Goal 2.2 To enhance and secure involvement of indigenous and local communities and relevant stakeholders

Target: Full and effective participation by 2008, of indigenous and local communities, in full respect of their rights and recognition of their responsibilities, consistent with national law and applicable international obligations, and the participation of relevant stakeholders, in the management of existing, and the establishment of new, protected areas.

2.4     Some useful suggested activities agreed for the Parties under the Programme of work (PoW)

Goal 4.1: To develop and adopt minimum standards and best practices for national and regional protected area systems

Target: By 2008, standards, criteria and best practices for planning, selecting, establishing, managing and governance of national and regional systems of protected areas developed and adopted.

          Suggested activities:

q     Parties should collaborate with the IUCN and other relevant organisations on the development of voluntary protected area standards;

q     Develop and implement and efficient, long term monitoring system of the outcomes being achieved through protected areas in relation to the goals and targets of the work programme (i.e., indicators should enable assessment in achieving goals and targets under programme element 2.0).

2.6     Social goals and targets must be implemented across the whole work programme

3        Evaluation of COP 7 outcomes on Protected Areas

As expected, not all demands were achieved at COP 7 [see more detailed account of negotiations in Part II]. The most significant gap in outcomes is the absence of any recognition of the right of indigenous peoples to free prior and informed consent (FPIC) in relation to the establishment of new protected areas affecting their traditional territories. FPIC was opposed by both Northern and Southern government delegations, including Sweden, UK, Finland, New Zealand, Australia, Malaysia, among others. Intense advocacy by the IIFB pressed on the FPIC issue until the penultimate day of negotiations. As a result, the text on FPIC remained bracketed in the Decision right up until 19 February – thanks mainly to the Brazilian and Colombian government delegations, who rejected attempts by New Zealand and others to delete FPIC language throughout the two weeks.

On the positive side, it is very significant that governments agreed on PIC (prior and informed consent) in relation to resettlement, which is a major significant victory for indigenous peoples. Specific language on land tenure, territorial rights, sacred sites, land restitution and guarantees on the prevention of poverty were not included in the COP 7 decision, nor in the programme of work. IIFB members realised from the outset that specific strong language stemming from the Vth WPC was unlikely to be agreed by the Parties. The IIFB nevertheless pushed for these elements until the last possible point in the negotiations. The analysis of IIFB objectives and actual results can be summarised as follows:

Table 1:      A Summary Analysis of IIFB Objectives and Outcomes at COP 7 in relation to Protected Areas

4        Review of IIFB effectiveness at COP 7

The IIFB showed efficiency in its work with governments in COP 7 and in its work with the press and media. Notable IIFB achievements in relation to protected areas and other topics before and during COP 7 included:

q       Timely dialogue with supportive governments (e.g., EU) prior to COP 7 in January 2004;

q       Publicising Indigenous peoples’ positions in relation to the CBD and protected areas prior to COP 7 through the Bulletin of the Canadian Indigenous Peoples Biodiversity Network (IBIN) and in the publications of key NGO allies, including Eco and Forest Cover;

q       Effective communication of key issues to friendly NGOs and incorporation of these issues into NGO statements to the COP (Joint NGO Opening Statement, Joint NGO Statement on Protected Areas, Friends of the Earth, WRM, Forest Peoples Programme and Oil Watch Statement on Protected Areas);

q       Adoption of some key indigenous issues in public statements made to COP by major conservation NGOs: CI, Nature Conservancy, Birdlife, WWF, WCS, WRI and Fauna and Flora International and Greenpeace, including affirmation that protected areas should be planned, established, and managed with the prior informed consent and in full compliance with the rights of indigenous peoples (see joint Conservation NGO statement to COP 7).

q       Priority indigenous issues arising at Sabah prep meeting communicated directly to NGOs in Global Biodiversity Forum (GBF) and NGO Forum prior to COP 7;

q       Regular written position papers and suggested IIFB text circulated to friendly government delegations on a daily basis (from the start of negotiations until the very end);

q       Regular and well-informed press releases, press conferences and interviews given to the media. This resulted in several newspaper articles, including one in the New Straits Times on 12 Feb, 2004 titled “Rights of indigenous people and communities must be protected’;

q       Numerous face-to-face meetings with supportive governments and officials including (i) Brazilian Environment Minister (ii) Entire Swedish delegation (iii) German Minister (iv) EU delegation (v) European Environment Commissioner (vi) individual government delegation members (Brazil, Colombia, Philippines, Russia, Mexico, Argentina, Chile) (vi) Malaysian government delegation;

