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Access and Benefit-sharing: Expert Group on traditional knowledge
associated with genetic resources – submission of views from Norway
In order to facilitate the discussions of the expert group on traditional knowledge
(TK) associated with genetic resources under the CBD we have built upon previous
Norwegian submissions and expressed views related to the questions raised by the
Secretariat.
The Norwegian submission on operational texts for ABSWG7 covers main aspects
related to TK. This submission is specifying these aspects further.
a) What is the relationship between access and use of genetic resources and
associated traditional knowledge?
The Convention text gives some clear directions which have to be further elaborated
in the ABS-regime:
 “Recognizing the close and traditional dependence of many indigenous and local
communities embodying traditional lifestyles on biological resources, and the
desirability of sharing equitably benefits arising from the use of traditional
knowledge, innovations and practices relevant to the conservation of biological
diversity and the sustainable use of its components.” (Preambular para12)
 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; (art. 8j)
 Prior informed consent and mutually agreed terms for access to genetic resources
(art. 15)
 The scope of the Bonn Guidelines is all genetic resources and traditional
knowledge, innovations and practices covered by the CBD. Furthermore, the
Bonn Guidelines contain several provisions related to TK and effective
participation of indigenous peoples and local communities.
In addition to the texts from the CBD the ABS-regime has to cover the following:
1. The existence of associated traditional knowledge might increase the
(potential) value of the genetic resource.
a. Traditional knowledge must be considered as a dynamic (not static)
knowledge.
b. The holders of traditional knowledge, indigenous peoples and local
communities, should be acknowledged as right-holders of such
knowledge and their rights should be respected in the regime
2. Not all genetic resources have associated traditional knowledge.
Questions related to TK and the rights of indigenous peoples and local communities
have to be fully integrated into the regime. In our view access to genetic resources (art
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15) is primarily a Party responsibility. And the Party can choose whether to require
PIC or not. Access to traditional knowledge associated to the genetic resources needs
specific regulations in the regime, and the competent national authorities should
facilitate the necessary contacts between users of such knowledge and the holders of
traditional knowledge associated with genetic resources.
(b) What practical impacts should the negotiations of the international regime take
into account based on the range of community level procedures and customary
systems of indigenous and local communities for regulating access to traditional
knowledge associated with genetic resources at the community level?
The competent national authorities/national focal point for ABS will have an
important position as the key-entry point for access applications.
The Norwegian submission on operational text for the ABS-regime on National focal
point and competent national authorities and Traditional knowledge associated with
genetic resources outlines relevant responsibilities in this regard.
The national focal point should inform applicants for access to genetic resources on
applicable procedures, including procedures for prior informed consent, mutually
agreed terms and benefit-sharing. It shall also inform applicants of any rights
pertaining to indigenous peoples and local communities and relevant stakeholders.
Each Party should also, as appropriate, designate one or more competent national
authorities, which should be responsible for handling and processing of access
applications, including mutually agreed terms and benefit-sharing arrangements. A
Party may designate a single entity to perform the functions of both Focal Point and
competent national authority.
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Parties shall:
Seek to ensure that the commercialization and any other use of genetic
resources should not prevent traditional use of genetic resources;
Require providers only to supply genetic resources and/or traditional
knowledge when they are entitled to do so;
Take measures to ensure appropriate participation by relevant indigenous
peoples and local communities in access procedures when their rights are
associated with the genetic resources being accessed or where traditional
knowledge associated with these genetic resources is being accessed
Establish mechanisms to ensure that decisions are made available to relevant
indigenous peoples and local communities and relevant stakeholders;
Traditional knowledge associated with genetic resources (Participation by
indigenous peoples and local communities)
Indigenous peoples and local communities shall be consulted by the appropriate
national authorities, and their views taken into consideration, when their rights are
associated with the genetic resources being accessed or where traditional knowledge
associated with these genetic resources is being accessed, including:
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a) When determining access, prior informed consent, and when negotiating and
implementing mutually agreed terms, and in the sharing of benefits;
b) In the development of a national strategy, policies or regimes on access and
benefit-sharing.
c) Appropriate consultative arrangements, such as national consultative committees,
comprising relevant stakeholder representatives, should be established.
d) Providing information in order for them to be able to participate effectively;
e) Prior informed consent of indigenous peoples and local communities and the
approval and involvement of the holders of traditional knowledge, innovations
and practices, in accordance with their traditional practices, national access
policies and subject to national legislation.
f) Documentation of traditional knowledge, innovations and practices, should be
subject to the prior informed consent of indigenous peoples and local
communities;
g) Providing support for capacity-building, in order for them to be actively engaged
in various stages of access and benefit-sharing arrangements, such as in the
development and implementation of mutually agreed terms and contractual
arrangements.
