Although indigenous peoples’ rights are recognised in a number of international declarations, the implementation of those rights is difficult to achieve, according to panellists at an event opening this week’s World Intellectual Property Organization negotiations toward a treaty to protect traditional knowledge, folklore and genetic resources.

Collective rights and customary laws, the respect of the spiritual dimension of traditional knowledge, and the right to self determination should be fully integrated in any national or international instruments, speakers said.

At the opening of the 18th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), taking place from 9-13 May, a panel on indigenous peoples’ collective rights and intellectual property gathered a number of panellists, including James Anaya, United Nations Special Rapporteur on the Rights of Indigenous Peoples.

Rights Recognised but Implementation Lagging

There is a wide international recognition of indigenous peoples collective rights, Anaya said, in particular in the UN Declaration on the Rights of Indigenous Peoples of 2007, which also recognises the right of indigenous peoples to exercise their right to self-determination, he said. A number of UN treaty-monitoring bodies, such as the UN Human Rights Committee, the UN Committee on the Elimination of Racial Discrimination, and the UN Committee on Economic, Social and Cultural rights, are also taking into consideration indigenous peoples’ rights.

Another related agreement is the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, adopted in October 2010. Its Article 7 states that parties should ensure that traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent of these communities, and that mutually agreed terms have been established, he said.

According to Anaya, the inter-generational and human rights foundations of indigenous collective rights distinguish them from the collective rights of businesses or other associations.

One of the issues in the implementation of indigenous peoples’ rights is definition and representation of beneficiaries of collective rights. This is important, he said, in relation to the granting of prior, informed consent and fair and equitable benefit-sharing.

Customary law and practices are key to addressing such concerns, according to Anaya. Customary law is an element of the right of self-determination, a means by which indigenous peoples regulate the use and distribution of benefits of tangible and intangible objects that collectively pertain to them.

However, customary law may not always yield clear answers about definition and representation of the beneficiaries of rights, he said, and indigenous peoples themselves will need to work towards defining and clarifying this aspect. He added that practical difficulties should never be an excuse for not doing the right thing.

Anaya acknowledged the significant progress made on a new groundbreaking instrument or instruments at WIPO to protect indigenous peoples’ traditional knowledge and traditional cultural expression but further progress is a matter of securing basic human rights, he said.

There is also a need for a greater participation by indigenous peoples and local communities in the process, he said, adding that he wished he saw more indigenous peoples’ representatives attending the IGC.

He praised the WIPO voluntary fund set up in 2005, which finances the participation in the IGC process of accredited observers representing indigenous and local communities or the customary holders or custodians of traditional knowledge and traditional cultural expressions, according to WIPO.

According to WIPO, since its creation, the fund has received contributions from the Swedish International Biodiversity Programme, France, the Christensen Fund, the Swiss Federal Institute of Intellectual Property, South Africa, and Norway, totalling over CHF 500,000 (about US$ 500,000), with the Swiss contribution accounting for half the total amount.

IP Regime and Benefit Sharing Needed

According to Estebancia Castro Diaz, executive secretary of the International Alliance of Indigenous and Tribal Peoples of the Tropical Forests, in Panamá, WIPO has the power to create an instrument which will implement Article 31 of the UN Declaration on the Rights of Indigenous Peoples.

At present, no instrument truly protects indigenous peoples effectively and it proves very difficult to share the benefits that should be expected, he said. The intellectual property regime and access to benefit must allow indigenous peoples to claim their collective rights and have control over their cultural rights and heritage, he said.

“We are those who should decide what traditional knowledge can apply to the public at large,” he said, bearing in mind the spiritual aspect.

It is important to mention, he said, “that every day, in each of our communities, we are losing indigenous knowledge,” and one of the main reasons for this is lack of protection.

Free, prior, and informed consent (PIC) must be recognised worldwide, he said, and it is imperative that companies and parties recognise it. Some countries have implemented PIC, and “did it in one day,” he said. He gave the example of Panama, where PIC has been implemented in practice although not written into the law. With free, prior and informed consent, states or companies should consult with indigenous peoples to seek their consent before the approval of projects affecting their lands or territories, and other resources, as well as a list of activities that could impact indigenous communities, or deprive them of their rights. PIC also aims to prevent misappropriation of traditional knowledge and genetic resources.

Numerous case studies have shown companies will hide behind national laws to evade the recognition and respect of indigenous rights, he said, adding that the rights of indigenous peoples have to be protected and captured in international and national laws.