Beyond
Intellectual
Property

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Beyond
Intellectual
Property

Toward Traditional Resource Rights for Indigenous Peoples and Local Communities

Darrell A. Posey
and
Graham Dutfield

INTERNATIONAL DEVELOPMENT RESEARCH CENTRE
Ottawa • Cairo • Dakar • Johannesburg • Montevideo • Nairobi • New Delhi • Singapore

Published by the International Development Research Centre
PO Box 8500, Ottawa, ON, Canada K1G 3H9

© International Development Research Centre 1996

Canadian Cataloguing in Publication Data

Posey, Darrell A. (Darrell Addison, 1947–

Beyond intellectual property : toward traditional resource rights for indigenous peoples and local communities

Includes bibliographical references.
ISBN 0-88936-799-X

1. Indigenous people — Legal status, laws, etc.
2. Cultural property, Protection of.
3. Intellectual property.
4. Ethnobiology.
I. Dutfield, Graham.
II. International Development Research Centre (Canada).
III. Title.
IV. Title: Toward traditional resource rights for indigenous peoples and local communities.

GN380.P67 1996     342’.0872     C96-980190-4

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Contents

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Preface

The Working Group on Intellectual Property Rights was established in 1990 by the Global Coalition for Bio-Cultural Diversity, whose mission was to to unite indigenous peoples, scientific organizations, and environmental groups to implement a forceful strategy for the use of traditional knowledge, involvement of local peoples in conservation and development strategies, and implementation of alternative, people-centred conservation models.

With the generous support of the World Wide Fund for Nature International, funds were acquired by the working group to establish a mailing list and a database of publications and people interested in intellectual property rights (IPR) and to hold a number of seminars for indigenous peoples on this subject. The seminars were aimed at alerting indigenous peoples to the relevance and urgency of IPR issues in the context of two major global negotiation processes — the United Nations Conference on the Environment and Development (UNCED), or Earth Summit (Rio de Janeiro, 1992), and the General Agreement on Tariffs and Trade (GATT). Another purpose of the seminars was to listen to the concerns of indigenous communities so as to orient the IPR debate toward their needs, expectations, and practical problems.

During the Earth Summit, the Global Coalition organized the Earth Parliament as the principal venue for indigenous and traditional peoples. This forum brought together indigenous leaders from over 80 countries to discuss issues of mutual concern, including IPR.

Since the Earth Summit, dozens of conferences, seminars, and workshops have been held with indigenous peoples to discuss the evolving debate over IPR. These meetings include the ones held for 4 consecutive years by the United Nations Working Group on Indigenous Peoples in Geneva, Switzerland, as well as the United Nations Conference on Human Rights, held in Vienna, Austria, in 1993. This book embodies these efforts and the input of many people over a considerable period of time.

It is organized around a series of questions that we believe might emerge in a community when a visitor arrives to collect information or cultural or biogenetic materials. These questions would be the same whether the community was an indigenous settlement in the Amazon or a village in rural England. Each chapter begins with a summary of the main issues it addresses and ends with options and suggested actions.

The terminology used here is a mixture of scientific, legal, economic, and political jargon — not always easily understood and even more difficult to translate. Yet, the synthesis necessary to develop the sui generis view of TRR bound us to acquaint the reader with as many of these terms as possible. Words and terms defined in the glossary appear in heavy italics where they are first mentioned.

The book concludes with some warnings and suggested actions for local communities. These are intended to help guide communities through the basic questions that

they should be asking when confronting those interested in their knowledge, natural resources, or biogenetic materials.

As the legal instruments used to invoke IPR are inadequate to protect the cultural, scientific, and intellectual resources of indigenous peoples, the IPR issue has outgrown its name. The term traditional resource rights (TRR) has emerged to define the many “bundles of rights” that relate to protection, compensation, and conservation. The aim in this book then is to outline the nature of these bundles and suggest how these rights can be made accessible to local communities.

In 1994, the Working Group on Intellectual Property Rights changed its name to the Working Group on Traditional Resource Rights in response to the advice, suggestions, criticisms, and, most importantly, invaluable materials and resources provided by over 450 participants. This book likewise reflects the input of many people over this long process.

Darrell A. Posey
Graham Dutfield
December 1995

Acknowledgments

We thank Ernst Josef Fittkau, director of the Zoologische Staatssammlung in Munich, who kindly provided office space in 1989 and 1990, during which time a fellowship from the Alexander von Humboldt Stiftung made it possible to start the first Working Group on Intellectual Property Rights. During that period, four devoted researchers — Ulrike Hagen-Sautier, Christiane Lambert-Dobler, Sybille Nahr, and Andreas Zeidler — and their assistants helped develop the broad intellectual underpinnings for the concept of intellectual property rights (IPR) and traditional resource rights (TRR).

We also thank Chris Elliot of the World Wide Fund for Nature (WWF) International, who had the foresight to recognize the importance of IPR and conserving biodiversity and who secured the first funds for the working group. His colleague, Michael Pimbert, likewise generously supported these efforts and provided many useful insights, ideas, criticism, and encouragement at critical times.

The Heinz Foundation, through a grant to the University of Pittsburgh’s Center for Latin American Studies, provided D.A. Posey with a year’s research time to work on IPR issues as they relate to indigenous peoples of Latin America. This handbook has benefited from this research, as it has from a consultancy with the International Union for the Conservation of Nature (IUCN) on the importance of IPR in the Convention on Biological Diversity vis-à-vis indigenous and traditional communities. We are grateful to Jeffrey McNeely and Caroline Martinet for this opportunity.

The Institute of Social and Cultural Anthropology (ISCA) of the University of Oxford generously provided office space for the Working Group on Traditional Resource Rights during the preparation of this handbook. We are grateful to Isabella Birkin and to colleagues at ISCA for their support and interest in this project, especially Peter Rivière and John Davis.

We also thank John Muddiman and Michael Freeden of the Oxford Centre for the Environment, Ethics and Society, as well as Dennis Trevelyan, principal of Mansfield College, for their support.

This handbook owes its existence, above all, to the hard work and the intellectual contributions of a considerable number of individuals, nongovernmental organizations, and people’s organizations. Some sections of the book were improved significantly as a result of the expert contributions of Kristina Plenderleith, Sarah Laird, and Tom Griffiths, as well as Gernot Brodnig and Eugenio da Costa e Silva. Casper Henderson provided editorial assistance.

The learning process that we needed to go through during the project was enriched by several pioneering individuals and organizations who contributed through discussions, papers, articles, and books and by organizing conferences and workshops. We owe a debt of gratitude to: Julian Berger (United Nations Centre for Human Rights), who provided facilities for workshops for the United Nations Working Group on Indigenous Populations; Stephen Brush and the participants of the Intellectual Property

Rights and Indigenous Knowledge Conference at Lake Tahoe, California, in October 1993; Valerio Grefa, who organized the meeting sponsored by Coordinadora de Organizaciones Indigenas de la Cuenca Amazónica on intellectual property rights and biodiversity in Santa Cruz, Bolivia, in October 1994; the IUCN Task Force on Indigenous Peoples, chaired by Cindy Gilday; Peter Jaszi, Martha Woodmansee, and the participants of the conference called Cultural Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the Post-Colonial Era at Bellagio, Italy; Aroha Mead and participants of the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples in Whakatane, Aotearoa New Zealand, in June 1993; participants at the Intellectual Property Rights, Indigenous Cultures and Biodiversity Conservation seminar organized by the Green College Centre for Environmental Policy and Understanding at the University of Oxford in May 1993; and Dinah Shelton and all the participants at the Montezillon Conference.

In addition, we thank the following people and institutions: the African Centre for Technology Studies and its former executive director, Callestous Juma; Alejandro Argumedo and the Indigenous Peoples’ Biodiversity Network; Anna Borioni and Massimo Pieri of Cooperativa Técnico Scientífica de Base; Donna Craig, Macquarie University; Anthony Cunningham, past president of the International Society of Ethnobiology; Elaine Elisabetsky; Andrew Gray; Anil Gupta, Society for Research and Initiatives for Sustainable Technologies and Institutions; Alan Hamilton, WWF, UK; Christine Kabuye of the National Museums of Kenya and president of the International Society of Ethnobiology; Anatole Krattiger and William Lesser at the International Academy of the Environment; Gary Martin, Unesco; Jeffrey McNeely, Caroline Martinet, and Jeremy Carew-Reed of IUCN; Pat Mooney and Hope Shand, Rural Advancement Foundation International; Katy Moran, Healing Forest Conservancy; Dorothy Myers; Vandana Shiva; Marcos Terena; Third World Network; the World Council of Indigenous Peoples; Renée Vellvé and Henk Hobbelink, Genetic Resources Action International; Farhana Yamin, Foundation for International Environmental Law and Development; Durwood Zaelke, David Downes, and Chris Wohl, Centre for International Environmental Law; and Charles Zerner, Rainforest Alliance.

We are extremely grateful to those who kindly sent material and information in response to our questionnaire, especially the following people (in addition to those already mentioned): Janis Alcorn, Biodiversity Support Program, WWF, USA; Patrick Bernard, Fonds Modiale pour le Sauvegarde des Cultures Autochtones; Centre for International Research and Advisory Networks/Nuffic; Shelton Davis, World Bank; Kristin Dawkins, Institute for Agriculture and Trade Policy; Madhav Gadgil, Indian Institute of Science; Stephen King, Shaman Pharmaceuticals; Hector McQueen, Edinburgh University; Patrick O’Keefe; Gordon Pullar, Keepers of the Treasures; Helen Ross, Centre for Resource and Environmental Studies; Abayomi Sofowara; Johanna Sutherland, Department of International Relations, Australian National University; Peter Usher, Inuit Tapirisat of Canada.

Liz Evans (Human Genome Organization) and Keith Howard (School of Oriental and African Studies, University of London) kindly agreed to be interviewed for the book,

and the following people and institutions responded to our specific requests and enquiries: R. Anderson, director of the British Museum; Bruno Bath, first secretary, Brazilian Embassy in the United Kingdom; Miges Baumann, Swissaid; Jeroen Breekveldt, NoGen; Cristina Bubba Zamora; Lynne Caporale, Merck; Mac Chapin, Native Lands; Jean Christie, Rural Advancement Foundation International; Jason Clay, Rights and Resources; Stephen Corry, Survival International; José Graça Aranha, consultant of the Development Cooperation and External Relations Bureau for Latin America and the Caribbean of the World Intellectual Property Organization; Henry Greely, Stanford Law School; Charlotte Haynes, International Work Group for Indigenous Affairs, International Service for National Agricultural Research; Byongwon Lee and Judy Van Zile, University of Hawaii at Manoa; and John Murra and Francis Sullivan, WWF, UK.

John Barton (Stanford Law School), Michael Gollin (Keck, Mahin and Cate), Tom Greaves (Bucknell University), Thandi Hurworth (Intellectual Property Property Bulletin), and Janet McGowan (Cultural Survival) all kindly reviewed drafts of what became Chapter 8 of this book.

Finally, the we would like to thank Sandra Garland for her painstaking and efficient editing of the final draft.

Darrell A. Posey
Graham Dutfield
December 1995

Introduction

The idea of intellectual property rights (IPR) first developed in European and North American law as a mechanism to protect individual and industrial inventions. Until recently, it was considered unlikely that IPR could pertain to the collective, transhistorical, and (in Western legal terms) nebulous qualities and assets of indigenous cultures. However, more and more, the traditional lifestyles, knowledge, and biogenetic resources of indigenous, traditional, and local peoples have been deemed by governments, corporations, and others to be of some commercial value and, therefore, to be property that might be bought and sold. At the same time, discussions on the Trade-Related Aspects of Intellectual Property Rights section of the General Agreement on Tariffs and Trade (GATT-TRIPs) and at the United Nations Conference on Environment and Development (the Earth Summit, UNCED), where the Convention on Biological Diversity (CBD) was developed, have made it clear to indigenous peoples that IPR law is important to them and is certain to become even more so in the future.

It has been suggested that, if corporations can secure IPR protection for their “inventions” — even those derived from the knowledge systems of indigenous peoples — then indigenous peoples, too, should be entitled to IPR protection. Some indigenous peoples are using IPR law already, at least to a limited extent. However, many more have questioned this approach, saying that even if existing IPR protection and compensation mechanisms were fully applied to traditional knowledge and biogenetic resources, this would not be an appropriate mechanism to strengthen and empower indigenous peoples. Dividing intellectual, cultural, and scientific property into three separate areas is strange and unwelcome to indigenous peoples who see these as part of a whole, more like the Western concept of culture. Communally shared concepts and communally owned property are fundamental aspects of traditional societies. Privatization or commoditization of these entities is not only foreign but incomprehensible as well. However, indigenous peoples and traditional communities are increasingly involved in market economies and are seeing an ever-growing number of their resources traded in those markets.

This book is the result of a long process of consultation that began in 1988 during the First International Congress of Ethnobiology in Belém, Brazil. Indigenous and traditional peoples (those referred to in the CBD as “indigenous and local communities embodying traditional lifestyles”) from various parts of the world met with scientists and environmentalists to discuss a common strategy to stop the rapid decrease in the planet’s biological and cultural diversity. Major concerns included the unique ways in which indigenous and traditional peoples perceive, use, and manage their natural resources and how programs can be developed to guarantee the preservation and strengthening of indigenous communities and their traditional knowledge.

The congress produced The Declaration of Belém, which outlined explicitly the responsibilities of scientists and environmentalists in addressing the needs of local

communities and acknowledged the central role of indigenous peoples in all aspects of global planning. Although the language of The Declaration of Belém may seem somewhat antiquated today, it was the first time that an international scientific organization recognized a basic obligation that “procedures be developed to compensate native peoples for the utilization of their knowledge and their biological resources” (Statement 4). Since 1988, dozens of other institutions, professional societies, and organizations have followed suit.

The Declaration of Belém

As ethnobiologists, we are alarmed that:

Since

• Tropical forests and other fragile ecosystems are disappearing;
• Many species, both plant and animal, are threatened with extinction; and
• Indigenous cultures around the world are being disrupted and destroyed;

And given

• That economic, agricultural, and health conditions of people are dependent on these resources;
• That native peoples have been stewards of 99 percent of the world’s genetic resources; and
• That there is an inextricable link between cultural and biological diversity;

We, members of the International Society of Ethnobiology, strongly urge action as follows:

1. Henceforth, a substantial proportion of development aid be devoted to efforts aimed at ethnobiological inventory, conservation, and management programs.
2. Mechanisms be established by which indigenous specialists are recognized as proper authorities and are consulted in all programs affecting them, their resources, and their environment.
3. All other inalienable human rights be recognized and guaranteed, including cultural and linguistic identity.
4. Procedures be developed to compensate native peoples for the utilization of their knowledge and their biological resources.
5. Educational programs be implemented to alert the global community to the value of ethnobiological knowledge for human well-being.
6. All medical programs include the recognition of and respect for traditional healers and the incorporation of traditional health practices that enhance the health status of these populations.
7. Ethnobiologists make available the results of their research to the native peoples with whom they have worked, especially including dissemination in the native language.
8. Exchange of information be promoted among indigenous and peasant peoples regarding conservation, management, and sustained utilization of resources.

At the International Society for Ethnobiology’s (ISE) 1990 World Congress in Kunming, China, delegates from 52 countries established a global action plan — The Kunming Action Plan — calling for specific and urgent action to stop the destruction of biological and cultural diversity as mandated in The Declaration of Belém. Specifically, the Global Coalition for Bio-Cultural Diversity was established to unite indigenous peoples, scientific organizations, and environmental groups to implement a forceful strategy for the use of traditional knowledge, involvement of local peoples in conservation and development strategies, and implementation of alternative, people-centred conservation models.

One of the first tasks of the Global Coalition was to form a Working Group on Intellectual Property Rights. Now called the Working Group on Traditional Intellectual, Cultural and Scientific Resource Rights (or simply the Working Group on Traditional Resource Rights (WGTRR)), it has attempted to build on the concept of IPR protection and compensation, while recognizing that traditional resources — both tangible and intangible — are also covered under a significant number of international agreements. The term “property” in IPR was dropped, because property for indigenous peoples frequently has intangible, spiritual manifestations, and, although worthy of protection, is inalienable or can belong to no human being. Instead, the term “traditional resource rights” (TRR) was adopted to reflect the necessity of rethinking the limited and limiting concept of IPR. The term “traditional” refers to the cherished practices, beliefs, customs, knowledge, and cultural heritage of indigenous and local communities who live in close association with the Earth; “resource” is used in its broadest sense to mean all knowledge and technology, esthetic and spiritual qualities, tangible and intangible sources that, together, are deemed by local communities to be necessary to ensure healthy and fulfilling lifestyles for present and future generations; and “rights” refers to the basic inalienable guarantee to all human beings and the collective entities in which they choose to participate of the necessities to achieve and maintain the dignity and well-being of themselves, their predecessors, and their descendants.

The concept of TRR can accommodate a wide range of relevant international agreements as a basis for a sui generis system of protection for indigenous peoples and their resources — that is, a system that is unique and does not belong to an existing category of IPR. In other words, there may be much more to build upon in the international community than we have realized.

This book is only a broad and, therefore, relatively superficial treatment of the complex range of subjects it claims to cover. However, this breadth must be maintained to reflect a holistic perspective. Maintaining it is indeed the only way to transform IPR into TRR, so that equitable sharing and effective conservation of biological and cultural resources can be attained.

Chapter 1

Who visits communities, what are they seeking, and why?

Outsiders visit indigenous and local communities for many reasons and for various lengths of time. They may be seeking knowledge, renewable and nonrenewable natural resources (such as biogenetic resources and minerals), or goods made by local people. If so, they will approach local people directly or indirectly through a nongovernmental organization, government agency, research institution, or religious organization. Often they will simply search without notifying the local people. Information, resources, and goods may be of great importance to outsiders. They may be used to make money for a company or person, although they may also have wider benefits, such as improving health and nutrition or preventing hunger and famine by increasing food production. Some outsiders will be interested in protecting areas where indigenous peoples live or in managing the local resources.

Who visits indigenous communities?

Visitors may come to help local people. Many others, in pursuing their own interests, do not intend to either help or harm them. However, even without hostile intentions, they may be ignorant of the possible implications of their activities. Others may be planning to take advantage of local people and will probably wish to hide their true intentions. For several reasons, then, it is advantageous to find out who visitors are and why they have come.

Tourists

Tourists are usually short-term visitors traveling in groups, although people may come individually to enjoy leisure activities, like sightseeing, walking, sunbathing, and skiing. Mass tourism channels large numbers of people into certain locations where hotels and other facilities have been developed to accommodate them. But many people in industrial countries are dissatisfied with mass tourism and prefer to travel in smaller groups that come into closer contact with nature or local people.

Tourism can have a profound impact on indigenous cultures. The sale of handicrafts and art can be a useful source of income for many communities, but sometimes the demand leads to mass production, a deterioration in quality, and the production of imitations by outsiders who may deceive tourists about their source (see Blundell 1993 for Canadian examples). Tourists enjoy watching traditional performing arts and ceremonies, but because they are repackaged and commoditized as forms of entertainment for tourists, such performances can accelerate the erosion of a people’s cultural identity. Ideally, indigenous peoples should have sufficient political autonomy either to ensure that they can control tourists in the way that the Kuna of Panama and the Awa Federation in Ecuador control researchers (see Chapter 14) or to manage tourism themselves (perhaps as part of a local development strategy including an element of conservation). Otherwise, they may be exploited as were the Toraja people in Sulawesi (see Box 1.1).

Indigenous peoples are likely to encounter tourism of various types: nature tourism, adventure tourism, and community-controlled tourism.

Nature tourism

Nature tourists travel to see wildlife and landscapes of outstanding natural beauty. The rich animal populations of the national parks and game reserves of East Africa attract tourists from all over the world in particularly large numbers. Unfortunately, the large influx of nature tourists can have a negative impact on the very ecosystems they want to enjoy.

In Kenya, the Maasai Mara Game Reserve is one of the most popular destinations in Africa (Loita Naimina Enkiyio Conservation Trust Company 1994). At peak season, revenue from tourist fees can be as high as $18 500 a day.¹ But tourism in the park has

¹ All monetary values are expressed in US currency except as indicated.

been allowed to develop with virtually no controls. Too many lodges have been built, too much firewood is being used, and no limits are placed on the use of tourist vehicles. Consequently, the park is being eroded and degraded. The local population is not benefiting from park revenues because the 25 percent of revenues collected at the gates that is supposed to be distributed to the local community actually amounts to no more than 5 percent because of weak administration.

To counteract the negative impact of popular tourism, the concept of ecotourism has emerged. This is a type of nature-based tourism that, in principle, is

• Based on relatively undisturbed natural areas;
• Nondamaging, nondegrading, and ecologically sustainable;
• A direct contributor to the continued protection and management of the natural areas visited;
• Subject to an adequate and appropriate management regime (Valentine 1993).

However, this description reflects an ideal rather than the usual situation. Environmentalists, especially in developed countries, hope that it can help create the necessary incentives for the protection of natural environments. The Costa Rican government, for example, hopes that ecotourism will allow the national parks to become

Box 1.1

Ethnic tourism in Tana Toraja

The Toraja people of Sulawesi, Indonesia, recently became a major tourist attraction because of their spectacular funeral ceremonies, effigy-filled burial cliffs, and elaborate architecture, which are becoming “international icons of a seductively exotic culture.” As a consequence of this popularity, tourists complained that the Toraja communities were becoming too commercialized. In response, the local government designated some communities and burial cliffs “tourist objects,” and brought in a team of consultants (none of whom were Toraja) to plan a zoning system. One proposal was for the preservation of traditional houses and graves in some zones, which would require the permission of hundreds or even thousands of people associated with each of them. Another was for a “tradition-free area,” in which the Toraja would perform their rituals and dances of life and death in front of an audience of tourists, even though the mixing of such rituals is forbidden according to tradition. Through their inability to understand Toraja culture, the consultants provoked resentment and stirred up rivalry between sections of Toraja society. In 1987, several communities refused to accept tourists. However, they soon reopened to continue the trade in souvenirs on which they had become dependent. This example shows how the commercial exploitation of cultural property can become irreversible and can contribute to the loss of a people’s autonomy.

Source: Adams (1990, pp. 31, 33)

self-financing (Burnie 1994). However, it has not been demonstrated that tourism, however well intentioned, can generate substantial revenues without an increasingly negative environmental impact. For example, a study of the impact of tourism in Belize reported that “despite some promising results, much ecotourism in Belize merely replicates the problems characteristic of mass-tourism: foreign exchange leakage, foreign ownership and environmental degradation” (Wheat 1994, p. 17).

Adventure tourism

Adventure tourists travel to the most isolated regions of the world to enjoy activities like trekking, rafting, wildlife viewing, and visiting “exotic” peoples. Popular destinations include the Himalayas, Southeast Asia, and East Africa.

Even though such alternatives to mass tourism are smaller in scale and claim to be lower in their social and environmental impacts, they may have a greater effect on local communities than mass tourism. This is because the local people may be less acculturated than those in less remote areas and, therefore, less accustomed to influxes of often very curious people who may not know how to interact with their “hosts” in a culturally sensitive manner. Such visitors may “penetrate further into the personal space of residents” than mass tourists (Butler, in Zurich 1992, p. 611). Also, even small numbers of visitors can be highly intrusive in terms of their numbers relative to local residents and their demands for food, water, and firewood. Furthermore, they can act as a catalyst for mass tourism.

Community-controlled tourism

According to one commentator (Swain 19, p. 37), if “an ethnic group has legally recognized power in determining local use of the national infrastructure (education, communication, transportation and health systems), and exploitation of natural resources, then it is likely to play a role in its own tourism development.” The best option for indigenous peoples may be community-controlled tourism, which may be an independent initiative or one component of a development project funded wholly or partly by outside sources — for example, through an integrated conservation–development project (ICDP) (see Wells and Brandon 1993; Brown and Wyckoff-Baird 1992). ICDPs are community-based projects, both large- and small-scale, that are intended to ensure a balance between conservation and economic development. Examples with a tourism component include the Annapurna Conservation Area Project in Nepal, the Sian K’an Biosphere Reserve in Mexico, and Amboseli National Park in Kenya.

The Mayan organization, Toledo Ecotourism Association (TEA), in Belize accommodates tourists in settlements that local people build using local materials. According to one observer, “Tourists are looked after by the villagers themselves, ensuring that all the financial benefits are kept within the community. Special emphasis is put on preserving their ancient culture and fragile environment . . . aware of the danger of their tourism business becoming a monoculture, the TEA members are also developing a firm

agricultural base” (Wheat 1994, p. 19; see Young 1995 for examples in Australia and Canada).

The potential benefits for local communities from tourism within ICDPs may be substantial, especially if they are well endowed in terms of natural beauty and wildlife. If not and if they also lack good roads, hotels, and restaurants, the potential is much reduced. It is very important for conservation planners to understand that communities within ICDPs where there is tourism must be able to receive benefits directly and not through a bureaucracy. Zimbabwe has attempted to follow this path with the Communal Areas Management Programme (CAMPFIRE), which allows local communities to own wildlife in their areas and receive money from tourists who wish to take part in hunting expeditions and safaris (Wells 1992, p. 239).

Hobbyists

Some people come to indigenous communities to collect plants, animals, and minerals for personal interest. They might collect flowers, butterflies, attractive stones, or archeological objects. Hobbyists have no commercial interest in collecting and do so as a hobby or pastime.

Collectors

Some visitors may sell the items they collect to companies or other people — perhaps even in other countries. They may be supplying them to botanical gardens, universities with plant collection programs, or private and public research institutes. Some collections may be limited and not have a significant environmental impact; however, in some cases, collections may be so large as to deplete the resources being sought. The commercial side of the collecting operation may not be obvious to the community; in fact, the purpose of the collection may not be commercial at all, yet items acquired casually by travelers may later be sold to a gift shop. Indeed, often traders learn of desirable artifacts through tourists’ acquisitions.

Extractors

Extractors remove natural resources such as minerals, timber, plants, and animals. These may be nonrenewable resources whose disappearance may radically alter the landscape or renewable resources whose removal may threaten local biodiversity and possibly local livelihoods. The scale of extraction can vary enormously because the “extractor” may be anyone from an individual to a multinational company supplying a global market. Some extractors may not be concerned that extraction of renewable resources is taking place at a level beyond the rate at which they are replaced naturally, leading to their depletion or even elimination.

Developers

“Developers” is a rather broad term that can include governments, corporations, or even nongovernmental organizations (NGOs) interested in developing an area (transforming it both economically and socially). Development entails a wide range of possible activities, such as road building, construction, and land colonization schemes, and may be large, medium, or small in scale. Its aims may be to generate wealth locally or to provide wealth for people in other parts of the country. Some development activities can be highly beneficial for local communities, but there may be environmental, economic, and social effects about which communities may not be fully informed.

It may be difficult even for development planners to predict all the consequences, both positive and negative. Planning such activities requires the collection of information about the area being “developed,” perhaps as part of an environmental impact assessment or a social impact assessment. These are economic surveys that allow planners to predict as accurately as possible the positive and negative consequences arising from the implementation of a project. Conducting them may sometimes be a condition set by a bank or government that is supplying funds for a project.

Out of a growing realization of the need to use resources wisely for the benefit of present and future generations, new information about traditional cultures, including traditional knowledge as it relates to the environment and to natural resource management, can be of enormous interest to representatives of development planners. For example, in recent years, some governments interested in indigenous knowledge applied to environmental management have been supporting scientific research intended to find out more about such practices and to prove their effectiveness (Ross et al. 1994). NGOs are also extending their activities into learning more about indigenous agricultural practices.

Representatives of NGOs

Nongovernmental organizations may be local, national, or international, small or very large organizations. NGOs also vary in their activities, including development, conservation, and offering assistance, such as medical services, to local people. Some of them may be interested in setting up projects for environmental conservation or development. Others (or the same NGOs) may be interested in helping local people in emergencies like famines, floods, wars, and earthquakes. Some conduct research to influence governments and public opinion, and are sometimes called “pressure groups.”

Conservation NGOs, like the World Wide Fund for Nature (WWF) and Conservation International, may be interested in protecting certain areas or particular species, and, in some cases, in helping indigenous peoples.

Other well-known international NGOs are Oxfam, Cultural Survival, and Rural Advancement Foundation International (RAFI). Representatives of NGOs can sometimes be useful sources of information for local people. However, NGOs are not usually community-based and are much less accountable to local communities than people’s organizations (see Chapter 6).

Government representatives

National governments may send scientists, soldiers, health officials, medical teams, and managers of protected areas, such as national parks, into local communities. They may carry out inventories of the country’s natural resources, monitor activities and events taking place on national territory, or secure national borders against people in neighbouring countries. Some of these people may be offering assistance to local communities.

Representatives of religious groups

Missionaries may wish to stay in a local community for a long period to convert local people to their religion or to provide services, such as health and education. Some religious groups stay with local people to learn their language and translate religious texts into it. Missionaries may wish simply to provide material benefits to communities. On the other hand, some religious groups are intent on imposing their spiritual and cultural values on local people and this can cause long-term social problems.

Representatives of corporations

Profit-seeking bodies may be interested in collecting biological material or other valuable resources or in developing an area in a variety of ways. Their aim is to make money from their visits, either directly by selling the things they collect, buy, or extract, or by using them to make other products, such as medicines, or indirectly by investigating the possibilities of commercial development. The profit may be paid to the owners of the business or shared among the people who invest money in the corporation.

Other bodies may not be motivated by the desire to make a profit. They may be charitable foundations that raise money to support activities intended to improve the welfare of people (see Chapter 6).

Researchers

Researchers, such as anthropologists, archeologists, and biologists, may be involved in scientific or cultural investigation. They may be individual academics or they may be employed by companies, governments, universities, botanical gardens, NGOs, or conservation organizations. Some of them may be interested in staying in the area for a long time. They are likely to be sympathetic to local community members but may not necessarily feel any obligation to assist local people by, for example, sharing the products of their work — data, film, artifacts, resources, and profits.

Photographers, journalists, and film crews

Photographers may be tourists who do not wish to sell their pictures or professional photographers, either freelance or employed by a newspaper, magazine, or agency. Journalists are looking for interesting subjects for a news report. Film crews may be

filming for a television or movie company, or they may want to sell their film to such a company, or even to an advertising agency. The interest of such people may lie in the local community itself, in events taking place in the area, or in the natural environment.

The community may be approached and requested to cooperate, though some photographers, journalists, and film crews may not think it necessary to ask permission or even to respect the privacy of local people (see Chapter 4).

What are they seeking?

Academic researchers, such as anthropologists and ethnobiologists, may be far more interested in the knowledge and culture of people living in an area than in its natural resources. Archeologists try to find ancient artifacts and human remains to learn more about past cultures, perhaps the ancestors of the current inhabitants. Others may be interested in past and present culture for commercial reasons. They may wish to trade in aspects of the cultural heritage of local people, such as manufactured objects, pictures, crafts, or video and audio recordings of songs and performances. Other visitors may be seeking to collect biogenetic resources (biological and genetic) or other resources used by traditional communities. Alternatively, they may be compiling information about the area, its people, or the local environment. Such visitors may be very interested in local knowledge. Those seeking biogenetic or mineral resources may not know how or where to find them and may seek local guidance.

Outsiders are not the only ones interested in collecting traditional knowledge and resources; indigenous peoples are also becoming more and more aware of the economic value of their knowledge and resources and are approaching outsiders and outside organizations to explore the possibility of commercially exploiting knowledge and resources on their own terms.

Local people may be asked to provide the following:

• Knowledge of current use, previous use, or potential use of plant and animal species, as well as soils and minerals;
• Knowledge of preparation, processing, or storage of useful species;
• Knowledge of formulations involving more than one ingredient;
• Knowledge of individual species (planting methods, care, selection criteria, etc.);
• Knowledge of ecosystem conservation (methods of protecting or preserving a resource that may be found to have commercial value, although not specifically used for that purpose or other practical purposes by the local community or the culture); and
• Classification systems of knowledge, such as traditional plant taxonomies.

Other categories of possible interest include

• Renewable biological resources (such as plants, animals, and other organisms) that originate (or originated) in indigenous lands and territories;
• Cultural landscapes, including sacred sites;
• Nonrenewable resources (such as rocks and minerals);
• Handicrafts, works of art, and performances;
• Traces of past cultures (such as ancient ruins, manufactured objects, human remains);
• Images perceived as “exotic,” such as the appearance of indigenous people, their homes and villages, and the landscape; and
• Cultural property (culturally or spiritually significant material culture, such as important cultural artifacts, that may be deemed sacred and, therefore, not commoditizable by the local people).

Why is it being sought?

There are many reasons why knowledge and biological resources are sought — for scientific research with or without a commercial object, such as pure academic research, biodiversity prospecting, or agricultural research for commercial development. Resources and knowledge may be investigated to find ways to help conserve them for present and future generations.

Academic research

Research is systematic investigation aimed at the discovery of new facts and the development of new conclusions based on data collected in the field or laboratory. Individuals may carry out academic research to obtain educational qualifications or as part of their academic career at a university. Such research might entail observations of traditional communities and interviews using photos, drawings, or recordings, and may include the collection of plants, animals, soils, and other objects. Noncommercial research may be funded by the researcher, the university, the government, an NGO, a private foundation, or a corporation. In the latter cases, funding institutions receive copies of research data and reports. Funders can dictate the manner in which intellectual and biological materials collected as part of the research are disseminated and frequently claim ownership over final reports.

Biodiversity prospecting for industry

Biodiversity prospecting (sometimes called bioprospecting) is searching for commercially valuable genetic and biochemical resources, with particular reference to the pharmaceutical, biotechnological, and agricultural industries. With technical advances made over the past few decades, the ability of scientists to study the commercial potential of species has improved enormously. Consequently, many companies have initiated or expanded their study of the natural world, particularly the species-rich tropical forests. In carrying out this study, scientists often rely on the guidance of local communities who have sophisticated knowledge of local plants and animals.

Of the 119 drugs with known chemical structures that are still extracted from higher plants and used in industrial countries, over 74 percent were discovered by chemists attempting to identify the chemical substances in plants used in traditional medicine (Farnsworth 1988). Drug companies may investigate not only plants but also animals, insects, and microorganisms in search of material of use to Western medicine.

Botanic research

Botanic research grew as travelers brought home plants that were unknown or different from those growing at home. They were cultivated for ornamental or economic use or added to botanic gardens. The interest in classifying and comparing new species to those already known led to expansion of the science of taxonomy. Taxonomy is vital to botanic research because it provides a universal language by which plant material can be unambiguously described.

Botanic research has several functions based on a need to know and understand plant life. Researchers may wish to understand how plants thrive and reproduce, their biochemistry, and their interactions within a plant community. The goal of this research may be improving health care, increasing crop productivity, industrial development, or pure academic research that may later be used for commercial development. Researchers, therefore, may be visiting a community for various reasons, but their first priority is to catalogue and collect samples of plant material. They may be interested in only one type of tree or plant or in the biodiversity in a particular ecosystem. In any case, they will need the cooperation and knowledge of local people to guide and inform them in the limited time that they have to do their research.

Agricultural research

The aim of agricultural research is to improve the productivity, and resistance to pests and disease, of crop plants to help farmers improve their harvests. During the 1960s, new breeding techniques produced high-yielding strains of maize, rice, and wheat, and farmers were encouraged by the international agricultural research centres (IARCs) to use these varieties instead of traditional ones (see Chapter 2). At the time, this “Green Revolution” was regarded as a landmark in agricultural development; productivity was increased considerably in some areas by planting high-yielding varieties (HYVs) in

monocultures on large areas of land. Previously, this land had been used for traditional agriculture, based on planting a diverse range of crops and crop varieties (landraces).

The new HYVs require a large input in terms of energy, water, expensive agrochemicals (fertilizers and pesticides), and equipment to maintain their productivity, yet they are still susceptible to disease and pests. The productivity gains of the 1960s and 1970s did not continue into the 1980s and 1990s, and today we recognize that the Green Revolution had many negative economic, social, and environmental effects, including the loss of local varieties, increasing landlessness, unemployment, debt, growing inequalities of income, and degraded soils.

Since the 1980s, a greater share of agricultural research, especially in developed countries, is commercially supported. Companies are developing biotechnology, such as genetic engineering, to breed new crop varieties that, again, threaten to undermine the diversity of traditional crops.

Agricultural research is dependent on new material from areas where traditional farming practices persist because of the high diversity of crop varieties and environmental adaptations. Although some researchers have become interested in looking at methods of farming and crop improvement carried out by indigenous communities and traditional farmers and in working in collaboration with indigenous groups, most researchers still do not appreciate the effectiveness of traditional agriculture.

Conservation of biogenetic resources

Many biogenetic resources are being rapidly depleted because of irresponsible development and overexploitation. Sometimes inappropriate government policies allow corporations relatively unlimited access to local resources, instead of requiring them to extract material at a sustainable level. Traditional farming techniques — intercropping and developing crops that thrive in a particular location — have maintained the productivity of land over many generations. Unfortunately, some of these techniques are disappearing as large expanses of land are planted instead in cash crops (like sugarcane, bananas, and coffee) for export. This trend has been stimulated by the adoption of HYVs and by the growth in export of agricultural products by indebted countries in accordance with the instructions of the lender governments and multilateral development banks (such as the World Bank and the Inter-American Development Bank).

Many NGOs and even some governments and intergovernmental institutions have become more interested in traditional agricultural practices for various reasons, such as preventing the erosion of crop genetic diversity and solving other problems associated with the spread of monocultures. There are two main types of conservation: in situ conservation and ex situ conservation.

In situ conservation is the maintenance of a species of plant or animal as part of a living ecosystem. One function of protected places is to preserve plant or animal species in their natural habitat so that they may continue to thrive without disturbance.

Indigenous peoples and local communities have an important role to play in conservation. Where farmers have bred crop varieties that are suited to their land and climate, especially under adverse conditions, encouraging those farmers to continue

growing and developing specialized crops is the kind of in situ conservation that is essential if growing populations of the world are going to be fed. Ironically, in situ conservation is also important to the seed companies, even though the replacement of land-races by their modern varieties is largely responsible for the erosion of the genetic diversity of traditional crops.