The Norwegian Government proposed new legislation on 3 April 2009 to Parliament
on access to genetic material and benefit-sharing. This is part of a new Nature
Management Act, on conservation and sustainable use of biological diversity. The
Parliament is expected to consider the proposal by this summer.
Our indigenous peoples, namely the Samis, have been consulted in questions
regarding those parts of the law concerning their interests. The Sami Parliament has
unanimously approved of these draft provisions.
(c) Identify the range of community level procedures and determine to what extent
customary laws of indigenous and local communities regulate access to genetic
resources and associated traditional knowledge at the community level and its
relevance to the international regime;
One challenge in deciding upon TK-related parts of the ABS-regime is the diverse
range of indigenous peoples and local communities as well as the diverse range of
existing relevant institutional and regulatory arrangements.
Norwegian – Sámi experiences
In order to meet the provisions of ILO Convention No. 169 which Norway has
ratified, the Norwegian Government and the Sami Parliament reached agreement on
the “Procedures for Consultations between the State Authorities and the Sami
Parliament of 11 May 2005” (PCSSP).
The PCSSP has several objectives. First of all, the procedures are intended to
contribute to the practical implementation of the State’s obligations to consult
indigenous peoples under international law. Secondly, agreement shall be sought
between the State authorities and the Sami Parliament whenever consideration is
being given to legislative and administrative measures that may directly affect Sami
interests. The third objective is to facilitate the development of a partnership
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perspective between State authorities and the Sami Parliament that contributes to the
strengthening of Sami culture and society. Finally, the intention is to develop a
common understanding of the situation and of the developmental needs of Sami
society.
The scope of the agreement is extensive. The consultation procedures laid down in the
PCSSP apply to the Government and its ministries, directorates and other subordinate
state agencies or activities. Furthermore, they apply in matters that may affect Sami
interests directly. The substantive scope of the consultations may include various
issues, such as legislation, regulations, specific or individual administrative decisions,
guidelines, measures and decisions. The obligation to consult the Sami Parliament
may include all material and immaterial forms of Sami culture, including music,
theatre, literature, art, media, language, religion, cultural heritage, immaterial property
rights and traditional knowledge research, land ownership, rights to use lands,
matters concerning land administration, biodiversity and nature conservation etc.
The PCSSP also contains general provisions concerning the consultation procedures.
The consultations shall be undertaken in good faith, with the objective of achieving
agreement to the proposed measures. Furthermore, the state authorities shall as early
as possible inform the Sami Parliament about the commencement of relevant matters
that may directly affect the Sami, and identify those Sami interests and conditions that
may be affected. After the Sami Parliament has been informed on relevant matters,
the Parliament shall notify the state authority as soon as possible as to whether or not
further consultations are required. The Sami Parliament may also independently
identify matters which in its view should be subject to consultation. In cases where
the state authorities and the Sami Parliament agree that further consultations are to be
held, they shall seek to agree on a plan for such consultations. Sufficient time shall be
allocated to enable the parties to carry out genuine and effective consultations and
political consideration of all relevant proposals
The procedures for Consultations between the state authorities and the Sami
Parliament are attached in annex 1 to this submission.
In the development of the new Norwegian legislation on biodiversity (the nature
management act) which was presented to the Parliament in April 2009 extensive
consultations with the Sámediggi on maters of their interest where performed. The
Sámediggi unanimously approved the draft provisions.
Based on the general procedures for consultations more specific consultation
procedures has been established, for instance for the establishment of protected areas
in areas with Sami interests.
(d) To what extent measures to ensure compliance with prior informed consent and
mutually agreed terms under Article 15 also support the prior informed consent of
indigenous and local communities for the use of their associated traditional
knowledge?
PIC and MAT under article 15 covers access to genetic resources and not directly
traditional knowledge. It is important to develop a practical and efficient regime, and
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the national focal point should, in addition to informing applicants for access to
genetic resources on applicable procedures, including procedures for prior informed
consent, mutually agreed terms and benefit-sharing, also inform applicants of any
rights pertaining to indigenous peoples and local communities and relevant
stakeholders. See also b).
