Fulfilling a planetary health agenda at COP15 requires addressing outstanding gaps in the Nagoya Protocol

By: Hannah Marcus

Beginning December 7, 2022, Canada will be hosting the largest biodiversity conference in the world, with much at stake for advancing the global agenda on planetary health. Thousands of people will converge in Montreal for the Fifteenth meeting of the Conference of the Parties to the Convention on Biological Diversity, offering an urgently needed chance for world leaders to agree on a path forward to save nature — and humanity at large. This comes amidst an evermounting climate change crisis, threats of large-scale species extinction and biodiversity loss, and ongoing degradation of Earth’s ecosystems — the very pillars of human survival and well-being.

Among many agenda items scheduled for a packed week and a half of discussions is the commitment to developing clearer guidelines to support countries in the implementation of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. The Nagoya Protocol is an international agreement which came into force on October 12, 2014, aimed at sharing the benefits arising from the utilization of ecosystem-derived genetic resources in a fair and equitable way. It has been signed by over 50 countries including the UK and the EU, and applies to not only genetic resources themselves, but also the traditional knowledge concerning their value and productive use for medicinal, nutritional, spiritual healing and other purposes.

While the Nagoya Protocol was initially intended, in part, to respond to the increasingly decried marginalization of Indigenous communities and traditional land stewards from accessing and benefiting from those natural resources with health-promotive properties discovered long ago by their very ancestors, it has largely failed to eliminate the biopiracy it has sought to prevent. The vagueness in the text concerning rules of implementation, means of enforcement, and measures of tracking corporate compliance with pre-agreed standards have created easy loopholes for profit-seeking pharmaceutical companies and other actors to exploit in their quest to maintain their monopolization over the genetic resources and knowledge that biodiversity and long-held Indigenous wisdom provides.

Perhaps some examples are needed to further illustrate this point. Let’s consider the case of the community-based organization Mujeres y Ambiente, led by a group of Indigenous women from Mexico’s La Carbonera community. This organization began when a group of 35 women came together to apply ecological techniques to restore degraded land in central Mexico using traditional knowledge passed down from their ancestors. Overtime, they were able to transform the land into an orchard of medicinal plants, quickly attracting the interest of Provital, a Spanish company which develops extracts and active ingredients for the cosmetics industry.

Through a joint venture, Mujeres y Ambiente agreed to share with Provital knowledge on the properties of more than a dozen medicinal plants. In 2017, an agreement was signed under the Nagoya Protocol whereby the Mexican government issued an Internationally Recognised Certificate of Compliance to Provital in return for supporting Mujeres y Ambiente’s women entrepreneurs to run agricultural micro-enterprises for the cultivation of medicinal products. Yet in a recent interview, Mujeres y Ambiente founder Janet Arteaga expressed concern over the fact that her community has yet to receive profits from sharing the benefits of their genetic resources despite receiving the International Certificate of Compliance. The fact that four years have passed yet this remains the case suggests critical gaps in the implementation mechanisms of the Nagoya Protocol, which was launched to serve as a very counterforce to the long history of pharmaceutical patents on natural products originally discovered by Mexican (and other) Indigenous groups.

Unfortunately, this case does not stand alone. Similar cases have been documented in Kenya, leading secretary James Ligale of the Kakamega Natural Forest Catchment Conservation Organisation to state: “We are now trying to educate the local community not to just share traditional knowledge with researchers without first knowing what the information will be used for and what benefit locals could get from sharing the information.” This statement was made in relation to a still unsettled deal–being considered for implementation under the Nagoya Protocol–between the organization and a French company for the supply of 100 tonnes of Mondia whitei root per year, which has long been used for medicinal and spiritual purposes by the Luhya community of western Kenya, despite recent species decline.

This is not to suggest all agreements made under the Nagoya Protocol have been inherently flawed. Indeed, there are success stories which will likely be featured at COP15, such as the benefit-sharing agreement made between the Namibia Community-Based Natural Resources Management programme and Aldivia, a French oil processing company which set a first-time precedent in agreeing to co-own their patent on natural marula oil. With its enhanced antioxidant properties, this product is extracted from the marula nuts processed and sold by a women-led cooperative in Namibia employing over 2,000 members who grow the trees on their homesteads. Importantly, under the co-ownership agreement, Namibian producers have been guaranteed a preferential opportunity to supply marula kernels for producing the patented oil, and more equitable profit-sharing mechanisms have been stipulated, with close national oversight.

Such cases generate hope for the prospects of fulfilling the core objectives of the Nagoya Protocol in delivering justice to Indigenous groups whose environmental knowledge has long been exploited without due respect for their role in creating such knowledge and sustaining the very ecosystems which harbor Earth’s biodiverse resources. Yet as stated by Maria Yolanda Teran from the University of New Mexico, “The implementation of the Nagoya Protocol needs to be accomplished with the full and effective participation of Indigenous Peoples and local communities in order to ensure the inclusion of our rights and customary laws.” In achieving this, Teran calls for “technical, intercultural working teams in areas concerning access and benefit sharing in order to participate under equal conditions.”

Yet, as evidenced by the above cases, among other documented shortcomings, the terms stipulated in the Nagoya Protocol fail to come far enough to ensure this condition is always fulfilled. Nor do they sufficiently safeguard against corporate manipulations of treaties which continue to create unfavorable terms for the engaged communities. As the fulfillment of the Nagoya Protocol has massive potential to improve public health through enabling continued use of traditional medicines by local communities, ensuring equitable distribution of their industrially manufactured byproducts, and optimizing the livelihood benefits derived from their environmental management and co-production, it is fitting with a planetary health agenda to ensure that outstanding gaps in the agreement are addressed.

Targeted revisions could include strengthened enforcement and oversight mechanisms, predetermined compositions for agreement governing boards which require minimum levels of community/Indigenous member representation, requirements for co-ownership of patents, and better safeguards for ensuring Free Prior and Informed Consent in the use of Indigenous knowledge for research purposes. The potential implications of such amendments are far reaching, from planetary health and social justice perspectives alike.

Eight years after its launch, the time has come to move the Nagoya Protocol from an abstract vision towards its concrete realization. The planetary health community should coalesce with other advocates in ensuring COP15 catalyzes the needed shift for this.

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