| biological resources, members states and providers, which may be legal entities, private individuals, or Indigenous or local communities; restrictions on transfer to third parties; reporting on obligations on future uses; obligations related to intellectual property; exclusivity and confidentiality; recognition of the member states or provider in the publication of research results. When the provider is an Indigenous or local community, member states may take measures to enable them to enter into access agreements. |
| 5.2 | The Brazilian Indigenous Societies Act |
| This proposed law was approved in 1994 by the House of Deputies of the National Legislature. It has never passed into the Senate and is still under consideration for its legality. The proposed law is intended to protect and assure respect for Indigenous peoples’ social organisation, customs, languages, beliefs and traditions, and rights over their territories and possessions. Articles 18-29 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; and, the right of communities to nullify patents illegally derived from their knowledge. |
| 5.3 | Indian Parliamentary Debates |
| The government of India has attempted to amend the 1970 Patent Act in conformity with the requirements of GATT-TRIPs, thereby fulfilling part of India’s obligations for WTO membership. However, the Upper House of the Indian Parliament, in response to mass protests by farmers groups and opposition parties has voted for a deferment of the amendment. It remains to be seen whether the government will use undemocratic means to push through the Patents Bill (Shiva 1995). A strong traditional and tribal movement in India is pressing for Community Intellectual Rights (CIRs) similar to that proposed by Nijar (1994) and described below. |
| 5.4 | Philippines Presidential Decree |
| The Philippines Executive Order No. 247: “Prescribing Guidelines and Establishing a Regulatory Framework for the Prospecting of Biological and Genetic Resources, Their By- Products and Derivatives, for Scientific and Commercial Purposes; and for Other Purposes” is probably the first national law to implement the CBD’s provisions on access and benefit sharing. Section 1 declares that the policy of the State is: ‘to regulate the prospecting of biological and genetic resources so that these resources are protected and conserved, are |
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| developed and put to the sustainable use and benefit of the national interest’. In the case of the ‘ancestral lands and domains’ of Indigenous peoples, Section 2 states that bioprospecting is permitted only with: ‘the prior informed consent of such communities; obtained in accordance with the customary laws of the concerned community’. In this way, State sovereignty rights are strengthened, yet by recognising that control over genetic resources is most effectively established at the local level, the traditional resource rights of Indigenous peoples and local communities have, to some degree at least, been recognised (Posey, 1996). |
| 5.5 | Model Community Intellectual Rights (CIRs) |
| CIRs are intended “to prevent the privatisation and usurpation of community rights and knowledge through existing definitions of innovation” (Nijar 1994). Model legislation asserts the existence of knowledge that is communally owned and shared, with “innovators” being Indigenous peoples who have not heretofore revealed their knowledge or resources to the outside world. Local communities are vested with “custodianship rights of innovation” in two ways: |
| i) | Constructive Trustee: local community leaders are nominated or appointed to act for the |
| whole community as trustees for the beneficiaries (the community); |
| ii) | Higher Trust: builds on the concept that governments claiming sovereign rights are, in |
| fact, holding those rights in trust for the community. Section 5 of the CIR Act calls for a Registry of Invention (similar to the Community Register described above). Here a community may register its innovations simply by declaring their existence. The idea is similar to copyright law, whereby “protection generally arises with no need for formal acceptance by a registering authority”. Failure to register does not surrender innovation rights, but by making such a register, patent application by others may become more difficult or impossible (see also Section 3.1 on Defensive Publication). |
| 6. | Mechanisms and Solutions |
| 6.1 | Self-demarcation of Indigenous peoples’ territories |
| Legal title to lands and territories is primary for Indigenous peoples. Documentation of traditional land use, including knowledge and use of plants, animals, soils, water systems, forests, etc. can be fundamental to claiming rights. Delimiting sacred sites or areas of cultural and historical significance become not only legal acts, but also awareness-raising exercises for local communities. Since cultural landscapes are usually difficult to detect and “read” by outsiders, mapping of these notifies others that lands are not “wild” and unclaimed, but occupied and significant. Self-demarcation is a strategy that several Indigenous peoples have decided to pursue, such as the Ye’kuana in Venezuela. Self-mapping as a community procedure for demarcation has |
