INDIGENOUS PEOPLES INTELLECTUAL AND REAL PROPERTY: FREE PRIOR INFORMED CONSENT

INDIGENOUS PEOPLES INTELLECTUAL AND REAL PROPERTY: FREE PRIOR INFORMED CONSENT ARTHUR MANUEL, SPOKESMAN NICOLE SCHABUS, INTERNATIONAL ADVISOR INDIGENOUS NETWORK ON ECONOMIES AND TRADE 1. FREE PRIOR INFORMED CONSENT OF INDIGENOUS PEOPLES The international equivalent of the Haida decision are provisions for free prior informed consent of indigenous peoples to any development in their traditional territories under the Convention on Biological Diversity 1. These rights were fought for by indigenous peoples from around the world seeking the implementation on the convention s provisions regarding indigenous peoples, or indigenous and local communities as the convention refers to them. Indigenous representatives had been key in the negotiations before and since the convention s entering into force. The parties to the Convention recognize the key role indigenous peoples play regarding the conservation and sustainable use of biological diversity. Although only State parties take the ultimate decisions indigenous peoples have pushed for and gained more and more access to the international negotiations. They even achieved the creation of an Ad-hoc open-ended Working Group on Article 8(j) and related provisions, in which indigenous delegates have an equal say as government representatives. Article 8j, focuses on the situ conservation, stating 2 : Each contracting party shall, as far as possible and as appropriate, subject to its national legislation, 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. Initially the positions presented by indigenous representatives in negotiations under the Biodiversity Convention were mainly rights-based. Especially indigenous leadership from Latin America 3 always stressed the inherent connection between Article 8j and land rights, pointing out that without access to their traditional territories, indigenous elders could not pass on the 1 The Convention on Biological Diversity, is one of the two international environmental agreements that grew out of the Earth Summit in Rio, with the other being the UN Framework Convention on Climat Change. Unlike the letter the CBD is one of the conventions with most signatories. 2 See: Secretariat of the Convention on Biological Diversity (1998) Convention on Biological Diversity, UNEP/CBD/94/1, Montreal, Article 8(j) 3 COICA/UNDP (1994) Regional Meeting on Intellectual Property Rights and Biodiversity 1994, in: IUCN Inter- Commission Task Force on Indigenous Peoples (1994) Indigenous Peoples and Sustainability, Cases and Actions

traditional knowledge that is intricately linked to their land on to younger generations. This was supported by indigenous delegations from across the world, fighting for their land rights and seeing the Convention as a means to bring specific complaints regarding failures of their government to implement their international obligations on the ground 4. The majority of governments did not want to see these kind of complaints and the discussions under the convention 5 move in that direction and repeatedly stressed that the Convention on Biological Diversity was not a human rights instrument. One head of delegation of delegation once explained the distinction, criticizing that indigenous peoples thought that they could continue their rights-based discourse that they used to lead in different United Nations bodies, when the convention s focus was more technical and centered around management, not rights 6. Also the first meeting of the Ad-hoc open-ended Working Group on Article 8j and the meetings that led up to its creation were often criticized for lacking focus and not being technical enough 7. As a result some governments, especially from developed countries, added indigenous representatives to their delegations and/or funded indigenous participation, recruiting more on indigenous technocrats than leadership in an attempt to institutionalize certain processes. The result was what at some times looked like a split between more outspoken indigenous organizations from the South and indigenous representatives from the North who were trying to move the process along. In reality the split ran and continues to run along much more fundamental lines with indigenous leaders with a rights-based position supporting each other in pushing strong positions and not shying away from criticizing governments that work against indigenous concerns and more process oriented indigenous representatives who tend to become tied up in the processes as set out by the governments to secure future funding and participation, often refusing to take more confrontational positions. These tensions became clear at the 2 nd meeting of the Ad Hoc Inter-Sessional Open-ended Working Group on Article 8(j) in Montreal, where many governments hailed the high level of technical discussions and professionalism by indigenous delegates and on the other hand some indigenous peoples felt that the issues of special concern to them had not been dealt with satisfactorily 8. 4 For more information see: Indigenous organizations comments on their respective governments implementation of Article 8j and related provisions, for example: Interior Alliance (2001) Traditional Knowledge Report submitted to the International Secretariat of the Convention on Biological Diversity 5 CBD (2000) Notification to Indigenous and local community Organizations to submit case-studies on the Implementation of Article 8 (j) and related provisions, by Hamdallah Zedan, Executive Secretary of the CBD based on Decision V/16 of the CBD 6 Preparatory Meeting at the Austrian Ministry for Agriculture, Forestry and Environment, BMLFUW, March 2002 7 Earth Negotiations Bulletin (2000) Summary Report of the First Ad Hoc Inter-Sessional Open-Ended Working Group on Article 8(j), Sevilla, Spain, especially: Analysis Section 8 Earth Negotiations Bulletin (2002) Summary Report of the Second Ad Hoc Inter-Sessional Open-Ended Working Group on Article 8(j), Montreal, Canada, especially: Analysis Section