The principle of in situ conservation is upheld in Article 8 of the CBD, especially paragraph j, which directs that the practice should “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity” (see Chapter 10).

Ex situ conservation is the maintenance of species of plants or animals away from their place of origin to save them from extinction or because they have a useful trait that researchers want to study. The conservation place may be a research institute, a germplasm bank, a zoo, or a botanic garden. The species may be kept in the country of origin or abroad, but the intention is to protect and conserve them. In the future, they may be reintroduced to their source in response to circumstances like natural disasters and wars that threaten biological diversity. For example, the International Centre for Tropical Agriculture (see Box 2.1), which keeps seed banks of the main crop varieties grown in Rwanda, plans to distribute seeds to Rwandan farmers to replace stocks lost because of war.

Ex situ conservation need not require resources to be kept in an international institution far from the communities where they occur naturally. For example, in Ethiopia the Biodiversity Institute is working closely with farmers to save indigenous crops (see Box 1.2).

Conservation of landscapes

When the United Nations list of national parks and equivalent reserves was first compiled, the main priority was conservation of wildlife and ecosystems. The intention in creating protected areas was to save them for future generations to enjoy, but it is now recognized that many of these places will change or even be impoverished if there is not a continuation of the patterns of use and occupation that have been taking place for hundreds of years. Consequently, the original designation “protected area” has been widened to include human occupation and activities wherever these are compatible with conservation.

However, this does not necessarily result in sustainable land use. In Kenya, the Maasai Mara Park has become so overused by tourists that the local council is seeking to extend the reserved area into the adjacent lands of the Loita Maasai. To do so would disrupt not only a community following a way of life that helps sustain the semi-arid environment but would also desecrate their sacred places (see Box 1.3). Any extension of tourist activities into the lands of the Loita Maasai would have to be carried out with extreme caution and sensitivity.

Box 1.2

The Biodiversity Institute

The Biodiversity Institute (formerly called the Plant Genetic Resources Centre) in Ethiopia provides farmers with germplasm to further their experimentation in crop development. Farmers’ landraces are preserved in the gene bank and are accessible to them. Community seed production, marketing, and distribution can play a vital part in the multiplication of such varieties using traditional farmer networks for seed trials and selections.

On-farm landrace conservation and enhancement

Since 1988, farmers, scientists, and extension workers have been involved in a program of genetic resource conservation in northeastern Shewa and southeastern Walo, with support from the Unitarian Service Committee of Canada. The aim of the project is to help farmers maintain crop diversity by maintaining cultivars and also by improving their genetic performance. Materials previously collected from surrounding areas and regions are given to farmers to plant and to carry out simple forms of mass selection to improve their characteristics. Farmers are assisted by breeders, and other scientists have access to the farmers’ fields to carry out research. Most of the farmers are women and were selected through farmer cooperatives.

Maintaining elite indigenous landrace selection on peasant farms

The Biodiversity Institute, in conjunction with Debre Zeit Research Centre of the Alemaya University of Agriculture, is developing a program to maintain elite indigenous wheat germplasm collected by the Biodiversity Institute over the last 7 years. Various genetic lines are selected for their adaptation to specific environmental conditions, such as stress. After yield testing, two or more superior lines are chosen for further multiplication and distribution to farmers. The farmers multiply and use the stock best suited to their conditions. The Biodiversity Institute maintains representative samples for long-term storage at their gene bank. This enables farmers to experiment with the elite landrace varieties without the threat of losing the old indigenous populations.

At the national level, varieties adapted from local landraces can be released to ensure that farmers have a long-term choice of seeds and can fall back on improved versions of adapted local varieties when high-risk crops fail. This is particularly relevant in areas with marginal growing conditions or extremes of environment, where improved varieties fail to meet the requirements of farmers.

Field gene banks for drought-prone areas

A field gene bank is being developed in collaboration with the Alemaya University of Agriculture at Dire Dawa in eastern Ethiopia, which will test famine crops and involve farming communities in maintaining and evaluating seed. This program is essential for future food production in Ethiopia with its periodic severe droughts, especially as the war and famine in the country in the 1980s gravely damaged the agricultural infrastructure with families forced to eat seed normally saved for the next planting season. In Ethiopia, several wild plants, known as “famine crops,” have the potential of surviving droughts where conventional crops perish. The Biodiversity Institute is carrying out experiments on yeheb (Cordaeuxia edulis), a drought-resistant perennial bush that grows in the Ogaden region. Its seeds are used by nomads as a highly nutritious source of food.

Source: Worede and Mekbib (1993)

Box 1.3

Forest of the lost child, Naimina Enkiyio, Loita Hills, Narok County, Kenya

One of the last indigenous forests in East Africa is located in the remote Loita Hills. It is protected and venerated by the Loita Maasai who use the forest for their traditional ceremonies and as a source of medicinal plants and herbs.

The Loita Maasai are seminomadic pastoralists who continue to follow their traditional lifestyle, maintaining strong clan and age-group affiliations. There are about 17 000 members of this Maasai subgroup. They hold their land according to customary law with no individual rights of ownership. Their efforts to remain independent have been supported by Dutch missionaries who created the Ilkerin Loita Integral Development Project, through which the Maasai received agricultural and community training. Today, the project is managed independently by a board of Maasai elders. Funds are augmented by a Dutch NGO, but more than 50 percent is internally generated.

The lifestyle of the Loita Maasai is threatened because of mismanagement and overexploitation of the nearby Maasai Mara reserve. Although their land is held under customary law, legal title to the Loita Hills is held by Narok County Council in trust for the Maasai, which wants to turn Naimina Enkiyio forest into a nature reserve to attract tourists. Such a designation would exclude the Loita Maasai from their ancestral land, which is not only of great cultural importance to them but provides essential dry-season grazing.

The Loita Maasai are challenging Narok County Council’s interpretation of the Trust Land Act and are suing them to prevent the Kenyan Minister for Local Government from approving the plan for Naimina Enkiyio. They see their action as a test of Article 8j of the CBD (see above) that has been signed by Kenya.

Source: Loita Naimina Enkiyio Conservation Trust Company (1994)

National parks

According to the United Nations’ list (IUCN 1994), national parks are

Protected areas managed mainly for ecosystem conservation and recreation, . . . [specifically] natural areas of land and/or sea, designated to (a) protect the ecological integrity of one or more ecosystems for this a future generations, (b) exclude exploitation or occupation inimical to the purposes of designation of the area and (c) provide a foundation for spiritual, scientific, recreational and visitor opportunities, all of which must be environmentally and culturally compatible.

The first national parks were created in the United States to protect the most spectacular areas of what was perceived by incomers to be wilderness from human interference (Yellowstone National Park was established in 1872). Many countries have followed this concept of preservation and exclusion by working to save areas of outstanding natural beauty, high diversity, or large wildlife populations by following policies that bar people from moving into the protected area or excluding people who may have been living there already.

Box 1.4

The Manu Biosphere Reserve

Although international organizations may believe that they are working to provide protected areas that will also enhance the lives of indigenous peoples, insufficient communication with local communities may have the opposite effect. Unfortunately, damage is most likely to become apparent only after the fact. “Learning by experience” has been the rule in many cases.

The Manu Biosphere Reserve is the largest national park in the world. The Manu National Park was established by the Peruvian government in 1973 and, in 1977, the reserve area was extended when it became an official part of Unesco’s biosphere reserve system. In 1986, Manu National Park was declared a world heritage site (see Chapter 10) because of its outstanding natural value. The reserve includes the national park, along with a “reserved zone” and a “cultural zone” as buffers in which traditional subsistence activities by the indigenous population are allowed.

Much effort has been expended by the Peruvian government and international NGOs, such as the WWF, to conserve the area within the Manu reserve, because it is perceived as a unique example of the upper Amazonian ecosystem, which has survived because of its inaccessibility. However, to the local populations the goals of the conservators are suspect because of the “museum mentality” inherent in them (the intention has been to maintain the status quo, disregarding the need for continuing evolution).

It was inevitable that isolated indigenous groups should come into contact with visitors from outside and have their perceptions of life changed by this contact. Repeatedly, contact between the indigenous peoples of the area and groups supposedly working for their interests have been marred by the complete failure of those groups to discover what the indigenous people believe would be in their best interests.

Introduction of the indigenous people to Western culture through contact with missionaries and park guards has undermined indigenous cultures. Health programs in the area have also failed to meet the needs of the people and have undermined their traditional medical practices. Contact with visitors brings disease against which isolated people have little immunity, but the imposition of Western medical practices to fight Western disease has severely disrupted communities by marginalizing and devaluing the shamans and their traditional medicine.

Now, the indigenous peoples are fighting back, working through groups such as Coordinadora de Organizaciones Indigenas de la Cuenca Amazónica (COICA) and the Native Federation of the River Madre de Dios and Affluents (FENAMAD). FENAMAD is demanding that the whole national park be declared traditional indigenous territory to centralize and strengthen indigenous control. They want access to business and commerce for people living in the park. FENAMAD has taken control of the health of the local people through the FENAMAD Health Project, which seeks to promote traditional medicine using only those aspects of Western medicine that complement traditional practice, such as immunization programs. COICA has declared that “the park is not a reality like a people, the park is like a law, changeable, dependent, violable” and has called for the government to recognize and rebuild ethnic territories, because the best protection for a territory is for the indigenous peoples to administer it according to their own culture.

International NGOs should learn from the reactions of the indigenous people living in the Manu reserve so that they can apply the knowledge in the preservation of other areas of outstanding natural value using the sustainable methods that have shaped those ecosystems.

Source: Gradwohl and Greenberg (1988), COICA (1990), A. Gray, Oxford, UK, 1993 (personal communication)

Buffer zones

Since the 1980s when the concept was introduced as part of Unesco’s Man and the Biosphere Programme, the most popular means of harmonizing human activity with wildlife conservation has been by establishing a buffer zone. Buffer zones are areas around a protected area, such as a national park, in which only certain activities are allowed. They help preserve the plant and animal life living in a protected area from damage by outside activities, such as large-scale agriculture or settlement by migrants.

Activities allowed within buffer zones are traditional agriculture, for example, or the infrastructure for a small ecotourism industry. These are considered to be in harmony with the protection of the park. However, the philosophy guiding the management of protected areas and buffer zones may create conflicts, especially if governments and NGOs involved with designating and administering them are not sufficiently sensitive to the concerns of the local people (see Box 1.4). In a national park or buffer zone, the local people are likely to encounter several categories of visitor, whose length of stay will vary along with their social and economic impact.

Governments and NGOs involved in the conservation of landscapes may be unaware that such landscapes may have been transformed, over generations, by the activities of local people and are, therefore, not wild landscapes but cultural landscapes (see Chapter 10). Conservationists must be aware that they are not managing wildernesses but a kind of cultural property to which the local people who have inhabited the area for generations have a prior legitimate claim.

Conclusions

Members of local communities must know the identity of their visitors. Interactions with visitors can be highly beneficial. Indigenous people may be able to gain useful information, broaden their knowledge through cultural exchanges, and collaborate in conservation, research, and development projects that could provide monetary, social, and political benefits.

On the other hand, communities may be faced with visitors who intend to take advantage of them and who may use dishonest means to extract information and resources. The following sections of this book explain how local communities can obtain maximum benefit from such interactions and show how they can exercise their rights not to collaborate if they so desire.

Chapter 2

What happens to traditional knowledge and resources?

A large quantity of goods, resources, and knowledge flow from traditional communities. In this chapter, we discuss where plant and human genetic material, knowledge, and articles like works of art are kept for conservation, scientific, and other purposes or, in some cases, traded commercially.

Knowledge, biological resources, manufactured goods, works of art, and even human remains can be sought-after items to be collected, stored, and sometimes bought and sold. Transactions involving these items can take place at great distances from their source, and it can be difficult, or even impossible, to determine their final destination once they have left the source community.

Conservation centres for biogenetic resources

Human, animal, and plant material is needed for research. Researchers must examine and analyze the material they collect and preserve it for posterity. Biological resources (perhaps accompanied by information about them) may be conserved at the site of origin or in another place or country. Ex situ conservation centres may be botanic gardens, museums, seed or gene banks, or laboratories owned by governments, intergovernmental agencies, or corporations.

Plant genetic material

Collection and storage of plant genetic material has been taking place for centuries, as the result of curiosity, for taxonomic research, or for commercial purposes as the global market for germplasm has grown. The oldest and the most numerous collections are held in industrialized countries (the North). Most of the germplasm in these collections has come from the greatest centres of genetic diversity, which are mainly within the tropics (the South) (Kloppenburg 1988a,b; Juma 1989).

Botanic gardens

There are at least 1550 botanic gardens in the world, of which about 800 are actively involved in plant conservation, ensuring that endangered or disappearing plant species do not become extinct. To coordinate their work, botanists working for these gardens share their knowledge through organizations such as the Botanic Gardens Conservation International (BGCI). BGCI sends out reports and information to all its members, as well as operating an exchange of plant species. Most major botanic gardens increasingly collaborate with other gardens throughout the world. For example, the Royal Botanic Gardens (RBG) at Kew, England, is working with the Limbe Botanic Gardens in Cameroon to encourage the conservation of the natural resources of Mount Cameroon by the local population.

Agricultural research centres

Agricultural research centres hold collections of crop germplasm for research and breeding of improved varieties and also for conservation. Conservation has been a minor facet of their work, but the failure of the Green Revolution varieties to maintain their vigour and diminishing pest resistance make it necessary to maintain a plentiful supply of fresh genetic material from which to develop replacements. This can be drawn from landraces

held either in collections or on farms. The Consultative Group on International Agricultural Research (CGIAR) is the major international association for the improvement and maintenance of world food-crop productivity. CGIAR’s 16 member organizations, or IARCs (see Box 2.1), hold more than 500 000 accessions, which are held “in trust for the world community” (Diversity 1994; Seedling 1994), including up to 40 percent of all unique samples of major food crops held by gene banks worldwide. The IARCs may work within a country in conjunction with national agricultural research centres, or independently. The emphasis on the CGIAR system’s collections being held “in trust” is important because it prevents them from becoming absorbed into national collections or owned by national governments or countries in which they are located.

One of the primary centres is the International Plant Genetic Resources Institute (IPGRI) based in Rome, whose objectives are as follows:

• Strengthening national programs;
• Contributing to international collaboration in the conservation and use of plant genetic resources;
• Improving strategies and technologies for conservation of plant genetic resources;
• Providing an international information service.

Plant material collected by researchers may be preserved in seed banks, field gene banks, herbariums, or as part of in vitro collections (see below). These may belong to an institution such as a botanic garden, a museum, or a company’s seed bank. For example, herbariums may be found associated with universities or museums, and in vitro collections may be held in laboratories by biotechnology companies.

Seed banks are collections of seeds, stored in some central location. Seeds cannot be stored indefinitely because they lose viability after a certain period. Loss of viability varies according to seed type, but in general only orthodox seed is suitable for this type of collection.

Field gene banks are of use for collecting species with recalcitrant seed, especially those with commercial potential for agricultural use or forestry. Field gene banks are more expensive to maintain and far less efficient in terms of space than seed banks because species are conserved by planting them under carefully controlled conditions to allow seed and plant tissue to be harvested for reuse and for breeding trials. Because the plant is growing and flowering, great care must be taken to isolate the specimens from cross-fertilization with wild varieties; this further extends the area needed for planting. To protect the widest genetic diversity possible, many specimens of different varieties are needed.

In vitro storage of germplasm is the preserving of living plant tissue under laboratory conditions. Samples are stored at low temperatures to inhibit growth, but they do not remain viable over long periods and thus need to be renewed and recultured. In vitro storage is intensive and expensive and requires skilled personnel, making this method less popular than others.

Box 2.1

Members of the Consultative Group on International Agricultural Research

• Center for International Forestry Research (CIFOR), Indonesia; founded 1992 — Focuses on conserving and improving productivity of tropical forest ecosystems.
• International Center for Tropical Agriculture (CIAT), Colombia; founded 1967 — Focuses on germplasm development (global mandate for beans, cassava, forage crops, and regional mandate for rice) and on resource management research in Latin America and the Caribbean (with research in land use, hillsides, forest margins, savannah).
• International Centre for Maize and Wheat Improvement (CIMMYT), Mexico; founded 1966 — Focuses on crop improvement (with research on maize, wheat, barley, and triticale).
• International Potato Center (CIP), Peru; founded 1970 — Focuses on potato and sweet potato improvement (with research on potato and sweet potato).
• International Center for Agricultural Research in Dry Areas (ICARDA), Syria; founded 1975 — Focuses on improving farming systems in North Africa and West Asia (with research on wheat, barley, chickpea, lentils, pasture legumes, and small ruminants).
• International Center for Research in Agroforestry (ICRAF), Kenya; founded 1977 — Focuses on mitigating tropical deforestation and land depletion and alleviating rural poverty through improved agroforestry systems.
• International Center of Living Aquatic Resources Management (ICLARM), Philippines; founded 1977 — Focuses on improving production and management of aquatic resources in developing countries.
• International Crops Research Institute for the Semi-Arid Tropics (ICRISAT), India; founded 1972 — Focuses on crop improvement and cropping systems (with research on sorghum, millet, chickpeas, pigeon peas, and groundnuts).
• International Food Policy Research Institute (IFPRI), USA; founded 1975 — Focuses on identifying and analyzing policies for meeting food needs of developing countries, particularly the poorer groups within these countries (with research on ways to achieve sustainable food production and land use, improve food consumption and income levels of the poor, enhance the links between agriculture and other sectors of the economy, and improve trade and macroeconomic conditions).
• International Institute of Tropical Agriculture (IITA), Nigeria; founded 1967 — Focuses on crop improvement and land management in the humid and subhumid tropics and on farming systems (with research on maize, cassava, cowpeas, plantain, soybeans, rice, and yams).
• International Irrigation Management Institute (IIMI), Sri Lanka; founded 1984 — Focuses on improving and sustaining the performance of irrigation systems through better management.
• International Livestock Research Institute (ILRI), Kenya and Ethiopia; founded 1995 — Focuses on livestock production, disease control, and forage crops.
• International Plant Genetic Resources Institute (IPGRI), Italy; founded 1974 — Focuses on conserving gene pools of current and potential food and forage crops (with research in plant genetic resources).
• International Rice Research Institute (IRRI), Philippines; founded 1960 — Focuses on global rice improvement in major rice environments: irrigated, rainfed lowlands, uplands, deep water, and tidal wetlands.
• International Service for National Agricultural Research (ISNAR), Netherlands; founded 1979 — Focuses on strengthening national agricultural research systems through improvement in their policy planning, organization, and management.
• West Africa Rice Development Association (WARDA), Côte d’Ivoire; founded 1970 — Focuses on improving rice varieties and production methods among smallholder farm families in the upland–inland swamp continuum, the Sahel, and mangrove swamp environments.

Source: Ayad (1994), CGIAR (1995)

Herbariums

Dried samples of plants and trees are kept in herbariums for reference, not for propagation or experimentation purposes. Botanic gardens and universities may maintain a herbarium along with other long-term record storage facilities. If well organized according to internationally accepted rules, herbariums can be vitally important in recording the flora of the world. Establishing community-owned and controlled herbariums can also be an important means of informing and supporting peoples’ knowledge about their local flora and its uses (see Box 2.5).

A carefully tended herbarium will provide a record of the flora of a locality that may last hundreds of years. Therefore, it is worth ensuring that the collection is made correctly from the outset according to well-established methods. Advice and help in setting up a herbarium can be obtained from national botanic gardens.

Human genetic material

Human cells can be preserved, stored, and even cultivated in vitro in the form of cell lines. Cell lines can be stored indefinitely at low temperatures and are capable of reproducing under artificial conditions in a laboratory to provide a constant supply of the full genetic code of the donor organism. Alternatively, human DNA from collected human material, such as blood, bones, hair roots, or cheek cell samples can be reproduced indefinitely using polymerase chain reaction (PCR) technology, which can be performed in a laboratory. (The process patent for PCR technology is owned by Hoffman La-Roche; see Appendix 1 for further information.) This technique is less expensive than developing cell lines but does not preserve the genetic code in its entirety.

Twenty-six institutions are recognized under the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purpose of Patent Procedure (administered by the World Intellectual Property Organization (WIPO); see Box 8.1) as depositories of biological material for the purpose of dealing with patent applications. The largest of these is the American Type Culture Collection (ATCC) in the United States, a private nonprofit corporation, where at least three cell lines originating from indigenous people have been stored in connection with patent applications (see Box 2.2). Such deposits are not freely available, even to the donor, until a patent is granted. Human biological material is considered to be patentable in the United States because when it is removed from a human body it is considered by the Patents and Trademarks Office to be nothing more than a chemical, or what patent lawyers sometimes call “a composition of matter.”

Work on the Human Genome Diversity Project is likely to increase markedly the collection and storage of blood, hair root, and cheek cell samples from members of targeted indigenous groups. The planners of this project appear to take the view that the ex situ conservation of DNA from isolated indigenous groups is necessary because of their “endangered” status. The project itself, as well as the whole idea of patenting human cells and genes, has been opposed strongly by indigenous peoples (see Appendix 1).

Box 2.2

Three patent claims based on the cells of indigenous people

The Guaymi patent claim

This claim resulted from a project carried out by the Centers for Disease Control (CDC) of the United States Department of Health and Human Services and the National Institutes of Health (NIH) in collaboration with Panamanian scientists. The project is an investigation of the rare human T-cell lymphotrophic viruses (HTLV), one of which (type II) is known to be the causative agent of adult T-cell leukemia and a neurologic disease. For some reason, infection with HTLV type II is common among the Guaymi as well as other Amerindian peoples in North and South America, who have also donated samples.

According to Isidro Acosta, president of the General Congress of the Ngobe-Bugle (Guaymi), “Doctors came to the communities of Pandilla in small groups and started to collect indigenous blood, pretending that the indigenous people were suffering from a mortal disease and that the blood study was necessary to investigate the malformation or type of disease they suffered. Participants were given a small pill to compensate for the loss of blood” (Acosta 1994, p. 48).

One of three local women suffering from leukemia was found to have an unusual capacity to resist the disease. A T-cell line infected with HTLV-II was developed in the United States from blood donated in 1990, and a patent application was filed by the NIH later that year, first in the United States and later worldwide under the Patent Cooperation Treaty (an international agreement that makes it possible for a single patent application to be filed in several countries in which patent protection is desired).

The abstract claimed that this was “the first isolation of HTLV-II from a defined nonintravenous drug using population.” The CDC claims that the purpose was to foster greater interest in HTLV-II research and to make the cell line available to researchers. Nevertheless, it would appear that the application was filed without notifying the woman, any other Guaymi person, the project’s Panamanian collaborators, or the Panamanian government, and without consideration of the cultural and religious sensibilities of the Guaymi people. Although the CDC claims that the donor gave her “oral informed consent” (Bangs 1993/94), it appears unlikely that she was made aware of the possibility of a patent application or of the implications. Condemnation came from several quarters, including RAFI, which had discovered the patent application, as well as the World Council of Indigenous Peoples and the General Congress of the Ngobe-Bugle. Isidro Acosta wrote to the US Secretary of Commerce asking that the application be withdrawn and to the Patents and Trademarks Office asking it to reject the application. He also denounced the patent claim at the GATT Secretariat and at a meeting of the Intergovernmental Committee on the CBD, saying that making “living cells . . . patented private property . . . is against all Guaymi traditions and laws.” Less than a month later the patent application was withdrawn, allegedly because of the high cost of pursuing a patent claim.

It seems more likely that the real reason the claim was abandoned was the international outcry. As far as Acosta is concerned, the matter is still not closed. He is demanding that the cell line be removed from the ATCC and repatriated. However, according to the Budapest Treaty, the sample must be kept for 30 years.

Box 2.2 concluded

The Hagahai of Papua New Guinea patent claim

This patent application is for a T-cell line developed from a blood sample that came from a member of the Hagahai, a group of 260 hunter-cultivators first contacted by government and missionary workers in 1984. A cell line from a donor’s blood was cultured and infected with a local variant of HTLV-I, making it potentially useful in the development of vaccines and diagnostic assays for the screening and treatment of Melanesian people infected with this virus. After it was deposited at the ATCC, patent applications were filed by the NIH. In 1995 a US patent was granted in spite of objections from the Papua New Guinea government.

The Solomon Islands patent claim

This application is similar to the previous one. This time the donors were a woman with a history of hepatitis contracted through a blood transfusion and a man with an enlarged liver and spleen (hepatosplenomegaly). The T-cell line, which was also deposited at the ATCC, contains a local HTLV-I viral strain. Again the patent applicant is the NIH, and two of the inventors are also named in the application. They claim that the two Solomon Islanders gave their informed consent. Nevertheless, the Government of the Solomon Islands has asked the United States government to withdraw the application.

Further information on these patent applications may be obtained from RAFI (see Resource Guide, Canada).

The commercial sector

Traditional knowledge, products, and resources, even genetic material extracted from a donor organism, can become tradable goods. These may be bought and sold in markets or transferred directly to the purchaser, often by prior agreement.

Markets

Markets are a temporary destination of manufactured products, foodstuffs, and biogenetic resources, which may be bought and sold to anybody prepared to pay for them. Foods and biogenetic resources may be traded in their raw state or processed, perhaps several times over. Each time they are processed and the further they are taken from their source, value is added so that they become more expensive. Therefore, the providers of raw materials selling locally receive a small proportion of the price obtained by the seller of the finished article, especially when they are bought and sold many times during their journey from source to final purchaser. Gift shop owners may buy crafts or textiles from local markets very cheaply to sell them, often at inflated prices, in specialist shops in other countries. In many countries, companies that sell natural remedies and herbal preparations also purchase their raw materials in markets. However, companies that produce Western medicines usually buy them directly from professional collectors.

Commercial collections

Plant collections are the most obvious form by which knowledge and biological resources are supplied to those with commercial interests. Those doing the collecting may be individuals who collect for immediate payment, university-based plant-collection programs, botanical gardens supplementing their field-research budgets, private for-profit brokers, or private and public research institutes based in developing countries.

Traditional knowledge is an important element in the commercialization of natural products, because it consists of a wealth of information on how these products could be commercialized. Currently, traditional knowledge is supplied to commercial interests through databases, academic publications, or field collections.

Museums, art galleries, and the trade in works of art

Certain objects play an important part in reinforcing a people’s cultural identity and have deep religious significance. Nevertheless, these kinds of objects may be appropriated by museums, art galleries, and individuals, and bought and sold, sometimes at high prices, in the international art market. Occasionally they are stolen from indigenous groups or illegally smuggled out of countries. Sometimes individuals are forced, by poverty, to break customary law forbidding the sale of such objects to outsiders. Even then, the sellers will obtain only a fraction of the price paid by a museum, gallery, or private collector. The ethnic art market is a highly lucrative sector, with private collectors paying huge sums of money for individual items valued for the skill and artistry of the manufacturer, their antiquity, or their perceived exotic and “primitive” characteristics.

Museums may display a large range of objects of interest to the public. These may include objects produced by people who lived in the past, but they may also display items manufactured by present-day peoples, including sacred and secret objects. Art galleries display works of art and crafts. They may be large and own several semipermanent displays or small privately owned galleries offering specialist collections, such as textiles or carvings acquired from certain parts of the world. Sacred objects of indigenous peoples have been returned on occasion, a recent example being the sacred weavings of the people of Coroma, Bolivia (see Chapter 10).

Museums, universities, and human remains

Human remains that are not in marked graves are often considered by law to have been abandoned and no longer the cultural property of the descendants of the people who were buried. Instead they become the property of the state, the landowner, or the institution sponsoring the excavation. In some countries, large quantities of skeletal remains have been collected and stored over the years by state or private museums and universities and displayed for public view.

Many of these are not ancient bones found by archeologists; for example, the 25 northern Cheyenne men, women, and children whose remains were returned to their tribe in 1993 by the Smithsonian Institution in Washington were killed during an unsuccessful revolt against the US army in 1879. Army doctors had collected their bodies to examine human skeletal diversity and the effects of modern weapons (National Geographic 1994).

Indigenous peoples are now actively contesting the right of these institutions to own remains of past members of tribes. Until recently, the Smithsonian Institution possessed the remains of 18 000 indigenous people, but the remains of 2000 people have been returned to their descendants in response to demands of indigenous peoples, supported by the 1990 Native American Grave Protection and Repatriation Act.

For well over a century, the British Museum has been a major collector of artifacts and human remains from around the world. Its policy is subject to a law that forbids the museum from transferring ownership of objects that it possesses. According to the Museum’s Director (R. Anderson, personal communication, 1994), “To ‘return’ objects would be to break the law.” However, the museum does not display human remains of peoples whose descendants, the museum believes, would object to them doing so.

Libraries, archives, and electronic databases

Information about the cultural and biogenetic resources of indigenous peoples discovered by scientists, researchers, and other writers, such as journalists, may be published in books or recorded on audio- or videotape, or as photographs. These may be stored in libraries, archives, or electronic databases. The development of the electronic mail network has opened up a worldwide communication system. Users communicate and have access to information via systems such as the Internet, which offers coverage direct to most continents and via satellite to Africa and the Pacific. Through Internet, users can gain access to universities, library catalogues, databases, and specialist networks such as GreenNet, a global computer communications network for environment, peace, human rights, and development issues. GreenNet, based in the United Kingdom, is part of the Association for Progressive Communications, which has access to more than 20 000 groups and individuals.

Although databases can be protected under copyright law, and users may have to pay for the right to inspect them, it is difficult for the original suppliers of information in databases to prevent data from entering the public domain and to control use of such information. One very large database of ethnobotanical information is NAPRALERT, located at the University of Illinois at Chicago, from which information is supplied to companies for a fee.

There has been a proliferation in the amount of indigenous knowledge being stored and disseminated. Usually, access to information is not conditional upon recognition of the IPR of indigenous peoples. However, the case studies described below (Boxes 2.3 and 2.4) are examples of attempts to store traditional knowledge and

Box 2.3

The indigenous knowledge resource centres

A growing network of indigenous knowledge resource centres is emerging to collect, record, and disseminate traditional knowledge, such as the Center for Indigenous Knowledge for Agriculture and Rural Development (CIKARD) in Iowa, USA, the Centre for International Research and Advisory Networks (CIRAN) in the Netherlands, and the Leiden Ethnosystems and Development Programme (LEAD), also in the Netherlands. CIKARD, for example, “focuses on understanding, recording, preserving, and using the indigenous knowledge of farmers and rural people around the globe, and on making this knowledge available to development professionals and scientists” (Warren (Director of CIKARD) 1990, p. 1). The network now consists of four global centres, two regional centres, and 18 national centres in developing countries. It has a newsletter called Indigenous Knowledge and Development Monitor, organizes international conferences, and publishes regional and national databases of indigenous knowledge research. The databases are intended to contribute to sustainable development and to education, while enhancing the status of traditional knowledge.

According to an editorial in the newsletter (vol. 1(3), p. 1), traditional knowledge “should be included, alongside the more usual scientific knowledge, as part of national and international discussions and the strengthening of intellectual capacity.”

The prevailing view of the network is that there should be a free flow of information and that this will be of benefit to developing countries and local communities. However, there is no stated policy regarding IPR or TRR. Although indigenous peoples may indeed benefit from increased respect for their knowledge, and from access to new knowledge, their own intellectual contributions to the databases can be freely exploited for commercial purposes by companies with no obligation to compensate communities.

For further information, contact CIRAN/Nuffic (see Resource Guide, Netherlands).

information about indigenous peoples while either trying to enhance the status of traditional knowledge or respect the desire of indigenous peoples to restrict culturally sensitive information.

Control of collections, herbariums, museums, and databases by the community is the best way to ensure that the main beneficiaries are local people and that visitors’ access is restricted (see Box 2.5). These systems can be used not only to educate local people, but also to educate visitors so that they are more aware of the rich cultural and intellectual heritage of local people and of the potential economic and scientific benefits of collaborating with them on a more equitable basis.

In Canada, the Dene Nation has a library/archive that includes the following:

• An audiovisual oral history collection in the Dene language;
• A photograph collection;

Box 2.4

The World Foundation for the Safeguard of Indigenous Cultures

This organization, set up in France in 1993, has the following objectives:

• To contribute to the protection of mankind’s heritage in full consultation with indigenous organizations;
• To convince individuals, nations, and their leaders of the importance of safeguarding the ethnic cultural wealth of indigenous peoples;
• To keep a record of the knowledge and techniques created by indigenous peoples over the centuries;
• To promote and encourage research and the making of films, recordings, and other documents by indigenous peoples;
• To send teams for field research wherever existing populations and groups want to assert their cultural differences;
• To promote the preparation of such documents on threatened populations about whom little information exists.

Its main activities are listing documents (including publications, films, and recordings), collecting traditional knowledge, conserving it in archives at the organization’s headquarters, and making it available on request. Two archives are planned: a public one that will be open without restrictions and a reserved archive containing documents that may “directly or indirectly prejudice the concerned populations . . . [and] scientists, film producers, etc., who would have given or lent their documents to the Foundation and the representatives of the indigenous peoples whose memories have been collected will have the right to restrict access to them. Nevertheless the FMCA will be able to release those materials for research, once a written request explaining its purpose has been approved by the Foundation Management Council, or by an appointed or elected Ethics Committee.” Thus, the foundation is aware of the fact that some information is sensitive and should not be disclosed freely.

For further information, contact Patrick Bernard, WOFIC/FMCA (see Resource Guide, France).

• Maps, which contain information on treaties, land occupancy, territorial claims, Dene place names, and traditional conservation; and
• Text materials.

The Dene have submitted a proposal to develop the library further and implement a database system for the benefit of the Dene people. They hope that it will be an invaluable educational resource and a provider of employment. (For further information, contact Bill Erasmus, Dene National Chief.)

Box 2.5

Programa de Colaboración sobre Medicina Tradicional y Herbolaria

This organization, PROCOMITH, based in Chiapas, Mexico, was set up to conduct research into the traditional knowledge of local Maya-speaking communities related to the use of plants. Research data are published in the native languages of the people living in the region.

One of PROCOMITH’s activities is the establishment of the Chiapas Ethnobotanical Herbarium and local Ethnobotanical Gardens for the purposes of research, public education, and the promotion of indigenous knowledge and culture.

In parallel with the herbarium, ethnomedicinal/ethnobotanical databases are being assembled in local languages. Because these databases will be in multimedia format, they can be made accessible to all local people, even those who are illiterate, as well as to students and visiting scientists. PROCOMITH is thereby helping to provide a resource for a local population that has been unable to create it alone.

For further information, contact PROCOMITH (see Resource Guide, Mexico).

Source: Berlin (1993)

Conclusions

Traditional knowledge and resources are frequently stored ex situ in specialized conservation centres, such as botanic gardens, herbaria and agricultural research centres. Sometimes biogenetic resources are bought and sold after they have been collected for scientific purposes. Museums, art galleries, and universities also store collections of resources, artifacts, and even human remains from traditional communities. Whenever communities are asked to provide information and resources they should find out before agreeing to cooperate where and in what form visitors intend them to be stored, and how these visitors and the institutions funding the collections intend to use them afterwards. By doing so communities will be in a stronger position to dictate beneficial terms for accessing, commercializing, and trading their traditional resources. Given that many communities are concerned that knowledge and resources that are of value to them are being lost, the best option may be to conserve them in situ. Community-controlled conservation centres can ensure that protecting knowledge and resources benefits local peoples first and foremost.

Chapter 3

Who benefits from traditional resources?

The value of end-products developed from resources and knowledge of indigenous peoples is usually far greater than the benefits returning to those peoples. Often, collectors of biological resources are unaware of any legal obligation to local people, as are the companies or institutions sponsoring the collections or buying the samples. Just compensation is a moral obligation; it can also be argued that international principles make compensation a legal right. In this chapter we discuss the value and importance of traditional knowledge and explore the notion of just compensation. We also deal with the implications of publishing knowledge and how this can increase the number of potential beneficiaries.

The value and importance of traditional knowledge

It is probably impossible to estimate the full market value of traditional knowledge, but it is certainly enormous and may increase as advances in biotechnology broaden the range of life forms containing attributes with commercial applications. By one estimate, the market value of plant-based medicines alone (many of which were used first by indigenous peoples) sold in developed countries amounted to $43 billion in 1985 (Principe 1989, pp. 79–124). However, only a tiny proportion of this (much less than 1 percent) has ever been returned to the source communities (Posey 1990).

Modern agricultural practices depend upon crop species with characteristics of productivity and disease resistance that can only be maintained and improved with the continuous input of new germplasm. Most of this new germplasm comes from landraces (or folk varieties) bred and conserved by traditional communities over millennia. Agriculture also benefits from plant-based pesticides — some of which may first have been used by traditional communities — as do the companies that produce and sell seeds and agrochemicals. In this way, indigenous and other traditional cultivators subsidize modern agriculture but receive no payment in return except, perhaps, for small payments from local people who agree to supply seeds and other samples to outside organizations (see Boxes 8.2 and 8.3 in Chapter 8 for examples).

The pharmaceutical industry continues to investigate (and confirm) the efficacy of many medicines and toxins used by indigenous peoples (see Box 3.1). Other industries manufacturing personal care products, foods, and industrial oils also benefit from the knowledge and resources of indigenous peoples. However, few companies making such products have shown concern for the fact that traditional knowledge is sometimes lost and resources disappear when land is converted, sometimes to produce more raw materials for these same companies.

Recently the personal care and food industries have both led and responded to a rise in consumer interest in “natural” products and ethically sound harvesting practices. As a result, a number of companies and nonprofit organizations have begun to work with indigenous communities to acquire information leading to the development of new products and to create socially and environmentally sound strategies for acquiring raw materials. However, on occasion companies obtain knowledge and biological material by deception — for example, by sending employees to communities who do not admit that their purpose is to search for knowledge or biological resources that will be of financial benefit to their company.