(e) Identify elements and procedural aspects for the prior informed consent of
holders of associated traditional knowledge when traditional knowledge associated
with genetic resources is accessed also taking into account potential transboundary
contexts of such associated traditional knowledge and identifying best practice
examples;
See also b, c and g).
The transboundary context can however be more difficult to address from a national
perspective. Traditional knowledge is in nature a collective rights-system. The
concerned transboundary ILCs should be encouraged to cooperate both with regard to
access to transboundary TK and the potential benefit-sharing arising out of use of the
TK.
(f) Is there a basis for prior informed consent for indigenous and local communities
relative to traditional knowledge associated to genetic resources in international
law? If so, how can it be reflected in the international regime?
Prior informed consent for indigenous peoples and local communities related to
traditional knowledge is one specific aspect of the more general discussions on prior
informed consent.
The ILO 169 convention and the UN Declaration on the rights of indigenous peoples
both have broader scopes with regard to indigenous peoples rights. These two
instruments, and in particular the UNDRIP, should however inspire the ongoing
negations with regard to traditional knowledge.
The CBD itself, and COP-decisions give numerous examples:
Based on art 8j and preambular paragraph no. 12 the CBD provides the rationale for
PIC towards TK. With regard to the phrase PIC it was used in the general principles
for the Programme of work on the implementation of art 8(j) and related provisions of
the CBD. Decision V/16 “5. Access to traditional knowledge, innovations and
practices of indigenous and local communities should be subject to prior informed
consent or prior informed approval from the holders of such knowledge, innovations
and practices.”
Decision IX/13 (Article 8(j) and related provisions) confirms PIC with regard to TK
See also Bonn guidelines paragraph 31.
For how this can be reflected in the regime – se b) above.
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(g) Assess options, considering the practical difficulties and distinct implementation
challenges, for including traditional knowledge associated with genetic resources in
a potential internationally recognized certificate issued by the competent domestic
authority also by considering the possibility of a declaration on such certificate as
to whether there is any associated traditional knowledge and who the relevant
holders of traditional knowledge are;
See also b)
This question would cover both participation/consultation as well as respect of the
rights over traditional knowledge by indigenous peoples and local communities.
A formalized consultation agreement (see (c) for Norwegian experiences), according
to national legislation, would give a framework for the necessary contacts between the
national competent authority and indigenous peoples and local communities. The
practical solutions will have to be adapted to national circumstances. The
development of a set of formalized procedures for the user of traditional knowledge
associated to genetic resources and the holders of such knowledge might be one
option to ensure PIC and MAT. The presence of the signed approval of the PIC and a
MAT-agreement for traditional knowledge by the ILC should be one central
checkpoint in the certificate issued by the competent national authority.
There are also clear linkages to the ongoing work under WG-8j that should be further
elaborated with regard to practical use in the ABS-regime. In particular work on
documentation of traditional knowledge and elements of the code of ethical conduct.
We would also like to underline the need to further develop other relevant
international systems in order to enhance the mutual supportive role different systems
might have. Norway has proposed to amend the TRIPS Agreement in order to
support the CBD. We do believe that the interaction between the two treaties would
be greatly enhanced by an obligation in the TRIPS Agreement to disclose the origin
of genetic resources and traditional knowledge in patent applications. Such a
disclosure obligation should be introduced in a new Article 29bis and should provide
that patent applications should not be processed unless the required information has
been submitted.
(h) How to define traditional knowledge associated to genetic resources in the
context of access and benefit-sharing?
There are not any internationally recognised definitions of traditional knowledge. In
WIPO/GRTKF/IC the following working definition has been used:
“to the content or substance of knowledge that is the result of intellectual
activity and insight in a traditional context, and includes the know-how, skills,
innovations, practices and learning that form part of traditional knowledge
systems, and knowledge that is embodied in the traditional lifestyle of a
community or people, or is contained in codified knowledge systems passed
between generations. It is not limited to any specific technical field, and may
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include agricultural, environmental and medicinal knowledge, and knowledge
associated with genetic resources.”
Norway believes that a working understanding on what we mean by
“misappropriation” of traditional knowledge could be helpful in developing the
regime and also with regard to national implementation of the regime. This could be
linked to an international obligation in the regime for all parties to prohibit the use of
misappropriated traditional knowledge.
