- India’s first national report on implementation of Nagoya Protocol, mentions that there are no Indigenous Peoples and Local Communities (IPLC) in the country. While this could be an oversight, it is problematic.
- Such a negation prevents the government from recognising community consent and benefit sharing.
- The Biodiversity Act must be implemented with the constitutional provisions and relevant human rights legislations.
- The views in the commentary are that of the authors.
India as a biodiversity-rich nation has been lauded for its legislative efforts in championing the domestic implementation of the UN Convention on Biological Diversity (CBD) through its Biological Diversity Act, 2002.
Additionally, as a party to the CBD, a global agreement on biodiversity protection, India also sought to implement the Nagoya Protocol on access to genetic resources and fair and equitable sharing of benefits arising from their utilisation (Nagoya Protocol) through the existing Biological Diversity (BD) Act framework and the specific Access and Benefit Sharing (ABS) Regulations under it. The BD Act and its rules along with the ABS Regulations together aim at regulating access to genetic resources and traditional knowledge, and sharing benefits equitably and fairly from the use of such resources and knowledge.
In preparation for the 17th Conference of the Parties to the CBD in 2026, India has submitted its first national report on implementation of Nagoya Protocol on February 27, 2026. This commentary examines the submissions of the Indian government in the report with respect to Indigenous Peoples and Local Communities (IPLCs).
Negation of Indigenous Peoples and local communities
The Nagoya Protocol places special obligations on member countries to recognise the rights of Indigenous Peoples and Local Communities (IPLCs) under the access and benefit-sharing (ABS) mechanism. To elaborate, IPLCs have the right to give prior informed consent (PIC) to the use of their bioresources and their traditional knowledge. This is what is generally known as ‘community PIC’ and it includes the right of the communities to say no to bioprospecting projects that could be destructive to their bioresource or their cultural identity. It also includes the right to give consent based on conditions of sustainability and stipulate terms for fair and equitable benefit sharing.
This right to negotiate terms of access and benefit sharing (ABS) generally falls under the right to enter into mutually agreed terms (MAT). From the provisions of both the CBD and the Nagoya Protocol, the specific rights guaranteed to the communities are applicable to both Indigenous peoples (IP) and local communities (LC). These rights (referred to as biocultural rights) are based on the IPLCs’ special relationship with the land, territory, biodiversity, and resources that make them a special category of beneficiaries with the right to prior informed consent and to enter mutually agreed terms.
India’s national report showcases its achievements including over 12,000 approvals of access under the BD Act, securing about ₹268 crores (₹2.68 billion) under the Indian ABS mechanism, and disbursing around ₹139 crores (₹1.39 billion) of this benefit sharing amount, which is commendable. The approvals also include 395 access applications with non-monetary benefit sharing components.
What is intriguing however, is the response of the Indian government to Part VIII of the reporting format which deals with specific measures related to IPLCs. India, in response to a question, stated that there are no IPLCs in the country. This negation may be an oversight but it is an important one since India has several LCs with rich traditional knowledge on bioresources. The local communities in India can be considered as not only adivasis but also non-adivasi farmers, pastoralists, fishing communities and other biodiversity dependent communities who rely directly on their land, sea, water and bioresources for their traditional livelihood, lifestyle and cultural identity.
Secondly, this negation is problematic because, on the one hand, it absolves the reporting agencies from responding to questions that follow which require reporting on the special measures taken to secure rights of IPLCs guaranteed under the Nagoya Protocol. On the other hand, this negation also contradicts with their own reporting in Part III and additional information to Part VIII that speaks of involvement of the local communities through the BD Act.
Further, in India’s updated National Biodiversity Strategy and Action Plan (a domestic instrument to implement CBD), the term ‘Local Communities’ is used extensively in the biodiversity strategy and targets. This causes confusion as to the stand taken by the reporting agency on the status of IPLCs in the country. Lastly, the negation is also concerning since it ignores the many measures that the country has already taken to recognise rights of marginalised communities through the Constitution of India, and other domestic laws and policies. The country could have very well reported its achievements with respect to the collective biocultural rights of local communities.
Regulatory measures connected to communities, biodiversity governance
The provisions relevant for IPLCs within the BD Act are included in Part VIII of the national report but only as an explanation after stating that there are no IPLCs in India.
Under the BD Act, as stated by the national report, the community PIC and involvement are ensured primarily through a statutory body — the Biodiversity Management Committee (BMCs). Under the new Biological Diversity Rules passed in 2024, BMCs are also entrusted with the ensuring PIC or prior informed consent, if the bioresource belongs to a community, individual or entity. BMCs are committees constituted by elected local bodies such as Panchayat, Municipalities and in their absence, institutions of self-government constituted under the Constitution of India, or Central Act or State Act. While the national report states that 2,76,653 BMCs are constituted during the reporting period, there are concerns over their capacity and legitimacy to effectively carry out their functions. There is also no further guidance on operationalisation of PIC requirements available either in the Rules, Regulations, or through any case studies.
Additionally, there are several existing legal instruments that can support India’s special obligation under the Nagoya Protocol by a mutually supportive reading of these instruments with the BD Act. For instance, the Indian Constitution offers special protection for Scheduled Tribes (STs) and recognises varying degrees of collective rights of several communities regarding natural resource governance, based on their marginalisation, powerlessness and deprivation. In recognition of the same, Fifth and Sixth Scheduled Areas which are predominantly tribal majority areas have been granted special governance rights over natural resources by STs (8.6% of the country’s population) in accordance with their customary systems.
