1Among the objectives expressed in the Nouméa Accord of 1998 on the institutional future of New Caledonia – particularly its Preamble – one is not to undo, but rather to rectify, the inequalities, denials of civil and political rights and various forms of cultural and material theft suffered by the indigenous Kanak people throughout the 150-year history of French colonisation in the archipelago. The very idea, if not the principle, of sharing the benefits derived from biological resources and associated forms of traditional knowledge (access and benefit-sharing, or ABS), enshrined in the CBD and the Nagoya Protocol, corresponds to the need for recognition and acceptance of a restored sense of equality felt by Kanaks, a necessary prerequisite for the “common destiny” heralded as a road map for the people of New Caledonia in the Nouméa Accord.

2The first section of this chapter offers a recap of the specific historical and institutional context of New Caledonia. This context needs to be borne in mind when contemplating the political and legal structures required to oversee ABS, addressed in the second section.

Specificities of the Caledonian context

Historical context

3To a certain extent, the current context of New Caledonia has been shaped by the historical and constitutional heritage it shares with France, and as such it is important to begin with an extract from the Preamble of the Nouméa Accord of 5 May 1998 (see Box 1 for the full text). Rereading this text is essential to better comprehending the context in which the issue of ABS exists in New Caledonia. After addressing the conditions in which France unilaterally seized possession of the New Caledonian archipelago, the preamble describes the importance of the indigenous inhabitants’ sense of connection to the land, one of the fundamental pillars of Kanak identity. It makes no sense to talk of access to the land – or the sea – and their resources without first acknowledging the profound connection of the Kanaks to this land, which is above all an object of respect and dignity, rather than a source of monetisable resources.

4The Nouméa Accord is unequivocal in this regard:

5“The impact of colonisation had a long-lasting traumatic effect on the indigenous people.

6Some clans lost their names when they lost their land. Large-scale land colonisation caused considerable population movements, in which the Kanak clans saw their subsistence resources depleted and their places of memory lost. This process of dispossession engendered a loss of identity markers. […]

7At the same time, the Kanak artistic heritage was considered non-existent or looted.

8To this denial of the fundamental elements of the Kanak identity, were added restrictions on public freedoms and a lack of political rights […].

9The Kanaks were relegated to the geographical, economic and political fringes of their own country [...].

10Colonisation harmed the dignity of the Kanak people and deprived them of their identity. In this confrontation, some men and women lost their lives or their reasons for living. Much suffering resulted from it. These difficult times need to be remembered, the mistakes recognised and the Kanak people’s confiscated identity restored, which equates in their mind with a recognition of their sovereignty, prior to the forging of a new sovereignty, shared in a common destiny.”

11Nonetheless, one of the strengths of the Nouméa Accord is that it is not simply content with restating these painful facts. It also sets out to heal old wounds in a somewhat original manner: rather than proposing a return to the pre-1853 status quo (the year in which France took possession of the islands), an unrealistic prospect which amounts to ignoring the course of history, the accord prioritises the restoration of the dignity of the islands’ indigenous inhabitants along with their lost sovereignty, with a resolutely forward-looking attitude: “The past was the time of colonisation. The present is the time of sharing, through the achievement of a new balance. The future must be the time of identity, in a common destiny.”

12Restitution of the identity stolen from the Kanak people, and recognition that now is the time for sharing, are key principles contained in the preamble to the Nouméa Accord which also serve to legitimise and operationalise the application of Article 8J of the 1992 Convention on Biological Diversity and the Nagoya Protocol in New Caledonia.

13These texts reassert the sovereignty of national governments over their genetic resources, and the rights of local communities over the traditional knowledge associated with those resources, both prerequisites for the fair and equitable sharing of the benefits derived from them.

The institutional context

14The Nouméa Accord of 1998 comprises the preamble discussed above along with a “policy document” which was then extensively transposed into law in Articles 76 and 77 of the French Constitution dealing exclusively with New Caledonia, as well as Framework Law 99-209 of 19 March 1999 regarding the institutional future of New Caledonia. The negotiators responsible for the Nouméa Accord thus combined the road map for a shared destiny, as set out in the preamble, with an institutional architecture every bit as original, often described – and not without reason – as a “mille-feuille” arrangement that is complex, but also goes to great lengths to maintain balance and peace between the Kanak people and other communities living on the island as a result of colonisation.

15Without addressing this institutional architecture in too much detail, it is worth discussing its principal points in order to give a clearer picture of the myriad subtleties involved in creating an appropriate legal framework for the deployment of an ABS mechanism in New Caledonia.

16The first level of institutional engineering in play in New Caledonia makes use, as numerous authors have noted, of the possibilities offered by a two-tier federal system. This corresponds to the relationship between France and New Caledonia, on the one hand, and between New Caledonia and its three provinces, on the other, these three provinces having been created in 1988 and confirmed in 1998.

