Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing

Whitehorse, Yukon 2005

Photo Credits: Alain Cuerrier 1) Qipitaq Kiatainaq (child) 2) Vaccinium vitis-idaea ssp. minus (kimminaqutik)

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This report is based on presentations and discussions that took place at the Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing, which was co-organized by the Arctic Athabaskan Council, the governments of Nunavut and the Yukon, the Government of Canada, and the Inuit Circumpolar Conference. Publication of this report does not imply that its contents reflect the views and policies of the Government of Canada.

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Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing

    

Whitehorse, Yukon

March 15 to 17, 2005

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Library and Archives Canada Cataloguing in Publication

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-sharing (2005 : Whitehorse, Yukon) Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-sharing [electronic resource] = Atelier du Nord sur l'accès aux ressources génétiques et aux connaissances traditionnelles connexes et le partage des avantages.

CD-ROM. Issued also in printed form. Text in English and French. ISBN 0-662-69572-0 Cat. no.: En4-61/2006-MRC

1. Germplasm resources--Government policy--Canada--Congresses. 2. Native peoples--Legal status, laws, etc.--Canada--Congresses. 3. Intellectual property--Canada--Congresses. I. Canada. Environment Canada II. Title. III. Title: Atelier du Nord sur l'accès aux ressources génétiques et aux connaissances traditionnelles connexes et le partage des avantages.

QH77.C3N68 2006 333.95'34'08997071 C2006-980001-4E

Contents     

I. Executive Summary 1

II. Special Thanks 3

III. Partners 4

• Arctic Athabaskan Council • Inuit Circumpolar Conference • Government of Nunavut • Government of Yukon • Government of Canada

IV. Summary of Presentations and Discussions 8

Sessions: • What is ABS? • Convention on Biological Diversity and ABS and the Bonn Guidelines • ABS in Canada • Northern Aboriginal Perspectives on ABS • ABS: A Resource Management Issue • The Future of Biotechnology and Implications for the North • Genetic Resources and Bioprospecting in the North Discussion I Discussion II • ABS and Marketing: Issues, Opportunities, Challenges • Herbals and Medicines: Aboriginal Issues • Current Approaches and Mechanisms in the North: Overlap with ABS • Aboriginal Governance and ABS: the Relationship Between ABS and Land-Claim Agreements—Perspectives from Aboriginal Representatives

V. Conclusions and Highlights 39

 Next Steps

iii

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing

I. Executive Summary     

The Northern Workshop on Access to participants at the workshop expressed genetic resources and associated Traditional their concerns about the need to engage Knowledge and Benefit-Sharing took place Aboriginal groups early in the policy- in Whitehorse, Yukon, in March 2005. development process, and reminded Organized through the close collaboration government officials of the need to consult of the Government of Canada, the Arctic with them before making decisions that Athabaskan Council, the Inuit Circumpolar affect their rights. Conference, and the governments of the Yukon and Nunavut, the main objective of Participants heard a number of concrete the workshop was to raise awareness about examples of genetic resources found in the the issue of access and benefit-sharing (ABS) North that are of interest to researchers among Aboriginal and local communities, and the biotechnology sector. Workshop governments, and northern stakeholders, discussions began the process of assessing, and to enhance understanding among all based on the environmental and social Canadians of the opportunities and contexts of the North, how ABS can challenges of developing ABS policies, contribute to social and economic particularly for the North. development in the region, particularly by offering northerners the chance to benefit The workshop provided participants with from the development of biotechnology. concrete information about a wide range of ABS-related issues. Presenters explained Experts from a number of fields of expertise the nature and origins of ABS and its across Canada shared experiences from their relationship with the objectives of the work, and offered innovative ideas on how Convention on Biological Diversity; namely, to implement ABS in practice. Presentations the conservation and sustainable use of were made on protocols for the protection biodiversity. Government officials provided of traditional knowledge (TK), northern participants with an update on the inter- policy developments in the area of TK, national and domestic policy contexts specific ABS projects undertaken with surrounding this emerging issue. northern communities, and the regulations and procedures being put in place to ensure Experts shared information on existing legal the sustainable and socially acceptable frameworks for research activities in the management of northern biodiversity. North, and explored the challenges for the recognition and protection of Aboriginal Listed below are some of the key rights under land claims and self- observations that emerged from the government agreements in the context of discussions held at the workshop. They ABS. Some argued that the existing legal appear in no particular order here, and do frameworks were flexible enough to not represent an exhaustive list; however, incorporate ABS principles. Aboriginal they do provide a starting point for further

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thinking about how ABS policies and • established under land-claim and self- practices can be developed to suit the government agreements, could be northern context. considered examples for the sound and socially-acceptable use of genetic • Workshop participants expressed resources and the intergenerational interest in ABS as a concept, and survival of species and traditional recognized the links between genetic practices resources and TK; however, many felt that more information was needed • Existing research-permitting systems in before meaningful decisions can be the North already control access and made on the sustainable use of genetic help maintain surveillance of what is resources in the North being researched, by whom, and where. They also foster local involvement in • The involvement of Aboriginal groups research projects, and ensure that these in the elaboration of ABS policies is are respectful of local social and essential, and respect for their rights environmental realities. It is likely that must be ensured they would apply in the context of genetic resources research, and could • Aboriginal people are not opposed to contribute directly to meeting ABS sharing their TK, however, they want objectives certain principles respected throughout the process and the relevant Aboriginal • Aboriginal elders and scientists have group/community/individual or knowledge about the uses of plants government to retain the right to found in the North, yet their relationship grant or withhold their prior-formed to these resources is different. consent. The establishment of an Collaboration between elders and efficient, community-level, prior- scientists can, therefore, be beneficial to informed-consent system would help all because of the specific knowledge meet these wishes such cooperation would generate about conservation management and • Innovative mechanisms for the sustainable use of biodiversity protection of TK are already taking place at the local level, and northern • There is interest, from biotech researchers, communities could build on these in the extreme environments of the North experiences because of the unique organisms these environments contain. ABS provides • Specific environmental considerations in opportunities to encourage research and the North (e.g., the slow growth-rate of ensure that research findings and, plants) make sound harvesting practices possibly, revenues are shared with those crucial. In the context of ABS, existing living in the North. How great these management structures, such as those opportunities are remains to be explored

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing

II. Special Thanks     

The organization of the Northern Council (AAC), Violet Ford of the Inuit Workshop on Access to genetic resources Circumpolar Conference (ICC), and associated Traditional Knowledge and Alysa d’Argencourt of the government Benefit-Sharing was made possible through of Nunavut, Lise Farynowski of the the collaboration of all of the partners government of Yukon, Martha Johnson involved in this project. of the Department of Indian and Northern Affairs, and Sophie Bernier First, we would like to thank the workshop of Environment Canada (EC), for participants who traveled from various their crucial contribution to the regions of Canada to be present at the conceptualization and realization of event—all of whom devoted significant time the project. and intellectual energy to preparing for and discussing a broad range of very complex Heartfelt thanks go to our facilitator, issues. Their involvement contributed Bob Charlie, who made it possible for all to significantly to a better understanding of express their views, and to Natasha Willows the various challenges of developing ABS (ICC), Cindy Dickson and Dave Roddick policies in Canada, particularly for the (AAC), Diane Nikitiuk (Yukon Government), North. We are also most grateful to them and Jock Langford, Renée Leblanc, and for allowing us to publish their presentations Carole Lemay (EC), for their crucial help in which are compiled on a CD-Rom the elaboration and organization of this distributed with this report. project.

Second, we would like to extend a special We must also acknowledge the pivotal thanks to the members of the Steering funding and support provided to the Committee, which was composed of workshop by the Canadian Biotechnology Alisa Kelly of the Arctic Athabaskan Strategy Fund.

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing

III. Partners     

Arctic Athabaskan Council1 The permanent office of the AAC is within the same central administrative headquarters The Arctic Athabaskan Council (AAC) is an as the CYFN, a non-profit organization the international treaty organization that was serves as the central political coordinating established to represent the interests of body for its members. member governments from Athabaskan First Nations communities in Canada and 2 the United States at Arctic Council fora. Inuit Circumpolar Conference The AAC also aims to foster a greater Founded in 1977 by the late Eben Hopson understanding of the common heritage of of Barrow, Alaska, the Inuit Circumpolar all Athabaskan peoples in Arctic North Conference (ICC) has flourished and grown America. into a major international non-government

The founding members of the AAC include organization representing approximately four Alaskan Athabaskan communities 150 000 Inuit of Alaska, Canada, Greenland, (Chickaloon Village Traditional Council; and Chukotka (Russia). The organization holds Healy Lake Traditional Council [Mendas Consultative Status II at the United Nations. Cha~Ag]; Steven Village Tribal Government Council; and Northway Tribal Council) and To thrive in their circumpolar homeland, three Athabaskan bodies on the Canadian Inuit had the vision to realize that they must side (the Council of Yukon First Nations speak with a united voice on issues of [CYFN], representing 11 Yukon First common concern, and combine their Nations; the Dene Nation, representing energies and talents to protect and promote 30 First Nations in the Northwest their way of life. The principal goals of the Territories and Northern Manitoba; and the ICC are to: Métis Nation-Northwest Territories, representing 13 communities in the • strengthen unity among Inuit of the Northwest Territories). circumpolar region • promote Inuit rights and interests on an In total, Arctic Athabaskan founding- international level member governments represent approxi- • develop and encourage long-term mately 32 000 Aboriginal peoples of policies that safeguard the Arctic Athabaskan descent residing in Arctic and environment Sub-Arctic North America.

1 Complete information is available at 2 Complete information is available at www.arcticathabaskancouncil.com. www.inuitcircumpolar.com.

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• seek full and active partnership in the related to health, culture, language, political, economic, and social values, human rights, or any other development of circumpolar regions matters that impact on the ability of Inuit to shape the future of their society The ICC in Canada is a non-profit within the circumpolar Arctic and the organization led by a board of directors world at large comprising the elected leaders of the four land-claim settlement regions: Inuvialuit, • take measures at the international level Labrador, Nunavik, and Nunavut. Some of to foster trade and economic the key aims and objectives of ICC (Canada) development for Canadian Inuit and are to: assist in the development of successful business endeavours abroad • represent the interests of Canadian Inuit through their national organization • maintain an ongoing dialogue with the (Inuit Tapiriit Kanatami) and settlement- ministries of the Government of Canada claim organizations on matters of an on issues of international importance to international nature Canadian Inuit

• preserve and promote the unity of • maintain an ongoing dialogue with the Inuit as a single people within the ministries of the Government of Canada circumpolar Arctic, and assist Canadian on issues of importance to Inuit in Inuit in speaking collectively with Inuit Russia, Alaska, and Greenland, and to in Russia, Alaska, and Greenland on promote their rights and interests within international matters Canada

• take measures to further enable Canadian Inuit to fully exercise their international Government of Nunavut rights and interests as Aboriginal peoples within Canada and globally The Department of Environment has lead responsibility within the Government of • act as the international vehicle through Nunavut (GN) for ensuring the protection, which all Canadian Inuit can voice promotion, and sustainable use of natural concerns to world bodies, international resources by supporting the management of conventions, intergovernmental forums, the environment, wildlife, fisheries and international non-government organiza- sealing, and parks. tions, and global Aboriginal movements The Department of Environment delivers a • take measures at the international level to wide range of regulatory and program protect the Arctic environment and its functions, and implements the specific renewable resources so that present and statutory and legal obligations of the GN, future generations of Canadian Inuit can including a number of commitments under fully benefit from the land and marine the Nunavut Land Claims Agreement. environment and its flora and fauna It is through avatimik kamattiarniq • take measures at the international level (environmental stewardship), which includes to protect and promote Inuit rights using Inuit Qaujimajangit, research, planning,