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| become an important process in Participatory Rural Appraisal (PRA), Participatory Action Research (PAR) and similar collaborative research methods of oral history and ethnoscience. |
| 6.2 | Community databases of Indigenous knowledge and local |
| biodiversity |
| a) | Community registers |
| Community registers have been developed in India as a means of securing community control over TEK. Local people document all the known plant and animal species with full details of their uses. Community members are then in a position to refuse access to the register, and to set conditions under which others would be allowed access. Community registers can be used as evidence of intimate knowledge of the local environment in order to support claims to legal title of land and 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. |
| b) | Indigenous knowledge databases |
| Some Indigenous peoples have established databases, which they themselves control, ensuring their ability to control access and use of their knowledge and related information. For example, the Canadian Inuit of Nunavik and the Dene have their own information databases to: |
| create a dialogue based on respect and equality, not to create a catalogue and make it ‘available’ to the ‘real scientists’. We must not allow indigenous knowledge to be reduced solely to an interesting research topic for Western science. (Simon & Brooke, 1997). |
| c) | Community-Controlled Research (CCR) |
| Community-Controlled Research (CCR) is research where the objectives and methodologies are decided upon by Indigenous peoples themselves. The Kuna of Panama and the Inuit have established guidelines with the intention that CCR is the only form of research allowed on their territories. (i) The Proyecto de Estudio para el Manejo de Areas Silvestres de Kuna Yala (PEMASKY) and the Asociacion de Empleados Kunas (AEK) of Panama have produced an information manual for researchers on scientific monitoring and cooperation. Kuna objectives are outlined with regard to forest management, conservation of biological and cultural wealth, scientific collaboration, research priorities, and guidelines for researchers. Collaboration with Western scientists is encouraged for basic ecological research, botanical and faunal inventories, and the study and recording of Kuna traditions and culture. Research is designed to provide the Kuna with information useful to them and under their control (Chapin, 1991). (ii) The Inuit Tapirisat of Canada produced a background paper, Negotiating research |
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| relationships in the North, containing a useful list of principles based on existing ethical guidelines and the concerns expressed by members of Inuit communities to be followed by all researchers. |
| 7. | Traditional Resource Rights (TRR) |
| Given that knowledge and traditional resources are central to the maintenance of identity for Indigenous peoples, the control over these resources is of central concern in their struggle for self-determination. Following COICA: |
| A system of protection and recognition of our resources and knowledge must be designed which is in conformity with our world view and contains formulas that...will prevent appropriation of our resources and knowledge. |
| Traditional Resource Rights (TRR) has emerged as a concept that more accurately reflects Indigenous and traditional peoples’ views and concerns. TRR amasses “bundles of rights” already widely recognised by international legally and non-legally binding agreements in an effort to build a solid foundation for more equitable systems of protection and benefit sharing. Basic principles upon which TRR is based include: basic human rights, right to development, rights to environmental integrity, religious freedom, land and territorial rights, right to privacy, prior informed consent and full disclosure, farmers’ rights, intellectual property rights, neighbouring rights, cultural property rights, cultural heritage recognition, rights of customary law and practice. Appendix 2 lists “bundles of rights” and their location within international agreements. Although general principles can be found in these agreements, they are on very different political footings. Some are enshrined in legally-binding Conventions, while others are found in non-legally binding documents or model proposals. Thus, existing “bundles of rights” are wide-ranging, but still inadequate. TRR is more of a process than a product. The concept can grow as additional rights accrue and adapted through the development of national and international legislation. It goes beyond other sui generis models in that it seeks to protect not only knowledge relating to biological resources; it also asserts the right of peoples to self-determination and the right to safeguard “culture” in its broadest sense. TRR is rights driven, not economically motivated. Yet by prioritising Indigenous peoples’ rights to say NO to exploitation and by acknowledging their basic rights to control access over and receive benefits from traditional resources, commercial and research institutions should find equitable agreements and partnerships more easily attainable. |
| Conclusions |
| Intellectual Property Rights (IPRs) have become important to global economic and commercial |
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