Introduction
p. 139-142
Texte intégral
1The concept of indigenous rights, as it emerges from the Nagoya Protocol, provides an opportunity to confront theoretical approaches with the testimonies and experiences of stakeholders on the ground. Researchers in the field, biodiversity managers, customary delegates all share their own experiences from New Caledonia, French Guiana and Brazil. These three zones are true biodiversity hotspots that are also home to many indigenous communities, and were among the first to establish systems regulating access to biodiversity and organising the sharing of benefits.
2In this third section we invite contributors to examine the concept of indigenous rights, either by analysing the political construction of the indigenous concept (see Chap. 7 and 8), or from the perspective of traditional knowledge (see Chaps. 9, 10, 11), or else by highlighting situations where communities have been involved in the implementation of the Nagoya Protocol (see Chaps. 12, 13, 14).
3The Convention on Biological Diversity frames the environment as a nexus of conflicting interests to be debated in international forums: the lived environment of local communities, the economic stakes for industry, the geostrategic implications, and of course the climate crisis, etc. We may well wonder whether the adoption of a shared legal language and procedures, such as the ABS system with its emphasis on obtaining prior informed consent, is really capable of satisfying such divergent interests and competing legitimacies. The notion of communities and indigenous interests also needs to be seen within the regional, national and international context of recognition for these groups and their knowledge. The French Law on Biodiversity of 2016 (see Focus 3) thus adopted the term communautés d’habitants to refer to those people possessed of “associated traditional knowledge.” The roles assigned to such people by environmental policies rarely, and only then imperfectly, take into account the diversity of their history and their circumstances within modern Nation States. Their right to participate in the drafting of legislation concerning them, a right recognised by international norms, is frequently overlooked.
4Nadia Belaïdi illustrates the way in which environmental policies, and their concept of indigenous people, fall into a reductive view of these peoples, defining their identity solely on the basis of environmental practices, with reference to a way of life considered to be “traditional,” and failing to recognise their legal personhood (see Chap. 7). Traditional knowledge is thus associated with resources of which the national government assumes ownership. Managing cultural diversity is closely associated with the demands of managing biological diversity. In the same spirit, Philippe Karpe, Sigrid Aubert and Alexis Tiouka recount the prevarications of French legislators faced with the task of giving both a name and a role to communautés d’habitants involved in the ABS mechanism. They propose abandoning the concept of indigenous peoples, arguing in favour of a new vision of the law which does not view nature as a mere source of assets to be exploited, but which is instead informed by an idea of life in society, of the common weal, which understands the importance of natural elements within networks of exchange and reciprocity (see Chap. 8).
5These two alternative approaches to the law, the anthropological approach developed by Nadia Belaïdi and the concept of “round law” championed by Philippe Karpe, Sigrid Aubert and Alexis Tiouka, are by no means at odds with the positivist approach adopted by Loïc Peyen and Anne Etienney-de Sainte Marie in Section 2 of this volume. Nevertheless, where they do differ is in their insistence upon the need for greater contextualisation to get as close to the lived reality of the stakeholders as possible, ideally with those same stakeholders taking a leading role. Examples of this approach in action include recent efforts by Canadian and Guianese indigenous groups to engage with the dialogue between different legal systems in order to promote the interests of their communities. This vision is founded upon the capacity of each individual to engage with a continuously-negotiated normative system, and respond to the events which oblige societies to constantly adapt and evolve.
6In a similar vein, Alexia Mandaoue explores the policies of the government and Customary Senate of New Caledonia with regard to access to genetic resources, while also evoking the long and often tragic history of the Kanak people, with reference to the preamble of the Nouméa Accord (see Chap. 9). One of the key challenges raised by the Nagoya Protocol is to fulfil hopes for new partner relationships founded upon respect for indigenous rights. Can a legal text ever hope to satisfactorily address centuries of injustice?
7Reviewing the voluminous existing legislation dealing with genetic resources, Laure Emperaire notes that it has not engaged satisfactorily with the representations and status of these resources among indigenous peoples, as well as their traditional knowledge (see Chap. 10). She highlights the lack of a precise definition of the concepts and categories used in international instruments pertaining to agrobiodiversity, and illustrates their inability to comprehend more subtle, gradual approaches to managing plant resources. Guillaume Odonne and Damien Davy then discuss the definitions used in the French law transposing the Nagoya Protocol into national legislation, and propose the concept of biocultural heritage as a tool for furthering efforts to protect traditional knowledge associated with biological resources (see Chap. 11).
8These three authors, informed by their experiences in the field in Guiana and Brazil, are united in their insistence upon the diversity of knowledge and its manifestations. They illustrate how their readings of local situations still struggle – in spite of the scientific and ethical commitments and convictions of researchers – to get to grips with local categorisations and meanings attached to environmental practices and knowledge. The Nagoya Protocol, with its tendency to view knowledge simply as information on how to use resources, struggles to fully recognise indigenous peoples and local communities as actors responsible for the fate of their knowledge.
9Tiffanie Hariwanari (see Chap. 12) and Raphaëlle Rinaldo (see Chap. 13) share their own experiences from the French Guiana Amazonian Park, the first French territory to begin experimenting with ABS back in 2006. Early adoption required innovation, and the history of ABS in French Guiana has been marked by tentative progress, conflicts between stakeholders, the fall-out from the “Quassia Affair,” administrative obstacles, a lack of clearly-designated interlocutors and tensions between this overseas territory and France’s central government, as well as between the different groups that make up Guianese society: Amerindians, Bushinenge, Creoles etc. The role assigned to communities within the Amazonian Park and the creation of the Grand Customary Council of Amerindians and Bushinenge Populations, described by Karpe et al. in the preceding chapter, illustrate not only the technical complexity, but also the intellectual, political and institutional difficulties involved in making sure that the voices of those most affected are heard. The local and indigenous peoples in question are mobilising to ensure that their aspirations, territorial rights and relationship to the world at large are taken into consideration. They continue to highlight the urgent need to overturn the centuries-old precedent whereby the laws that govern their relationship to their natural resources and their knowledge are dictated from afar by central government, without their involvement.
10Ana M. C. Euler recounts the rise of community protocols, encouraged by the Nagoya Protocol, which give communities themselves the opportunity to define how they wish to work with anybody seeking access to their resources: researchers, commercial prospectors or politicians (see Chap. 14). It becomes clear that this exercise can reinforce or reinvigorate community dynamics, channelling their demands. In such cases, genetic resources provide a pretext for affirming and legitimating the demand for recognition of their citizenship and their rights in other areas of life: from land rights to access to education and healthcare.
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