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Part III - New Technological Dynamics and Research Ethics

Implications for ABS Governance

Published online by Cambridge University Press:  18 December 2018

Chidi Oguamanam
Affiliation:
University of Ottawa

Summary

This chapter explores whether and how genomic resources can be protected by the communities from, or countries in which they are accessed. Specifically, it asks whether the Nagoya Protocol on Access and Benefit-Sharing can be an effective mechanism to reassure communities about the sharing of gene sequencing data. These questions are of particular importance to Indigenous peoples and local communities, as many have troubling historical experiences with colonization and associated natural resource exploitation. Many Indigenous and local communities (ILCs) live in developing countries, which are particularly sensitive to access and benefit-sharing (ABS) issues. Different but equally serious challenges exist for Indigenous peoples in developed countries like Canada, Australia, New Zealand and elsewhere. Until outcomes of implementation of the Nagoya Protocol are captured, Indigenous peoples and Local Communities (IPLCs) remain in a quandary as to how to protect digitized genetic resources within their territories or under their jurisdiction. To advance our understanding of legal and regulatory options, this chapter integrates normative and positive perspectives on the mechanisms for access and benefit-sharing in the age of digital biology.

Type
Chapter
Information
Genetic Resources, Justice and Reconciliation
Canada and Global Access and Benefit Sharing
, pp. 179 - 266
Publisher: Cambridge University Press
Print publication year: 2018
Creative Commons
Creative Common License - CCCreative Common License - BYCreative Common License - NCCreative Common License - ND
This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC-ND 4.0 https://creativecommons.org/cclicenses/

10 Access and Benefit-Sharing in the Age of Digital Biology

Peter W. B. Phillips , Stuart J. Smyth and Jeremy de Beer
Introduction

It is often said that science is ahead of regulation. This truism is exemplified in the science relating to genomic sequence information, digital biology and the instantaneous global transfer of electronic information. The tsunami of genomic information being generated in research laboratories the world over has the potential to be shared with any other laboratory in real time. The challenge this creates is how to viably ensure that value generated from the sharing of genomic information is identified and ethically allocated.

For decades, normative, legal and political discourse around access and benefit-sharing has been around ‘genetic’ resources. Science, however, has advanced far beyond genetics (the study of heredity) into genomics (the study of genes, their functions, and their interrelationships). While it took a full decade, from 1990 to 2000, to sequence the human genome, today genomes can be sequenced in mere days, if not hours. The cost, both fiscally and in time, to sequence the human genome is staggering. While occupying the time of an estimated 2,000 research scientists for a full decade, the entire project cost in the range of US$1 billion. By comparison, today any individual can have their genome sequenced in less than 24 hours, by one person, for less than US$1,000. With advancements in genomic knowledge growing exponentially from year to year, the task of trying to ensure that some modicum of regulation governs this field is a gargantuan one.

Such scientific advances are particularly challenging for those interested in the nature, value, use, preservation and ownership of a wide range of genetic resources – the inputs to genomics – that are embodied in populations of microbes, plants, animals and humans. These resources can be found in situ in organisms in all climates and cultures on land, in the sea and in the air or ex situ in botanical gardens, gene banks and public and private research collections. Genetic resources are inextricably intertwined with the environment (including human populations as hosts and users) and the knowledge and practices of their custodians. However, genetic resources’ underlying meaning and utility are becoming disembodied from their hosts and severed from their custodians due to the advance of genomic and phenomic methods, the development of computational capacity to simulate design, growth and function, and emerging gene editing and synthetic biological techniques. Each innovation in some way works to disconnect the utility and function of organisms from their base of traditional knowledge and related biological assets.

At the same time, our understanding on Indigenous peoples’ knowledge governance systems is evolving. No longer is Indigenous knowledge governance necessarily seen as ‘traditional.’ Indigenous peoples’ knowledge-based practices are highly innovative; but focused on maintaining sustainable systems rather than creating economic artefacts (Drahos & Frankel, Reference Drahos and Frankel2012). The cross-cultural reconciliation of Indigenous and Western approaches to biological knowledge is, however, a work-in-progress (Oguamanam, Reference Oguamanam and Matthew2015)

So, the science of genomic sequence information has advanced so rapidly that the international agreement that was drafted to govern this issue was out of date by the time it came into force. The Nagoya Protocol negotiations concluded in October 2010 and the instrument came into force four years later. However, advancements have, to a large extent, arguably rendered the Nagoya Protocol essentially an ineffective governance mechanism as it does not deal with the pressing issue of digital technology transfer (but see Oguamanam, Chapter 11). The key question that remains unresolved, and which we explore, is whether digitized data about innovation-related practices that involve genetic resources are ‘knowledge’ about or ‘derivatives’ of those genetic resources.1

In these evolving contexts, the governance task is a complex one that has been generating discussion for at least a decade. Commentaries, contributions and insights have been advanced by individual scholars, groups of scholars, intellectual think tanks, and national governments over this period of time. Each contribution enhances the vast pool of knowledge that will be needed to ensure that access and benefit-sharing (ABS) over genetic resources and their associated traditional knowledge is managed in an economically efficient and ethical manner.

There is a large body of scholarly work on this topic (for example, see Phillips and Onwuekwe, Reference Phillips and Onwuekwe2007; Oguamanam, Reference Oguamanam2010; Oguamanam, Reference Oguamanam2011; Gold and Bubela, Reference Bubela and Gold2012; Koutouki et al., Reference Koutouki and Von Bieberstein2012; de Beer and Dylan, Reference De Beer, Dylan and Rimmer2015). Interestingly, much of the work to date has a strong normative framing, as the scholars involved are both committed to and motivated by a desire to find a more equitable regime for traditional knowledge (TK), in an effort to support the advancement of the rights of Indigenous peoples. While this work is valuable, it does tend to be more aspirational and exhortatory than analytical and descriptive. Similarly, think tanks, international organizations and many countries have grappled with ABS, its application, regulation and governance. This chapter moves beyond the normative to examine how the various governance systems fit with the new reality and offers some strategic options.

Background

There is quite an extensive body of literature that examines the definition of rights for TK and the framing of claims to benefits from those accessing those rights. The root of this debate was the 1983 International Undertaking on Plant Genetic Resources (IUPGR), which strove ‘to ensure that plant genetic resources of present or potential economic and/or social importance, particularly for agriculture, will be explored, preserved, evaluated and made available for plant breeding and other research purposes’ (IUPGR, 1983). Its fundamental assumption was ‘that plant genetic resources are a common heritage of mankind and consequently should be available without restriction’ (ibid). Many developing nations and quite a few scholars were concerned about that blanket appropriation of the TK embodied in seeds (Sullivan, Reference Sullivan2004). In 1996, the United Nations Environmental Program in the context of the Convention on Biological Diversity (CBD) developed a set of guidelines on appropriate roles and structures for ABS. In addition to 8(j) (in situ conservation) of the CBD, a number of other articles offer direction and advice, including: 16 (provisions on access to and transfer of technology), 17 (exchange of information), 18 (technical and scientific cooperation), 19 (the handling and distribution of the benefits of biotechnology) and 20 and 21 (financial resources and mechanisms). These provisions suggest benefits that could involve: monetary compensation in the forms of fees, research support, royalties and salaries; or non-monetary benefits, such as in-kind support for institutions and communities, information, transfer of equipment, software and knowhow, training, joint R&D, capacity building and local employment.

Recently, there has been significant debate and effort invested in negotiating a range of international conventions or treaties to delimit and protect Indigenous rights to genetic resources, involving the International Labour Organization, the UN and InterAmerican Draft Declarations on Rights of Indigenous peoples, the UNDP/UNCTAD and the European, Asian and African Development Banks. In the context of plant genetic resources, in particular, there are a number of special institutions involved in delimiting rights and facilitating ABS. These include the CBD (1992), the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of the Their Utilization (2002), Agenda 21 and the Cartagena Protocol on Biosafety (2000), the IUPGR (1983) and ITPGR (2001), the CGIAR centres and related gene banks and various national programs (e.g. CIDA and SEDA). The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) is a supplementary agreement to the CBD. The Protocol entered into force in 2014. The main task of the Protocol members is to advance the policy and practice of accessing and utilizing genetic resources (GR) and associated traditional knowledge (ATK) in research and development activities. The Protocol created a clearing house mechanism to facilitate the collection and sharing of information on the national implementation of ABS, inducing legislative and other measures, permits, relevant authorities and institutions as well as codes of conduct and best practices.

The challenge facing all the systems is that the explicit link between TK and GR in modern scientific knowledge varies widely. Even without the scientific advancements we are focused on, many ex situ GR have become disconnected from their roots. New bibliometric and biometric tools and methods are helping to reveal some of the roots of some accessions to establish a chain of custody through ethnographic and scientific explorers’ reports. The International Barcoding of Life Project (iBOL), which has barcoded and sequenced more than two million species, has discovered some challenges in the way we think about the environment we live in. Their analysis has determined that (a) taxonomists have mis-assigned about 10% of genetic material as distinct species, (b) we underestimated the number of species by at least a scalar, (c) our understanding of diffusion of species is too narrow and (d) the food chain for many species is far more complex and subtle than the macro-diets suggest. Ultimately, the concordance between species, source and utility is breaking down, which poses hitherto unknown and unforeseen challenges.

The recent revolutions in digital and omics spheres are further disconnecting utility from provenance. As we move further from genetics to genomics, automated phenotyping and digital plants, animals and microbes, we are less reliant on the underlying genetic material to undertake discovery research. This is combined with new breeding tools that supplement traditional plant breeding with transgenic modification and now gene editing (e.g. CRISPR/Cas9) that reduce the need for access to genetic materials (Oguamanam & Jain, 2017). The end game for some is synthetic biology, where the genetic design is built directly from the component nucleic acids with no use of pre-existing organisms.

ABS Mechanisms in Use

Even while new genetic engineering techniques that can potentially improve the precision of DNA transformations are being developed, countries continue facing challenges implementing the legal instruments intended to manage the ownership, control and exploitation of new innovations. Even when countries have signed, ratified and elaborated a host of legal instruments (domestic, regional, international or some combination) intended to define TK and facilitate ABS, a series of barriers persist.

Crookshanks and Phillips (2012) undertook a comparative analysis of the ABS/TK landscape, offering a typology that differentiated systems based on whether they align more with the narrow commercial goals of the TRIPS agreement of the WTO or the broader socio-economic-ethical objectives of the CBD. Similarly, different countries would pursue their goals either through legal and regulatory mechanisms or via a broader range of institutions and partnerships. When this typology was applied to a range of biodiverse countries, the authors observed that many Latin American countries tended to use legal and regulatory mechanism first to pursue commercial benefits and then other non-pecuniary benefits while African and Asian nations have a more diverse set of goals and approaches.

Peru (a megadiverse country) serves as a useful illustrative example. In an effort to safeguard its biological diversity, Peru has signed and ratified the Nagoya Protocol. Peru’s ABS regime is detailed in two laws and four decrees (UEBT, 2016). The two main legal instruments detailing Peruvian ABS requirements and procedures are the Rules on Access to GR and Law No 27811. Article 7 of the Rules on Access to GR, indicates that the Peruvian state prioritizes the transfer and implementation of technologies that employ the country’s GR. While Article 20 states that – when appropriate – a contract enabling access to GR, must contain, inter alia, provisions that contemplate the just and equitable distribution of benefits. Article 27 of Law No 27811, indicates the minimum clauses a contract to access GR is to contain. According to clause (c), in case TK is employed, compensation will be an initial monetary or equivalent payment, and no less than five per cent of gross sales resulting from the commercialization of goods developed either directly or indirectly from having employed TK.

According to the Union for Ethical Bio Trade (UEBT), Peru has granted over 80 authorizations to access GR. From these authorizations, benefits have been limited, and for the most part have focused on the sharing of research results and developing national capacities (non-pecuniary benefits). However, the country has not been able to overcome: (1) a weak legal and institutional framework to manage ABS in congruence with the Protocol; (2) lack of knowledge of relevant stakeholders on the access and utilization of genetic resources and ‘Fair Benefit-Sharing;’ (3) and limited experience in applying ABS mechanisms to access and management of genetic resources associated with TK (GEF, 2017). In an effort to address these barriers, relevant Peruvian authorities in conjunction with the Global Environment Facility (GEF) have resubmitted a project aimed at strengthening local capacity in harmonizing domestic legal instruments with the Nagoya Protocol.

ABS systems vary widely. Canada, for example, is party to the CBD but not the Nagoya Protocol. Canada does not possess a comprehensive framework that governs GR associated with Indigenous TK, but does have a robust set of IP laws. According to Aboriginal participants in the Canada-wide Focus Group on ABS organized by ABS Canada (ABS Canada Focus Group Report, Moncton, 2015; Ottawa, 2016; Saskatoon, 2017), the very idea of discussing plants and animals as ‘resources’ is not compatible with Aboriginal views, and any legal system or policy that starts with this premise will generate confusion and resistance. Any action in this direction is likely to be rejected by the communities those policies are meant to protect (ABS Canada, 2017). Thus, the very discourse used when discussing TK and ABS can be a barrier to implementation. ABS Canada undertook a series of focus groups and symposiums aimed at educating, training, and network-building on ABS with Indigenous peoples and other stakeholders as parties whose interests are critically engaged in ABS. The meetings have yielded mixed results, but a consistent feature has been the resurgence of historical tensions between Indigenous peoples and Canada’s colonial administration. Phillips et al. (2012) surveyed Canadian First Nations about their practices for handling TK and ABS and discovered that few had structured and fully functioning systems.

Realities in each country will vary widely depending on the realities of specific Indigenous peoples or local communities and their cultures. While some countries may have an ABS system in place, this alone does not guarantee compliance or that benefits will manifest themselves. Other countries are in the process of developing ABS systems, but maintaining sustained interest in such a complex and at times seemingly abstract issue, might prove difficult. The digitization of genetic information, which is often associated with traditional knowledge, is likely to complicate, if not overwhelm, the already lagging institutions in charge of managing ABS and TK.

New Ethical and/or Moral Issues Created

Most of the work to date on ABS and TK has a strong normative framing, as the scholars involved are both committed to and motivated by a desire to find a more equitable regime for TK, in an effort to support the advancement of the rights of Indigenous peoples. Dutfield (Reference Dutfield, Twarog and Kapoor2004) offers the clearest and most succinct set of reasons to protect TK and organize ABS:

  • to fulfil moral obligations towards Indigenous and local communities;

  • to comply with legal requirements embodied in international treaties and emerging norms (e.g. the CBD) and

  • for more utilitarian goals such as local, national and global economic and welfare benefits and for improved sustainable management of biodiversity and conservation.

Each of these reasons is based on an underlying moral principle: intrinsic value based in moral absolutism; procedural compliance based in legal positivism and economic liberty based in the theory of utility.

It is important to note up front that while this work is necessary and extremely valuable, it does tend to be more aspirational and exhortatory than analytical and operational. This poses a significant challenge to those tasked with managing and adjudicating systems related to ABS over genetic resources and associated TK, as the prescriptive perspective has not offered much in the way of confirmed and validated models, methods and metrics that can be relied upon to deal with claims and disputes about TK and related ABS. With the digitization of biology, this gap between aspirations and actions may prove to inhibit partnerships and further isolate Indigenous peoples from the bioscience enterprise.

Moral Obligations and Definitions

Many of those engaged in the study and governance of TK accept that there is an intrinsic value in Indigenous community structures and their embodied TK. This is an absolute moral bedrock of the field and not open to external verification. Nevertheless, it is hard to translate that into action because the causal story (Stone, Reference Stone1989) is fuzzy. The policy issues around TK remain loosely framed, as there is no universally accepted definition that offers hard boundaries for what it is and how one might work with it. Phillips and Onwuekwe (Reference Phillips and Onwuekwe2007) note that neither the CBD, the source of the international agenda related to TK and ABS, nor the Rio Declaration or Agenda 21 define the term, even though they use it in various forms. Article 8(j) of the CBD goes the furthest, identifying a range of definitions, rights and obligations related to ‘traditional knowledge, innovations and practices.’ Article 8(j) asserts that the parties concur that this involves ‘knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity’ (CBD, 1992: 8). As with any definition, the devil is in the details. The provision, in and of itself, does not define ‘indigenous and local communities,’ ‘traditional lifestyles’ or ‘conservation and sustainable use.’

Dutfield (Reference Dutfield2001) contends that TK exists notwithstanding its definitional dilemma. He adopts Martha Johnson’s definition of traditional ecological knowledge, as a starting point: ‘[a] body of knowledge built by a group of people through generations living in close contact with nature. It includes a system of classification, a set of empirical observations about the local environment, and a system of self-management that governs resource use.’ Having said that, TK remains problematic as it exhibits an array of dichotomies: it can be both explicit and implicit; it can be local or global; and it can, as a proprietary matter, be individual or collective (Jensen et al., Reference Jensen, Johnson and Lorenz2007). This array of attributes means the functional space encompassed by the term is wide and variable, and is ultimately highly fluid as new technologies work to disembody knowledge claims from specific organisms found in or gathered from specific regions and peoples even as they render more sophisticated uses to which such organisms and their derivatives are applied.

Arguably, a literal reading of the Nagoya Protocol makes it hard to suggest that digitized biological data is a ‘derivative’ (expressly defined by Article 2(e) as ‘a naturally occurring biochemical compound’).2 A better argument might be that the lines between knowledge, information, and data are blurry or non-existent in the worldview of many Indigenous peoples. Of course, the implications of each argument may not be the same.

Legal and Institutional Approaches

Much of the legal scholarship and most of the international negotiations, while grounded on the notion of an intrinsic moral value vested in Indigenous peoples and their unique TK related to plants, animals and microbes, smacks of legal positivism. Procedural norms and practices, irrespective of the intrinsic moral value, are proposed as the right and just way to proceed. For the most part, this style of scholarship has generated a range of valid and informative arguments in favour of extending and affirming collective rights to TK and options for managing an ABS regime. While much of this is focused on the formal intellectual property rights (IPRs) system – embodied in national patent and plant breeders’ laws and in international treaties such as the WIPO and the TRIPS Agreement of the WTO – a complementary approach has been to examine the institutions and mechanisms that give effect to policies that relate to TK and ABS (e.g. CGIAR material transfers agreement system).

Against this institutional backdrop, scholars have attempted to refine how TK might be managed internationally and what rights, if any, claims of TK might have on benefit-sharing. At one extreme, Craig (Reference Craig, Phillips and Onwuekwe2007) examines the international law and policy relating to human rights to determine if it could provide the basis for a sui generis system for protecting the knowledge of Indigenous people (Hodges & Langford, Chapter 2). She asserts that it is becoming increasingly clear that this type of system accords closely with a growing body of international law and policy specifically relating to the aspirations of Indigenous peoples for self-determination (Perron-Welch & Oguamanam, Chapter 6). Much work remains to be done to understand the interplay of human, environmental and specific Indigenous rights; the often-strained relationship between environmental and Indigenous rights raises fundamental moral and procedural issues that could come to play in any dispute.

At the other extreme, Mgbeoji (Reference Mgbeoji, Phillips and Onweukwe2007) argues that misappropriation of Indigenous peoples’ knowledge is rooted in the long-standing and ongoing ‘colonial assault’ on Indigenous and TK systems. He sees the emergence of Indigenous knowledge systems, including jurisprudence, as legitimate parts of modern international law, but he acknowledges that in the final analysis effective protection requires significant work at the domestic level. He asserts one will first need to explore the juridical resources already recognized by Indigenous peoples in their daily production, use, sharing and propagation of knowledge (Chartrand et al., Chapter 8). Somewhere in the middle, Castle and Gold (Reference Castle, Gold, Phillips and Onweukwe2007) used a set of legal and philosophical arguments to assess claims for compensatory benefits, concluding that ‘justifications for benefit sharing cannot be derived from claims to property rights in traditional knowledge, if not because natural property rights are themselves problematic, then because property is normally considered free unless there is a normative justification for restricting access, particularly in the case of knowledge assets.’ In essence, legal assignments of rights are purposeful rather than simply a default setting.

Dutfield (Reference Dutfield, Twarog and Kapoor2004) bridges to a more positive approach, asserting that the moral and legal obligations embodied in our legal structure intertwine in an array of regimes and instruments, including customary law, IPR vehicles (such as patents, trade secrets, copyrights and plant variety rights), contracts law (including provisions related to trade secrets, licenses and material transfer agreements) and concepts in civil and common law related to unfair competition, privacy, breach of confidence and passing off.

In the context of digital biology that is differentially undertaken by scientists operating in formal institutions in advanced industrial economies, the complexity of modern legal structures occupies a prime position. Finding a place for TK and ABS in the context of digital biology will be complicated.