Traditional knowledge produces more than commercial benefits for others. Academics and scientists rarely become rich by recording traditional knowledge, yet their academic careers may be enhanced considerably by doing such research in terms of improvements in both their status and their salaries.

Box 3.1

Homalanthus nutans

Homalanthus nutans is a rainforest species collected in Western Samoa for the National Cancer Institute (NCI) by Paul Cox of the Brigham Young University. It has yielded the anti-HIV compound prostratin. Collections were undertaken in forests threatened by logging operations. In interviews with local healers, Cox discovered that this species is used to treat yellow fever and thought that it might prove of interest to the NCI as well. Cox has brokered an agreement between the NCI and these communities.

At the NCI, experiments demonstrated effectiveness against HIV-1. This case is unusual in that it is a recent example of pharmaceutical research and development led by traditional knowledge. It provides us with a clear-cut example of traditional knowledge leading to what may be a commercial product. Without traditional knowledge, it is likely that the NCI would never have learned of this plant.

For further information, contact Paul Cox, Brigham Young University, Salt Lake City, UT, USA.

Publication and the public domain

When the knowledge of a traditional community is passed on to an outsider who subsequently publishes it, it becomes difficult for the community to control how the knowledge is used and who else receives it, because it falls into the public domain (it is not secret or protected by law and can be used freely by anyone, including companies that find the knowledge useful and valuable). Even though most visitors to communities are probably not interested in commercially exploiting traditional knowledge, they may unwittingly or deliberately pass on information to people who are. Results of academic research may be passed on through publication or by contributing to a germplasm collection.

Publication

Academic researchers are expected to publish their research findings, and companies have been able to acquire useful information by reading these research reports. In fact, academic literature is commonly consulted by industry researchers, and valuable knowledge (such as ethnobotanical information) can quietly become part of the research and development (R&D) efforts of commercial enterprises. The drug company, Merck, for example, decided to investigate the commercial potential of a tree bark extract used in hunting by the Urueu-Wau-Wau of Brazil after learning about the plant and its characteristics from a magazine article (Jacobs et al. 1990; McIntyre 1989).

An even better known example is that of the rosy periwinkle (Catharanthus roseus), which had been used for centuries as a treatment for diabetes by several indigenous peoples around the world. Research into this plant began following a literature search by

a US drug company (Eli Lilley) and a Canadian university. This then led to the discovery of two compounds, vinblastine and vincristine, which have since been used to treat certain cancers.

Another common outcome of publication is that even though the book or research report resulted from information provided freely by indigenous people, the researcher, writer, publishing company, or sponsor of the research claims copyright. Government or university sponsors often justify holding copyright because public funds were used to support the research project. For example, a project funded by the European Union to survey the ethnobotany of the Topnaar people of Namibia resulted not only in the export of medicinal plants by the researchers but also in the claim by the European Commission that it owned all research results (Cunningham 1993a). Although plant samples were deposited in Namibia’s national herbarium and research results were passed on to the Namibian authorities, these are more likely to benefit the Namibian government than the people whose cooperation made the project successful.

Failure to acknowledge indigenous sources is an issue of which some indigenous peoples have become aware. For example, the New Zealand government published and claimed copyright for two documents on Maori resource management without acknowledging the many Maori informants (Mead 1993, pp. 33–34). Sometimes such problems can be solved easily by making local people principal or coauthors of papers and books, or coproducers of films and videos.

Warning readers of their obligations may be somewhat effective in guaranteeing the proper use of published material. For example, in a Ciba Foundation publication, authors Elisabetsky and Posey (1994) inform readers that the information contained in their article was authorized and freely given by indigenous leaders. In the paper’s opening paragraph, readers are advised that by reading the paper they are ethically and morally bound to respect the source of the information and to share any benefits, economic or otherwise, with the indigenous community.² Although such a warning may not have legal force in some countries, it nonetheless carries a universal force of moral and ethical standards and obligations. Another possibility is defensive publication, which is a means of blocking patenting (see Chapter 8).

Germplasm collection

Collections of plants and other biological material for academic purposes may be open to commercial exploitation. Neither source communities nor academic researchers may be aware that a commercial product has been developed based on material or information in such a collection. However, in some cases collectors of plants and other biological material for commercial purposes are academics under contract to industry. These contracts make it possible for the researchers to continue with their often

² The statement reads: “The authors of this paper embrace the principles of the Covenant on Intellectual, Cultural and Scientific Property developed by the Global Coalition for Biological and Cultural Diversity. The data were obtained with full consent of the Kayapó people. The paper is published in the spirit of joint partnership with the Kayapó to advance knowledge for the benefit of all humanity. Any information used from it for commercial or other ends should be properly cited and acknowledged: any commercial benefits that should accrue directly or indirectly should be shared with the Kayapó people” (Elizabetsky and Posey 1994, p. 78).

underfunded botanic, pharmacologic, or other academic research, but frequently no practical distinction is made to source communities between collections for academic purposes and those for commercial ends.

What constitutes “just compensation”?

Whether compensation is merited on moral grounds alone or is a legally enforceable right depends on national laws, implementation of principles in international laws (see Chapter 10), and the ability of members of a community to negotiate an agreement with a company or collecting organization that includes compensation. The question of compensating source communities for knowledge and biogenetic resources is problematic and inevitably will vary from case to case, not only in quantity but also in form (monetary or other) of compensation. Collectors often have agreements to supply resources to companies and other institutions, but a comprehensive policy for compensating individuals or communities for their intellectual and cultural resources is difficult to formulate.

To illustrate the complexities that may be involved, Bennett (Laird 1993) describes the difficulty of assigning ownership when communities have exchanged germplasm and ethnobotanic lore for centuries:

The Quijos Quichua name chiri caspi (Brunfelsia grandiflora) becomes chini kiasip in Shuar. Both groups use the plant similarly. The Canelos Quichua probably served as the mediators between the Quijos and Shuar. Who then should be compensated for a drug discovery based on this plant: the Canelos, the Quijos, or the Shuar?

Three questions arise here:

• What quantity of compensation is both just and realistic?
• What form should compensation take?
• How can it be distributed fairly?

How much compensation?

Compensation will vary depending on a number of factors. For example, in the pharmaceutical industry, if knowledge and resources are contributed only during the early stages of research, compensation in the form of percentage of sales (royalties) will be quite low (1–5 percent). However, if the knowledge and resources identify an actual product, royalties could be as high as 10–15 percent (Laird 1993, p. 111). To determine the amount of compensation payable by agreement between a community or communities and a company or other institution, certain factors must be taken into account:

• The pharmaceutical, biotechnology, agricultural, and personal care industries draw on genetic, biochemical, and traditional intellectual resources in distinctly different ways. Thus, a product may be very similar to the original resource, or it may result from a process that makes it quite different. Alternatively, it may be derived from several resources.
• Even within the same industry, the relation of final products to the knowledge and resources supplied by local peoples varies considerably. For example, drug companies may buy plants collected randomly, or the material may be pre-selected in some way, such as by evidence of use by local people. Resources may originate from private lands, national parks, indigenous reserves, or lands held under communal title. The final product may be closely or only distantly related to the original plant compound or traditional use.
• Brokers or intermediary collectors may be involved. They may be willing to negotiate compensation for the community but will expect to receive a percentage of benefits (usually 10–20 percent), thus reducing the percentage received by the community.
• Compensation must be weighed against relative risk and investment in the development of a final product. For example, the pharmaceutical industry will invest many years and millions of dollars in the development of a drug, whereas a personal care company’s outlay will be much less. As a result, the return to communities, in terms of a percentage of profits, from a pharmaceutical product is likely to be much smaller than that received from the development of a personal care product.

What form of compensation?

Does the form of compensation reflect the needs and desires of communities or researchers’ perceptions of the situation? Money may not always be the most useful form of compensation. What is the ideal process by which benefits are negotiated or determined? Should compensation consist of an “up-front payment” or a percentage of sales or both?

One company that has sought to provide fair compensation is Shaman Pharmaceuticals. This company develops novel pharmaceuticals from higher plants and is committed to returning a portion of the profits from its products to all of the communities and countries in which it works. Its management believes that this distributes risk and assures a more rapid return of resources for all of their collaborators, including a portion of profits derived from the product. The company will also create new sustainable natural-product supply industries in the countries in which it operates (see Box 3.2).

Shaman Pharmaceuticals asks groups with whom it works what pressing needs the communities have that could be met by the company. Steven King, vice-president of ethnobotany at Shaman, has said, “A 10-year waiting period for any potential benefits for any particular indigenous group is almost the same as never, as the needs of these families are much more pressing than to wait for some reciprocity.” Immediate benefits have included funds for the construction of an extended airstrip that is the main emergency exit for medical patients from a Quechua community. Shaman has also supplied, at the request of the Commission for the Creation of Yanomami National Park, hundreds of doses of methaloquine for Yanomami Indians dying of chloroquine-resistant malaria introduced by gold miners.

Box 3.2

Shaman Pharmaceuticals and COICA

In 1990, Shaman Pharmaceuticals began negotiations with the Consejo Aguarana/Huambisa (CAH) in Peru and COICA regarding long-term supplies of raw material for their products. Staff at Shaman Pharmaceuticals see such collaboration as a major contribution to local economies and livelihoods.

Initial discussions involved negotiations over the details of price and mechanisms of supply, including the costs of transport and export of material, and dealt with concerns regarding the sustainability of supplies, conservation, and the type of benefits that would accrue to local collaborators. On request, Shaman Pharmaceuticals provided the internal airfare and transport for one member of COICA to return to his federation in the northern Peruvian Amazon to discuss Shaman’s proposal to obtain material directly from their communities.

Indigenous leaders were adamant about allowing time for discussion among the many federation and community leaders. They suggested that if Shaman Pharmaceuticals was in a great hurry to establish this supply agreement it should go elsewhere. During this time, ecological studies were conducted to determine the quality and quantity of the plant material in the region.

In December 1992, an agreement was signed by Shaman Pharmaceuticals and the CAH. A major concern of the CAH was who would pay the various costs involved in the purchase and transport of the material to a central city for export. Specific terms, along with the purchase price (which was higher than any currently paid by independent commercial go-betweens), were agreed to and written down with the assistance of legal council. The premium price was an important negotiating point for the federation; in turn, Shaman Pharmaceuticals required a guarantee for a minimum level of quality and integrity of the product.

A letter of intent was signed by 138 delegates of the CAH documenting these negotiations. Shaman Pharmaceuticals provided the resources for an in-country collaborator to learn the legal export procedures in Peru and pass on the knowledge to CAH. The Aguarana and Shaman Pharmaceuticals worked for over 2 years to develop a workable relationship. In addition to obtaining raw materials from these communities, Shaman is committed to providing resources for conservation management and local community efforts in health care.

Shaman Pharmaceuticals is pursuing similar experimental supply and purchase agreements with other groups in the Peruvian Amazon and in Colombia, Ecuador, and Mexico. Each case has been slow and time-consuming.

Steven King of Shaman Pharmaceuticals believes that one of the benefits of the long gestation period for pharmaceutical product development is that these discussions and negotiations can be conducted in a “rational and thoughtful manner.”

One criticism that can be leveled at Shaman Pharmaceuticals has been that although its willingness to engage in lengthy negotiations and to provide immediate benefits may be laudable, the company has yet to make a firm commitment regarding the payment of royalties. In addition, although the company has applied for patents, it does not appear to have considered the possibility of sharing patent ownership with communities or of naming local community members as inventors (Kennedy and Zerner 1994). However, the company argues that it looks for widely used and distributed species and, therefore, such offers might be impracticable.

For further information, contact Shaman Pharmaceuticals (see Resource Guide, USA).

Box 3.3

Stevia rebaudiana

Stevia rebaudiana (Asteraceae) is a shrub native to Paraguay, but it is found throughout warm and tropical America. It contains a compound that is up to 250 times as sweet as sugar. Stevia rebaudiana has long been used by indigenous peoples for sweetening drinks and was the chosen sweetener for coffee and tea in Paraguay and southern Brazil long before sugar became popular. A multibillion dollar market for the compound is still growing.

Both indigenous and nonindigenous communities throughout Paraguay and southern Brazil grow S. rebaudiana in backyard gardens for family use. However, the extent of local peoples’ involvement in the industry is generally limited to employment in plantations.

By the time large-scale commercialization took place, S. rebaudiana was so widely used in the region and across national boundaries that no specific claim to ownership of the species or its use could be made, so it is unlikely that a particular community could legally gain rights to any revenue generated from its sale. This does not mean, however, that a portion of the revenues generated from the sale of S. rebaudiana could not be used to benefit communities in the region in which it was originally used. For example, companies involved in its production could be pressured into making charitable donations to conservation and development efforts in the area.

For further information, contact Herb Research Foundation, Boulder, CO, USA, or the American Botanical Council, Austin, TX, USA.

Other groups have signed material transfer agreements (MTAs) with specific communities in exchange for their biological and intellectual resources. For example, the NCI has signed a letter of collection (which is not legally binding) with the Awa Federation in Ecuador.

How can compensation be distributed fairly?

Ensuring that compensation is shared equitably between and within existing groups and future generations and that it reaches the actual knowledge holders and resource conservers is a challenge. However, although the problem is complex, it is not insurmountable. The case described in Box 3.3 brings up the question of retroactive claims to benefits from the commercialization of biological and intellectual property. It also shows that even though the knowledge and resources being commercialized are widely distributed, benefit-sharing in such circumstances is still possible.

A report from a conference on indigenous peoples and IPR³ (Working Group on Intellectual Property Rights 1993) suggests three possible means to secure protection

³ The Conference on Intellectual Property Rights and Indigenous Knowledge, Granlibakken, Lake Tahoe, CA, USA, 5–11 October 1993.

and compensation for biogenetic resources and traditional knowledge: IPR, contracts, and funds (see Chapters 8, 7, and 13). It concluded that a system of compensation based on a fund (such as the Food and Agriculture Organization’s (FAO) fund for farmers’ rights) would be most appropriate when the knowledge is historical, not just recent, and when the resources and the knowledge about them are widely distributed. Therefore, in the case of neem (see Chapter 8), which has been used for centuries by farmers throughout India to protect their crops but is now being commercialized by companies in the United States, an international fund might be the most effective means of sharing benefits. There are three reasons for this:

• Communities may be in a weak bargaining position with respect to other forms of compensation because companies often acquire information from literature searches.
• No individual community has a stronger claim to compensation than others with the same knowledge.
• The original innovators are anonymous and may no longer be alive.

A contract is a legally binding agreement between two or more parties. Contracts may be appropriate if knowledge and resources are not widely known and are not in the public domain, and both parties believe that they can gain advantage through a contract. Before agreeing to sign a contract, parties should always seek independent legal advice. Contracts are discussed in greater detail in Chapter 7.

Conclusions

Local communities should be aware of the importance of controlling the publication of traditional knowledge and information about resource management practices. Researchers will customarily publish the results of their studies in academic journals, books, or even popular magazines to enhance their reputation in the academic community; this is a tremendous incentive for them to report information they have gathered on indigenous cultures, traditional knowledge, and resource management practices.

Researchers must often be educated about the implications of publishing. Many have never given much thought to the fact that once published, indigenous knowledge becomes part of the public domain and beyond the control of the source communities or the scientist. Others may knowingly disregard their responsibilities in this matter.

Professional societies have begun to draft codes of ethics to direct researchers, but communities should be prepared to negotiate with researchers and set terms for their work. Communities should ensure their autonomy by working in partnership in collaborative research, by contracting outside researchers to carry out the required research (community-controlled research), or by establishing guidelines for equitable research contracts (see Chapter 14).

Chapter 4

Will the community be informed?

Communities have the right to be informed about how their knowledge, life-styles, images, and resources may be used by others. These rights are independent of any sovereignty rights conferred by national law. For example, the right to privacy — to be free from intrusion and unwanted public attention — is recognized as a basic human right in international law. Failure to inform a person, family, or community by full disclosure about what is being sought, how it is being used, and by whom can be interpreted as an invasion of privacy. Because relevant laws may vary widely from one country to another, generalizations are difficult when applied to individual countries. The concept of prior informed consent includes procedures that should be carried out by visitors interested in local knowledge or resources to ensure that privacy rights are respected.

Violations of indigenous peoples’ right to be informed

A broad range of abuses inflicted on indigenous peoples can be viewed as violations of their right to be informed. Among these are the following:

• Unauthorized use of tribal names. For example, an automobile manufacturer has named one of its trucks “Cherokee.” Also, the words “Hopi” and “Zuni” have been incorporated into trademarks without permission from the tribes concerned.
• Unauthorized commercialization of indigenous peoples’ knowledge, seeds, and plants, and extraction of their own biogenetic material without their informed consent. This can be regarded as a form of piracy, and in the case of biogenetic resources, is nowadays being referred to as “biopiracy.”
• Public disclosure and use of secret knowledge, images, and other sensitive information. This is commonly practiced by museums. For example, an Australian anthropologist wrote a book containing information divulged in confidence by tribal elders (see Box 4.2).
• Filming and taking photographs without permission. Video images of indigenous peoples are sometimes used for commercial purposes, such as advertising by companies like Shell and American Express. Whether this is inherently exploitative is for indigenous peoples themselves to decide and may depend on the context. Advertising aimed at attracting foreign tourists to a country sometimes depicts indigenous people; for example, Australia, Canada, the United States, Indonesia, and many Latin American countries have featured indigenous people in tourism promotion literature. Guatemala has used photographs of Mayan people and their arts and crafts to attract tourists in spite of the fact that these people have often suffered brutal repression at the hands of Guatemalan governments over many years.

Privacy and the law

Some of the above actions are invasions of privacy. Privacy is a human right according to international law. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) states:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference and attacks.

Laws protecting privacy vary from one country to another and the advice of a lawyer will probably be necessary to identify the appropriate legal tools available in national laws. A country’s legal system may provide citizens with a legal right to privacy, or it might provide more indirect protection against infringements of privacy rights. Many countries have no privacy law as such, but several areas of the law may still protect the rights of people from certain acts that constitute privacy infringements. For example, the following IPR laws may be invoked to protect some aspects of privacy:

• Copyright: In some countries authors have moral rights (the right to be identified as creators of their work — the right of paternity — and the right to be able to prevent any distortion of the work that would prejudice their reputation as an author — the right of integrity). Some countries may have entrenched more extensive moral rights than these. The law may also protect the privacy of someone who commissions a photograph or film for private domestic purposes (such as a wedding). If the photo or film is protected by copyright, the person who commissioned it may restrict public access to the work or to copies.
• Trademark: The use of a trademark can be challenged in courts in some countries if it is insulting to an ethnic group (see Chapter 8).

Legal concepts that exist in some countries, such as theft, trespass, and defamation, may protect those aspects of privacy that may be of concern to a community. Some possibilities and limitations of privacy rights in the protection of indigenous people are illustrated in Box 4.1. It can be difficult to take legal action with reasonable expectation of success. Furthermore, pursuing legal action is likely to be expensive. Therefore, in many cases, creating adverse publicity and, perhaps, threatening legal action may be the best course of action.

Another type of violation of a peoples’ privacy is the publication of their secret knowledge without consent. If the group or community had signed an agreement with the recipient of the knowledge that it would not be revealed to others, publication could well be an illegal act: depending on the country’s legal system it could be a breach of contract, an invasion of privacy, a breach of confidence, or perhaps more than one of these. However, even without such an agreement, the group or community need not necessarily remain passive victims; legal recourse may still be possible, but legal advice can be costly and the outcome is uncertain. The following example demonstrates that a traditional community may be able to take legal action in cases where secret knowledge is published without its consent (Box 4.2).

Prior informed consent

Prior informed consent (PIC), although not clearly defined, is a concept that exists in international law. Two international legally binding documents use the concept: the 1989 Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal and the CBD. Article 15, clause 5 of the CBD states: “Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.” The International Union for the

Box 4.1

Commercial use of human images: an example from Amazonia

Kukryt Kako Kaiapo, a member of a Kayapó community, was shocked to find that a company had reproduced a photograph of him, his wife, and child on T-shirts and was selling them at the Earth Summit. How does the law stand on such a situation? In most countries (France is an exception) copyright law does not protect a subject’s right to prevent subsequent use of his or her photograph for commercial purposes unless, perhaps, it was commissioned by the subject. In Brazil, legal action based on invasion of privacy could be successful under a number of circumstances. For example:

• If the photograph was taken against the will of the subject;
• If the photograph damages the subject’s reputation;
• If the company obtained significant profits from exploiting the photograph;
• If the subject is a well-known person, whose personality is being exploited without his or her consent.

In the Kayapó case, the family is not well known in Brazil and may well not have objected to being photographed, yet the company may have made quite a lot of money from selling the shirts. Legal action would undoubtedly be expensive and the decision would not be certain. Therefore, the best strategy in such a case might be for indigenous peoples and their supporters to make their feelings known to the offending company, and also to publicize the case to make companies aware that such behaviour may be offensive and can give the company a negative image. In this case, however, such a course of action would not have been successful, because the company later changed its name to avoid paying taxes and could not be traced.

Conservation of Nature’s (IUCN) guide to the CBD (Glowka et al. 1994, p. 105), describes prior informed consent as:

(1) consent of the Contracting Party which is the genetic resource provider, (2) based on information provided by the potential genetic resource user, (3) prior to consent for access being granted.

[Furthermore,] the PIC requirement gives a Contracting Party the authority to require a potential genetic resource user — whether another Party or, for example, a collector or a company in the private sector — not only to gain its authorization before accessing genetic resources within its jurisdiction, but also to require the potential user to outline the implications of access by, among other things, specifying how and by whom the genetic resources will be subsequently used. This information, or lack of information, may be important for the provider to decide whether, and on which terms, to grant access.

Box 4.2

Breach of confidence: a court case in Australia

In 1976, the Supreme Court of the Northern Territory of Australia decided to ban the sale of a book written by Mountford, a well-known Australian anthropologist, which contained an Aboriginal group’s sacred knowledge divulged to him 35 years previously by tribal elders. Even though there was no written confidentiality agreement, the anthropologist’s knowledge of these people should have made it clear that it was secret information of a highly confidential nature. Indeed, the book even contained a warning that the book should not be used without consulting local male religious leaders, indicating that Mountford was well aware of the situation.

According to the judge, in referring to the Aboriginal group,

The revelation of the secrets to their women, children and uninitiated men may undermine the social and religious stability of their hard-pressed community. Despite Dr Mountford’s prognosis that their life and beliefs “are so quickly vanishing,” there is still an urgent desire in these people to preserve those things, their lands and their identity.

Although Australia (unlike many other countries) has a privacy law, the Court’s decision was based on the law of confidence, which Mountford’s act of publishing was considered to have been in breach of. This law exists in many countries whose legal systems are based on the British system.

Source: Golvan (1992, p. 230), ECOSOC (1993, p. 22)

Implementation will probably require national legislation in both the country providing and the country using genetic resources. Will this require users of genetic resources on the lands of indigenous peoples to obtain the prior informed consent of the local communities? The CBD can be interpreted to require this.

Prior informed consent is being taken into account in collaborative research agreements and codes of ethics (see Chapters 11 and 14), but what is needed is a definition. The following one is proposed:

Prior informed consent is consent to an activity that is given after receiving full disclosure regarding the reasons for the activity, the specific procedures the activity would entail, the potential risks involved, and the full implications that can realistically be foreseen. Prior informed consent implies the right to stop the activity from proceeding, and for it to be halted if it is already underway. The following types of activity should be subject to the PIC condition:

• Medical or other research carried out on a human body, whether or not it involves extraction of material, such as organs, body fluids, etc., and whether or not it is for commercial purposes;
• Medical treatment, especially where it entails risk;
• The extraction of biogenetic material and minerals from local communities or the territories of traditional communities, whether or not the communities have legal title to these lands;
• The acquisition of knowledge from a person or people;
• All projects affecting local communities, such as construction works, colonization schemes, and protected areas.

Requests for consent should be accompanied by full disclosure of the following, in writing in the local language:

• The purpose of the activity;
• The identity of those carrying out the activity and its sponsors, if different;
• The benefits for the people or person whose consent is being requested and for the sponsors;
• The costs and disadvantages for the people whose consent is being requested;
• Possible alternative activities and procedures;
• Any risks entailed by the activity;
• Discoveries made in the course of the activity that might affect the willingness of the people to continue to cooperate;
• The destination of knowledge or material that is to be acquired, its ownership status, and the rights of local people to it once it has left the community;
• Any commercial interest that the performers and sponsors have in the activity and in the knowledge or material acquired; and
• The legal options available to the community if it refuses to allow the activity.

It is very important that countries which enact laws to implement the CBD make it obligatory for companies or research institutions to obtain the prior informed consent of indigenous peoples as well as, or instead of, the state.

Conclusions

Ensuring respect for the privacy of indigenous peoples and communities is complicated by the fact that relevant laws, being based on Western notions of privacy and confidence, do not adequately reflect the concerns of indigenous peoples. However, legal redress may be possible and indigenous people trained as lawyers and other sympathetic lawyers may be on hand to offer guidance. Exposing and publicizing flagrant invasions of privacy may also be somewhat effective, because individuals and companies may change their practices in response to negative publicity.

Chapter 5

What right do communities have to say “yes” or “no” to commercialization?

Many indigenous peoples have traded with outsiders for centuries, but interest in and potential profits from knowledge and biogenetic resources are now increasing in modern markets. Some pharmaceutical and personal care companies are approaching indigenous communities directly or through intermediaries or brokers. Indigenous peoples often need cash for tools, transport, schoolbooks, radios, medicines, cultural items, legal assistance, and to maintain their own institutions and negotiate with each other and the state. How can the need to secure external sources of income be reconciled with indigenous peoples’ wish not to sell, commoditize, or otherwise lose certain domains of knowledge, sacred places, plants, animals, and objects? The decision to enter trade relations with outsiders is important, and many factors must be borne in mind by those making it. They must be aware of their rights under the law and the implications of such a decision.

The effects of trade

Trade can be a two-edged sword. It can bring wealth and independence, but it can also increase dependence on outsiders and vulnerability to exploitation. Many environmentalists (and even some companies) believe that the trade in nontimber forest products (NTFPs), like fruits, nuts, fibres, oils, and exudates from tropical forests (the so-called “rainforest harvest”), can benefit both the forests and their indigenous inhabitants. A well-known advocate of this view is the NGO Cultural Survival, which has assumed an active role as an intermediary between indigenous groups and companies interested in buying products such as NTFPs. Another NGO, Survival International, which has campaigned for the rights of indigenous peoples for more than 25 years, is much more sceptical. In the early 1990s there was a great deal of debate among NGOs, journalists, and academics concerning the theory and practice of sustainable trade in NTFPs. What are the underlying assumptions behind the opposing positions of Cultural Survival and Survival International? It is instructive to see how they respond to the following four statements:

1.     Indigenous people are already part of the world economy and have needs that can only be satisfied through trade.

Cultural Survival says its position is one of realism: most indigenous peoples are already locked into the world economic system and cannot simply opt out. According to Jason Clay, former head of the organization’s trading operations, “We have not found any groups that are not, in some way, involved with the market economy, nor have we found groups that don’t want to get a better price for goods that they are producing” (Clay 1992). Cultural Survival also points out that campaigning for recognition of their rights will require a degree of financial independence by indigenous communities (Clay 1992). In addition, groups need money to buy medicines and other important goods. One might suggest also that it can seem paternalistic to assume that consumption of luxury goods will necessarily weaken a group’s cultural identity. For example, the Kayapó, who have had trading links with Cultural Survival and The Body Shop, use video cameras to record their ceremonies and tape recorders to record the promises made to them by company and government representatives. If they cannot gain income from an environmentally friendly source, they resort to other means, such as selling logging and mining rights.

Survival International claims not to disagree with the statement (Stephen Corry, director general, 1994, personal communication) but says that the new extractivism is far from lucrative and can only benefit a small number of people. The organization has accused Cultural Survival of exaggerating the economic potential of extractivism and its importance as a means of empowering indigenous peoples and of misleading members of the public who believe that they are helping indigenous peoples by buying their products (Corry 1993).

2.     Trading in forest products to supply overseas markets is inherently exploitative.

Survival International argues that the history of such trade provides strong evidence in support of this statement. For example, quinine, a cure discovered by indigenous Amazonians for a disease introduced by invading Europeans, was overexploited without benefit to the native people. Also, the “rubber boom” of the early 20th century caused enormous suffering to many forest dwellers who were badly treated by traders. Prices of many NTFPs are low and, even when products have a high economic value, local communities seldom receive a fair percentage of the value added to products that are processed and transported long distances. Thus, the view that trading in forest products has always been an expression of colonialism at its most rapacious is certainly reasonable, making the whole idea of saving the rainforests by increasing consumption of these products in the North seem contradictory. According to Corry (1992), “It’s dangerously ironic that the increased consumption in western markets, the cause of much of the destruction, is now hailed as beneficial.” Not only is Cultural Survival wrong to embrace it, but it is guilty of a subtle form of neocolonialism, even if its intentions are benign.

Cultural Survival counters with the argument that tropical forests must pay for themselves. Sustainable trade in forest products adds value to a standing forest and creates incentives to conserve them by providing employment and income. The fact that, more often than not, economic value has usually been extracted without any regard to the environment or the lives of forest dwellers does not invalidate the argument. Although Cultural Survival argues that the “use it or lose it” concept points to the need to build international market links of the kind it is promoting, Survival International argues that local communities are already using the forest’s resources but that this “subsistence value” is not taken into consideration in the development process. Thus, it is not international trade that will save the forests but securing the rights of forest communities so that planners and politicians will have to recognize this kind of nonmonetary value (Corry 1993, pp. 3–5).

3.     Trade makes indigenous peoples more, not less, dependent.

According to Survival International, indigenous groups are bound to become victims of the vagaries of market forces if they get involved in selling raw materials for products like confectioneries and cosmetics. Trade in exported products whose popularity may be short-lived will increase dependence on the trade and on the companies that groups work with, making trade-based relations essentially paternalistic. According to Survival International, “The ‘harvest’ will not empower the rainforest community . . . the real effect is to tie the people into exactly the same relationship of dependence and patronage as any of the traditional forms of exploitation through which the wealthy dictate trading terms to impoverished people and countries” (Corry 1993, pp. 6–7).

Cultural Survival is aware of the risks but counters that in the absence of alternative sources of income, the sustainable trade in forest products is a worthwhile activity. According to Clay, “If they [the producers of raw materials] do get more of a return, that will slow or maybe even halt the destruction of a lot of this resource base. It will also

help preserve the cultural diversity if these indigenous people have an economic base”

(see Lerner 1992, p. 160).

4.     Trade can cause internal divisions within indigenous communities.

Survival International has claimed that a project in which the UK-based company, The Body Shop, works with the Kayapó Indians of Brazil to extract brazil nut oil for export to Britain has been socially divisive. According to Corry, “It has contributed to internal antagonisms and divisions, not to mention social dislocation and alienation which recently ruptured the community completely” (Corry 1993, p. 2). Certainly, the social impact of sudden wealth, along with quarrels between those who wish to participate in trading and those who oppose it, can be destructive to a community.

Cultural Survival and The Body Shop accept that there are risks but argue that indigenous peoples and their cultures may be far more resilient than Survival International appears to assume. They also point out that Kayapó society has always been riven by disputes: they did not begin with its relationship with Cultural Survival and The Body Shop. According to The Body Shop’s chairperson, “The Kayapó are not placid people; their history is one of internal strife and villages breaking into factions, eventually dividing into subvillages” (Roddick 1992). This point of view is supported by most anthropologists familiar with these people.

Whether Cultural Survival or Survival International has the most convincing arguments, local communities around the world are finding it ever more necessary to secure a reliable flow of income so that they can achieve greater self-sufficiency. They may try to earn money by working outside the community, although doing so is seldom lucrative. Another way, and often a more appealing option, is to establish market links. Community members may take the initiative and sell local resources, manufactured goods, and artwork in local and regional markets, as many communities have done for centuries, or they may establish an agreement with a company, perhaps from another country, that is interested in commercializing the community’s knowledge, resources, or arts and crafts.

Given the reality that some companies and individuals will enter into such agreements without even asking local communities for their consent, what rights do communities have to prevent unwanted commercialization or to ensure that they have control over commercial activities?

Option 1: say “no”

“Biodiversity prospectors” and biotechnology developers are not noted for their ethics and concern for, or experience with, indigenous peoples or local communities. They are noted for capitalizing on opportunity. Therefore, there are good reasons why indigenous and traditional peoples should be worried about the commoditization of their cultural, intellectual, and scientific property — not to mention their plants, animals, seeds, and even their own genetic material.

For example, the Guajajara people of Brazil use a plant called Pilocarpus jaborandi to treat glaucoma. Although Brazil now earns $25 million annually by exporting the plant, the Guajajara have allegedly been subjected to peonage and slavery at the hands of agents of the company involved in the trade. Furthermore, the supply is being rapidly exhausted (Davis 1993, pp. 8–11).

However, companies and individuals are not the only ones seeking to commercialize resources without the consent of local people; local communities face the serious problem of expropriation of their resources by nation states. Most collection agreements and international exchange arrangements are not with communities but with national governments. Thus, indigenous peoples are often denied by their own governments the basic right to exploit their own resources for commercial purposes.

Two kinds of rights may be asserted to strengthen the ability of indigenous peoples to enforce a decision against commercialization of their knowledge and resources by others: the right to self-determination and inalienable rights.

The right to self-determination

Self-determination is a doctrine of international law that can be regarded as a collective human right. According to two UN agreements — the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the ICCPR — all peoples have the right to self-determination, and by virtue of that right, may freely determine their political status and pursue their economic, social, and cultural development (see also Chapter 10).

In spite of its enshrinement in international law, the degree of self-determination conceded by nation states to indigenous peoples varies within the extremes of virtually none to full sovereignty rights. Full sovereignty rights include the right

• To be self-governing;
• To enact legislation;
• To control access to the territory and the resources existing within territorial boundaries; and
• To enter into legally binding international treaties.

In some countries, indigenous peoples have limited sovereignty over their own territories. Perhaps the broadest sovereignty rights for indigenous peoples are exercised by the people of Greenland under the 1979 Home Rule Act passed by the Danish parliament (Nuttall 1994; Petersen 1994). The people of Nunavut in northern Canada will soon enjoy similar rights. Many native tribes in North America and the Maori of New Zealand have treaties with their nation states that imply acknowledgment of their right to self-determination. In the United States, native tribes recognized by the federal government have sufficient sovereignty rights to allow tribal courts to adjudicate violations of customary law committed by both Indians and non-Indians (T. Greaves, Department of Sociology and Anthropology, Bucknell University, Lewisburg, PA, USA, 1994, personal communication). If their laws forbid the commercialization and “export” of certain

resources, it may be possible to prosecute visitors who break them (although this action may conflict with federal law). Some native American tribes even issue passports.

Without self-determination, including legal title to their territories, it is very difficult for traditional groups to back up their right to say “no” to commercialization. Nevertheless, principles do exist in international law that support rights to self-determination of indigenous and traditional communities.

Inalienable rights

In traditional societies, the right to livelihood resources (apart from immediate personal possessions), such as trees, crop species, and medicinal plants, are not usually exclusive (Okoth-Ogendo 1989, p. 11). They are often shared among individuals and social and corporate groups, each of which may have “bundles” of graded rights to the same resources within a given area. Such rights are considered inalienable; they cannot be transferred, either as a gift or through a commercial transaction. As a general rule, knowledge and resources are communally held and, although some specialized knowledge may be held exclusively by males, females, certain lineage groups, or ritual or society specialists (such as shamans), this does not give that group the right to privatize the communal heritage (see also Chapter 6). Thus, customary law may make it illegal for anybody to sell knowledge and resources. Many African countries acknowledge customary law by having dual legal systems, so that crimes and disputes can either be settled within the community or decided in the courts according to local custom. Other nation states, regardless of whether they have conceded sovereignty rights to indigenous groups, may also recognize customary law. For example, the Canadian Royal Commission on Aboriginal People recommended that indigenous customary laws take precedence over federal and provincial laws when they conflict (Richardson et al. 1994, p. 45). In countries where customary law is recognized as part of national law, and local communities have inalienable rights to certain knowledge and resources, legal recourse in national courts should be possible in cases of unauthorized commercialization of knowledge and resources.

Both collective rights and the inalienability of resources are linked to the need for indigenous peoples to secure legal title to their territories and can be used to strengthen their claim to territory. According to Gray (1994):

Indigenous land rights are based on a people’s prior occupation of an area, usually before a state was even formed. In this sense, Indigenous Peoples have a claim to “eminent domain” (inalienability) which a state usually considers to be its own exclusive right . . . . Connected with the concept of inalienability is the collective responsibility which a people has for its territory. This does not mean that individual persons cannot hold lands and resources for their own use, but that personal ownership is based on collective consent. The collective rights to lands and resources of Indigenous Peoples have been acknowledged by many governments of the world in their constitutions and in international provisions.

Option 2: say “yes”

Indigenous groups may have been trading in local resources and in manufactured goods for many years. Others may be less experienced traders and less aware that biogenetic resources and local knowledge about them may serve as the basis for products that can help drug, personal care, and other companies generate profits. Whether an indigenous group chooses to trade independently or to build relations with such companies, legal options do exist. Chapter 8 explains how indigenous peoples can use IPR tools to protect knowledge about resources that they wish to commercialize. In many cases, however, the best way to benefit from trade may be to press for the right to receive fair compensation.

According to Corry (1993, p. 6):

The best marketing schemes are those which arise from the people themselves and are controlled by them; are appropriate within their economic and social situation; lead to genuine economic independence from exploitative middlemen; promote cohesiveness rather than division within the communities concerned; and are not carried out by outside organizations for their own profit. Profits should belong to the community which should be under no coercion if it wishes to abandon the scheme.

According to Clay (Lerner 1992, pp. 159, 161):

Every indigenous group that I have worked with, and the vast majority of the rest of them, sells or trades something because they all need to buy things . . . . We [Cultural Survival] work at figuring out how these groups can make a living in the modern world. We focus on how they can trade, sell, or barter products to get what they need to have better health, better education, or whatever. We are interested in what skills they need in the modern world that will not destroy or degrade their resource base. This requires working with them and providing them with technical assistance.