17There are thus four layers of administrative subdivisions in New Caledonia: the State, New Caledonia, the provinces of Loyalty Islands, North and South, and the thirty-three municipalities. In parallel to these administrative divisions, there are eight customary areas (aires coutumières) covering the whole country.

18The Framework Law of 99-209 established the division of statutory authority between these administrative divisions. While allocating specific responsibilities to central government, to the New Caledonian government and to the municipalities, the law also states that the Provinces have full regulatory authority in all other matters. For its part, the French government has promised to gradually transfer to New Caledonia the majority of its responsibilities under the Law of 1999, with the exception of sovereign powers such as defence and international relations, whose transfer would be tantamount to granting full sovereignty to New Caledonia.

19Each administrative division is endowed with a number of institutions charged with delivering upon its responsibilities.

20New Caledonia thus has its own Territorial Congress, with elected officials from the provinces. The Congress acts as both the deliberative and legislative authority for New Caledonia. Executive power is held by a collegiate government appointed by the Congress, and whose make-up reflects the balance of loyalist and independentist parties in the Congress.

21Each province has its own deliberative assembly, with the president of each endowed with executive powers.

22Justice is exercised by the State Tribunals and Courts.

23It is also interesting to observe the institutionalisation of customary authority structures: a Customary Senate has been established, with 16 senators. The eight customary areas nominate, in accordance with their own customs and practices, two representatives each.

24The Customary Senate acts as co-legislator on issues relating to Kanak identity. In this respect, the Senate has proven itself to be proactive when it comes to protecting traditional Kanak knowledge, recently taking the initiative on a bill which would regulate access to genetic resources and associated traditional knowledge throughout New Caledonia, establishing a system for the valuation of these resources and forms of knowledge.

25As a result of this distribution of responsibilities, different aspects of regulatory intervention associated with the implementation of the ABS mechanism fall within the remit of different administrative divisions.

26The French government, for example, remains accountable to the international community for the implementation by New Caledonia and its provinces of the international agreements signed and ratified at national level, with the Nagoya Protocol being a notable example.

27New Caledonia, which now has a legislative power through the lois du pays voted by its Congress, has been responsible for matters of civil law since July 2013, including the protection of intellectual property rights. It therefore falls to New Caledonia to ensure the security of the traditional knowledge associated with biodiversity held by Kanak clans and tribes, but also by individuals within some of the communities present in their territory, including Pacific islanders and those of Asian origin.

28There is now a permanent understanding in place whereby the provinces are responsible for their environmental policies, with each provincial government charged with regulating access to natural resources and sharing the benefits derived from their utilisation.

29The three provinces have therefore adopted their own environmental codes (Loyalty Islands in 2016, North Province in 2008 and South Province in 2009), which means that there are also three different ABS mechanisms in play. The South Province mechanism dates back to 2009, but it was recently updated to take account of the French Law on Biodiversity passed in 2016. The North Province adopted its own ABS mechanism in January 2019. Loyalty Islands Province adopted an ABS system in June 2018 which differs from those in place in the other provinces on certain key points, including the decision not to distinguish between different reasons for accessing biodiversity resources. This means that commercial and non-commercial operations alike require authorisation from the Loyalty Islands Province and the relevant customary authorities, whereas the other provinces have established simplified procedures for research with no commercial purposes.

30New Caledonia, meanwhile, is shortly due to adopt new rules regulating access to biological resources and the sharing of benefits derived from their utilisation, applicable specifically to the Caledonian exclusive economic zone (EEZ). New Caledonia’s 1.3 million square-kilometre EEZ is now better known as the Coral Sea Nature Park, established by order of the New Caledonian government in 2014.

How is traditional knowledge regulated in New Caledonia?

31Having briefly outlined the specific historical and institutional circumstances, let us now clarify what the notion of traditional knowledge entails in New Caledonia, and revisit some previous initiatives designed to protect this knowledge against the risk of unauthorised exploitation.

The notion of traditional knowledge in New Caledonia

32New Caledonia is endowed with exceptional biodiversity, and the rate of endemism among both animal and plant species exceeds 75%. The Kanak people have long been experts in making use of this biodiversity, particularly the islands’ flora, especially for medicinal purposes.

