Madagascar

On one side the nascent policy on Access and Benefit-Sharing (ABS) and agrobiodiversity in Madagascar might stand, in a couple of years, as one of the most protective forms of legislation in respect of protection of local communities worldwide.

Within the framework of the Darwin Initiative project on mutually supportive implementation of the Nagoya Protocol and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), Bioversity International, together with public international organizations and partners such as Natural Justice, have been working since 2015 to develop ABS laws and agreements that contribute to pro-poor rural development and offset the cost of conserving genetic resources.

So far, the main result is the enactment of the recent Decree No. 2017-066 from 31 January 2017 (in French) on the regulation of ABS arising out of the utilization of genetic resources.

Importantly, the Decree states that, in cases where the subject matters of the application are resources located on lands <terres> managed or occupied by private individuals, the applicant shall need to obtain Prior and Informed Consent (PIC) of any legal or natural person with power to access the land and collect the resources herein. This person may be the private owner, local custodians <gestionnaires> of natural resources, or the holders of traditional knowledge (TK) associated with genetic resources (Art. 12).

Local custodians of natural resources are defined as ‘groups of inhabitants who legally and/or traditionally manage the resources for which access is requested and whose way of life is of relevance to the conservation and sustainable use of biodiversity’. The text also adds that for the local custodians of natural resources and holders of associated TK, consent shall be given in a written contract.

This contract is established according to customary rules, traditional values and practices as prescribed in the locality and must not be contrary to statues and regulations in force (Art. 14).

Finally, a paragraph adds that in cases where traditional values and practices are already documented in an instrument implemented by the communities, the instrument shall be consulted and embedded in the contract (Art. 14). This is a clear reference to Biocultural Community Protocols. This comes as no surprise, for Natural Justice, as part of the Darwin Initiative project, has been backing the efforts of Bioversity International in facilitating the development of BCPs in Madagascar.

In sum, the situation in Madagascar is particularly relevant for our study. Over a few decades, the country has moved from a law barely acknowledging the existence and involvement of local communities in biodiversity conservation, to a new and very ambitious piece of legislation confirming the role of local communities in the stewardship of the environment and endowing them with the power to determine the conditions in which their natural resources and associated TK can be accessed.

Additional References:

http://www.darwininitiative.org.uk/project/22017/.

https://www.bioversityinternational.org/darwin_benin_madagascar/ ;

http://naturaljustice.org/protocoles-communautaires-et-droits-des-agriculteurs-au-madagascar/