AGENDA ITEM 5 Standard setting

(a) LEGAL COMMENTARY ON THE CONCEPT OF FREE PRIOR INFORMED CONSENT

Chairman, delegates, friends,

I wish to say a few words about “free prior informed consent.”

I speak as a legal adviser to Amerindian Communities in Guyana and to indigenous peoples elsewhere. In referring to Amerindians I will use the term Communities because that is how Amerindians describe and organise themselves. In Guyana, a critical component of Amerindian culture is knowledge about biodiversity. Some of this knowledge has commercial value; some of it does not. Some of this knowledge is sacred; some of it is not. The critical question is: who decides what knowledge may be shared? Whose is the free prior informed consent that must be sought?

I believe this consent must come from the people who own that knowledge. But who are they? And how do we know when we have got free prior informed consent?

There is a substantive and a procedural element to free prior informed consent. These elements must be properly catered for if free prior informed consent is to protect Amerindians and indigenous peoples around the world. Otherwise free prior informed consent will become a mechanism for bio-piracy and for bio-hypocrisy.

In almost every case biodiversity knowledge is owned collectively. The substantive requirement then is that it is for the Community as knowledge holder to make the decision. This is true even when the knowledge is held by a few people or even by one individual such as a spiritual leader. It is up to each Community to decide for itself what knowledge it is willing to share. That decision must not be made be made by any other person – not government, not an NGO. In practice, this means that anyone who wants to use collective knowledge must deal direct with the Community. We all know of instances where other entities have substituted themselves for traditional Communities and claimed to speak for them or to act for them. This is undermining the Communities and must stop.

The next element is procedural. A decision should be made according to the Community’s own traditional processes. In Guyana such decisions are normally made by the Community and it can take days sometime weeks before a Community has discussed and thought and reached a decision. This is important because, unless a Community gets the time it needs there is no free prior informed consent.

We know that western society does not operate like this. We have seen international agencies and representatives from foreign and local NGOs coming into Communities, asking people about various issues and telling them to decide and vote within a few hours. This practice is disrespectful and must stop.

I have not yet said anything about Governments, but Governments have a crucial role to play and even responsibility to meet. First and foremost Governments must recognise Communal rights. Perhaps I can share the Guyana experience.

In Guyana all Amerindian owned lands are held under collective legal title and protected by the Constitution like other private property. Communal ownership of land is the foundation of Communities and of Communities’ cultures and traditions.

All Amerindian knowledge relating to those lands is in practice under the control of the Amerindian Community. There is also proposed draft legislation which will make ‘free prior informed consent’ a formal legal requirement and which will restrict the ability of bioprospectors to enter Communities and illegally mine their knowledge.

The corollary of all this is respect for the Community and its right to choose its own path. Sometimes a Community makes a decision which seems unwise. As long as the decision is made freely and in accordance with the Community’s traditional processes, it must be accepted. In Guyana for example, a Community decision cannot be overturned by Government.

There is a great deal of work to be done on “free prior informed consent.” I thank you for this opportunity to speak and I hope we can unite and take action to protect indigenous peoples and their knowledge through strong legal frameworks.
Note: STATEMENT OF MELINDA JANKI