Tensions even mounted further at COP-6 when certain countries, mostly members of JUSCAN, adamantly opposed the inclusion of the principle of prior informed consent of indigenous and local communities to any developments in their traditional territories. Other government representatives from both Europe and Latin America, especially those whose constitutions make reference to indigenous peoples rights and some specifically to traditional knowledge were very ready to support indigenous peoples in the push for international recognition. At the same time they expressed concern about the apparent split amongst indigenous peoples, with some not wanting to take on donor governments, and the supportive government representatives made it clear that they would only speak out in the final negotiations, if indigenous peoples presented a strong and unified position calling for the recognition of the principle of free prior informed consent of indigenous peoples. It took a strong unified push from indigenous leadership around the world to turn negotiations around at the last moment, and ensure the inclusion of the long disputed provision 9. Decision VI/10 on Article 8(j) Annex II therefore contains the following paragraph in its recommendations for the conduct of cultural, environmental and social impact assessment regarding developments proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities: 16. Where the national legal regime requires prior informed consent of indigenous and local communities, the assessment process shall consider whether such prior informed consent has been obtained. When the delegates who had led the push asked that the International Indigenous Forum on Biodiversity openly reject the unfair negotiating practices of certain countries, indigenous delegates who depended on funding from those governments threatened to walk out 10. In the end those internal debates were overshadowed by Australia s last minute rejection of provisions regarding invasive alien species 11 almost broke the COP consensus. Indigenous delegates will and should remember COP-6 for their unified success in securing the principle of Free prior informed consent of indigenous peoples regarding developments in their traditional territories. 2. ACCESS AND BENEFIT SHARING Of course this success might be considered as rather minor in light of the central discussions at COP-6 concerning Access and Benefit-Sharing (ABS) regarding genetic resources. Prior informed consent regarding the access was a key issue, but only discussed in the context of state 9 For a detailed description of the discussions, See: Manuel, Arthur (2002) Report on the 6 th Conference of the Parties to the Convention on Biological Diversity Vital world - Life on the Line, April 7 19, 2002 The Hague, The Netherlands 10 For details see: Manuel, Arthur (2002) Report on the 6 th Conference of the Parties to the Convention on Biological Diversity, The Hague, The Netherlands 11 Earth Negotiations Bulletin (2002) Summary Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity, especially pp. 16

PIC 12, despite the fact that indigenous peoples are the real holders of these genetic resources and should be the ones to validate access. Only a few indigenous delegates followed these discussions on ABS and the informal working groups in the evening and just achieved some minor cosmetic changes in the wording of the ABS Guidelines, but no concessions regarding the key question of access and indigenous PIC and the guidelines were passed 13. Although it was recommended to refer them to the WG on Article 8j for review, but it seems unlikely that major changes will be achieved. In this case the narrow procedures of both SBSTTA who had earlier elaborated the draft guidelines and at the COP clearly outmaneuvered indigenous peoples. Generally indigenous representatives had always felt less welcome at the SBSTTA meetings 14, where they were given no real space for their input unlike at the Article 8 (j) meetings where they had equal opportunities to intervene. Also indigenous peoples seem to generally be much more comfortable dealing with the issue of conservation, than with access and benefit-sharing, which in the end aims at the commercialization of genetic resources. On the other hand governments saw the ABS Guidelines as a great break-through 15 and important step towards what many called the balancing of the three objectives of the convention: conservation, sustainable use and access and benefit-sharing 16. A number of countries, even formed a coalition, the so called Like-Minded Mega-Diverse (LMMD) Countries 17, for the sole aim of working on access and benefit-sharing, it included many Latin American and Asian Countries, but none from Europe, North America or Oceania, with the first group arguing that because they held most of the world s biodiversity, they should have more of a say in negotiations. They even wanted to block discussion of new issues and zealously fought for assurances regarding state prior informed consent to access, a key right also for future benefit sharing, which they are unlikely to want to share with indigenous peoples 18. The CBD has now clearly become a hybrid instrument, carrying some elements of multi-lateral environmental agreements and parts making it more look like a trade agreement. 12 Earth Negotiations Bulletin (2002) Summary Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity, The Hague, The Netherlands 13 See Decision on Access and Benefit Sharing in: UNEP/CBD/6/L.19 14 See references to Indigenous concerns in: Earth Negotiations Bulletin (2003) Summary of the Eighth Session of the Subsidiary Body on Scientific, Technical and Technological Advice of the Convention on Biological Diversity, Montreal, Canada 15 Earth Negotiations Bulletin (2002) Summary Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity, The Hague, The Netherlands, especially Analysis section, describing the ABS Guidelines as on of the Successes of COP-6 16 See Article 1: Convention on Biological Diversity, UNEP/CBD/94/1, Montreal, 17 Like-Minded Mega-Diverse Countries (2002) Cancun Declaration, 2003, Cancun, Mexico 18 See references to LMMD Countries in: Earth Negotiations Bulletin (2002) Summary Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity, The Hague, The Netherlands,