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      monitoring, compliance, and partnerships, government’s constitutional, political, and that the Department ensures that a balanced legal responsibilities in the North. With approach is taken in the way Nunavut’s legislative and policy authority over most of environment and resources are used. the North’s natural resources, INAC is the custodian and resource manager for an area occupying 40 per cent of Canada’s land Government of Yukon mass. The Government of Yukon’s departments of Economic Development, Environment, INAC’s role in the North is extremely and Energy, Mines, and Resources were broad, and includes settling and involved in providing support for the implementing land claims, negotiating self- conference. government agreements, advancing political evolution, managing natural resources, The Department of Economic Development protecting the environment, and fostering is committed to developing a strong and leadership in sustainable development— stable economy for the Yukon. both domestically and among circumpolar nations. INAC’s approach in managing its The Department of Environment is responsibilities is based on partnership and responsible for ensuring that the renewable the principles of sustainable development. resources and environment of the Yukon are managed and used in accordance with The main objective of the Northern Affairs government policy. The Department Program is to: undertakes resource-management activities that meet the Government of Yukon’s • promote the political, economic, obligations and respect the rights of scientific, and social development of Aboriginal people and relationships Canada’s North established through land-claim and self- government agreements. • assist northerners, including Aboriginal groups, in developing political and The Department of Energy, Mines, and economic institutions that will enable Resources is involved in regulating the them to assume increasing responsibility Yukon’s natural resource wealth in within the Canadian federation accordance with legislative requirements, as well as providing strategic leadership for • effectively manage and regulate the natural-resource policy and planning. sustainable development of the North's natural resources in preparation for Government of Canada devolution to the territorial governments

Indian and Northern Affairs Canada (INAC) • preserve, maintain, protect, and and Environment Canada (EC) were the two rehabilitate the northern environment; federal departments involved in the and manage ongoing federal interests in realization of this project. the North, including federal northern policy, federal-territorial relations, INAC is the principal department claims, self-government implementation, responsible for meeting the federal and federal circumpolar activities

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EC’s business is protecting the environment, enables the department to address current conserving Canada’s natural heritage, and problems while working to ensure a predicting weather and environmental sustainable environment for future change. The Department works to support generations. sound environmental decisions to protect, conserve, and help Canadians adapt to the EC, through its Biodiversity Convention environment. EC works to repair the Office, is responsible for coordinating the damage of the past, to collect and implementation of the Convention on communicate information, and to develop Biological Diversity (CBD). In the area of and implement policies to prevent future ABS, the Department is leading the harm. international and domestic aspects of this emerging issue and, with the help of other As the number, scale, and complexity of federal departments and provincial and environmental issues has increased, EC has territorial governments, a policy-making recognized the need to move toward more exercise aimed at developing options for preventative and integrated approaches to filling the policy vacuum that currently exists environmental management. This long-term, in Canada for ABS at both the national and systematic approach to the environment sub-national levels.

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing

IV. Summary of Presentations and Discussions     

What is ABS? considerations of the North will be key to developing ABS policies that will adequately

promote and protect northerners' interests. Presentation:

What is ABS? – Jock Langford (EC) The presenter also briefly described the voluntary Bonn Guidelines that were developed On behalf of Tim Hodges, Associate to provide guidance to governments in Director of the Biodiversity Convention implementing ABS policy/law nationally. For Office at Environment Canada (EC), the genetic resources and associated TK, the Bonn first presenter identified EC’s objectives for Guidelines address prior-informed-consent the workshop. They included: (PIC) procedures and provides rules to ensure that ABS is based on mutually agreed terms • raising awareness of ABS in the North, (MAT). The presenter concluded by saying that including among Aboriginal commu- our understanding of the Bonn Guidelines nities, governments, and civil society and national implementation is continuing to • enhancing understanding among all evolve based on both the experiences of other Canadians of the opportunities for and countries and discussions around Aboriginal- challenges of developing ABS policies related ABS issues that are ongoing under the • fostering an understanding of the Convention on Biological Diversity. Convention on Biological Diversity and its objectives • evaluating how ABS can contribute to Convention on Biological economic development in the North Diversity and ABS and the • making linkages between ABS and the Bonn Guidelines conservation and management of genetic resources Presentations: • improving understanding of the An Overview of the National and Regional relationship between TK and ABS Implementation of ABS Measures – Kathryn Garforth (Center for International • understanding the role of ABS in the Sustainable Development Law) development of biotechnology, innovation, and competitiveness The Convention on Biological Diversity: Recent • supporting capacity-building and Developments of Interest to the WIPO IGC – networking on ABS among Aboriginal John Scott (Secretariat of the Convention on communities Biological Diversity)

The presenter suggested that, in the This session provided participants with Canadian context, taking into account the some background information about social, environmental, and economic existing ABS laws in foreign countries and

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing     

the objectives of the Convention on • relatively small capacity-building Biological Diversity. efforts—most of which are being done through bilateral donor support, with The first presenter from the Center for little being done through multilateral International Sustainable Development Law donor support (CISDL) presented the results of research the center has done in partnership with The second presentation focused on the researchers from foreign countries on objectives of the Convention on Biological existing ABS measures. She described the Diversity, and provided the participants with measures taken in two of the 16 countries some background information about the discussed in the study—Costa Rica and negotiation of an international regime on Australia. For both countries, the presenter ABS. John Scott, program officer at the explained how ABS is implemented through Secretariat of the Convention on Biological measures that define the subject matter of Diversity, briefly discussed some facts about ABS and elaborate procedures for PIC and the CBD to provide a context for ABS and MAT to ensure benefit-sharing, as well as TK discussions. He noted that 188 parties mechanisms for compliance, monitoring, have signed and ratified the Convention, and and tracking. She also provided examples of that it entered into force in December 1993. ABS applications that have been granted He also outlined the institutional framework, under the Costa Rican and Australian its three basic objectives, and its program of systems. She concluded her presentation work. Background information about the with an overview of trends in the recent decisions of the Conference of the implementation of ABS, including: Parties (COP) on both ABS and Article 8 (j) was also provided to the participants. In • the emergence of a set of common order to help the participants understand the elements in ABS regimes status of the international talks on ABS, the • an evolution in the scope of ABS presenter briefly explained what COP measures and the continuing need to Decision VII/19 calls for, and what exactly clarify the legal meaning of some terms the Parties to the Convention are currently • the drafting of new ABS measures to discussing. accommodate the Food and Agriculture Organization of the United Nations’ International Treaty on Plant Genetic ABS in Canada Resources

• a continued lack of user measures, Presentation: although progress is being made ABS Policy Development in Canada – • increased awareness of ABS and a fairly Jock Langford (EC) high level of activity by governments,

especially in the megadiverse3 countries The presenter highlighted key international and domestic policy-development processes

3 The Like-Minded Megadiverse Countries (LMMC) is a for the emerging issue of ABS. coalition of biodiversity-rich countries composed of Brazil, China, Colombia, Costa Rica, Ecuador, India, Indonesia, He stated that the important international Kenya, Mexico, Peru, South Africa and Venezuela. Five other countries have subsequently joined: Bolivia, Congo, developments affecting ABS have included Madagascar, Malaysia, and the Philippines. the World Summit on Sustainable

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Development’s commitment to negotiate an the ABS domestic policy activities during international regime and the mandate to 2004/05 have included federal/provincial/ elaborate and negotiate an international territorial briefing sessions in provincial and regime established at the Seventh Meeting of territorial capitals (May-Sept. 2004), the the CBD-COP in February 2004.4 He made Workshop on Scientific/Regulatory Issues reference to the report and website of the (Ottawa, Dec. 2004), and the Northern ABS Canada-Mexico Expert International ABS Workshop (Whitehorse, March 2005). workshop — (Cuernavaca, Mexico, October 2004) as a very good source of papers on a In September 2004, the federal, provincial, range of ABS issues. and territorial (F/P/T) ministers established the F/P/T Working Group on ABS, and The presenter highlighted key intersessional tasked it with preparing a domestic scoping CBD meetings on the international ABS paper and engagement strategy for their schedule, including the third meeting of the consideration in September 2005. In CBD Working Group on ABS (ABSWG-3) response to a question on the nature and in Bangkok during February 2005, the ABS level of engagement of Aboriginal peoples in Head of Delegations meeting in Paris during Canada, the presenter indicated that he was December 2005, the CBD Working Group not able to answer the question at this time on Article 8(j) in Spain during January 2006, since the ultimate decision on the nature and and the fourth meeting of the CBD Working engagement of Aboriginal peoples will be Group on ABS (ABSWG-4) in Spain during taken by the F/P/T ministers. January 2006, which led up to the CBD COP8 meeting in Brazil in March 2006.5 The presenter also expressed the Government of Canada’s hope of Northern Aboriginal announcing, in Bangkok, that it would co- Perspectives on ABS host an international expert meeting on Aboriginal-related ABS issues, in British- Presentations: Columbia, in February 2006 in collaboration Inuit Land Claims and Prior Informed Consent – Violet Ford (Inuit Circumpolar Conference) with the Assembly of First Nations. Aboriginal Knowledge Protocol: A Template for The presentation also highlighted key Ownership, Protection and Maintenance of our milestones over the past 18 months in the Knowledge – Merle Alexander (Boughton Peterson domestic ABS policy process. The Federal Yang Anderson) Interdepartmental Committee on ABS Peigi Wilson (Assembly of First Nations) (ICABS), chaired by the Biodiversity Convention Office, provides co-ordination for federal ABS policy development. With The first presenter opened with an example Canadian Biotechnology Strategy funding, of the relation the Inuit people share with the environment, and how natural manifestations help them recognize the 4 Workshop website available at: arrival of the seasons. A description of the www.canmexworkshop.com. Nunavut and Labrador land-claim 5 Note: After the Northern ABS Workshop, the scheduled dates for the meetings in Spain and Brazil were agreements helped the participants subsequently moved ahead. The text above has been understand how access to genetic resources revised to reflect these changes. is regulated under these agreements.

