Colonial history says that indigenous peoples were in the past sometimes asked to sign treaties that may not have been in their best interest or that were not honoured. Now, under the aegis of the United Nations, some indigenous peoples fear it may be happening again, only this time they want to be at the table as the subject is their traditional practices, and it would apply on a global scale.

Indigenous groups attended the past week’s UN World Intellectual Property Organization pre-negotiation for a possible “instrument or instruments” (developed countries do not like the word “treaty” in this instance) on the protection of traditional knowledge, folklore and genetic resources.

But the indigenous groups became disenchanted and nervous about the process after learning that their list of concerns – which includes recognition that they are the explicit owners of their traditional knowledge – was being swept aside during intensive government-to-government negotiations in which they were merely spectators.

“There’s no way they can wish us away,” said Christiana Saiti Louwa of the Elmolo Forum in Kenya. “We are the owners of the knowledge.”

The groups were “quite disappointed” with the outcome of the week, she said. “Holding and controlling” traditional knowledge, traditional cultural expressions and genetic resources “translates into owning and controlling us, as the owners of this knowledge.”

The indigenous peoples (their collectively preferred way to refer to them) are not opposed to the idea of a treaty, as they see a need for international help to protect against what they see as misappropriation of their rights. But they are concerned about the way the negotiation is going.

At issue are emerging texts under discussion at the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (or traditional cultural expressions), which met from 9-13 May (IPW, Traditional and Indigenous Knowledge, 13 May 2011).

The WIPO instrument, intended to clarify the relationship between these issues and intellectual property rights, is being pushed mainly by developing countries anxious for international protection against – or benefit from – biopiracy and misappropriation of other cultural resources. Developed countries with seemingly less to gain have dutifully showed up for the meetings of the committee for over 10 years, but only in the past year or so has the committee work begun to crystallize into what could be considered early treaty text.

Indigenous peoples are not the only ones who may be nervous about where the negotiations might lead. Developed countries, whose businesses and others benefit from access to these resources, including many in the public domain, are a bit squeamish about the possibility of overreaching and a rewriting of global rules.

In addition, some smaller economies that have rich cultural value but no recognised indigenous peoples, such as some in the Caribbean, are looking for a way to expand the benefits to non-indigenous peoples, thereby further complicating discussions.

“Strange” Procedures at WIPO

Committee participants indicated toward the end of the week that they had successfully kept work on the texts moving forward. There was some resistance from a few countries, and by extension the indigenous groups, concerned about their proposals being pulled from the traditional knowledge text when they were not present to defend them, but it appeared that the disputed proposals by member governments had been returned before the end of the week, according to sources.

Representatives from several indigenous peoples’ groups held a press conference at the close of the week at the United Nations in Geneva to alert journalists to the “very, very strange” procedures that took place at WIPO during the week, as one representative put it.

Representatives from groups in Ecuador, Kenya, and “Great Turtle Island, otherwise known as North America,” told journalists that it appears the negotiating governments are not listening to their concerns, and that WIPO committee rules were not being followed when proposals were struck from the text in the absence of governments that had proposed them.

The indigenous groups have been relegated by the negotiating governments to an observer-only role, and are concerned that the international instrument will not reflect their concerns or respect their rights. The only way they can get their proposals into the text for negotiation is to convince a government to put them forward. Some of their proposals were in the text at the start of the week, put forward by Venezuela, Bolivia, Ecuador and Guatemala, sources said.

But the proposals were deleted from the traditional knowledge text in an informal drafting group on Tuesday night while the proponent governments – which being small countries, may have delegations of only one official – were busy in other meetings. On Thursday night, the indigenous caucus met and requested a visit from the committee meeting chair, who came. By Friday morning, at least some of the missing proposals had been returned to the text, sources said. But these now appear to be only the proposals that had been supported by a government.

Generally speaking, the indigenous peoples are seeking acknowledgement as owners of the rights to their traditional knowledge and the requirement that any of their resources used must be with their “free, prior and informed consent.”

A European journalist asked what benefit they were seeking and whether they really were just seeking to financially benefit from their property. Sharon Venne of the Cree People said they would like the option to seek redress for misappropriation.

“Indigenous peoples have had their knowledge taken from them, and used and abused without their permission,” Venne said, and they are trying to improve the situation. With free, prior and informed consent, it would be up to each group of indigenous peoples to decide for themselves what is best for them. But they want respect for peoples’ ability to “make decisions for themselves.”

“I think what [negotiating governments] might be afraid of is that indigenous peoples might act like them.” – Juan Carlos Jintiach.

