Legal geographies of kava, kastom and indigenous knowledge: Next steps under the Nagoya Protocol

Abstract

A binding international regulatory regime over access and benefit-sharing relating to biological resources and related traditional (including Indigenous) knowledge was established through the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity 2010 (Nagoya Protocol), which entered into force in October 2014. The Nagoya Protocol encourages country Parties to take into consideration Indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources and encourages support for the creation of community protocols. With a focus on the kava plant (Piper methysticum), this article explores some of the issues associated with implementation of the Nagoya Protocol at state and community scales. We explore concerns around patent activity and the potential impacts upon customary uses of kava especially in Vanuatu. We then consider some of the recent activities and reforms being undertaken in relation to kastom in Vanuatu, which may be of relevance for the development of access and benefit-sharing regimes and for the improved regional protection of Indigenous knowledge.