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Harvesting rights and practices are regulated levels on this issue, described the context in under article 15 of the Nunavut Land Claims which AK is being discussed domestically Agreement, which gives the Nunavut and internationally. At the domestic level, Wildlife Management Board the right to legal issues regarding AK for academic deny access to researchers. There have been research, government-to-government or cases where the Board has exercised this Aboriginal-to-industry relationships are right, decisions surrounding which can be becoming increasingly important. On an based on cultural and traditional beliefs. international scale, there is also a great deal of activity around AK, with at least The Labrador Inuit Land Claims Agreement 10 international treaty areas having lists the appropriate matters that can be substantive AK-related components. considered benefits when negotiating impact There is ongoing debate around the term benefit agreements (IBAs). IBAs also “traditional knowledge”, which has no represent examples of how prior informed agreed-upon definition, nationally or consent is demonstrated. The Labrador internationally. Some Aboriginal peoples are agreement also requires approval from the reluctant to accept the term “traditional”, as it communities before a major research project implies something frozen in the past that is can be undertaken. In order to grant approval static and unable to develop. to the project, appropriate consultation must take place before the project goes ahead. According to the presenter, and based on Finally, the agreement includes monitoring the Supreme Court of Canada comments, all aspects as part of the ongoing consent constitutionally protected Aboriginal and/or process. treaty rights are linked to the knowledge that ensures their continuation from one The presenter also addressed the issue of generation to the next. Therefore, the protection and preservation of TK. Aboriginal and/or treaty rights are part of Examples such as the Northwest Territories AK. The initiative to develop an AK Scientists Act, which requires researchers to protocol arose from involvement in cultural obtain consent from local communities heritage projects, Aboriginal land-use before research is undertaken, and the studies, and a variety of academic contexts. Nunavut Licensing System, under which This innovative, Aboriginal-rights-based research-licensing consent forms are approach draws from a variety of existing required by researchers for any activities contract types, was developed through involving interviews with or the partici- extensive consultations with Aboriginal pation of Aboriginal people, help achieve leaders and communities, and aims to ensure the protection and preservation of TK. The that customary laws are respected within Act allows for the legal protection of both modern society. The principles included in parties regarding the data collected, but does the protocol are as follows: not address third-party interest—therefore, uncertainty remains as to who else is • The acknowledgement of Aboriginal benefiting from the access. prior-rights and right of self- determination The second presentation mainly addressed • The inseparable nature of Aboriginal the protection of Aboriginal knowledge knowledge from Aboriginal rights (AK). The presenter, who has experience at • First Nations’ participatory rights the international, national, and community

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• The right to prior informed consent The AFN has negotiated First Nations’ throughout the term of the project and involvement and has been working with on an ongoing basis other states to allow and increase the • The general duty of confidentiality involvement of First Nations in international • The non-derogation of Aboriginal rights, talks around ABS. One difficulty posed by titles, and interests the current international context is that 11 different United Nations agencies are In addition, the protocol includes a range of working on Aboriginal-related issues. The responsibilities for any person interested in intense international activity around these accessing AK. The applicant must: issues and their demand on limited resources makes it challenging for First Nations to participate in the debates. • respect the privacy, dignity, cultures, practices, traditions, and rights of the First Nations seek recognition of their First Nation inherent right to self-government. This • recognize the First Nation’s rights to includes First Nations developing their own ownership, protection, and custody of its laws and having them respected in AK (including their rights to heritage international regimes. resources) • respect the anonymity of AK holders Biological and cultural diversity are linked; • agree to not knowingly undertake any the CBD protects both. Appropriate collection of heritage or cultural materials, recognition of the rights of First Nations in • agree not to seek to obtain any AK on the context of ABS is a critical element of the medicinal and cosmetic properties of this protection. plants from an AK holder The AFN held a national environmental The protocol also includes a series of stewardship policy forum in Montréal in provisions on prior informed consent, April 2005. Biodiversity issues were including the unlimited ability of First Nations addressed at this meeting, and the issue of to withdraw it at any time. It also requires the ABS arose during the discussions. The acknowledgement that the First Nation will results of the meeting were transmitted to remain the exclusive owner of AK shared in the Annual General Assembly of the the research project, and includes a clause Assembly of First Nations in July 2005, in allowing for the transfer of intellectual which First Nations were encouraged to property rights back to the community. participate.

The third presenter described the A question period followed this presentation, involvement of the Assembly of First during which Stas Olpinski, from the Makivik Nations (AFN) in ABS. The AFN has Corporation, asked if the purpose of this been following this complex issue and workshop was to consult Aboriginal groups knows that First Nations share concerns and communities on ABS. over this emerging issue. Concerns arise over questions of jurisdiction, the Jock Langford, from the Biodiversity involvement of First Nations in the debate, Convention Office at EC, reiterated that and the difficulty of gathering First Nations’ the main objective of the workshop was to points of view. raise awareness among northerners and

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Aboriginal groups, and was not considered a ABS: A Resource Management consultation. He explained that the decision to start consultations on ABS will be made Issue by the F/P/T ministers. In the current Presentations: context, no resources have been identified ABS: A Resource Management Issue – so far to develop a consultation process. It is Brian MacDonald (barrister and solicitor) to be expected that consultations with Canadian stakeholders and Aboriginal ABS and Protected Areas – Andrew Hurst (Biodiversity Convention Office, EC) groups will increase as the negotiation of a legally binding agreement gets closer to Lindsay Staples (consultant) fruition.

The first presenter explained the issues and In Canada, no specific regulations exist at challenges of managing genetic resources in the federal level on ABS; however, some the context of the Yukon, whose climate and interesting examples, such as the Northwest geography create a unique environment for Territories Scientists Act, exist at the sub- plant and wildlife adaptations that lead to national level. The current policy process is the formation of interesting genetic material. responding to international pressure, and The management of genetic resources is a will increase Canada’s influence in the new concept, especially when looking at the international debate. Almost all federal political history and social dynamics of the departments in Canada are involved in Yukon. As such, a unique opportunity exists national and international policy- to deal with some of these genetic-resource development processes through their issues and to create unique solutions. participation in an interdepartmental committee on ABS. A working group on Along with the environmental diversity of ABS was also created by the F/P/T the Yukon, the presenter also illustrated its ministers, whose role is to contribute to the political complexity. The territorial status of policy development by elaborating an the Yukon is characterized by three levels of engagement strategy and drafting a scoping government jurisdiction: federal, territorial, paper on ABS. The scoping paper will be and First Nations. The Yukon’s political and key to starting and developing an jurisdictional uniqueness is also the result of informative debate on ABS in Canada, both 10 co-existing land-claim and self- at the working and ministerial levels, and will government agreements,6 interpretation be revised according to what is heard from plans to final agreements, and devolution the ministers. transfer agreements. As a result, flexible and

creative new processes are being created that The concrete action of the federal enable the Yukon’s political institutions to government is currently focused on raising respond to emerging issues such as resource awareness through an informed debate, management and, more specifically, the building capacity among experts, and management of genetic material. identifying Canadian environmental, social, and economic interests in the context of ABS. This northern workshop and an 6 The final and self-government agreements recognize upcoming international workshop on the authorities of the First Nation governmental structure, which represents the interests of the community. They also Aboriginal issues are some of the initiatives recognize the First Nation’s authority and ownership over that aim to achieve these objectives. the resources.

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The management of genetic resources is not Final Agreement, as well as the right to covered by any existing laws in the Yukon; legislate certain areas, such as cultural rights however, under the Umbrella Final and land- and resource-management Agreement (UFA), there are five sections responsibilities (First Nations laws take where a connection to genetic resources can precedence over territorial laws; the issue of be interpreted. The presenter gave a brief precedence with respect to federal law explanation of each of these sections, which remains to be negotiated). These are summarized as follows: responsibilities and authorities can help to improve understanding of how the UFA can • Special management areas: the Kluane be utilized in the management of genetic National Park example demonstrates material in the Yukon. that some interpretation of this section could include genetic resource The presenter briefly discussed the Yukon’s management concepts Environmental and Socio-Economic Assessment Act (to come into force by fall 2005), which • Access to settlement land: this section aims to ensure the environmental includes a surface rights board assessment of projects proposed for the responsible for determining access rights Yukon. The Act identifies Yukon First in the case of access disputes Nations as decision-making bodies, and requires the assessment process to consider • Fish and wildlife management: this the interests, cultures, traditions, health, and section stipulates that First Nations have lifestyles of Aboriginal groups and primary authority over their settlement communities and other residents of the land. The Yukon Fish and Wildlife Yukon and their special relationship with Management Board and local the wilderness. committees provide forums for members of the public and First Nation Finally, the Yukon’s research-permitting peoples to participate in the decision- legislation, which was developed in 1958, making process for the management of requires non-resident researchers to apply fish and wildlife resources for a permit before undertaking research in the Yukon. The practice is to refer to the • Forestry resources: Chapter 17 of this First Nation if and when the research section makes possible the harvesting of proposal touches on settlement land. The forest resources system does not require the sharing of benefits arising out of the research; however, • Economic development: based on the researchers generally give credit to the use of genetic resources and benefit- people who have allowed them access to sharing, economic development can their field of study. arise through different projects that are linked to the Environmental and Economic The Wildlife Act also includes permit Assessment Act requirements for undertaking wildlife research. In conclusion, in the Yukon there Under the UFA and the Self-Government is currently no process that identifies Agreement, a First Nation has exclusive genetic-material management with proper jurisdiction over the internal matters within legal acknowledgement; however, there are its government and rights arising out of the existing mechanisms that can be adapted to

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      deal with the management of genetic The Yellowstone case illustrates how a lack resources. of regulation of genetic resources can lead to a net loss of revenues for protected The second presentation addressed the issue areas. Revenues generated through ABS of protected areas and how ABS can be used arrangements can be invested in the to leverage benefits that support efforts to conservation of protected areas. The conserve and manage these areas. The research and economic benefits from genetic presentation focused on recent experiences research within parks can strengthen the in Yellowstone National Park. rationale for conserving these areas. This is a new way to think about protected-areas The biodiversity of Yellowstone has been of management, as well-designed benefit- great interest to researchers because of the sharing agreements can leverage unique species found in its thermal habitats, institutional, environmental, and economic which include hot springs, geysers, mud benefits from research conducted within pots, and fumaroles. In the 1980s, Cetus these areas. Corporation, a biotechnology company, undertook research on DNA-replication Yellowstone undertook a range of initiatives technology using a microbe found in the to capture these benefits. It updated the thermal hot springs of Yellowstone called management of bioprospecting, initiated Thermus aquaticus. From this microbe, Cetus new microbial biodiversity conservation discovered and isolated an enzyme called activities, reaffirmed support for scientific Taq polymerase. With the use of this enzyme, research, and expanded public outreach and Cetus developed a process—known as education. The Yellowstone experience Polymerase Chain Reaction or PCR—that suggests the formation of a new promised to make genetic research much bioprospecting paradigm in which science, easier through its ability to “magnify” small industry, and society serve conservation. samples of DNA to facilitate analysis. Cetus filed patents on both Taq polymerase and PCR Learning from this experience, Yellowstone and, in the 1990s, sold the rights to both to put in place a two-step approach to ABS. the Swiss pharmaceutical company First, it allows all researchers to access the Hoffman-LaRoche. The annual revenues park under certain terms. Second, if any earned by Hoffman-LaRoche from PCR are research done in the park reaches the reportedly in the hundreds of millions of commercial stage, researchers and park dollars—none of which has been returned authorities enter into a contract known as a to Yellowstone National Park. cooperative research and development agreement,7 which includes a clause Approximately 45 patents have been granted providing for the sharing of benefits on life-science inventions involving the use (including the payment of royalties and other of micro-organisms originally sourced from contributions, training, increased scientific Yellowstone, and approximately 10 more are pending approval. The global market for 7 Cooperative research and development agreements bio-based products is large, and with less authorized under the Federal Technology Transfer Act of 1986 (15 USC 3710a et seq.) provide for joint public-private than one per cent of thermophilic research activities to encourage shared scientific reporting, biodiversity identified, it is likely that this training, technology transfer, and profit-sharing market will grow in the future. arrangements.