In addition to the constitutional guarantees, scheduled tribes are also guaranteed statutory rights over biological resources and traditional knowledge. For example, central legislations such as the Panchayat Extension to Scheduled Areas Act, 1996 (PESA) and the Forest Rights Act, 2006 (FRA) have various provisions that support community rights over their natural resources. PESA recognises the right of gram sabhas which are village assemblies of a community to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources, and the customary mode of dispute resolution.
Gram sabhas are the institutions of local self-governments in Fifth Scheduled Areas. Traditional village institutions in Sixth Scheduled Areas also have similar, if not more, levels of autonomy. So, these community level bodies have the power to constitute biodiversity management committees in Scheduled Areas. Recognising these constitutional and legally backed community institutions is important in securing the biocultural rights of IPLCs especially in relation to ABS. The special obligation towards IPLCs would call for specific measures and separate studies on the state and performance of BMCs in Scheduled Areas so that community interests are adequately and legitimately represented in the BMCs that are constituted in these areas.
Besides Scheduled Tribes, many other communities reside and depend directly on natural ecosystems. To illustrate, the forest rights act which is applicable to the whole of India recognises forest rights of not only STs but also other traditional forest dwellers. The FRA specifically recognises the community’s intellectual property rights over their traditional and cultural knowledge. This right is directly relevant for implementing community PIC rights under Article 7 of the Nagoya Protocol. India could have reported the existence of this legislation in response to question 36 of the national reporting format had it stated that there are IPLCs in India.
Under the FRA, the forest rights holders, gram sabhas, and the community forest resource management committees are empowered to protect biodiversity, regulate access to community forest resources and stop any activity that adversely affects wild animals, forest, biodiversity, and natural and cultural heritage.
Therefore, FRA is critical for realising community rights relating to ABS under the Nagoya Protocol. Even though FRA suffers from implementation challenges, so far, more than 1,24,000 titles for community forest rights have been issued, covering approximately 75,000 square kilometres of forest land.
Other legal protections
India is also the country where large parts of its population (~45%) is employed in the agriculture sector. Traditional agricultural practices such as seed saving, exchange, and resowing are protected under the Plant Variety Protection and Farmers Rights Act, 2001 (PPVFRA) as farmers’ rights. This recognition can be read as part of Article 12(4) of Nagoya Protocol and could have been reported in question 40 which deals with rights over customary use and exchange of genetic resources.
There are approximately 4,800 registered farmers’ varieties, recognising the rights of farmers over these plant genetic resources and their associated traditional knowledge. Again, these farmers’ varieties are relevant for question number 35 of the national reporting format which deals with rights over genetic resources. In addition to PPVFRA, the Geographical Indication Act (GI Act) is also important since the Act has facilitated registration of several agricultural products that are based on the traditional knowledge of India’s local communities. Reporting on the implementation of these laws could also have indicated India’s efforts in supporting these initiatives.
Outside the strict legal framework, several communities have also prepared their community protocols. For example, biocultural protocols of the Maldharis of Banni or the traditional camel breeders of Rajasthan (Raikas) or the Danus and Takulis of Jhuni, to name a few. These protocols can be considered with respect to implementation of Article 12 of Nagoya Protocol. Some of these protocols are even facilitated by the State Biodiversity Boards such as the Uttarakhand State Biodiversity Board. By omitting to report these efforts while responding to Part VIII, India may lose the opportunity to report on the existing safeguards in relation to community rights over their biological resources and traditional knowledge.
Such an omission to respond to Part VIII also prevents the government from reflecting on the lessons learnt, vis-a-vis recognising community consent and benefit sharing. This reflection could have contributed tremendously to making the working of the ABS an equitable and fair concept for the ecosystem stewards of India. While India has stated certain challenges pertaining to ABS in its national report, a clear articulation on making ABS functional, by creating synergies among existing legal frameworks such as PESA, FRA, PPVFRA and existing community institutions like the Gram Sabhas and Community Forest Management Committees, would have been critical in reflecting seriousness and concrete steps toward implementing Nagoya Protocol in the country. The report could have additionally identified the gaps that still exist, particularly with respect to STs and local communities dependent on wetland, coastal, and marine ecosystems.
To conclude, towards fulfilling India’s commitment to Nagoya Protocol, it would be critical for the reporting agencies to consider a mutually supportive reading and implementation of the BD Act with the constitutional provisions and relevant human rights legislations. It is hoped that the Indian government will showcase its commitments towards a human rights-based biodiversity governance, as mandated by the Kunming-Montreal Global Biodiversity Targets.
Banner image: Women from the Gadaba Indigenous community walk to collect vegetables and wood from the forest in Hatipakna village, Koraput district, Odisha. (AP Photo/Rafiq Maqbool)
With inputs from Neema Pathak Broome and Roshni Kutty.
Alphonsa Jojan is a Ph.D. candidate at the University of Newcastle, Australia and Shyama Kuriakose is an independent legal consultant, based in Kochi, Kerala.
Credits