The right to development

There is at least one principle of international law that grants any people the right to participate in development on their own terms: the right to development. For indigenous peoples this right encompasses

• The right of access to resources on their territories; and
• The right to seek development on their own terms.

This is an important principle because governments may interpret the CBD in a way that gives nation states sovereignty rights to all knowledge and biogenetic resources existing within their borders. Also, government agencies and NGOs concerned with conservation sometimes deny communities the right to exploit and commercialize local resources. The principle of the right to development is enshrined in international law in

Box 5.1

Bixa orellana: the Yawanawa Association and the Aveda Corporation

Bixa orellana (or annatto) is native to and widespread throughout the neotropics. It is a shrub, often cultivated around villages and in yards. It has many traditional uses, such as in folk medicine.

Bixin is a derivative that is traded internationally as a food dye. During the 19th century, the Brazilian Amazon exported significant quantities of annatto powder to Europe. Nowadays, there is renewed interest in annatto among food-processing and cosmetic companies because bixin is safe for consumption and skin application.

The Yawanawa Indians have lived in an area of Acre, Brazil for centuries, but like many indigenous groups have been under extreme pressure from immigrants to the region for over 100 years. The Aveda Corporation, based in Minnesota, has recently begun a joint effort with the Yawanawa to develop commercial products from B. orellana. Aveda staff have worked directly with the Yawanawa Community Association in the development of their research program.

The project itself was put together and is administered by the community association with support from local institutions. The Yawanawa association is legally institutionalized and autonomous. Aveda has supplied financing to cover all the costs of establishing “plantations.” Financing is spread out according to a schedule determined by the operational and administrative needs of the community. Aveda must approve expenditure reports before supplying funds, and these must match the preapproved plan.

Once larger scale B. orellana production is in place, the association can sell or export the material as it wishes, and Aveda will be treated as any other buyer. The agreement between the association and Aveda is not exclusive, nor must Aveda buy all that is produced, although it has made a commitment to help place any excess product in the market. It is thought that the amount produced will exceed Aveda’s current needs significantly, but staff at Aveda are researching additional applications for B. orellana in their cosmetic line, and local and international demand is significant and rising.

Because B. orellana is a widely known and used product throughout the neotropics, and is available in any marketplace there, the agreement between Aveda and the Yawanawa was not based on ethnobotanical leads but deals primarily with assuring a source of raw material for use in Aveda products. Aveda is trying to keep the level of its involvement to a minimum and is taking the lead of the community regarding product selection (within a list of species) and sustainable harvesting.

For further information, contact Aveda Corporation, Rua Marques de Abrantes 148/1104, Flamengo, Rio de Janeiro, Brazil.

both the ICESCR and the ICCPR (Article 1 of both). It is also included in the International Labour Organisation’s (ILO) Convention 169, as follows:

The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. [Article 7.1]

The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources. [Article 15.1]

Whether a group decides to favour or oppose the commercialization of their knowledge, legal options are available, such as contracts and covenants providing for up-front payments, royalties, a legal fund, and arbitration. Also, some companies are developing policies intended to provide benefits for indigenous peoples collaborating with them. The case study in Box 5.1 illustrates the potential benefits of trading links with those, so far few, companies that are willing to collaborate with local communities in a manner that respects their rights.

Conclusions

Deciding whether to commercialize knowledge and resources may be one of the most important decisions faced by a community or group because of the possibility of far-reaching economic and social impacts and the risk that it will result in diminished control over knowledge and resources. Before deciding to get involved in trade, either independently or in collaboration with an NGO or corporation, the community must be clear about how it can act legally. The next three chapters provide information about how communities can do this.

Chapter 6

How can a community take legal action?

Taking action to commercialize or to prevent commercialization requires understanding of how the administration of property is different in indigenous and local communities than it is in industrial societies. Action may be more effective if local communities or groups are registered as “a juridical person” (a legal entity), as a company, NGO or religious community might be. In any collaborative exercise, the outside partners to an agreement will be organizations who send their representatives to visit indigenous groups and collect knowledge or resources in one form or another.

Western and indigenous property systems and customary law

Strictly speaking, “property” refers to rights to something rather than to the thing that is “owned.” Property may take the form of rights to land, manufactured goods, commodities, services, resources, or knowledge. Property rights are normally accompanied by obligations. For example, a landowner may still be obliged to acquire permission from others (such as the government, the local authorities or neighbours) to erect a building or to convert the land use from, say, forest to cropland.

The holder of property rights is entitled by law or custom to restrict access to and use of the property by others. If the property belongs to a juridical person (an individual, a natural person) or a group of people forming a legal person, it is considered private. However, if state-owned, it is public property because the state represents all citizens of the country. Land, goods, resources, and knowledge that are available to local people may be either common (society as a whole owns them) or communal property (local people own them).

In industrial societies, ownership of land, goods, and services can be transferred from one person or corporation to another in exchange for money. Except for personal possessions, property rights (such as IPR) are typically held by legal persons (corporations) rather than individuals. Traditional societies may view such transactions as contrary to their customs and laws. Communal property is the prevailing system used in most traditional societies to control access to basic resources like food and fuel, but rights are multiple in that individuals, elders, women, clans, lineages, etc., each have ownership rights within a given resource area and over specified resources within them. Such rights may vary in their extent from one group to another, but they are inalienable (others cannot take away or undermine them).

In Western societies, the creator of a new song is usually an individual who automatically becomes its owner and has the right not only to sell recordings of the song but also to prevent others from doing so. In a traditional society, however, the “creator” may attribute “authorship” to a member of the spirit world. In any case, elders and lineages may have certain rights to the song. For example, elders may forbid performance of the song in front of women or members of another clan; a clan may have the right to prevent the “author” (or “first performer” in cases where “authorship” is an alien notion or is attributed to spiritual beings) of the song from signing a contract with a record company or, alternatively, to obtain any share of profits.

Even in cases where certain esoteric knowledge is the exclusive intellectual property of individuals, families, shamans, clans, or lineages, these owners cannot necessarily commercialize the knowledge without the permission of the whole community or the tribal elders. The case study in Box 6.1 provides a good example of a complex traditional resource ownership and management system.

The assumption that there exists a generic form of non-Western, indigenous collective property rights ignores the complex nature of indigenous proprietary systems. Specifically, any legal instruments aimed at protecting cultural knowledge must accommodate cultural and local variation in the forms of such systems.

Box 6.1

Controls and sanctions in the Kafue River basin of Zambia

The Tonga/Ila peoples have occupied the lands around the Kafue River, Zambia, since the beginning of this millennium. They live on higher land, using it for cultivation, wet season grazing, and hunting and gathering in the woodlands; the floodplain is used for fishing and dry season grazing.

In response to the unpredictable nature of the ecosystem, the local people have evolved flexible management systems maintained by strongly held and protected rights and obligations reinforced by spiritual beliefs. All land is controlled by clan leaders named after the original owner and inherited through the female bloodline by a person chosen from a pool of contenders. These are known as Owners of the Land.

Woodland products are central to the livelihood of these people and are subject to various traditional laws, which may vary slightly from place to place, depending on the need that a tree or plant fulfills in the local economy, the scarcity of the plant or product, and the degree of respect given to the traditional control systems. No fruit trees, or certain other trees considered to be beneficial to soil or people, may be felled without the permission of the Owner of the Land. In return for permission, a tribute may be paid to the ancestors of the land. However, fruit, bark, leaves, roots, and other tree products are free for communal use, if they are not in a homestead and if taking of the product does not kill the tree. The produce of a tree has no commercial value until marketed or converted into a marketable object. Traditional laws are essential in keeping the use of the ecosystem at a sustainable level.

External pressures on the system, brought about by the damming of the river for hydroelectric power and immigration of the increasing population, make it even more essential that the complex system of controls and sanctions be maintained.

The community has responded by introducing new conservation regulations. A requirement for permission to gather has been imposed on all community members. Women have begun planting the wild plants that they formerly gathered, and saving and distributing seed from the most productive plants. The inhabitants of the flats can find sufficient flexibility within their system of knowledge and beliefs to maintain the productivity of the river basin.

Source: Sorenson (1993)

The most appropriate options appear to lie within customary law. However, indigenous peoples frequently find that their laws are not recognized by nation states; they may be forced to conform to laws with which they are unfamiliar and that may be inappropriate to the point of conflicting with their own laws. In general, customary laws are unwritten and, in some countries, such as Australia and Canada, there has been much discussion as whether customary law should be codified (written down). However, it may not be beneficial to codify customary laws because doing so could freeze them in time and prevent them from evolving. On the other hand, integrating them into the national legal system may require in-depth understanding and analyses that only codification would make possible (Allott 1987).

Organizational options

Juridical persons

If a traditional community, indigenous peoples, tribe, or group becomes a juridical person, it might find that its legal options are much enhanced. The procedures for doing this will vary from one country to another. The same process should be possible for federations of indigenous groups, such as COICA, which has consultative status at the United Nations. A case study involving the Awa Federation in Ecuador is described in Chapter 14. This federation administers the land held under communal title by the Awa people and makes collective decisions regarding its use.

In some cases, becoming a juridical person may not only be beneficial but even necessary for negotiations and signing contracts. For example, income may have to be received and administered by a juridical person representing the local people. Also, legal tenure may require that documents are held by a legally recognized entity (Lynch and Alcorn 1993).

These legal structures would likely involve communities in certain administrative procedures with which they may be unfamiliar, such as filing annual statements and recording minutes of meetings (Lynch and Alcorn 1993). Local people may prefer the entity representing them to have a structure and to follow procedures that conform to traditional community structures and customs but find that national law regarding juridical persons does not easily accommodate this desire. An alternative to becoming a juridical person is to set up an independent trust fund to help ensure that local people are not exploited by organizations that they choose to deal with (see also Chapter 7).

Religious structures

In most countries, legal structures that approach parity with states — and are, therefore, able to challenge them — are religious institutions. Although indigenous peoples have frequently suffered from and been alienated by religious institutions and their representatives, the resilience and special status of religious structures may be of interest as a model for organization. For example, “nonconformist” church communities in Scotland can own land and property, have communal rights, and enjoy a relatively independent status under national laws. They are not subject to the rules, laws, and taxes of corporate structures and their members are free to leave the organization as they choose.

Furthermore, the community has the right to choose whomever it wishes for membership. The community does have to name a responsible body of elected or selected individuals to represent it but may do this however it wishes.

“Base communities” in Brazil have followed this model, although they retain affiliation with an established church. They are composed of individuals who work together to improve the social, economic, and spiritual conditions of their communities. As a religious structure, however, they have special protection under national law.

There is no necessity to be affiliated with a religious organization in order to appropriate the special legal status of religious structures. The reason for using a religious structure as a model, or organizing principle, is that it may be possible thereby to take advantage of legal privileges as if the community were a religious organization.

Who are the partners?

Representatives of organizations seeking partnership with an indigenous group may be working on behalf of one or several of the potential partners listed below; it must be clearly explained to the group on whose behalf the visitor is working. The community should insist on receiving such information in writing and if possible on audio- or videotape. Promises that scientific data will not be used for commercial exploitation without the consent of the community could also be recorded.

Profit corporations

Profit corporations are commercial bodies dedicated to increasing their income for the benefit of their shareholders or their owners. Their profit is earned by marketing a product, and their interest in making links with indigenous groups will be in channeling indigenous knowledge or resources into the marketplace. For example, companies selling personal care products will be looking for plants and products used by indigenous groups to clean or adorn themselves that can be adapted or developed for the wider global marketplace.

Nonprofit corporations and private organizations

Nonprofit corporations are organizations whose goal is not dedicated to increasing their financial turnover but to furthering a specific aim. They may be charitable foundations or religious groups, owned by a private group or by a trust, government organizations, or departments using funds allocated by a national government. They may receive support from one nation or from an international grouping, and they are likely to fall into the following categories.

Public institutions

Public institutions belong to the governing infrastructure of a country — a botanical garden, a museum, or an educational institution such as a university, dedicated to obtaining and disseminating knowledge. Their representatives will be researchers collecting specific information for use in and by the institution, as well as to further the researcher’s career.

Today, owing to the high and increasing costs of education, university research departments are linking with for-profit corporations to increase their funding base. Care

should therefore be taken that knowledge given to university researchers or to government data banks is not unknowingly going indirectly to a commercial company.

National government departments are also represented by development specialists who visit developing countries to bring aid in the form of technical assistance or to gather information. Their work may be closely linked to that of NGOs.

There are also international organizations linked, for example, to the United Nations system, which have funds to undertake specific tasks; examples are FAO and the United Nations Development Programme (UNDP).

Nongovernmental organizations

NGOs are supported by donations and grants from fundholders, who may be a government or private persons and groupings. Their mission is generally linked to conservation and development. Since UNCED in 1992, the emphasis of many NGOs has been on development of a kind that is less damaging to the environment, often referred to as sustainable development. Pressure groups working for people in developing countries — such as Third World Network in Asia, Genetic Resources Action International and the Gaia Foundation in Europe, and RAFI in North America — publicize information on issues concerning the conservation and sustainable use of biogenetic resources through newsletters, communiqués, and electronic conferencing. Their approach can be described as “bottom up” (working in collaboration with local communities). The larger international NGOs, which have generally made their approach at the government level, are beginning to follow the lead of these pressure groups and listen to voices “on the ground.”

People’s organizations

People’s organizations are groups such as the World Council of Indigenous Peoples, the Cordillera Peoples’ Alliance, or smaller local groupings that are formed and run by local peoples to further their own needs. This may be connected to health, marketing, protecting knowledge, or advertising it, but the emphasis is on autonomy. (See the Resource Guide for names and addresses of many people’s organizations.)

Conclusions

In the long term, self-determination and the recognition of customary law would help create the most favourable conditions for community-controlled commercialization. However, with or without the advantages that they would bring, it is important to be aware that in collaborating with an outside organization, the community may be at an enormous disadvantage in terms of access to funds and information. Therefore, when deciding to engage in trade and planning to set up an organization to represent the community or group, the following issues should be considered carefully:

• What should be the most appropriate form of organization, bearing in mind national law stipulating how groups can acquire a legal personality;
• The likelihood of highly unequal access to financial support and legal access between the community or group and the trading partner, customer, or broker;
• The difficulties of pursuing legal action if the partner fails to carry out its agreed obligations;
• The possibility that interest in traditional knowledge, goods, and resources may fluctuate so that dependence on trade could lead to financial losses in the future even when current prospects are promising.

Chapter 7

What are contracts and covenants?

Contracts are probably the best understood and most accessible legal instruments. They can be agreed on quickly, they require relatively little legal expertise to implement, and they can be tailored to suit each situation. However, for indigenous peoples to benefit, they must be able to make contracts and take legal action on their own behalf; this may not be possible in some countries. In this chapter, we look at various types of contracts and discuss various options that can be pursued.

A contract is a class of legally enforceable agreement that consists of an exchange of negotiated promises or actions. Contracts for the exchange of knowledge or biological samples generally involve communities agreeing to collect, identify, process, resupply, and in some cases conduct further research in the laboratory on a supply of samples that are then sent to companies for screening. Ideally, communities will control all stages of this process, including the recording of local knowledge pertaining to collected species.

However, in some cases collaboration with outside research institutes may prove necessary. Companies, in turn, might agree to provide communities with some or all of the following:

• Per-sample fees;
• Advance payments;
• Their best efforts to screen samples;
• Reports on the results of their research;
• Training for collaborating communities;
• Royalties on any compounds;
• The option of filing a jointly owned patent (copatent) with the community.

Not all written and signed agreements are legally binding. A letter of intent or a memorandum of understanding is not a contract, but an agreed to set of statements intended to serve as the basis for a legally binding contract at a later date.

Legal agreements

Material transfer agreements

An MTA establishes standards for the transfer of biological resources for research and possible commercialization in exchange for benefits to the party recognized as the supplier. This might be a government, a collecting organization (such as a botanic garden), or even a local community. Such benefits may be in the form of up-front benefits, a trust fund, or future royalties. In exchange, MTAs usually grant the recipient of the material the right to apply for patents if any of the material has commercial potential.

For example, an MTA was drawn up between the National Biodiversity Institute of Costa Rica (INBio) and the drug company Merck. INBio receives an immediate payment in addition to royalties of about 3 percent of sales if a product is developed from any of the 10 000 or so plant or other biological extracts sent to Merck. However, as is common in commercial contracts, the precise terms of the agreement are secret except to the signatories.

Information transfer agreements

We propose that an alternative term — information transfer agreement — be adopted in the case of agreements made between a traditional community or group and an outside organization interested in the commercial possibilities of local biological resources. The word “material” (in MTA) does not do justice to the intellectual contribution of the community in conserving, nurturing, using, and developing the biological “material” in which the outside organization is interested. The organization (corporation or public institution) must realize that the contract must not only provide compensation for the material provided but also recognize the intellectual property rights of the community. One way to do this might be to name community members as inventors in the patent application or to share patent ownership with the community.

Licencing agreements

A community, institution, or corporation may prefer not to commercialize a product to which it has an intellectual property right (such as a patent) itself, but instead, either sell the patent or sign a licencing agreement with another company that is better equipped to commercialize that particular product. The greater the commercial potential of the patented information or the unpatented know-how, the more expensive the licence will be. An exception to this occurs when the patent holder is a government agency. For example, the NCI in the United States is not allowed by federal law to commercialize products or to sell licences. Therefore, companies can receive exclusive rights to commercialize a patent-protected product that was developed, at least in part, by the NCI through a free licence.

The example in Box 7.1 illustrates one possible form that a licencing agreement should take, based on the kinds of agreements that computer software companies make with other companies that use and modify the first company’s software.

Box 7.1

Software law as a basis for a licencing agreement

Companies producing computer software face the problem that their products can easily be copied and sold by others. Therefore, many software companies have licencing agreements that allow others to use the software and modify it. However, licenced users do not have the right either to copyright their modified versions or to transfer the software to someone else. Ownership of any software derived from the original product remains with the original producer. Computer software licencing agreements often contain the following provisions (Stephenson 1994, p. 183):

• An annual licencing fee, payable by the licencee in exchange for the right to use its modified versions;
• Consulting fees, by which software owners have an on-going advisory relationship with their licencees.

Licencing agreements based on such a model could enable a traditional community to gain an income by sharing its knowledge with outsiders, while at the same time preventing unwanted commercial exploitation. One way to adopt the model would be as a confidentiality clause of a contract involving the transfer of the indigenous knowledge. Contracting parties receiving this knowledge would have to pay fees to the community providing it and to undertake not to transfer the knowledge to others. Stephenson (1994) suggests that before entering into this kind of agreement, a community should be a juridical person (see Chapter 6).

Nonlegal agreements

Letters of intent and memoranda of understanding

Nonlegal agreements, in contrast with contracts, are more likely to be open, particularly where a public institution is involved. Some such institutions may use both legal and nonlegal agreements. The United States NCI, for example, uses an MTA to transfer samples collected earlier to interested companies. But to obtain samples for its own research, it uses a letter of intent (which it calls a letter of collection; see Box 7.2). Letters of intent usually outline the preliminary understanding between parties who intend to enter into a contract. In the case of the NCI, interesting compounds will be licenced to corporations that the NCI expects will then enter into contracts with communities. When letters of intent are signed with communities during collection, the terms continue to apply for an MTA. However, the NCI cannot legally compel a company to pay royalties if the company refuses to do so.

Some institutions employ a memorandum of understanding that, like a letter of intent, is not a binding contract but is similarly used as a statement of intentions and can serve as a starting point for subsequent negotiations (see Box 7.3).

These types of agreements can address issues of confidentiality, the sharing of research results, and the provision of benefits to supplier contractees, but they do not safeguard the rights of local communities and are not necessarily legally enforceable.

Apart from compensation, two important principles often contained in contracts are confidentiality and exclusivity. If a traditional community is willing to supply knowledge or biological material to outsiders but does not wish it to become available to others, it can make an agreement containing a provision for confidentiality. A confidentiality clause can ensure that the recipient will not make knowledge (such as a trade secret) or material available to anyone else without permission of the provider. In return, the other party may request exclusive rights to the information or material supplied. This means that the giver must not pass on the same information or material to someone else during a fixed period. For example, a community may agree to send a number of plants to a company. The latter may demand exclusivity for, say, 6 months. Thus, during this period the community is not allowed to supply the same plants to any other company.

Box 7.2

The National Cancer Institute’s letters of collection

The NCI’s Natural Products Branch conducts research into plants, microbes, insects, marine organisms, and fungi in its efforts to identify treatments for cancer, AIDS, and other viral infections. It probably has the most extensive natural products collection and screening program in existence.

NCI collections are primarily conducted randomly based on taxonomic data. A small proportion (less than 5 percent) are collected ethnobotanically, through institutions such as the New York Botanical Garden, Missouri Botanical Garden, and some universities. The NCI is interested in any endemic species that, based on local knowledge, are employed for the treatment of cancers, wound healing, and the improvement of health. The NCI relies heavily on the contacts and representative skills of its collectors to ensure that a letter of collection (LOC) is used. As a result, these institutions, and their “country organization” collaborators, play a pivotal role in determining the level of control and resulting benefits local communities receive as a result of collaboration on NCI collections. The LOC states, in part:

• Should the source country government or source country organization(s) have any knowledge of the medicinal use of any plants by the local population or traditional healers, this information will be used to guide the collection of plants on a priority basis where possible. Details of the methods of administration (hot infusion, etc.) used by the traditional healers will be provided where applicable to enable suitable extracts to be made.
• All such information will be kept confidential by NCI until both parties agree to publication.
• The permission of the traditional healer or community will be sought before publication of their information, and proper acknowledgment will be made of their contribution.

Although the LOC clearly acknowledges the utility of local peoples’ intellectual contributions, under US patent law if these are not written down, dated, and signed they cannot be considered true inventions as might, for example, the taxonomic input of a collector. The LOC does not include explicit legally binding provisions. It uses terms like “will make the best effort” rather than “will require” because the US government is not allowed “to licence or assign its intellectual property” and it is the policy of the NIH Patent Policy Board “to defer negotiations and agreement upon a specific royalty rate until the specific invention is ascertained.”

Box 7.3

The Royal Botanic Gardens’ memorandum of understanding

The RBG at Kew, London, has developed a memorandum of understanding for seed collections and another for biochemistry, which outline institutional policy with regard to the return of benefits and the design of equitable arrangements between RBG and its collaborators.

The memorandum of understanding addresses issues of confidentiality, sharing of research results, and the equal sharing of any net profits derived by RBG from commercial collaborations. RBG agrees to send the results of its research to the supplier as soon as they are available. The supplier is required to make its best effort to supply further samples of any material of interest. If a compound looks particularly promising, RBG, with the supplier’s agreement, will attempt to develop the work in collaboration with a commercial partner. RBG agrees to split any net profits derived from such collaboration with the supplier. There are no written stipulations on how the supplier’s share of the net profits is to be distributed.

The Seed Bank agreements explicitly state that RBG will return 50 percent of any commercial benefits to local collaborators and will deposit herbarium vouchers of all collections in local herbaria. They select their collaborators “carefully,” usually working with the national research institute in charge of related research and then rely on them to distribute responsibly any revenues within the country of origin. Recently, the Seed Bank included a caveat in its agreements with recipients of materials that if any commercial activity is proposed, RBG must first be consulted and an agreement negotiated.

RBG has extensive and often long-term relationships with collaborators in over 50 countries, generally with botanic or other scientific institutions. Agreements with the Seed Bank are signed only with institutions (never individuals); these are usually government research institutes. However, because commercial relations to date are based on living or seed collections contained at Kew, ethnobotanic collections are not undertaken as part of commercial agreements.

For further information, contact the Royal Botanic Gardens (see Resource Guide, UK).

Covenants and model contracts

The potential usefulness of contracts compared with the weakness of currently existing ones points to the need to develop model agreements that can be adapted by indigenous peoples to suit their requirements. Covenants serve to establish principles that can lead to a legally binding agreement, but they contain ethical and moral commitments beyond mere commercial agreements. A significant covenant that has been produced recently is described below.

Covenant on Intellectual, Cultural, and Scientific Resources

The covenant produced by the Global Coalition for Biocultural Diversity is based on the view that protecting traditional knowledge is central to any negotiation between local people and outside institutions. Analysis of certain elements of the covenant illustrates what provisions might usefully be included in a contract. The model has been called a Covenant on Intellectual, Cultural, and Scientific Resources (reproduced in full in Appendix 2). It is intended to guide negotiating partners into ethical and equitable associations of mutual benefit. The covenant is meant to be more than just a contract. It establishes a basic set of principles to be adopted by all partners, while emphasizing that to strengthen local communities and biodiversity conservation, a long-term commitment is necessary.

Although the covenant deals with equitable trade, any agreement must inevitably encompass protection. Essential elements of the covenant include the following:

• The establishment of immediate benefits, such as a legal trust fund for the local community. In principle, a fund helps to offset the financial handicap of indigenous peoples regarding access to legal assistance and litigation. Up-front payments and advance payments are made to the supplier of resources or information soon after a contract is signed. Up-front payments normally cover expenses incurred before the main activities described in the contract begin. For example, an indigenous organization representing many communities would probably have to consult these communities before entering into an agreement. Therefore, it would be reasonable to ask that the contract include up-front payments to cover the expenses of the consultation process. Advance payments usually cover costs that have to be incurred to fulfill the activities agreed upon in the contract. For example, if a company wishes to purchase clothes from a community, it may have to pay in advance for the equipment needed to produce the clothes.
• An independent monitor to evaluate the agreement and ensure that all parties understand their obligations and comply with them.
• Prior informed consent, full disclosure, and joint planning. These are critical elements (see Chapter 4).
• Concern for the biological and social environment. There is no point in discussing equitable agreements, just compensation, and TRR/IPR if biological diversity is not conserved and ecological concerns are not a priority for all partners. This is explicitly stated in Principle VIII (see Appendix 2).
• Compensation and profit sharing. In the case of drug companies it may take many years for the company to produce a new medicine and, therefore, to make profits. This is why up-front payments are important. However, when they come, profits can be enormous. The usual way to share profits is through royalty payments. A royalty is a payment, usually a fixed percentage per unit sold, to an intellectual property owner established by contract or other agreement.
  
  Royalties may also be payable, if stipulated in the contract, by a drug company to a supplier of biological matter or to the landowner if the material has attributes useful for the development of a new product (drug, agrochemical, cosmetic, food, etc.). An indigenous group that supplies plants to a company or other institution may be able to secure a guarantee of royalties in a contract. However, the percentage will reflect the value of the biological and intellectual information it provides, balanced by the relative amount of intellectual and financial investment a company must make to develop a useful product. In the case of drug companies, this latter investment is usually considerable and will also entail a delay of several years before the product goes on the market and royalties are payable. Also, the community’s contractual partner may not be the one that markets the product. Therefore, royalties may have to be shared with this partner. This is the case for several institutions (such as botanic gardens) and companies that make agreements with plant suppliers but then licence the information relating to their research to a manufacturer. It may well be possible, where relevant, for a community to be a copatent holder if it wishes to pursue such an option.

A number of contracts have been developed that might provide background and serve as models for local communities, but most such documents are not geared toward traditional resources but focus instead on randomly collected biological samples. Examples are The Biodiversity Prospecting Contract (Downes et al. 1993; see also King 1994) and The Contract between the Collector and the Government Parties (for information, contact the Third World Network — see Resource Guide, Malaysia).

Conclusions

Contracts and other agreements can be useful tools for ensuring that local communities benefit from the commercialization of their knowledge and resources. However, those currently in existence are far from satisfactory. Great caution should be exercised by those considering an agreement with an outside institution. This chapter contains information on both provisions that are likely to appear in a contract and provisions that should be included. Even if both parties have legally binding obligations, the community will be much less able to take legal action if obligations of the other party are not met. It will almost certainly be necessary to obtain independent legal advice during the early stages of negotiation, and insisting on the establishment of a trust fund may be the best way to do this. It may also be a good idea to approach NGOs with the expertise to provide sound legal advice or financial assistance to enable the community to acquire such advice (Kloppenburg and Gonzales 1994). It is also critical to find an independent monitor acceptable to both sides to mediate and evaluate the terms and implementations of the agreement.

Chapter 8

Are intellectual property rights useful?

Traditional communities may have their own concepts of intellectual property and resource rights. However, industrializing countries are under political pressure to adopt the European and North American concepts of intellectual property, which, by guaranteeing the right of legal individuals to profit from their innovations, are widely believed to promote development. IPR laws have usually been inimical to the interests of indigenous communities, but there are ways in which these laws can serve the interests of these communities.

IPR laws exist in most countries of the world and Western concepts of IPR usually prevail in national laws. These concepts are based on the idea that innovation is the product of the genius of individuals. Such people, by sharing the fruits of their genius with society, are deemed to be deserving of economic rights granted by the state on behalf of society. These economic rights are collectively known as IPR. In the 20th century, modern societies are increasingly dominated economically by corporations that employ researchers and inventors. As a result, the IPR often go not to individuals but to the corporations, government agencies, or universities that employ them or fund their research.

Various IPR types exist, all of which may have a role to play in protecting indigenous knowledge and in helping indigenous peoples to market the products they decide to commercialize. Some of them may also be useful for the protection of cultural heritage and biodiversity.

However, IPR cannot adequately protect the knowledge and resources of indigenous peoples, nor are they a panacea for the lack of self-determination of indigenous peoples and the inequalities of wealth and power between local communities on one hand and governments and corporations on the other. Furthermore, not only do IPR have to be acquired by a process that can be difficult, time-consuming, and expensive, but they also have to be defended. Acquiring and defending IPR protection requires access to information, good legal advice, and financial resources, all of which may be beyond the reach of many indigenous peoples.

Although IPR laws vary from country to country, international treaties like the Paris and Berne Conventions give them a common basis. The recent TRIPs agreement of GATT will enhance the convergence of IPR national laws in the future (see Chapter 10). Most international conventions pertaining to IPR are administered by WIPO, a United Nations agency based in Switzerland (see Box 8.1).

The following categories are explained and discussed in this chapter: patents, petty patents or utility models, copyright, trademarks, unfair competition, industrial designs, trade secrets, plant breeders’ rights (PBR), geographic indications, such as appellations of origin, certification (not normally regarded as an IPR but dealt with here in view of its relevance).

Patents

A patent is a legal certificate that gives an inventor exclusive rights to prevent others from producing, using, selling, or importing the invention for a fixed period (usually 17–20 years). Legal action can be taken against those who infringe the patent by copying the invention or selling it without permission from the patent owner. Patents can be bought, sold, hired, or licenced. A patent application must satisfy the patent examiners that the “invention” is

• Useful (have industrial application): ideas, theories, and scientific formulas are not sufficiently useful to be patentable;

Box 8.1

What is the World Intellectual Property Organization?

WIPO was established by a convention in 1967, although its origins can be traced to the Paris and Berne Conventions adopted in 1883 and 1886, respectively. WIPO’s primary objectives are to administer international treaties on intellectual property laws; to provide assistance to signatory nations in promulgating intellectual property laws; and to seek harmonization of national laws, aiming to “promote the protection of intellectual property throughout the world.” IPR laws are the laws that governments enact to make these international treaties part of national law. WIPO administers, inter alia, the following treaties concerning IPR:

• Paris Convention for the Protection of Industrial Property (1883);
• Berne Convention for the Protection of Literary and Artistic Works (1886);
• Madrid Agreement Concerning the International Registration of Trademarks (1891);
• Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1958);
• Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961) (see Chapter 10);
• Patent Cooperation Treaty (1970) (see also Chapter 2);
• Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purpose of Patent Procedure (1977) (see Chapter 2).

Negotiations that might lead to future international IPR agreements are held under the auspices of WIPO (34 Chemin des Colombettes, PO Box 18, Geneva 20, CH-1211, Switzerland).

• Novel: the invention should be recent and original, but perhaps most importantly it should not already be known (in the public domain). In most countries (except the USA) the patent is awarded to the first person to apply, regardless of whether this person was the first to invent;
• Nonobvious: not obvious to a person skilled in the technology and more inventive than mere discovery of what already exists in nature (such as a gene with no known function). The “invention” must be disclosed to the patent examiners in a detailed way that would enable a skilled technician to make and use it. In the case of an invented process, the patent can cover a nonobvious way of making something already known (previously invented or discovered). In the case of an invented product, the nonobvious requirement does not require it to be made by a novel method.

Several kinds of patent may be granted (Lesser 1991, p. 14):

• Products: covers any use of the product including those as yet undiscovered. For example, a new drug patented as a cure for cancer may later be found to cure heart disease; the patent will cover this new use.
• Uses: covers a specific use only. Thus, it would cover the above drug only as a cure for cancer and not for any uses that are found later.
• Processes: protects the process when used with any product, but does not protect the invention when it can be manufactured by a different process.
• Products-by-process: covers only products made by the process described in the application. Therefore, it would cover the drug, but only when made by a specified process.

These should not be regarded necessarily as discrete categories of patent because broad patent claims may include several products, processes and uses.

Not all inventions that meet the above conditions can be protected by patent. In many countries, medicines and genetically modified organisms (plants, animals, or microorganisms containing a gene transferred artificially from another organism) cannot be patented at all. In part the differences in national patent laws are due to the fact that each country prefers to define what inventions may be patented in accordance with its perceived national interest.

It can easily take over 2 years to obtain a patent from the day that an application is filed and the invention is disclosed to the national patent office (the priority date). The patent office carries out a search to ensure that the invention really is new and nonobvious. When it is satisfied that this is so, the application is published and an in-depth examination follows. In the case of an invention derived from a natural product, the examination might include the obligation to describe the source and location of the natural product (Gollin 1993, p. 166) and demonstrate that the prior informed consent (see Chapter 4) of suppliers of resources and information was obtained. To obtain patents in other countries, it is usually necessary to file a different application in each country, preferably within 12 months of the priority date. However, a number of international agreements (such as the Patent Cooperation Treaty (PCT)) simplify this process by requiring a single international application to be prepared. In the case of the PCT, this application is then submitted to a receiving office from where it is distributed to national patent offices designated by the applicant. It is very important that inventors do not disclose their invention before applying, except in the strictest confidence. If they do, the patent might be invalidated.

Is indigenous knowledge patentable?

Three questions now arise:

1.     Can indigenous people patent their own knowledge?

A product patent cannot be obtained for a naturally occurring organism or a gene that has not been isolated. This rules out the patenting of much potentially useful indigenous knowledge relating to naturally occurring organisms. Nevertheless, some traditional medicinal or other preparations from natural substances could be regarded as patentable modifications or combinations (processes), and process patents may be obtainable for them.

However, this is possible only in the case of new inventions and as long as individual people can be cited as the “inventors.” To this extent, indigenous people may be able to patent a certain amount of their own knowledge. One major obstacle is that the process of acquiring a patent, which includes payments for filing, the examination, and the grant, is expensive and time-consuming.

Furthermore, the patent will need to be renewed annually. Indeed, the expense may be beyond the means of many communities.

2.     Can companies obtain patents based on indigenous knowledge?

This is certainly possible. Frequently, companies have investigated useful attributes of a biological substance known to a traditional community. Although normally a product patent cannot be obtained for a naturally occurring organism, chemical, or gene, in some industrial countries patents can be obtained for one that has been altered in some way. Therefore, after isolating the active principle of a substance, the company can modify it or use it in the design of a new synthetic compound that may be more stable or less toxic than the original substance. Such an “invention” can then be patented by the company. Boxes 8.2, 8.3, and 8.4 describe three cases in which this has happened.

3.     What can be done if someone copies an invention without permission?

One of the biggest problems that would face an indigenous community with a legal personality (see Chapter 6) that obtained a patent is the danger of others infringing the patent by copying it. The community might not know about it, and even if it finds out, legal action can be very expensive. Whereas corporations have their own lawyers and financial resources to provide effective legal support, local communities rarely have such resources or advocates. Even if a case does go to court, the company may well succeed in convincing the court that its product, use or process is sufficiently different from the original to constitute an invention.

Are patents useful for local communities?

Some traditional knowledge is patentable, although the expense of a patent application may be prohibitive. Also, the indigenous group would have to prove that the invention was novel by convincing the patent examiners that it was the only group with the knowledge. This might be difficult and would probably be incompatible with the indigenous peoples’ practice of sharing knowledge. The cases cited above suggest that patent law is bound to favour companies rather than local communities.

An indigenous group could still contest the right of others to patent an invention based on information acquired from the group and used without its authorization (Gollin 1993, p. 167; also see neem case described in Box 8.2). Some NGOs, such as RAFI and Swissaid, have played a useful role by checking patent applications in various countries for cases in which indigenous peoples may have been exploited. In most countries (the United States is an exception) copies of patent applications can be seen by members of the public on application to national patent offices before the patent is awarded. (These NGOs discovered the applications based on the cell lines of indigenous peoples described in Chapter 2.) The very possibility of a challenge to a patent

Box 8.2

Neem — a traditional and modern biopesticide

Seeds of a species of neem tree (Azadirachta indica) have been ground and scattered on fields by Indian farmers for centuries to protect their crops from insect pests. However, the neem tree has many other uses: it appears to be effective against malaria and internal worms; the leaves are used to protect stored grain from pests and clothes from moths; neem oil is used to make candles, soap, a contraceptive, and can even fuel diesel engines; and 500 million Indians reportedly use neem to brush their teeth. Most of these discoveries were first made by members of Indian rural communities.

As a pesticide, neem has great potential as a cheap and environmentally friendly alternative to commercial synthetic pesticides. Two companies, W.R. Grace and Agrodyne, recently obtained patents in the United States for derivatives of neem developed in their laboratories, even though the insecticidal, human nontoxic, and biodegradeable properties of neem are far from novel and nonobvious to millions of Indian farmers.