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      reporting, and technology transfer). This traditional cultural values, and the approach has yielded increased resources in conservation of fish and wildlife species support of conservation efforts within the and habitat. Also, ABS frameworks, as park. contemplated in the management of genetic resources, are not new in the North; they are Can the Yellowstone example be replicated already entrenched as impact and benefit in the North? Quite possibly. ABS agreements and participation agreements arrangements in northern parks could (e.g., in the IFA and the Nunavut Land potentially support the protection of TK, Claims Agreement). increase knowledge about resources and biological material located in northern parks The generation of wealth, protection of (taxonomy), help build capacity for cultural values, and conservation of wildlife Aboriginal peoples, and possibly also and habitat is at the heart of the workshop’s generate revenues for conservation. discussion. Northern Aboriginal people should be active in the elaboration of ABS The third speaker had extensive experience policies, as this is an opportunity to provide with the Inuvialuit Final Agreement (IFA)— economic benefits to people whom the first land-claim agreement signed in the development has often been overlooked. Northwest Territories (1984). He appeared The broad and active participation of at the suggestion of several organizations Inuvialuit and other northern peoples and established under the IFA. governments in this process must be based on the precondition that these same groups He started by asking a few questions relating will enjoy the benefits of development to the IFA and other modern-day land-claim associated with genetic resources. agreements and the management of genetic material, including: On the one hand, people are conscious and have financial expectations of the economic • what kind of tools or capacity do these benefits that such developments may bring agreements provide in relation to to the North. The Inuvialuit expect that genetic-material resource management? their rights to the economic benefits • how well do legal definitions and terms contemplated under the IFA will be of the 1984 IFA hold up in this context, respected. On the other hand, Inuvialuit over 20 years later? expect that the quality of their environment • will capacity-building, as discussed in this and the abundance and diversity of the fish workshop, ensure that all parties to this and wildlife on which they depend will be policy-development process share a conserved. The IFA and other land-claim common understanding of the technical agreements have established management terms around ABS and the legal terms and bodies to participate in the conservation of obligations in land-claim agreements? natural resources and to provide greater certainty that their beneficiaries will be able Sustainability and sustainable development to enjoy the harvesting rights set out in these frameworks can be used when addressing agreements for years to come. In the North, these kinds of questions, as they already the traditional use of fish and wildlife include the basic goals of the IFA and other resources is based on legal rights and social, land-claim agreements: participation in the cultural, and economic needs that must be northern economy, preservation of respected.

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Twenty to 30 years ago, many of these their relationship with the land. She talked concepts and management approaches, about fish and wildlife in the Yukon, saying which have since been entrenched in land- that a decreasing number of salmon come claim agreements, were not considered in home to spawn, and that the songbirds and resource-development discussions. Nor was porcupines are gone. She recalled the past this type of development contemplated. and how she lived happily in the Yukon, Today, the IFA and other northern land- under her own people’s flag. claim agreements are broad enough to address the possible risks and benefits of She now understands that her people’s land, using genetic resources, and many of the medicines, and genetic materials are wanted. rights and entitlements included in these She reiterated that we need to respect and agreements are the same. Although some protect our environment and our neighbors. differ, the differences should not represent She also said that if the government comes an obstacle. The establishment of the federal down on her people and tells them what Species At Risk Act is an example of how they want, she gets scared. She reinforced discussions among all parties have led to the idea that what can be shared needs to be the establishment of a set of common written in black and white; that even First provisions and integrated approaches for the Nations’ lands and homes can be shared, but implementation of legislation across the the rights of the people must be ensured on North. The same could and should be true paper. The elder also reiterated that the of policy development as it relates to genetic Tlingit Clan does not just give anything resources. away—there are no books of information, and no secrets given away for nothing. The bioprospecting of fish, wildlife, and Trading, peace-loving, and very respectful flora—either on or off traditional people have always existed in the Tlingit territories—must be integrated with the Clan, and still do. She concluded by calling requirements of land-claim agreements, and for people to take care of the land, as it is a must respect the value of the traditional wonderful place to be. relationships between many northern people and the fish and wildlife they depend upon. A participant, Don Trudeau, commented Research in the area of genetic resources that he had heard the terms sustainable must also respect these relationships and development and traditional knowledge meet the requirements of the IFA and other thrown around loosely. He believes that TK land-claim agreements. Finally, respect for is knowledge that has been gained over the traditional uses of and rights to these thousands of years, and could be considered resources, as established in agreements like a science. He remembers all of the treaties the IFA, will help to perpetuate traditional that have been made across the land and that culture, improve social and economic well- have since been broken. The UFA has not being, and ensure the appropriate mana- yet been broken, but it is his fear that it will gement of genetic resources research. be at some point.

A period of questions and comments He explained his belief that treaties have followed the presentations. The first been broken in the past because the First comment was made by an elder, Pearl Nations people’s rights to land were not Keenan, who talked about her people and respected, and because the First Nations

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      refused to accept the land they were moved In this way, the quality of life of Canadians onto, because it lacked food, water, and can be enhanced in terms of human health, resources to build lodgings. the environment, and social and economic development. ” The strategy guides the He reiterated the need to protect resources actions of the Canadian government in this for future generations: to take care of the area based on three pillars: innovation, land today in order to ensure that it will be stewardship, and public engagement. It has protected for future generations. He evolved from an early orientation on continued by saying that although people are support for research and development trying to make new agreements in order to (R&D) to a strategic orientation that achieve this, he has been protecting these supports policy development on emerging resources all his life. Teaching traditional issues such as ABS. knowledge to future generations is the way to protect TK and the land. The issues Building a framework for managing should keep in mind the interest of future biotechnology is about balancing its social generations. The elaboration of these and environmental risks (e.g., risks to health policies will take time, but must start by and the environment, long-term effects, gaining the trust of the people in the Yukon. scientific foresight, ethical questions) with its benefits (e.g., investment in R&D, tax credits for research, commercialization of research). Within the CBS, the Canadian The Future of Biotechnology and Biotechnology Advisory Committee (CBAC) Implications for the North is responsible for looking at various biotech- related issues and making recommendations Presentation: to the ministers. The CBAC has already Biotechnology and the North – Jock Langford (EC) produced reports on genetically modified foods and the patenting of higher life forms. The presenter opened by explaining what biotechnology is, and the federal The presenter also gave an overview of government's approach to it. biotechnology investments in Canada. Canada is one of the top five countries in Biotechnology is a set of technologies (e.g., the world in terms of biotechnology, with fermentation, plant breeding, natural the majority of money invested going products, genetically-modified organisms toward human health (88 per cent), followed [gene splicing], cell lines [hybridomas], by agriculture and food processing (8 per cloning, stem cells, genomics, proteomics) cent), bioinformatics (2 per cent), that are used to create new products. It has a environment (1 per cent), natural resources wide range of applications to human health, (1 per cent), and aquaculture (less than 1 per agriculture and food, the environment, cent). The majority of the federal aquaculture, forestry, and bio-informatics. government's investments in biotechnology have aided in the establishment of R&D The vision of the Canadian Biotechnology clusters in Ontario, Québec, British Strategy (CBS) is for Canada to be “a Columbia, the Prairies, and Atlantic Canada. responsible world leader in the development The presenter indicated that CBS statistics and application of biotechnology to life suggest that there has been little or no sciences in the knowledge-based economy. biotechnology investments made in northern

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Canada. He also said that his expectation, the presenter posed several questions, based on trends, is that the federal and including: provincial governments will continue to increase their financial support for • how can the North take advantage of biotechnology in the coming years. this biodiversity? • is there a need for a northern strategy on The presenter illustrated that biotechnology biotechnology? is a horizontal issue that involves more than • how can the North access biotechnology 26 federal departments and agencies. Among funding? federal institutions, he singled out the • how can the North best access Canadian Institutes for Health (CIHR), the university/government research agencies National Research Council (NRC), and in the rest of Canada in order to build Genome Canada as leaders in public sector research relationships and networks? R&D. The CIHR and the NRC spend approximately $175 million and $130 million, respectively, on biotechnology each year. The NRC has established five biotech Genetic Resources and institutes across Canada, and Genome Bioprospecting in the North Canada has genome centers in British- Columbia, the Prairies, Ontario, Québec, Presentation: and the Atlantic region. These two have also Biodiversity in the North – Sophie Bernier (EC) established international partnerships and a science and technology network with other The presenter touched briefly on the state of countries in the Organization for Economic genetic resources in Canada, with a Cooperation and Development. particular focus on the North. Most of the world’s biodiversity (70 per cent) can be The presenter also explained the found in the megadiverse countries (that is, biodiversity/biotechnology strategies of those located around the equator belt). All Malaysia and Indonesia, where access to countries are users and providers of genetic biodiversity is an incentive for investors resources, as all have different ecosystems to locate their research facilities in and climates. Canada is in a unique position biotechnology parks. This is a model that because of the variety of its ecosystems and may have potential applications to a climates, and because resources found in northern ABS strategy. extreme environments are of potentially great importance to future biotechnology The presenter concluded with a series of developments. questions about how ABS relates to the development of the biotechnology industry In Canada, there are approximately and how there may be merit in developing a 140 000 unidentified species, 68 000 species biodiversity-based biotechnology strategy for that have not been described, and a limited the North. In identifying northern number of endemic species in comparison biodiversity that may be of interest to to other countries. Most of the species researchers (e.g., extremophiles, micro- (organisms, plants, and animals) are found in organisms, non-timber forest products, land and water ecosystems. There is a need products based on TK, marine organisms) to allocate more resources to national

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      taxonomy efforts, as this work will medicines, ecological tools (monitoring contribute to a better understanding of the toxicity), and fertilizers. Freshwater and types of species found in Canada. marine micro-algae can be used in the production of health products (e.g., When looking at the number of species, we Spirulina, Chlorella) and medicinal products should also consider the variation within (e.g., antioxidant [beta-carotene] and each. Unfortunately, information on species immuno-suppressive [peptide]). variation is also limited, as techniques to measure genetic variation within species are Seaweeds are part of the Inuit’s lands and generally prohibitively expensive to apply to TK. Harvesting and commercialization Canada’s wild species. Human activities and should involve the Inuit people at all environmental effects force species to adapt decision-making levels, and should be themselves to new circumstances, thereby respectful of the environment and Inuit contributing to the modification of the culture. species and their relationship to their natural habitat. Estimates indicate that over 2000 species can be found in the North, with around Many species (e.g., micro-organisms, trees, 184 of these used in the development of plants, flowers, fish and other marine products and medicines. Ten percent of the resources) found in extreme environments, species found in the North are used by the including toxic sites, contain interesting Inuit people. The presenter gave the properties, and are or could be harvested example of Rhodiola rosea (also called for research and eventually commercial Tullirunaq and Utsuqammat), a plant used purposes. by the Inuit in Nunavik and elsewhere in Canada as a tonic. More taxonomic, phytochemical, and pharmacological studies — Discussion I — would likely unveil other properties of the Which Resources Do We Find in plant and broaden the potential applications the North? of its components. The Rhodiola rosea grows slowly and little is known about its Presentation: distribution in Canada, therefore there is a ABS: Research and Economic Development in need to assess the sustainability of wild- the North – Alain Cuerrier harvesting this resource and the possibility (Montréal Botanical Garden) of cultivating it.

The presenter explained how animal-, As a first set of conclusions about species plant-, and algae-based products can be found in the North, the presenter reiterated developed using resources found in the that the local importance of these plants North. Among all the species identified, should be stressed, local economy should seaweed is one of particular interest to prevail when using the plants, the global scientists, as it is abundant along the economy should be in harmony with the shoreline and has a variety of uses. These Aboriginal culture, little is known about the include the production of food products, pharmacological potentials of arctic plants, biomedical applications, paper products, and sustainable harvesting needs to be pharmaceutical products, cosmetics, addressed.

