GROUP 1: Scope, nature and objectives

Group 1 recommended:

1. Scope: include GR, derivatives, and products and associated TK; exclude species listed in Annex I of ITPGR; and exclude human GR.
2. Nature: insist on a strong, legally binding instrument for ABS; negotiate one of more instruments which ensure international compliance with the national legislation; support the use of international private law to enforce contractual obligations; and consider voluntary best practice guidelines where consensus cannot be achieved.
3. Objectives: To regulate access to GRs, derivative products and associated TK in accordance with objectives of CBD; to ensure the fair and equitable sharing of monetary and non monetary benefits arising from the use of GR, derivatives, products and associated TK and benefits to country of origin of the resources; ensure compliance with PIC and MAT after resources leave national jurisdiction; and provide certainty to users and providers of GR. 

Comments included:

• A law can be binding but not strong if its terms are weak and / or it lacks enforcement measures.
• It was suggested to add: “providing certainty to users and providers as an objective.”
• Monitoring compliance is a challenge.
• The IR will be toothless if it lacks compliance measures. 
• Some plants can be used as food and medicinal.

GROUP 2: Access

Group 2 recommended:

1. States have sovereign rights over their genetic resources (tangible/non tangible) and access should be compliant with their national legislation.
2. It is important to link access to GR to benefit sharing and compliance.
3. The access framework should be compliant with CBD objectives (conservation, sustainable utilisation and the fair equitable sharing and distribution of derived benefits thereof).
4. Where Traditional Knowledge (TK) is involved local and indigenous community and national Competent Authority shall determine access to GR.
5. The issue of knowledge (TK/IK and scientific) innovation and practices is central to access.
6. It is critical to establish the reasons for seeking access.
7. Conditions  for access must be establish before access and should Mutually Agreed Terms (MAT) and Prior Informed Consent (PIC)

A member of the group explained that the KWS case study led to the 7th recommendation.

Comments included:

• Knowledge is central to the linked issues of access, benefit sharing and compliance.

GROUP 3: TK

Group 3 recommended:

1. TK in Africa is facing critical threats from conflict, natural calamities, technology, lack of documentation, dynamism among others. Therefore there is a need to develop strategies that can be used to conserve TK.
2. Conservation strategies include documentation of TK that should be owned by the communities, development of sui generis systems to protect TK and should be included in the IR, taking into consideration the national and regional instruments as well as international ones.
3. For TK to be protected and retained there is need for capacity building and public awareness for indigenous communities to know the value of their TK, benefit sharing and their rights in regard to access to GR.
4. With regard to development and implementation of the IR recognition and involvement of indigenous and local communities is important.
5. Article 8(j) and related provisions in the CBD should form the foundation in the development of ABS international regime.
6. Institutional frameworks should be built from the local community levels going upwards to the national, regional and international level and access to GR should consider the set framework. This will ensure the active involvement of the local communities.    

Comments included:

• It is important to make the linkages between TK and other areas of ABS, most importantly benefits sharing.

GROUP 4: Benefit Sharing

Group 4 recommended:

1. Subject to the definitions, benefit sharing from products and derivatives should be included in the international regime.
2. Minimum conditions for sharing benefits should be mandatory in the international regime, national laws and MATs.
3. The word “shall” should be used in place of “may” in paragraph 2,4 and 5.
4. In paragraph 3, the involvement of national authorities in the concluding of MATs must be mandatory, with the active and transparent involvement of local / indigenous communities.  Alternatively, the MATs must be agreed with local / indigenous communities with the active involvement of national authorities.
5. Negotiators should insist on technology transfer being covered in the regime and that it should be on favourable terms to developing countries (clause 8).
6. Negotiators should have definitions of terms in the draft regime.
7. The international regime should provide for measures to ensure that benefits reach local / indigenous communities who should decide on how to utilize the benefits.  