Another patent has been granted in the USA for an extract of neem bark effective against certain types of cancer. W.R. Grace is now producing neem-based pesticides with an Indian company called PJ Margo at a new facility in India. They estimate that the global market for their product may reach $50 million annually by the year 2000 (AgBiotechnology News, February 1993, p. 4). Agrodyne Technologies now has US government approval to sell neem-based bio-insecticides and has applied for registration of its products in several European and Latin American countries.

These companies (and the Indian companies that also hold patents related to neem) stand to gain from the insights of Indian farmers. Nevertheless, the farmers are in a weak position to demand compensation, because the knowledge is widespread and in the public domain. India, too, has a weak claim because the tree is native also to neighbouring countries and is now grown around the world.

Recently, the patent held by W.R. Grace has been challenged in the United States courts on the basis that knowledge of neem as a pesticide was already in the public domain when the patent was granted. If the patent is revoked, many other patents that also relate closely to traditional knowledge could also be challenged with highly significant outcomes.

For information about the neem antipatent campaign, contact the Research Foundation for Science, Technology and Natural Resource Policy (see Resource Guide, India).

application would make companies more willing to consider compensating indigenous people in some way to avoid an expensive out-of-court settlement, a damaged reputation, or even a rejected patent application.

If an inventor is not interested in obtaining a patent but wishes to ensure that no one else can obtain one, he or she may publish a thorough description of how to practice the invention. In the United States, this is called “defensive publication.” The published material forms part of the prior art that a patent office is obliged to search; thus, after the date of publication, any patent claim for the same invention will be invalid. This might be a useful way for indigenous peoples to prevent others from patenting inventions derived from indigenous knowledge and resources.

Box 8.3

Ethiopian endod

Berries of the endod or African soapberry plant (Phytolacca dodecandra) have long been cultivated by Ethiopians, mainly for use as a detergent. In 1964, an Ethiopian scientist, Aklilu Lemma, discovered that snails carrying the fluke causing schistosomiasis, a disease that afflicts 200 million people and kills 200 000 people a year, were killed in streams where people used the soapberry to wash their clothes.

Lemma and Legesse Wolde-Yohannes of Addis Ababa University undertook the preparation of a low-cost molluscicide based on endod. With support from the Netherlands government, Wolde-Yohannes was able to identify the most efficacious endod variety, E-44, and toxicity studies were carried out. Unfortunately, Ethiopia does not have the capacity to conduct trials and toxicologic studies to the standards required for international recognition, and Lemma failed to secure financial backing for further research. Up to now the only molluscicidal product recommended by the World Health Organization is Bayluscide, which costs as much as $25 000 per tonne.

Subsequent research by Lemma in collaboration with a US biologist, Harold Lee, at the University of Toledo confirmed that endod was also effective against zebra mussels, and the name lemmatoxin was given to the active ingredient. Zebra mussels, accidentally introduced in the Great Lakes, now foul water intake systems, disrupt shipping, and threaten the fishing industry.

A few months after this discovery, the University of Toledo applied for a patent for its use as a control agent for the zebra mussel, with Lemma, Lee, and another scientist named as inventors. If a company is granted a licence by the university to market endod, the University will share the royalties with the three scientists. Ethiopia and the local people whose use of endod had attracted the attention of Lemma will receive no benefits and will still have to import Bayluscide. Ethiopia can only benefit by supplying the berries, but if it tries to raise the price, the companies that produce endod may find it cheaper to synthesize the active principle, thereby eliminating the market for berries.

For further information, contact RAFI (see Resource Guide, Canada).

In many cases, however, it is inappropriate. For example, Indian farmers would have had to isolate and name the active ingredients of neem, then publish the details to prevent companies from applying for patents. Also, publication might simply attract the attention of companies and provide them with a useful lead for a new product. (See also Table 1.)

Petty patents

Petty patents (also known as utility models) differ from conventional patents in several ways:

• The nonobvious requirement is far less stringent and may even be discarded in favour of a less demanding “inventive step”;
• The period of protection is shorter;

Box 8.4

Thaumatin — a natural sweetener from West Africa

Thaumatin is a natural sweetener derived from the berries of a shrub called the katemfe (Thaumatococcus daniellii), which grows in west and central African forests. The protein, which is about 2 000 times sweeter than sucrose, was discovered by researchers at the University of Ife, Nigeria. The berries had apparently been in use for centuries as a sweetener and flavour enhancer, although in some areas only the stalks and leaves are used and the berries are considered waste.

In recent years it has been used by food and confectionary industries in a number of countries, sometimes marketed as a low-calorie sweetener. It is also used as an animal feed. For several years, the British sugar company, Tate and Lyle, has marketed the product under the name Talin. As the plant will not bear fruit outside its natural surroundings, the company imports the fruit from its own plantations in Ghana, Côte d’Ivoire, Liberia, and Malaysia.

Because the method of extraction is expensive, a number of companies attempted to use recombinant DNA technology on the gene responsible for producing the thaumatin protein. Beatrice Foods obtained a patent in the USA for the process of cloning the gene in yeast. It has been estimated that the company could gain substantial royalties, amounting to $25 million.

Researchers from the Lucky Biotech Corporation and the University of California have received a US patent for all transgenic fruits, seeds, and vegetables containing the gene responsible for producing thaumatin. The competitive nature of biotechnological research into thaumatin indicates the potential value of the genetic information as perceived by the companies involved. In fact, the market for low-calorie sweeteners in the USA alone is estimated to be $900 million a year. It is highly likely that katemfe plantations will soon no longer be necessary; if so, the countries where katemfe is grown will not even be able to benefit from exporting the berries.

Source: Sasson (1989), Walgate (1990, p. 161), Myers (1993), Shand (1993, p. 1), A.A. Elujoba, Department of Pharmacy, Obafemi Awolowo University, Nigeria, 1994 (personal communication).

• The patent examination is either deferred or replaced by a registration system (as with trademarks).

Petty patents vary more than other IPR types because there are no international agreements or conventions covering them.

Can indigenous knowledge be protected through petty patents?

It is likely that some indigenous knowledge or know-how, particularly that related to medicinal preparations derived from plants, would meet the inventive step condition. Although a plant extract and the method used to obtain it may be “obvious,” it could still be novel, useful, and an inventive step beyond anything already in the public domain (Gollin 1993, p. 173). This point is reinforced when we consider medicines prepared by unique methods and from mixtures intended to achieve synergistic effects or to mitigate harmful side-effects. Significantly, Kenya recently passed a law that allows petty patents

for traditional medicinal knowledge (“herbal as well as nutritional formulations which give new effects” — The Industrial Property Act 1989).

Are petty patents useful for local communities?

Petty patents could become a useful tool to protect indigenous knowledge (Table 1). However, as yet only a few countries (such as Brazil, China, Germany, Japan, and Malaysia) accept them, and there are no international agreements, like the PCT, to simplify the effort of applying in several countries. Indigenous peoples might gain from efforts to increase international recognition of this IPR type. Uncovering and publicizing the actions of companies and institutions seeking to apply for patents based on information disclosed in foreign petty patent applications may also be worthwhile actions.

Copyright

Copyright gives authors legal protection for the following types of work:

• Literary works (such as books, film scripts, and even private correspondence);
• Dramatic and musical works (such as plays and music compositions recorded in the form of musical notation);
• Artistic works and works of applied art (such as paintings, ceramics, carvings);
• Maps and technical drawings;
• Photographic works;
• Motion pictures and sound recordings (such as movies, documentaries, and interviews);
• Computer programs and databases.

Copyright law is intended to protect authors by granting them exclusive rights to sell copies of their work in whatever tangible form (printed publication, sound recording, film, broadcast, etc.) is being used to convey their creative expressions to the public. Although registration is not usually necessary, it is advisable for authors to place their name on the work. However, legal protection covers the “expression” of the ideas contained, not the ideas themselves, which are not actually required to be novel at all. Copyright gives owners exclusive rights, usually for the life of the author plus 50 years. In the case of sound recordings, copyright is usually conferred for 50 years and is available to the person or company responsible for making the recording. Copyright owners have the legal right to stop others from

• Copying or reproducing the work;
• Performing the work in public;
• Making a sound recording or motion picture of the work; and
• Broadcasting, translating, or adapting the work.

Others who wish to exploit copyright material in these ways must usually seek the permission of the copyright owner or an organization that represents copyright owners in a particular industry. Permission is likely to require payment of royalties. In some countries, copyright owners may have the legal rights to be identified on their work and to object to distortions of the work. These are known as moral rights and remain with the author even if the author transfers the copyright to somebody else.

Can indigenous peoples’ folklore be protected by copyright?

Indigenous peoples may be concerned about outsiders reproducing their arts, crafts, songs, and designs without permission and either neglect to acknowledge the source of the creativity or pass off works as genuine indigenous art when they are not. The main limitations of copyright as an IPR tool to protect indigenous culture are as follows:

• Copyrights are assigned to individuals or companies, whereas indigenous people are more likely to desire protection of the rights of the community or tribe, even in cases of recent individual authorship.
• The protection of folklore should ideally be in perpetuity.
• Among some indigenous groups, many expressions of folklore are not fixed but are passed on orally from generation to generation. This excludes such expressions from eligibility for copyright protection.

Is copyright useful for local communities?

Conventional copyright is limited in its usefulness as a tool for preventing the exploitation of folklore, although a number of countries have sought to incorporate folklore into their national copyright laws (see Table 1). In Australia, Aboriginal artists have successfully sued on the basis of copyright (see box 8.5). Copyright law is also being used by the Dene of Canada, as well as several other indigenous groups worldwide, to control documentation of their traditional knowledge (Greaves 1993, p. 7).

Trademarks

A trademark is a marketing tool that is often used to support a company’s claim that its products are “authentic” or “distinctive” compared with similar products from another trading entity. It consists of a distinctive design, word, or series of words, usually placed on the product label and perhaps displayed in advertisements. For example, Coca Cola is a trademark that can only be used on goods manufactured by the Coca Cola Company. A trademark does not have to be registered, but doing so enables owners to sue

Box 8.5

Bulun Bulun versus Nejlam Pty Ltd

Aboriginal art is now a major source of income for many communities in Australia. The art industry provides employment for thousands of people, including artists and employees of art centres where the works are sold. Many of these people are not indigenous. Retail sales amounted to more than AU $18 million in 1988 (1.315 Australian (AU) dollars = 1 US dollar), of which AU $7 million was received by the artists. According to Golvan (1992), “The works of Aboriginal artists have become our national artistic symbols. It has become inconceivable for any major public building to be opened today which does not feature some Aboriginal art.”

Unfortunately, there have been many cases of non-Aboriginal people producing distorted and trivialized versions of Aboriginal artworks. In 1989, John Bulun Bulun, who had discovered that a T-shirt manufacturer had printed shirts displaying an unauthorized reproduction of two of his paintings, sued for copyright infringement. The company and two shops that had sold the T-shirts agreed in court to withdraw them from sale. Later, 14 other artists brought claims against the same company. These cases were settled out of court with the artists receiving AU $150 000 in compensation and to cover their costs.

A positive outcome of this attempt by Aboriginal artists to use the law to protect their rights was that the practice of making unauthorized reproductions of Aboriginal designs on clothes came to an end. Nevertheless, it has not completely stopped people making and selling crude imitations of Aboriginal designs. The most important consequence is that these indigenous people have become aware that the law is not necessarily inimical to their interests but can even be used to further them. Their biggest obstacle, however, is securing the financial resources necessary to take a company to court.

Source: Golvan (1992), ECOSOC (1993, p. 35).

infringers and to licence use of the trademark. The Madrid Agreement Concerning the International Registration of Trademarks enables an applicant to obtain coverage in several countries with a single trademark application. About 30 countries have signed this agreement.

Can indigenous peoples’ cultural heritage be protected by trademarks?

Indigenous peoples’ handicrafts and artworks are desirable products in some countries, but reproductions made by nonindigenous people may undermine the market. If tribal names had trademark protection, people might prefer to buy goods bearing such names, perhaps at higher prices because they value authenticity. Also, imitators might be deterred by the possibility of legal action. The sale of reproductions passed off as genuine indigenous handicrafts is also a violation of the rights of consumers; thus, other legal instruments may be applicable, too.

Nowadays, many people choose to buy goods that appeal to their ethical values. A trademark can be designed to indicate that purchasing goods carrying the mark supports a good cause. The Body Shop registered the word “rainforest” to help make it fashionable to buy the company’s tropical forest products (see Box 8.6). Many customers believe that by buying products with this mark they are helping to protect the forests. However, another company selling similar products risks trademark infringement if it uses the word “rainforest” in advertising or on the product labels. This points to an opportunity for a company to encourage other companies to trade ethically. Such a company with a trademark has the right either to ignore infringements or to register users when it believes that this will further the cause of ethical marketing (C. Haynes, director, Rainforest Foods, London, UK, 1994, personal communication). In the absence of a trade association controlling the use of certification trademarks, a company could follow the example of Cultural Survival, which allows companies to use its trademark “Forest Flavors” and the Rainforest Seal of Approval palm frond logo in exchange for a percentage on raw materials or sales (Snead 1992). The money is then used to support forest peoples and the in situ conservation of the genetic base of the raw materials.

Better still, a trade association or indigenous alliance consisting of representatives of different communities selling similar products could register a trademark that could be used by all participating communities. This trademark could then become a kind of certification mark (see “Certification,” below).

Box 8.6

The quick and easy way to own a “rainforest”

It is possible for traders to monopolize use of the word “rainforest” to distinguish their products from similar ones on the market. The commercial advantage comes from its fashionable exotic and “green” connotations (as long as the goods are not made of mahogany).

Trademarks apply not to any goods but to classes of goods. Thus, if a company registers “rainforest” for cosmetics, as The Body Shop has done, rival companies are forbidden to use the word to inform customers of the rainforest source of ingredients, except in the small print on a label or advertisement. Similarly, no confectionery company can place the words “rainforest crunch” on product labels except the one that already owns this trademark, which is Ben and Jerry’s.

Although companies might claim to be the first to market tropical forest products ethically and would understandably not wish to see other companies that are unconcerned about sustainability and fair trade using the word, other ethical companies will also be prohibited from using the word “rainforest” to sell similar products. This is perhaps not the best way to expand the sustainable and equitable trade in tropical NTFPs.

Trademarks can be a useful tool to promote rainforest marketing, but monopolizing the use of trademarks that are successful at attracting buyers may be counterproductive.

Source: C. Haynes, Director, Rainforest Foods, London, UK, 1994 (personal communication)

In some countries, a trademark may be challenged in the courts if it insults an ethnic group. Indeed, legal action is being taken against the Washington Redskins football team for this reason (T. Greaves, Department of Sociology and Anthropology, Bucknell University, USA, 1994, personal communication).

Are trademarks useful for local communities?

Trademarks can not only help indigenous peoples wishing to commercialize certain products but can also support claims of “unfair competition,” defined in the Paris Convention as

• Acts of such a nature as to create confusion by any means whatsoever with the establishment, the goods, or the industrial or commercial activities of a competitor;
• False allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities of a competitor;
• Indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity of the goods.

However, legal action on the basis of unfair competition does not require that goods be already protected by trademark or other forms of legal protection (see Table 1).

Industrial designs

Industrial designs are defined in the Paris Convention as “the ornamental or aesthetic aspect of a useful article” and may consist of the shape, pattern, or colour of the article. For example, the pattern on an article of clothing or pottery could be protected. The designs must be original and reproducible by industrial means. The period of protection is not indefinite but may be for 5, 10, or 15 years up to a maximum of 25 years. Like trademarks, registering a design is cheaper and less time-consuming than applying for a patent. It also gives owners the right to take legal action against infringers.

Trade secrets

Know-how is practical information that may give a person or company a competitive advantage. As long as it is known only to a few people, such information can be legally recognized and protected as a trade secret even though it fails to fulfill the criteria of patentability. A claim for protection of know-how as a trade secret requires that efforts be made to prevent disclosure. Agreements between indigenous peoples and others to respect the confidential nature of information disclosed and strictly enforced access restrictions are examples of such efforts. Law makes the taking without permission of a trade secret an illegal act but not the discovery by proper means (by independent discovery), accidental or actual disclosure, or by reverse engineering.

Can traditional knowledge be protected as trade secrets?

The knowledge or know-how of an individual or the whole community might be protected as a trade secret as long as the information has commercial value and provides a competitive advantage, whether or not the community itself wishes to profit from it (see Table 1). If a company obtains such information by illicit means, legal action may be used to force the company to share its profits (Gollin 1993, p. 164).

Conceivably, a considerable amount of indigenous peoples’ knowledge could be protected as trade secrets. Restricting access to their territories and exchanging information with outsiders through agreements that secure confidentiality or economic benefits would be appropriate means to this end. Trade secret law can be used to facilitate the drafting of contracts with companies that oblige “recipients to obtain regular patent protection and to share royalties” (Axt et al. 1993).

It has been suggested that knowledge shared be all members of a community may not qualify as a trade secret, but “if a shaman or other individual has exclusive access to information because of his status in the group, that individual or the indigenous group together probably has a trade secret” (Axt et al. 1993).

Plant breeders’ rights

The Union for the Protection of New Varieties of Plants (UPOV) Convention provides for rights commonly known as PBR. According to the latest 1991 revision of the convention, breeders are people who breed, discover, or develop crop varieties. PBR prevent other breeders from breeding and selling the same plant varieties. The convention has force only in its 20 member countries, all of which are developed countries except Argentina, South Africa, and Uruguay. A few developing countries have national forms of PBR.

To be eligible for protection, the plant variety must be

• Distinct (the most important requirement): distinguishable by one or more characteristics from any other variety whose existence is a matter of common knowledge;
• Stable: remain true to its description after repeated reproduction or propagation;
• Uniform: homogeneous with regard to the particular feature of its sexual reproduction or vegetative propagation;
• Novel: not have been offered for sale or marketed, with the agreement of the breeder or his successor in title, in the source country, or for longer than 4 years in any other country.

An application for plant variety protection requires a written description of the variety and deposition of samples in the form of seeds, a dried plant, or a live plant for the examination and conclusive demonstration of stability and homogeneity through propagation trials. Protection is for 15–20 years.

Until 1991, exclusive rights were given by the UPOV Convention to prevent the sale of the reproductive or vegetative propagating part of the plant and commercial production for the purpose of marketing the variety. However, the 1991 revision extended protection from the propagating part of the variety to the whole plant. It also made two other important changes from the previous version regarding two exemptions:

• The research or breeders’ exemption allowed people to use a protected variety as an initial source of variation to create their own new varieties and then to market them as long as repeat use of the original variety was not needed.
• The farmers’ exemption, or privilege, permitted farmers to keep seed of a protected variety for use as seed in subsequent seasons, but not to sell it.

The 1991 UPOV revision eliminated the first of these and made the second optional rather than obligatory for signatory nations. The revision appears to be an attempt to make the protection as strong as that of a patent. So far, only the United States has signed the new agreement, but several countries are drafting new legislation in line with the 1991 convention.

Can indigenous peoples use PBR to protect their own plant varieties?

The UPOV Convention is of limited relevance because it has so few member states. In theory, it is certainly possible for indigenous peoples to obtain a plant variety certificate for some of their crop varieties, and possibly some nondomesticated plants that are utilized by them (Gollin 1993, p. 164), although the intravariety genetic diversity common to traditional cultivars might make many of these ineligible. Indeed, indigenous peoples actually prefer varieties that possess variability and adaptability and therefore breed for these qualities.

The community or group would presumably have to demonstrate that it was the only one that had bred the cultivar or used the landrace. Fulfilling all the above legal requirements is less expensive than applying for a patent, meaning that PBR could be a useful tool for indigenous peoples. However, carrying out the field trials and recording results to demonstrate to the examiners that the variety is eligible for a certificate might be difficult if not impossible to achieve (Table 1). This is one reason why it has been much more common for professional breeders to breed new varieties based on landraces and obtain legal protection for these new varieties. Professional breeders also have greater financial resources, legal experience, and scientific facilities. As long as professional breeders have such advantages over traditional farmer-breeders, the convention is more likely to undermine the rights of traditional communities than support them.

Table 1. Advantages and disadvantages of various IPR mechanisms for local communities.

Geographic indications andappellations of origin

Geographic indications “identify a good as originating in the territory [of a member], or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin” (Article 22 of GATT-TRIPs). One well-known type of geographical indication is the appellation of origin.

Appellation of origin was originally a French geographic indication applying to products considered to be distinctive due to a combination of traditional know-how and highly localized natural conditions (ECOSOC 1993, p. 35; for more information on

geographic indications, see Moran 1993). In France, a government agency validates Appellation d’Origine Contrôlée (registered designations of origin), so that producers of wines, cheeses, and other foodstuffs, whose goods are renowned for their distinctive qualities and geographic origins are protected from those who would undermine their good reputation by making similar, but false, claims (Bérard and Marchenay 1993). For example, wines from the Champagne region of France are protected this way; local producers acting collectively have prevented the use of the word “Champagne” on bottles of perfume, English wine, and German shampoo (Freedman 1994, p. 14).

In British trademark law, local manufacturers can set up their own association and register a collective “certification trademark,” although the applicant association cannot itself trade in the product. The makers of a well-known British cheese, which must be produced in or near the village where it originates (Stilton) according to a certain recipe and process, is protected in this way. The European Union has a register of products protected by geographic indications.

Although so far the use of this method has been confined mainly to certain foodstuffs, it could conceivably be extended to protect expressions of folklore (see Unesco–WIPO model provisions, Chapter 9). This would most likely work if regional associations of indigenous peoples, with government recognition, set up their own appellations of origin or certification-issuing entities (see also below).

Certification and labeling

Certification and labeling are used simply to make a claim about a product that may be of interest to the customer. Certification can be used in a way that protects the environment and ensures that resources, such as timber, are used in a sustainable manner. For example, wood may have a mark to certify that it came from a sustainably managed forest or a handicraft may be marked in some way to show that it is authentic. Tuna fish cans are often labeled “dolphin friendly” to indicate that dolphins were not killed as a result of the method used to catch the tuna. Certification means that claims are authenticated by an organization independent of the individual or company making or selling the product. This could be a regional association of indigenous peoples (as above). Sometimes imitators label their products in a misleading manner. Certification should help buyers distinguish between fakes and genuine products and can make it possible for traders to take legal action against others who use the mark without authorization.

In Canada, it has been claimed that labels such as “handmade,” “handcrafted,” and “authentic” that are not authenticated by an independent body confuse buyers and compete with products made and sold by indigenous peoples (Blundell 1993, p. 69). In response, Canada has introduced official certification marks to authenticate indigenous peoples’ works (Blundell 1993; ECOSOC 1993, pp. 34–35). For example, Inuit soapstone carvings are labeled with a mark certified by Indian and Northern Affairs Canada (Blundell 1993, p. 78). A certification scheme is also being developed in Australia to authenticate Aboriginal products.

However, labeling has been unsuccessful in some US states in terms of promoting trade in indigenous peoples’ products. This may be because customers are not aware of the marks or do not care whether the articles they purchase are genuine (Axt et al. 1993, p. 46). They may also be confused by the labels. These problems illustrate the difficulties likely to arise from the use of certification and geographic indications for manufactured goods and artwork. Nevertheless, they can be successful marketing strategies, especially if traders have a clear understanding of why people wish to buy their articles.

Certification is also being used as a means to encourage trade in sustainably harvested tropical timber. For example, an independent organization — the Forest Stewardship Council (FSC) — consisting of foresters, timber traders, and environmental groups dedicated to sustainable forestry — has been set up with the authority to certify groups around the world who comply with principles it has drawn up. Among its principles are that ownership of a forest must be clearly defined and the traditional rights of indigenous people must be protected.

Conclusions

IPR laws are generally inappropriate and inadequate for defending the rights and resources of local communities. IPR protection is purely economic, whereas the interests of indigenous peoples are only partly economic and linked to self-determination. Furthermore, cultural incompatibilities exist in that traditional knowledge is generally shared and, even when it is not, the holders of restricted knowledge probably still do not have the right to commercialize it for personal gain.

Various indigenous communities and ethnic groups that have occupied similar environments may possess the same, or similar, technical knowledge regarding a specific resource and its use. Therefore, payments to one community could engender conflict between indigenous groups and result in protracted legal battles. This potential conflict between groups calls into question the wisdom of using IPR mechanisms in attempting to award retroactive payments for indigenous knowledge.

Furthermore, the lack of economic self-sufficiency of indigenous peoples and the unequal power relations between themselves and the corporate world would make it very difficult for communities to defend their IPR. Preventing companies from infringing their IPR, for example, by applying for patents based on knowledge derived from, but not identical to, that of the community, presents serious difficulties because of the potentially high cost of litigation.

Indigenous organizations, such as COICA, are becoming more aware of IPR issues and understand that although use of the IPR types described above may under certain circumstances be beneficial, it is necessary, as the title of this book suggests, to look beyond IPR and consider alternative systems of protection, compensation, and self-determination. The statement resulting from an international meeting organized in Bolivia in September 1994 suggests numerous strategies for raising awareness of the potential and the (much greater) limitations of existing IPR laws, and for creating and implementing alternative systems (see Appendix 3 for the full statement).

Chapter 9

Can communities develop their own system for protecting traditional resource rights?

Given the inappropriate nature of IPR as a means of protecting the rights of indigenous peoples, a number of models and concepts are emerging. These are intended to help people develop new, appropriate bases for future legal systems to protect their knowledge and resources. A number of these alternatives to IPR are analyzed in this chapter.

As discussed earlier, IPR may be of use to local communities, but they are basically inadequate and inappropriate to provide the necessary protection of and compensation for indigenous peoples’ individual and collective rights to their knowledge, their culture, and their resources. They are, in fact, more likely to be inimical to their interests. In recent years pressure from the Northern countries, in part through the GATT negotiations discussed in the next chapter, has meant that national IPR laws in developing countries are becoming more and more like those in the United States and Europe, which are much more supportive of high-technology corporations. Among the industries that benefit most are the pharmaceutical and seed industries, which are dependent on biological resources originating from the territories of traditional communities.

Therefore, not only are many communities concerned that this situation is inherently unfair, but the governments of developing countries have also been expressing their criticisms. They commonly use two arguments:

• The biotechnology industries, which are mostly based in the North, rely on the availability of free biological resources from South. Patent law protects corporate investments in R&D and enables companies to charge monopoly prices until the patent expires. On the other hand, the biodiverse countries of the South, which provide these resources without charge, must pay these monopoly prices and are expected to conserve the sites of origin of resources that made the manufacture of the products possible.
• Northern countries frequently complain about IPR piracy in the form of infringements of patents, copyrights, and trademarks by manufacturers in the South and have pressured Southern countries to prevent the copying and sale of IPR-protected goods. However, countries of the South are realizing that their biodiversity is a potential source of great wealth, while Northern countries insist that their access to biodiversity should not be unduly restricted. If corporations from the North continue to have access to biological resources without having either to pay a fair amount for the right or to share the benefits of their research, then Southern countries argue that Northern institutions are guilty of “biopiracy.”

At the Third World Patent Convention in New Delhi, India (March 1990), one of the areas of concern was the negotiations taking place regarding the TRIPs agreement of the GATT treaty and its unsuitability for protecting the traditional customs of farmers and indigenous peoples. The New Delhi Declaration included the following statement:

There can be no uniform set of standards and norms of equal validity or relevance applicable to a wide range of developing countries which are obliged to respond to the imperative of their respective cultural and socioeconomic needs. The holding of a global monopoly of patents representing a massive stock of science and technology by a group of industrialized countries is no justification for common standards and norms to be demanded from the developing countries, or a price for being admitted to a global multilateral system of trade and exchange.

Even though the concerns of Southern governments and local peoples regarding IPR may appear to be similar, their interests are not necessarily the same. Therefore, local

communities themselves should be involved in the development of a more appropriate sui generis legal regime. Several promising new concepts and model laws have been developed. One of the most promising is TRR, which consists of rights, obligations, and concepts already existing in “hard” and “soft” law instruments (see also Chapter 11).

What are traditional resource rights?

Knowledge and traditional resources are central to the maintenance of identity for indigenous peoples. Therefore, control over these resources is of central concern in their struggle for self-determination. The term TRR has emerged to define the many “bundles of rights” that can be used for protection, compensation, and conservation (Posey 1994; Posey et al. 1995). The change in terminology from IPR to TRR reflects an attempt to build on the concept of IPR protection and compensation, while recognizing that traditional resources — both tangible and intangible — are also covered under a significant number of international agreements that can be used to form the basis for a sui generis system. “Traditional resources” include plants, animals, and other material objects that may have sacred, ceremonial, heritage, or esthetic qualities. “Property” for indigenous peoples frequently has intangible, spiritual manifestations, and, although worthy of protection, can belong to no human being. Privatization or commoditization of their resources is not only foreign but incomprehensible or even unthinkable. Nonetheless, indigenous and traditional communities are increasingly involved in market economies and, like it or not, are seeing an ever-growing number of their resources traded in those markets.

TRR is an integrated rights concept that recognizes the inextricable link between cultural and biological diversity and sees no contradiction between the human rights of indigenous and local communities, including the right to development and environmental conservation. Indeed, they are mutually supportive since the destiny of traditional peoples largely determines, and is determined by, the state of the world’s biological diversity. TRR includes overlapping and mutually supporting bundles of rights. These rights and the international agreements that support them are detailed in Table 2.

TRR can be implemented locally, nationally, and internationally. They can guide international law and practice and national legislation. Furthermore, they can provide a source of principles to guide the process of dialogue between indigenous and local communities and governmental and nongovernmental institutions, for example, through innovative contracts providing benefits from the transfer of traditional resources, new codes of ethics and standards of professional conduct, socially and ecologically responsible business practices, and holistic approaches to sustainability.

TRR go beyond other sui generis models in that they seek not only to protect knowledge relating to biological resources but also to assert the right of peoples to self-determination and the right to safeguard “culture” in its broadest sense.

Table 2. Traditional resource rights.

^a Definitions: CBD, UN Convention on Biological Diversity (1992) — 108 states parties as of 31 December 1994; DDRIP, UN Draft Declaration on the Rights of Indigenous Peoples (formally adopted by the UN’s Working Group on Indigenous Populations in July 1994); DHRD, UN Declaration on the Human Right to Development (1986); FAO–IUPGR, International Undertaking on Plant Genetic Resources (1987 version); GATT, Final Document Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (1994); ICCPR, UN International Covenant on Civil and Political Rights (1966) — 129 states parties as of 31 December 1994; ICESCR, UN International Covenant on Economic, Social and Cultural Rights (1966) — 131 states parties as of 31 December 1994; ILO 169, International Labour Organisation Convention 169 concerning indigenous and tribal peoples in independent countries (1989) — 7 states parties; NLs, national laws; RC, Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961) — 47 states parties as of 31 December 1994; RD, Rio Declaration (1992); UDHR, Universal Declaration of Human Rights (1948); Unesco–CCP, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) — 79 states parties as of 1 January 1994; Unesco–F, Recommendations on the Safeguarding of Traditional Culture and Folklore (1989); Unesco–WHC, Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) — 135 states parties as of 1 January 1994; Unesco–WIPO, Model Provisions for National Laws on Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1985); UPOV, International Union for the Protection of New Varieties of Plants Convention (1961, revised in 1972, 1978, and 1991) — 27 states parties as of 31 December 1994; VDPA, UN Vienna Declaration and Programme of Action (1993); WIPO, World Intellectual Property Organization (administers international IPR agreements such as the Paris Convention for the Protection of Industrial Property (1883, revised most recently in 1967) — 129 states parties as of 31 December 1994; the Berne Convention for the Protection of Literary and Artistic Works (1886, revised most recently in 1971) — 111 states parties as of 31 December 1994; the Madrid Agreement Concerning the International Registration of Trademarks (1891, revised most recently in 1967) — 43 states parties as of 31 December 1994; the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1958, revised most recently in 1967) — 17 states parties as of 31 December 1994; and the Patent Cooperation Treaty (1970) — 77 states parties as of 31 December 1994).

Community intellectual property rights

Community IPR developed to counter what Shiva (1994a) calls “the colonization of the seed” by multinational companies selling seeds and agrochemicals. Community IPR would enable farmers to assert their “rights to seed” by claiming that any corporation using local knowledge or local resources without the permission of local communities is engaging in intellectual piracy.

The Crucible Group (1994, pp. 67–68) has said that for community IPR to be effective:

• They would have to be entrenched in appropriate national legislation with reciprocal recognition in other countries;
• An international database would have to be created for tracing germplasm, possibly through the CGIAR system; and
• A “public defender” would have to be appointed in the shape of an internationally recognized mediator or ombudsman.

At a meeting on Methodologies for Recognising the Role of Informal Innovation in the Conservation and Utilisation of Plant Genetic Resources, which took place in Madras, India, in January 1994, it was proposed that IPR legislation relating to plant genetic resources should provide for both breeders’ rights and farmers’ rights. To establish community IPR effectively, members of The Crucible Group suggest the following:

• Plant varieties developed by communities should be deposited in germplasm banks along with registration data: date, place, and location of origin (including names and addresses of communities). Community IPR applications would have to include all this information.
• All germplasm currently existing in germplasm banks should be covered by such legislation.
• National IPR offices and the international secretariat for each IPR convention should have an office to investigate complaints by local communities and governments, and a tribunal should have the power to revoke IPR.
• Fees derived from IPR should be used to fund this office and to give legal aid to local communities involved in disputes.

Model draft community intellectual rights act

A model community intellectual rights act was suggested in a Third World Network discussion paper (Nijar 1994) as a means of bringing about the evolution of new criteria for claiming patent rights compatible with cultural values and practices of indigenous peoples. It could be used in the context of the GATT-TRIPs call for sui generis forms of

IPR protection and is in accord with the requirements of the CBD, particularly Article 8(j).

The purpose of the act would be to prevent the “privatisation and usurpation of community rights and knowledge through existing definitions of innovation.” It would assert the existence of knowledge that is communally owned and shared, given that ownership of property is not a concept accepted by many indigenous peoples. Therefore, a more suitable form of description for knowledge that is of value, not privatized, and cumulative would be “community intellectual rights” (CIR).

To meet the novelty or innovation requirement of regular patent protection criteria, indigenous peoples are described as “innovators” because the knowledge they have accumulated has been unknown to the outside world. Two legal bases are suggested for “vesting in local communities custodianship rights of an innovation”:

• Constructive trustee: local community leaders are nominated or appointed to act for the whole community as trustees for the beneficiaries (the community).
• Higher trust: this builds on the concept, declared in the CBD and UNCED documents, that government, in possessing sovereign rights, is in fact holding those rights in trust for the community (see Megarry 1977). It also refers to FAO Resolution 5/89, on farmers’ rights being vested in the international community “as trustees for present and future generations of farmers.” As suggested by the concept of farmers’ rights (see Chapter 13), the right is to be held in perpetuity because knowledge and practice will evolve as a community evolves.

Section 5 of the model CIR act suggests the creation of a registry of invention, in which a community might register its innovations as a simple method of declaring their existence to the world. The idea is similar to copyright law, in which protection generally arises with no need for formal acceptance by a registering authority, and the mechanism is more flexible than filing a patent. Failure to register does not surrender the innovation rights, but doing so may block a patent application for an identical or similar “innovation” (see also “Defensive publication” in Chapter 8).

A similar possibility is for communities to develop a community register, in which local people document all known plant and animal species with full details of their uses. Community members would then be in a position to refuse access to the register or set conditions under which access would be allowed. It is even possible that a community could use a community register as evidence of intimate knowledge of the local environment to support a claim to legal title of its territory. Although community registers would be kept locally, they could be components of regional and national registers containing information freely available to communities. This would keep such information in the public domain.⁴

⁴ For further information about community registers, contact the Foundation for Revitalisation of Local Health Traditions or Ashish Kothari (see Resource Guide, India).

The Unesco–WIPO model provisions

In 1985, the United Nations Educational, Scientific and Cultural Organisation (Unesco) and WIPO produced Model Provisions for National Laws on Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions. The intention was to go beyond conventional copyright by protecting intangible expressions as well as fixed works. The document avoids a definition of folklore, but in Section 2 does explain what the term expressions of folklore should encompass:

• Folk tales, folk poetry, and riddles;
• Folk songs and instrumental music;
• Folk dances, plays, and artistic forms of rituals;
• Drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, costumes, musical instruments, and architectural forms.

Although not stated, a law that implements the model provisions could include traditional genetic resources as “expressions of folklore” to be protected if national law-making bodies wished to approve such an interpretation.

According to the model provisions, certain uses of expressions of folklore are subject to prior authorization by a competent authority or the community itself if they are “made both with gainful intent and outside their traditional or customary context” (Section 3) and would therefore constitute “illicit exploitation” if used without this authorization. “Traditional context” here means remaining “in its proper artistic framework based on continuous usage by the community” (WIPO 1989, p. 6). “Customary context” means in accordance with the practices of everyday life in the community. Four other types of “prejudicial action” may be subject to criminal sanctions (Section 6):

• Failure to indicate the ethnic and geographic source of an expression of folklore in printed publications and other communications to the public;
• Unauthorized use of an expression of folklore where authorization is required;
• Deliberately deceiving the public about the ethnic source of a production;
• Any kind of public use that distorts the production in a manner “prejudicial to the cultural interests of the community concerned.”

A “competent authority,” which could be the communities themselves, would be set up to deal with applications for use of expressions of folklore and perhaps to fix and collect authorization fees.

The rights covered in the model provisions have some of the characteristics of copyright law, in that they protect the (community) creators of artistic expressions, and

neighbouring rights (see Chapter 10), in that they can protect performances. However, compared with both these mechanisms, the model provisions have some advantages:

• They protect both fixed and unfixed works of folklore, which is rare in national copyright laws.
• The period of protection is indefinite.
• The protection goes beyond neighbouring rights, which only prevent performing, recording, and broadcasting works, and includes rights similar to the moral rights that exist in some copyright laws (see Chapter 8) and even appellation of origin.
• The provisions recognize the need to balance protection from abuses of folklore against “freedom and encouragement of its further development and dissemination.”