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As a second part of his presentation, — Discussion II — Mr. Cuerrier shared information about a What is Being Collected, Including Non- project he is realizing with the Cree Timber Forest Products? community in northern Québec. In the What Scientific Research is Being Done? northeastern part of Canada, First Nations have traditionally used around 380 species of Presentations: medicinal plants. The focus of Mr. Cuerrier’s Bioprospecting and Biodiversity Research in the Canadian North – Victor Bradley work with the Cree community is the (EC consultant) potential of certain plants to contribute to the development of a cure for diabetes. The Nunavut Research Institute: Licensing Process and Preliminary results of the study indicate that Ethical Guidelines – Nick Dennahower (Nunavut 29 species were mentioned by Cree elders in Research Institute) relation to the symptoms of diabetes. Eight of these have been investigated, and all The first presenter began by explaining that showed anti-diabetic activity, with in situ bioprospecting in Canada seems to be antioxidant potentials seemingly high in limited. Some research institutions already numerous species. keep a large collection of samples of Arctic flora, and a few Canadian museums also The presenter stressed the need to work in a have collections that can be accessed respectful manner when undertaking this without any particular or onerous kind of work. All of the elements of requirements. The existence of ex situ importance to both the First Nation and the collections in Canada, both in research scientists need to be integrated in a institutions and museums, is an indication respectful way that leads to the final that a large number of genetic resources objective: to reduce diabetes. He also can be accessed without limitation. recalled the need to assess the sustainability of local resources. Currently, the Cree are The protection of genetic resources is also using resources like fungi, lichens, moss, and limited under territorial legislation. vascular plants in the production of Collections of native species are relatively medicines, food, baskets, tea bags, etc. These accessible and, although not for sale, allow slow-growing resources are abundant right researchers to have access to specimens for now, given their limited and sustainable use; basic research and research on the particular however, there is a need to assess the characteristics of a plant. potential impacts of mass harvesting and production on these resources. The presenter found little information regarding bioprospecting activity in the There are several potential dangers North, biotechnology development and associated with the harvesting of plants, research in the North, or research on genetic including cultural misunderstandings resources in the North. However, he between First Nations and researchers about pointed out that there are many activities the goals of a project, the possibility of (this workshop being an example) taking losing track of the scale of the harvesting place with the main objective of discussing economy, and the need for more thinking to the issue of bioprospecting in the North. be done about how, for whom, and based on what knowledge the resources should be In talking to different authorities, the conserved. presenter made no discoveries of anecdotal

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      evidence of biotechnology research or settled its land claim in 1995, and how it research on the North from a bioprospecting emphasized the need to protect its culture. or biotechnology perspective. It is a reality that in the debate around biodiversity in the The second participant to comment raised North, issues concerning flora or fauna seem concerns about licensing systems. According to be dominated by other issues such as to him, licensing may not work because climate change and pollution. some of the research is occurring on traditional territory. Before land-claim As part of his research, the presenter looked agreements, he said that researchers would at the licensing system in the North. use catch-and-release techniques to research According to existing licensing requirements fish, and that the fish would die afterwards. in territorial legislation, all research done in Therefore, these techniques should not be the territories is supposed to be licensed. used anymore. He also talked about the fact While it is clear that a research permit could that people make money out of the use of not be withheld without good reason, fish and wildlife, yet no money goes back to government agencies and the general the First Nations. Elders have a say in how population are supposed to be aware of the their fish and wildlife management program work to be undertaken in the territory. is run, and First Nations have their own Limited time and human resources often lawyers to consult when facing issues about make it difficult to monitor the activity fish and wildlife. occurring in the territory, and this reality creates enforcement issues. The third comment was made by an elder who voiced the need to look back at past Finally, the researcher addressed the laws that did not include any property rights. impacts of biotechnology research on the Any law that would be adopted should be environment. Certain biotech manipulations clear enough so that all parties understand can extract the genetic components of a their implications. It’s a corporate plant and be synthesized and reproduced in responsibility for legislators to ensure that a laboratory. Not all biotechnology research laws can be understood by all. There is a leads to a mass harvesting of resources, and need to look at existing land-claim the detrimental or adverse environmental or agreements and assess the relationship cultural impacts of this research do not between these laws and any new regulation. always occur. It is important that First Nations understand the laws and policy guidelines and be The second day of the workshop started properly involved in this process. The elder with a series of comments from the elders concluded by saying that TK is leaving his present at the workshop. The first First Nation, and that he wants to put a participant commented that he does not stop to this. work with computers, but rather prefers to work with elders, and wants to learn from The fourth participant to comment started them. He also expressed his interest in by saying that her people are concerned learning something from the participants at about the caribou and the United States the workshop, and added that there are all decision to allow some mining activities that kinds of ways to use medicinal plants. The will affect the caribou’s habitat. This participant explained how his First Nation decision will also affect her people’s future,

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      as they rely on caribou to take care of their The second presenter started by giving an spiritual needs and their every being. She overview of the structure, vision, mandate, also said that she found some of the and activities of the Nunavut Research presentations at the workshop hard to Institute (NRI). follow because of the technical terms used. As a young elder, she is very interested in The NRI’s primary role is to issue research the work being done on the protocols for licenses. It also coordinates, promotes, and accessing TK, and the workshop was a facilitates research projects, identifies and learning experience for her because it gave communicates research needs and priorities, her the opportunity to sit with elders who and compiles and communicates research have a lot to say on the issue. results. Its responsibilities are to administer the Scientists Act (RSNWTc 1988, c.4) in The next commenter, Mr. Don Trudeau, Nunavut, and to license all research in said that the elders must think thoroughly Nunavut except terrestrial wildlife and about what they had heard. He said the archeological research. elders of First Nations peoples have always shared their knowledge, but are not ready to According to the Act, a science advisor give it away. He would share his knowledge, shall issue a license unless, for reasons stated but people must ask for it first. In First in writing, “the research proposed to be Nations’ culture, people are related to and carried out might be injurious to or unduly have a spiritual respect for all things. He interfere with the natural and social expressed concern over the viruses and environment of the territories or any part germs that modern medicine is working of the environment” (NWT Statues, 1985: against, and said that getting to know TK is Chap S-4, Sec 2). important to fight these diseases. He emphasized the importance of how plants The licensing review process is multifaceted of all sizes are related. Elders are experts and involves a wide-range of agencies, such on plants, and the plant world is their as public-school administrators, hunters’ and university. Scientists need to be respectful trappers’ organizations, municipal councils, of the plants they are studying. Inuit land-claim organizations, and territorial regulatory groups. The licensing process The last comment was made by provides the community with influence over Mr. Gary Harrison who commented on the types of research conducted in Nunavut the need to protect TK. In the past, his (e.g., a license may be withheld if people shared their language with communities prove that the proposed universities and couldn’t afford to take it research will be unduly intrusive or back from the university that had acquired it. inappropriate) and the manner in which The First Nations started to develop their research is conducted (e.g., limits may be own books and resources, and had to have requested on the timing and location of their own language copyrighted. Drawing research activities, or the types of research from this past experience, there is a concern methods used). about sharing TK and losing control over how it is used. Bioprospecting may exploit One of the goals of the NRI is to address his people’s TK. ethical questions and respond to local

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frustrations over research processes. ABS and Marketing: Issues, Frustrations often emanate from unethical research, lack of transparency about the Opportunities, Challenges end-use of research results, concerns that Presentations: researchers enhance their careers at Building Partnerships for the Sustainable Management of northerners’ expenses by acquiring Non-Timber Forest Products and Canada Yew: intellectual property rights, concerns Managing a Genetic Resource for Genetic Gain – over the validity of research results, and Jock Langford (EC) northerners’ desires to have more control Bev Gray (herbal specialist, Yukon) over research and share the benefits derived from it. International Plant Identification Practice – Connie Kehler (Canadian Herb, Spice and The NRI has divided its ethical principles Natural Health Product Coalition) into two categories: objective and subjective.

Among the objective principles are the Because the workshop was significantly obtainment of prior informed consent, behind schedule, the first presenter guarantee of anonymity, appropriate incorporated some of the key elements of consultation at all stages of the research the second presentation on the Canada yew (including design and practice), and the right into the presentation on non-timber forest of the community/individual to withdraw products (NTFPs). Both of these consent at any point during the study. The presentations were jointly prepared by the subjective principles include showing respect Canadian Forest Service and the Biodiversity for local culture and language, privacy, and Convention Office. dignity; applying no undue pressure to obtain consent; incorporating relevant TK Besides trees used for timber and pulp, into all stages of research; and striving to Canada's forests contain a wide range of enhance local benefits that could result from biodiversity. Plants have multiple values a project. These principles are not intended and uses (e.g., fibre, food, horticulture, to regulate research, but rather to guide the nutraceuticals, pharmaceuticals). Historically, conduct of research in general ways, plants have played a very important role encourage fairness and honesty, and in human health. For example, over encourage researchers to conduct research 35 000 species of plants are used for with the consent and cooperation of medicinal purposes worldwide. affected local communities. Bioprospecting of NTFPs is occurring The presenter concluded his presentation by worldwide, including in northern Canada. noting how scientific research can contribute While the significant potential of NTFPs is to the economic and social development of acknowledged in a general sense in Canada, communities. Revenues, education, and the development of NTFP products and increased knowledge about the natural and markets in support of the sustainable social environment can all be derived from a development of northern and rural well-established research agreement. communities has not fully reflected the

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      potential opportunities. When thinking about countries. Measures are being taken to try to the potential use of NTFPs, two questions counter unsustainable harvesting practices of arise: which of the many plants or bioactive the Canada yew by some companies. The compounds are realistic candidates for Canadian Forest Service has a five-year harvesting and are included in R&D directed research program to identify and develop at commercialization? and what additional superior Canada-yew plant genetics, so that market-related factors should be considered? plants can be grown and harvested sustainably on plantations. NTFPs, also called non-wood forest products or specialty forest products, offer a The establishment of partnerships between wide range of opportunities and differ in various stakeholders is required to achieve the various ways, including in their abundance, ultimate objective of ensuring the value, biological characteristics, potential development of a sustainable NTFP industry. uses, and possible market development. The Canadian Yew Association is a diverse Even though these resources offer a group of government agencies and significant potential, the demand for most stakeholders that have worked to develop a “single” NTFPs will not likely be of set of goals and activities aimed principally at sufficient scale to provide a full-time ensuring the sustainable management of the livelihood for individuals or to sustain rural yew. The goals identified by the association communities. It is through a sustainable- are to protect the resource, maximize the management strategy for forest products benefits to workers and rural communities, that their potential will contribute to meet and maximize value-added processing in environmental, social, and economic Canada. The presenter suggested that the objectives. Commercialization of NTFPs partnerships and strategies being used for the may lead to mass harvesting, and multi- Canada yew may serve as a potential model agency partnerships can be effective in for other NTFPs. achieving long-term sustainable benefits while avoiding the depletion of species The presenter concluded that while NTFP throughout the world. The presenter also stakeholder partnerships have not been identified a number of biological and without challenges, the Canadian Forest market-factor questions that need to be Service’s experience with these partnerships considered in evaluating the potential of an is that they are successful in building NTFP and mapping out a harvesting and relationships among partners, increasing commercialization strategy. awareness of NTFPs, contributing to scientific knowledge, and contributing to the The presenter provided information on the achievement of economic-development harvesting, processing, and sales of the goals. Competition may lead to a shift in NTFP Canada yew. Taxanes extracted from production from one country to another and the Canada yew (Taxus Canadensis) are used decrease interest in the same resource to produce the anti-cancer drug Taxol, harvested in Canada. which has been demonstrated to be effective against more than 20 forms of cancer, The second presenter was the owner of including breast and ovarian cancer, and Aroma Borealis, a natural product shop some non-cancer diseases. Because of its located in Whitehorse, Yukon. She explained medicinal and ornamental characteristics, the how people harvesting plants can feel the yew is being harvested in Canada and other positive energy of plants, and that everyone