5        Remaining problems and potential risks:

There are some elements in the CBD decision and programme of work (support for private protected areas etc) that pose a potential risk to indigenous peoples if the decision and suggested activities are not implemented in a balanced manner that in all cases takes account of equity, rights and governance concerns. The main concerns are:

§      The decision and PoW promote the expansion of PAs at all levels, especially in coastal and marine areas. There is a need to ensure that programme element 2 on governance, equity and participation becomes fully integrated in any such expansion in order to safeguard the rights and interests of indigenous and local communities and their full and effective participation in conservation policy and practice. Without intensive and sustained capacity building and strengthening activities of local organisations there is a risk that such safeguards might not be implemented.

§      The decision and work programme stress the need for law enforcement to counter “illegal extraction” in protected areas, which could in some countries back fire on indigenous and local communities whose customary uses are classified as “illegal” (paragraph 22 in the Decision).

§      The work programme promotes commodification of ecosystem services and incentives and recognition of private protected areas.

With regard to these concerns, it will be essential for indigenous organisations to hold governments and international agencies to account where they seek to accelerate the expansion of protected areas in land, coastal and marine environments without taking measure to properly respect the rights of affected indigenous communities.

PART II:     COP 7 NEGOTIATIONS ON PROTECTED AREAS

After plenary discussions on February 10th and 11th, more than 70 hours of contact group negotiations were needed to finalise the decision on PAs (UNEP/CBD/COP/7/L.32). Several delegates called for participatory PA management and decision making, especially in reference to indigenous and local communities. The IIFB stood firm arguing that PA activities on indigenous territories must comply with prior informed consent (PIC) requirements.

The Chair of the PA contact group approached the document prepared by SBSTTA-9 (UNEP/CBD/COP/7/15) by dealing with the PoW first, followed by the decision. The PoW was addressed horizontally, by discussing and approving the components of the four programme elements in the following sequence: goals, targets and activities. After the programme elements were approved, the Introduction and Overall Purpose and Scope of the PoW, were addressed. Although it may seem awkward, the same logic is followed in this report in order to reflect how the negotiations proceeded.

1        The Programme of Work

The four elements of the PoW consisted of the following:

1.1     Direct action for planning, selecting, establishing, strengthening, and managing protected area systems and sites. This element has 5 Goals with related Targets and suggested activities. The goals are to:

-       establish and strengthen national and regional PA systems integrated into a global network;

-       integrate PAs into broader land- and seascapes and sectors;

-       establish and strengthen regional networks, transboundary PAs and collaboration between neighboring PAs across national boundaries;

-       substantially improve site-based PA planning and management;

-       prevent and mitigate the negative impacts of key threats to PAs.

1.2     Governance, participation, equity and benefit sharing, with 2 Goals and related Targets and Activities. The goals are to:

-       promote equity and benefit-sharing;

-       enhance and secure involvement of communities and relevant stakeholders.

1.3     Enabling activities, with 5 Goals and related Targets and Activities. The goals are to:

-       provide an enabling policy, institutional and socioeconomic environment for PAs;

-       build capacity for the planning, establishment and management of PAs;

-       develop, apply and transfer appropriate technologies for PAs;

-       ensure financial sustainability of PAs and national and regional systems of PAs;

-       strengthen CEPA.

1.4     Standards, assessment, and monitoring, with 4 Goals and related Targets and Activities. The goals are to:

-       develop and adopt minimum standards and best practices for national and regional PA systems;

-       evaluate and improve the effectiveness of PA management;

-       assess and monitor PA status and trends;

-       ensure that scientific knowledge contributes to the establishment and effectiveness of PAs and PA systems.

2        Approving the Goals

Regarding the goals, delegates approved all the goals as presented in the draft prepared by SBSTTA-9 but a long discussion ensued on goal 2.1concerning whether indigenous and local communities’ involvement in PA establishment and management should be “encouraged” or “enhanced and secured’. Malaysia objected repeatedly to the original text that used the words “Enhance and secure” arguing that participatory approaches were difficult to implement in the country and could therefore not be secured. Malaysia, however, remained isolated in her position and eventually accepted the following language:

3        Approving the Targets

Concerning the targets, several Friends of the Chair groups were established to reach compromise on: respect for the rights of indigenous and local communities consistent with national law and applicable international obligations (Target 2.2); securing resources to meet PA costs; establishing monitoring systems at various levels by 2010; and to consider definitions regarding a “global PA network” and “ecological networks’. The most significant achievement for indigenous and local communities was the target under Goal 2.2, which reads:

As with the text on Goal 2.2, it took a lengthy discussion to agree to the text for the target, as some governments would only accept the recognition of rights if coupled with responsibilities and consistency with national laws (especially Malaysia would not accept language without reference to national legislation). The compromise was reached by reference to national legislation and applicable international obligations. The recognition of rights in the target was considered a significant achievement as it made it easier for language on rights to be accepted in the text of the decision on PAs.