“I think what they might be afraid of is that indigenous peoples might act like them,” said Juan Carlos Jintiach of the Coordinator of Indigenous Organization of the Amazon Basin (COICA), based in Ecuador. But, he said, “I don’t think indigenous peoples have ever indicated they would act like them.”

The groups are seeking a legally binding instrument, which is also supported by a number of WIPO members states in the negotiation, led by the African Group.

The groups cited positive examples of actions by national governments, like those of Bolivia and Ecuador, who have taken measures like adopting the 2007 UN Declaration on the Rights of Indigenous Peoples. The UN estimates there are some 370 million indigenous peoples on the earth.

The Tupaj Amaru indigenous movement of Bolivia made a statement on the floor of the WIPO meeting last week that charged violations of UN conventions and declarations and discrimination for putting indigenous peoples on the sideline of the WIPO negotiations. It said that UN resolution 1803 from 1962 and more than 80 subsequent resolutions recognised the explicit sovereign right of indigenous peoples over their natural resources and the intellectual property rights related to their “riches.”

The Tupaj Amaru statement (in Spanish) also gave a scathing indictment of rich countries’ corporate exploitation and plundering of indigenous peoples’ genetic resources, traditional knowledge and folklore. The statement named 10 top pharmaceutical companies – from France (1), Switzerland (2), the United Kingdom (2) and the United States (5) – involved in the continued taking of indigenous genetic resources and cultural expressions.

“We don’t want them to feel that we want to destroy the process,” Jintiach said at the press conference afterward. But these peoples are “living on the ground” and should have a say.

“Somehow some governments are forgetting who they are representing,” he said. “Our rights have to be respected.”

The full text of the Indigenous Peoples statement is below:

STATEMENT OF INDIGENOUS PEOPLES TO THE IGC 18

We come to participate in good faith in the IGC representing Indigenous Peoples as owners and rights holders of the subject matter under negotiation. As such, we expect respectful relationships and that our proposals are deliberated and considered on their merits by member states. As an example of a respectful relationship, in Ecuador there is constitutional recognition of the rights of Indigenous Peoples to be the spokespersons for the rights of the natural world.

On Tuesday night, 10 May 2011, a working group was tasked to clean up the text on traditional knowledge. In our experience, this non-drafting group should have simplified text while leaving views intact. Instead, it became a drafting group eliminating proposals in the absence of full and fair deliberation. Our views were dismissed without due consideration.

We present the following to make clear our fundamental principles that must be embodied in the proposed WIPO international legal instrument(s) on Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources (TK, TCEs, and GR).

THE PRINCIPLES

1. A primary objective of the international legal instrument(s) must be to protect Indigenous Peoples’ rights and interests as the owners / holders of TK, TCEs, and GR.

2. The legal instrument(s) must affirm the universal protection of the rights of Indigenous Peoples and nothing in the instrument(s) can be construed as diminishing or extinguishing the rights Indigenous Peoples have now or may acquire in the future.

3. The international legal instrument(s) must comply with international norms by adopting the term ‘’Indigenous Peoples’’ which respects our lawful status and recognized rights.

4. The international legal instrument(s) must recognize the principle of free, prior and informed consent of Indigenous Peoples.

5. The international legal instrument(s) must not assert or otherwise infer that States or members of WIPO are holders of, or the beneficiaries from the utilization of, Indigenous Peoples’ TK, TCEs, and GRs.

6. In the international legal instrument(s), Indigenous Peoples must have the right to redress, including repatriation of, any of their TK, TCEs, and GRs taken or used without their free, prior and informed consent.

PARTICIPATION IN THE IGC 18

The Indigenous Peoples delegates present at this IGC have agreed to the following protocols in light of Tuesday, 10 May 2011, night meeting where our views were dismissed without consideration:

1. Our delegates will continue to be present as observers for the remainder of IGC 18, to take note of the positions of member states and observers, and the draft documentation.

2. Our delegates are not disposed to make text proposals, while member states fail to give due attention to, or support to, text proposals from our delegates.

3. Our delegates are prepared to speak to clarify matters relating to the rights, freedoms and interests of Indigenous Peoples and to ensure that WIPO and its members are adequately informed of the rights, freedoms and interests of Indigenous Peoples.

4. Our continued presence in IGC-18 in no way can be taken to say that Indigenous Peoples have collaborated in the drafting of these documents in this session. Nor can our observation of this process be inferred as giving any consent to the results of any process in which Indigenous Peoples have not been actively involved.

FUTURE WORK

WIPO must ensure that Indigenous Peoples have full, effective and equal participation in relevant discussions and decision-making processes concerning the legal instruments at the WIPO IGCs, General Assembly, and the proposed diplomatic conference.

Signed by the following delegates on the 12 May 2011:

[14 representatives of Indigenous Peoples]