By Kaitlin Mara
Indigenous groups are looking for better representation at the United Nations body negotiating on issues related to the protection of their traditional knowledge and traditional cultural expressions.

At the World Intellectual Property Organization last week, indigenous groups, member states, and interested non-governmental organisations came together for the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

Indigenous groups are normally classified as non-governmental observers and civil society groups in the IGC. But not all indigenous people at the WIPO meeting hailed from NGOs. Some explained to Intellectual Property Watch that, while not representing a country, they did represent governments.

“We are not states, but we are nations,” said Stuart Wuttke, acting director of environmental stewardship for the Assembly of First Nations, the national governing body representing First Nations communities in Canada. “We share distinct cultures, languages, and history.”

Al Benoit, a technical expert for the Métis National Council (MNC), a national representative body for the Métis indigenous people of Canada, explained that under the Canadian constitution his indigenous group has a right to elect representatives. The MNC represents, nationally and internationally, the elected leadership of Métis communities.

These indigenous governments are distinct from each other: the Métis do not speak on behalf of the First Nations, nor do the First Nations speak on behalf of the Métis. And neither speaks on behalf of the Inuit, Canada’s third officially recognised indigenous group.

Self-determination principles are not reflected when government representatives are considered non-governmental organisations, Benoit said. While not necessarily seeking to become member states at WIPO, Benoit said perhaps some kind of special recognition is possible.

Wuttke and Benoit of Canada expressed a similar view to many of the other indigenous representatives Intellectual Property Watch spoke with during the IGC meeting. They said they want respect and recognition of “our nations and our governments.”

Late Not Better than Never

The limits of the NGO status came clear on the morning of the last day of negotiations, during a plenary in which governmental regional group coordinators were given the floor to make statements on future work for the committee. The Indigenous Peoples Caucus, which represents the accredited indigenous observers at the WIPO IGC, wanted to make an intervention during this morning plenary session, but was unable to do so. Negotiations then moved to informal meetings (also excluding NGOs) that changed the course of the meeting.

The last day of the IGC saw negotiations mostly fall into informal sessions, and after the morning plenary, the chair tabled a text on future work that differed so vastly from the only previously offered text (authored by the African regional group) on the same subject that convergence and consensus proved unreachable between the two options by the end of the meeting. The Indigenous Peoples Caucus had wanted to offer support for the African proposal in the morning plenary tasked with discussing the issue of future work.

The indigenous group was allowed to speak at a later plenary that afternoon, after the chair’s text had already been tabled, and after many of the informal meetings had already taken place. At that point the caucus chair, Albert Deterville of the indigenous Bethechilokono people of Saint Lucia, felt that their morning intervention was “obsolete.” So instead of delivering its position statement, it issued a statement questioning indigenous peoples’ treatment at WIPO.

In its undelivered statement, the caucus had intended to come out in support of the earlier African proposal on future work calling for intersessional work on the part of a limited number of expert observers in order to speed up the work of the IGC, which has been in negotiations for nearly 8 years with no concrete result.

The caucus further had intended to suggest prioritising – if necessary – the expert assessments on prior informed consent/moral and economic rights on traditional knowledge and traditional cultural expressions and designated beneficiaries of traditional knowledge (TK) and traditional cultural expressions (TCEs). The African proposal calls for working groups to deal with five issue areas. The other three are definitions of TK and TCEs; exceptions, limitations and duration; and sui generis systems of protection.

The final African Group proposal can be read here.

The full text of the Indigenous Peoples Caucus intervention can be read here.

The undelivered intervention said the time is “more than ripe” for the IGC to move to the next stage, and indicates a willingness to work with other delegations to achieve a legally-binding instrument to protect their knowledge.

That intervention also said that states should not act as custodians of TCEs and TK. Such a situation is “absolutely unacceptable,” it said, explaining that indigenous peoples’ traditional cultural expressions and traditional knowledge can “only be managed by others subject to the free, prior ad informed consent of, and revocable upon notice by, the indigenous people in question.”

The caucus represents a majority of the world’s rights holders on traditional knowledge and traditional cultural expressions and “should have been given opportunity to make an intervention,” Deterville, who chaired the caucus at the IGC from 13 to 17 October, told Intellectual Property Watch.

This lack of inclusion during the morning plenary on future work might have been remedied, said Deterville in the closing statement he did make later that day, had indigenous representatives been included in the ensuing informal consultations on future work. However, he told Intellectual Property Watch, “We were not invited into the informal sessions.”

“We are marginalised, actually ostracised, by that behaviour,” he added.

For most of the week, undelivered statement said, “indigenous peoples have opted to listen more than repeating positions on the material issues at this session.” Friday morning would have been the first statement during a plenary session made on behalf of the caucus, Deterville explained to Intellectual Property Watch.

The IGC chair Rigoberto Gauto Vielman of Paraguay told Intellectual Property Watch that during the morning plenary on 17 October, he “didn’t give the floor even to member states,” and that “no decisions are taken outside plenary.” He noted that the caucus was allowed to speak first at the afternoon plenary, after informal negotiation sessions.

But Deterville said that this constitutes “a statement after the fact,” and that meanwhile governments had been discussing issues that “concern us… and we were not included.” Often, in controversial negotiations, the bulk of progress is made in informal negotiations, though the plenary sessions are needed to officially come to agreement.

Violation of UN Indigenous Peoples’ Declaration?

Deterville’s closing statement, given on behalf of the indigenous caucus, noted that the UN Declaration on the Rights of Indigenous Peoples provides them “the right to participate in decision-making in matters which would affect their rights” and requires states to “consult and cooperate in good faith with the indigenous peoples concerned.” This, he said, did not happen.

The full text of the Indigenous Peoples Caucus closing statement is available here.

The United Nations Declaration on the Rights of Indigenous Peoples [pdf] also asserts the right of indigenous people “maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional
cultural expressions” and obliges states to provide redress to indigenous people for “cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.”

The declaration was adopted a little over a year ago by the General Assembly of the United Nations.

A WIPO press release after the IGC meeting said the organisation maintains a “vital interest” in involving the voices of indigenous people in “the procedural and substantive legal aspects of the committee’s work.”

Kaitlin Mara may be reached at kmara@ip-watch.ch.