Economic Utility

Economists wade into the normative discussion of TK and ABS by using models of economic liberty and individual choice to model and estimate the impacts of various choice sets. Welfare economics offer valuable insights into the scale of any benefits related to TK. They also provide perspectives on the effects of unaided distribution and directed programs of benefit-sharing. Most of the economic argumentation and analysis related to TK and ABS has focused on two primary issues. First, many economists are vitally concerned with innovation. They are most interested in the impact of incentives and institutional factors on the rate of investment in R&D and subsequent improvements in our productive capacity. In that sense, economists tend to focus on strategies aimed at optimizing (in terms of efficiency and effectiveness) the use of knowledge from all available sources and not explicitly about protecting and preserving special types of property. Second, a number of economists, either directly or by inference, have attempted to measure the economic value of TK, which is an important input into policy debate, specific commercial ventures and adjudicating disputes. While philosophers and lawyers assert that their concern is for moral and legal justice, they are not indifferent to the prospect of assisting Indigenous communities to gain a greater share of the economic value of their TK. The monetary value is in many ways a competing moral perspective.

Ultimately, the diversity of life on earth is based on the protein-generating capacity of plants – the main question is what value one assigns to the TK that underpins that system. Richards (Reference Richards2008) argues it is very difficult to accurately estimate the economic value of TK because: (i) it is often an essential component in developing other products; (ii) most TK-derived products never enter modern markets and (iii) most TK has cultural or spiritual value that cannot be quantified in monetary terms.

Nevertheless, a number of groups and individuals have made attempts to estimate the gross value. The World Bank reports that agriculture comprises 31% of the GDP of low-income economies and the combined annual market of plant life forms (in pharmaceuticals, crop production, botanicals and natural care) was estimated at up to US$800 billion in 2007 (Mgbeoji, Reference Mgbeoji, Phillips and Onweukwe2007; Wynberg and Laird, Reference Wynberg and Laird2007). A 1992 UNCTAD-ICTSD Project on IPRs and sustainable development put the value of plant-based medicines in the pharmaceutical industry at US$61 billion annually, or about 10% of the annual value of production (Richards, Reference Richards2008). Farnsworth (Reference Farnsworth, Wilson and Peter1988) asserts the link to TK was obvious in that they found 119 plant-based compounds used in medicine worldwide, 74% which had the same or related uses as the medicinal plants from which they were derived. The World Health Organization (WHO) also estimated that the global market for traditional therapies, including but going beyond medicinal compounds, at more than US$70 billion annually. As just one illustration of the scale of the issue, the Indian Government has estimated that worldwide more than 2,000 patents are issued annually based on traditional Indian medicines. More recently, a UNDP study reported that developing countries are losing as much as $300 million a year in unpaid royalties from farmers’ seeds and over $5 billion a year in unpaid royalties for medicinal plants (based on a 2% royalty for material and knowledge transfers) (Shiva, Reference Shiva2001). As explored by Oguamanam and Koziol in Chapter 7 of this volume, it is possible for Indigenous peoples to lay down the preliminary building blocks for that kind of evaluation (no matter how elusive) in the Canadian context.

If one uses a simple model to calculate the net present value of even the most conservative transfers of TK embodied in medicinal plants and recently accessed landraces (at a discount rate of 5%, for example), the base value of these accessions is in the range of US$65 billion. Some advocates use these kinds of numbers to justify compensation claims for misappropriated value. The contrary view is that few, if any, of the transfers of TK were exploited to their fullest economic potential without further invention and adaptation, and that most of the economic value being assigned to TK is actually more appropriately assigned to the subsequent investments in making this genetic material function in a new setting or new use. Posey (Reference 195Posey1999) also notes that economists at one level miss the core issue, in that they hesitate to assign any estimates to the intrinsic cultural or spiritual value of TK and related GR (Oguamanam, Reference Oguamanam2010). It is clear that money talks.

Policy Issues and Implications

In light of the reality (or at least our hypothesis) that the Nagoya Protocol will be able to offer little in the way that is practically useful to the management of digital (or synthetic) biology knowledge let alone the governance of this vital 21st century issue, the root of the issue would seem to be, how can (or will) international research development and collaborations take place in a world of digital biology? While any multitude of questions, implications and concerns can be raised in regard to this issue, it would seem that there are three basic, or fundamental considerations that can provide structure for moving forward.3

First, clearer distinction and definition of what is ‘knowledge’ is crucial. As has been the case for nearly the past decade, the identification of a gene’s function is no longer patentable, as patent offices have determined that this is equivalent to discovery and is not an innovation by definition. In the context of digital biology, is the sequencing of a plant’s genome knowledge or is it simply a set of data that requires analysis, assessment and the application of additional scientific techniques, prior to the generation of knowledge? As is identified above, the ability to sequence plant genomes at ever faster rates, is state-of-the-art within genomics research. The result will be vast resources of genomic data. Determining if these pools of data are knowledge will provide clarity to those involved at the public and private research levels as to what specifications may be applied to these resources at this point in the research spectrum. As a normative default, it is conceivable that both the physical GR and related knowledge should be equally subject to ABS given that generations of human conservation and curatorial efforts have been invested in their development and survival (Oguamanam, Chapter 11).

Second, should these pools of genomic data (if they are indeed determined to be knowledge) be classified as ‘traditional knowledge?’ The above observations establish that TK exists when there is application. Conceivably, the sequencing of a plant species that has never been used for food, medicine or any other cultural application, would suggest that this is not subject to TK protocols. While it may raise concerns about the potential for biopiracy, that is a separate argument from what is examined in the context of this chapter. The discipline of bioinformatics involves using mathematical algorithms to search through genomic databases to identify unique genes in a particular plant species. Once a unique gene is identified, digital biology applications could be applied to develop an innovative product that is based upon, but not identical to, that which exists in the genomic database. The relationship between TK and digital biology needs to be governed by some parameters. Although some analysts and Indigenous peoples may not be so inclined,4 it cannot remain a wide open and broadly interpreted issue, but a middle ground is possible. Defining the scope and scale of what is, and what is not, TK as it pertains to digital biology will greatly aid all researchers. It is possible that this knowledge may not need to be classified as TK to be subject to ABS. The ABS mechanisms could be made to work if a chain of custody could be constructed.

Third, what is the relationship between TK and national, sub-national and community-based governance structures? It would be expected that what is believed to be TK by one community, while an inherent and inalienable right, might not be respected or supported as TK by a national, provincial, or municipal government, let alone non-Indigenous actors in the private sector. This would cause big problems: operationally, it presumes that TK protection requires some kind of validation by a government external to the Indigenous community itself. That attitude is symptomatic of the asymmetrical power relations that have historically subjected TK to validation by entities that have no authority in Indigenous cultural circles (Oguamanam, Reference Oguamanam2018). At the same time, unfortunately, this is the practical reality from the perspective of some (hopefully not most), non-Indigenous stakeholders. Those non-Indigenous stakeholders may not feel bound by, and in practice may not be forced (i.e. by judicial orders, police powers, or other state actions) to comply with Indigenous legal traditions. That is simply the sad fact of the matter. On the bright side, these governance challenges are not only a matter of policy coordination; they also implicate fundamental constitutional and human rights, raising the stakes for all concerned (de Beer and Dylan, Reference De Beer, Dylan and Rimmer2015; Nichols, Chapter 4). This issue of ‘who decides’ is vital, particularly at the local community level as the potential to involve legal injunctions to bring research collaborations to a stand-still, is a substantial issue of concern.

The core of digital biology advancement ultimately must address, if not resolve, these three issues and translate them into the legal and institutional structures that operate both within and beyond nation states. These issues are interwoven into international institutional research collaborations (i.e. CGIAR), philanthropic research efforts (i.e. Gates Foundation) and private sector investments into agriculture R&D that will have important future impacts on crop production and food security. The review of the existing landscape assessed by Crookshanks and Phillips (2012) suggests that no single model has emerged nor is any model showing particular efficacy – instead of being a problem, one might see the diversity of models as an opportunity for trialling and experimenting with new and better approaches.

The lack of consensus regarding a model or functioning framework is having a market effect. Given this general lack of clarity, private firms may be hesitant to fully engage in public-private partnership agreements regarding innovative agricultural research, in some instances. Simply put, the absence of a defined path, could cause some firms to step back and evaluate their participation in some development projects. A slight nudge towards a decline in R&D agriculture investments could lead to fewer new crop varieties being commercialized, with opportunity costs for example in the fight against climate change or for food security. Clarity in this contentious issue is vital, given the spill over impacts of technology innovation designed to improve food security in those countries that most desperately need it.

Conclusion

We have identified gaps between normative and positivist research on ABS that spans across disciplines of economics, law, political science and others. This research gap is among the factors contributing to the inadequacies of institutional governance mechanisms for the era of digital biology. The topic of ABS and digital biology had been on the table during Nagoya negotiations, but was deprioritized given the desire to achieve at least some deal before talks collapsed. As such, the underlying issues are still simmering even though there is some possibility to work within the extant Nagoya and other adjunct frameworks as demonstrated in the contributions to this volume (Oguamanam, Chapters 11, 14). Yet as we move further into the twenty-first century, rapid technological developments will continue to make physical materials transfers less relevant for scientific research collaborations. Digital data are supplanting biological samples as the mode of conveyance of GR and associate TK. Industry and Indigenous community partners must, therefore, urgently address issues of data ownership, sovereignty, and stewardship.

11 ABS: Big Data, Data Sovereignty and Digitization A New Indigenous Research Landscape

Chidi Oguamanam
Introduction

Article 1 of the Nagoya Protocol states, ‘[t]he objective of this Protocol is the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources …’. This provision partially repeats Article 1 of the CBD. The essential focus of the Nagoya Protocol (NP) is GR, defined in its parent convention as ‘genetic material of actual and potential value’ (CBD, 1993, Art 2). In order to trigger claims for equitable benefit sharing, there must be in effect ‘utilization of genetic resources.’ The NP, as opposed to the CBD, defines utilization of GR as the ‘conduct of research and development on the genetic and/or biochemical composition of genetic resources, including through the application of biotechnology as defined in Article 2 of the Convention’ (NP, Art 2(c)). The CBD defines biotechnology as ‘any technological application that uses biological applications, living organisms and derivatives thereof, to make or modify products or processes for specific use’ (NP, 2010, Art 2(d); CBD, 1993, Art 2). The protocol defines derivatives as ‘naturally occurring biochemical compound[s] resulting from the genetic expression or metabolism of biological or genetic resources, even if [they do] not contain functional units of heredity’1 (NP, 2010, Art 2(e)). Also, as at June 3, 2016 the WIPO-IGC consolidated document to IP and GRs adopts that same definition of derivatives.2

In the structure of the both the CBD and the NP, the focus is essentially on GR. No mention is made of TK until Article 8(j), in the case of the CBD, and Articles 7, 10, 11, 12, 13 etc., in the case of NP, which make reference to ‘traditional knowledge associated with genetic resources.’ There is no definition of that concept in either the CBD or the NP (see Phillips, Smyth & de Beer, Chapter 10). WIPO-IGC’s attempt to define TK and TK associated with GR remains inchoate. From the above perspective on utilization, it is logical to assume that any research3 that involves TK associated with GRs or vice versa, as the case may be, amounts to the utilization of the TK and the GRs and, consequently, triggers equitable ABS claims. As tripartite concepts, research, TK and GRs inherently derive their relevance not only as blurry forms of datasets or information in and of themselves, but also in the production and utilization of datasets and information.

Both the CBD and the NP are silent on ‘derivatives’ as they apply to TK. But a strict textual appraisal of the language of the NP would suggest that it does not discount the notion of derivatives in relation to TK. First, it appears that the moment TK is associated with GRs, the latter becomes susceptible to the provision on derivatives as outlined above. Second, even if the first proposition is shaky, which is not conceded, the NP is consistent in its text to the effect that, TK associated with GR held by IPLC must be accessed ‘with their prior informed consent’ (PIC) or with their approval and involvement pursuant to mutually agreed terms (MAT) (NP, 2010, Art 7, 11, 12, 13, 16, 18, etc.). The NP leaves wide discretion for parties regarding how the involvement, approval and prior informed consent of the IPLCs could be secured and with regard to the constitution of MAT.

Though these mutually reinforcing provisions are within the ambit of progressive evolution of international law on Indigenous peoples as echoed in the NP preamble, IPLCs are free to articulate and ensure that the derivatives of TK are subjected to equitable ABS in ways that go beyond the narrow confines of the definition of derivatives proffered above. The CBD preamble recognizes the malleability of the applications and manifestations of TK beyond the scientific reference to derivatives as genetic expression or metabolism of naturally occurring biochemical compounds. Specifically, the CBD recognizes ‘the unique circumstances where TK associated with GRs is held in countries, which may be oral, documented or in other forms, reflecting a rich cultural heritage for conservation and sustainable use of biological diversity’ (CBD, 1993, Art 23).4 Simply put, when GRs are associated with TK or when TK is associated with GRs, the manifestations of that TK may not necessarily be linked to physical representations. Rather, it may involve nuanced forms that go beyond the emphasis of the texts of both the NP and the CBD on physical transfer of GRs and, as the case may be, associated TK.

Despite the recognition of the character of TK in the CBD, the latter and its NP focus essentially on the corporal notion of GRs. For example, both recognize the sovereign rights of nations to exploit their own natural resources (CBD, 1993, Arts 3, 15; NP, 2010, Art 6). As well, GRs are designated in ex-situ and in-situ terms. The provisions on practical implementation of the NP make references to transboundary GRs and transboundary collaboration as well as to checkpoints for monitoring of compliance (NP, 2010. Arts 10, 11, 14, 17). Logically, these are references to recourses in their physical forms. For the most part, some of these provisions reflect a bias for the physical character and expectations for the physical movement or transfer of GRs under the ABS system.

However, technological reality has forced the CBD to grapple with digital sequence technologies as they apply to genetic resources. This is as a consequence of the fact that the utilizations of GRs and/or TK associated with GRs are happening in contexts devoid of their physical transfer or movement. In the information age, research is essentially a data-driven initiative, animated by open-ended possibilities for the generation, manipulation, diffusion, anonymization and various innumerable forms of data aggregations (see Phillips, Smyth & de Beer, Chapter 10). On a positive side, digital technology has lowered the cost of data; enhanced the accessibility and exchange of vital information in ways that facilitate research and promotes its objectives of advancing knowledge, proffering solutions to problems, and ultimately improving human capacity and quality of life. The prevalence of technology in the generation and management of data therefore creates both opportunities and dilemmas for stakeholders in the context of the interface between GRs and TK, with significant implications for ABS.

In a recently commissioned study by the CBD on digital sequence information on GR, experts point out that the interaction of these phenomena represents a profound area that shapes contemporary research. It constitutes a significant challenge to the implementation of the NP ABS scheme especially with regard to the identification of contributors or users of GR and associated traditional knowledge and provenance of sequences. This chapter explores that important dynamic – the understanding and mitigation of which is critical for an Indigenous-sensitive ABS in Canada and around the world.

The Big Data Phenomenon

Over the last two decades, there has been an explosion of interest in the concept of ‘big data,’ initially by technology companies and data-based giants such as Google, Facebook, Twitter, Instagram, eBay, Amazon and Wikipedia, to name just a few. Big data designates the phenomenon of massive and complex data sets at a scale at which it is not possible for conventional data processing applications to handle. Because of their richness in information, these massive datasets have been turned into goldmines for the application of predictive analytics, user behaviour analytics and other sophisticated data analytical methods in order to harvest or extract insights and optimize the unprecedented value in the novel data ecosystem. Big data has since been of significant interest across many areas of human endeavour, including social behaviours, environment, marketing, manufacturing, healthcare, DNA mapping or sequencing and profiling (Oguamanam, Chapter 14; Phillips, Smyth & de Beer, Chapter 10) education, and governance, to mention a few. Public and private sectors in the United States, Canada, United Kingdom, the European Union, China and India have continued to invest in big data as a part of their intense competition to leverage the information and communication technologies in virtually all sectors of human endeavour.

One of the most profound applications of big data is in the realm of research. Big data rapidly generates vital research information that is usable in a variety of disciplines. For example, it took ten years for the Human Genome Project (HGP) to decode the human genome; with big data, the same feat now takes just a single day. Big data reduces the cost of research. Again, in regard to decoding the human genome, using big data, the cost has been reduced by over 100 times. Big data enhances the generation and storage of information across distance and time, including those relating to genetics, genomics, biomes, biological properties, environment, climate and geology, consumer behaviours, historic patterns or phenomenon, etc. to rapidly advance social, commercial, and health experiments and interventions. It facilitates and entrenches a culture of open repository of vital research information through multiple information pulling applications (wireless devices, networked sensors, aerial sensors, cloud computing, RFIDs, etc.) to be easily accessed by researchers at minimal or no costs.

Big Data, Open Data and Openness

As an adjunct of the new information technology era, big data is an important catalytic and incentivizing factor to openness, open innovation and open source and open data. Like the concept of openness, big data is not necessarily antithetical to proprietary use of data or information. In fact, private sector corporations largely drive the big data phenomenon for their firms’ needs as a competition and survival strategy. Both big data and open data or the open source phenomena generally are constructive and modified forms of proprietary use of data in self-interested ways that strategically encourages targeted forms of sharing via licencing or related schemes to optimize value (de Beer, Reference De Beer2016; Phillips, Smyth & de Beer, 2017). Notwithstanding the corporate proprietary interests that have been pivotal in the evolution of big data, the latter have significant effects in promoting access and democratising the use and advancement of the impact of large scale information on the society. As such, big data has a nuanced relationship with open data and open source. In Canada, the University of Waterloo runs the Canadian Open Data Experience (CODE). The program demonstrates the relationship between open and big data, including the role of open data (specifically data visualization) in the advancement of big data.

‘Datamania’ and Research Involving Indigenous People

As with other sectors, research involving Indigenous peoples is not immune from the effects of digital technology, big data and open data and their applications in the processing of sensitive data like genetic/genomic, ecological information, or even patterns, demography or the mapping and various nuances of traditional cultural practices. We called attention to this tendency in an earlier work where we observed as follows:

Multidisciplinary researchers ranging from cartographers, ethnographers, anthropologists, economists, social scientists, critical data studies experts to lawyers doing traditional knowledge-related research by and with Indigenous communities ‘have witnessed the emergence of numerous issues regarding the collection, dissemination and management of data based on Traditional Knowledge.’5 Not only do such issues implicate the problematic relationship between intellectual property and traditional knowledge, they also touch on the subject of access and equitable sharing of benefits arising from such research.

(Oguamanam & Jain, Reference Oguamanam and Jain2017, 95)

Nowadays, research involving Indigenous peoples invariably results in a significant digital footprint or digital output, including through online data resources of various forms such as text, images, audio, video, data versioning mapping, etc. Researchers, including those involved with Indigenous peoples commonly establish dedicated webpages for their projects. These web platforms are proven sources of significant, publicly accessible data which can be mined and interpreted as part of the global universe of big data without the knowledge nor the guarantee of compliance with the terms of engagement between Indigenous peoples and researchers. Despite any stated conditions and caveats, which are mostly unenforceable, any such independent access of often vital Indigenous research-related data is open to further de-contextualization and (mis)interpretation without recourse to Indigenous peoples.

The continued pre-eminence of the big data and open data movements results in availability of an unprecedented scale of Indigenous research-related data that are conceivably inseparable from TK, for the most part, at virtually all levels of the use of GRs in traditional knowledge innovation and practices (TKIP) including but not limited to health, traditional medicine, agriculture, cultural expressions, sacred and secret rituals, food, genomics, culture, social behaviour, demographics, ethnography, climate management, hunting, special environments such as the polar region (Scassa & Taylor, Reference Scassa and Taylor2017), etc. Not only are these kinds of information easily de-linked from their sources and origins in ILC. In their transformations, they may or may not result from direct physical dealings with GRs. But because they are parts of research and consequently constitute utilizations of GRs and, as may be applicable, aTK, they are, arguably, subjects of ABS obligations in accordance with the specific provisions of the NP and the CBD examined in the earlier section of the chapter and elaborated further below in the discussion on derivatives.

In Canada, the Geomatics and Cartographic Research Centre (GCRC) at Ottawa’s Carleton University presents a variant form of approach and a new form of experience over the increasing web presence and digital footprints of data arising in the context of Indigenous research. The GCRC works in partnership with Northern Canadian Indigenous communities deploying geographic processing and management skills as predicative and other tools of analysis ‘for a range of socio-economic issues of interests with a focus on specific local and international contexts.’6 The project is partly driven by an online interactive atlas on geographic, geomatics, cartographic, environmental and TK practices [of Indigenous peoples] developed by the Centre. Other related Indigenous research endeavours that directly and indirectly project TK and associated data into cyberspace in furtherance of the intersection between open and big data are prevalent in Canada and elsewhere (e.g. Mapping in Indigenous Communities Project). Scassa and Taylor (Reference Scassa and Taylor2017) have recently broached the issue of ethical challenges for the inclusion of TK as part of the Arctic data infrastructure.