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      has a personal journey with plants. micro-companies, work together to help build According to the World Health a sustainable chain—from the field to the Organization, 80 per cent of the world’s shelf. This includes working to influence the population use natural products for healing. development of policies relating to health The increasing use of plants in various products. products contributes to a loss of plants, both from quantitative and qualitative The network of people involved in this perspectives. She gave, as an example, the area contributes to building social, Echinacea that is being intensively harvested environmental, cultural, and economic in the Prairies. sustainability. One of the goals of the coalition is to help community people According to the speaker, large corporations develop projects that will foster and benefit are looking at the Yukon as an interesting the community. The presenter stressed the place to harvest plants. She suggests that a importance of the social impacts of the council should be put in place to prevent the coalition, as the driver in this case is not over-harvesting of plants in the Yukon, and primarily economic in nature. Developing to manage their sustainable use. The speaker principles, guidelines, and practical tools, explained how she harvests plants in the listening to people, building bridges, and Yukon in a respectful way, by taking small understanding are all at the heart of the quantities of plants and without harming the coalition’s actions. environment. The second part of the presentation focused One comment followed the presentation. on plant identification. According to the An elder expressed concerns about wild speaker, plant identification is essential and plant-life, and how anybody can go out and is one of the keys to the development of an collect species when, in his view, no one industry based on the safe use of high- owns nature and plants can’t be someone’s quality natural health products. Examples of property. Bev Gray (Aroma Borealis) misidentification, adulteration, and responded that she agreed with the elder’s contamination of natural health products concerns, and reiterated the need for a body have been widely recorded, both within to manage plant-harvesting activities in the Canada and around the world. Undoubtedly, Yukon. questions of botanical identity are a key feature. The third presenter began by introducing the Canadian Herb, Spice and Natural Health Accurate plant identification is a concrete Product Coalition. The coalition connects need, as it represents the foundation of the agriculture and health, and works with leaders safe use of plant-based natural health in the field from all the provinces and the products. Without proper botanical Yukon. The work of the coalition focuses on identification as a starting point, the safe use three main areas: culinary herbs and spices, of quality products cannot be guaranteed. medicinal herbs, and natural health products. The coalition’s main goals in this area are to All of the people involved in the production develop effective and practical tools for chain, including producers, wild-crafters, people growing and collecting plants so that manufacturers, practitioners, researchers, medicinal herbs are accurately identified, to regulators, scientists, government partners, make this voluntary practice available to all associations, companies, groups, and small so that it is included into good collection

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      practices, and to establish a tool for the the need to recognize the voices of the First cottage industry and manufacturers to ensure Nations and rebuild trust among parties. appropriate identification. The fact that First Nations’ knowledge is being taken without permission is breaking A plant-identification working group, the trust its people once had in the users of composed of representatives from industry, the knowledge. People have a lot to learn government, First Nations communities, the from the First Nations, and land managers Herb Research Foundation, the American need to see for themselves what First Herbal Products Association, the World Nations are going through, how they live Health Organization, and educational off the land, the plants they use, and their institutions was established to provide respect for the environment. The elder was advice on how best to develop an thankful for the opportunity to attend the identification practice. As a first step, the workshop, and for people to hear what she group revised literature to look at partially had to say. There will be no trust for First developed practices. As a second step, a Nations’ future generations if something decision-tree process was developed based does not get done today, she added. She on a risk-management system that looks at concluded by reiterating that the Yukon the risks for the people and products First Nations are a government, and should involved. This process encompasses the be treated as such. identification of correct species, varieties, and plant parts. Finally, the third step aims The next participant, Don Trudeau, to observe and document the growth and explained the relationship First Nations have harvest stages of both cultivated and wild- with plants, which they consider a living harvested plants. family with a special spirituality. The identification of plant varieties is easy for In order to guarantee the identification of the First Nations people, and is done through plants, two documents have been produced. special communication with the plants and a The Certificate of Authenticity, which must unique energetic relationship with them. be signed by a recognized authority in First Nations elders, shamans, and healers botanical identification and, alternatively, the ask permission from the plant family as to Declaration of Identification, which must be which plant should be picked. Doing signed by a harvester or a producer whose business with plants is not an option for knowledge or past experience has been used Aboriginal people; it is the essence of life. to identify the plants. The participant is recognized by elders as a doctor of the land. He is concerned that The identification system created by the people are taking a simplistic approach when group is now an internationally recognized dealing with plants, and hopes this practice, and resulted in the elaboration of a workshop will help people understand the tool for the safety of all people involved in special relationship that needs to be the production chain of health products, established between scientists and plants. He around the world. also hopes that people will listen to and learn from the First Nations before they take The following question and answer period their knowledge away. allowed for comments from two participants. An elder commented to reiterate

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Herbals and Medicines: • foster capacity building and the participation Aboriginal Issues of Inuit in health-care professions • affirm, promote, and protect Inuit Presentations: traditional cultural, environmental, and Ajunnginiq Centre - National Aboriginal Health health-related knowledge and associated Organization – Tracy O’Hearn intellectual property rights (Ajunnginiq Centre, National Aboriginal Health Organization) In the area of traditional knowledge, NAHO

Verna Miller (Nlakapamux Health and Healing focuses on building relationships with Society) knowledge holders (takes direction from them), creating links between knowledge University Research on Traditional Medicines: holders and traditional healers within Implications for Aboriginal Communities – Canada and internationally, and monitoring Kelly Bannister (University of Victoria) relevant discussions and processes that Pearl Keenan (elder) affect Aboriginal peoples in Canada and internationally.

The first presenter introduced the National The Ajunnginiq Centre works on specific Aboriginal Health Organization (NAHO), issues with Inuit partners in the regions and which was created in 2000 in response to nationally (e.g., the recent federal sectoral recommendations from the Royal roundtable on the environment organized by Commission on Aboriginal Peoples and Inuit Tapiriit Kanatami), including the the National Forum on Health. It has protection of Inuit cultural and intellectual three centers of excellence: First Nations, property; climate change, research Métis, and Inuit. methodologies, and research ethics.

The Ajunnginiq (skills and knowledge) Centre The main objective of the Centre is to focuses on issues and priorities of specific ensure the inclusion of Inuit concerns in concern to Inuit in Canada and works closely policy development. Addressing health with regional and national Inuit organizations, issues in a holistic context (i.e., including the Inuit Circumpolar Conference environmental health and wellness), raising (Canada), Inuit Tapiriit Kanatami, Pauktuutit awareness of relevant issues (e.g., the Inuit Women’s Association, and the National protection of cultural and intellectual Inuit Youth Council. property), ensuring recognition of unique factors (e.g., land-claim agreements, The Centre’s mandate is to: language, culture, geography), developing

plain-language materials in both Inuktitut • improve and promote the health of Inuit and English, and the integration of Inuit through knowledge-based activities traditional knowledge and practices into the • promote the understanding of health examination of contemporary health issues issues affecting Inuit and solutions are among the Inuit-specific • facilitate and promote research and activities undertaken by the Centre. develop research partnerships that respond to the research priorities of Inuit The Ajunnginiq Centre is active in the • increase the number and capacity of elaboration of methodologies and ethics Inuit researchers for researchers working in Aboriginal

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      communities or with Aboriginal peoples. • Meaningful Inuit participation in The way such research is conducted has discussions/solutions evolved; the general principles now taken • Inclusion of an authentic Inuit voice into consideration include ownership, • Communication by way of public access, control and possession of data, meetings and non-print media participatory processes that benefit those • The definition of sustainable develop- being researched, prior informed consent, ment in both Inuit and research terms the right to withdraw, and equal recognition • Impact assessments that include the social and value of TK and Western science. and cultural impacts of development

The Tri-Council Policy Statement, “Ethical The second presenter was the executive Conduct for Research Involving Humans” director of the Nlakapamux Health and (adopted in 1998 by the Canadian Institutes Healing Society, who started her of Health Research, Natural Sciences and presentation by talking about plants. She Engineering Research Council and the explained that while the focus of modern Social Sciences and Humanities Research scientists is on the medicinal aspects of Council ), includes a chapter about the plants, they are also used for food, spiritual importance of recognizing self-determina- purposes, materials, tools (technology), and tion in research, incorporating TK and ways the arts by First Nations people. They are of knowing, and respecting Aboriginal also critical for feeding animals and, in that research ethics. These ethical guidelines and, sense, are critical to maintaining the circle of in particular, issues of ownership and life. Human beings are not isolated, and the control of data have potential implications existence of humans, animals, and plants is for Aboriginal peoples in Canada in relation not mutually exclusive. Without all the to research related to genetic resources and natural elements of the world, humans provisions of related ABS agreements. would be nothing; there is a symbiotic relationship among all things on earth. To Key messages provided by the presenter were illustrate the importance of plants to her that research and knowledge must reach the ancestors, the presenter gave the example of right people, in the right language, and in the the rose bush and the spiritual significance it right ways, and that research must be had to her community. respectful and support the capacity of each party to work together as equals. The The presenter concluded by saying that some Ajunnginiq Centre plays a role in knowledge of the issues being discussed at the workshop translation by trying to convey complex were difficult to understand, and that made it information in a way that has meaning to hard for her to determine the purposes, people in Aboriginal communities, and ensure benefits, non-benefits, successes, and failures the fair and meaningful participation of of what was being discussed. The discussion Aboriginal peoples in the elaboration of should not be only about medicine, but also research projects and sound policies. The about survival. There is a need to ensure that implementation of the following First Nations understand this better. People recommendations would help lead to should see that this debate is about money, this latter goal: and not be too naïve about it.

• Full implementation of land-claim The third presentation addressed the issue agreements of university research on traditional

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      medicine and its implications for Aboriginal mutually beneficial to all parties, as both communities. The presenter’s appreciation researchers and Aboriginal communities for non-academic types of scientific would contribute to and learn from the knowledge and her work with Aboriginal research being done. communities have led to her involvement in projects that address some of the As indicated in existing literature, the basis for ethical and legal issues surrounding such undertaking equitable research with Aboriginal research—including non-legal mechanisms communities rests on key principles, including for protecting biodiversity and cultural prior informed consent, ongoing consultation, knowledge, and the development of models adherence to best practices, compliance with for collaborative research between codes of ethics, compliance with community universities and communities. protocols, and the fair and equitable sharing of benefits. The elaboration of codes of ethics is As illustrated in a diagram used in her key to ensuring that the research community presentation, the presenter explained that, recognizes and respects these principles. depending on the philosophical and Guidelines and codes of ethics exist at the methodological approach of the different international, national, regional, and researchers and their diverse areas of research, community levels—thereby increasing the respect for codes of ethics and recognition recognition of Aboriginal laws and of the qualitative aspects of research vary institutions, and fostering respect for considerably. One could say that research Aboriginal culture. involving traditional medicines involves both research ethics and intellectual-property rights In Canada, the Tri-Council Policy Statement issues, but many researchers do not have on research involving humans sets the adequate training in both areas. minimum standard for all university human- research ethics policies. It includes general The existing linear, extractive flow of principles (such as the respect for human conventional academic research—starting dignity, respect for free and informed from the situated knowledge and natural consent, respect for privacy and resources in a given territory and resulting in confidentiality, balancing of harms and patents and publication of research results at benefits), but is often criticized as being a university institution—is disempowering oriented towards the protection of individual for Aboriginal communities. A circular, rights. Section six (under revision) of the iterative cycle of research based on Statement focuses on additional participatory approaches that integrates local requirements for research involving consent processes, local involvement and Aboriginal peoples, and includes: shared decision-making, reciprocal exchange of knowledge and resources, local training • consideration of past harms to and educational opportunities, data-sharing individuals and communities incurred by in locally useful forms, identification of expropriation of cultural properties and further collaborative opportunities, and human remains ongoing consent and communication was • respect for the culture, traditions, and proposed as an alternative. This approach knowledge of Aboriginal groups would lead to the continuous involvement • consideration of the interests of the of Aboriginal communities and would be Aboriginal group when property or

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing     

private information belonging to the The fourth presenter was an elder of the group is studied or used Tlingit people, who have been in the Yukon • conceptualization and conduct of for over 500 years. She has many good research as a partnership with the stories about their life in the Yukon, but Aboriginal group they are not in books, and are only told • adjustment of research to address the orally. There are boundaries between needs and concerns of the Aboriginal Aboriginal lands, and she was told never peoples involved to push her culture on other people. Her • opportunity for the community to react culture is truly with the natural world, and respond to research findings and and she believes in reincarnation and in publications breathing-in the spirit of someone who has been on this earth before.