While indigenous peoples seem more comfortable with the convention s earlier focus on conservation, calling for special sui generic mechanisms for the protection of traditional knowledge to be developed under the CBD, on the other end of the spectrum were countries who wanted to see much of the debate shift to the roam of trade agreements. Some countries even argued that TRIPS should be the international instrument to deal with intellectual property rights. This idea had been vehemently opposed by indigenous peoples from the outset 19, for both substantive reasons, that they do not want the debate to center around commercialization, and for procedural reasons, because the processes before the WTO are very much nation-state centered and not transparent, seemingly not open to indigenous participation. 3. SUI GENERIS RIGHTS AND REGIMES The discussion about how to best deal with indigenous peoples intellectual property rights, can best be described as the struggle between indigenous peoples calling for a sui generis regime and some governments wanting traditional intellectual property regimes to prevail. Without entering into the whole discussion about bio-piracy and the theft and use of indigenous knowledge by for example pharmaceutical companies, it has to be made clear that traditional intellectual property instruments, such as patents have been used, to secure commercial rights and title to knowledge that really belongs to indigenous peoples. Many indigenous peoples see those legal provisions and the agreements from which they draw their validity especially the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) as neo-colonial instruments, meant to undermine and further appropriate indigenous peoples real and intellectual property 20 14. One key feature of this dominant development model is the creation of the intellectual property rights (IPR) regime, which is a system based on Western legal and economic philosophy and theory and Western property law. This has its own theory of human nature and believes that private incentives are needed for people to perform labor, innovate and create wealth. It is a historically constructed worldview which arose during the industrial revolution to protect mechanical inventions. Now it is being perpetuated as natural or universal law. The universalization of IPRs is done through the harmonization efforts of the World Trade Organization and the World Intellectual Property Organization in which they are obliging their memberstates to legislate or change their intellectual property rights law to fit this mold. The concept of sui generis systems on the other hand describes the evolution of the overall system of property rights. Although those systems are never really been defined in detail, their 19 Opening Statement of International Indigenous Biodiversity Forum at COP-6: IIBF (2002) Opening Statement, The Hague, The Netherlands 20 GRAIN and Tebtebba (2003) Statement of the Workshop in Biodiversity, Traditional Knowledge and Rights of Indigenous Peoples, Geneva, Switzerland. 3-5 July 2003

negative definition is that it entails those concepts that do not fit into the Western systems of individual property rights. Courts have use the term to refer to the collectively held proprietary interests of indigenous peoples, which are recognized by Western Law but defined and given its substance by indigenous law. From the point of view of indigenous peoples, who have a much more positive and affirmative definition and understanding of their laws, sui generis systems entail their own legal systems and ways of protecting their knowledge. As stated above indigenous peoples have pushed for the development of a sui generis system to protect traditional knowledge under the Convention on Biological Diversity. Of course such a system would center around collective rights and create space for the application of indigenous laws, which would limit access and therefore is not in the interests of companies who literally want free access to for example plant genetic resource, both without the consent and remuneration of indigenous peoples. Bodies such as the International Chamber of Commerce 21 have therefore been lobbying actively against the establishment of such a regime or tried to water it down. Some countries have supported what seems to be a middle position top have the World Intellectual Property Organization (WIPO), deal with the issue. WIPO ceased the moment and set up the Intergovernmental Committee on Intellectual Property, Folklore and Traditional Knowledge, that has embarked on developing a comprehensive report on the issue, but indigenous peoples have organized to oppose this mandate 22. 21 See: International Chamber of Commerce (2002) Position Paper on Traditional Knowlegde, Geneva, Switzerland, distributed at COP-6 in the Hague 22 See further provisions in: GRAIN and Tebtebba (2003) Statement of the Workshop in Biodiversity, Traditional Knowledge and Rights of Indigenous Peoples, Geneva, Switzerland. 3-5 July 2003