GCRC researchers recognize that third parties who seek access to TK are often driven by commercial and intellectual property needs. Given the reductionist nature of those prisms in relation to the ‘communal and other unique features of traditional knowledge’ (Oguamanam & Jain, Reference Oguamanam and Jain2017, 95) they proposed an open licencing scheme for TK with the objective of assisting ‘traditional knowledge holders communicate their expectations for appropriate use of their knowledge to all end users – a development that potentially contributes to the letter and spirit of ABS and to other non-economic aspects of traditional knowledge’ (Oguamanam & Jain, Reference Oguamanam and Jain2017, 95). While a licencing scheme for TK, as a contractual matter, has potential to accommodate Indigenous peoples’ ABS sensitivities and more, its viability may be contingent on several contextual variables, including the nature of the TK or GRs, where applicable, and the dynamics of a given Indigenous community as well as the envisaged use for the GRs and TK. One can confidently suggest that the GCRC TK licencing scheme is truly an ‘open’ proposition in both a literal and figurative sense.

The GCRC’s research model reflects an attempt to temper the big and open data imperative with a sensitivity that is historically demanded by Indigenous peoples over dealings with their TK and associated GRs. But that is only one research initiative. A more systematic engagement is required to square up the open and big data phenomena with Indigenous peoples’ expectations over the sourcing and use of their data in the new research environment in ways that address equity deficits in the use of TK (de Beer, Reference De Beer2016). That very imperative, which is captured by Indigenous peoples’ interest in data sovereignty, explored below, is critical to the development of an Indigenous-sensitive domestic ABS policy in Canada. In addition to University of Waterloo’s CODE mentioned earlier, in Canada, the Open North initiative is another open data program and part of the global big data movement that promotes the use of civic technology tools at both domestic and global levels to foster the public goods and democratic benefits of big data. With its focus on the First Nations of Canada’s North, the Open North initiative inevitably engages Indigenous peoples’ inclination toward data sovereignty with its commitment to open data (Lauriault, 2017; Oguamanam & Jain, Reference Oguamanam and Jain2017).

Case for Digital DNA

Before turning to the meaning and rationale for Indigenous peoples’ quest for data sovereignty, an important but obvious point deserves a brief mention. The global big data and open data phenomena’s role in the virtualization, malleability and democratization of data access for complex objectives is a factor or spinoff of information communication technology. But beyond ICTs, advances in biotechnologies constitute interrelated but additional site for the generation of critical research data in forms that de-link them from naturally occurring GRs, blurring, distancing or complicating authentic claims to their origin or source, not to mention their association with TK of Indigenous and local communities (Phillips, Smyth & de Beer, Chapter 10). For example, through multidisciplinary insights ranging from engineering, molecular and synthetic biology, chemistry to genomics, genetic epidemiology, biotechnological insights are augmented to generate various kinds of information and data relating to GRs. In some cases, the undergirding research is inspired by Indigenous knowledge of the uses of plants, animal and other genetic materials for medicinal, therapeutic, pharmacological, food and agricultural practices and innovations. In other cases, such as the Human Genome Diversity Project (Coombe & Amani, Reference Amani and Coombe2005) or the map-my-gut initiative (Spector, Reference Spector2017), Indigenous peoples themselves are the sources of vital genetic material. In yet others, their traditional dietary practices are foundations of vital information and insights for understanding health-improving life practices and positive but complex human-nature interactions, for example, pursuant to the gut biomes research.7

Biotechnology facilitates the generation of genetic data or information including, for example, through DNA sequencing with results digitally stored in the form of digital DNA. The latter is critical for the conduct of synthetic biology research. As a cognate of genetic engineering, synthetic biologists are able to construct new DNA components that are not naturally occurring. They are also able to re-design existing biological forms or their properties with modular DNA parts, re-arranging and combining them in new ways that result in new and complex biological systems in predictable and well characterised manners. All of these feats of ingenuity in the interface of biotechnology and digital technology translate into outcomes that solve practical problems in innumerable range of fields. Again, in an earlier project we surmised as follows:

Digital DNA makes it easier to conduct research. Rather than sourcing genetic sequences in nature, researchers can use online databases to download DNA sequences for free with a click of a button. These sequences can be customized and then ordered from commercial laboratories to conduct research, allowing entire genomes or genes to be constructed from scratch. As DNA synthesis and sequencing technologies become cheaper, it may be faster to synthesize certain DNA sequences than to find them in nature … Despite the obvious advantages of using digital DNA for research, it raises concerns for biopiracy. Users can benefit from genetic resources or local knowledge available on the web without necessarily being obliged to share the benefits derived from using the online data.

(Oguamanam & Jain, Reference Oguamanam and Jain2017, 106, 107)

The point here is that a combination of ICTs’ preeminent role in fuelling the big and open data phenomena, and continuing advances in biotechnology in various directions de-emphasizes the physical transfer of GRs as fundamental triggers of ABS. In order to leverage the possibilities under emerging ABS regimes whether within or without the Nagoya framework, there is need for strategic vigilance, expertise, capacity building and awareness-raising in the complex forms in which GRs and associated TK are being generated, used or transferred in biotechnological applications (Oguamanam & Hunka, Chapter 3). But the key question is whether the apparent de-linking or blurring of the sources or origins of GRs under these complex and hi-tech forms for their use and transformations compromises their status as derivatives or not. Even though the foregoing analysis and from the specific reference to derivatives in the text of the NP suggests an affirmative response. But such an inclination is not absolute. It must be mindful that the CBD Ad Hoc Technical Working Group on Digital Sequence Information (DSI) is divided on the question of whether DSI is included in the definition of GR or not (Oguamanam, Chapter 14). That dissonance among experts is related to the existing controversy surrounding the scope of derivatives among stakeholders in ABS.

Derivatives and ABS

To further buttress the case for applicability of ABS in the context of migrations of Indigenous research-driven information or data in GRs and TK to the realms of big and open data, we call attention to a 2017 World Intellectual Property Organization (WIPO) study, Key Questions on Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge (WIPO, 2017). The study was conducted at the instance of WIPO’s specialist Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (IGC), tasked to develop texted-based instruments for the protection of those subject matters for WIPO member states. An issue at the IGC deliberations, and certainly in all cognate fora is whether and to what degree could GRs or materials and TK be an integral part of an invention to warrant the disclosure of their sources or origins in patent applications. As a practical matter, this kind of disclosure would foster accountability and transparency over the uses of GRs, enhance ABS, while ensuring that the patent system ceases to serve as a conduit for unlawful appropriation of GRs and TK.

The above-mentioned WIPO study focuses on the degree of linkage or relationship between GRs and, where applicable, TK with a claimed patent invention that could trigger disclosure of source or origin and consequently an Indigenous and local community claim for ABS. This is important because not every casual or inconsequential nexus or association between a claimed invention and GRs or TK of ILCs could be subject of ABS and disclosure claims. The identified links provide further insight for understanding and supporting the position that a generous interpretation of derivatives or process of derivation is necessary for an Indigenous-sensitive ABS policy. As well, it is already noted that the text of the NP accommodates the dynamic character of GRs and, conceivably, TK to account for the malleability and migrations of research data based on them. A 2010 Norwegian Fridtjof Nansen Institute report endorsed a ‘broad’ definition of GRs that reflects the ‘dynamic’ understanding of the concept (Fridtjot Nansen Institute, 2010; Oguamanam & Jain, Reference Oguamanam and Jain2017).8 As well, members of the Indigenous caucuses to negotiations in cognate fora to the IGC featuring patent disclosure, protection of TK and ABS as part of the broader law and policy discourse on intellectual property and development strongly expressed a similar inclination on the issue of derivatives of GRs and TK (Bagely & Rai, Reference Bagley and Rai2014).

The WIPO study identified three contexts or degrees in which an invention may be linked to GRs and TK in order to warrant patent disclosure of source or origin. First, when the invention directly claims to have utilized GRs or TK. This is straightforward on its face. It calls attention to the definition of utilization of GRs under the NP reproduced earlier in this chapter. Second, where the invention is derived from GRs or TK. The third relates to where the invention is based directly on GRs or TK. While the third context recognizes situations of obvious and perhaps unequivocal nexus, on evidentiary bases, between an invention and GRs and TK, the second one makes reference to when an invention results as a derivative of GR and TK. It leaves open considerations for the quantity, content and quality of the role or effect of GRs and TK of Indigenous and local communities on the innovation or invention for which a patent claim is made. It is conceivable that in these three sites, the nexus between claimed invention and GRs or TK may overlap. They are not exclusive. An invention may be based on GRs and may as well have been derived from it and in which case it inherently utilizes GRs. All of these are matter of degree and analytical disaggregation. Detailing of legal specificities and their consequences, it is argued, ought to be a domestic matter that requires Indigenous peoples’ participation at policy making and implementation levels.

In making such an evaluation, it is suggested that the utilization or presence of GRs and TK be appraised on account not only of their physical transfer or physical contact with the user but also on the basis of the latter’s sourcing of valuable data or information on the GRs through big and open data and other publicly accessible, including digital and web-based, platforms that have the tendency to de-link GRs and TK from their origin. Nonetheless, it is recognized that depending on the level or extent to which the accessible information constitutes the resulting invention, establishing the novelty of the invention may be problematic. This interpretive pathway is consistent with a combined reading of the NP’s definitions of utilization of GR, biotechnology and derivative reproduced earlier in this chapter. Objection may be taken to the narrowness of the definition of derivative, which bears repeating: ‘naturally occurring biochemical compound resulting from genetic expression or metabolism of biochemical or genetic resources even it does not contain functional units of heredity’ (NP, 2010, Art 2(e)). Despite the fact that in many IPLCs’ worldviews TK and GRs are part of symbiotic holism of the natural order, this definition limits derivatives to ‘naturally occurring biochemical compounds’ which is the dominant context for application and uses of some but not all forms of TK in association with GRs. It may be argued that the reference to naturally occurring compounds is specific to a physical object. But true as that may be, its ‘utilization’ broadly construed could include any and other forms in which these naturally occurring are utilized or applied, which will include how they are expressed as abstract datasets or sequences in biotechnology research.

Besides, other aspects of TK and practices based, for example, on rituals, ceremonies, protocols, etc. which are not captured in the NP are often documented in open and publicly accessible big data platforms. Their appropriations for insights by researchers and users of GRs conceivably fall well within the notion of derivatives especially when those insights are obtained through a universe of big data that elaborate the transformations or practical metamorphoses of GRs into naturally occurring biochemical compounds. That it does not matter whether or not the naturally occurring biochemical compounds have functional units of heredity is instructive. At the very least, it opens the way for sanctioning Indigenous peoples’ claims for ABS over their GRs and associated TK in the realm of synthetic biology.

The NP specifies that ‘utilization’ of GR happens essentially in the conduct of R&D on GRs through the applications of biotechnology. There is no question that open and big data phenomena today constitute part of the most resourceful infrastructures for the conduct of research. And to the extent that GRs and aTK are increasingly becoming part of the global big data infrastructure, despite their tendency to de-link GRs and aTK from their sources and origins in ILCs, it does not disentitle Indigenous stakeholders from making legitimate claims for ABS. Finally, biotechnology is characterized in the NP as technological application in the use of ‘biological systems, living organisms or derivatives thereof to make or modify products or processes for specific use’ (2011, Article 2(d)). Again, it has been noted that the interface of digital technology and continuing advances in biotechnology have boosted the uptake of big data, especially in life sciences R&D. Through interdisciplinary concerts in genetic engineering, molecular and synthetic biology, bioinformatics, genomics, genetic epidemiology, etc. research data relating to Indigenous peoples and in some cases their knowledge systems, their GRs, genetic profiles and their ‘derivatives,’ can readily be generated, modified or adapted to accomplish R&D objectives. We have made reference to such outcome in our discourse of digital DNA above and elsewhere (Oguamanam & Jain, Reference Oguamanam and Jain2017).

Notwithstanding the tendency of these technologies to de-link or conflate ensuing critical research data or information from their origins, the proposition for building new biological systems (with or without functional units of heredity) from scratch is dubious. This is even more so when such a system is claimed to have an absolute disconnect from natural sources or absent some form of inspiration even in regard to pattern, characteristic or predictability from those said to be ‘naturally occurring,’ a term that is problematic on its face. In sum, contrary to the apprehension that the migrations, malleability, dilutions and de-linking of crucial research data and information from IPLC over GRs and TK into the universe of open and big data, there is still a solid and legally sustainable case for ABS in those contexts. Yet, the overall inequitable effect of big and open data on IPLCs should neither be undermined in their entirety, nor should the flaw in the NP to directly pre-empt or accommodate the ABS implications of digital technology or, more technically, ‘digital sequence information’ for TK be downplayed. A more rigorous philosophical and yet pragmatic response to big data is required. It is a response that attempts to capture Indigenous peoples and, as may be applicable, other local communities’ complex interests in ABS. As indicated earlier, such interests transcend the mere commercial and market value of GRs and TK. They are captured under the nascent or emergent concept of data sovereignty as it applies to Indigenous peoples in research contexts, which is the focus of the next section.

Data Sovereignty

Despite all the benefits claimed for big and open data, there are significant degrees of skepticism around them. Such reservations are the preoccupation of a comparatively nascent field known as critical data studies; they are not of direct interest to this chapter. However, from the above analysis, it is clear the big data phenomenon is a significant factor in the de-linking, de-contextualization and virtualization of data. In relation to data arising from research dealing with GRs and TK, it has been argued that a combination of big data and advances in biotechnology as symbolized, for example, by digital DNA and synthetic biology applications is capable of complicating claims for ABS on a practical level. As the effects of big data on all stakeholders, especially the most vulnerable, such as Indigenous peoples, attract interest of policy makers and critical data analysts, some have called for mediating such effects through some form of social contract-oriented intervention to protect vulnerable interest or values such as individual or civil liberties and privacy rights, etc. (Al-Rodhan, 2014). Indigenous peoples have articulated such interventions in the form of data sovereignty. While the social contract model and sovereignty approach are not necessarily synonymous, both could advance the course of justice, fairness and equity. Data sovereignty is arguably not a strict counterpoise to big data, but it could serve to moderate its negative effects and help explore and contextualize Indigenous vulnerabilities over big and open data phenomena and, in the presence case, with regard to safeguarding the progress made around ABS.

In its general construct, data sovereignty designates the right of States in relation to others States to govern the collection and ownership, including access and use of data that is domiciled within their jurisdiction. As well, data sovereignty denotes the sanctity or integrity of data. It is therefore an incidence of the sovereign right of States as it extends and applies to data governance. The capacity of ICTs to digitize information and strip it of any jurisdictional affiliation, for example, through cloud computing, does not fully deprive data of standing especially with regard to the locus of its storage or generation. It is only logical that the States that have the highest aggregation of contact with specific data assert sovereignty, especially pursuant, analogously, to conflict of laws principles, but subject, of course, to any contractual obligations and principles of collaboration that are critical for law and order in cyberspace.

Another aspect of data sovereignty that is relevant relates to the application of the elements of its logic onto the milieu of Indigenous peoples, with specific regard to the research context. On a more serious rendition, assertion of data sovereignty by Indigenous peoples is an aspect of their fundamental right to self-determination and their claim to shared sovereignty within collaborative federalism. In 2017, a group called the International Indigenous Data Sovereignty issued the Indigenous Charter Statement. The Group comprises three networks of Indigenous peoples organized at national levels, namely the Te Mana Raraunga - Maori Data Sovereignty Network, the United States Indigenous Data Sovereignty Network (USIDSN), and the Maiamnayri Wingara Aboriginal and Torres Strait Islander Data Sovereignty Group in Australia. Increasingly, these initiatives are promoting international Indigenous consciousness on data sovereignty reaching out to Hawaii, Lapland and other Indigenous peoples with commitment to fashioning policies on how best to collaborate in the control, sharing and application of information or data relating to research involving Indigenous peoples. As its overarching objective, Indigenous Data Sovereignty (ID-Sov for short) aspires toward ‘a more robust and coherent international collaboration to achieve impactful outcomes at the intersection of Indigenous data sovereignty, Indigenous data governance and research’ (International Indigenous Data Sovereignty IG Charter Statement, 2017). Indigenous data sovereignty concerns the rights of Indigenous peoples or nations to govern the collection and ownership, including access and use of Indigenous-related data in research and other contexts.

The movement, which is now known as the International Indigenous Data Sovereignty Interest Group (IDSIG) is committed to fostering data-driven research, promoting the use of data, building capacity in data generation within and outside the academic research contexts prioritizing benefitting Indigenous communities. The IDSIG captures the relevance of data sovereignty for Indigenous peoples in the context of big data and the role of data in changing research dynamic in the 21st century in the following statements culled from its Charter Statement. It merits significant attention:

Like other nation states, Indigenous nations need data about their citizens and communities to make informed decisions. However, the information that Indigenous nations have access to is often unreliable, inaccurate, and irrelevant. Federal, state, and local governments have primarily collected these data for their own use. Indigenous nations’ reliance on external data that do not reflect the community’s needs, priorities, and self-conceptions is a threat to self-determination. The demand for Indigenous data is increasing as Indigenous nations and communities engage in economic, social, and cultural development on an unprecedented level. Given the billions of dollars in research funding spent each year and the increasing momentum of the international big data and open data movements, Indigenous nations and communities are uniquely positioned to claim a seat at the table to ensure Indigenous peoples are directly involved in efforts to promote data equity in Indigenous communities.

The Canadian situation is no different from the international context that the IDSIG articulated above. As far back as the 1999 Royal Commission on Aboriginal Peoples, Indigenous peoples decried the historically inequitable relationship between them and researchers. Part of the struggle to release their status as stakeholders in research involving them was the establishment of the First Nations Information Governance Centre (FNIGC) which exercises custody and control over First Nations Regional Health Surveys (RHS) data. To its credit, the FNIGC developed an RHS code of ethics, which outlines guiding principles, ethical practices and protocols for the use of data generated pursuant to the RHS. These principles link Indigenous peoples’ interests in research data to their self-determination rights, which are enhanced when they benefit from the result of such research and are empowered to take control of their health and are able to receive research funds and be proactively involved in participating in research about their own peoples.

In addition to the undergirding raison d’être for the RHS, in 1998, the FNIGC initiative developed what, in retrospect, amounts to the first major Indigenous data sovereignty initiative in Canada titled the OCAP principles. The acronym stands for Ownership, Control, Access and Possession. As a typology of data sovereignty, OCAP expresses the core framework for ensuring that Indigenous peoples have control over the various dealings in research data relating to them from their collection, uses or applications, dissemination, sharing (perhaps including, arguably, interpretation). All of these are supposed to happen under an ethical consciousness to protect and practically translate or give effect to those key words. We have noted, in an earlier work, that both the RHS and the OCAP principles are limited in two respects. First is in terms of the research context and the second is with regard to the category of Indigenous peoples to which they apply. Historically, they arose in the context of health-related Indigenous research data and they apply to First Nations and Inuit as opposed to other Aboriginal categories.

Those limitations are no longer valid. Both the RHS and OCAP support development of research partnerships with all researchers without limitation to any discipline or field of research. There is now in Canada an elaborate research ethics framework focused on doing various forms of research relating to Indigenous peoples as a whole (Tri-Council Policy Statement 2, 2014, Chapter 9). In allowing for the proactive engagement of Indigenous peoples in research, every element of these protocols and principles sanctioned under the RHS and OCAP incorporate aspects of data sovereignty to some degree (Napoleon, 2015). Some of the protocols are initiated by Indigenous peoples on their own as well as by the research funding agencies themselves or professional associations as a matter of best practices (Bannister, Chapter 12; Burelli, Chapter 13). As the drive for big and open data continues to define the future of research, IPLCs’ push for data sovereignty will find stronger and wider traction for critical data analysis to mainstream the imperative for data equity as a moderating principle despite all the benefits canvassed for big and open data phenomena.

Conclusion

Fueled by ICTs, big and open data phenomena constitute one of the most progressive infrastructures for the advancement of research in the 21st century. Big and open data reduce costs, enhance the democratization of vital research data and related information, including those involving GRs, aTK and, broadly, research relating to IPLCs. Yet the convergence of bio-digital technologies and more broadly the paraphernalia of the ICTs in GRs and aTK contexts practically results in the de-linking of critical Indigenous related research data from their origins and sources in Indigenous and local communities and their knowledge systems. These technological realities are real grey areas exposing gaps in the legal and policy framework for ABS under the NP, CBD and cognate regimes. They also remain a significant source of present and future challenge to implementation of ABS. As argued by Phillips, Smyth and de Beer (Chapter 10), not only did the NP fail to ‘deal with the pressing issue of digital technology transfer,’ the Protocol was already rendered obsolete by technological developments before it came into effect. Counterintuitively, however, a critical analysis of aspects of the relevant provisions of the Protocol and cognate texts of relevant international instruments on the utilization of GRs, aTKs and the concept of derivatives support the continued relevance and accommodation for equitable ABS in era of technology’s tendency to conflate sources and origins of GRs and aTK. Even if that is not enough, a critical appraisal of progressive developments on the rights of IPLC generally reinforce the relevance of ABS implementation through ongoing technology transformations as a matter of justice and equity.

