how it bridges local and international legal levels, the potential discrepancies between what is ‘in the books’ and what is effectively implemented, and the enforcement mechanisms put into place; (ii) understanding the function of those other BCPs that operate at the margins of the formal legal system. We surmise, here, that they fulfil a completely different function, political in nature, that must be understood against the backdrop of the advancement of BRs.
The third includes an ethnographic study of the circulation of these BCPs through negotiation fora on a regional, national and international scale, their mobilization by stakeholders, and the way they are formalized depending on the legal concepts used by each institution (e.g., ‘farmers’, ‘IPLCs’, ‘peasants’).

The WP1 shows that there is often a significant gap between the main objective of the BCPs –the laying down of Access and Benefit Sharing (ABS) local rules– and the expectations of communities (land tenure, culture). The ethnography also shows at times a problematic redistribution of power within communities and a tendency towards forcing traditional institutions to merge into a legal entity. Two factors may explain these discrepancies and ‘forcing’: (i) States that are concerned with making a diverse population ‘legible’ for the purposes of administration, fostering economic growth, and containing social conflicts; (ii) development brokers that are increasingly internationalized actors, with a very limited local competence.
The WP2 confirms these first findings. Some legislations (Madagascar, Benin, Peru) now expressly recognize BCPs and makes compliance with their provisions mandatory. But BCPs developed under these laws focus almost exclusively on local ABS procedures, as if they were seeking to plug IPCLs into global networks of germplasm and knowledge exchange. References to custom, territories and culture are scarce, whereas these elements are deemed central in standard conceptualisations (see the Mo'otz Kuxtal Voluntary Guidelines). Conversely, one may find PBCs wherein the local ABS procedure is well specified, but is overshadowed by strong political considerations related to territory and autonomy (Kenya, Mexico).
The WP3, which strives to trace the origin of BCPs, also underlines the political dimension of BCPs for their promoters, while pointing to two opposite underpinnings: the Potato Park’s PBC is mainly conceived of as a tool, among others, for supporting the ‘Biocultural heritage territory’; but BCPs supported or inspired by Natural Justice are more thought of as complete toolboxes aimed at protecting the territory, the land, the natural resources, the culture, the autonomy, even if, in practice, as said, there is an overemphasis on local ABS rules

A pressing issue is to better understand the role of states and development brokers through the lens of eco-governmentality. Is there not at work, in a number of countries, through the use of ‘steward of nature’ or ‘ecological native’ representations, a kind of ‘action at a distance’ and ‘intimate government’, aimed at directing IPLCs according to global environmental governance’s goals and assigning them a precise and subordinate position of ‘custodians’? To be sure, BCPs seek to reconcile goals of conservation and effective resource management and the search for social justice for historically marginalised peoples and communities
But the use of concepts such as ‘community’, ‘territory’, ‘local’ and ‘tradition’ remains problematic. Representations of the “ecological native” and the “steward of biodiversity’ in particular, overemphasise the ‘traditional’ (CBD, Art. 8(j): ‘indigenous and local communities’ ‘embodying traditional lifestyles relevant for theconservation and sustainable use of biological diversity’; Art. 10(c) ‘customary use of biological resources in accordance with traditional cultural practices’) and come at the risk to subject IPLCs to the dualistic myth of ‘Noble Savage/Fallen Angel: IPLCs, deemed to live in harmony with nature, either maintain their traditional way of life and practices or deviate from the model imagined by conservationists, and thus become a threat to the ecosystems in which they live, which may justify measures against them.
At the same time, IPLCs’ environmental struggles cannot be overlooked, and the emergence of an ‘ecological’ identity has also served as political strategies to establish bonds with international coalitions and networks that have endowed IPLCs with greater political power. What needs to be shown is how the concept of ‘stewardship in particular’, and its mobilization though BCPs, has served to make IPLCs new agents in transnational eco-politics

Ingrid Hall (on press), « Tying down the soul of a potato in the Southern Peruvian Andes: Performance and frictions », in Dussart F. et Poirier S. (eds), Sensing Religion in Indigenous Context: Towards New Methods, Toronto, Press of Toronto

Ingrid Hall (2020) « Le Parc de la pomme de terre, conservation in-situ et valorisation des savoirs locaux (Cusco, Pérou) », in Verdeaux François, Ingrid Hall, Bernard Moizo (dir.), Les savoirs locaux, l’innovation permanente, IRD/Editions Quae/PUM

Ingrid Hall (2020), « Quand les pommes de terre andines entrent en politique », Anthropologie et sociétés, Alternatives locales à la conservation environnementale, 43-3, 201.