The presenter also discussed the issue of The Tlingit people have traditional names and intellectual property rights (IPRs) and the their own language and cultural way. The ownership policies of universities in British- inland Tlingit are divided into various clans: Columbia. While universities set their own the eagle, the beaver, the frog, the wolf, and institutional policies for the ownership of the crow. Each clan operates differently, as do IPRs (i.e., inventor-owned or institution- their justice systems and laws. Each member owned), many questions remain unanswered of the clan takes part in the life of the clan, but with regard to the intellectual property clan leaders have changed over the past of research results involving TK. Who 20 years. They now take over the clan they owns the results; the researcher or the represent, although this is not part of the community? Who is considered the valid presenter’s culture or the way clans used to inventor? Does the intellectual value of the work. In the early days, before the arrival of cultural knowledge being disclosed exceed the white man, it was “an eye for an eye, a that of the research or transcription process, tooth for a tooth”. The justice system ensured or vice versa? that laws were acted upon. There are beautiful stories about justice and how it was acted In conclusion, the presenter reiterated the upon seriously. importance of developing collaborative frameworks for research involving cultural The presenter also talked about the knowledge and biological resources that relationship of her people with the animals. reflect agreement on the basic principles Animals came into people’s lives to warn for equitable research. Equity in research them discreetly. The Tlingit people are very requires changes in the mindsets of respectful toward animals and plants. They individual researchers and in the research, hunt for food and take care of the animals IPRs, and ethics policies of institutions. that come to them. The Tlingit people are There is a need to develop a national code of also thankful for the water and trees. They conduct for ABS to inform individuals and cut trees cautiously, never make clearings, institutions, and to create significant and never destroy the land. The traditional incentive for compliance by embedding way they raise their families would be a ethical standards in research-funding benefit to all. requirements. It may be useful, in developing this code, to look at the The presenter said that she must be careful existing human-research ethics model. of what she says, because she speaks for the

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      eagle-clan people. It is only her and another A period of comments followed this man who know the Tlingit culture and ways, presentation. The first participant spoke because all the other elders have passed on about the importance of hearing the words and taken their knowledge with them. In her of the elders, who are still the backbone of culture, when there are meetings, everyone the First Nations. The participant recalled has to know the issue. About five years ago, her years in a residential school and, the government was frantic about babies although she is slowly regaining what she with Fetal Alcohol Syndrome, and never lost so many years ago, she still remembers understood the causes of the problem or the feeling of being taken away from her how to stop it. In her culture, when a land, family, and parents’ teachings for such woman is pregnant, it is a wonderful thing; a long time. Elders in the Yukon are role there is a little spirit within her. When girls models for First Nations; they push First or boys become adults, it is the most Nations to struggle for their rights and important time in their lives. Yelling at protect their culture. Yet, despite these children and teens is not a good thing, and is efforts, things are still being stolen from not respectful in her culture. them. She thanked the elder for the knowledge she shared at the workshop. She also talked about the relationship of her people with the plants. Taking herbs from Gary Harrison also commented on another the land is sacred, and only a few people can workshop that was taking place in the take these medicines. If someone cannot Yukon that addresses the issue of salmon- find the plant he or she is looking for, it harvesting and genetics, and suggested that means that the plant does not want to come the two conferences be held together in the to them, and someone else will find it. Only future, as they both touch on important special people can collect plants. Collecting issues involving Aboriginal people. plants irrespective of their properties will not lead to any good results. Medicine is only effective when done properly and with Current Approaches and Mechanisms in respect to its intrinsic spiritual value. This is the North: Overlap with ABS the Tlingit way. Presentations:

Aboriginal Customary Law: Reconciling the Savage with First Nations people are different across the the Civilized – Merle Alexander (Boughton Yukon territory. The Tlingit, Tuchone, Peterson Yang Anderson Law Corporation) Kaska, and others deserve equity. First Nations people own the land in the Yukon, Joining Forces Against a Common Enemy: Bridging but are not given equity. Past experiences Traditional Knowledge and Modern Medicine by have taken a lot from them: First Nations Developing Ethical Phytomedicines Against Diabetes – people have lost their language over the Pierre Haddad (Université de Montréal) years, have suffered in the school system, and been forced to do what they were told The first presentation’s underlying theme by white people. First Nations not only want was that “a justifiable account of the credit for who they are, but also want similarities and differences between benefits. She truly hopes that we can all get Aboriginal and common law legal systems somewhere, but she is she worried about her pays equal attention to the cultural aspects people. She only wants the truth; no more of each form of law”. Currently, neither no less. Canadian common law nor international

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      treaties truly recognize Aboriginal customary law unless there is “clear and plain” law on an equal footing with other sources intention of the sovereign power by an act of law. of Parliament or legislature.

Similarities between Aboriginal and non– The pre-existing and contemporary status of Aboriginal legal interpretation need further Aboriginal law was made very plain by the assessment and integration. More effort Supreme Court of Canada in Mitchell v. must be devoted to understanding how M.N.R. In declaring the source of these two legal paths run in parallel, in the Aboriginal rights, Chief Justice McLachlin same direction, and intersect. The challenge wrote that “English law…accepted that the is to create a true validation and affirmation Aboriginal peoples possessed pre-existing process by learning to incorporate both laws and interests, and recognized their Aboriginal and non-Aboriginal perspectives continuation…”. As such, she held, into a mutual understanding. “[A]boriginal interests and customary laws were presumed to survive the assertion of The presenter first discussed the domestic sovereignty, and were absorbed into the basis for a reconciliation of the common-law common law as rights”. Canadian courts system and customary law. Aboriginal have also explicitly recognized the customary law, like other sources of law, is substantive role that Aboriginal customary dynamic in nature. Customary law has an law plays in developing the Aboriginal inextricable communal nature; the social perspective of an Aboriginal right in issue. structures that recreate, exercise, and transmit this law through generations, and the The Van der Peet and Delgamuukw case law protocols that govern these processes, are forms a significant legal basis that any deeply rooted in the traditional territories of regime that seeks to protect, preserve, and our peoples and, understanddably, are maintain Aboriginal knowledge must inalienable from the land and environment necessarily place equal emphasis on both itself. Aboriginal peoples frequently access Aboriginal and non-Aboriginal sources of their historic experiences and cultural epics law. Aboriginal groups can therefore argue in order to formulate and apply their own that their Aboriginal customary law must be law. These often contain multiple meanings, an integral and equal component in any and their deceptive simplicity hides a national or international regime that seeks to sophisticated structure and substance. address Aboriginal knowledge. Like any source of law, reflection and interpretation is seldom evident upon first Turning to international arenas, the hearing or reading. presenter explained how the international community is looking at the consistency Aboriginal peoples had rights of self- between “Western” and customary law. government and self-regulation at the time International endeavors to protect of sovereignty. Those rights rested on the Aboriginal knowledge (AK) as a distinct, customs, traditions, and practices of these sui generis, form confronts a deep paradox: peoples to the extent that they formed an giving a broader global meaning and effect integral part of their distinctive cultures. to norms and knowledge systems that are Courts have also held that Aboriginal intrinsically local in character and that rely customary law is neither abrogated nor on the original community context for their derogated by provincial, territorial, or federal full significance, without eliminating the

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      essential qualities of Aboriginals. According respect to their knowledge that empowers to the presenter, this may require a them with the authority and jurisdiction to heterogeneous framework of mutual control, manage, and own that knowledge. recognition that does not confine AK to a This opportunity should lead to the single category, but recognizes that diverse development of a sui generis approach to knowledge traditions, integrated with protecting Aboriginal knowledge. He customary law, warrant recognition under a proposes that such an approach recognize, general set of core principles. affirm, and enable Aboriginal customary law in the architecture of instruments, Under the Convention on Biological mechanisms, and measures to protect, Diversity, customary law will play an preserve, and maintain Aboriginal important role in the context of the work of knowledge. Establishing mechanisms that the Working Group on Access and Benefit- empower Aboriginal peoples to exercise Sharing (WGABS) and the Working Group customary rights within their national on Article 8 (j). The latter group has a context include such examples as: working draft of potential components of a sui generis system for the protection of • pilot-project negotiations with specific Aboriginal knowledge that includes: Aboriginal groups to facilitate the creation of Aboriginal laws on AK protection (e.g., 4. Recognition of elements of customary law self–governing First Nation with cultural relevant to the conservation and sustainable use heritage law-making jurisdiction) of biological diversity with respect to: • regionally based pilot projects (i) customary rights in Aboriginal/ traditional/local knowledge; (ii) customary • national strategic planning sessions with rights regarding biological resources; and national Aboriginal organizations and (iii) customary procedures governing access to other innovative Aboriginal groups with and consent to use traditional knowledge, expertise in AK protection biological and genetic resources. • national and/or regional Aboriginal think-tanks The WGABS received the mandate to • legislative review and reform commence negotiations of an international • a national AK policy regime on ABS. This mandate includes: • national and/or regional sui generis

legislation (xv) Recognition and protection of the rights of

Aboriginal and local communities over their traditional knowledge associated to genetic Moreover, there is a need to proceed toward resources subject to the national legislation of the the development of harmonized minimum countries where these communities are located; standards, guiding principles, and overarching (xvi) Customary law and traditional cultural normative statements that may constitute an practices of Aboriginal and local communities; international norm-setting instrument; the creation of international reciprocity measures Despite what is being done on the that make Aboriginal customary law applicable international scene, there is a need for in foreign jurisdictions; and the advancement Aboriginal people to decide what future of a sui generis legally binding instrument or direction they want to give to this issue. instruments, as necessary, with substantive According to the presenter, Aboriginal Aboriginal customary-law-enabling peoples have Aboriginal customary law with components.

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In conclusion, the greatest challenge posed by Whapmaghoosti, Québec, they held AK is that it forces us to examine the roots of preliminary meetings with elders and healers, other sources of law on equal footing, and to and conducted individual interviews with admit the limits of the current system. Perhaps 65 people (with prior informed consent). the most difficult aspect of and greatest source The interviews were conducted at home, of reluctance surrounding a sui generis approach with an interpreter, and helped identify is that it is negative evidence that the current several plants used to treat each symptom. system was unable to protect Aboriginal Plants were ranked according to the number knowledge. In order to move forward of times they were mentioned, the number progressively, we must admit that the system of symptoms they affected, and the is not working, and address our constitutional relationship of these symptoms to diabetes. partners as equals. Based on this estimated anti-diabetic potential, The second presenter shared some promising plants were put through a bioassay- reflections about his research work on guided fractionation developed by the diabetes with an Aboriginal community, and phytochemist and pharmacologist to identify how ABS mechanisms can be put in place as the active components of the plants. This will a means to recognize and respect Aboriginal help to standardize plant preparation for values while contributing to social welfare. eventual use in Cree populations. Through various testing phases, the pharmacologist was Diabetes is a global health problem that able to confirm the anti-diabetic activity of particularly affects First Nations, and is a selected plants, and to begin understanding consequence of a changing lifestyle. Its their mode of action (i.e., what proteins, prevalence among the Cree people is three organs, and tissues they affect). to five times higher than among the non- native Canadian population. The use of The nutrition phase of the project helped plants and exploration of Cree traditional the scientists better understand community medicine is one approach to helping treat traditions regarding the consumption of diabetes that is sought and encouraged by traditional foods and plants in relation to the Cree Board of Health and Social Services diabetes. This phase was carried out to of James Bay. confirm that the community commonly used the plants recommended by elders and The research project aims to explore plants healers and that showed promising anti- that are traditionally used by the Cree to diabetic potential. The project also aimed target symptoms related to diabetes, the to determine the most respectful and main goal being to identify anti-diabetic convenient way to re-introduce the species that could be used by the standardized plant preparations. community. It is structured around a collaborative multidisciplinary approach In the second part of his presentation, the that integrates elements of Cree TK, presenter emphasized the need to follow ethnobotany, phytochemistry, ethical and culturally acceptable principles in pharmacology, and nutritional sciences. the realization of this type of research project. In the case of this project, the main Ethnobotanists participating in the goal was to improve human health; it was project used a list of 15 symptoms not a profit-driven project and no associated with the disease. In Mistissini and pharmaceutical companies were involved.