Rather than undermine ABS, overall, the current state of affairs energizes momentum for pragmatic and responsive incorporation of critical data studies and data equity to big and open data phenomena as an important site for progressive policy making toward an Indigenous-sensitive ABS. Using critical data analytical approaches and constructive deployment of data sovereignty, IPLCs are better able to sustain their demand for equitable ABS in the wake of new technologies. To this end, the novel concept of data sovereignty is one that should command attention for policy elaboration and for balancing converging interest in Indigenous research, ABS and the big data and open data phenomena. As Oguamanam and Hunka pointed out in Chapter 3, the use of technologies in ABS-related contexts is one of the priority areas of Indigenous capacity building and capacity development for equitable ABS in the Canadian context.

12 Ethical Guidance for Access and Benefit-Sharing Implications for Reconciliation

Kelly Bannister

Modern science’s great strength, its ability to focus on a part of nature and apply analytical tools and techniques, is also its fatal weakness. By being focused, science routinely shatters and fragments, thereby obliterating context, connections and interactions… Knowledge without spirit is soulless, lacking in love, humility and responsibility that must guide and constrain its application. Knowledge embedded in Indigenous languages and cultures will never be duplicated by science, so like endangered plants and animals, must be protected and encouraged to flourish.

– Turtle Lodge Declaration, 2017
Introduction: Rationale and Goals

The discourse on access and benefit-sharing (ABS) over biological/genetic resources and associated Indigenous traditional knowledge in Canada has largely focused on legal and policy solutions to address a myriad of jurisdictional and cross-cultural issues. Rights, consent, fairness and equity are dominant themes in ownership, access and fair use discussions. All of these themes have ethical dimensions, but ethics has been more implicit than explicit in much of the ABS discourse to date (Oguamanam, Chapter 11).

When explicit, ethics often has surfaced in morally-judgemental and politically potent ways that elicit defensive reactions, further polarizing the parties and diminishing the principles in question. Wikipedia’s entry on ‘bioprospecting’ provides examples of ‘famous cases’ over the last two decades where bioprospecting proponents have been accused of biopiracy, cultural misappropriation or unauthorized commodification of Indigenous cultural knowledge and traditional resources (e.g. ICBG-Maya project in Mexico, Rosy periwinkle in Madagascar, the Neem tree in India, Hoodia in South Africa and more).1

Spotlighting bioprospecting and biopiracy dilemmas has dramatically increased global public awareness, and catalyzed tremendous opportunity for debate, reflection and response at individual, institutional and systemic levels, from local communities to international fora. A case in point is the International Cooperative Biodiversity Group (ICBG-Maya) project initiated by Drs. Brent and Elois Ann Berlin at University of Georgia in 1998–2001 (Berlin & Berlin, Reference Berlin and Berlin2004; Feinholz-Klip et al. Reference Feinholz-Klip, García Barrios and Cook Lucas2009). ICBG-Maya research involved documenting Chiapas biodiversity and the ethnobotanical knowledge of the Mayan Indigenous peoples of Mexico as a basis for exploring drug discovery. The project provoked vehement international controversy around issues of consent and was eventually cancelled by the funder, sending waves of unrest throughout the ethnobiology community. However, as the ICBG-Maya experience illustrated, applying a predominantly Eurocentric rights-based approach to resolving nuanced ethical dilemmas encourages a social and political mindset of ‘blaming and shaming’ and sets the stage for ‘winners and losers’ depending on whose rights prevail. The full potential of considering and responding in concrete and constructive ways to the ethical dimensions of the dilemmas posed by cases such as the ICBG-Maya project has yet to be realized.

A more explicit consideration of ethics that is predicated on relationships and acknowledges an inextricable connection of rights to responsibilities offers a different opportunity – one that is particularly timely and relevant to ABS within Canada, amid a national commitment by the federal government to ‘reconciliation.’ This commitment was articulated in Prime Minister Justin Trudeau’s 2015 statement on the report and recommendations of the Truth and Reconciliation Commission (TRC). Trudeau remarked that, ‘it is time to act, without delay, to advance the process of reconciliation, and rebuild Canada’s relationship with First Nations, Inuit, and Métis Peoples based on rights, respect, cooperation, and the standards of the United Nations Declaration on the Rights of Indigenous peoples’ (Liberal Party of Canada, 2015).

As highlighted by Perron-Welch and Oguamanam in Chapter 6 of this volume, the federal government recently issued ‘Principles Respecting the Government of Canada’s Relationship with Indigenous peoples’ (Department of Justice, 2017). These ten principles are described as a ‘significant move away from the status quo to a fundamental change in the relationship with Indigenous peoples’, and ‘a step to building meaning into a renewed relationship.’

The sentiments and intentions expressed are unquestionably vital to a conciliatory way forward between Indigenous peoples and federal, provincial and territorial governments in Canada. However, what these sentiments really mean has yet to be seen and felt. According to Professor Mark Selman, reconciliation has been treated by both government and business as mainly a legal, political and economic challenge, with community protocols regarded as important relational ‘hoops to jump through’ to meet ‘strategic objectives.’ He argues for attention to the ‘significant ethical dimension’ which requires ‘both sides learning to see each other’s reasons for coming to judgement about what is good, right, wise or equitable’ (Selman, Reference 230Selman2016).

There are similar gaps in ABS efforts to sufficiently recognize ethical dimensions beyond legal, political and economic systems when Indigenous cultural knowledge and genetic resources are associated. This chapter attempts to respond to those gaps by taking an applied ethics approach to ABS, drawing on contemporary theory and practice from both descriptive ethics (e.g. ethical codes) and relational ethics (i.e. an emphasis on the nature and significance of relationship).

The goal is to offer timely and relevant contributions to ‘Aboriginal-sensitive ABS’ in a reconciliation framework within Canada. This is achieved through selectively highlighting established ethical codes and guidelines for research involving Indigenous peoples that are founded in a relational approach. In particular, this chapter examines two relevant domains for ABS: (i) national ethics policy for academic research involving Indigenous peoples in Canada and (ii) international ethical standards in the discipline of Ethnobiology. It also describes past efforts to inform the national ABS context through the development of voluntary ABS guidance for accessing traditional knowledge associated with biological/genetic resources (Bannister, Reference Bannister2008).

The commentary herein is intended to complement and expand – not replace – legal and regulatory approaches to ABS. Grounding ABS more explicitly in applied ethics not only builds on a legacy of learning and ethics policy development in Canada, it increases the potential for ABS to become a tool for a more just social, economic, ecological and cultural order in Canada (Hodges & Langford, Chapter 2).

Research Ethics in Canada: CIHR Guidelines and TCPS2

Trudeau’s 2015 statement and the 2017 Principles mentioned above are not just about rights; they are about right relationships, which is the heart of the ethical approach offered in this chapter. In general, ethics can be understood as how we treat one another, or how we relate to one another. Ethics derives from the ancient Greek ethos referring to character or disposition. It has many meanings today, from social uses as a synonym for morality, to formal fields of inquiry within philosophy, to many practical applications of ethical codes and guidelines.

Ethics emerged as an applied academic discipline in the 1960–70s. This was largely catalyzed by unsettling questions raised among scholars and professionals regarding the controversial involvement of their disciplines in technology, sustainable development, human and environmental health, and violations of human rights (Hardison & Bannister, Reference Hardison, Bannister, Anderson, Pearsall, Hunn and Turner2011). The institutionalization of ethics as formal research policy based on ethical guidelines is also a relatively recent phenomenon. In Canadian universities, the earliest policies for governing research involving humans date back to the 1970s for social sciences and humanities (SSHRC, 1977) and the 1980s for medical research (MRC, 1987). However, these early guidelines were seen to have little influence, and most researchers did not even know the guidelines existed (Rocher, Reference Rocher1999).

In 1994, focused efforts were initiated to develop a single unified policy for all Canadian research involving humans. There was notable tension in the policy-making process as a fine balance was attempted between meeting the demands of a diverse spectrum of research while ensuring the protection of human participants in research and avoiding paternalism (McDonald, Reference McDonald2009). The first version was established in 1998 as the Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans (TCPS) (Oguamanam, Chapter 11). However, the section on research involving Indigenous peoples was left in abeyance with explicit recognition that the section was based largely on publicly-available information and insufficient discussions had taken place with representatives of Indigenous peoples or researchers involved in such work (McDonald, Reference McDonald2009).

To address the pressing need for guidance, the Canadian Institutes for Health Research (CIHR) established a working group and process to consult with Indigenous peoples and researchers in Canada and to inform development of the CIHR Guidelines for Health Research Involving Aboriginal People (2007).2 The CIHR Guidelines marked a turn in Canada, offering the first national policy with detailed philosophical grounding and practical guidance for academic researchers working in an Indigenous context. The CIHR Guidelines remained in place until 2010 when they were superseded by a new version of the TCPS (i.e. TCPS2) that contained a twenty-eight-page chapter on ‘Research Involving the First Nations, Inuit and Métis Peoples of Canada.’ A revised version of the TCPS2 was adopted in 2014 with no changes to this chapter.3

Ethics policy expert, Dr. Marlene Brant-Castellano (Mohawk of the Bay of Quinte Band), who chaired the technical advisory committee for TCPS2 Chapter 9, acknowledged tensions inherent in the colonial nature of the TCPS2 language used to codify Indigenous ethical principles. Based on her involvement with the policy-making process, she reframed key terminology to help bridge the policy language used with applications in an Indigenous context. For example, where the TCPS2 uses ‘respect for human dignity,’ Indigenous articulations may include ‘spiritual responsibilities to maintain right relationships’ (Brant-Castellano, Reference Brant Castellano2008, 23). She also shared a more elaborate translation offered by Anishinabek Elder George Courchene, in the context of relationships between researchers and Aboriginal participants in research (Brant-Castellano, Reference Brant Castellano2008, 23):

  • Kindness implies respect for the dignity of the others involved, not dominating or pressing our own agenda at the others’ expense;

  • Honesty involves communicating our principles and intentions as the basis for relationship and ensuring free, informed consent for actions taken;

  • Sharing recognizes that the common good requires give and take by all, with respect for the different gifts that each party brings; and

  • Strength is courage to stand firm for our principles; in some cases, strength is resilience, as in the capacity to bend to circumstance while holding on to important values.

Brant-Castellano (Reference Brant Castellano2008, 23) concluded: ‘[t]ogether, these virtues balance one another to maintain respect for self and others. All parties to a relationship are responsible for maintaining this ethical balance. While words to describe relationships differ, it is possible to see the harmony between the ethics of ‘respect for human dignity’ endorsed by researchers and the ethics of ‘right relationships’ embodied in First Nation, Inuit and Métis traditional teachings’.

Both CIHR Guidelines and TCPS2 contain explicit support for cultural protocols, customs, and community level guidelines and codes of practice. It is considered the researcher’s responsibility to be informed, and to respect these. Article 9.8 of the TCPS2 requires that any inconsistencies between the TCPS2 and community custom are to be identified and addressed in advance of initiating the research, or as they arise. Moreover, Article 9.8 states that the ‘absence, or perceived absence,’ of formally articulated community research codes or guidelines ‘does not relieve the researcher of the obligation to seek community engagement in order to identify local customs and codes of research practice’ (Burelli, Chapter 13). It is in everyone’s best interest to deepen our individual and collective understandings of how to appropriately engage with communities and clarify cultural expectations in research.

The CIHR Guidelines and TCPS2 were both indirectly influenced by a concurrent international process to develop a code of ethics in ethnobiology, led by the International Society of Ethnobiology (ISE). For transparency, the connection between these three policy initiatives is through participation of the author as a member of the respective working groups and advisory committees for each process, namely: as a member of the Aboriginal Ethics Working Group (AEWG) from 2004–07 which developed the CIHR Guidelines; a member of the Panel on Research Ethics-Technical Advisory Committee on Aboriginal Research (PRE-TACAR) from 2005–08 which advised on TCPS2 Chapter 9 (2008); and as Chair of the ISE Ethics Program from 2004–present and facilitator of the ISE Code of Ethics development process. A brief history of the ISE Code of Ethics is provided below.

Ethics in Ethnobiology: ISE Code of Ethics

Ethnobiologists often act as intermediaries between Indigenous and local communities on the one hand, and the apparatus of biocultural diversity research, conservation and development, on the other. As a discipline, ethnobiology is considered over a century old, but in the last couple of decades public interest in Indigenous cultures and plant-based resources has put ethnobiology under a brighter light.

A corollary of their prominent role in biocultural brokering is that ethnobiologists are often in the precarious position of unwittingly facilitating cultural appropriation. The Maya-ICGB provides a case in point. It was with the intention of facing this double-edged role with eyes wide open that the late Dr. Darrell Posey led a charge in the early 1990s to create a Code of Ethics for ethnobiologists worldwide through the International Society of Ethnobiology, (ISE), which he co-founded.

The Code of Ethics for ethnobiologists was ten years in the making. It was rooted in the Declaration of Belem (1998), which resulted from the ISE’s first international congress and is considered the first international declaration to explicitly recognize the expertise of Indigenous knowledge holders and call for fair compensation for use of their cultural knowledge and biological resources (Posey & Dutfield, Reference Posey and Dutfield1996). Posey envisioned subsequent congresses as the vehicle to complete the code of ethics and formalize a position in support of Indigenous intellectual property rights (IPRs) and just compensation of Indigenous knowledge holders (Posey, Reference Posey1990). He called on ethnobiologists to ‘take the intellectual lead’ and appropriate actions ‘toward the development of a new ethic that serves as a model for other disciplines’ (Posey, Reference Posey1990: 97–8).

Until his death in 2001, Posey led an extensive international process involving hundreds of people of diverse cultural and professional backgrounds from across the world to create the ISE Code of Ethics. It was unanimously adopted by ISE members in 2006, with additions in 2008. It remains in place to this day, available in eight languages, and with a commitment to compliance as a condition of ISE membership.4 A number of other ethnobiology societies and environmental organizations around the world have formally adopted the ISE Code of Ethics or used it as a model to develop their own.

The ISE Code of Ethics offers both aspirational and concrete guidance through 17 principles and 12 practical guidelines and compels us to interpret and implement these in relationship with those with whom we are working. What sets the ISE Code of Ethics apart from other guidance is explicit emphasis on Indigenous proprietary rights, cultural responsibilities and interrelationships within a framework of mindfulness – a framework offered by an Indigenous elder from Aotearoa (New Zealand) well before mindfulness became a popularized social and educational phenomenon in North America. Mindfulness is described in the ISE Code of Ethics (2016) as invoking ‘an obligation to be fully aware of one’s knowing and unknowing, doing and undoing, action and inaction.’

The 17 principles underscore a range of deeper considerations needed to give expression to both rights of self-determination and responsibilities of care to past, present and future ancestors and to other sentient beings through stewardship of lands, airways, and waterways. It is in this twinning of rights with responsibilities that are derived from Indigenous worldviews and Indigenous articulations of natural law (Borrows Reference Borrows2002, Reference Borrows2010; Napoleon, Reference Napoleon, Provost and Sheppard2012; Battiste, Reference Battiste2016; Borrows and Coyle, Reference Borrows and Coyle2017) that the understanding of a relational biocultural ethic more fully emerges.5

As noted in Bannister and Solomon (Reference Bannister, Solomon, Young and Brunk2009: 158), the ISE Code of Ethics underscores ‘layers of duty in research that compel researchers to be concerned about the dignity and autonomy not only of individuals, but also of collectives or groups.’ It extends the concept of research ethics ‘beyond just humans to the surrounding environment upon which human well-being depends and includes rights and responsibilities to the living and non-living, and extends into past, present and future.’ Researchers are obliged to consider larger temporal scales (years, decades or generations) for projects and more comprehensive resources (time, funds) to be able to put in place what is needed to understand and meet mutual expectations around the research – such as defining goals, obtaining consent, sharing outcomes and benefits in meaningful and useful forms, and adequately protecting community knowledge and property from misrepresentation or misappropriation.

Some examples of elements in the ISE Code of Ethics that encourage a relational biocultural ethic include:

  • Explicit acknowledgement of Indigenous prior proprietary rights and cultural responsibilities;

  • Encouragement and commitment to supporting active community participation in all stages of research from inception to implementation;

  • Promotion of the concept of ‘educated prior informed consent,’ which recognizes informed consent as an ongoing process requiring an educative component that employs bilingual and intercultural education methods and tools to ensure understanding by all parties involved;

  • Support for the precautionary principle through promoting proactive, anticipatory action to identify and to prevent biological or cultural harms resulting from research activities or outcomes, including publications that facilitate cultural knowledge appropriation;

  • An expectation that researchers incorporate reciprocity, mutual benefit and equitable sharing in ways that are culturally appropriate and consistent with the wishes of the community involved;

  • Conceptualizing research as a cycle of continuous and ongoing communication and interaction, which should not be initiated unless there is reasonable assurance that all stages can be completed;

  • Support to Indigenous communities in undertaking their own research based on their own epistemologies and methodologies is a priority;

  • Underscoring the importance of acknowledgement and due credit in accordance with community preferences for all agreed outcomes (e.g. publications, educational materials, images) including co-authorship when appropriate. This extends equally to secondary or downstream uses and applications, requiring researchers to ensure the connections to original sources of knowledge and resources are maintained in the public record;

  • An expectation to conduct research in the local language to the degree possible, which may involve language fluency or employment of interpreters;

  • An expectation that researchers have a working understanding of the local context prior to entering into research relationships with a community, which includes knowledge of, and willingness to comply with, local governance systems, cultural laws and protocols, social customs and etiquette.

Ethical Guidance for Access and Benefit-Sharing in Canada

Inspired in part by the ISE Code of Ethics, the creation of a national code of conduct to provide voluntary ABS guidance regarding best practices for researchers was proposed several years ago. In a report commissioned by Environment Canada prior to the Nagoya Protocol, Bannister and Haddad (Reference Bannister and Haddad2006) mapped out the policy landscape and recommended how to navigate and complement existing research ethics policies and structures with a national ABS code of conduct in mind. As described in Bannister (Reference Bannister, Wynberg, Schroeder and Chennels2009), such an endeavour would build upon existing research ethics policies related to Indigenous research, institutional structures and research ethics review processes, and an established compliance mechanism within Canadian research institutions that receive funding from the federal granting agencies (i.e. institutional research ethics review of all research involving humans is required before release of research funds).

In 2008, Environment Canada invested in initial efforts to develop comprehensive voluntary national ABS guidance that was consistent with the Convention on Biological Diversity, Bonn Guidelines (2002), former CIHR Guidelines (2007–10), former TCPS (1998) and ISE Code of Ethics (2006). The resulting ‘Draft Access and Benefit-Sharing (ABS) Guidance to Access Traditional Knowledge Associated with Genetic Resources in Canada’ was intended to promote conduct consistent with Canadian values and ethics described in policies and research practices related to Aboriginal peoples in Canada, and in keeping with Aboriginal cultural protocols and Canada’s international obligations (Bannister Reference Bannister2008; Koziol & Oguamanam, Chapter 7; Langford & Hodges, Chapter 2).

The draft ABS guidance was comprised of ‘voluntary recommendations to facilitate appropriate access to traditional knowledge associated with biological/genetic resources,’ noting that ‘appropriate access is not simply facilitated access’ (Bannister, Reference Bannister2008: 11). The draft ABS guidance also sought to promote wider understanding on the nature of traditional knowledge, how it is evolved and held by Indigenous peoples, issues arising from use of traditional knowledge associated with biological/genetic resources, and existing codes, guidelines and protocols that are relevant to ABS. It was intended to help both users and providers establish effective participation and the relationships necessary for a degree of trust, confidence, transparency and legal certainty in the negotiation and implementation of access, and fair and equitable benefit-sharing agreements/arrangements for traditional knowledge associated with biological/genetic resources (Bannister, Reference Bannister2008).

The draft ABS guidance contained ten principles and specific practical guidance on implementation of the principles. The principles included:

  • Mindfulness (evaluation of one’s understandings, actions and responsibilities to others);

  • Self-determination (recognition of existing Aboriginal rights under the Constitution of Canada, treaties and common law);

  • Reconciliation (learning from the past as an impetus for establishing productive and mutually beneficial relationships with Aboriginal peoples for present and future);

  • Respect for Aboriginal relationships to biodiversity (including responsibilities stemming from being granted access to traditional knowledge);

  • Respect for and valuation of traditional knowledge (including inherent and extrinsic values and different meanings based on different worldviews and intentions);

  • Meaningful relationships (transparency, communication, participation and reciprocity);

  • Confidentiality (obligations to maintain confidentiality to protect the integrity of traditional knowledge and prevent harms from culturally inappropriate access and use);

  • Consent (establishing that prior informed consent has been obtained from each community and individual who provides traditional knowledge);

  • Fairness and equity (equitable sharing of benefits derived from use of traditional knowledge, including legal concepts of fairness, distributive justice, and balance);

  • Diligence (a prior understanding of the local community context and broader Canadian legal context when entering into a research relationship with a community).