Norway submitted a proposal to the WIPO dated 20 April 2006
(WIPO/GRTKF/IC/9/12 on protection against misappropriation and unfair use of
Traditional Knowledge based on Article 10bis of the Paris Convention.
The legal standard in article 10bis is “what an honest person would consider an act of
unfair competition within a commercial or industrial context”. Transposed to the
WIPO committee’s work the idea of behaviour contrary to honest practices or
amounting to inequitable conduct could be developed to guide understanding of what
constitutes an act of misappropriation or unfair use of TK. Acts that could clearly
qualify as “unfair use” - would inter alia be exploitation of TK obtained by theft,
bribery, coercion, fraud etc. while also other relevant acts would, depending on the
circumstances in each case be covered.
It could be argued that it would be difficult for a local community to obtain a court
decision in a foreign country. However, it can be argued that the mere possibility
would serve as an incentive for users to obtain prior consent from TK-holders and to
participate in benefit-sharing arrangements.
Norwegian proposal for a Recommendation regarding protection against
misappropriation and unfair use of Traditional Knowledge:
1. The members of the Paris Union for the Protection of Industrial Property and the
World Intellectual Property Organization should assure nationals of member
countries adequate and effective protection against misappropriation and unfair
use of Traditional Knowledge (TK)
2. Any use of TK against honest practices in cultural, industrial or commercial
matters should be considered as actions in breach of paragraph one.
3. TK holders should in particular be provided with effective means to ensure that:
a) the principle of prior informed consent applies to access to TK,
b) benefits arising from certain uses of TK are fair and equitable shared,
c) all acts of such a nature as to create confusion by any means whatever with the
origin of the TK are repressed, and
d) all acts of such a nature that would be offensive for the holder of the TK are
repressed.”
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ANNEX 1
Procedures for Consultations between State Authorities and The Sami
Parliament [Norway]
As an indigenous people, the Sami have the right to be consulted in matters that may affect
them directly. In order to ensure that work on matters that may directly affect the Sami is
carried out in a satisfactory manner, the Government and the Sami Parliament agree that
consultations between State authorities and the Sami Parliament shall be conducted in
accordance to the annexed procedural guidelines.
Oslo, 11 May 2005
Erna Solberg Minister of Local Government
and Regional Development
Sven-Roald Nystø President of the Sami
Parliament
1. The Objective
The objective of the procedures for consultations is to:

contribute to the implementation in practise of the State’s obligations to consult
indigenous peoples under international law.
 seek to achieve agreement between State authorities and the Sami Parliament
whenever consideration is being given to legislative or administrative measures that
may directly affect Sami interests.
 facilitate the development of a partnership perspective between State authorities and
the Sami Parliament that contributes to the strengthening of Sami culture and society.
 develop a common understanding of the situation and developmental needs of the
Sami society.
2. The Scope
 The consultation procedures apply to the Government and its ministries, directorates
and other subordinate State agencies or activities.
 The consultation procedures apply in matters that may affect Sami interests directly.
The substantive scope of consultations may include various issues, such as
legislation, regulations, specific or individual administrative decisions, guidelines,
measures and decisions (e.g. in governmental reports to the Norwegian Parliament,
the Storting).
 The obligation to consult the Sami Parliament may include all material and
immaterial forms of Sami culture, including music, theatre, literature, art, media,
language, religion, cultural heritage, immaterial property rights and traditional
knowledge, place names, health and social welfare, day care facilities for children,
education, research, land ownership rights and rights to use lands, matters concerning
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land administration and competing land utilization, business development, reindeer
husbandry, fisheries, agriculture, mineral exploration and extraction activities, wind
power, hydroelectric power, sustainable development, preservation of cultural
heritage, biodiversity and nature conservation.
 In matters concerning the material basis for the Sami culture, including land
administration, competing land utilization, and land rights, the obligation to consult
the Sami Parliament is applicable to traditional Sami areas; this includes the counties
of Finnmark, Troms, Nordland and Nord-Trøndelag, and the municipalities of Osen,
Roan, Åfjord, Bjugn, Rissa, Selbu, Meldal, Rennebu, Oppdal, Midtre Gauldal, Tydal,
Holtålen and Røros in the county of Sør-Trøndelag, and Engerdal and Rendalen, Os,
Tolga, Tynset and Folldal municipalities in Hedmark county, and Surnadal and
Rindal municipalities in the county of Møre- og Romsdal.