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The project was respectful of the plants and Aboriginal Governance and ABS: the their habitat, and of Cree culture and Relationship between ABS and Land- knowledge (ABS and intellectual property). Claim Agreements—Perspectives from A confidentiality agreement was signed by all Aboriginal Representatives members of team, including the Cree participants. Presentations: Inuit Land-Claim Agreements as a Guide to Benefit- From beginning to end, the researchers Sharing Arrangements – Violet Ford (Inuit involved in the project were fully transparent Circumpolar Conference) with the Cree communities, and reached a Aboriginal Governance and ABS: A Case Study on common understanding of some key Protecting Traditional Knowledge – principles, such as benefit-sharing mechanisms Brian MacDonald (barrister and solicitor) and intellectual property concerns (e.g., Cree representatives will review all pertinent The first presenter addressed the interface documents prior to publication). The between ABS and Inuit land-claim intellectual property is shared between the agreements. As an introduction, she parties, as the Cree contributed their TK, and explained how the Arctic is virtually untested the academic researchers provided scientific as a source of potential therapeutics, and knowledge of the mode of action and active remains unexplored by scientists interested principles of the plants. in the medical potential of Arctic plants and micro-organisms. A large proportion of The success of the project relied on the Arctic plant species that have medicinal mutual sharing of ideas and knowledge and properties are already known by Arctic on the collaborative and equal participation peoples. The presenter also raised concerns of all parties. This was achieved, in part, about the fact that research grants often through the establishment of a steering come from large companies, thereby committee composed of representatives influencing the way some researchers are from the Cree nation and the research team. encouraged to conduct their research. Increased knowledge of all the participants is one of the benefits of this collaborative Plants of the tundra live in extreme effort. The potential commercialization of conditions characterized by nutrient-poor the anti-diabetes plant preparations, or soils containing high levels of metals, and a components thereof, will only proceed with short growing season with up to 70 days of Cree consent and implication. For the Cree total darkness. The latter forces them to nation, this project increased the legitimacy convert light into energy under the snow, and understanding of Cree traditional and to produce sun-blocking agents in the medicine. It also improved diabetes summer. Because they grow in such management, provided employment for particular conditions, Arctic plants and community members, and developed microbes utilize unique metabolic pathways educational materials (herbarium specimens). that yield new and unusual compounds. This project also benefited Canadian society These compounds may lead to new drugs in general, as it led to a better understanding and industrial chemicals. However, the full of the anti-diabetic potential of Cree commercial potential of Arctic genetic traditional pharmacopoeia and the resources has not been realized, and the adaptation of diabetes care and education collection of specimens and academic in a culturally-sensitive manner. research continues.

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One question that remains to be answered is Inuit land-claim agreements include sections whether Inuit land-claim agreements can on IBAs; more precisely, Article 26 of the adequately respond to these issues. Nunavut Land Claims Agreement states that Aboriginal rights under Inuit land claims major development projects require a are constitutionally protected, and these finalized Inuit IBA. IBAs would apply to agreements are recognized as modern-day major Crown-Corporation or private-sector treaties. What does this mean in relation to projects involving more than 200 person- establishing ABS arrangements? years of employment during a five year period or $35 million in capital costs. The goals and objectives of the Inuit land-claim agreements are to ensure the cultural well-being The Northwest Territories Scientists Act and self-reliance of Inuit people, and their (RSNWT 1988, c.S-4) can also be viewed as control and management of resources. a legislated access regime to Aboriginal Interpreted broadly, these objectives would knowledge and resources. The Act does not include the protection of TK. The Inuit land- involve any benefit-sharing obligations, but claim agreements provide for Inuit to be training and capacity-building is encouraged involved in the negotiations of inter- by the Aurora Institute and the Nunavut jurisdictional matters that go beyond those of a Research Institute. The Act requires the non-government organization. These land-claim prior informed consent of communities agreements create expectations around before research is undertaken, promotes consultation by government on matters such as communication between researchers and Inuit participation as rights holders in the territorial residents, promotes the recognition negotiations of international regimes and of TK, supports research that contributes to treaties that will affect their rights and the goals the social, cultural, and economic well-being and objectives of the land-claim agreements of residents, and requires research results to be reported back to the community in plain Nunavut has established a series of language in Inuktitut and English. co-management regimes related to wildlife, land, and water, and environmental impact The presenter described a case to illustrate assessments that recognize the importance of the interface between ABS and genetic Inuit TK. The Inuvialuit Final Agreement resources found in the Arctic. The case is and the James Bay and Northern Québec about the Whitehorse-based aquaculture Agreement both include co-management company Icy Waters, which farms specially arrangements, and have led to the establishment bred Arctic char under the trademark brand of new wildlife- and resource-management Yukon Gold. In 1997-98, Icy Waters boards. These boards recognize and promote financed a research project at the University the use of Inuit TK. In this sense, it is possible of Guelph to study low-temperature fish- to interpret the agreements as containing farming. The university needed wild Arctic potential ABS mechanisms. char in order to broaden the genetic diversity of Icy Waters’ commercial fish The management of R&D activities in stocks, and to develop cold-tolerant, high- Canada’s Arctic is commonly done through growth char. Icy Waters approached the impact and benefit agreements. The Nunavut Wildlife Management Board Inuvialuit Final Agreement requires (NWMB) about partnerships with Inuit participation agreements when surface hunter and trapper organizations. The use is more than casual or temporary. company wanted Inuit partners to provide

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing      wild-fish stocks for use in breeding superior Risk Act), assist with the application of strains of char. The NWMB turned down existing legal rights, and help First Nations the research application based on the provide input into the development of negative implications of the research on international mechanisms. Aboriginal TK and belief systems. At the basis of the policy framework are a set As a conclusion, the presenter raised a few of key concepts that range from recognizing challenges that need to be addressed when the need for communication and education in developing ABS mechanisms, and reiterated the area of TK and the need to establish that the aims and objectives of the processes that incorporate due diligence to Convention on Biological Diversity can only ensuring informed decision-making. be fully achieved if the rights of Aboriginal peoples are respected and adhered to in its The policy lays out some general principles implementation. with regard to TK, provides some definitions and general provisions, and The second presenter described his work in addresses some more specific TK-related the development of a TK framework policy concepts, such as prior informed consent, for the Yukon. The number of requests for government TK holdings, access, and the accessing TK is constantly increasing, and protection of intellectual property rights. TK is increasingly incorporated within Other elements are also part of the policy, mainstream applications. While the protection and illustrate the complexity of the issue. and regulation of TK lies within the self- government responsibilities, there are The presenter also stressed the importance currently limited mechanisms to protect TK. of the policy framework being consistent with the elements described in article 27 of The idea of developing a policy framework the Bonn Guidelines in relation to the for the protection of TK was initiated by the appropriate measures that should be taken Yukon First Nations Heritage Group. The by States in establishing an effective system project was developed by two consultants for prior informed consent. and, although it is primarily being pursued by seven self-governing First Nations, will be There are still a few steps to go through made available to all Yukon First Nations. before the completion of the policy framework, including approval and input by The primary focus of the policy is to Yukon First Nations governments, recognize the distinctiveness of each of the consultations with communities and third First Nations that will be using the policy. It parties, the development of a legislative recognizes various levels of sensitivity of framework, and the establishment of information, and serves as a tool to assess protocols, contracts, and agreements. There the needs of the communities, citizens, and is still a tremendous amount of work to be First Nations governments. This framework done in order to ensure that communities will create the foundation for further understand the purpose of this policy, and legislative and policy development for the why it is important that they get involved in Yukon First Nations. Secondly, this policy its development and implementation. framework will respond to external legislative needs (e.g., Yukon Environmental and Socio-Economic Assessment Act, Species at

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing

V. Conclusions and Highlights     

The Northern Workshop was an recognized the links between genetic opportunity for government officials, resources and TK; however, many felt experts on ABS-related questions, that more information was needed Aboriginal participants, and northerners to before meaningful decisions can be increase their knowledge on a range of made on the sustainable use of genetic challenging and thought-provoking issues resources in the North that have potential environmental, social, cultural, economic, and health ramifications. • The involvement of Aboriginal groups in the elaboration of ABS policies is Addressing issues such as ABS in the North essential, and respect for their rights needs to be done by bearing in mind the must be ensured unique specificities of this region and its importance to Canada’s social and • Aboriginal people are not opposed to environmental diversity. sharing their TK, however, they want certain principles respected throughout This workshop was a first step in the effort the process and the relevant Aboriginal to understand the concerns of all citizens group/community/individual or living in the North, while trying to identify government to retain the right to grant ways of making ABS a useful and sound tool or withhold consent prior to access. The for social, economic, and sustainable establishment of an efficient, development in northern Canada. The community-level, prior-informed- spectrum of issues raised at the workshop consent system would help meet these helped federal, provincial, and territorial wishes government officials, Aboriginal participants, and other stakeholders • Innovative mechanisms for the exchange views and generate innovative protection of TK are already taking place thinking around ABS and its implications for at the local level, and northern the North. communities could build on these experiences Below are some key observations that have emerged from the discussions held at the • Specific environmental considerations in workshop. They appear in no particular the North (e.g., the slow growth-rate of order here, and do not represent an plants) make sound harvesting practices exhaustive list. They do, however, provide a crucial. In the context of ABS, existing starting point for future thinking about how management structures, such as those ABS relates specifically to the North: established under land-claim and self- government agreements, could be • Workshop participants expressed considered examples of the sound and interest in ABS as a concept, and socially-acceptable use of genetic

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resources and the intergenerational Next Steps survival of species and traditional practices The Northern Workshop was an opportunity to make connections with • Existing research-permitting systems in northerners and to inform them of the the North already control access and opportunities and challenges posed by ABS, help maintain surveillance of what is particularly in the northern context. being researched, by whom, and where. They also foster local involvement in The development of ABS policies in Canada research projects, and ensure that these is at a very early stage. A common approach, are respectful of local social and inclusive of provincial and territorial, environmental realities. It is likely that Aboriginal, academic, and private they would apply in the context of perspectives, is key to helping legislators genetic resources research, and could better identify the environmental, social, and contribute directly to meeting ABS economic interests of Canadians and find objectives the best solutions to promote and protect them. • Aboriginal elders and scientists have knowledge about the uses of plants Future awareness-raising activities—such as found in the North, yet their relationship workshops on forests, agriculture, marine, to these resources is different. environment, and intellectual property— Collaboration between elders and discussions among groups and governments, scientists can, therefore, be beneficial to and meeting opportunities will help foster all because of the specific knowledge Canada’s understanding of ABS and move such cooperation would generate about the policy process ahead, in the right conservation management and direction. sustainable use

• There is interest from biotech researchers in the extreme environments of the North because of the unique organisms these environments contain. ABS provides opportunities to encourage research and ensure that research findings and, possibly, revenues are shared with those living in the North. How great these opportunities are remains to be explored

Northern Workshop on Access to Genetic Resources and Associated Traditional Knowledge and Benefit-Sharing