Specific guidance for implementation of the principles was provided for three phases of research or development activities:

  • Pre-planning and preparation (including initiating community contact, and acquiring necessary background information);

  • Access to traditional knowledge (including community and institutional approvals, and community and individual prior informed consent) and

  • Use of traditional knowledge (including negotiation of mutually agreed terms, equitable sharing of benefits, and reciprocal capacity building).

The draft ABS guidance did not progress through to policy, presumably due to a change in government priorities (Hodges & Langford, Chapter 2). However, the investment in the development process was evidence of recognition within Environment Canada that much research and development based on biodiversity and associated traditional knowledge had been undertaken without the awareness or consent of the traditional knowledge holders, raising significant ethical and legal issues. Moreover, awareness was increasing that real and perceived adverse impacts had resulted, generating suspicion and lack of trust, and sometimes interfering with customary rights and responsibilities related to conservation of biodiversity as part of Indigenous heritage.

The draft ABS guidance responded to an urgent need to understand how traditional knowledge associated with genetic resources could be accessed and used in culturally appropriate and environmentally sustainable ways by those seeking to explore and benefit from biodiversity. The draft ABS guidance aspired to meet this need at the national level, as part of Canada’s domestic and international commitments under the CBD, and as a part of fiduciary responsibilities of the Crown to Indigenous peoples that are affirmed in Canada’s constitution (Bannister, Reference Bannister2008).

The draft ABS guidance (2008), ISE Code of Ethics (2006), Chapter 9 of the TCPS2 (2014) and CHIR Guidelines (2007–10) all attempt to balance the ongoing need for clearly articulating expectations of researchers in ‘how to do research right’ while also promoting and supporting relational dimensions that will create ‘right relationships’ within the research endeavour. All build on ‘best practice’ standards at the time for ethical and equitable collaborative research with Indigenous peoples, with the intention of democratizing and decolonizing the research enterprise. Likewise, all involved extensive time, process, and contributions from Indigenous scholars, researchers and community members. The substance, process and spirit of these endeavours as a whole offer invaluable guidance towards informing a future ABS regime for Canadians within a reconciliation framework – especially when taken alongside other landmark accomplishments and benchmarks for ethical conduct within Canada, such as the work of the Royal Commission on Aboriginal Peoples (1996) and the Truth and Reconciliation Commission (2015) (Perron-Welch & Oguamanam, Chapter 6).

From Ethics Policy to Ethical Practice to Ethical Space

As established, an extensive foundation of relevant research ethics policy developed through robust processes exists and can be used to inform ABS in Canada. However, negotiating the right words to put into policy is one thing; bringing the words to life amid the complexities and challenges of real world ethical practice is another. Increasingly, researchers and Indigenous practitioners collaborating in research have shared their successes, innovations and lessons learned (Burelli, Chapter 13) over the last decade as a result of genuine commitments to understand and implement the spirit and intentions of the guidance discussed. The ‘Working Better Together Conference on Indigenous Research Ethics,’ is an example of a unique national forum in 2015 that critically explored the dynamic intersection of policies, procedures, practices, and philosophies of contemporary Indigenous research ethics.6

A focal point was to delve into the concept of ‘ethical space,’ introduced to Canadian research ethics by Cree philosopher and educator, Willie Ermine (Reference Ermine2000). Ermine referred to ethical space, as a place between worldviews, an ‘abstract space’ created when the intentions of Indigenous and Western worldviews confront each other. These different intentions are ‘guided by a past that includes memory, values, interests, and … actions’ (Ermine, Reference Ermine2000, 18–19). He proposed that ethical space gives us ‘the opportunity to be reflective about personal convictions and how these formed perceptions influence our intentions about the ‘other.’ This confrontation of worldviews sets up the conditions by which negotiation is necessary in order to arrive at ethical interaction.’ Ermine suggests that ethical space offers possibilities for new models of research and knowledge production that are co-developed through respectful negotiation in this cross-cultural interaction.

Ermine’s subsequent elaboration on ethical space (Ermine et al., Reference Ermine, Sinclair and Jeffery2004) significantly informed development of both the CIHR Guidelines and TCPS2 Chapter 9. Ethical space is used as an underlying organizing framework in the CIHR Guidelines to encourage respect for the totality and validity of an Indigenous community’s principles, values and beliefs (Canadian Institutes of Health Research, 2007:17). The CIHR Guidelines underscore the need for ‘a series of stages of dialogue’ about ‘intentions, values and assumptions’ and a ‘continual questioning of “is this ethical?”’ that begins with the conversations prior to designing the research and continues past the point of dissemination of results (Canadian Institutes of Health Research, 2007, 17).

Brant-Castellano and Reading (Reference Brant Castellano and Reading2010, 14) note that both the CIHR Guidelines and TCPS2 Chapter 9 ‘seek to create ‘ethical space’ at the place where communities and researchers meet.’ They go on to say: ‘[d]ifferent worldviews, needs, and expectations between the parties can be expected to present challenges. Dialogue undertaken with an ethical commitment to mutual benefit and good relations can be a powerful instrument to prevent violations of human dignity.’

Ermine (Reference 229Ermine2015) has since described ethical space as ultimately an encounter of spiritual magnitude:

[E]thics has to do with the human spirit – which is unseen, and the unseen is the unknown. … so we have a hard time working with it. Nevertheless, when we look at the spiritual level, a spirit inside each and every one of you can see the spirit of another person. These are the teachings that we go through with our old people, our spiritualists. … if we can do this [relate to one another] at that level, then we have a different paradigm or a different formulation that we can work with. … When we’re talking about the ethics, it’s at this level that things really start to happen, that the critical mass of energies, of spiritual people working together, can produce profound results.

Similarly, Dr. Leroy Little Bear (Small Robes Band, Blood Indian Tribe, Blackfoot Confederacy) explained that ‘existence consists of energy’ in Aboriginal philosophy. He goes on: ‘All things are animate, imbued with spirit, and in constant motion. In this realm of energy and spirit, interrelationships between all entities are of paramount importance, and space is a more important referent than time’ (Little Bear, Reference Little Bear and Leroy2000, 77).

It may be daunting or confusing for many researchers, practitioners and policy-makers to understand or embrace Indigenous philosophies and the existence of spiritual dimensions of ethical space within their research. However, these notions are embedded in the CIHR Guidelines, which refer to ‘sacred space’ as an important concept in understanding Aboriginal world views. Sacred space is defined as

the relationships between the individual and a recognized spiritual entity, the Land, kinship networks (including all plant and animal life) and Ancestors. This relationship is both spatial (where the individual is inclusive of the family and the community) and temporal (where the present generation is inclusive of past and future generations). In this sacred space, there is an interconnectedness founded on purity, clarity, peace, generosity and responsibility between the recognized spiritual entity, the Land and the Ancestors. The notion of sacred space is also key to understanding accountability in the production and transmission of traditional knowledge.

(CIHR Guidelines, 2007, 17–18)

Similar sentiments have been articulated by many Indigenous scholars, elders and traditional knowledge holders and practitioners across the country. For example, Anishnabe Elder and spiritual leader, Dave Courchene (Sagkeeng First Nation), founder of Turtle Lodge (Manitoba), underscores the role and relevance of spirituality from his perspective: ‘[n]atural law is the first rule of spirituality.’ Elder Courchene teaches that ‘natural laws are not negotiable’ and there is a duty and responsibility of guardianship, not ownership because no one owns the land (Courchene as quoted in Bannister, Reference 228Bannister2017, 22–3). Little Bear (Reference Little Bear and Leroy2000) articulates his perspective on the ethical-legal connection: ‘Aboriginal traditions, laws and customs are the practical application of the philosophy and values of the group,’ and ‘the philosophy, the values and the customs in Aboriginal societies are also the law. Law is not something that is separate and unto itself. Law is the culture, and culture is the law’ (Little Bear, Reference Little Bear and Leroy2000, 83). Elder Courchene teaches that spirituality and ceremony are part of the principles and values that need to underlie our biocultural endeavours. At a recent gathering on Indigenous Protected and Conserved Areas,7 Elder Couchene explained that ‘spirituality is involved in everything, and there is ceremony for everything,’ urging us to begin with prayer as ‘an important part of ceremony to evoke spirit and to proceed with respect for one another as human beings.’ He continued: ‘[t]he values and principles found in ceremony are what are missing from the world today. Answers lie in ceremony. A way of life that connects to ceremony accesses a higher intelligence. Ceremony is needed to heal the world and the self. … Solutions come from this place of hope and joy and love. Giving thanks is the first ceremony’ (Courchene as quoted in Bannister, Reference 228Bannister2017, 22–3). Elder Courchene teaches about what he calls ‘going back to the beginning.’ He explains: ‘[t]he beginning is all about spirituality, acknowledging the great mystery that we call the Creator. Spirituality begins with each one of us. It means understanding the importance and influence that spirit can have in our lives. We need to first do our own work in ourselves, to make peace in our own life’ (Courchene as quoted in Bannister, Reference 228Bannister2017, 22–3).

Some deep challenges emerge from the provocative ideas, teachings and perspectives shared by Posey, Ermine, Little Bear and Courchene. An ecocentric perspective that seamlessly integrates law, ethics and spirituality provides a stark contrast to the distinctive ways that all of these notions are understood and practised from the anthropocentric perspective underlying most Western ethical, legal and spiritual traditions and institutions. And while the conceptual shift is significant, putting this conceptual understanding into practice presents further challenges. However, it is through openness and courage to ask and explore these questions that relational and descriptive ethics can offer more to ABS than just inspiration through aspirational guidance on paper.

Ethical Space in Practice

A concrete example of ethical space in practice is found in the work of Elder Dr. Reg Crowshoe (Piikani Nation), a well-known Blackfoot ceremonialist. Elder Crowshoe facilitates ethical space by guiding organizations and projects through new ways of collaborating and decision-making that equally acknowledge distinct, complementary worldviews. A specific and profound example is detailed in a report by the Alberta Energy Regulator (AER, 2017) and described below.

Elder Crowshoe and his wife Rose led an internal corporate process to help AER increase empathy and inclusivity in its regulatory mandate. The goals of the process were to examine decision-making models and create ethical spaces for Indigenous communities and the AER to work together. The process was referred to as a ‘story of two groups divided by a wall.’ One participant explained how, rather than allowing the wall to alienate, the process revealed an equal opportunity for each group to look through a window to better comprehend the other’s customs and worldviews. Only after building this understanding of how to be with one another could the groups walk through a door to meet in an ethical space and to make shared decisions. ‘So often, we think we can charge ahead. To not run to the door takes mindfulness, respect, and discipline. This journey reminded us to not assume, but to listen’ (AER, 2017, vi).

The report concluded that a transformative ethical space is created ‘when we work to understand a perspective that is different from our own, and then examine that understanding with an eye to finding connections with our own perspective, or our own worldview’ (AER, 2017, xvi). It also underscores the importance of linking (rather than merging) worldviews, where linking means joining in ways that do not diminish either, and honour both. ‘This doesn’t mean we take pieces of western cultures and parts of Indigenous cultures and try to blend them together. Rather, we consider both cultures, and when we have enough understanding to see the connections, we are able to create a new, ethical space where we can tell a new shared story that links two systems’ (AER, 2017, 3).

In reference to linking worldviews, Elder Crowshoe warns that ‘incorporation’ and ‘integration’ of Indigenous knowledge and processes with those of mainstream institutions have created ‘cultural confusion.’ He explains that the confusion arises through mixing oral stories with written documents. Written documentation is from the western concept of collecting data, information, and knowledge. The parallel for an oral culture is the information stored in stories – these are the data, knowledge, and understanding of what is happening in the environment (AER, 2017, 45).

Elder Crowshoe explains that the systems need to remain parallel to retain their integrity; the challenge is to find ways to authentically link these parallel systems. He offers concrete step-wise suggestions that involve asking questions to enable linking through ‘cultural translation’ and ‘cultural interpretation.’ A simple example related to meeting protocols and spaces is asking the questions: How is a meeting called together? What is the appropriate gathering place when important decisions need to be made? What protocols are associated with these places? (AER, 2017, 14).

Referring to the window and door analogue, Elder Crowshoe explains: ‘The window is an analogy for the cultural interpretation and translation necessary to know how things work on the other side of the wall, for the other culture. … The door is providing the ethical space for the two sides to have the discussion’ (AER, 2017, 44). One participant concluded ‘what we’re used to is working on the western side and tossing something over the wall every now and then, and then wondering why it didn’t work. …what I see now is that we’re not trying to develop a process with this document … but an opening. We’re trying to open a window on that wall so that we can see and understand the process that is going on. And maybe we can even get to the stage where we can make a door that we can walk through’ (AER, 2017, 44).

The process clearly had a transformative effect at individual and organizational levels. The AER became aware of and accepted the Indigenous oral system of decision-making. AER staff understood that to reach mutually acceptable decisions, they needed to first look through ‘the window’ and observe the ways that decisions are made in Indigenous communities and in a western regulatory framework. Passing through ‘the door’ was an eventual act of bridge-building, linking the two decision-making processes in a respectful way to create a new, ethical space (AER, 2017, 45). Simply put, ethical space is not ‘yours’ or ‘mine’, and not even the commonality we share. Rather, it is the distance between us that Ermine at al. (Reference Ermine, Sinclair and Jeffery2004, 20) call a ‘space of possibility.’ It is a space in which no one has the edge, one that we intentionally choose (or not) to step into, and one in which we can co-create something new and shared together, while retaining our respective autonomy.

Revisiting Ethical Guidance for Access and Benefit-Sharing in Canada

A decade has passed since a national ethical guidance for ABS was under consideration in Canada (Bannister, Reference Bannister2008). Since then, much has evolved in terms of Canadian ethics policy and practice in research involving Indigenous peoples, and Canada has become one of the global leaders in this regard. The relevance of ethics to ABS in Canada has increased exponentially, and there is an obvious opportunity for any ABS regime of the future to draw upon this extensive foundation, some of which has been summarized here.

The opportunity does not just lie in the ethical guidance that is already policy, or in making use of the institutional structures, such as research ethics review systems. There is also an invitation to learn from a decade of intercultural experiences and examples of putting ethics into practice on the ground under these national policies (Burelli, Chapter 13). Increasingly, there is also an opportunity to understand new ethical frameworks such as ‘ethical space,’ as well as new conceptual frameworks, such as ‘integrative science’ and ‘two-eyed seeing’ (as described in Bartlett et al., Reference Bartlett, Marshall, Marshall, Iwama, Hallstrom, Guehlstorf and Parkes2012 but not discussed here) for rethinking the intentions, values and practices that could, and perhaps should, underlie ABS in an age of reconciliation.

A deep examination of what is ‘appropriate facilitated access’ to traditional knowledge associated with biological/genetic resources would reveal something different today than it did a decade ago (Bannister, Reference Bannister2008). This is true not only because government policy and legal precedents have evolved, but because mainstream society’s reference points are shifting as a more accurate account of Canadian historical events is unveiled, Indigenous experts provide new articulations of Indigenous and natural laws, and Indigenous knowledge keepers help us to understand what it means to have responsibilities interlinked with rights to knowledge and genetic resources. In this light, an Aboriginal-sensitive ABS regime in Canada is a logical tool for facilitating ‘right relationships’ based not on facilitating access but on the need to enable shared understandings between different worldviews and the modes of ethical reasoning that they embody.

Beyond Ethics and ABS

This chapter has attempted to build a case for more explicitly infusing ethics into the legal, economic and policy discourses associated with ABS. But the ethical considerations at stake cannot wait for, and will not be resolved by, an ABS regime. The opening quote included in this chapter from the Turtle Lodge Declaration (2017) emerged from a recent gathering of Indigenous knowledge keepers and scientists that took place at Turtle Lodge, Manitoba. The document underscores the destructive trajectory for the earth as a result of our human legacy of anthropocentrism and dominance over the natural world. But, unlike many declarations, this one does not usher an urgent call to the scientific or wider global community to halt or change what we are doing before it is too late.

The Turtle Lodge Declaration is short and clear. It is a personal pledge made by those present, to keep five commitments. These are: to honour past ancestors, take responsibility for future generations, care for all humanity, love and respect all non-human species, and support all youth in learning about stewardship based in natural laws. The summary report of the Truth and Reconciliation Commission says that ‘reconciliation must become a way of life’ (TRC, 2015, 184) and that ‘reconciliation begins with each and every one of us’ (TRC, 2015, 185). If these statements hold true, then like the signatories to the Turtle Lodge Declaration, let’s take them personally.

13 Mapping the Patterns of Underestimated Researcher-Indigenous Collaboration Towards Independent Implementation of ABS Principles

Thomas Burelli

As social researchers affiliated with mainstream institutions – and irrespective of our personal commitments and intentions – we are located at a nexus of power in the dominant society. Thus, our methodological approach should not expand the power and knowledge of the dominant society at the expense of the colonized and the excluded. This is especially important in research involving First Nations.

(Menzies, Reference Menzies2001: 22)

How can researchers become allies with Aboriginal Peoples who are advancing their interests? Certainly, they have a responsibility as researchers to challenge their own racism, biases and assumptions. They also must respect a communities’ right to determine for itself how or if it is going to use TEK, Indigenous Knowledge and western science.

(Leanne Simpson, Reference Simpson1999: 95)
Introduction

In the 2000s, researchers from the French National Research Institute for Sustainable Development (IRD)1 started a research project on the traditional remedies used by Indigenous and local communities in French Guyana to treat malaria (Bourdy and Deharo, 2008: 38). Inspired by other research projects that led to ‘improved traditional remedies’2 (Ibid., 38–9), the researchers from the IRD undertook research in French Guyana hoping to develop a new malaria treatment for which they could obtain a patent (Ibid.).

One hundred and seventeen people from the Indigenous and local communities of French Guyana (Members of the Kali’na and Palikur Indigenous communities, but also Creole people, one Hmong, Brazilians and European people) were interviewed to gather information about traditional recipes (Bertani et al., Reference Bertani, Houël, Stien, Chevolot, Jullian, Garavito and Deharo2006: 155–7). Amongst the information collected were vernacular names of plants, the parts of the plant used, recipes and methods of preparation and administration, dosage, and contraindications (Vigneron, Reference Vigneron2003).

Traditional remedies led to the identification of 27 different plant species used in 45 healing recipes (Vigneron, Reference Vigneron2003). Among the plants identified, the most widely used is Quassia Amara (Vigneron et al., Reference Vigneron, Deparis, Deharo and Bourdy2005). The researchers decided to analyze this plant more thoroughly by reproducing the traditional recipes in a laboratory setting (Bertani et al., Reference Bertani, Bourdy, Landau, Robinson, Esterre and Deharo2005; Reference Bertani, Houël, Stien, Chevolot, Jullian, Garavito and Deharo2006).

The laboratory study of Quassia Amara led to the identification and the extraction of an active molecule that combats malaria; Simalikalactone E (Cachet et al., Reference Cachet, Hoakwie, Bertani, Bourdy, Deharo, Stien and Jullian2009). In 2010, the IRD filed an application for a patent on Simalikalactone E as a malaria treatment. In 2015, the patent was granted by the European Patent Office (EPO).

This could have been the story of a very successful collaboration between researchers and Indigenous and local communities, and an example of a fruitful encounter between scientific and traditional knowledge. In fact, some of the researchers involved in the project went on to win the ‘Innovation-Sud’ award from the IRD in 2013 (Institut de Recherche pour le Développement (IRD), 2013).

However, opposition has been filed with the EPO against the patent (France Libertés, Burelli, Costes, 2015). This opposition is based on concerns regarding biopiracy and the failure for the IRD to meet the patentability criteria of novelty and inventiveness.

According to Vandana Shiva, biopiracy can be defined as:

the use of intellectual property systems to legitimize the exclusive ownership and control over biological resources and biological products and processes that have been used over centuries in non-industrialized cultures. Patent claims over biodiversity and indigenous knowledge that are based on innovation, creativity and genius of the people of the Third World are acts of ‘biopiracy.’ Since a ‘patent’ is given for innovation, a biopiracy patent denies the innovation embodied in indigenous knowledge.

(Shiva, Reference Shiva2001: 49)

In this case, when the researchers from the IRD collected the traditional recipes and the plant samples from Indigenous and local communities in French Guyana, they did not obtain the free, prior, and informed consent of the participants themselves, or from the authorities in French Guyana. Nor did they negotiate mutually agreed terms for the use of the plants and associated traditional knowledge, including equitable sharing of any benefits resulting from subsequent commercialization (Chantal Berthelot et Antoine Karam, Reference Berthelot and Karam2016; Organisation des Nations Autochtones de Guyane, 2016; Rodolphe Alexandre, 2016).

By failing to do any of these things, the researchers and the IRD neglected international law, especially the access and benefit-sharing (ABS) principles defined in the Convention on Biological Diversity, the Nagoya Protocol and in the United Nations Declaration on the Rights of Indigenous peoples (UNDRIP). They also failed to uphold core ethical principles undergirding research involving Indigenous people(s), as will be discussed later in this chapter.