However, the model provisions make it possible for a state agency to collect fees from users; this may be a problem if the agency cannot collect fees efficiently or misappropriates those it does collect. A number of African countries, such as Nigeria, have enacted legislation based, at least in part, on the model provisions. Elsewhere, there has been little response from national legislatures.

Conclusions

The concepts of TRR, community IPR, CIR, and the model provisions are alternatives to IPR that accommodate more adequately the concern of traditional communities to prevent others from privatizing their knowledge and resources. However, the TRR concept goes furthest in a number of respects:

• It emphasizes the right to self-determination, including territorial and human rights.
• It covers a broad range of rights to protect, not only knowledge and biogenetic resources but also cultural property, folklore, and even landscapes.
• It does not reject IPR outright but instead includes them as one of a whole bundle of rights.

Chapter 10

Are legally binding international agreements useful?

This and the following two chapters outline the various legal and nonlegal instruments that may become useful tools in the struggle to establish TRR. In this chapter, we discuss the nature and scope of major legally binding international agreements containing rights, principles and concepts of relevance to the protection of indigenous peoples’ knowledge and resources.

Given the fact that governments often refuse to sign international agreements that they perceive to be against the interests of the country, or fail to carry out international legal obligations that they have agreed to, it may not seem worthwhile analyzing international legal instruments. However, they contain important rights, principles, and concepts that can be valuable in the building of the sui generis TRR system. In this chapter, we examine these instruments and provide answers to the questions: what useful provisions do these legal instruments contain? and how can indigenous peoples exploit the fact that such provisions exist?

The GATT agreement on Trade-Related Aspects of Intellectual Property Rights

In a 1986 meeting, government ministers from around the world launched the Uruguay Round of the GATT negotiations. The Ministerial Declaration on the Uruguay Round (GATT doc. MIN.DEC, 20 September 1986) called for the formulation of a multilateral agreement on minimum levels of protection for IPR, thereby increasing awareness of the importance of intellectual property in international trade.

IPR were included in the GATT negotiations at the request of the United States and its supporters to harmonize the treaty for two reasons (van Wijk et al. 1993):

• Negotiations on IPR were linked to international trade negotiations, making developing countries’ access to export markets in industrialized countries contingent upon advances in IPR recognition or establishment.
• GATT contains an effective dispute-settlement mechanism that could be used to take action rapidly against any countries violating any GATT agreement on intellectual property.

The TRIPs section of GATT may be the most ambitious multilateral agreement ever made in the area of intellectual property. Divided into seven parts and 73 Articles, it covers issues of copyright and related rights, trademarks, geographic indications, industrial designs, patents, layout designs of integrated circuits, trade secrets, control of anticompetitive practices in contractual licences, as well as provisions on enforcement, acquisition, maintenance of IPR, and dispute-settlement mechanisms.

The TRIPs agreement includes a provision (Article 27 (3b)) that excludes from patentability

Plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than nonbiological and microbiological processes.

The same provision also guarantees

The protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.

This provision has been viewed as a threat to community rights because it would create legal monopolies on common resources, but it may also provide opportunities.

There is a threat in the sense that although developing countries have a grace period of 4–10 years, these countries are being pressured into accepting protection of plant genetic resources and limitations to access, which are contrary to their customary practices. Specifically they are expected to introduce either patent protection for plant varieties or a sui generis system protection based on the 1991 UPOV Convention (see Chapter 8). The main issue is the imposition on developing countries of a regulation that overturns a centuries-old custom of sharing seeds and community innovations in favour of a system that sections of the population do not necessarily believe is to their benefit. Vandana Shiva (1994b, p. 12), a well-known critic of GATT-TRIPs, speaks for Indian farmers when she says:

[TRIPs] has failed to recognize the more informal, communal system of innovation through which Third World farmers produce, select, improve and breed a plethora of diverse crop varieties.

There is an opportunity in that a sui generis system, developed in accordance with Article 27, could be designed that would serve the interests of local communities. Also, even if indigenous peoples themselves cannot obtain IPR protection for plant and animal materials, they can still demand that governments prohibit multinational pharmaceutical companies and others from patenting such material found on their lands. Although, it is uncertain whether governments would agree to do so, indigenous peoples should be aware that such action is possible under international law.

Most countries of the world have signed the 1994 GATT, which also establishes the World Trade Organization (WTO), and will thus be obliged to comply with Article 27 of TRIPs. However, if developing countries are able to resist pressure from the United States and Europe, it may be possible for them to enact legislation aimed at protecting traditional knowledge and processes related to plant life if national legislatures and governments are prepared to explore such a possibility. Shiva (1994b) advocates such efforts by calling on India to respond to the GATT and emphasizing the need for communal knowledge to be acknowledged:

Our challenge now is to use the clause for evolving a sui generis system to push for the protection of collective innovation and the protection of the creative potential of our people and our country.

The Convention on Biological Diversity

Article 1 of the CBD states:

The objectives of this Convention are . . . the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.

The logic behind these objectives is that biodiversity can only be conserved if resources are used in a sustainable manner, particularly by the biotechnology industries,

and the economic benefits of such use flow back to conservation activities, particularly in developing countries. States retain sovereign rights to their biological and cultural resources and are responsible for ensuring that the benefits flowing from their use reach the citizens.

Indigenous peoples, who have been largely marginalized by such processes in the past (if not totally excluded), are understandably sceptical of the view that this time things will be better. However, for the first time, at least indigenous and local communities embodying traditional lifestyles are expressly mentioned in the CBD, and their central contributions to biodiversity conservation are recognized. Signatories to the CBD have pledged to

Respect, preserve and maintain knowledge, innovations, and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices. [Article 8(j)]

This opens the door for farming communities, for example, to claim IPR, not only for the benefits they receive from biological resources but for the part they play, or can play, in conservation of resources in situ and ex situ. However, it also gives government priority where there is a conflict of interest between indigenous peoples’ needs and those of conservation, which will depend on government’s interpretation of specific cases.

The language of the CBD, the Rio Declaration, and Agenda 21 (see Chapter 11) is vague and will be molded by future political and economic actions. Given that indigenous peoples are recognized as having specific rights and benefits and that economic livelihood is linked to development and conservation of natural resources, as much energy and effort as possible should be put into activating the sections relevant to indigenous rights — especially the recognition and protection of, and compensation for, intellectual property. GATT negotiators, FAO, the WTO, and WIPO will all have to accommodate to this reality in future because the vast majority of countries are signatories of the CBD.

The CBD contains several provisions that, if implemented, could provide ways to secure a greater degree of community empowerment. Article 6 calls for strategies, plans, and programs for conservation and sustainable use of biological diversity. Indigenous peoples should be actively involved in these national studies, not only as participants and executants but intellectually through the development of their own criteria and value systems. Likewise, Article 7 calls for identification and monitoring of biodiversity, which should include criteria set by indigenous peoples and include their full participation.

Article 8 deals with in situ conservation, which in effect calls for support of indigenous and local communities, as they are an intricate part of the overall ecosystem. Article 8(j) specifically deals with indigenous peoples (see above). Effective implementation of Article 8(j) requires at least the following measures:

• Indigenous land demarcation and guarantees of security;
• Support for indigenous-based and designed conservation and sustainable development efforts;
• Research centres to develop strategies and models to apply traditional technologies in a larger context;
• Support for and strengthening of indigenous organizations, including local, regional, national, and international indigenous alliances, councils, federations, unions, etc.;
• Creation of enforceable international legal structures to develop mechanisms for protection of, and equitable sharing of, benefits from indigenous and traditional knowledge, innovations, and practices.

Article 10(d) states that contracting parties shall “support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced.” In the absence of a clear idea of what is meant by “support,” indigenous peoples should formulate their own guidelines. Both the CBD and Agenda 21 stress restoration and remedial action in degraded areas. Funding priorities will probably reflect this emphasis and restoration and revitalization projects will proliferate. Indigenous peoples should be prepared to develop their own projects for their own lands and territories, using their own conservation technologies and management models as the basis.

Articles 11, 12, and 13 call for “incentive measures” to finance research, training, public education, and awareness to effect conservation and sustainable use of components of biological diversity. These sections should be interpreted by indigenous peoples to strengthen their own research agendas. Emphasis should be placed on collaborative research and community-controlled research (see Chapter 14), in which indigenous and traditional communities themselves set, guide, and control the research priorities, standards, and guidelines for nonindigenous research partners or contractors. Indigenous peoples should seek support, financial and otherwise, for establishing their own programs for scientific and technical education and training in “measures for the identification, conservation, and sustainable use of biological diversity” (Article 12(a)). Likewise, they should seek support in their own media projects as provided for in Article 13(a).

Article 14 deals with “impact assessment and minimizing adverse impacts.” Section 1(a) calls for the parties to

Introduce appropriate procedures requiring environmental impact assessment of its proposed project that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects, and where appropriate, allow for public participation in such procedures.

Effective implementation of this article depends upon local participation in projects that affect indigenous, traditional, or local communities (see Box 10.1).

Article 16 deals with “access to and transfer of technology.” Indigenous and traditional technologies have rarely been considered to be “technologies” in international parlance. This pattern is part of the larger trend to downgrade, overlook, and minimize the knowledge, innovations, and practices of indigenous peoples. The CBD, however,

Box 10.1

Environmental impact assessment

Indigenous, traditional, and local communities require the following to make the provisions for environmental impact assessments (EIAs) effective:

• Full participation in all phases of conceptualization, implementation, and analysis;
• Inclusion of their own guidelines, criteria, and mechanisms for assessment;
• Full disclosure of all information relevant to the project, including technical and feasibility studies and assessments;
• Access to information on the results of the EIA (Principle 10 of the preamble);
• Their prior informed consent (see Principle 10, Article 8) before studies are undertaken or implemented in an area;
• National and international mechanisms with legal jurisdiction to handle matters of redress, liability, restoration, and compensation.

specifically elevates these elements to a central concern (see also Articles 8(j) and 18.4) as technologies relevant to the conservation and sustainable use of biological diversity.

Thus, it is clear that “indigenous and traditional technologies” are covered under the technologies section of Article 16:

• Article 16.2 provides that access and transfer of technologies “subject to patents and other intellectual property rights” must occur on mutually agreed terms that “recognize and are consistent with the adequate and effective protection of intellectual property rights.”
• Article 16.3 calls for contracting parties to take legislative, administrative, or policy measures to provide access to and transfer of technology “including technology protected by patents and other intellectual property rights.” This is to be carried out “in accordance with international law.”
• Article 16.4 calls on contracting parties to take legislative, administrative, or policy measures to facilitate the private sector’s “joint development and transfer of technology.”
• Article 16.5 recognizes that “patents and other intellectual property rights may have influence on the implementation” of the CBD, but states are called upon to cooperate to “ensure that such rights are supportive of and do not run counter to” the CBD’s objectives.

In some ways, Article 16, together with Articles 8(j) and 18.4, is one of the most important sections for indigenous peoples. The article specifically provides for national and international legislative, administrative, and policy measures to protect IPR to technologies, which must be interpreted to include “indigenous and traditional technologies.” Specific mention of the private sector in “joint development and transfer of technology” is subject to mutually agreed terms that require legal recognition and protection of patents and other IPR.

There can be no clearer call for IPR protection for indigenous knowledge, innovations, and practices. Furthermore, international measures are specifically called for, necessitating an international system to regulate IPR, including those for indigenous and traditional technologies (for a discussion of relevant IPR instruments, see Glowka et al. 1994).

Article 18 refers to technical and scientific cooperation. Article 18.2 calls for the promotion of cooperation to develop and strengthen “national capabilities, by means of human resources development and institutional building.” Article 18.3 specifically calls for the establishment of a clearing-house mechanism to “promote and facilitate technical and scientific cooperation.” This mechanism would be established by a “Conference of the Parties” and could include a central base with many satellites, including community-controlled research and training centres developed in partnership with indigenous peoples (see Box 10.2). In addition to a central clearing-house, additional mechanisms can include databases designed and maintained by indigenous peoples, monitoring, and conservation centres, which should be afforded funding priorities under the financial mechanisms established by the CBD (Articles 20 and 21). Whatever the solution, or combinations of solutions, the concept of a clearing-house implies the establishment of ethical and legal guidelines governing access to and use of information secured through IPR agreements.

Box 10.2

A clearing-house mechanism

To be effective, a clearing-house mechanism should include:

• Indigenous participation in all phases of conceptualization, implementation, and maintenance;
• Establishment of priorities and guidelines developed by communities embodying traditional lifestyles;
• Creation of community-controlled regional clearing-houses;
• Secure IPR agreements to ensure protection and compensation for information transfer.

Article 23 establishes the Conference of the Parties, which has full authority to establish, review, consider, and adopt measures, acts, subsidiary bodies, protocols, and implementing mechanisms. Two particularly interesting possibilities are included:

• Possibility of the establishment of a “special subsidiary body on indigenous and traditional scientific, technical and technological advice.” This body would be constituted to advise the Conference of the Parties on all aspects of in situ conservation and sustainable development as it relates to indigenous and traditional technologies, as well as knowledge, innovations, and practices of local communities embodying traditional lifestyles.
• Development of a “special protocol on indigenous and traditional technologies based on knowledge, innovations and practices of local communities embodying traditional lifestyles.” This could be used to develop mechanisms for strengthening indigenous, traditional, and local communities. It would have an international legal basis, because it would be subsidiary to the CBD, which is a legally binding international agreement (see Article 25).

Article 24 establishes the CBD Secretariat. To implement the functions of the Secretariat, as defined in sections 1(a–e), indigenous peoples should be among the permanent members and staff of the Secretariat.

Article 25 provides details about the Subsidiary Body on Scientific, Technical and Technological Advice, which is open to participation by all parties and “shall be” (notice the mandatory language) multidisciplinary. The Conference of the Parties is to provide guidelines and establish the authority of the advisory group. The CBD outlines its functions as providing

• “Scientific and technical assessments of the status of biodiversity” (24.2.a);
• Assessments of measures taken in the implementation of the CBD (24.2.b);
• Identification of “innovative, efficient and state-of-the-art technologies and know-how,” while “promoting development and/or transferring such technologies” (24.2.c);
• Provision of advice on international cooperation in R&D (24.2.d);
• Response to technical, technological, and methodological questions that arise.

Indigenous peoples should be well represented on the subsidiary body. Because knowledge, innovations, and practices of local communities embodying traditional lifestyles are highlighted elsewhere as relevant to conservation and sustainable use of biological diversity (for example, Articles 8(j) and 18.4), the subsidiary body should give research into and application of traditional technologies the highest priority (see Box 10.3).

Alternatively, a Special Subsidiary Body on Indigenous and Traditional Scientific, Technical and Technological Advice could be established to deal exclusively with these matters (see discussion of Article 23).

Box 10.3

Subsidiary Body on Scientific, Technical and Technological Advice

The Subsidiary Body on Scientific, Technical and Technological Advice, described in Article 25 of the CBD, should:

• Include a fair representation of scientific and technical specialists from indigenous, traditional, and local communities;
• Identify relevant traditional technologies, innovations, and practices;
• Apply and seek wider application of indigenous and traditional knowledge, innovations, and practices;
• Develop methods, techniques, and strategies for use of indigenous criteria for evaluation, assessment, and monitoring;
• Give priority to, and develop guidelines for, collaborative and community-controlled research with indigenous, traditional, and local communities;
• Develop guidelines and proposals for model legislation on IPR and TRR for indigenous, traditional, and local communities;
• Develop guidelines and proposals for model legislation to establish monitoring and enforcement institutions to insure that the CBD is fairly and properly implemented and that indigenous, traditional, and local communities benefit from it.

Article 28 deals with the process of adoption of protocols. Protocols establish a subset of agreements within the framework of a convention. Thus a protocol to the CBD would define specific aspects of items provided for in the convention. Two interesting possibilities exist:

• As previously suggested, a protocol on indigenous and traditional technologies based on knowledge, innovations, and practices of local communities embodying traditional lifestyles could be negotiated (see Box 10.4).
• The well-being of indigenous and traditional communities could be included as a major aspect of a protocol on biosafety. Indigenous and local communities embodying traditional lifestyles are recognized as having knowledge, innovations, and practices relevant to the conservation of biological diversity and the sustainable use of its components (see CBD preamble). Furthermore, these local communities are seen as fundamental to in situ conservation and, indeed, as integral parts of the ecosystems they inhabit (Article 8).

The disadvantage of this strategy is that few states would support the negotiation of such protocols because they would be controversial and of little interest to most contracting parties.

Box 10.4

Special protocols on indigenous and traditional technologies based on the knowledge, innovations, and practices of local communities embodying traditional lifestyles

Options for such protocols include:

• Define and develop mechanisms for “sharing equitably benefits arising from the use of traditional knowledge, innovations, and practices relevant to the conservation of biological diversity and the sustainable use of its components” (CBD preamble);
• Define, document, and investigate “knowledge, innovations, and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity” (Article 8(j));
• Define and develop effective mechanisms to “promote the wider application” of traditional knowledge, innovations, and practices (Article 8(j));
• Establish guidelines and mechanisms for training and surveying programs in indigenous and traditional knowledge (Article 17);
• Develop a clearing-house mechanism for technical and scientific cooperation between and with local communities (Article 18);
• Develop financial mechanisms to strengthen local communities to preserve and maintain their knowledge, innovations, and practices (Article 20).

There is, however, already a strong international movement to implement a biosafety protocol for the CBD. It should cover the impact of biotechnology and its risks on local communities. This should include guidelines for equitable sharing and IPR protection, because these are the mechanisms that guarantee benefits for local communities and ensure their continued conservation of biological diversity (see Box 10.5).

Article 8(g) calls for the establishment and maintenance of

Means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology that are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health.

Indigenous, traditional, and local communities would clearly be among those most affected by these modified organisms.

Box 10.5

Options for a protocol on biosafety and traditional technologies

• Develop criteria and mechanisms to identify and prepare baseline inventories of existing components of biological diversity using local communities and their own criteria.
• Develop criteria and mechanisms to identify and prepare baseline inventories of knowledge, innovations, and practices of traditional communities that currently maintain and conserve biological diversity.
• Develop criteria and mechanisms to assess the impact of intended new technologies and genetically modified organisms on traditional lifestyles and the conservation and sustainable use of biological diversity by local communities.
• Develop criteria and mechanisms to monitor change, including adverse effects of external technologies and genetically modified organisms on traditional lifestyles and the conservation and sustainable use of biological diversity.
• Develop equitable sharing mechanisms for biotechnology developed, based upon or derived from traditional technologies.

International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights

The ICESCR and ICCPR are the two main international legal instruments dealing with human rights. Article 1(2) of both these documents states:

All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

This is a clear call for the recognition of collective human rights.

Article 15(1c) of the ICESCR states:

The States Parties to the present Covenant recognize the right of everyone . . . (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

These provisions support the view that international law gives indigenous peoples the right to safeguard their own resources and to benefit from their knowledge and from goods produced or owned by them, regardless of whether they wish to commercialize them. However, these covenants are frequently ignored by many governments that violate them with impunity, although even nondemocratic governments might respond

favourably to international pressure from citizens and foreign governments. There is little that communities working alone can do, but tribes, people’s organizations, and communities acting together have occasionally succeeded, especially when their campaigns have attracted the support of citizens and even governments around the world. For example, the efforts of the Yanomami of Amazonia to secure legal recognition of their land rights has been reasonably successful because of international support.

The World Heritage Convention

The main instrument of international law concerned with cultural heritage is the 1972 Unesco Convention Concerning the Protection of the World Cultural and Natural Heritage (often called the World Heritage Convention). The goal of this convention is to mobilize international cooperation for the protection of the cultural and natural heritage of humankind. According to the convention, cultural heritage includes

• Monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archeological nature, inscriptions, cave dwellings and combinations of features that are of outstanding universal value from the point of view of history, art, or science;
• Groups of buildings: groups of separate or connected buildings that, because of their architecture, their homogeneity, or their place in the landscape, are of outstanding universal value from the point of view of history, art, or science;
• Sites: works of people or the combined works of nature and people and areas, including archaeological sites, that are of outstanding value from the historical, esthetic, ethnological, or anthropological points of view (Article 1).

“Natural heritage” is confined to natural or geologic features of outstanding universal value.

In view of their universal value, state parties are required to draw up an inventory of world cultural and natural heritage properties (Article 11). From their inventories, states can nominate sites that they wish to be included on the World Heritage List. The World Heritage Committee evaluates these nominations and, when accepted by the committee, these are included in the World Heritage List to be protected under the convention with funds provided by the state parties. Such international cooperation is considered necessary because many countries lack the resources to prevent the deterioration and disappearance of their cultural and natural assets.

To be considered by the committee, nominated properties should conform to certain criteria. Thus, each cultural property nominated should (Unesco 1994)

(v) be an outstanding example of a traditional human settlement or land-use which is representative of a culture (or cultures), especially when it has become vulnerable under the impact of irreversible change; or (vi) be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance (the Committee considers that this criterion should justify inclusion in the List only in exceptional circumstances or in conjunction with other criteria).

Of the several hundred listed sites, about 300 were selected for their cultural importance and over 100 for their natural significance. The rest are either joint cultural and natural heritage sites or “cultural landscapes.” The so-called cultural landscape has only recently been adopted under the category of “combined work(s) of nature and of man.” This category is intended to recognize “the complex interrelationships between man and nature in the construction, formation and evolution of landscapes” (Rossler 1993a, p. 14). It may be quite useful in protecting the cultural heritage of some indigenous peoples.

There are three main types of cultural landscape:

• “Clearly defined landscapes designed and created intentionally by man, such as for example, gardens and parks” (Rossler 1993b);
• “Organically evolved landscape resulting from successive social and economic imperatives and in response to the natural environment” (Rossler 1993b). There are two subcategories: the relict landscape; and the continuing landscape, “which retains an active social role in contemporary society closely associated with the traditional way of life” (Unesco 1994, p. 11);
• Associative cultural landscapes, which have “powerful religious, artistic or cultural associations of the natural element rather than material cultural evidence, which may be insignificant or even absent” (Unesco 1994).

The first cultural landscape to be designated is Tongariro National Park in New Zealand, which was originally nominated as a joint natural and cultural site and was then listed as a natural site. It was selected because of the importance of the area in Maori mythology and the sacred nature of the mountains. According to World Heritage Newsletter (Rossler 1993c, p. 15), “The Park was the first in the world to be donated by an indigenous people to a State.” At its 17th session, the World Heritage Committee concluded that it was “an outstanding example of an associative cultural landscape tied to the cultural identity of the Maori people.”

In addition to Tongariro, there are other important places for indigenous groups on the World Heritage List. One of these is Uluru (Ayers Rock) in Australia, which belongs to the Anangu people and is considered a sacred place by them. However, one cannot assume that as a result, local community’s territorial and resource rights are respected. Rights of access of local people to such designated places may still be restricted in some way by governments that do not believe that indigenous peoples are the most effective conservers of them.

If the World Heritage Convention is to prove beneficial to indigenous peoples, the committee and its advisory organizations (such as IUCN) must pay heed to indigenous peoples’ interests when considering new nominations and properties already listed under the new criteria. Ultimately, the extent to which the religious and cultural importance of places and objects for ethnic minorities and indigenous peoples is taken into account in the World Heritage List depends on

• Whether governments are willing to consult indigenous peoples;
• Whether national legislation to implement the convention allows for a flexible or broad interpretation of “cultural and national heritage”; and
• Whether the committee is prepared to take the view that cultural and natural properties important to an indigenous people constitute part of the heritage of humankind of sufficient importance to justify the expense of their protection.

The Rome Convention

The concept of “neighbouring rights” arose in response to technological developments that allowed a much broader dissemination of artistic works and made manifest the failure of copyright law to protect the rights of performers, recorders, and other disseminators. These latter groups were responsible for the enormous increase in public exposure, but only the copyright owners of the works were able to benefit from this. In a similar way, some indigenous peoples were becoming aware of an increase in the scope for commercial exploitation of their folkloric expressions but found it hard to benefit commercially or to prevent others from doing so. Because copyright law did not protect “unfixed” works (see Chapter 8), indigenous peoples found it difficult to prevent loss of control over their performing arts. Consequently, others were free to disseminate and profit from recordings of these performances and make changes to their form and content without legal obligations to the original performers.

In 1961, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the Rome Convention) provided so-called neighbouring rights protection from the following acts carried out without the performer’s prior consent:

• Broadcasting or communication to the public of a “live” performance;
• Recording an unfixed performance;
• Reproducing a fixation of the performance, provided that the original fixation was made without the consent of the performer or the reproduction is made for purposes not permitted by the convention or the performer (Article 7).

According to Article 12, if a phonogram is made for a commercial purposes and communicated publicly, the user must pay an “equitable remuneration” to the performers or to the producer of the phonogram, or to both. The minimum term of protection is 20 years from the performance, fixation, or broadcast.

According to WIPO, “The Convention is particularly interesting for those countries whose civilization and tradition are oral and where the author is often the performer as well” (WIPO 1988, p. 240). Of the more than 50 countries that have so far enacted legislation related to the Rome Convention, more than half are developing countries. Although neighbouring rights can be a useful legal tool to protect folklore in countries that legally recognize them, protection is limited in time and excludes copying what is not performed, broadcast, or contained in phonograms (WIPO 1988, p. 246).

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property

This 1970 Unesco convention is the main international legal instrument to suppress the illegal transfer of, and trade in, cultural property across national boundaries. It requires the issue of export certificates and prohibits the importing of stolen cultural property. The weaknesses of the convention as an instrument to protect indigenous peoples’ cultural property are as follows:

• It does not apply to objects stolen before the convention came into force.
• It does not apply to stolen objects that do not cross national boundaries.
• Many of the major importing nations have not ratified the convention.
• Cultural property is defined to include objects valuable for several reasons but not for their direct relevance to the lives of present-day peoples.
• Cultural property as defined by the convention excludes immovable property, such as sacred sites and cultural landscapes.
• Although the geographic origins and location of cultural properties in relation to national boundaries are of great importance, there is no requirement that ethnic origins be taken into account when making or considering restitution claims. Thus, governments may decide that property should be kept in national museums.

The extent to which the convention has succeeded in stemming the flow of cultural property to dealers in ethnic artworks is not clear and may be minimal. However, the return of the sacred weavings to the Aymara people of Coroma, Bolivia, from the United States was certainly helped by the fact that both countries were parties to the convention, but other factors were also essential, especially the efforts of individual people, a law firm, and the indigenous community itself (see Box 10.6).

The success or failure of restitution claims depends on the scope of legislation to implement the convention adopted by the countries in which “stolen” artifacts are held. Despite such reservations, the convention does allow for imaginative interpretations of “cultural property.” Article 4, for example, includes property “created by the individual or collective genius of nationals of the State”; and article 1, “rare collections of fauna [and] flora . . . [and] objects of ethnological interest,” all of which could conceivably include several cultural property categories of interest to indigenous peoples and even folk crop varieties and medicinal plants (Downes et al. 1993, pp. 285–286).

Thus, under the Australian law to implement the convention (Protection of Movable Cultural Heritage Act, 1986), the term “movable cultural heritage” can include cultural objects relating to Aboriginal and Torres Strait Islanders that must be important to Australia “for ethnological, archaeological, historical, literary, artistic, scientific or

technological reasons.” Such criteria could include, as protectable properties, “bark and log coffins, human remains, rock art, cared trees, sacred and secret ritual objects, information about indigenous leaders and activists, original documents, photographs, drawings, sound recordings, film and video recordings and any similar records relating to such objects” (Sutherland 1993).

Box 10.6

The sacred weavings of Coroma, Bolivia

The sacred garments of Coroma in Bolivia have enormous spiritual, historical, and social significance for the local Aymara people. The weavings, which are believed to embody the souls of their ancestors, are regarded as being the property of the whole community; no one can sell them or give them away.

Since the late 1970s, many weavings have fallen into the hands of North American ethnic art and antiquities dealers, either through outright theft by intermediaries or purchase from local people who are violating the laws of their own community.

Tracing the missing weavings began with a piece of good fortune. Professor John Murra, a specialist on the Andean region, received a postcard announcing an ethnic art exhibition organized by a dealer in San Francisco and showing one of the weavings. He contacted the Bolivian embassy and a social scientist (Cristina Bubba Zamora) who had been involved with making an inventory of Coroma weavings. This case attracted the attention of several sympathetic academics, including anthropologists, archeologists, and art historians, as well as native Americans.

In February 1988, in response to a request from the Bolivian embassy and two representatives of the Coroma, US customs authorities confiscated about 1000 objects (mostly weavings) from the dealer.

An international campaign, assisted by a San Francisco law firm, resulted in an agreement by the dealer to give up some, but not all, of the weavings in exchange for immunity from prosecution. In September 1992, the US government handed over the weavings to President Zamora who received them on behalf of the people of Coroma.

According to Professor Murra, the most important factor that led to this successful outcome was not that both countries had signed the Unesco convention but the efforts of Miss Bubba to attract support for the people of Coroma. Nevertheless, the fact that the US government did agree that the weavings constituted “material of ethnological interest” and were, therefore, “cultural property” under the convention was crucial. Awareness among older community members of the cultural significance of the weavings and the involvement of the law firm were also important factors.

An important lesson of this case is that it can be difficult, time-consuming, and expensive to trace stolen objects, identify them, and prove that they were not purchased legally. Indeed, because the US law passed to implement the convention requires proof that objects are obtained fraudulently, it was possible to force the return of only 49 of the weavings; the rest had to be returned to the dealer.

For further information, contact Cristina Bubba Zamora, Responsable del Proyecto Textiles de Coroma, Casilla 12154, La Paz, Bolivia.

The International Labour Organisation’s Convention 169

The ILO was the first United Nations organization to deal with indigenous issues. A Committee of Experts on Native Labour was established in 1926 to develop international standards for the protection of native workers. In 1959, the ILO adopted a special convention (number 105) known as the Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries. It was revised in June 1989 as Convention 169, Convention Concerning Indigenous Peoples in Independent Countries, and much of the “integrationist language” of the original was removed.

Its preamble refers to “the distinctive contributions of indigenous and tribal peoples to the cultural diversity and social and ecological harmony of humankind.” Article 7 guarantees the right of indigenous peoples to decide their own development priorities and to control their own economic, social, and cultural development. Article 13(1) states that governments “shall respect the special importance of the cultures and spiritual values of the peoples concerned, of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.” This recognition of collective rights is a critical aspect of the convention and is important in IPR issues, because collectivity is fundamental to the transmission, use, and protection of traditional knowledge.

ILO 169 offers only limited rights to indigenous peoples for the protection of their knowledge, although it upholds their rights to land, natural resources, and traditional livelihood activities. It also provides for limited recognition of customary law (Article 9) and for consultation with indigenous and tribal peoples when considering “legislative or administrative measures which may affect them directly” (Article 6(1.a)). This makes it possible for indigenous peoples to influence the drafting of new national laws.

Despite many loopholes, ILO 169 does have widely agreed upon terminology that should be exploited in defining the new TRR concept. However, so far only seven countries have accepted the convention as law: Bolivia, Colombia, Costa Rica, Mexico, Norway, Paraguay, and Peru. Other countries that claim not to have indigenous peoples are unlikely to sign, though it can be argued that the convention is relevant to many of these countries, too. This is because indigenous peoples find themselves affected by policies of foreign governments, such as overseas development assistance.

Conclusions

Several international legal instruments contain useful principles and rights that contribute to the TRR concept. Unfortunately, these provisions and principles are often ignored. One of the problems involved in taking legal action against governments is that even if they sign and ratify international laws, they are not obliged to pass national laws to implement them, and often they do not do so.

Furthermore, most governments are dualist (international law cannot be invoked in their national courts) rather than monist (international treaties become part of a country’s national law as soon as it has been ratified by that government). This makes it difficult for an indigenous group to turn knowledge of international laws into a strategy to have them implemented in their own country. Nevertheless, campaigns based on alliances of indigenous peoples, people’s organizations, NGOs, and even individuals can lead to pressure on governments that can turn international laws into more effective tools to protect their rights and even guide effective national legislation. The Coroma case shows that such efforts can sometimes be successful, although it is an exception rather than the rule.

Chapter 11

How can communities use “soft law” and nonbinding international agreements?

Soft law consists of documents that are not directly enforceable in courts and tribunals but that nonetheless have an impact on international relations and, ultimately, international law. Many such international agreements may prove useful and may serve as the basis of future legally binding agreements, just as ICESCR and ICCPR grew out of the Universal Declaration of Human Rights. This chapter details agreements relevant to the protection of TRR.

What is “soft law” and why is it relevant?

The international community lacks a central law-making authority; thus, the creation of new law must be through consensual processes. Historically, there are two main sources of international law: customary law and treaties. Customary law evolves over time, becoming universally accepted through continuous practice, whereas treaties take the form of documents signed by governments that agree to be bound by their contents.

Soft law is a rapidly developing, though controversial source of international law. The term itself is misleading, as strictly speaking it is not law at all. In practice, soft law refers to a great variety of instruments: declarations of principles, codes of practice, recommendations, guidelines, standards, charters, resolutions, etc. Although all these kinds of documents lack legal status (are not legally binding), there is a strong expectation that their provisions will be respected and followed by the international community. According to Bothe (1980):

A nonlegal commitment is . . . often much easier for a state to accept than a legal one. In all probability, here lies the reason why states do not reject resolutions the terms of which they would by no means accept as a treaty. This presents both an opportunity and a danger. As resolutions also give rise to expectations, they trigger a certain pressure for compliance that is often, as has been shown, effective in the long run. They influence practice, and practice influences law.

One reason why soft law is of interest stems from the very fact that governments undertake moral obligations when they sign such agreements, and some may be influenced by moral suasion. The evolution of customary international law can be accelerated by the inclusion of principles in soft law agreements and in nongovernmental declarations and resolutions (James Cameron, Foundation for International Environmental Law and Development, London, UK, 1995, personal communication). Because of the growing number and influence of such documents, which uphold the rights of indigenous peoples to their knowledge, territories, and resources, it is not inconceivable that such rights could become part of international law in the near future, even if they are not included in conventions (Tobin 1995). In this chapter, we describe several of these soft law instruments and consider how they might be useful.

The Universal Declaration of Human Rights

The 1948 UDHR is a significant nonbinding international agreement. It guarantees fundamental freedoms of personal integrity and action and individual political, social, economic, and cultural rights. With regard to the protection of cultural or traditional resources, a principal problem with the “human rights approach” of the UDHR is that action is directed toward nation states. It does not easily provide a basis for claims against multinational companies or individuals who profit from traditional knowledge.

Article 7 of the UDHR supports equal protection for all under the law, thereby implying that IPR protection should be available to all peoples including indigenous peoples. Article 17 provides for the right to own collective property and not to be

arbitrarily deprived of that property. Article 23 guarantees the right to just and favourable remuneration for work, which can be interpreted as work related to traditional knowledge. Finally, Article 27 provides for the right to culture and recognition of interest in scientific production, including the right to the protection of the moral and material interests resulting from any scientific, literary, or artistic production.

The conversion of sacred places to other uses by outsiders and lack of respect of such places by visitors could be compared with the destruction of a church, temple, or mosque, and the infringement of people’s religious rights. In these terms, Article 18 of the UDHR becomes relevant. It states in part:

Everyone has the right to freedom of thought, conscience and religion . . . and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Religious freedom is an important concept to indigenous peoples. For example, at a seminar on IPR at the United Nations Human Rights Convention in Vienna, June 1993, Ray Apoaka of the North American Indian Congress suggested that IPR are a matter of religious freedom for indigenous peoples: “Much of what they want to commercialize is sacred to us. We see intellectual property as part of our culture. It cannot be separated into categories as [Western] lawyers would want.”

Pauline Tangiora, a Maori leader, agrees: “Indigenous Peoples do not limit their religion to buildings, but rather see the sacred in all life” (Posey 1994). Therefore, laws governing religious freedom may be open to far-reaching interpretations. For example, the patenting of human cell lines may infringe indigenous peoples’ religious freedom if it conflicts with religious beliefs.

Many countries that signed the UDHR have violated many of the rights that it enshrines. Nevertheless, it can be argued that the worldwide acceptance of the UDHR means that it is now part of international customary law and is, therefore, legally binding. If so, this is an important example of soft law being “hardened” (Shaw 1994, p. 196).⁵ What is indisputable is that a number of other human rights treaties did emerge out of the UDHR, such as the ICESCR and the ICCPR (see Chapter 10), that makes its provisions binding.

ECOSOC and the Working Group on Indigenous Populations

The United Nations Economic and Social Council (ECOSOC) authorized the Commission on Human Rights to form a special subcommission “to conduct a broad study of the problem of discrimination against Indigenous Peoples” (Kahn and Talal 1987, p. 121). The Subcommission on Prevention of Discrimination and Protection of Minorities found that current international instruments were not “wholly adequate for

⁵ When the UDHR was adopted by the United Nations (without opposition from any country), it was intended that it would become international law soon afterward in the form of a single convention. Instead, a number of human rights conventions were developed and adopted over a much longer period.

the recognition and promotion of the specific rights of indigenous populations as such within the overall societies of the countries in which they now live” (ECOSOC 1986).

In 1982, ECOSOC created a Working Group on Indigenous Populations (WGIP), which has become the most open international forum for indigenous representatives and advocates of indigenous rights. The WGIP has prepared a Declaration on the Rights of Indigenous Peoples (see Appendix 4 for the latest official draft) that should lead to a Convention on the Rights of Indigenous Peoples.

In Resolution 1990/27, the Subcommission on Prevention of Discrimination and Protection of Minorities recommended that any UNCED convention should “provide explicitly for the role of indigenous peoples as resource users and managers, and for the protection of indigenous peoples’ right to control of their own traditional knowledge of ecosystems.” Resolution 1991/31 calls for a study on the applicability of collective rights regarding property, including intellectual property.

In 1991, the subcommission requested that the UN Secretary-General prepare a concise report on the extent to which indigenous peoples can use existing international standards and mechanisms for the protection of their intellectual property, drawing attention to any gaps or obstacles and to possible measures for addressing them. WIPO was also specifically requested to help in “formulating recommendations for the effective protection of the intellectual property of Indigenous Peoples” (ECOSOC 1992a).