 Matters which are of a general nature, and are assumed to affect the society as a
whole shall in principle not be subject to consultations.
3. Information
 State authorities shall fully inform the Sami Parliament about all matters that may
directly affect the Sami, as well as about all relevant concerns and queries at all
stages of the process.
4. Public disclosure
 Information exchanged between State authorities and the Sami Parliament in
connection with consultations may be exempted from public disclosure provided it is
authorised by law. The principle of expanded public disclosure shall be practised.
The final positions of the parties in individual matters shall be made public.
5. Regular meetings
 Regular half-yearly meetings shall be held between the Minister responsible for Sami
affairs and the President of the Sami Parliament. Other governmental ministers may
attend these meetings when required. At these meetings, the situation and
developmental needs of the Sami society, issues of fundamental and principle
importance, and ongoing processes, shall be discussed.
 Regular half-yearly meetings shall also be held between the Sami Parliament and the
Interministerial Coordination Committee for Sami affairs. Among other things,
information about relevant current Sami policy matters shall be provided at these
meetings.
6. General provisions concerning the consultation procedures
 The consultations carried out with the Sami Parliament, in application of the
agreement on consultation procedures, shall be undertaken in good faith, with the
objective of achieving agreement to the proposed measures.
 State authorities shall as early as possible inform the Sami Parliament about the
commencement of relevant matters that may directly affect the Sami, and identify
those Sami interests and conditions that may be affected.
 After the Sami Parliament has been informed on relevant matters, it shall inform the
relevant State authority as soon as possible whether further consultations are
required.
 The Sami Parliament can also independently identify matters which in its view
should be subject to consultations.
 If State authorities and the Sami Parliament agree that further consultations shall be
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held on a specific matter, they shall then seek to agree on a plan for such
consultations, including the dates and venues for further contact (e.g. meetings,
video-conferences, telephone contact, exchange of written material), deadlines for
responses, whether consultations at the political level are required and the type of
political proceedings. Sufficient time shall be allocated to enable the parties to carry
out genuine and effective consultations and political consideration of all relevant
proposals. In case it is necessary for the Sami Parliament to consider and debate the
matter concerned in a plenary session, such debate and consideration must be
conducted as early as possible in the process.
 When necessary, provisions shall be made for further consultations. Consultations
shall not be discontinued as long as the Sami Parliament and State authorities
consider that it is possible to achieve an agreement.
 When a matter is submitted for consideration to the Government (Cabinet), the
ministerial submission document shall clearly inform other governmental ministries
about the concluded agreement with the Sami Parliament and, if necessary, also to
include information about matters where agreement has not been reached. In
governmental propositions and reports to the national parliament, the Storting, on
matters where the governmental position differs from that of the Sami Parliament, the
views and positions of the Sami Parliament shall be reflected in the documents
submitted.
7. Minutes
 Minutes shall be kept of all consultation meetings between State authorities and the
Sami Parliament. The minutes shall include a brief account of the subject matter, the
views and positions of the parties, and the conclusions made at the meeting.
8. The need for studies/knowledge base
 The Royal Ministry of Local Government and Regional Development and the Sami
Parliament shall jointly appoint a specialized analysis group which, inter alia, shall
submit an annual report concerning the situation and developmental trends of the
Sami society on the basis of Sami statistics. The report shall be used as the basis for
consultations on specific matters and for consultations concerning the developmental
needs of the Sami society at one of the half-yearly meetings between the Minister
responsible for Sami affairs and the President of the Sami Parliament.
 When State authorities or the Sami Parliament consider there to be a need for
background studies to strengthen the factual or formal basis for assessments and
decisions, this shall be raised as early as possible, and both parties shall include
questions concerning the terms of reference for such studies into the consultation
process. The Central Government and the Sami Parliament shall seek to reach an
agreement on the terms of reference for such a study, and who shall carry out the
study. The Central Government and the Sami Parliament are obliged to assist in
providing information and materials necessary for carrying out the study.
9. Consultations with other affected Sami entities
 In matters where State authorities plan to consult local Sami communities and/or
specific Sami entities or interests that may be directly affected by legislation or
administrative measures, State authorities shall as early as possible notify which
Sami entities or organizations it regards as affected by the matter, and discuss the
coordination of such consultation processes with the Sami Parliament.
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