There was a large media campaign in response to the situation pursuant to which an Indigenous association, the local authorities of French Guyana, the deputy and the senator from French Guyana gave their support to the patent opposition (Chantal Berthelot et Antoine Karam, Reference Berthelot and Karam2016; Organisation des Nations Autochtones de Guyane, 2016; Rodolphe Alexandre, 2016). As a result, the IRD’s CEO admitted some ‘blunders’ and ‘errors’ (Institut de Recherche pour le Développement (IRD) 2016c). He also announced the adoption of a benefit-sharing agreement with the authorities of French Guyana (Institut de Recherche pour le Développement (IRD), 2016a, 2016b and 2016c). However, the CEO failed to comment on the adoption of an ABS agreement with the Indigenous and local populations themselves.

At the same time, IRD replied to the opposition filed against the patent. First, the IRD acknowledged the importance of prior informed consent: ‘failure [to respect the prior informed consent of the population] is not consistent with good research practices with local populations’ (Institut de Recherche pour le Développement (IRD), 2016d: 2–3). However, according to the IRD, respect of prior informed consent is conditional: ‘consequently, the absence of PIC when this is required [by State law] will have to be considered contrary to public order or morality … On the other hand … the patent owner maintains that there was no legal requirement for its researchers to undertake the PIC’ protocol. (Ibid., 3).

Regarding the fair and equitable sharing of benefits, the IRD affirmed that ‘the incentives about benefit-sharing in international law are addressed to States. States’ nationals, and particularly their researchers, are only able to apply these recommendations to the extent that national legislation recognize them’ (Ibid., 5).

In other words, IRD claimed that researchers only have to obtain prior informed consent when state law requires them to do so; without a state-sanctioned legal requirement, the IRD was under no obligation to ensure PIC was obtained. Considering the practices described in the Quassia Amara case, this position implies that researchers would have to wait for national legislation to implement ABS principles – that it would actually be dangerous or hazardous for researchers and their institutions to try to implement and to respect the ABS principles of their own accord.

The position adopted by the IRD raises several questions that we would like to explore in this chapter:

  1. 1. Are researchers (among other actors from civil society) right to believe that they have no role to play in the implementation of ABS principles? Is that approach consistent with international law?

  2. 2. Is it dangerous, risky and difficult for researchers (among other actors from civil society) to take actions to implement ABS principles in the course of their projects?

    1. a. Is the approach adopted by the IRD widely shared among the scientific research community?

    2. b. Are there examples of differing approaches which can be observed from elsewhere?

The Quassia Amara case provides us the opportunity to draw more attention to emerging contributions from Indigenous people(s) and researchers to regulate the circulation of traditional knowledge and genetic resources.

Who Is Responsible for the Implementation of ABS Principles?

In this section, I will analyse the role and responsibilities of States, providers and users of genetic resources and traditional knowledge for the implementation of the ABS principles. While States are often seen as the most competent (if not the only) authorities to act, the role and responsibilities of community providers and users are often underestimated. As we will see, this interpretation of states as the appropriate authorities is exaggerated and is not consistent with many approaches such as issuing from international texts, research ethics and the claims formulated by Indigenous and local communities.

The Role and Responsibilities of States

The CBD and the Nagoya Protocol are international texts that bind the signatory States rather than the users and providers of genetic resources and traditional knowledge. But what precisely are the obligations of States under the CBD and the Nagoya Protocol? Both the CDB and the Nagoya protocol can be described as ‘framework-conventions;’ ‘[w]ithout any enforceable legal obligation, the CBD requires additional implementation measures to have a specific and mandatory content’ (Hermitte, Reference Hermitte2006: 351; Burelli, Reference Burelli2012: 58).

According to the CBD, the Parties are not required to adopt and to manage a comprehensive ABS regime. For example, Article 15 (5) of the CBD states: ‘[a]ccess to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.’

A similar approach is adopted with regard to the issue of fair and equitable benefit-sharing in Article 15 (7): ‘[e]ach Contracting Party shall take legislative, administrative or policy measures, as appropriate, (…) with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources.’

With regard to traditional knowledge, ‘[e]ach Contracting Party shall, as far as possible and as appropriate, subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.’

As these articles show, States are bound by objectives rather than by the implementation of specific measures. The adoption and the management of an ABS regime by a State is only one option among others. While this option may appear to some governments to be necessary or even impossible to circumvent, it could seem disproportionate, inappropriate and costly for others.

The strategy adopted by the Nagoya Protocol is to let each State to decide what are ‘the necessary legislative, administrative or policy measures’ to ensure the implementation of ABS principles. The Nagoya protocol is very clear on States’ obligations, for instance Article 5(2) states:

[e]ach Party shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilization of genetic resources that are held by indigenous and local communities, in accordance with domestic legislation regarding the established rights of these indigenous and local communities over these genetic resources, are shared in a fair and equitable way with the communities concerned, based on mutually agreed terms.

A similar wording is employed in Articles 5 (5) and 7 of the Nagoya Protocol.

Therefore, the obligations of State parties are primarily to ensure compliance with the principles set out in the CBD and further developed in the Nagoya Protocol. States can decide to simply adopt control mechanisms. For instance, it could be an obligation for users to prove that they implemented and respected ABS principles. This is the choice made by the European Union, which has focused so far only on the control of users (Burelli, Reference Burelli2015c). In fact, to date, very few States in the world have decided to adopt specific legislation on ABS.

In this context, does the absence of a national ABS legislation mean that users are not required to obtain prior and informed consent of genetic resources and traditional knowledge providers, or that they should not take any action to respect it? Does that mean that users are not required to share equitably the benefits resulting from the projects?

The Underestimated Role and Responsibilities of Providers and Users

In my opinion, the role and the responsibility of users (including academic researchers) and providers (especially Indigenous peoples and local communities) of genetic resources and traditional knowledge are largely underestimated. A widespread interpretation is that users and providers only have to comply with national legislation and are therefore not obliged to respect ABS principles if there is no specific regime implemented by a State. It is also not uncommon to hear various actors (government officials, environmental managers, researchers, representatives or members of Indigenous communities, etc.) defending the idea that users and providers do not have the power or are incapable of implementing effective ABS measures independently. In my view, this interpretation is erroneous, counterproductive and dangerous, particularly for users.

For instance, while the Nagoya Protocol only binds Parties that have signed and ratified it, the text explicitly suggests the role that users and providers can play in the implementation of ABS.

Article 12.3 of the Protocol requires Parties to endeavour to support the development by Indigenous and local communities of community protocols on ABS (Article 12.3 (a)), minimum requirements for mutually agreed terms (Article 12.3 (b)), and model contractual clauses for benefit-sharing arising from the utilization of traditional knowledge associated with genetic resources (Article 12.3 (c)).

More generally, Article 20 of the Nagoya Protocol provides that ‘[e]ach Party shall encourage, as appropriate, the development, update and use of voluntary codes of conduct, guidelines and best practices and/or standards in relation to access and benefit-sharing.’ Thus, the role and responsibility of users and providers are explained and encouraged in the Nagoya Protocol.

In addition to international conventions, non-binding tools have been adopted in order to guide ABS stakeholders, such as (1) the Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Use (Secretariat of the Convention on Biological Diversity, 2002), (2) the Tkarihwaiéri Code of Ethical Conduct to ensure respect for the cultural and intellectual heritage of Indigenous peoples relevant to the conservation and sustainable use of biological diversity (Secretariat of the Convention on Biological Diversity, 2012) or more recently (3) the Mo’otz Kuxtal voluntary guidelines (Décision XIII/18). These three instruments stress the importance of the role of both users and providers in the proper implementation of ABS principles.

Adopted in 2002, the Bonn Guidelines ‘are expected to assist Parties, Governments and other stakeholders in developing overall access and benefit-sharing strategies, and in identifying the steps involved in the process of obtaining access to genetic resources and benefit-sharing’ (Secretariat of the Convention on Biological Diversity, 2002: IV).

According to the Tkarihwaiéri Code of Ethical Conduct: ‘[t]hose working with indigenous and local communities and in particular researchers are invited to take the Code into consideration in their daily work.’ (Secretariat of the Convention on Biological Diversity, 2012: 4).

As explained by the CBD Secretariat, the Mo’otz Kuxtal voluntary guidelines are:

intended to provide guidance for the development of mechanisms, legislation, administrative and policy measures or other appropriate initiatives to ensure that potential users of knowledge, innovations and practices that are held by indigenous peoples and local communities, embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity (hereinafter ‘traditional knowledge’), obtain the ‘prior and informed consent’, ‘free, prior and informed consent’ or ‘approval and involvement’, depending on national circumstances, where appropriate, of these indigenous peoples and local communities, in accordance with national legislation, and that these indigenous peoples and local communities obtain a fair and equitable share of benefits arising from the use and application of such traditional knowledge and for reporting and preventing unlawful appropriation of traditional knowledge relevant for the conservation and sustainable use of biological diversity.

(Secretariat of the Convention on Biological Diversity, 2016: 3)

Indigenous communities have also made claims regarding their relationships with researchers. As reported by Graham Dutfield in 2002, many declarations and statements have been published before and after 1992 (Dutfield, Reference Dutfield and Laird2002). Many more have been adopted since that time. In these public documents, Indigenous communities expressed their needs and claims on several topics such as: ownership and rights over traditional knowledge and resources, prior informed consent, participation, a right to veto over research, the disclosure of research results, benefit-sharing, and restitution (ibid.). In some statements and declarations, Indigenous people(s) call for a moratorium on bioprospecting until the adoption of effective regimes to protect their rights (ibid.). In other words, Indigenous communities are not accepting of a business-as-usual solution. In the absence of a framework to protect their rights, they would rather not collaborate with bioprospecting projects. For example, in Canada, the James Bay Cree Nation experience resulted in an imposition of a moratorium on research by outsiders (Oguamanam & Koziol, Chapter 7; Vodden & Bannister, Reference Vodden, Bannister, Sutton Lutz and Neis2008).

These sources reflect a shift in what is acceptable in research projects involving Indigenous people(s) and their heritage, particularly their traditional knowledge associated with biodiversity. This evolution is becoming more and more difficult to ignore today considering the efforts made to publicize and to explain ABS principles and protocols on conducting research involving Indigenous people(s) (Burelli, Reference Burelli2016).

As a result, it seems impossible or at least very risky for a user not to respect ABS principles by reason of lack of appropriate legislation in the country of collection. Indeed, the issue of biopiracy, defined as an unauthorized access and use of genetic resources and associated traditional knowledge, is now widely known and unanimously condemned (Shiva, Reference Shiva2001). It is no longer morally and ethically acceptable to ignore ABS principles (Bannister and Barrett, 2001; Hardison and Bannister, Reference Hardison, Bannister, Anderson, Pearsall, Hunn and Turner2011).

That is why, in my opinion, researchers and Indigenous people(s) do not have to wait for a national framework to change their terms of collaboration. There is no longer an excuse for ignoring ABS principles, especially for researchers who have the power to take advantage of an absence of implementation. More importantly, researchers have a responsibility for implementing ABS principles based on international law, ethics, morality and calls from Indigenous people(s). As explained by Menzies: ‘[t]o deny the colonial legacy by not adapting our research projects to accommodate Aboriginal concerns is to participate in the colonial project itself’ (Menzies, Reference Menzies2001: 22).

Collaboration in research projects between academic researchers and Indigenous communities has not stopped since 1992. However, some researchers have been unwilling to implement ABS principles and this practice has led to accusations of biopiracy (Burelli, Reference Burelli and Gaumont-Part2013; France Libertés, Burelli, Costes, 2015; Burelli, Reference Burelli2015a). In other cases over the last 20 years, researchers and Indigenous communities have attempted to transform their relationships (Burelli, Reference Burelli2015b). This is particularly true in Canada where one may identify two types of documentary contributions: general frameworks such as ethical codes, and several forms of contractual practices. In my research, I identified more than 100 of these approaches from 1995 to 2014. The frameworks are very scattered and sometimes little is known about them. It is important to analyze their characteristics to identify the best practices for respecting ABS principles.

Diversity of Instruments Developed Locally in Canada

Researchers and Indigenous people(s) share common objectives when jointly and directly involved in research projects on genetic resources and traditional knowledge. Ostensibly, they are interested and involved in regulating the circulation of genetic resources and traditional knowledge. As we will see, in some countries such as Canada, researchers and Indigenous people(s) have seized the opportunity to improve their relationships.

Crucial Contributions from Primary Actors

ABS issues involve a wide range of actors. States can be providers and/or users of genetic resources, but this claim may not be entirely accurate with regard to traditional knowledge. Several categories of users of genetic resources and traditional knowledge include private companies from the biotechnology sector, academic researchers in relation with the public and private sectors, etc. Providers of genetic resources and traditional knowledge include Indigenous individuals, Indigenous and local communities, and gene banks. Laird et al (Reference Laird, Alexiades, Bannister, Posey and Laird2002: 78) note the disagreements which may occur due to the complex and multiple interests involved in ABS issues:

[b]ecause different stakeholders, communities, ethnic groups or nation states have different and even conflicting needs and proprietary claims over genetic resources and associated knowledge, and because many of these stakeholder groups do not necessarily recognize the rights of other stakeholders to represent them of their interests, it is unlikely that there will be much consensus as to what constitutes legitimate or illegitimate appropriation.

According to Santos (Reference De Sousa Santos2002: 478), ABS can be described as a contact zone ‘in which rival normative ideas, knowledges, power forms, symbolic universes and agencies meet in unequal conditions and resist, reject, assimilate, imitate, subvert each other, giving rise to hybrid legal and political constellations in which the inequality of exchanges are traceable.’ Santos (Ibid.) continued, ‘[t]he contact zone between traditional herbal knowledge and modern scientific knowledge of biodiversity is a social field of fierce political and legal disputes.’ More specifically, he describes this contact zone as ‘the time-space where alternative and rival knowledges meet: on one side, the Western-based modern science and technology; on the other side, the local, community-based, indigenous, peasant knowledges that have been the guardians of biodiversity’ (Ibid., 477).

In this contact zone, academic researchers and Indigenous people(s) share a very specific position as far as they are directly involved in research projects on genetic resources and traditional knowledge. They participate in the designing of projects and in setting project parameters. Therefore, they are the very first to be involved in regulating the circulation of genetic resources and traditional knowledge. By pursuing research projects on genetic resources and traditional knowledge, researchers and Indigenous people(s) are contributing to ABS implementation. This does not imply that they are following the requirements of international law or that their contributions are necessarily congruent with it. However, especially in the absence of national legislation, the study of researchers’ and Indigenous people’s contributions are of the utmost importance.

Because researchers and Indigenous people(s) are directly involved in the design and implementation of research projects, we can expect to observe an emergence of innovative principles, tools and mechanisms when these actors take into account ABS principles. We can expect them to translate relevant international principles into practices adapted to their realities. Of course, these contributions can and do still reveal power imbalances between the actors. However, we need first to identify and analyze these contributions before rejecting them. In addition, even if these contributions are not perfect, and even if they would not be turnkey solutions, some of their elements could be useful for other actors on the field.

However, despite their potential, very few people are focusing on these contributions. Some researchers and institutions have drawn attention to the instruments developed by Indigenous communities in Canada (Bannister, Reference Bannister, Bell and Paterson2009; Bell & Paterson, Reference Bell and Paterson2009). Recently, the First Nations of Québec and Labrador Health and Social Services Commission has published the Toolbox of Principles for Research in Indigenous Contexts which gathers several instruments (First Nations of Québec and Labrador Health and Social Services Commission, 2014). Beyond the identification of these experiences, a critical assessment of them, is needed to determine emerging best practices between researchers and Indigenous people(s) and to understand how these models can advance inclusive national ABS implementation.

It is not as if these variegated approaches and partnerships between researcher and Indigenous peoples are unknown to Canada or internationally. However, there is very little information about the operative instruments developed and their potential. Canada has stressed the importance of raising awareness about these contributions and the need to ensure that the rights of Indigenous peoples, particularly the right ‘to grant permission to access genetic resources on Aboriginal land and to establish mutually agreed terms’ are respected (Environment Canada, 2015: 8). For the further development of a federal ABS policy the federal government would ‘[s]eek to raise the awareness of Aboriginal communities with respect to their ability to control access to and benefit from the use of the traditional knowledge associated with genetic resources held by these communities’ (ibid.).

Environment Canada is working to gather more information about the contributions developed in Canada and has referred to the possibility of sharing them with users and providers. It has directly stated a commitment to ‘[p]rovide examples of systems that have been applied by Indigenous communities in Canada and elsewhere to control access to and to share in the benefits from the use of traditional knowledge associated with genetic resources and, where appropriate, explore options to develop related capacity’ (ibid., 8).

The instruments developed by Indigenous communities and researchers in Canada are scattered throughout the country. This chapter shares my work in gathering and mapping a number of these instruments. The primary goal of this research is to determine the partnerships’ actors and the reach or limitations of their experiences as evident from the instruments’ text.

Types of Instruments Developed in Canada

I started with identifying instruments developed since 1992, the year of adoption of the Convention on the Biological Diversity. In this Convention, the ABS principles are recognized, arguably, most prominently, at the international level. Parties to the Convention are asked to take action to ensure that these principles are respected. This does not mean that before 1992 researchers did not have to respect the prior informed consent of the providers of genetic resources and traditional knowledge, or that no benefit-sharing was required (Burelli and Lafargue, Reference Burelli and Lafargue2017). However, after 1992, the expectation is that we could identify more instruments, given that ABS became more widely discussed.

Through my research, I identified more than 120 instruments3 developed in Canada, related to the use of traditional knowledge in general or traditional medicinal knowledge specifically. Within that context, I identified two main types of instruments: first, general frameworks developed by Indigenous people and their institutions and by actors from the academic community; second, contractual practices, models or signed contracts. For the purposes of this chapter, I will employ a few examples from the larger dataset to illustrate the main principles identified in the instruments. The instruments are anonymized in order to protect the participants who shared confidential information and also because the final list of instruments has not yet been released.4

General Framework Instruments

General frameworks are instruments designed to frame multiple research projects and to give guidance to collaborative agreements. These general frameworks are applicable to a specific territory, a specific people, and/or to specific projects. I further divide general frameworks into (a) those written by universities and (b) those written by Indigenous institutions. General framework instruments include policy frameworks, research protocols, code of ethics or statements. Guidance documents take the form of guides/guidelines, research principles, or tool kits. One example of a guidance document tool kit is the Toolbox of Principles for Research in Indigenous Contexts published by First Nations of Québec and Labrador Health and Social Services Commission (First Nations of Québec and Labrador Health and Social Services Commission, 2014).

A majority (49/61) of the general frameworks adopted throughout Canada since 1992 (earliest 1996 and most recent, 2016) were adopted by Indigenous actors, while the rest (12/61) were developed by academic researchers. Indigenous actors which have adopted general frameworks include representative political organizations, representative sectorial organizations, tribal councils, and First Nations. The wide scope of Indigenous actors which have adopted general frameworks demonstrates the importance of framing the relationships with researchers at every level of Indigenous governance throughout Canada. General frameworks have addressed several topics such as: ownership and rights over traditional knowledge and resources, prior informed consent, participation, a right to veto over research, the disclosure of research results, benefit-sharing, and restitution.

Although it is surprising that only 12 general frameworks have been adopted by the more than 200 colleges and universities throughout Canada, some of the general frameworks adopted by academic researchers have a very large scope. Indeed, since 1998, the Three Research Councils of Canada (the major federal funding agencies) have developed several ethical frameworks with wide scope of application. Specific principles for research involving Indigenous peoples have been gradually defined in these frameworks (1998, 2007 and 2010) (Oguamanam, Chapter 11; Bannister, Chapter 12). Some universities have also adopted their own ethical framework, which would apply to any research projects associated with the university.

Contractual Practices

Contractual practices adopted throughout Canada since 1992 can be further divided into (a) consent forms to be signed between researchers and participants and (b) research agreements. I identified 15 consent forms and 6 research agreements based, at least partially, on the use of traditional medicinal knowledge. It is interesting to note that Indigenous actors are more likely than other actors to make such contractual practices public. While many research agreements and consent forms are publicly shared by Indigenous actors, very few examples are publicly shared by academic institutions.

The Innovative Principles and Mechanisms Included in the Instruments

The remainder of this chapter will focus on four priorities for ABS, extracted from my analysis of the four types of instruments outlined above. The four priorities are:

  1. 1. Free, Prior and Informed Consent

    1. a. Ongoing Consent

    2. b. Right to Withdraw Consent

  2. 2. Indigenous Participation in Research Projects

  3. 3. Rules of Use on Material and Associated TK

  4. 4. Benefit-Sharing

Examples of principles or mechanisms extracted from each type of instruments have been included for each of the four topics that I am discussing. These examples do not capture the diversity of principles and mechanisms which can be observed in each of the categories of instruments. However, they give us an idea of their potential for implementing ABS principles.