In May 1992, the United Nations held a Technical Conference on Indigenous Peoples and the Environment in Santiago, Chile. Participants established some basic principles, including “recognition, protection and respect for indigenous knowledge and practices that are essential contributions to the sustainable management of the environment.” It was also recommended that the United Nations system take effective measures to protect the rights of indigenous peoples to their cultural property, genetic resources, biotechnology, and biodiversity (ECOSOC 1992b).

In July 1993, the subcommission produced its Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples (ECOSOC 1993). This document is a survey of issues relating to indigenous heritage, with particular emphasis on cultural heritage, and of international legal instruments — particularly human rights and IPR instruments. One problem with the emphasis on cultural issues is that insufficient attention is given to the protection of biological resources and traditional knowledge.

In these declarations, recommendations, and studies, as in the Draft Declaration on the Rights of Indigenous Peoples, there has been a clear call from the Human Rights Commission for protection of, and just compensation for, the IPR of indigenous and tribal peoples. Because this forum can activate other UN agencies, it may eventually produce important results at the international level.

The Rio Declaration

The Rio Declaration on Environment and Development was signed in June 1992 at UNCED and clearly establishes the relevance of indigenous peoples and the central importance of their protection in achieving “sustainable development.” Given the reluctance of many

nation states to recognize indigenous peoples’ rights in the past, the tone of the Rio Declaration is indeed progressive and welcome. Principle 22 states:

Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.

Agenda 21

Agenda 21 is the program of action for sustainable development agreed to at UNCED. Agenda 21 has been described as “possibly the most far-reaching and voluminous” example of international soft law “ever to be attempted,” and as a text “which has moral if not legal force and which may subsequently serve to underpin both national actions and subsequent, possibly more stringent, international agreements in specific areas” (Johnson 1993).

It emphasizes the conservation and utilization of plant genetic resources in situ as a component of programs to promote sustainable agriculture (ODI 1993). It recognizes the importance of indigenous and local communities, their knowledge and culture, and the contribution they can make to protecting biodiversity, and states that they should be rewarded.

Material relevant to protecting the rights of indigenous farming communities can be found in chapters 14, 15, 16, 26, and 32 of Agenda 21. The areas of focus are reinforcing indigenous communities’ rights to pursue their traditional way of life and land rights. Also noteworthy are paragraphs regarding the use of indigenous knowledge in training other rural peoples and in working for conservation of crop diversity.

Chapter 32 relates to the role of farmers, calling for a “farmer-centred approach” as the “key” to attaining sustainability. The chapter concentrates on increasing the role of farmers in decision-making through the creation of organizations and decentralization of the process.

Chapter 26 is the key chapter regarding indigenous peoples’ rights. It sets out UNCED’s specifications for empowering indigenous peoples and their communities. It defines “lands” as including “the environment of the areas which the people concerned traditionally occupy.” Clause 4 gives indigenous people an opportunity for greater control over their life and lands “in accordance with national legislation” and the possibility of participating “in the establishment or management of protected areas.” This is an extremely important clause because it recommends government action to strengthen the legal position of indigenous peoples nationally and internationally. It is supported by clause 26.5 recommending that governments, United Nations organizations, and other international organizations formally include indigenous people in planning by appointing “a special focal point within each international organization” and holding annual interorganizational coordination meetings.

The FAO International Code of Conduct for Plant Germplasm Collecting and Transfer

The FAO International Code of Conduct for Plant Germplasm Collecting and Transfer is part of the FAO’s Global System on Plant Genetic Resources, the International Undertaking on Plant Genetic Resources, and its annexes. The code provides a set of general principles that governments may wish to use in developing national regulations or formulating bilateral agreements on the collection of germplasm.

The code of conduct was adopted as Resolution 8/93 by the 27th session of the FAO conference in November 1993. Its first objective is to

Promote the conservation, collection and use of plant genetic resources from their natural habitats or surroundings in ways that respect the environment and local traditions and cultures.

It aims to involve farmers, scientists, and organizations in conservation programs in countries where collecting is taking place, to promote the “sharing of benefits,” and increase recognition of the rights and needs of local communities and farmers so that they may be compensated for their contribution to the conservation and development of plant genetic resources and not have their current benefits undermined by resource transfer.

Among the code’s provisions are

• Collectors should respect local customs, traditions, values, and property rights; not deplete local resources; and work with the agreement of and in cooperation with local communities. Duplicate sets of all collections and associated materials are to be deposited with the host country.
• Curators are directed to take practical steps, such as the use of MTAs, to share benefits derived from collected germplasm with the local communities, farmers, and host countries.
• Users should consider some form of compensation to local communities, farmers, and host countries for the benefits derived from the use of germplasm.

Unesco’s cultural documents

Unesco has produced a number of nonbinding documents of relevance to indigenous peoples. For example, the 1966 Declaration on the Principles of International Cultural Cooperation states:

Each culture has a dignity and value which must be respected and preserved . . . . Every people has the right and duty to develop its own culture.

The importance of this statement is that it can be interpreted to uphold collective rights as opposed to individual rights.

Although the Unesco–WIPO model provisions (described in Chapter 9) have not been adopted in full by any country, they did influence the drafters of the 1989 Unesco Recommendations on the Safeguarding of Traditional Culture and Folklore, which were adopted unanimously by member states. Folklore is defined as follows (Unesco 1990):

Folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.

Among the provisions of the recommendations are the following:

E.    Dissemination of folklore: The attention of people should be drawn to the importance of folklore as an ingredient of cultural identity. It is essential for the items that make up this cultural heritage to be widely disseminated so that the value of folklore and the need to preserve it can be recognized. However, distortion during dissemination should be avoided so that the integrity of the traditions can be safeguarded. To promote a fair dissemination, Member States should: . . . (g) encourage the international scientific community to adopt a code of ethics ensuring a proper approach to and respect for traditional cultures.

F.    Protection of folklore: In so far as folklore constitutes manifestations of intellectual creativity whether it be individual or collective, it deserves to be protected in a manner inspired by the protection provided for intellectual productions. Such protection of folklore has become indispensable as a means of promoting further development, maintenance and dissemination of those expressions, both within and outside the country, without prejudice to related legitimate interests. Leaving aside the “intellectual property aspects” of the protection of expressions of folklore, there are various categories of rights that are already protected and should continue to enjoy protection in the future in folklore documentation centres and archives. To this end, Member States should: (a) regarding “intellectual property” aspects: call the attention of relevant authorities to the important work of Unesco and WIPO in relation to intellectual property, while recognizing that this work relates to only one aspect of folklore protection and that the need for separate action in a range of areas to safeguard folklore is urgent; (b) regarding the other rights involved: (i) protect the informant as the transmitter of tradition (protection of privacy and confidentiality); (ii) protect the interest of the collector by ensuring that the materials gathered are conserved in archives in good condition and in a methodical manner; (iii) adopt the necessary measures to safeguard the materials gathered against misuse, whether intentional or otherwise; (iv) recognize the responsibility of archives to monitor the use made of the materials gathered.

G.    International cooperation: In view of the need to intensify cultural cooperation and exchanges, in particular through the pooling of human and material resources, in order to carry out folklore development and revitalization programmes as well as research made by specialists who are the nationals of one Member State on the territory of another Member State, Member States should: (c) cooperate closely so as to ensure internationally that the various interested parties (communities or natural or legal persons) enjoy the economic, moral and so-called neighbouring rights resulting from the investigation, creation, composition, performance, recording and/or dissemination of folklore.

Conclusions

Soft law is important for at least two reasons:

• Even though soft law documents are not legally binding, they establish what are accepted by states as standards of behaviour, and they promote some policies that can benefit traditional communities.
• Soft law documents may ultimately have an impact on international law.

Therefore, although indigenous peoples may feel that attempting to influence international law should be a priority, soft law options should not be neglected. The efforts of the WGIP show that many indigenous peoples are already aware of this.

Chapter 12

Are nongovernmental, nonlegal instruments useful?

Nonlegal instruments can also be helpful. Nongovernmental institutions, including professional organizations, academic associations, indigenous organizations, and NGOs may produce declarations, codes of conduct, codes of ethics, and guidelines. Some of these can raise awareness among people, governments, and other institutions that deal with indigenous peoples, thereby facilitating more equitable relations. In this chapter, we describe nonlegal instruments that may be helpful in building a system of TRR.

Declarations, resolutions, and codes of practice are sometimes drawn up by academic or scientific organizations, intergovernmental agencies, and people’s organizations. They often result from international conferences where delegates discover that they share many concerns. The hope is that these documents will raise awareness of such concerns, improve people’s behaviour, and sometimes even influence lawmakers. Not only may such documents be considered during the drafting of hard and soft law instruments, but also if they are observed, over time they become customary practices that may achieve legal standing in courts.

Indigenous peoples’ declarations

Indigenous peoples’ organizations and conferences have produced their own declarations to raise awareness among indigenous peoples and help build international alliances. Some of these are the following:

• Declaration of Principles of the World Council of Indigenous Peoples, 1984 (Appendix 3);
• Kari-Oca Declaration and the Indigenous Peoples’ Earth Charter from the Kari-Oca World Indigenous Conference, 1992 (Appendix 5);
• Charter of the Indigenous–Tribal Peoples of the Tropical Forests of the International Alliance of Indigenous–Tribal Peoples of the Tropical Forests, 1992 (Appendix 6);
• The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples from the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples, 1993 (Appendix 7);
• Recommendations from the congress “Voices of the Earth: Indigenous Peoples, New Partners, the Right to Self-determination in Practice,” 1993 (Appendix 8);
• Statements from the Julayinabul Conference on Intellectual and Cultural Property (1993)⁶;
• Statement and basic points of agreement from the COICA/UNDP Regional Meeting on Intellectual Property Rights and Biodiversity, 1994 (Appendix 9);
• Final statement from the UNDP Consultation on the Protection and Conservation of Indigenous Knowledge, Sabah, Malaysia, 1995 (Appendix 10);
• Final statement from the UNDP Consultation on Indigenous Peoples’ Knowledge and Intellectual Property Rights, Suva, Fiji, 1995 (Appendix 11);
• Declaration of the Indigenous Peoples of the Western Hemisphere Regarding the Human Genome Diversity Project (HGDP) (see Appendix 1).

⁶ For further information, contact Henrietta Fourmile (see Resource Guide, Australia).

Some indigenous groups already have their own policies addressing the need to control access to their territories, to monitor the activities of plant collectors and researchers, and to become beneficiaries of plant collections and research. The experience of the Kuna and the Awa are described in Chapter 14.

Ethical guidelines and declarations

Ethical guidelines (or codes of ethics) are statements that clarify what is ethically acceptable behaviour for scientists when performing their work. Although they are not legally binding, they are often the result of consensus among concerned scientists, and they are expected to be complied with. Declarations, on the other hand, contain more general principles.

In 1988, the ISE established a set of principles for research and work with indigenous and local communities. The Declaration of Belém (see Introduction) was the first such statement to call attention to the “inextricable link” between the conservation of biological diversity and the preservation of cultural diversity. It was the first international declaration to call specifically for the protection of and compensation for IPR (IPR are treated as inalienable rights). Principle 4 of the declaration demands that “procedures be developed to compensate native peoples for the utilization of their knowledge and their biological resources.”

The following ethical guidelines and declarations of scientific and professional organizations currently exist:

• The Declaration of Belém from the International Society for Ethnobiology, 1988;
• Chiang Mai Declaration for Conservation of Medicinal Plants by WWF/IUCN/WHO, 1988;
• Code of Ethics for Foreign Collectors of Biological Samples developed at the Botany 2000 Herbarium Curation Workshop, 1990 (Cunningham 1993b, p. 20);
• Code of Ethics on Obligations to Indigenous Peoples of the World Archaeological Congress, 1990 (Southworth 1994);
• Professional Ethics in Economic Botany: A Preliminary Draft of Guidelines of the Society of Economic Botany, 1991 (ECOSOC 1993, pp. 47–48);
• Conclusions of the Workshop on Drug Development, Biological Diversity and Economic Growth of the NIH and NCI, 1992 (Schweitzer et al. 1991);
• The 1992 Global Biodiversity Strategy of the World Resources Institute/IUCN/United Nations Environment Programme (UNEP), 1992 (World Resources Institute 1992);
• Williamsburg Declaration of the American Society of Pharmacognosy, 1992;
• The Bukittinggi Declaration at the Unesco Seminar on the Chemistry of Rainforest Plants, 1992;
• The Manila Declaration, developed at the Seventh Asian Symposium on Medicinal Plants, Spices and Other Natural Products, 1992
• Guidelines for Equitable Partnerships in New Natural Products Development of the People and Plants Initiative of WWF, Unesco, and RBG, 1993 (Cunningham 1993b).

The WWF/Unesco/RBG guidelines are interesting in that they consider the wide range of subjects relevant to equitable relations between institutions, corporations, local communities, and indigenous peoples. While recognizing that governments hold sovereignty over biogenetic resources, the guidelines call upon them to “accept the responsibility for establishing or implementing national policies for the conservation and use of biological diversity” (Section 1.1); collectors are urged to “respect local social values, traditional, and customary law” (Section 5.4). Although encouraging “ethno-directed” screening and collection, the guidelines leave the IPR issue up to national governments who “should be free to decide whether or not to adopt IPR protection for new natural products” (Section 8.3). Unfortunately, there is very little to console, encourage, or even orient local communities in dealing with IPR issues.

The NCI in the United States has also developed a set of general principles to govern its extensive collecting activities across the globe. Compensation for traditional knowledge and biogenetic resources is central, with “compensation” interpreted as including “training, institution building and information transfer” (see Chapter 7). Similar arrangements have been set up by the New York Botanical Garden and the RBG in London, with state governments as beneficiaries.

At its 1994 congress, the ISE agreed to develop a code of ethics, to be completed in 1995. Both the code and the ISE’s new constitution are being written in conjunction with indigenous peoples led by a Maori lawyer.

One problem with declarations, ethical guidelines, and codes of practice, of course, is that they are not legally binding. They are often effective only if the government body or NGO is willing to respect them. Because they often do not, documents of this kind have been subject to criticism. Nevertheless, their existence may well make scientists more aware of their moral obligations. Furthermore, they may influence legislators who are drafting national and international laws and even serve as templates for such laws.

Indigenous peoples and developing countries have taken steps on their own to deal with misappropriation and misuse or unauthorized use of traditional knowledge. In 1979, the Organization of African Unity urged that herbal medicine research be carried out in secrecy to prevent multinational companies from developing new drugs and selling them back to developing countries at high prices (Hanlon 1979). In 1988, the Kuna of Panama prepared a 26-page manual to regulate scientific research in their area (see Chapter 14). The Kayapó Indians of Brazil are currently negotiating an IPR code and contract with The Body Shop to regulate commercial activities in their region, especially regarding the development of new products based on traditional knowledge and local biological resources (see Chapter 5).

Conclusions

Local communities might benefit from greater awareness of the existence of official statements produced by indigenous peoples, because they outline common concerns and can point to new strategies that can be fruitful. Furthermore, they can stimulate the growth of international alliances and make it more difficult for governments and corporations to ignore the just claims of indigenous and traditional communities.

It may also be useful to be aware of professional and academic codes of practice because even if they are not legally binding, they are at least morally binding on many scientists with whom community members might interact. They may also influence national and international laws as well as guidelines developed by indigenous and traditional peoples themselves.

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Chapter 13

Why are funds and funding guidelines important?

As discussed in Chapter 3, one possible means for compensating communities (apart from IPR mechanisms or contracts) is through funding mechanisms. Indeed, local communities often find that adequate funding of community-controlled initiatives is vital in the protection of their TRR. The Small Grants Programme of the Global Environment Facility (GEF) and the Fund for Farmers’ Rights are examples of international funds that are intended to benefit local communities, but other sources exist that are more accessible to communities. Whether the stated objective of funding mechanisms is conservation, community development, or compensation, ideally they should include a range of monetary and nonmonetary benefits. Preferably, they should support community-controlled (not just community-based) projects. This chapter concludes by suggesting ways for indigenous peoples to ensure that their own priorities and criteria for conservation and development projects are taken into account by funding institutions.

Who are the funders?

It may not be a simple task to discover to whom applications for funding should be made; indeed, this is one of the major problems faced by nonprofit organizations. In the United Kingdom, for example, lists of award-giving bodies and their spheres of interest exist, but they are not all-inclusive and searching them is time-consuming. Filling out applications for funding has become a specialized skill. Private and public funding organizations that have been set up with the sole purpose of benefiting humankind (including animal and plant charities where the benefit to humanity may be indirect) exist. However, finding the appropriate ones to apply to and filling a superb application (which may have to be written in a foreign language) may be serious obstacles, especially for local communities that may lack the necessary expertise.

Historically, help for indigenous and traditional people has been available from religious bodies; the merits of such sources aside, there is still a considerable amount of aid available through church societies and a willingness on their part to give time and money.

In recent years, there has also been a significant increase in the number of charitable organizations dedicated to environmental protection, both at national and international levels. One of the best known is the WWF, which began as a charity to save endangered animals (represented by its panda logo) and developed into a body dedicated to protecting nature in all its forms. At the other end of the scale, small charities such as the Rainforest Action Network in the United States provide funding for specific projects (see Box 13.1). Guidelines for project applications supplied by a funder should be examined carefully to ensure that the criteria are adhered to and that sufficient information is provided to allow the funder to assess the proposal.

Many rich people and organizations in the world have committed part of their wealth to a cause they believe in by setting up trusts. Capital is invested and the profits are distributed in the name of the cause (education, health, animal welfare, travel, or anything the benefactor chooses). Well-invested funds maintain their capital value and therefore the level of their disbursements for many years.

Governments dedicate a portion of their budgets to aid, which may be distributed via government departments, agencies, or NGOs. In the United Kingdom, for example, the Overseas Development Administration distributes funds on behalf of the government to programs run by university departments, such as the Forestry Research Programme of the Oxford Forestry Institute. The funding of university programs is complex because many sources may be administered by a department. Links with university programs need not be damaging for a community seeking to protect its knowledge and resources if they are entered into with full prior understanding of the university’s goals. The expertise of members of universities in obtaining funds can be used to great advantage by a community that understands its own and the researchers’ needs and objectives.

United Nations agencies may be a source of funding for specific projects. For example, the Global Environment Facility (see below) has a Small Grants Programme to which applications may be made. The FAO is the source of a proposed Fund for Farmer’s Rights (see below), which is intended to provide compensation to farmers for their “past,

Box 13.1

The Protect-an-Acre Program of the Rainforest Action Network

The purpose of the Protect-an-Acre Program is to maintain the ecological and cultural integrity of tropical rainforests. The program funds projects to help forest inhabitants secure land rights, thus helping to preserve ethnic identity and social autonomy by maintaining their traditional customs and practices. Projects are approved only if they support communities and strengthen the human rights of the original population (for example, the demarcation of indigenous territories) or they contribute toward the creation of extracting reserves, management of natural resources, or preservation of the ecological balance of a forest.

The amount of funding available for any one project is limited, and a project may only receive one grant. Applicants are required to send a proposal, limited to eight pages, with a letter of presentation. The proposal should include an executive summary; information on its general and specific objectives, definition, and importance; history of the organization or group; strategies and methods for evaluating results; estimated budget; and assessment of the sustainability of the project.

Many applications are received for such programs; they are generally evaluated by committee and funds are awarded to projects that most closely fit the charity’s criteria.

Source: Rainforest Action Network

present and future contributions . . . in conserving, improving and making available plant genetic resources particularly those in the centres of origin/diversity” (FAO resolution 5/89).

The Global Environment Facility

The GEF was set up in 1990 to fund projects that provide global environmental benefits with reference to greenhouse gases, biological diversity, international waters, and ozone depletion (UNDP 1993). The GEF’s implementing agencies are

• The World Bank, which is trustee for the funds, administrator of projects, and chair of the GEF;
• UNDP, which is responsible for technical assistance and administers the Small Grants Programme, the budget line for NGOs;
• UNEP, which supplies environmental expertise for projects and houses the secretariat of the independent Scientific and Technical Advisory Panel of 21 scientists and researchers.

The countries represented at the Earth Summit agreed to adopt the GEF as an interim mechanism to fund environmental protection projects of global importance in accordance with the provisions of the biodiversity and climate change conventions signed at Rio.

The Small Grants Programme is a pilot project, whose principal objective is to identify and demonstrate effective community-based approaches and strategies that could reduce threats to the global environment in 32 countries in Africa, the Arab States, Asia and the Pacific, Europe, and Latin America and the Caribbean.⁷ The program awards grants of up to $50 000 to NGOs and community groups for small-scale activities that “reduce or eliminate environmental problems within the GEF programme areas . . . [and] motivate and enable communities and people to maintain the biological diversity of their environment and its productive capacity” (UNDP 1993, p. 2). For example, a project in the Philippines was awarded $6 590 to document the indigenous practices for controlling rice pests of the Holok and forest management systems of the Muyong people (UNDP 1993, p. 29). Awardees are chosen by a National Selection Committee, which is usually made up of representatives of NGOs, the host government, academic and scientific institutions, and community-based organizations. Priority is expected to be given to projects that “involve communities in their design, implementation and planning, respond to the needs of, and involve, women and/or indigenous peoples, include a capacity-building component which may be met by using local resources, and include provision for evaluation” (UNDP 1993, p. 5).

However, the program’s record gives cause to wonder if it will be a suitable tool for funding biodiversity conservation. For example, in 1991 (Kothari 1993, p. 17)

The Indian government asked for a substantial sum (US $10–12 million) from the GEF biodiversity funds for ecodevelopment to divert human pressure away from biodiversity-rich areas. However, the proposal was formulated in an ad hoc manner, without consultations with even major citizen’s groups, leave alone local communities . . . . Fortunately, the GEF funds did not come through, and the Ministry of Environment and Forests now proposes to involve a large number of citizens and community groups in the development of plans. Hopefully, . . . future funds . . . will be utilized with much greater public participation, transparency and openness.

If a local community wishes to obtain funding for a community-based project, it must produce a detailed funding proposal according to an accepted formula that includes a statement explaining why the project is important and how it accords with the above guidelines. It must also include a budget. When an NGO is awarded a grant for a community-based project, participating communities should be aware that the guidelines do not contain provisions for IPR or prior informed consent. Therefore, they should insist on such provisions as a condition of their agreement to collaborate.

⁷ For information about the Small Grants Programme, contact UNDP, One United Nations Plaza, rooms 2050–2052, New York, NY 10017, USA (fax: (212) 906-5313).

The Fund for Farmers’ Rights

The Fund for Farmers’ Rights was originally intended to be an international fund that would be disbursed to national governments on behalf of their farmers. Although there was widespread agreement on the need for such a fund to compensate farmers, the means of dispersing the funds was considered inappropriate and the plan did not proceed. However, the issue has become prominent in international agendas, and upcoming Conferences of the Parties to the CBD may develop a protocol to the CBD that will give farmers’ rights a legal status.

Genetic Resources Action International (GRAIN) and RAFI have undertaken to develop a definition of farmers’ rights (GRAIN 1995). The GRAIN–RAFI initiative suggests that farming communities have a right

• To receive direct financial support for their past, present, and future contribution to the conservation and development of plant genetic resources for food and agriculture. This support will be provided through an international fund and any other financial mechanisms established at the national levels. Such funding mechanisms shall be substantial and equitable.
• To receive direct financial and other benefits, such as those derived from the commercialization of their knowledge and materials, access to research and technology they deem beneficial to their communities, support for their own development activities, training, and other forms of capacity building.

This type of fund would be an asset if means are found by which farmers and local communities can benefit from it, but there is a danger that there will be few trickle-down benefits to the community level from an intergovernmental fund. Some have suggested that one possible means by which local communities could benefit would be by using their share as a means of financing IPR mechanisms such as patents, or PBR (if applicable) to claim ownership of their own resources. This may be a means by which communities can have the same kind of legal protection as well-funded international seed companies.

Conclusions

There are funding institutions that can provide indigenous peoples and local communities with financial resources for conservation efforts, the application of indigenous and traditional knowledge, and the pursuit of economic options. However, indigenous peoples often lack information on sources of funding and on how to apply. Many of the institutions listed in the resource guide can provide advice.

Unfortunately, funds are often provided for community-based research or development projects without even the permission of the communities involved. To protect IPR and TRR, the following steps should be considered:

• All applications for funding must contain a clause protecting the IPR and TRR of any indigenous groups involved in the project.
• Outside agencies such as government, NGOs, and research bodies should not make any application for funding without including evidence that the application was prepared in collaboration with any indigenous people living in the area concerned.
• Indigenous groups applying for funding for projects involving outside collaboration should ensure that their collaborators agree in writing to respect the IPR and TRR of groups.

Chapter 14

What creative strategies and unique solutions have been developed?

Developing policies, strategies, and laws for protection, compensation, and community empowerment requires a great deal of creativity and tenacity. International law is important, and alliances of people’s organizations can have an impact at the international level. However, local communities and indigenous peoples may find that initiatives at the local, regional, and national levels will prove to be more fruitful in the short term. Therefore, it is useful to learn about community-based activities and even national policies in different parts of the world that have attempted to empower communities, conserve environments, and revitalize traditional cultures.

This chapter is a “menu” of a range of interesting strategies, policies, concepts, and laws developed by academics, policymakers, politicians, and local communities, which might be used to empower communities, conserve environments, or protect cultural integrity.

Community-based initiatives

Collaborative and community-controlled research

Collaborative research involves a partnership of equal parties in which local communities are treated as expert collaborators. The conditions necessary for true collaborative research may depend on the ability of an indigenous group to control access to its lands. This is because controlling access helps to create a “level playing field” by making it easier for the group to regulate (or prevent) the activities of researchers, and thereby to negotiate favourable terms for participation. If the land belongs to the state, an individual, or a company, control may be more difficult, but the group can still exercise its right to refuse to participate.

However, if indigenous peoples are to collect, record, and control knowledge useful to themselves, they should ideally initiate research projects rather than be participants in other people’s plans. With community-controlled research, the priorities, methodologies, and procedures are decided by the local people. In some cases such research is intended to contribute to a community-controlled conservation or development project. Outside collaboration is often considered desirable, but all research data is the property of community members unless they agree otherwise. In fact, in recent years there have been cases of indigenous people hiring researchers who agree that the community or tribe will hold copyright for results. For example, communities in the Solomon Islands have secured copyright for their ecological knowledge recorded by researchers (Baines 1992).

Some indigenous groups have produced guidelines for researchers who visit their lands to ensure that all scientific research taking place on their territories furthers the interests of these groups by being collaborative or community-controlled.

The Kuna guidelines for research

In 1988, the Proyecto de Estudio para el Manejo de Areas Silvestres de Kuna Yala (PEMASKY) and the Asociación de Empleados Kunas of Panama produced an information manual for researchers entitled Programa de Investigación: Monitoreo y Cooperación Científica (research program: scientific monitoring and cooperation). It provides an outline of Kuna objectives with regard to forest management, the conservation of biological and cultural wealth, scientific collaboration, and research priorities, and establishes guidelines for researchers including the nature of benefits to be returned to the Kuna. It reflects a recognition of the need for collaboration between Kuna and Western scientists to improve documentation and management of their cultural and natural resources. Included among research priorities are basic ecological research, botanical and faunal inventories, soil surveys, socioeconomic studies, ethnobotanical studies, and the

recording of Kuna traditions and culture. However, all research is geared toward providing the Kuna themselves with the maximum amount of information.

The manual concludes with guidelines for visiting scientists, provisions controlling research activities, and a description of benefits that should be returned to the Kuna. Researchers are required to

• Develop a proposal outlining the timing, extent, and potential environmental and cultural impact of a research program. This must be approved by the Scientific Committee of PEMASKY.
• Provide PEMASKY with written reports of the research, and two copies of any publication, in Spanish.
• Provide PEMASKY with copies of photographs or slides taken during the research program.
• Include in their research program Kuna collaborators, assistants, guides, and informants, and undertake training in relevant scientific techniques.
• Provide descriptions of all species new to science.
• Receive approval for the collection of species from the Scientific Committee of PEMASKY. All collections must be done in a nondestructive manner, may not include any endangered species, and may not be used for commercial purposes. Samples of all collected specimens must be left with PEMASKY (to be added to collections at the University of Panama).
• Undergo an orientation into the culture of the Kuna Yala and respect the norms of the communities in which they work.

The guidelines also forbid the introduction of exotic plant or animal species or the manipulation of genes. Research is restricted to certain areas of the reserve, prohibited in some sites, such as ceremonial or sacred sites, and controlled in other specific sites, such as some forest areas under community management.

The Awa Federation’s relations with the New York Botanical Garden

In April 1993, following a 30-year informal relationship, the New York Botanical Garden signed an agreement on academic scientific research with the Awa Federation, who live in the extremely biodiverse province of Cachi in Ecuador. The Awa Federation is a legal institution that administers the land held under communal title by the Awa people and makes collective decisions regarding its use. The Awa have only recently (in 1988) acquired legal recognition as citizens of Ecuador; since then, they have been developing a program to protect their territory, including planting a 50-metre wide border with fruit trees and expelling colonist settlers. The agreement — called the Reglamentos para la Realización de Estudios Científicos en al Territorio de la Federación Awa — will be in effect for 2 years. It includes the following regulations:

• All scientists must ask for written permission to carry out studies. The request for permission must include a description of objectives, size and composition
  
  of the research party, duration of the research program, species or object of study, and the manner in which this research will benefit the Awa community.
• At least 2 months’ notice is required before submitting a request for permission. The widely dispersed communities meet only four times a year for 4 days.
• A research group may consist of no more than five people.
• Local guides and informants must accompany all scientists.
• No object may be removed from Awa territory without the approval of the federation.
• Payments to Awa Federation members for their services should be in accordance with a schedule established by the Federation.
• The Awa Federation must receive acknowledgment in all publications.

The Inuit Tapirisat of Canada

The Inuit Tapirisat produced a background paper, “Negotiating research relationships in the North,” containing a useful list of principles based on existing ethical guidelines and the concerns expressed by members of Inuit communities.⁸ They may be highly relevant for indigenous peoples in other countries. The principles are as follows:

• Informed consent should be obtained from the community and from any individuals involved in research.
• In seeking informed consent, the researcher should at least explain the purpose of the research, name the sponsors and the person in charge, describe the potential benefits and possible problems associated with the research for people and the environment, outline the research methods, and state whether the research will involve participation of or contact with residents of the community.
• Anonymity and confidentiality must be offered and, if accepted, guaranteed except where this is legally precluded.
• Ongoing communication of research objectives, methods, findings, and interpretation should occur from inception to completion of project.
• If, during the project, the community decides that the research is unacceptable, it should be suspended.
• Serious efforts must be made to include local and traditional knowledge at all stages of research including problem identification.
• Research should be designed to anticipate and provide meaningful training of Aboriginal researchers.

⁸ For further information about these guidelines, contact the Inuit Tapirisat of Canada (see Resource Guide, Canada).

• Researchers must avoid causing social disruption.
• Research must respect the privacy, dignity, culture, traditions, and rights of Aboriginal people.
• Written information should be available in appropriate language(s).
• The peer-review process must be outlined to the communities and their advice or participation sought.
• Aboriginal people should have access to research data, not just summaries and research reports. The extent of access to data that participants and communities can expect should be clearly stated and agreed upon as part of any approval process.

Putting the principles of collaborative and community-controlled research into practice has in fact been achieved by other indigenous peoples around the world. For example, there was a successful collaborative research project in the Uluru National Park of Australia based on the ecological knowledge of the Anangu people. It appears to have been a success because “the Anangu owned the land on which it [the research] was conducted, there had been two-way information flows, Anangu had decision-making power and had been involved in all stages of the project, gender-specific skills were recognized, Anangu experts were paid expert consulting rates, flexible work arrangements and good working relationships were developed, and the Anangu vetted all information before publication” (Sutherland 1993).

Some professional societies, and even state agencies such as the Canadian Royal Commission on Aboriginal Peoples, have developed ethical codes of conduct for research (see Chapter 12) (Sutherland 1993). This suggests that in some countries at least, institutions and scientists are becoming more sensitive to the ethical dimensions of their research activities that involve indigenous peoples or that are carried out in their territories. Nevertheless, because indigenous peoples often lack their own research and documentation facilities and are therefore most likely to be the “subjects” of other people’s research, it is vital for them to negotiate a collaborative research agreement with prospective researchers, rather than assume that voluntary ethical guidelines will be adhered to. The Anangu, Kuna, and Awa cases suggest that this is more likely to be achieved if the indigenous group has legal title to its territories or recognition as a juridical person (see Chapter 6). However, even if a group does not, there are international treaties, and perhaps domestic laws, regulations, and constitutional stipulations that can be used to support the rights of indigenous peoples to require that research activities affecting them should respect their knowledge and be fair and nonexploitive.

Self-demarcation

It is extremely important for traditional communities to secure legal title to their territories. To exercise their development rights (see Chapter 5), they must be able to control access to the lands they occupy and use. Indigenous peoples’ impacts on land and use of natural resources may be virtually invisible to an outsider, making it easier for people

to justify colonization by claiming that undemarcated land is nothing more than unoccupied and unused “virgin forest.” Self-demarcation is one possible strategy to combat this view.

The case of the Ye’kuana of southern Venezuela

The territorial integrity of the 3600 Ye’kuana of southern Venezuela, as for many Amazonian indigenous peoples, is threatened by incursions from outsiders and national and regional governments that seem indifferent, if not hostile, to their land rights. Indeed, the national government has established a national park and a biosphere reserve on their land without consulting them.

In 1993, Simeon Jimenez, a member of a Ye’kuana community, arranged a meeting of several communities to discuss the possibility of taking the initiative and demarcating their lands themselves. Consultation with a lawyer and Otro Futuro, an NGO in Caracas, confirmed that self-demarcation might be the best way to achieve legal recognition of their territorial rights. Otro Futuro, the Assembly of First Nations (AFN), and the Local Earth Observation Project helped the Ye’kuana produce a project proposal.

The project, in which nearly all Ye’kuana communities have agreed to participate, involves creating land boundaries consisting of a series of cleared circles connected by trails and painted signs along physical boundaries like rivers. Each village will be linked to the boundaries by paths. A map will be prepared using satellite imagery and hand-held Global Positioning System units will be used to enter the boundaries on the map accurately. This “technical map” will then be presented to the government and members of congress in support of the Ye’kuana land title claim.

Even before implementation, the project gave the Ye’kuana a sense of common purpose and unity that had not been present since before the rubber boom and the time when missionaries became active in the area. However, the main benefits will come when the project is completed and the Ye’kuana can use the law to help them resist invasion of their territory by outsiders.

In the longer term, the Ye’kuana hope that they will be more able to develop self-sufficient and environmentally sound livelihood strategies, based in part on equitable trading relations with non-Ye’kuana people. To secure such a future, they intend to create an “economic and cultural map” that would include fishing and hunting areas, places containing medicinal plants, and other locations important for economic and cultural reasons. It would demonstrate traditional Ye’kuana land use and help them explore new ways to exploit the natural environment on a sustainable basis. It also establishes ownership of biological resources, making misappropriation by bioprospectors more difficult. This case is of great relevance to many indigenous peoples in the Americas. Indeed, the AFN plans to disseminate the results of the project to other peoples as part of a reference file on self-demarcation projects.⁹

⁹ For further information, contact Nelly Arvelo-Jiménez or Keith Conn, Assembly of First Nations, or Peter Poole (see Resource Guide, Canada).

Networks

The Indigenous Peoples’ Biodiversity Network

The IPBN¹⁰ has been set up by indigenous peoples to influence policy development and to exchange information on biodiversity issues. It has established the Indigenous Working Group on Cultural and Intellectual Integrity Issues with IPBN members from the Americas, Asia, and Africa. Its aims are to exchange ideas, search for alternatives, and establish a distinctive voice on the issue. Thus, indigenous peoples themselves are taking the lead in the search for long-term protection of their knowledge, resources, and rights to self-determination.

The IPBN’s objectives are as follows:

• To share and distribute key information on biodiversity conservation issues among members and supporters;
• To support indigenous peoples’ initiatives on biological diversity conservation and protection of traditional resources and knowledge;
• To catalyze the establishment of joint positions and initiatives among members;
• To establish or improve communications on biodiversity issues and opportunities among indigenous peoples and other sectors such as advocacy groups, science, government, industry, and others;
• To support and facilitate indigenous peoples’ participation in intergovernmental meetings regarding the CBD and in other relevant domestic and international biodiversity policymaking processes;
• To foster a new communication alternative, based on the emerging electronic “information highway,” through the use of computer networking to enhance biodiversity conservation and cultural survival.

SRISTI and the Honey Bee Newsletter

The Society for Research and Initiatives for Sustainable Technologies and Institutions (SRISTI) is an initiative in India for the diffusion of knowledge by and for farmers. Founded by Professor Anil Gupta of the Indian Institute of Management, SRISTI communicates with over 300 villages in the Indian subcontinent. Its key objectives are to “strengthen the capacity of grassroots innovators and inventors engaged in conserving biodiversity to: protect their intellectual property rights; experiment to add value to their knowledge; evolve entrepreneurial ability to generate returns from this knowledge; and enrich their cultural and institutional basis for dealing with nature.”

¹⁰ Alejandro Argumedo is interim coordinator at the IPBN General Coordinating Office (see Resource Guide, Canada). IPBN has regional coordinating offices in Bangladesh, Ecuador, Kenya, Panama, Peru, and the United States.