4        Approving the suggested activities of the Parties and the Executive Secretary

Programme element 2.2 continued to be the one requiring most attention and negotiating skills by indigenous delegates. While other elements were given ample time for debates, the speed at which several paragraphs related to activities under element 2 (especially 2.2) were dealt with, rapidly increased. The activity related to PIC in the establishment and management of PAs (2.2.3 in the draft) was contested by Malaysia, Indonesia and New Zealand and as soon as a party suggested for its deletion (Australia or Canada), the paragraph disappeared, leaving no time for reaction. A major discussion ensued soon after concerning the paragraph on PIC and resettlement and a Friends of the Chair group was set up to discuss that matter. Malaysia again would not accept any language without reference to national legislation. The final text reads:

Other important suggested activities for the Parties under the Programme of Work (PoW) that were influenced by indigenous peoples representatives and supporting NGOs that are particularly relevant to indigenous and local communities include:

§      Assess the economic and socio-cultural costs, benefits and impacts … of PAs … and adjust policies to avoid and mitigate such negative impacts, and where appropriate compensate costs and equitably share benefits … (2.1.1)

§      Recognise and promote a broad set of protected area governance types,… including areas conserved by indigenous and local communities ... (2.1.2)

§      Establish policies and institutional mechanisms … to facilitate the legal recognition and effective management of indigenous and local community conserved areas …(2.1.3)

§      Use social and economic benefits generated by PAs for poverty reduction … (2.1.4)

§      Engage indigenous and local communities and relevant stakeholders in participatory planning and governance, recalling the principles of the ecosystem approach (2.1.5).

§      Carry out participatory national reviews of the status and needs.. for involving stakeholders, ensuring gender and social equity, in PA policy and management…(2.2.1)

§      Implement plans and initiatives to effectively involve indigenous and local communities, with respect for their rights consistent with national legislation and applicable international obligations, ... at all levels of PA planning, establishment, governance and management … (2.2.2)

§      Promote an enabling environment (legislation, policies, capacities and resources) for the involvement of indigenous and local communities and relevant stakeholders in decision making … (2.2.4)

§      Make available to Parties case studies, advice on best practices and other sources of information on stakeholder participation in PAs (2.2.6).

Other useful language that is particularly relevant to indigenous and local communities in other programme elements include the following:

§      By 2006, conduct, with the full and effective participation of indigenous and local communities and relevant stakeholders, national reviews of existing and potential forms of conservation … including innovative types of governance for PAs…including co-managed PAs … and indigenous and local community conserved areas. (1.1.4)

§      Encourage the establishment of PAs that benefit indigenous and local communities and respect, preserve, and maintain their traditional knowledge in accordance with article 8(j) and related provisions. (1.1.7)

§      Identify options for quantitative and qualitative PAs targets and indicators … that could contribute to the 2010 target and the Millennium Development Goals. (1.1.8)

§      Compile and disseminate … case studies of best practices and other reports regarding the application of the ecosystem approach in relation to PAs at the international, regional, national and sub-national levels. (1.2.7)

§      Create a highly participatory process, involving indigenous and local communities and relevant stakeholders, as part of site-based planning in accordance with the ecosystem approach … (1.4.1).

§      Disseminate information on successful management models of PAs which serve to further the three objectives of the Convention and may also contribute to poverty reduction and the pursuit of sustainable development. (1.4.10)

§      Identify and establish positive incentives that support the integrity and maintenance of PAs and involvement of indigenous and local communities … in conservation (3.1.6)

§      Establish effective mechanisms to document existing knowledge and experiences on PAs management, including traditional knowledge in accordance with Article 8(j) and Related Provisions … (3.2.2)

§      Encourage development and use of appropriate technology, including technologies of

§      indigenous and local communities with their participation, approval and involvement in accordance with Article 8(j) and Related Provisions, for habitat rehabilitation and restoration, resource mapping, biological inventory, and rapid assessment of biodiversity, monitoring, in situ and ex-situ conservation, sustainable use etc. (3.3.3)

§      Collaborate with other Parties and relevant organizations, particularly the IUCN, on the development, testing, review and promotion of voluntary PAs standards and best practices on planning and management, governance and participation. (4.1.1)

§      Develop and implement an efficient, long term monitoring system of the outcomes being achieved through PA systems in relation to the goals and targets of this work programme. (4.1.2)

§      Encourage collaborative research between scientists and indigenous and local communities in accordance with Article 8(j) in connection with the establishment and the effective management of PAs (4.4.4).

