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Access and Benefit Sharing in Canada – Stunted Efforts, New Opportunities

The State of ABS in Canada

Canada lacks a comprehensive federal Access and Benefit-Sharing (ABS) system for governing genetic resources and the associated traditional knowledge of Indigenous peoples, despite years of advocacy. While there is currently an interdepartmental committee on ABS at the federal level that collaborates with provincial and territorial jurisdictions and a lot more diverse initiatives related to ABS, little progress has been made.


Through Lethargy, Canada is Failing Indigenous Peoples and Itself

This lack of progress on the ABS file perpetuates inequitable access to, and use of, genetic resources and Indigenous traditional knowledge. This is detrimental to Indigenous peoples in Canada and has negative ramifications for reconciliation. The federal government has cited a lack of comprehensive intellectual property frameworks relating to traditional knowledge as a barrier to its implementation of the Nagoya Protocol, an international instrument establishing domestic standards and frameworks for ABS policies. The longer Canada delays in reforming its intellectual property system and tackling other often cited barriers, the further it falls behind in the state of progress internationally on ABS.


Why Implementing ABS is Necessary for Canada

ABS policies have been recognized as a key component of sustainable development, a priority for the Canadian government and the international community. Pressing development issues, such as promoting food security, eradicating poverty, supporting the green economy, and other aspects of the Sustainable Development Goals depend in part on equitable ABS policies to ensure innovative and sustainable use of resources.

Equitable ABS policies have a role in promoting reconciliation between Indigenous peoples in Canada and the Canadian government. They also have ramifications for global North-South relations and the quest for justice for marginalized custodians of traditional knowledge across the world. ABS policies ensure that Indigenous peoples are involved through Free, Prior, and Informed Consent and adequately participate in the use of their resources — building trust and accountability with the government. The establishment of equitable ABS policies will enable Canada to prevent predatory behaviours such as biopiracy. In return, improved relationships with Indigenous peoples may increase the efficacy of resource extraction and utilization, as both partners share knowledge and capacity. In reforming a system based historically on exploiting and undermining Indigenous peoples, Canada will support its reconciliation process by holding itself, and corporations, accountable to equitable standards.


Looking Forward

Previous excuses regarding Canada’s inability to implement the Nagoya Protocol are no longer sustainable. Justin Trudeau’s federal government’s reconciliation policy and its determination to domesticate the United Nations Declaration on the Rights of Indigenous Peoples creates the right momentum to shift the ABS file in a progressive direction to recover lost ground.

Most importantly, developments in the technological realm, with specific mention of synthetic biology and digital sequencing of information (DSI), as well as the use of big data, now minimize the necessity for physical access to genetic resources. Existing international law on ABS — notably the Convention on Biological Diversity and the Nagoya Protocol — is premised on physical access to genetic resources and, where applicable, to traditional knowledge. In the wake of these emerging technological dynamics, Indigenous communities’ capacitates to engage in traditional logic and narratives of ABS are slipping away. A new phase of confidence and capacity building toward active participation of Indigenous peoples in the new and emerging ABS landscape is urgently required. It is time to start the conversation in Canada, with the active involvement of Indigenous peoples and all stakeholders. There is no scarcity of efforts and resources within and outside the Canadian public service, across Indigenous communities, and affiliated organizations to draw from, including examples of domestic experiences with the implementation of ABS-friendly laws and policies across several jurisdictions.

Dr. Chidi Oguamanam is the Principal Investigator at ABS Canada. He is a Full Professor affiliated with the Centre for Law, Technology, and Society, the Centre for Environmental Law and Global Sustainability, and the Centre for Health Law, Policy and Ethics at the University of Ottawa.

Jessica Hennings is a student in the joint JD/MA program between the University of Ottawa and the Norman Patterson School of International Affairs at Carleton University. She focuses on the interplay of international and domestic legal systems, as well as the role of international governance in human and social development.

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