Free, Prior and Informed Consent

The free, prior and informed consent principle (FPIC) stems from the notion that researchers and Indigenous participants should be partners in conducting research, so they must share power equally. For Leanne Simpson, this is a simple pre-requisite for balanced and fair relationships: ‘including Indigenous peoples (and therefore Indigenous world views, values, morals, ethics and TEK) in a fair and equitable manner means sharing power equally’ (Leanne Simpson, ibid.; Bannister, Chapter 12). FPIC is essential for Indigenous communities to be able to determine for themselves how they will use and allow access to TK (Simpson, Reference Simpson1999: 94). Therefore, consent is often defined in the Canadian documents as an ongoing process that animates the entire research project and that may be withdrawn if the research is not conducted in a manner consistent with the equality principle.

Examples of FPIC Provisions

Indigenous general framework‘Researchers should “[s]hare with the communities, information about the purpose of their research, its methods, and findings throughout the life of the project”.’
Academic general framework‘A community or an individual has the right to withdraw from the research at any point.’
Consent form‘I will be consulted from time to time during the course of the research to make sure that I still wish to continue my participation.’
Research agreement‘The right to withdraw without repercussions will be made clear to participants.’
Rules on Use of Research Material

Conditions of use of research material were included in many of the analyzed instruments. This issue is not well-developed in the CBD and Nagoya Protocol regimes. In fact, the tools developed by Indigenous actors and academic researchers often go beyond the principles recognised at the international level.

Most instruments I analysed required full transparency about the uses of research material. In some, there were procedures in place for handing of research material back to the supplier if a participant decided to withdraw consent. In some cases, it is recognised that the data should be returned or destroyed.

In some instruments, secondary uses (other than those initially agreed upon) are not authorized without the consent of communities and their members. For example, if a community authorized the use of plants and traditional knowledge for the treatment of malaria, the researchers would not be allowed to use the material to conduct research on cancer treatment without getting renewed consent from the participating community.

Some instruments also addressed the issue of transfer of material to third parties. This refers to situations in which an initial user wishes to share the collected material to a third party not mentioned in the initial contract, for a similar use or for a different one. While some instruments require that every user be known, others explicitly forbid such transfers.

Examples of Provision on Rules for Use of Research Material

Indigenous general frameworks‘An individual participant has the right to withdraw from the research process at any point. If this occurs, all information already collected on the individual should be destroyed or returned to the individual.’
‘No research data is to be sold, transferred or reused without the prior approval of the [competent authority].’
Academic general frameworks‘Transfer of data and biological samples from one of the original parties to a research agreement, to a third party, requires consent of the other original party(ies).’
Consent forms‘I agree that any material recorded to date will be returned to me in full if I decide to withdraw from the interview.’
Research agreements‘The Academic Institutions shall use any Confidential Information and the Plants and extracts solely as described in the Research Protocol.’
‘The [name of university] will not, without the prior informed consent of the [name of the indigenous community]: use or permit the Traditional Knowledge to be used by any other person or body other than for the purposes of or incidental to the Traditional Knowledge Project. ‘
Right to Review and Access Data

One of the most interesting and innovative principles which can be found in instruments throughout Canada is the rights of the participants regarding use of collected data before its publication. Many instruments require that the raw data and/or the results of the projects must be submitted to the participants before any publication. Participants then usually have a right to review the data, to comment on it and to ask for some elements to be excluded from publication. This is a way to avoid confidential and sacred elements from being improperly disclosed or published without situating the data in its proper cultural context. This practice reflects the principle of ‘data sovereignty’ which Oguamanam explored in greater depth in Chapter 11.

It is recognized in most of the instruments that the data and results should be shared with the participants and their community in plain language and, where possible, in the language of their choice.

Examples of Provisions on Right to Review and Access Data

Indigenous general frameworks‘Researchers have an obligation to provide the [name of the people and the institutions of the community to be consulted] with an opportunity to review the research results and provide comments before the final product is completed.’
‘That once the research is complete, the data will be disseminated to individual participants and participating communities in such a manner that is comprehensible and useful to those individuals.’
Academic general frameworks‘Researchers should afford community representatives engaged in collaborative research an opportunity to participate in the interpretation of the data and the review of research findings before the completion of the final report, and before finalizing all relevant publications resulting from the research.’
Consent forms‘Each elder will be given the opportunity, within a two-month period, of providing corrections, revisions, deletions, or additions, which will be incorporated into the field notes.’
‘We will provide the [name of the indigenous community] with one copy of the original draft and final draft of the information documented. This include original and typed field notes, audiotapes, videotapes, photographs, Ph. D. dissertations, and journal articles.’
Research agreements‘The research partners must first approve any communication of results, including written or oral presentations.’
Benefit-Sharing

One of the non-monetary benefits prescribed in some Canadian instruments is publication acknowledgement. The contributions of participants may be recognised in the publication where their consent is given and with due respect to confidentiality requirements. In some cases, the participants may be recognised as co-authors.

Other benefit-sharing arrangements prescribed by instruments addressed intellectual rights developed as a result of a project. In most of the instruments dealing with this topic, it is stated that intellectual property rights should be negotiated and shared with the communities and their members. Some instruments go as far as to assign co-ownership to any future inventions which may result from the research project.

Alternatively, some Indigenous actors reject the notion that intellectual property rights may be asserted over natural elements and so the instrument explicitly forbids assertion of intellectual property rights over the research material.

Examples of Benefit-Sharing Provisions

Indigenous general frameworks‘From time out of mind, [name of the First Nation] have gone into the forest to gather plants, soils and creatures for food, for healing and for spiritual purposes. As a result of this inherent relationship we have a proprietary interest and right to all species on our traditional territory, and to our cumulative knowledge of their preparation and use, as part of our property and cultural heritage. We will take steps to prevent any assertion of intellectual property rights to the genetic integrity or genetic potential of biotic systems in our ancestral territories.’
‘Any publication using TK must acknowledge TK holders and their contribution and include TK holders as joint authors where appropriate.’
Academic general frameworks‘Researchers will not exploit informants, or the information gathered from the research, for personal gain or aggrandisement. Where possible and appropriate, fair return should be given for participants’ help and services, which should be acknowledged in the final output.’
Consent forms‘Some of the research associated with this project may lead to a commercial product or service. If, and only if, your information may be used to support this component of the larger research project you will be asked to sign a separate consent form.’
Research agreements‘Any Joint Intellectual Property is deemed to be created, discovered or developed by using (…) Traditional Knowledge. Therefore, the Participating [First Nation] (…) for the benefit of the [First Nation Peoples] of their respective communities shall be undivided co-owners of the concerned Joint Intellectual Property, together with the [academic institutions] whose Researchers contributed as inventors to the creation, discovery or development of the concerned Joint Intellectual Property.’
Conclusion

As we have seen, the impression that researchers and Indigenous peoples are oblivious of ABS implementation is not accurate. However, some researchers, as we have seen with the French Guyana case, tend to exploit the lacuna in the law. Where there is no clear ABS law at state or domestic level, they insist that they have no obligation to observe ABS principles in their conduct. By ignoring ABS principles, they can access genetic resources and traditional knowledge and can potentially use them without limitations, willingly excluding Indigenous communities from the benefit-sharing process. This approach from researchers is inappropriate as it reflects an abuse of their position of power.

Researchers have a responsibility to take into consideration the ABS principles and to participate in their implementation, regardless of the actions or inactions of States (Menzies, Reference Menzies2001: 22). By refusing to incorporate ABS principles, methods and approaches, or by ignoring the importance of doing so, researchers participate in biopiracy (Shiva, Reference Shiva2001; Robinson, 2011) and perpetuate colonial practices (Menzies, 2011: 22).

On the other hand, this chapter has shown that some actors from the scientific community and Indigenous people(s) are developing and mobilizing their own tools such as codes of ethics and contracts to try to move toward more respectful and equitable relationships. Canada is a very rich case study to observe these contributions, which are often underestimated and under-valued. Therefore, some of these studies help debunk the questionable impression in many quarters that ABS is very complicated process to implement in the Canadian context (Hodges and Langford, Chapter 2). There is evident capacity of researchers and Indigenous people(s) to actively contribute to the transformation and improvement of their relationships. In fact, many examples of ethical frameworks and contractual practices are already available and could inspire people and institutions. We are convinced that while waiting for hypothetical national legal frameworks, these contributions can be very useful and can at least inspire all stakeholders at the ABS table (Phillips, Chapter 9).

Some of these contributions from Canada were used in 2014 in French Polynesia to develop the first French code of Ethics to deal specifically with research projects involving Indigenous people and their cultural heritage. This code has been adopted in 2015 by the Creole-CNRS centre and it has been included in the annexes of the centre’s regulations.

The instruments I have identified constitute a rich source of information on the relationships that researchers and Indigenous people(s) wish to develop (in the general framework) but also on the relationships they have established for more than twenty years now. These instruments should not be neglected or underestimated as they constitute critical stepping stones or building blocks for the eventual implementation of national ABS principles in the Canadian and other contexts. This is not to suggest that these instruments could not be subjected into more rigorous scrutiny on an individual and contextual basis. They do, however, constitute useful stop-gap measures and ought to be acknowledged as representing pragmatic steps and evidence of current practices that can shape future progress on an Indigenous-sensitive ABS policy in Canada.

14 ABS, Reconciliation and Opportunity

Chidi Oguamanam

Contrary to conventional assumptions, ABS is not an issue for developing countries alone; it besets developed and developing countries alike. Neither is it a subject that is easily limited to the simplistic binary of provider and user country; or of Indigenous and non-Indigenous knowledge systems; of biodiversity-rich and genetic resource barren countries. ABS is a strategy that harmonizes the complementary strengths of every strand in the process of knowledge production, for example the ‘scientific’ and traditional/Indigenous knowledge; the local and the global, etc. Every country is a stakeholder in ensuring that the process of accessing genetic resources and various knowledge systems associated thereto are adequately integrated into the complex contexts for the evolution of knowledge and its scaling up for a just and equitable benefit sharing system.

In a way, therefore, ABS is about equitable knowledge governance as an aspect of social justice. Those are worthy goals in and of themselves. But perhaps more importantly, they have ramifications for sustainability in various contexts. They include the conservation of biological diversity, enhancing the standard of living of Indigenous peoples and Local Communities (IPLCs), sustaining their knowledge systems and worldviews as aspects of their self-determination, not to mention optimization of insights and maximization of opportunities for innovation, collective wealth creation and the management of environmental challenges that face us now and in the future.

A deliberate and genuine ABS regime at both global and national levels opens wide-ranging opportunities for knowledge production on a sustainable scale across various sites of innovation. Studies by the ABS Capacity Development Initiative and Peoples and Plants International elaborate on a range of sectors, as a practical matter, where demands for access to genetic resources and associated traditional knowledge raise significant ethical challenges for researchers and industries which can be mediated by the ABS process. Those sample sectors are botanical, agriculture, food and beverage, pharmaceutical, biotechnology and cosmetic industries. ABS can support effective knowledge governance in the botanical industries which focus on the use of plant-based products for medicines and health promotions. It is an industry that produces and markets a wide range of products under the designations of ‘herbal medicines, dietary herbal supplements, phytomedicines and phytotherapeutic agents’ (Laird and Wynberg, Reference Laid and Wynberg2015, 3). Experts affirm that ‘unlike pharmaceuticals, botanicals are not highly purified or chemically modified medicines and typically do not involve identification of active constituents and characteristics of biological activities’ (ibid.) in the ways they are applied by ‘Indigenous knowledge practitioners.’

ABS is implicated in the uses of genetic resources or seeds (most of which are curated and conserved as part of global gene pool by IPLCs) in commercial agricultural production, through conventional breeding, various forms of direct or indirect genetic modifications and marker-assisted, trait or variety-enhancing applications and diverse manners of crop and environmental protection or control in agricultural production. Similarly, ABS is relevant to the food and beverage industry. Dependent on genetic resources for food and agriculture which are supported and sustained substantially by traditional agricultural knowledge, innovations and practices of IPLCs, the industry operates at various intersections – ‘agriculture, processing, distribution and retail’ – in the food and beverage space. ABS is relevant to enhance and advance collaborative knowledge production in food and beverages subsectors relevant to ‘novel and functional foods, biotechnology, nanotechnology, bio-processing’ (Wynberg, Reference Wynberg2015, 2).

In the pharmaceutical industrial sector, analysts note the progressive decline of interest in natural products research generally and especially in that sector. But available records indicate that between 1981–2013, on an annual average, 31% of new drugs that entered the market were natural products (Laird, Reference Laird2015). Drug discovery based on natural products remains an important cornerstone of the pharmaceutical industry. Notwithstanding the perceived declining influence of genetic resources and traditional knowledge in drug manufacturing, stakeholders in the pharmaceutical industry now recognize that ABS protocols are integral aspects of optimizing R&D and knowledge production in that sector on an ethical and sustainable basis.

Perhaps the sector that has magnified the ABS imperative the most is the biotechnology sector, which consists of a diverse range of evolving interfaces of technology with biological systems and various forms of living organisms and their derivatives for applications in healthcare, agriculture and industrial biotechnology as well as climate change or environmental mitigation and control. The ABS imperative is relevant in this sector not only because of the interconnectedness of knowledge systems (including traditional knowledge) as a continuum but because of the stewardship of IPLCs in the conservation of global genetic pool. According to Sarah Laird, ‘Industrial biotech is growing rapidly due to advances in science and technology, concerns over climate change and energy security, and growing interest in more efficient manufacturing processes that use less energy, produce less waste, and result in purer products’ (Reference Laird2015, 2). Stakeholders are wont to access genetic materials relevant to industrial biotechnology from global genetic reservoirs mostly curated by IPLCs through their complex knowledge systems and now conveniently said to be in the public domain by their users (Oguamanam, 2018).

Recently, industrial biotechnology interests focus on unique ecosystems, such as ‘areas with high species diversity, extreme environments, and unique ecological niches’ (Laird, 2015a, 2). The value of such extreme environments and ecosystems, which is often the natural turf of many Indigenous peoples in Canada and elsewhere, for bioprospecting and research is further exacerbated by the ecological unravelling incidental to climate change and the consequential unsettling of hitherto pristine marine ecosystems and other unique and extreme climatic conditions. The quest to adapt and or mitigate the disruptive effects of climate change requires exploring all epistemic insights and options, including those from the traditional knowledge of IPLCs. It is an approach that further underscores the ABS imperative notably in the context of climate change.

In Canada, the rapidly melting sea ice in the Artic and sub-Artic regions has since opened new prospecting dynamics both in extractive industry sectors and in areas of novel genetic resources in ways that draw traditional knowledge and insights of the Inuit and other stakeholder Indigenous communities into increasing relevance and urgency for a functional ABS regime (Dylan, Chapter 5). As evident in Oguamanam and Koziol’s contributions in Chapter 7, biopiracy is already a reality in Canada. It is no longer a reference to what is happening in far-flung Indigenous and local communities in the global south. Many Indigenous peoples are having to contend with uses of genetic resources endemic to their natural environments and communities and their associated traditional knowledge by third parties within and without with little or no reference to them. That trend is most likely to increase as a corollary to climate change intensification and its inherent opportunities.

However, in Canada as elsewhere, there are demonstrable examples throughout this book (Bannister, Chapter 12; Burelli, Chapter 13; Oguamanam & Koziol, Chapter 7) of how researchers and Indigenous peoples have engaged in creative forms of partnerships that express sensitivity to principles related to ABS, even though those can benefit more from stronger ethical consciousness. Despite these developments, existing and formal legal regimes relevant to ABS remain inchoate, isolated and deficient (Dylan, Chapter 5). These partnerships are patchworks; often, of ad hoc dimensions. They have yet to account for the realities of the interface of genetic resources and associated Indigenous or traditional knowledge as envisaged under the Nagoya Protocol. Meanwhile, as the Nagoya Protocol continues to be embraced and implemented in regions (e.g. Regulation EU No511/2014) and across countries,1 a range of new opportunities as well as challenges for its implementation confront countries such as Canada that have yet to seriously or fully embrace ABS.

Notwithstanding Canada’s current lethargy on the domestic implementation of ABS, unbeknown to many, the country was once one of the leading champions of ABS at the early onset of the international negotiations on the Nagoya Protocol. Within that context, as elaborated by Tim Hodges and Jock Langford in Chapter 2, Canada was committed to full recognition of Indigenous peoples as vital partners on ABS. The country later dropped the ball on the ABS file for a number of reasons which, Hodges and Langford argue, include the complexity of the subject matter, ‘political disinterest, entrenched interests, senior bureaucratic inertia and fundamental failure to see Canada as both a user and provider of genetic resources and traditional knowledge.’ Yet, globally and within Canada, stakeholders continue to advance the implementation of ABS which is now the received wisdom of responsible research, effective biodiversity conservation strategies, ethical bioprospecting, and corporate best practices. Canada can no longer afford to ignore these developments.

Access and Benefit-Sharing in the Shadow of Reconciliation

Perhaps there is no better time and context to realistically engage ABS in Canada than now, for a number of reasons. The first is a point already made above – climate change, rapidly melting sea ice and the resulting new dynamic in Canada’s Northern regions and their implication for bioprospecting and disruptive effect on Indigenous ways of life. In addition, as a related matter, another reason is the reality of extant flashpoints of biopiracy within Canada in which Indigenous peoples’ knowledge and uses of genetic resources are already the target of appropriation. With the continued impact of climate change being felt across the confluence of ecological and Indigenous ancestral homelands in Canada, new opportunities for the extractive industries have continued to open up but little or no consideration has been given to the potential or real ramifications for dealings in genetic resources and associated traditional knowledge in these contexts.

Perhaps more than the circumstances above, the most opportune time or moment to take ABS seriously is the ongoing policy of reconciliation with Indigenous peoples as led by the current federal government. Two important instruments, among sundry others, relevant to the reconciliation agenda are crucial to advancing ABS in Canada as a complementary part of reconciliation. They are the 2015 Truth and Reconciliation Commission of Canada’s Calls to Action (TRC Calls to Action, 2015) and the 2017 Department of Justice’s Principles Respecting the Government of Canada’s Relationship with Indigenous peoples (Department of Justice, Reference Canada2017). A lot has been written on these two documents and related others in the preceding chapters (e.g. Hodges & Langford, Chapter 2; Nichols, Chapter 4; Perron-Welch & Oguamanam, Chapter 6). Despite its historic reluctance, in 2017 Canada finally withdrew its decade-long reservation against the United Nations Declaration on the Rights of Indigenous peoples (UNDRIPs). Pursuant to the TRC’s Calls to Action, proclamations from the federal government indicate a willingness to ‘breathe life’ into Section 35 of the Constitution by using UNDRIPs as a framework for activating and unpacking Section 35 rights. That approach was inspired by the TRC’s Calls to Action and reflected in the enunciated principles respecting the Government of Canada’s relationship with Indigenous peoples.

In a nutshell, Section 35 of the Constitution Act, 1982 guarantees existing Aboriginal rights and such rights that were preserved (i.e. not extinguished) or those conferred in treaties signed between Indigenous peoples or communities and the Crown before the adoption of the Constitution Act. That section ranks perhaps as one of the most contested, litigated and interpreted constitutional texts in Canada’s jurisprudence. Over the years, Canada’s judiciary has supervised progressive and elaborate enunciations of those rights in direct and indirect ways2 notwithstanding procedural difficulties and entrenched inequitable power relations that have persisted to deny Indigenous peoples’ determined efforts to realize the promises of those rights, which have remained frustratingly elusive (Nichols, Chapter 4). The courts have affirmed that Section 35 rights (rights that were never extinguished) are rights in continuum and essential to the sustainability of the Indigenous peoples of Canada. In essence, those rights do not depend on formal legal recognition in Canada, directly or in delegation. Included in the universe of those rights are recognition of the identities of Indigenous nations as distinct societies, with their own world views, cultures, practices, legal and political traditions, authorities, and complex relationships of interdependence and understanding with natural forces and their own ecological and environmental ethics, to mention just a few.

A persistent and thorny aspect of Canada’s relationship with Indigenous peoples revolves around the scope and interpretational approach to Section 35 of the Constitution Act and, by extension, the status of Indigenous peoples in the Canadian federation. Despite progressive judicial intervention, the dominant colonial approach remains fixated in favour of Canadian sovereignty and juridical competence to the exclusion of Indigenous sovereignty and meaningful self-determination. The result is the continued subservience of Indigenous peoples with little regard for the principle and integrity of true, nation-to-nation relations. Eurocentric concepts – like the doctrine of discovery and terra nullius, which denigrate and deny Indigenous peoples, their lands, identities, and status and construe them as subjects of European sovereignty and objects of paternalistic intervention – frame the entire Canadian-Indigenous relationship.