5        Approving the introduction and purpose and scope of the PoW

The approval of the Introduction and Purpose and Scope of the PoW was relatively smooth. A major concern of the IIFB was that programme element 2 on governance, equity and participation must be implemented across the whole work programme. In this regard, indigenous interventions ensured that paragraph 7 of the PoW (in the Scope and Purpose section) establishes that:

The programme of work consists of four interlinked elements intended to be mutually reinforcing and cross-cutting in their implementation …

This makes it clear that Parties may not simply pick and choose from the core elements, targets and goals (though the programme does make clear they may pick and choose from suggested activities). Hopefully this should prevent Parties implementing any one activity without due consideration of the social and equity goals and targets.

6        The Decision on Protected Areas

The Decision of the Parties on PAs is composed of 37 points. The main thrust of the decision is towards:

·         recognizing that the work programme should be implemented in the context of nationally determined priorities, capacities and needs;

·         emphasizing: the need for capacity building in developing countries; and that the targets included in the work programme provide a framework within which national and/or regional targets may be developed;

·         calling Parties to integrate PA objectives into their development strategies;

·         inviting Parties to consider options, such as ecological networks, ecological corridors, buffer zones and other approaches;

·         requesting the GEF to support the implementation of the work programme through various specific actions;

·         underlining the importance to conserve biodiversity not only within but also outside PAs.

Regarding the overall objective of the programme of work, the COP adopted the annexed work programme with the objective of establishing and maintaining by 2010 for terrestrial areas, and by 2012 for marine areas, effectively managed and ecologically representative national and regional PA systems that contribute, through a global network, to achieving the three objectives of the Convention and the 2010 target. A definition of global network (which was highly debated) is footnoted.

Of critical importance to indigenous and local communities, in point 23, the COP:

The SBSTTA original paragraph included a bracketed sentence mentioning land tenure and territorial rights, but that was not accepted. The rationale given by some delegates was that those references were already covered by the mentioning of ‘full respect for the rights of”…

As far as we know, this is the first time the issue of rights has been included in a CBD decision other than in strict relation to traditional knowledge and article 8(j). The introduction of “rights” is not conditioned by a particular provision of the Convention or tied to one aspect of rights (e.g., rights tied to knowledge, but not physical resources). Rather, the concept of “rights” is included in the CBD decision in a general sense. This could represent a major step forward in introducing rights-based approaches into the CBD and an important opening for future elaboration of rights language under CBD intersessional meetings, discussion of monitoring indicators, and independent reports on implementation of the CBD decisions and work programme.

Another paragraph that the IIFB wanted in the decision was that acknowledging the outcomes of the 5th World Parks Congress. The reference to the WPC was deleted during SBSTTA but the text was put back in to the decision, curiously, after Canada asked very late in the negotiations (on 18th February) that it be reinserted. The IIFB had recommended its reinsertion since the beginning of the COP. Paragraph 3 reads:

In terms of future CBD work on the PoW, the COP decided to establish an ad hoc open-ended working group on PAs to support and review implementation of the programme of work and report to the COP. The COP also requested the Executive Secretary to make arrangements to hold at least one meeting of the ad hoc open-ended working group before COP8. In the final plenary, Italy and Guatemala offered to host the first and second meeting of the working group, respectively. The COP further decided to assess progress in the implementation of the work programme at each COP meeting until 2010.

7        A brief reflection on the outcome of the negotiations

The outcome of the work carried out on the decision and PoW on PAs can be considered positive. The deletion of the paragraph on PIC in relation to the establishment and management of PAs and the loss of language on land tenure and territorial rights in paragraph 23 of the Decision were a loss to indigenous and local communities, but the recognition and respect of the rights of indigenous and local communities in general represents a major achievement. The inclusion of a consensus recommendation that no resettlement should take place in connection with protected areas without the free prior and informed consent of affected indigenous peoples and local communities constitutes another groundbreaking achievement at the CBD.

It will be critical for the indigenous movement at the local, national and international levels to monitor the implementation of the CBD PoW to ensure that its implementation reflects commitments on indigenous peoples’ rights adopted at COP 7.