Fabien Girard (2019) « Semences et agrobiodiversité : pour une lecture ontologique des bio-communs locaux », Développement durable et territoires [En ligne], Vol. 10, n°1, journals.openedition.org.sid2nomade-1.grenet.fr/developpementdurable/13339

Fabien Girard (2019) « Communs et droits fondamentaux : la catégorie naissante des droits bioculturels », RDLF, chron. ° 28, 2019, disponible www.revuedlf.com/droit-fondamentaux/communs-et-droits-fondamentaux-la-categorie-naissante-des-droits-bioculturels/

The appropriate protection of indigenous peoples’ and local communities’ (IPLC) agricultural innovation is challenging. For many decades, academic literature strongly advocated the recognition of new rights accounting for the collective nature of their innovation. The literature is replete with proposals for ‘community intellectual rights’ or ‘traditional resources rights’. Given the potential predicaments of these solutions, another path is suggested: to focus on the mechanisms of the Convention on Biodiversity (CBD – 1992) and the Nagoya Protocol (2010), and to work out solutions to improve the rules of prior and informed consent (PIC) and benefit-sharing. Against this backdrop, modern jurisprudence strives to make sure that bioprospecting contracts do not ‘cut’ collectives and result in intractable tensions between communities; and to ensure that bioprospecting contracts take into account asymmetrical power relations that characterise the negotiation and the specific nature of these innovation, which are an important part of lifestyles (Bavikatte 2014), webs of life, through which humans, seeds and knowledge may harmonise and interact according to internal partitions and complex rules alien to Western perceptions and categories.
To this end, it has been suggested to support biocultural community protocols (BCPs) as ways of promoting substantive (equitable benefit-sharing, taking into account ILCs’ perspectives) and procedural (avoiding misunderstanding, allowing enough time and money) rights in access to genetic resources and associated TK in between communities and between communities and bioprospectors. BCPs could also harness the potential of ILCs in biodiversity conservation.
BCPs gathered momentum during the negotiations towards the Nagoya Protocol, and after fierce debates and strong advocacy work by the African Group and active NGOs, they eventually found their way into the Protocol signed on the 29th October 2010 in Nagoya.
Addressing specifically the situation where communities have to engage in negotiations with an external stakeholder (e.g., government, researcher, business company) BCPs were recently defined by the Mo’otz Kuxtal guidelines as a broad array of expressions, articulations, rules and practices generated by communities to set out how they expect other stakeholders to engage with them and embedding their worldviews and their understanding of their bio-cultural heritage.
This research project focuses on the BCPs that have developed in the past few decades throughout the world and more specifically those engaging with plants and associated TEK over 2 continents.
For those few legal scholars who have been dealing with BCPs, their interest would lie in their capacity to improve ILCs’ organization and representation and to enable the mapping or assessment of customary laws, governance systems and traditional resource uses. BCPs could also be used to establish local systems and institutions in relation to ABS arrangements provided for under the CBD and the Nagoya Protocol, thereby ensuring balanced and informed community involvement in research and projects and legal implementation of PIC at community level.
This multifaceted dimension is undisputable. But the assumption of this project is that if BCPs arguably aim at legally protecting communities in the face of bioprospecting contracts and are conceived by communities and NGOs as tools for empowerment, they cannot be properly understood outside a social and political context increasingly concerned with ‘biocultural rights’.
We posit that, with their aptitude to mobilize customary laws, non-Western ontologies and the stewardship of nature, BCPs are one of the hallmarks of biocultural jurisprudence. And they must be understood as an attempt to challenge Western legal categories and to advance ILCs’ rights through the recognition of their traditional practices, customary laws, local institutions and ontologies.