The 2015 TRC’s 94 Calls to Action are revolutionary as a major catalytic roadmap for reconciliation. In its core essence, among other considerations, reconciliation is less a literal expression than it is an important legal initiative, and much more (Bannister, Chapter 12). It harps at the fair and equitable terms of engagement between Indigenous and non-Indigenous Canadians. In a way, it is a charter of respectful and mutual co-existence in a form of shared or collaborative sovereignty among equal partners, which is how Indigenous peoples have always understood the treaty-making process. As recalled by Perron-Welch and Oguamanam (Chapter 6), Binnie, J., argues that with a framework of reconciliation, a concert of Indigenous and non-Indigenous Canadians results in ‘a sovereign entity with a measure of common purpose and united efforts. It is this entity, as inheritor of the historical attributes of sovereignty, with which existing aboriginal and treaty rights must be reconciled’ (Mitchell v. MNR, para. 129). In essence, reconciling pre-existing and, indeed, continuously evolving Indigenous societies and ways of life and attendant rights with the sovereignty of the Crown is the essence of reconciliation (R. v. Van der Peet, 1996, para. 31). The TRC’s Calls to Action were unequivocal regarding the anchoring of reconciliation on nation-to-nation relationship, and rejection of all vestiges of colonial doctrines and principles that hitherto defined the Crown’s relationship with Indigenous peoples. It endorsed a full-fledged and equal partnership model of the Canadian federation that recognizes Indigenous laws and legal traditions and a respectful Crown-Indigenous treaty and overall relationship on the basis of mutual respect, and shared commitment in maintaining that relationship on a sustainable and equitable basis.

An important aspect of reconciliation is giving full weight to pre-existing Indigenous sovereignty over their land and resources, including their legal traditions, knowledge systems, and the customary practices and bundles of relationships that undergird their inherent rights. Those include rights to genetic resources and the practice or applications of associated Indigenous knowledge as pre-existing Indigenous rights which are now at the core of ABS. The rights are fully affirmed in the UNDRIPS, which the TRC’s Calls to Action have benchmarked as a critical framework or roadmap to reconciliation. Interestingly, as indicated, the 2017 Ten Principles to undergird the Government of Canada’s relationship with Indigenous peoples builds on the TRC’s 94 Call to Action and packs fundamental aspects of UNDRIP, unequivocally sanctioning Indigenous peoples’ rights to self-determination and self-government while endorsing reconciliation as the central objective of Section 35 of the Constitution Act.

Despite the skepticism that can sometimes cloud Canada’s ongoing reconciliation mantra – justifiable given the legacy of broken promises – the reconciliation blueprint dovetails neatly with the existing international legal architecture on Indigenous rights. ABS is but one of the nascent and fledgling aspects of international initiatives that engage IPLCs’ rights. This book has highlighted aspects of the inherent difficulty of building an ABS regime in a complex, colonial, federal structure with a complex and often dark history of relations with Indigenous peoples. Interestingly, however, the current reconciliation initiative provides us with a pragmatic and comprehensive framework for the potential realization of ABS. Markers of that framework include the work of the Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission’s Calls to Action, the Ten Principles and the Prime Minister’s Working Group of Ministers charged to ensure the federal Crown’s devotion to its obligations to Indigenous peoples and to the UNDRIPS.

The expressed expectations of Indigenous peoples in the ABS Canada focus groups (Oguamanam, Phillips, Nichols, Koziol, Reference Oguamanam, Phillips and Nicholls2015, Reference Oguamanam and Koziol2016, Reference Oguamanam and Koziol2017)3 that ABS can be implemented in a condition that is not only sensitive to their worldviews, but one that recognizes their sovereignty and rights to self-determination and self-government, including their legal systems and traditions in a framework of collaborative federalism are sentiments that are amply captured by the aforementioned documents. It is instructive to point out that sharing, which is a defining element of ABS is one of the central characteristics of Indigenous worldviews and relationships. For Indigenous peoples, on its surface, the undergirding rationales for ABS invoke natural sentiments in sharing as well as justice and equity. But for ABS to make any sense, Indigenous peoples have to be genuine partners in its implementation by leveraging, in an unfettered manner, all the Section 35 rights pursuant to and within the framework of the TRC’s Calls to Action and the roadmap of reconciliation. Thus, Canada has never had a more opportune moment and a better political context to energize the ABS file which, as we have seen, is logically integral to reconciliation.

ABS: Strategies, Challenges and Opportunities for Canada

In the shadow of the reconciliation project, Canada and, certainly, many stakeholder countries need a more dedicated strategy to give effect to ABS on many fronts. First, administratively, as Tim Hodges and Jock Langford (Chapter 2) argue, there is an urgent need for interdepartmental coordination on ABS and for the continuing engagement and participation of Indigenous peoples and their organizations. They recommend that each department at federal, provincial/territorial and even Indigenous levels of government must develop a threshold or trigger for ABS concerns and must be able to coordinate horizontally and, certainly in any direction for that matter, to ensure that ABS is realized and not undermined. One of the oft-cited obstacles to implementation of ABS is the ubiquitous and cross-cutting nature of the subject matter. In Canada alone, ABS could be engaged in one degree or another across diverse departments, including Crown-Indigenous Relations, Indigenous Services, Global Affairs, Trade, Industry, Justice, Environment and Climate Change, Heritage, Natural Resources, Forestry, Fisheries and Oceans, Agriculture and Agrifood, Health, etc. Yet, ABS is not the only subject matter that is dispersed across a wide range of government departments. Coordination happens on other files – what is desperately required is strong and sustained political will and leadership.

Second is the case for capacity building (where there is none) and capacity development (where existing capacity is inadequate) on ABS.4 Capacity building and capacity development do not only arise with regard to IPLCs but also they are critical needs for public servants and a range of policymakers who are engaged in decision making on ABS. Indigenous participants in the ABS Canada Focus Groups insist that the making of domestic ABS law and policy must be an exercise in equal partnership. They argue that many policymakers need to develop capacity to understand the realities and expectations of Indigenous peoples on ABS as foundational matter that precedes the making of policy. In addition to that often-unmentioned context of capacity building (i.e. as it applies to public servants and a range of policy makers), the Nagoya Protocol recognizes the need for capacity building and capacity development on ABS. After all, compared to other interest holders in ABS, such as corporations and individual or institutional researchers, there is no doubt that Indigenous peoples are in greater need of capacity building and capacity development on the subject. Regrettably, however, the Protocol limits its focus on capacity building and capacity development to the local communities of the global south. That exclusionary approach reflects the fault line of the contemporary global development narrative (Oguamanam & Hunka, Chapter 3). It is a narrative that ignores or masks the development gaps and deficits of Indigenous peoples of the global north such as those in Canada, United States, Australia and their counterparts everywhere else in that geopolitical bloc.

Therefore, capacity building and capacity development on ABS presents a potential context or opportunity for global solidarity among Indigenous peoples of the global north and their local community counterparts in the south. For a number of considerations, Indigenous peoples of Canada and other Indigenous peoples of the enclave territories of the north could look to their local community counterparts in the south for capacity building and capacity development on ABS in a counterintuitive form of north-south development (Oguamanam & Hunka, Chapter 3). The focus of the Nagoya Protocol on capacity building and capacity development on the global south is understandable but not entirely justifiable for its exclusionary tenor. The region has far more countries and, consequently, more experience with implementing ABS pursuant to the Nagoya Protocol (Medaglia, Perron-Welch & Phillips, Reference Medaglia, Perron-Welch and Phillips2014) as evident from the statistics from the ABS Clearing-House. Also, that region remains the highest beneficiary of independent capacity development on ABS as demonstrated in the work of such organizations as the ABS Capacity Development Initiative and other civil society organizations that have remained bulwarks against biopiracy in the global south. The prospects for the Indigenous peoples in Canada to look southwards for capacity building and capacity development on ABS as a matter of solidarity will not only fast track their participation in the process, it will engage and exercise their inherent rights to self-determination while building needed solidarity.

Third, the current dynamic for ABS enforces an imperative for a new research and ethical landscape that requires deliberate incorporation of ABS as a new reality of research and development (Bannister, Chapter 12; Burelli, Chapter 13; Oguamanam, Chapter 11; Phillips, Smyth & de Beer; Chapter 10). ABS is an integral aspect of researcher-community outreach, partnership and engagement as well as a crucial feature of corporate best practices and corporate community engagement. Canada’s research ethics landscape has evolved through progressive and ongoing attempts to integrate Indigenous peoples as equal stakeholders in research and knowledge creation. After an elongated period of suspicion and exclusions that characterized Indigenous perception of the research enterprise, Indigenous peoples have continued to demonstrate renewed and constructive engagement with researchers and are now determined to be active and not just passive participants in research and development generally and those involving them in particular as demonstrated by Bannister and Burelli (Chapters 12 and 13). ABS would constitute a fundamental aspect of the future of research ethics and bioprospecting in Canada and globally as it presents an opportunity for further research ethics review or ‘fine-tuning.’

The good news is that while the Nagoya Protocol has provided the impetus, existing practices demonstrate the involvement and awareness of Indigenous peoples in partnership and execution of elements of ABS in their relationship with researchers and corporations. To put it simply, there is no need to reinvent the wheel. Globally, ABS has evolved on the back of diverse legal principles and rules at the intersection and confluence of actors in vertical and horizontal spheres of engagements and in multiple contexts around genetic resources, IPLCs, biodiversity conservation, ecological dynamics, intellectual property, innovation, markets and industries, and research and development in both public and private regulatory spaces. In the European Union, the fledgling regional experience on ABS reflect sensitivity to the confluence of legal regimes and regard for country-to-country differences and local contexts as foundational to a functional ABS regime (Coolsaet et al., Reference Coolsaet2015).

But in Canada, there is an opportunity to leverage existing practices in the shadow of the Nagoya Protocol and reconciliation to model Indigenous-sensitive research and knowledge co-creation that is respectful of equitable ABS. Canada can look in a number of directions for inspiration. Like Brazil or the Commonwealth of Australia, Canada is a federal state that must invariably balance a nationally consistent ABS framework with sensitivity to the local contexts in its sub-national parts, (Phillips, Chapter 9; Wright, Reference Wright2017) including across its 73 Indigenous nations. Each of the latter should be capable of constituting their own competent authorities on ABS, as repeatedly professed by Indigenous partners and participants in the ABS Canada Focus Groups. Canada has more catching up to do though. The country’s long hiatus on the ABS file accounts for the slow uptake of ABS and its mainstreaming in the research landscape among the research communities and corporate interests in Canada. That is contrary, for example, to the case in Switzerland where the Swiss Academy of Sciences undertook a project on ABS in Academic research since 2006 (Biber-Klemm & Sylvia Martinez, Reference Biber-Klemm and Martinez2006) thereby setting the stage for an ongoing national conversation and policy evolution (Biber-Klemm, Sylvia Martinez & Anne Jacob, Reference Biber-Klemm, Martinez and Jacob2010).

Fourth is the idea of Canada’s potential late comer advantage on ABS and the opportunities inherent in that otherwise undesirable status. The preceding paragraph has alluded to Canada’s ability – along with its Indigenous peoples – to learn and build on developments from other jurisdictions who already have a head start on ABS. Perhaps more importantly, the rapidity and escalation of technological developments around the uses and applications of genetic resources and their interface with associated Indigenous or traditional knowledge in diverse realms of biotechnology (health, agriculture, environment, etc.) has precipitously called for reconsideration of conventional uses of genetic resources which is premised on user’s direct physical contact. Future domestic implementation of ABS would need to be mindful of increasing possibilities of the technological contexts in which uses of genetic resources and even associated traditional knowledge is possible through information about genetic resources that de-links them from their physical sources and origins (Oguamanam, Chapter 11; Phillips, Smyth & de Beer, Chapter 10). One clear example is the recent initiative by the Conference of Parties (COP) of the CBD (serving also as COP of the Nagoya Protocol) which in 2016 set up an Ad Hoc Technical Expert Group on Digital Sequence Information (DSI) on Genetic Resources to shed light on the use of DSI on genetic resources in the context of the CBD and the Nagoya Protocol.

In its 2018 report, the Ad Hoc Technical Expert Group recognized various forms and categories of information relevant to the utilization of genetic resources in digital and other hi-tech and scientific contexts. The Group’s opinion was divided, however, on whether the definition of genetic resources in the CBD and Nagoya Protocol includes DSI. While some believe that DSI is included by implication in the definition of genetic resources, others are of the view that DSI refers to intangible material and is therefore not included in the definition of genetic resources. The significance of an interpretation that includes DSI in the definition of genetic resources is that even though use of DSI does not entail direct access to physical genetic resources, it could still amount to a use that would trigger ABS in favour of providers in the origin or sources of the genetic resources. As such, users of DSI are not able to evade ABS or disclosure of source or origin obligation attached to their use of DSI simply because they may not have had physical contact with the genetic resources and their providers. With specific regard to use of DSI on genetic resources for fair and equitable benefit sharing, the expert group makes the follow observations in para 20 (a) and (c) of its report:

‘DSI’ could bring transformational change to the use of genetic resources, which may influence the type of benefits and the way benefits are shared. There may be useful lessons in this respect from how digitization of information in other sectors has impacted benefit-sharing, including possible lessons from music, software, publishing and other industries; … On the other hand, ‘DSI’, in the light of advances in sequencing technologies in particular, may, in some cases, challenge the implementation of arrangements for access to genetic resources and benefits sharing (ABS) by obviating the need for users to seek access to original tangible genetic resources, thus potentially enabling users to bypass procedures for access and benefit-sharing.

(CBD-DSI AHTEG, 2018)

With all of these important and impactful technological transformations on ABS, Canada is in a position to implement a robust domestic ABS regime. As many contributions in this book have maintained (e.g. Hodges and Langford, Chapter 2; Oguamanam, Chapter 1; Oguamanam and Koziol, Chapter 7), no country is exclusively a provider or a user of genetic resources; many, especially Canada, are clearly as much providers as they are users. Consequently, domestic implementation of ABS would aim to incorporate cutting edge beneficial technologies such as the applications of DSI or even digital DNA (Oguamanam & Jain, Reference Oguamanam and Jain2017) that advance research and development in genetic resources and associated traditional knowledge in mutually beneficially and not exclusionary ways. The debate whether the scope of definition of genetic resources includes DSI remains ongoing in the cognate forum such as the World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expression (WIO-IGC), where regrettably Canada takes a position that reflects its self-positioning as a user as opposed to also a provider of genetic resources and associated traditional knowledge.5

Fifth is related to the last point on the opportunities inherent in Canada’s ‘latecomer advantage’ that enables the potential incorporation of new technological insights into its domestic implementation of ABS. It is in respect of the increasingly ubiquitous and profound role of data in the exploitation and management of genetic information and associated traditional knowledge which have significant implications for research and development concerning Indigenous peoples in the ABS context. Genetic resources and, certainty, associated traditional knowledge now constitute part of the big and open data landscape (Oguamanam, Chapter 11). In that context, research and development relating to IPLCs are reduced to pieces of information and datasets that are readily de-linked from their sources and origins and integrated into the global big data infrastructure as an essentially virtual resource to which everyone has access for all manners of uses and applications. While the role of big and open data in advancing information and knowledge production as a global public good is important, they raise new dynamics and strong ethical concerns in the context of the undergirding rationale for ABS, especially with regard to IPLCs who have, historically, been victims of unequal power relations that undergird research. In the formulation of a domestic ABS regime in Canada and elsewhere, it is essential to critically appraise how to balance the open and big data dynamic with a deliberate and meaningful sensitivity to Indigenous peoples and their interest in data sovereignty and data equity. This would ensure that the prevailing and nascent technologies are deliberately deployed to promote, not undermine, the letter and spirit of ABS to the detriment of historically disadvantaged parties such as IPLCs. Recently, block chain applications or software are being deployed in the management of marketing and miscellaneous value chain information in agriculture. That innovation is a potential game changer in ABS and related matters, especially with regard to resolving the problem of de-linking information from its source.

Concluding Reflections

The experience of ABS Canada’s three years of field work shows that the making of a domestic ABS law and policy will not be a simple exercise. For starters, the concept itself is as complicated as any phenomenon can be. In addition, the historical antecedents of Canada’s relationship with Indigenous peoples are characterized by justifiable suspicion on the basis of failed promises and a long history of colonialism, including a colonial legal tradition that erects substantive and procedural obstacles against Indigenous peoples’ quest for justice, fairness and equity on many fronts. ABS is, in a way, a little known and disguised site for engaging the interconnected legion of issues that shape Canada’s relationship with Indigenous peoples which are also broached at many separate and interlinked regimes of international law from Indigenous peoples’ rights, environmental sustainability, biodiversity conservation, resource rights, agriculture, food, health, biotechnology to innovation and intellectual property rights, among many others.

While ABS may seem like an arcane or niche subject quite alienated from the daily markers of Indigenous injustice in Canada, many Indigenous participants in the ABS Canada Focus Groups insist that issues raised by ABS are as constitutional as they are aspects of the holistic scale of injustice that characterize their relationship with the Canadian state. With the right political will across all orders of government and a commitment to an equitable economic partnership with Indigenous peoples, now is an opportune time to formally enable a domestic ABS regime in Canada, which does not exclude opening up new partnerships for entrepreneurship with Indigenous peoples. This is with regard to the context for the current initiative to revisit Canada’s relations with Indigenous peoples through reconciliation as well as with regard to more robust international and various national regimes on ABS courtesy of the Nagoya Protocol, not counting existing variegated contractual arrangements between researchers and Indigenous peoples across Canada that continue to negotiate and implement arrangements that increasingly recognize ABS concerns.

While the Nagoya Protocol represents a framework for ABS, each domestic regime has the potential to improve on Nagoya with sensitivity to stakeholder expectations and local realities. Such expectations need to be galvanized through a comprehensive stakeholder needs assessments supported through inclusive and continuing stakeholder partnerships and other creative models of meaningful, effective and inclusive consultations. In both the background study to the present volume and in its many contributions, it is clear that even though Canada has yet to fully recognize it, Indigenous peoples are supposed to be major actors on ABS and must be recognised as such. After all, ABS is concerned with genetic resources and associated traditional knowledge – inherent in that phrase is a recognition that genetic resources constitute the dominant site for the production of Indigenous knowledge. However, apart from Indigenous peoples, governments and a range of policy makers, other actors directly engaged in ABS include researchers and corporations. While the contributions in this volume have explored the interface of ABS with all the prominent stakeholders, there is no devotion to corporations as crucial constituent of ABS stakeholders.

As part of their existing trust deficit with the Government of Canada, Indigenous peoples perceive the government to be aligned with corporate interests with regard to ABS, which many believe explains Canada’s lethargy on the subject. For good reason, in ABS and cognate regimes and incidental negotiations, Canada has a tendency to align with a bloc of countries that self-identify as genetic resource user countries in perpetuation of the increasingly discredited provider-user dichotomy. This is primarily because Canada likes to emphasize its status as a leading biotechnology country without paying much attention to its increasingly evident status as genetic resource provider country, not to mention the abundance of associated traditional knowledge of its many Indigenous peoples. This historically pro-industry disposition by the Government of Canada has shielded corporations from proactively engaging with other ABS stakeholders beyond the government. To formally implement ABS as part of Canada’s domestic policy and legal regime, corporations must be part of the group of stakeholders directly committed to shaping the system. The existing gulf between corporations, Indigenous peoples and other stakeholders in ABS has continued to fuel exaggerated or unrealistic and uncritical expectations about the whole process. Those hyped expectations can be tampered to their realistic levels with the transparency that will flow from the proactive participation of corporations in the making of domestic ABS laws, and through respectful partnerships with Indigenous peoples and all other interests. For corporations, ABS should be seen as a site for sound corporate practices, good public relations and healthy community engagement rather than rather an avoidable irritation or a perceived barrier to doing business.

The importance of a domestic ABS policy for all countries, including Canada, is now evident. This is especially so in the light of the fact that dichotomizations of countries as users and providers of genetic resources is simply not sustainable. For Canada and other kindred countries, lack of a domestic ABS policy will present an obstacle to their multinational corporations to access genetic resources and associated traditional knowledge in the centres of genetic origins or other countries that have domestic ABS laws. In this volume, we have weaved the results of ABS Canada’s Focus Groups on ABS – which gauged the pulse of segments of Indigenous peoples on the subject through a participatory partnership model of mutual learning and capacity building by and with Indigenous peoples – and the many other contributors to this volume. From that experience, it is clear that there are many opportunities to continue to explore meaningful forms of engagements and collaborations on the subject. The opportunities inherent in such endeavours far outweigh the challenges. Whatever the inadequacies of the present project, this volume has attempted to demystify the subject of ABS in the Canadian policy space, while calling attention to the escalating contexts in which ABS issues arise and the opportunity for advancing ABS in Canada as a logical part of the reconciliation agenda. All of this has been done with a view to encourage continuing and progressive re-thinking of Canada’s approach to ABS which, in the context of prevailing international developments and extant domestic political and economic opportunities, is no longer justifiable.

Footnotes

10 Access and Benefit-Sharing in the Age of Digital Biology

11 ABS: Big Data, Data Sovereignty and Digitization A New Indigenous Research Landscape

12 Ethical Guidance for Access and Benefit-Sharing Implications for Reconciliation

13 Mapping the Patterns of Underestimated Researcher-Indigenous Collaboration Towards Independent Implementation of ABS Principles

14 ABS, Reconciliation and Opportunity

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