33In Kanak society the utilisation of biodiversity, particularly for medicinal purposes, is the preserve of certain clans and families, who in the past had virtually exclusive ownership of knowledge passed down from generation to generation, sometimes by means of specific rituals. Most of this knowledge is imbued with a sacred dimension, incorporated into complex cosmogonies passed on in accordance with very particular rules, and certainly not available to just anybody. Nevertheless, since the earliest days of the colonial period New Caledonia’s biodiversity has attracted Western botanists keen to describe the flora of Grande Terre and the Loyalty Islands and, where possible, to establish the connections between these plants and the knowledge and expertise held by local clans and tribes. Notable studies of the flora of New Caledonia include the work done by Dominique Bourret at ORSTOM in the 1970s. Building upon this work, a small army of researchers and doctoral candidates have painstakingly created individual files for each plant, describing their properties and the different ways in which they are used throughout the archipelago. In 2017, IRD ceremonially presented the Customary Senate with some 1171 ethnobotanical files focusing on plants of the New Caledonian archipelago and their uses. These files, testament to the wealth of New Caledonia’s botanical resources and knowledge, are now registered with the Agency for the Development of Kanak Culture (ADCK). Additional work to identify connected traditional knowledge is being undertaken by the IKAPALA association on the ground in New Caledonia, while other associations continue to catalogue the islands’ biodiversity. More work will probably be needed to coordinate these separate initiatives.

34Traditional knowledge associated with biodiversity is not limited to medicinal practices. It is important to bear in mind the importance of biodiversity for traditional crafts such as basket-weaving, where a number of specific techniques are utilised.

35There is also a wealth of expertise in botany, not least with regard to the cultivation of yams and endemic plant varieties, as well as specific farming methods, sometimes with cultural characteristics which are different in different parts of the archipelago.

36Last but not least, we must not neglect the importance of intangible heritage, wrapped up with numerous forms of knowledge which are sometimes exposed to risks of theft or appropriation. These include countless songs, dances, stories and legends told in the islands’ many languages (34 languages still spoken, of which four are at risk of extinction). By way of an example, American singer and producer Moby sampled a traditional Kanak song from the island of Tiga without even citing the source, let alone considering any form of remuneration for the island’s people.

37Globalisation, the multiplication of exchanges and the proliferation of new technologies, as well as the desire of local people to open up to the world and to tourists by showcasing their knowledge and know-how, are all factors which serve to exacerbate the vulnerability of intangible heritage, and thus to increase the need for regulation.

Attempts at regulation

38This need for greater regulation is by no means a new phenomenon, and while the importance of what is at stake here seems to be clearly understood, the implementation of intellectual property laws in New Caledonia needs to be sensitive to both the collective underpinnings of Kanak society and the New Caledonian institutional context, with numerous obstacles which will need to be removed or overcome. In the absence of sufficient regulation, contractualisation might be envisaged as a means of facilitating access to resources and sharing benefits. But, once again, the oral culture of many Pacific islands’ societies does not lend itself easily to such contractualisation, especially when the benefits to be shared may not materialise for a number of years.

39In 2011 and 2013 two attempts were made to introduce regulations pertaining to traditional knowledge, first by the government of New Caledonia and subsequently by the Customary Senate.

40The first bill was submitted for consideration by the Conseil d’Etat in 2011, with the latter ruling that this matter fell within the realm of civil law. However, at that time, matters of civil law were still within the purview of France’s central government, not the government of New Caledonia which was therefore not able to legislate on the issue. The bill has been left in the pipeline since, despite legislative authority in matters of civil law being transferred to New Caledonia in 2013.

41The Customary Senate, meanwhile, prepared an alternative proposal and submitted a bill to Congress encompassing both access to resources and the protection of knowledge. At time of writing, this bill has still not been passed. First because the Customary Senate, under the current institutional arrangements, does not have the right to propose legislation, and also because the scope of the bill exceeded the remit of the New Caledonian government and infringed upon the prerogatives of the provinces. 

42In 2015, following the formation of New Caledonia’s 14^th government, President Philippe Germain declared the protection of traditional knowledge to be one of his government’s main priorities. In spite of the short tenure of this government, discussions on the matter continued.

43In 2017 Mr. Poidyaliwane, the member of the new (15^th) government responsible for customary affairs and sustainable development, took the measure of Kanak expectations on this subject and embarked upon a collaboration with the Customary Senate and the organisations involved in the preparatory work, with a view to summing up the current state of efforts in this direction.

44During the formation of the 16^th government, and as discussions continued about its legislative road map, Mr. Poidyaliwane and New Caledonian President Mr. Santa decided to enshrine the protection of traditional knowledge in the General Policy Statement presented to the Congress of New Caledonia on 22 August 2019.

45The government of New Caledonia, in partnership with the Customary Senate, now finds itself in a political context conducive to finding effective responses to the social demands of the Kanak population, among others. In a manner somewhat different from that of other administrative sub-divisions, which depend upon the central government for matters involving the protection of knowledge, the New Caledonian authorities have a duty to act precisely because they have been endowed with the necessary degree of autonomy. As New Caledonians, it is up to us to share our experiences and preoccupations, and to listen to feedback from other countries who have already transposed the Nagoya Protocol into their local context.