The search for sustainable technologies the world over provides a great opportunity for empowering the poor in hills, forests, and drought- and flood-prone regions. SRISTI intends to support the IPR of rural innovators by lobbying for their rights to genes, herbal medicines, plant protection and veterinary medicine recipes, implements, vegetable dyes, antioxidants, etc. It aims to link knowledge, institutions, technology, and politics in such a manner that control of the future direction of development passes into the hands of those who solve the problems in a sustainable manner (the communities themselves). SRISTI’s key tasks are the following:

• To look into the taxonomic basis of indigenous ecological knowledge systems and derive a comparative understanding of local and global categories;
• To survey, document, and disseminate local innovations throughout India and in other collaborating countries;
• To provide training and technical, methodological, and institutional support to Honey Bee Network members;
• To install the software and hardware required to support access to information, data analysis, and electronic communication for researchers and network members;
• To provide legal, technical, and managerial support to local innovators to protect their IPR and ensure their ability to generate returns for their knowledge, inventions, or value-added;
• To provide support in market research, product development, and testing;
• To produce training material supporting the incorporation of insights from indigenous knowledge systems into educational curricula.

SRISTI aims to develop a computer database that can be used through electronic mail to make innovative solutions available to as wide an audience as possible in developing countries. It publishes The Honey Bee Newsletter in English, Hindi, Gujarati, Malayalam, Tamil, Oriya, and Zonkha to disseminate information to farmers on innovations. Emphasis is placed on information provided by farmers themselves. To prevent the newsletter from becoming a means by which indigenous knowledge is freely available to commercial interests, Anil Gupta¹¹ suggests four kinds of compensation mechanisms for the innovators:

• Material specific: This would include royalty payment to a particular individual or group and would be appropriate in the case of an innovation that is not widely known.
• Nonmaterial specific: This would mean a reward of honour by means of recognition without involving any monetary compensation.

¹¹ Further information about SRISTI may be obtained from Professor Anil Gupta (see Resource Guide, India).

• Nonspecific material: This implies monetary investment in an institution that would use the resources for preservation and augmentation through experimentation and value additions in the innovations and even apply for patents in the name of the local people.
• Nonspecific nonmaterial: This would mean changes in the basic protocol of dialogue on IPR and also implies improvements in the legal environment regarding the rights of people over resources around which they have developed various innovative strategies of management.

The Working Group on Traditional Resource Rights’ GreenNet Conference

The WGTRR, which is based at the Oxford Centre for the Environment, Ethics and Society of Mansfield College, University of Oxford, UK, has opened a conference on GreenNet. The conference will give users the opportunity to take part in an open exchange of views and information relating to the intellectual, scientific, and cultural property rights of indigenous and local communities. WGTRR will operate the conference and provide information on request, including reports on recent and upcoming events, declarations and statements from meetings and conferences, bibliographic information, and details of indigenous organizations and groups working on TRR.

Because the medium allows two-way exchange, it is hoped that users will have input into the conference by keeping the WGTRR¹² informed of news and events of interest so that such information can be passed on. The conference is entitled “IPR, Indigenous Peoples and TRR” (indig.ipr-trr) and can be found under the categories “Human rights” and “Environment, general.”

Model laws to implement the Convention on Biological Diversity

National and regional laws to implement the CBD are being drafted in some parts of the world. To be consistent with the convention and to benefit local communities they should include at least the following provisions:

• Overseas collectors should fulfill conditions acceptable to providers of biological resources before access is granted.
• If states assume sovereignty rights to biological resources within national borders, they should still accept the fact that local communities own such resources and have the right to veto commercial exploitation and to share the benefits when communities agree to such commercialization.

¹² Mailing address: Working Group on Traditional Resource Rights, Oxford Centre for the Environment, Ethics and Society, Mansfield College, University of Oxford, Oxford OX1 3TF, United Kingdom (phone/fax: 1865 284665; e-mail: wgtrr.ocees@mansfield.ox.ac.uk).

• Benefit sharing with communities must include a share of profits and IPR protection for their knowledge.
• Collectors of samples and knowledge must obtain prior informed consent of local communities as well as governments before permission is granted to collect the samples.
• Collectors must pay governments and local people for the right to collect.

A number of model laws have already been drawn up.

Access to genetic resources of the Andean Pact¹³

The Andean Pact’s model law — whose initial drafter was the IUCN’s Environmental Law Centre — addresses the conservation and sustainable use of biological material used as genetic resources. It would permit member states to set terms for access to their biological resources. Such terms may include the following:

• Sharing of benefits between receivers of biological resources, members states, and providers, who may be legal entities, individuals, or indigenous or local communities;
• Restrictions on transfer to third parties;
• Reporting obligations on future uses;
• Obligations related to intellectual property;
• Exclusivity and confidentiality;
• Measures to enable indigenous and local communities to enter into access agreements;
• Recognition of the member states or provider in publication of research results.

The model law also provides for funds consisting of royalties contained in access agreements to be administered by the Andean Pact and member states and used for conserving genetic resources.

Many of these provisions are extremely vague. Therefore, it remains to be seen whether the final version of the law will provide firm and unequivocal guarantees to respect the rights of local communities.

Collectors Act

Based on the concept of prior informed consent, this model national law was proposed by the Third World Network (Nijar 1994). It would set out the obligations required of collectors and grant them a licence if they are deemed able to fulfill the requirements made of them. The licence would be given for a prescribed period, subject to conditions.

¹³ A regional economic union comprising Bolivia, Colombia, Ecuador, Peru, and Venezuela.

The powers of the Act would be strong enough so that contravention of its conditions would be subject to penal sanctions to the extent of making directors and employees of companies contravening the Act liable to imprisonment, in addition to withdrawal of the licence.

The collector would be required to provide the following:

• Plans for prospecting;
• Details of types of material to be collected in terms of species and quantities;
• Details of the evaluation, storage, and use of the collected material, including the uses to which it would be put;
• Explanation of the benefit the host country or community may derive from the collection of germplasm.

Conditions relating to collection and obligations related to post-collection activities would be enumerated, in order that the community or state would receive fair recompense for sharing their resources. Sums of money to be paid include

• A sum payable by the collector, representing not less than a fixed percentage of any income arising from the supply of germplasm extracts to commercial organizations;
• A similar sum for any royalties obtained as a result of the creation or invention of a marketable product from the collected materials.

An endorsement would be required from the collector’s country (an accredited representative) agreeing to indemnify the source country for any losses it may sustain should the collector breach the agreement, plus surrender of the results of any report of studies or experimentation made on the collected specimens. The obligation imposed on the collector would read

• “No patent application shall be filed within or outside the country in respect of the collected specimens or any part thereof, its properties or activity or any derivatives that utilize the knowledge of indigenous groups or communities in the commercialization of any product as well as to a more sophisticated process for extracting, isolating, or synthesizing the active chemical in the plant extracts or compositions used by indigenous peoples or if the same represents the intellectual right of the indigenous communities.”

Including the requirement for a contract between government and collector will give a country greater scope for enforcing penalties associated with any breach of the agreement. A country’s legislation does not apply outside its territory; however, many countries have reciprocal enforcement arrangements that include breach of contract provisions. A contract is also more flexible in that it can be tailored to a particular circumstance, and the existence of one contract does not preclude others, as long as they are not in conflict.

Discoverer’s rights

Michael Gollin, a lawyer in the United States, has suggested a new concept called “discoverer’s rights,” by which exclusive rights to living resources would be awarded to any individual or community that completed a taxonomic description of a species or variety not already in the public domain (Gollin 1993, pp. 180–181). In theory, a community developing a community register (see Chapter 9) could claim discoverer’s rights for certain species and varieties in its register. Such a community could then share the benefits of commercial exploitation through an international technology agreement (ITA), material transfer agreement (MTA), or licencing agreement with a company, allowing the company to use the species and the community’s knowledge of it in exchange for a licencing fee, royalties, patent-sharing, or other benefits. It should be emphasized that implementing discoverer’s rights would be controversial and possibly unrealistic. For one thing, many species unknown to western scientists (who would probably constitute the majority of applicants) are known to indigenous peoples, who have their own taxonomic systems for species. Also, even if a community did apply for discoverer’s rights to a plant, it is likely that neighbouring communities would also have the same knowledge of the plant. If this were true, the community would be privatizing a common resource.

If the discoverer’s rights concept is developed further, it could be included in national laws to implement the CBD. However, since there may be multiple claims to the same species or variety, many of which could come from foreign citizens, it might be better for an international institution to be established to accept deposits and deal with claims and awards.

Other national laws

The South Korean cultural assets protection system

The South Korean system for protecting its national heritage provides for the preservation and promotion of both tangible and intangible cultural expressions. Its approach is completely different from copyright law and the Unesco–WIPO model provisions (see Chapter 9), yet it has been somewhat effective in maintaining the regional diversity of traditional cultural expressions in a country that is ethnically homogeneous. The system also provides protection for unique and important environments, landscapes, and species (Howard 1989, 1993).

In 1962, the South Korean government passed the Law for Protection of Cultural Properties providing for the documentation, preservation, and promotion of tangible and intangible cultural assets for present and future generations, with a very strong emphasis on local folklore rather than “high culture” alone. This makes it a unique system. To carry out the work, which would be continuous, the Cultural Properties Committee was set up as part of the Ministry of Culture.

Once an important cultural asset is selected and approved by the ministry, it is numbered and listed under one of the following designations:

• Tangible cultural assets: These are cultural artifacts with great historic value.
• Intangible cultural assets: These are cultural expressions with historic or artistic value, such as dramas, music, dances, crafts, and manufacturing techniques. Also included under this category are Bearers of Intangible Cultural Assets (more popularly known as “Living Treasures”). These are people with outstanding technical skills, knowledge, and artistic abilities. The government provides a stipend for them and their apprentices, some of whom may become Future Human Assets, and then Living Treasures themselves, in some cases upon the death of their teacher. In addition to their obligation to pass on knowledge to the next generation, Living Treasures are expected to display their abilities in public on a regular basis. The primary objective is not in fact to honour individual people, but to ensure that traditional knowledge and skills are preserved, perpetuated, and developed further. The designation Living Treasure has the advantage of legitimizing individual influence on an art form or craft, so that it is allowed to evolve rather than remain fixed in time. This is very appropriate for Korean traditional music, because improvisation is such an essential feature and is important if folklore is to remain a part of peoples lives, rather than simply entertainment for the urban middle classes.
• Important folk cultural assets: These may be tangible or intangible expressions of traditional culture related to the everyday lives of common people, including religion, work, and annual events.
• Natural monuments and sites of scenic beauty: These include plant and animal habitats, breeding and migration sites, and minerals.

There are tensions within the system, for example between those scholars in the committee who have a Western preservationist view of folklore as relics of the past, and the government, which has tended to be concerned first and foremost with finding “icons for national identity.” Whereas such scholars are preoccupied with historical “authenticity,” the government has shown a preference for allowing the authenticity of performances to be compromised if this increases their appeal to urban Koreans. Such manipulation may result in a performance losing its cultural relevance to local people, and this does appear to have happened with some shamanist rituals. Furthermore, the selection of individuals and artistic genres has sometimes been controversial. For example, the appointment of a shamanistic ritual known as the “ssikkim kut,” performed to assist the soul of a dead person on its way to the next world, along with a number of shamans, was considered by some to be a primitive relic of the past that did not merit such an honour.

In recent years, rapid economic development has profoundly affected Korea. In spite of the pervasive influence of Western culture, Koreans still have a deeply ingrained cultural identity based on a long history as a distinct people. This state-sponsored system for upholding the nation’s cultural heritage has been successful in stimulating greater interest among many Koreans in some parts of the country, in spite of the preservation versus performance conflict and occasional cases of corruption. For example, a significant number of villagers have been inspired to revive traditional performing arts, and annual folk festivals have become popular, with performers competing for

government recognition and prizes. Van Zile (1993, p. 118) remarks that “Whether these dances are actual historical activities or recent constructions of a perhaps romanticized past, they nonetheless contribute to an important contemporary living tradition.”

The success of the system has had some unintended consequences. A notable example is the 1980s revival of interest in traditional performing arts among college students, many of whom had embraced a politically more radical brand of anti-Western and anti-Japanese nationalism than that of the government. Many student demonstrations were accompanied by traditional farmers bands, masked dances, and shamanistic rituals “to ‘purify’ the campus of government sympathizers” (Howard 1989, p. 244).

Adoption of the Korean system by other countries would require long-term financial commitments by governments to set it up and keep it going. Although it does not seem appropriate for more ethnically diverse countries, the system has revived respect for local traditions even among westernized urban populations. It is just conceivable, then, that a similar system could be effective in countries committed to forging a national identity based on tolerance and respect for ethnic minorities and indigenous peoples and their cultures.

The Brazilian Indigenous Societies Act

This proposed law was originally prepared for the Brazilian Congress by the NGO, Nucleus for Indigenous Rights (NDI). In June 1994 it was approved by the Chamber of Deputies (Bill 2057/1991), has since been passed by the Senate, and currently awaits evaluation by a special committee as to its constitutionality before it can finally be enacted. The Act is intended to protect and assure respect for indigenous peoples’ social organization, customs, languages, beliefs, traditions, and rights over their territories and possessions. Articles 18 to 29 deal with the intellectual property of indigenous peoples.

Among the important provisions of benefit to indigenous peoples are the following:

• The right to maintain the secrecy of traditional knowledge;
• The right to refuse access to traditional knowledge;
• The right to apply for IPR protection, which, in the case of collective knowledge will be granted in the name of the community or society;
• The right of prior informed consent (to be given in writing) for access to, use of, and application of traditional knowledge;
• The right to co-ownership of research data, patents, and products derived from the research;
• The right of communities to nullify patents derived from their knowledge;
• The provision that IPR of indigenous communities are perpetual.

The US religious freedom law

When enshrined in law, religious freedom can be a useful concept, because a great many of the concerns of indigenous peoples can be characterized in terms of the desire to safeguard religious rights. The US American Indian Religious Freedom Act, passed in 1978, states:

Henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right to believe, express and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.

Indigenous peoples have intimate ties with the natural world, of which they consider themselves a part. Certain places may have become established as sites of special cultural and spiritual significance over thousands of years. They may be places where the dead are buried, places where important ceremonies are held or material used in these ceremonies is gathered, sources of medicinal plants, or the abodes of deities that no one is allowed to enter. Often they are human-modified environments, produced and maintained over centuries by environmental management practices based on a highly developed system of ecological knowledge. The existence and use of sacred sites and groves is another demonstration that the distinction among cultural, scientific, and intellectual resources is not a genuine one.

However, the fact that they may not be permanently settled can make it more difficult to claim sovereignty over them under the law. Indigenous peoples may not wish to exclude others from visiting these places if they are treated with respect. One additional problem that indigenous groups in the United States southwest have encountered is that a claim of sovereignty over sacred sites requires disclosure of the sacred features of the place, thereby diminishing its sacred nature. This is a very painful dilemma (Pinel and Evans 1994; Ruppert 1994). However, a bill to amend the Act, if passed by Congress, would permit the protection of culturally sensitive information from public disclosure.

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Chapter 15

Toward protection, compensation, and community development

This final chapter consists of general guidelines for the protection of, and compensation for, the knowledge and resources of indigenous and local communities.

Guideline 1

If you are working with a company or other outside organization, develop a relationship in which the community is an equal partner. The community may be content simply to supply raw materials, but in many cases this role will not bring the greatest benefit to the community. The community may “add value” by processing plants into extracts, for example, and be compensated for this work. They may also be more actively involved in research and development or marketing of the material. As much as possible, local expertise and should be a part of these relationships. Make sure that what you receive in return for sharing your knowledge reflects the input you are contributing. However, be aware not only of the potential for commercialization of what you are sharing but also of the fact that most traditional knowledge may not generate commercial benefits.

It is also important to understand that nonindigenous peoples, including scientists and corporations, have little experience in dealing with indigenous peoples. This increases the potential for misunderstandings. Also, institutions or corporations tend to be fragmented in their organization and change policies and personnel over time. Therefore, they may not be consistent in their dealings with you. Also, negotiations will be somewhat different for each company.

Consider the implications carefully before entering into relations with brokers and go-betweens, who may approach your community with an interest in commercializing your knowledge and resources. Using these agents might make sense as they have access to legal and market information that communities may not easily acquire on their own. However, look into these relations carefully. Try to find out

• What the brokers are offering that you cannot do for yourselves;
• Whether these are the best people to work with;
• Whether they are nonprofit organizations and, if so, whether they are associated with for-profit organizations;
• What experience other communities have had with them.

Determine precisely how your knowledge and resources are to be used and in what way your community will benefit. Be aware also that some people believe that indigenous peoples are incapable of dealing with the markets or with IPR agreements. It will be necessary to put the exact nature of your collaboration with the company or broker in writing or on tape. Ask for advice and feedback from groups such as those listed in the accompanying guide. There are many good reasons to collaborate with outside commercial and research institutions, but make sure that you have all the information you need and that the relationship is structured to serve the interests of the community.

Before you have any interaction with visitors, exercise your right to prior informed consent and full disclosure by

• Being certain you fully understand who the person is and who he or she represents;
• Obtaining the researcher’s signature on a full disclosure statement giving reasons for the visit and stating the intended use of material acquired from you (this may be recorded on audio- or videotape or in writing);
• Asking for proof of identity;
• Asking for letters of affiliation;
• Asking to see documentation, including proof of approval of the relevant authorities (if appropriate) in the official language of the country.

It is important to insist on seeing all proposals and budgets and to insist that agreements are made in writing, or on audio- or videotape.

Reach a mutual understanding about what group or individual will carry out independent monitoring of agreements, including the community criteria that will be used for evaluation.

In dealing with corporations or companies:

• Establish a legal trust fund as part of up-front payments;
• Establish up-front arrangements for immediate financial and nonfinancial benefits. To do this, find out what informants should be paid, the rent that should be paid by visitors for accommodation and food, etc., and be clear about the other benefits in terms of development, health, and education that the community may be able to claim;
• Ensure that you know what the long-term returns will be: nonmonetary (schools or teaching equipment, hospitals, medical services, medicines, transportation, or an airstrip); monetary (royalty agreements, profit sharing); or in compensation in kind (full disclosure of results, return of research results in a form useful to indigenous communities, including translation into the local languages).

Ensure that your autonomy is maintained:

• In the case of conservation, by ensuring that territory is seen as cultural landscape with social significance and treated accordingly;
• In the case of tourism, by ensuring that financial returns from tourism activities in the area are held in the community and do not accrue only to outside organizations;
• In relation to trade, several measures could be adopted by a community to take control of trading, for example, using some of the IPR tools described in Chapter 8 (trademarks, appellations of origin, and labeling); carrying out community inventories in conjunction with self-demarcation for delimiting areas or for appellations of origin; establishing indigenous councils to advise on how to set up markets; issuing guidelines for royalty payments (realistic percentages in profit-sharing arrangements).

Guideline 2

Your community may decide it is better not to collaborate with outside institutions and organizations that want to investigate your knowledge and resources and to discourage such activities on your territories. If so, following the example of the participants of the Consultation on Indigenous Peoples’ Knowledge and Intellectual Property Rights in Suva, Fiji (Appendix 11), declare a moratorium on biodiversity prospecting and urge all community members not to cooperate in such activities. If other communities also disapprove of biodiversity prospecting, a joint declaration could be made. This action is easy to implement, requires no legal advice, and can serve to raise awareness among members of indigenous groups and local communities. Although in some cases it may be difficult to enforce, it is an assertion of self-determination and a clear message to outside institutions that they do not have the right to enter indigenous peoples’ lands and collect biogenetic resources and traditional knowledge without the prior informed consent of local peoples.

Guideline 3

Control the publication of traditional knowledge and resource management practices. As part of their work, researchers will customarily publish the results of their studies in academic journals, books, or even popular magazines, including information on indigenous cultures, traditional knowledge, and resource management practices. They are motivated by a desire to share their writings but also to improve their reputations in the academic community. Researchers must often be educated about the implications of this practice. Many have never given a thought to the result of placing indigenous knowledge in the public domain and beyond the control of communities. Other researchers may knowingly disregard their responsibilities in this matter.

Professional societies have begun to draft codes of ethics to direct researchers, but communities should be prepared to educate researchers as well and to set terms for their work. Communities should ensure autonomy by engaging in collaborative research, by contracting outside researchers to carry out the required research (community-controlled research), or by establishing guidelines for equitable research contracts, following the example of the Kuna and Awa (see Chapter 14).

Guideline 4

Make sure that researchers supply a detailed description of their funding sources and their obligations to those sources. Funding agencies, whether private, commercial, or governmental, often attach conditions to the research projects they fund. Make sure you are fully informed of these conditions before collaborating with a researcher. For example, government funding of research in the United States requires publication of results, which would place traditional knowledge in the public domain. In a number of countries, government research agencies are required to pass on the results of any research with commercial potential to national industry. Ask for copies of research agreements

and contracts and pay attention to IPR arrangements, especially the potential for commercialization of results.

Find out the implicit conditions behind every research program proposed for your community.

Guideline 5

Companies may wish to use photographs and images of indigenous people, homes, and cultural artifacts on their merchandise or in advertising. Indeed, some companies assume that buying raw materials and goods from a community entitles them to use such images. Communities should inform companies of their views on reproduction of their images (any objections they may have and what they regard as exploitative and an invasion of privacy).

Guideline 6

Be aware of processes in the drafting of national laws that may include consultations with members of the public, NGOs, and people’s organizations. Insist on being included. One possible avenue for achieving empowerment through national laws is to investigate religious freedom acts to see how they can be further exploited to protect sacred sites, plants, or animals.

Guideline 7

Traditional communities often share many of the same experiences, yet have little access to the fruits of each others’ work. Indigenous communities can more effectively support each other if they are organized internationally. Thus, it may be beneficial to broaden alliances between indigenous and other traditional and community groups by

• Establishing TRR centres that could carry out basic research and provide training and education programs;
• Supporting and strengthening information networks;
• Working for the establishment of indigenous funds using existing national, international, or regional organizations.

When planning the structure of an organization to represent you, consider the following:

• The criteria for appointing suitable and effective representatives;
• Gender issues in the context of the organization or community;
• The inadequacy of international mechanisms for enforcement of your rights;
• The inequality of access to national legal systems;
• The possibility that interest in traditional knowledge may fluctuate over time.

It is important to consider carefully the choice of overseas representatives so that unscrupulous individuals or groups do not try to use your image to further their own goals. Use of information networks to share experiences could be a means of preventing exploitation.

Guideline 8

The CBD offers opportunities that indigenous peoples may be able to exploit (see Chapters 10 and 14). However, acceptance of it implies nationalization of resources and a diminishing control over TRR. Indigenous peoples can act to ensure that they are consulted and set the conditions for such consultation in

• National legislation following ratification of the CBD;
• An indigenous peoples’ interpretive statement on the CBD;
• Environmental impact assessments;
• National inventories;
• Development of sui generis systems;
• International mechanisms of enforcement;
• National mechanisms of enforcement.

Guideline 9

Consider working with other communities and indigenous groups to develop your own creative strategies, unique solutions, and culturally appropriate sui generis and TRR systems. The declarations and statements of indigenous peoples and local communities that are appended to this book are a useful source of ideas.

Appendix 1

The Human Genome
Diversity Project

The Human Genome Organization has taken on the task of overseeing the Human Genome Diversity Project (HGDP) as part of the much larger Human Genome Project. The HGDP involves the collection, preservation, and analysis of human genetic material from ethnic groups around the world and the accumulation and storage of genetic information from such material in databases. Although planners of the project are now reluctant to emphasize the fact, many of the peoples to be investigated are very small indigenous groups chosen in part because of their endangered situation. The demise of indigenous peoples and their cultures used to be viewed as an inevitable outcome of modernization. However, indigenous peoples have rejected this scenario and are resisting assimilation. Thus, to many, the idea that endangered groups should be asked to give samples before they disappear is one that is antithetical, suggestive of outdated attitudes and self-fulfilling pessimism. However, there are other reasons why the Human Genome Diversity Project is highly controversial. Explanations of these follow.

Background

The Human Genome Diversity Project was conceived by Luigi Luca Cavalli-Sforza, a population geneticist at Stanford University, and other scientists in the United States (Cavalli-Sforza et al. 1991). Walter Bodmer, then president of the Human Genome Organization (HUGO) (see Box A1.1), became involved in planning the project. He referred to it as “a cultural obligation of the Human Genome Project” (Lewin 1993, p. 27). The cost was estimated at $23–35 million over 5 years (RAFI 1993, pp. 1–2). Once sufficient funding is secured, the project aims to collect blood, skin, and hair samples from hundreds of ethnic groups around the world and use new techniques to preserve genetic information indefinitely, either by developing cell lines or by isolating and storing DNA segments using polymerase chain reaction (PCR) technology. These techniques will enable scientists to study the samples many years into the future, perhaps after many of the ethnic groups providing them have merged with other populations and ceased to be sufficiently distinct to be deemed of scientific interest. Indeed, the endangered status of many populations is one reason why the planners believe that the project should be implemented with some urgency (Cavalli-Sforza et al. 1991, p. 490):

The populations that can tell us the most about our evolutionary past are those that have been isolated for some time, are likely to be linguistically and culturally distinct, and are often surrounded by geographic barriers. Isolated human populations contain much more informative genetic records than more recent, urban ones. Such isolated human populations are being rapidly merged with their neighbours, however, destroying irrevocably the information needed to reconstruct our evolutionary history. Population growth, famine, war, and improvements in transportation and communication are encroaching on once stable populations. It would be tragically ironic if, during the same decade that biological tools for understanding our species were created, major opportunities for applying them were squandered.

Box A1.1

The Human Genome Organization (HUGO)

The Human Genome Project is an international undertaking to find the location of every one of the 100 000 or so genes in human chromosomes. It consists of all national programs to map the human genome, most of which are state-funded. Many scientists involved in the project agreed that it was important to coordinate their efforts, keep the project global so that data are not monopolized by any one country or institution, and ensure that new data are freely accessible by way of databases. To further these aims, the scientists established the Human Genome Organization (HUGO) in 1988 with funding from charitable research foundations and with administrative headquarters in Europe, America, and the Pacific. Sir Walter Bodmer became president for a 3-year term. HUGO does not carry out research itself. Instead, it organizes workshops and conferences that bring together scientists from around the world who are doing the research.

Objectives

The project is expected to benefit research into human origins, migratory and mating patterns, adaptation and disease, and forensic anthropology (Lewin 1993).

One of the key questions for anthropologists and archeologists concerns the origins of the human species. Although most scientists are convinced that humans evolved only in Africa, then spread around the globe, some are less willing to discount the possibility that we may have evolved simultaneously in several locations, not only in Africa. It is hoped that the project will finally resolve this issue.

The planners hope to trace the movements of human populations and measure the genealogical relationships between these populations. Specifically, the project is expected to reveal new information on ancient migratory patterns resulting, for example, in the settlement of the Americas and Australia from Asia, as well as important clues about the evolution, dispersal, and current distribution of languages. At the more local level, it is thought that comparing genes of neighbouring populations of indigenous peoples could indicate the extent to which these groups have interbred, and even help scientists to estimate how long ago (or how recently) each of these populations reached the territories that they now inhabit and from where they came. The planners believe that mapping the “geography” of human genes will provide data of value to linguisticians, anthropologists, archaeologists, and historians, not just to population geneticists, and they feel that this is an important reason for the project to be supported (HUGO 1994, p.7). However, for genetics to provide insights for the humanities, there must be, as Cavalli-Sforza believes there is, a close correlation between language and patterns of population dispersal and distribution to the extent that family trees of populations and languages show a marked overlap (Cavalli-Sforza et al. 1994).

This whole approach has been questioned by scientists, some of whom have opposed the project. The main criticism is based on the fact that the units of investigation and analysis are human populations. Such populations are assumed, to some degree at least, to be discrete in terms of genetic, linguistic, and cultural characteristics and to have been so since prehistoric times. This is why linguists and historians will supposedly be able to derive revealing inferences from the genetic data. Critics have argued that this is a doubtful assumption in view of the many thousands of years of contact and intermingling between human populations (Lewin 1993, p. 25; Lock 1994, p. 604; Marks 1995). Furthermore, even though HUGO claims that the project will undermine racism, according to some critics the division of humankind into units that are genetically distinct implicitly revives the discredited notion of racial types (Lewin 1993, p. 25; Marks 1995). Another criticism of this population-based approach is that the lines of demarcation for a specific population can vary considerably depending on whether one is talking to a geneticist, an anthropologist, a linguist, or a member of the population in question (Lock 1994).

According to HGDP scientists, it is important to know all the normal genetic variations for the benefit of future studies of genetically based diseases. So far, 4 000 diseases are known to be caused by single-gene defects. However, many other disorders are to some extent genetically related. A comparison of the differences between populations in

terms of physiology and susceptibility to certain diseases like diabetes, sickle cell anemia, and hypertension, whose incidence seems to result from genetic and environmental interactions, would be of great interest to medical researchers. They would particularly like to know if these differences result from adaptation by long-established populations to local conditions or whether they arise from random genetic changes. Also, organ-rejection study, which involves matching the precise genetic makeup of donor and recipient antibodies and antigens, might benefit from investigation of genetic differences found in a wide variety of populations.

“DNA fingerprinting” refers to techniques that can be used to identify individuals and to determine blood relationships from DNA samples. It is used in criminal investigation and as evidence in some court cases. Proponents of the HGDP believe it will lead to the discovery of a wide range of DNA markers existing in different populations, thereby increasing the accuracy of DNA fingerprinting.

The project planning workshops

The project planners organized a series of workshops to decide how to implement the project and develop funding proposals. At the first workshop, at Stanford University in July 1992, it was agreed that sampling should be based on populations rather than individuals. Obtaining samples from 25 individuals from each population was deemed sufficient.

At the second workshop at Pennsylvania State University in October 1992, discussions centred on which groups to select and the criteria for selection. Anthropologists compiled a list of populations “that would be interesting to sample” (H. Greely, Chair of the Ethics Subcommittee of the North American Regional Committee of the project, 1994, personal communication). HUGO now denies that indigenous peoples are the main focus of the survey or that endangered status is one of the main criteria for selection (E. Evans, Secretary of HUGO Europe, 1994, personal communication). However, the list includes several small, geographically isolated groups that were almost certainly chosen because their status as genetically discrete populations (or “integral units” in HGDP terminology) was deemed to be threatened. Some of these groups are very small indeed, numbering fewer than 100 people. Among those included in the draft list are the Yukaghir of Siberia, the Onge and Greater Andamanese (who have only one fertile couple left) of the Andaman Islands, the Dorasque of Panama, the Akuriyo from Amazonia, and the Ona, Yahgan, and Alacaluf from southern Chile and Argentina. Such groups were referred to at the second workshop as “isolates of historic interest . . . because they represent groups that should be sampled before they disappear as integral units so that their role in history can be preserved” (RAFI 1993, p. 2).

The third workshop, at the National Institutes of Health (NIH) in February 1993, dealt specifically with ethical and human rights issues. Among the ethical issues discussed were those relating to informed consent, privacy and confidentiality, IPR, access to and use of data, international law, and the morality of “immortalizing” the genes of peoples whose disappearance is expected to be imminent.

At the fourth workshop, in Sardinia in September 1993, discussions, including ethical matters, were continued from the previous workshops, and the relative merits of cell lines and DNA extraction using PCR technology were considered. Cell lines can be used to store and replicate all of the donor’s genetic makeup. PCR technology enables scientists to store and replicate only sections of DNA but is much less expensive. For this reason, probably only about 10 percent of the samples will be developed into cell lines (E. Evans, 1994, personal communication). It was agreed that the project should proceed under the auspices of HUGO, which would organize discussions on ethical and social matters as they relate to the project and set up regional ethics committees. Another list of populations was drawn up,¹⁴ but HUGO’s summary document of the Sardinia workshop makes no mention of this or any other list. What the document does reveal is that whereas 25 samples per population “may be sufficient . . . a norm of 150 samples is generally recommended” (HUGO 1994, p. 16), and that many samples already collected by scientists involved in the project may be included in the database. Furthermore, in the document is the following statement (HUGO 1994, p. 15)

In previous years, samples from a large number of different populations have been collected by individual researchers. As a result, cell lines as well as DNA samples exist in many laboratories around the world. Consideration should be given to assembling the most relevant of these samples into the central repositories for the HGD Project in order to give researchers access to them.

This statement gives the impression that the project is not yet under way, and that existing samples only may be used for the project. However, in a recent book (Bodmer and McKie 1994), Bodmer appears to contradict HUGO:

One of the project’s many centres is Professor Kidd’s [a member of the Human Genome Diversity Project executive] laboratory at Yale University. There huge liquid nitrogen freezers are filled with blood samples taken from races and tribes from around the globe. By the beginning of 1992, Kidd and his colleagues had collected more than 800 specimens obtained by anthropologists from the Baika pygmies of Central Africa, Cambodians, Basques, New Guineans, Samoans, Yemenite Jews, Ethiopian Jews, Malayans, Sardinians and a host of different ethnic populations. Many other laboratories have accumulated equally large genetic repositories.

Quite clearly, sampling has been going on in a systematic manner, and it is hardly conceivable that HUGO will neglect to add the data already gathered to the database. Indeed, this possibility is mentioned in HUGO’s 1994 report (pp.15-16).

¹⁴ According to Greely (1994, personal communication), “At this point, the Penn State and Sardinia lists are clearly understood to be of little value. Their main value lies as a way to point to the kinds of things that are interesting about groups . . . those comprise characteristics of unusual linguistic, cultural, or historical interest; proximity (geographical, linguistic, or cultural) to such an interesting group; and linguistic, geographical, or cultural ‘coverage.’ The apparent existing speed of assimilation, or, in a few rare cases, actual physical death, remains one factor, but it is only one among many. Geographical isolation is never a positive factor and may be a negative one.”

Implications of the project

Ethics, the law and human rights are all legitimate areas of concern that the project planners have considered, especially at the NIH and Sardinia workshops. To what extent have the planners addressed these matters in a satisfactory manner? So far no representatives of the peoples who may be asked to give samples have been invited to attend any of the workshops. However, this is not to say that those participating in the workshops are unaware of the need to involve indigenous peoples more directly. Greely, who chaired the NIH workshop, recommended that the project should have an ethics committee, including members of the ethnic groups to be sampled and a representative from an indigenous peoples’ advocacy group. He has had discussions with indigenous peoples’ organizations himself.¹⁵ Since then, the North American Regional Committee of the HGDP has set up an ethics subcommittee, with Professor Greely as the chair. It remains to be seen whether indigenous people will be invited to join the subcommittee.

Informed consent

According to US government regulations for research conducted by government agencies, the “legally effective informed consent of the subject or the subject’s legally authorized representative” if the subject is the donor of a blood sample is a legal requirement (Code of Federal Regulations, Title 45, Protection of Human Subjects). Specifically, researchers should provide full information to the subjects regarding the following:

• The purposes of the research;
• Any benefits for the subjects and the sponsors of the research;
• Possible alternative procedures or treatments;
• Any reasonably foreseeable risks entailed by the research; and
• Discoveries made in the course of research that might affect the willingness of the subjects to permit the research to continue.

Therefore, US institutions like the NIH or the National Science Foundation that agree to fund the project will presumably have to abide by these legal requirements in research that involves the extraction of human material. The regulations can be interpreted to imply that the subjects should be informed of the possible commercial exploitation of their samples at some future time. Also, because a sample may be the subject of multiple research activities in the distant future, the donors must have the option of requesting the cancellation of any and all research at any time in the future and asking for their DNA to be returned. Project researchers or their assistants should also be prepared to explain the legal rights of research subjects and their own legal obligations at the time the samples are being requested.

¹⁵ For example, Greely attended the General Assembly of the World Council of Indigenous Peoples in Quezaltenango, Guatemala, in December 1993.

Box A1.2

Hoffmann-La Roche, the NIH, and the Aeta

It was reported recently that the Hoffmann-La Roche company was collaborating with the NIH in supposedly nonprofit research funded by the NIH. As part of this research, the company’s Department of Human Genetics became interested in obtaining samples of cells from the oral cavities of members of the Aeta people of the Philippines. The Aeta are an isolated indigenous group of hunters and gatherers who may have been the first people to populate the Philippines 30 000 years ago. Nowadays they suffer from discrimination, poverty, and disease. Therefore, the Aeta are likely to be one of the populations that HGDP scientists would find interesting to sample.

The company is interested in the Aeta because they appear to be resistant to malaria. Two attempts were made to obtain samples under the cover of medical aid missions. Both were unsuccessful: the first, because the mission did not go to the area after all; the second, because a member of the company’s research team used offers of money and the chance to contribute to important medical breakthroughs in the future to induce Dr Camara of the Makati Medical Center to assist them. He refused on the grounds that only a governmental institution should carry out such a project to ensure that benefits are shared equitably.

In view of the NIH’s status as a government institution, it appears that the “success” of this project would have been illegal on the grounds of failure to follow government regulations regarding informed consent.

Source: Keller (1994)

Many scientists need to be educated about their responsibilities and must also be accountable to the organizations that fund their work, especially when such organizations have their own guidelines or are obliged to obey legally binding regulations (see Box A1.2).

Kenneth Weiss, who is a member of the NIH Human Genome Diversity Committee, suggested at the NIH workshop that explaining the goals of the HGDP to indigenous peoples living in isolated regions would be very difficult and should be done by people who are familiar with the populations concerned (HUGO 1993). Explanations to make the idea of informed consent meaningful would be difficult to translate and might cause anger, confusion, and distress. Possible problems could arise, for example, when telling an indigenous group that blood samples are needed to find out about their origins, and when explaining the fact that cell lines will outlive the donors. According to the draft report of the second workshop, “the establishment of permanent cell lines needs to be explained in terms that are understandable, but that do not mislead subjects in any population. English terms such as ‘immortalization’ of cell lines can be badly misunderstood” (RAFI 1993, p. 2). It is not difficult to imagine that members of a small group being told that samples are needed because they are endangered would be deeply offended, and it is unlikely that they would take much comfort from being told that they

are making an important contribution to the advancement of scientific knowledge about the human body. They may well opt to exercise their right not to assist the project.

According to Greely (1994, personal communication):

What had been clear, I think, to some even at the Penn State meeting was this time [at the Sardinia workshop] clear to all — the populations that were sampled would be the populations that chose to participate. No one could select populations in advance; the populations that get sampled will be sampled because of their own int