Questions and comments included:

• If there is no link to TK, how do you bring the communities into benefit, and if there is sharing with some communities, then why not others?
• How does one share benefits when the link with communities is not direct?
• Not all funds go directly to the communities, but will go to a benefit sharing trust fund.
• The philosophy is not “giving” benefits, but sharing benefits.  Accordingly, the sharing of benefits is linked to the contribution. 
• Where genetic material is collected in areas free of people, although the link is not direct, communities close to that area should share the benefits because of the link to the land. “Input” is diverse. 
• Cases and situations vary greatly, and as result the benefit sharing provisions will differ according to the country/ region/ case.
• In cases where the knowledge or resource belongs in the public domain, such as Teff in Ethiopia, it is very challenging to share the benefits effectively.
• Whether inside or outside national parks, research should link to the people.
• Community based natural resource management is an important management tool to enhance benefits to communities.

GROUP 5: Compliance

Group 5 made the following recommendations:

1. It should be a certificate of origin that is mandatory and complies with national laws.
2. There should be an international legally binding instrument.
3. There should be a liability and redress system of enforcement at national and international level.
4. There is a need to look at compensation for pre certificate extraction.
5. There should be an ABS monitoring system for compliance globally.
6. There is need to access to information on compliance.
7. Capacity to implement should be addressed.   

Questions and comments included:

• What form does the group see for the liability and redress system?
• How can we ensure that one country complies with another country’s national measures?
• There is a need to establish an arbitration system / forum to resolve any disputes that arise with a view to compensation.
• There could be a provision at the national level for criminal liability for breach of the rules.
• There is a need to recall the Ugandan case study, when thinking about restitution.

GROUP 6: Capacity building

Group 6 recommended:

1. Establishing a financial mechanism to address the issue of capacity building.
2. There is need for technology transfer from the outset of an agreement.
3. Developing capacity for legislation on ABS issues.
4. Enhance negotiation capacity of negotiators and stakeholders.
5. Build capacity of the AU and NEPAD on ABS issues.
6. Build capacity for ICT on ABS at all national focal points.

Questions and comments included:

• How do we conceptualize capacity building?  There is a need to unpack capacity building to prioritize the items.  Developing a fund for capacity is difficult, it is better to ask GEF to open a new window for funds.
• There is a need to understand who should do capacity building and how it should be done. African negotiators have consistently argued for funds to be channelled to GEF, to allow for African countries to access those funds.
• There should be a pool of experts who can be chosen to assist in capacity building.
• GEF has a focus on ABS capacity buildings, but a major challenge is accessing those funds.
• Political will of African leaders to drive the ABS agenda is vital to the path ahead.
• NEPAD and the AU should be encouraged to harmonize their programmes.
• There is need to build on what the Initiative is doing.
• The NBFP points need to be assisted by the CBD Secretariat to access funding.
• National legislation is a high priority.

Tim Hodges began by making a number of points. He explained that as Co-chairs they cannot endorse any particular approaches. He continued to make a number of points. Like regions, they are also on a learning curve. The co-chairs want the negotiators to tell them why they want the options thy will call for. More discussion must take place on what can be done at the national and at the international.  Priorities have to be set.  He said that there is an assumption made that the international level can stimulate and dictate what happens at the domestic.  But they urge countries not to wait for the international regime to at the national level.  Domestic discussion must continue.
 
Fernando Casas stated that we are not at the beginning of the process. Indeed, ABS it has been developing since the birth o the CBD 15 years ago. Considering of other peoples views is vital to this process. Recalling that most CBD parties do not have national laws and urged countries to get into this area of policy. In Lima, he reminded participants, it was noted that 70% of all access activities are linked to research.

Tim Hodges, on behalf of both Co-chairs thanked the participants and the organizers for the invitation to the meeting.

Sen Shikongo concluded the session by arguing that the messages presented were akin to a wish list, and called on participants to prioritize their suggestions.

Initiative Plans

• 2 day delegation briefing / discussion in Geneva pre-WGABS-6.
• Similar briefing pre-COP 9 in Bonn.
• Regional workshops COMIFAC.
• Negotiation skills for SADC and West Africa Region.
• Côte d’Ivoire workshop (TBD).
• University of Cape Town drafting a technical ABS course aimed at implementation in SADC with linked 1 week training (July / August 2008).
• 3rd Africa Capacity Development workshop (Nov – Dec TBD).

Participants’ Suggestions

• ABS development in W Africa with ABS awareness raising among various stakeholders.
• Liberia – assistance regarding ABS legislation / regulations.
• Provide submissions to CBD and “why’s” to negotiators.