Indigenous Peoples Rights’ Reaffirmed By UN Rapporteur, Panellists, At WIPO

The United Nations Special Rapporteur on the Rights of Indigenous People, James Anaya, was invited to speak at the opening of the World Intellectual Property Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) yesterday. Along with other indigenous peoples representatives, he called for more participation of indigenous peoples in the process and a focus on the protection of their traditional knowledge, while WIPO raised alarm on the almost thorough depletion of the voluntary fund allowing the participation of indigenous peoples.

Anaya spoke at the WIPO Indigenous Panel, presenting perspectives of indigenous peoples and local communities, at the outset of the IGC, taking place from 4-8 February.

Taking the audience back in time, Anaya said in his statement [pdf] that “the principle of state sovereignty and the right to property were fundamental building blocks of the international legal system during the classical era.” In the same era, he said, property rights theories “professed that only land used in ways sufficiently similar to European style agriculture could result in property rights to land and resources,” referring to “European colonisation.” It was thus considered that since indigenous peoples’ cultures did not improve the land “in a manner required to acquire property rights,” they did not acquire any rights to the land.

These considerations are part of the doctrine of “terra nullius” under which “land occupied only by indigenous peoples was regarded as vacant,” he said. From an indigenous peoples’ rights perspective, it is interesting to compare the notion of the public domain with the terra nullius doctrine, he said, as “the notion of the public domain led to understand that indigenous peoples’ collective way of gradually generating knowledge often does not result in rights.”

The terra nullius doctrine has been rejected as contemporary international law prohibits discrimination against indigenous peoples because of the particularities of their cultures, he added.

In 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples, which “reflects a general global consensus on indigenous peoples’ rights that is in significant part incorporated into contemporary international law,” he said.

According to Anaya, the rights indigenous peoples regained on property encompass “all forms of natural resources customarily used” by them. “The fact that indigenous peoples tend to generate knowledge by gradually building on prior knowledge, tend to generate knowledge collectively, and tend to perceive the knowledge to vest in the collective must not result in a lack of recognition of rights,” he said, adding that indigenous peoples have a right to be genuinely involved in state decision-making processes. He called for indigenous peoples to be adequately represented in IGC deliberations so that their concerns are genuinely taken into account.

Moreover, he said, “the ability to consent or not consent to the use of their genetic resources and traditional knowledge flows from indigenous peoples’ right to property and self-determination.”

Other speakers were Anil Gupta, executive vice-chair of the National Innovation Foundation in India, Tarcila Rivera Zea, founder and executive director of the Centro de Culturas Indígenas del Perú, and Godber Tumushabe, executive director of the Advocates Coalition for Development and Environment in Uganda.

Gupta, also coordinator of the Society for Research and Initiatives for Sustainable Technologies and Institutions, and the Honey Bee Network, said holders of traditional knowledge should not remain anonymous to facilitate protection, adding that the National Innovation Foundation had filed patents on behalf of indigenous peoples or communities.

Traditional knowledge, he said, can provide a wealth of applications in various areas. He also remarked that there was no fast track system for patents based on traditional knowledge at any level, national or international, referring to the fast track systems established in several countries for “green” innovations. His organisation has received some 160,000 ideas, innovations and traditional knowledge practices from over 500 districts of India, he said, and over 450 grassroots innovations and traditional practices have been filed in India and in the United States.

Rivera Zea said registration of indigenous knowledge was often costly and this should be taken into account and ways should be established so that states promote and facilitate research and registration of indigenous knowledge, which goes “much further than genetic material.” Minerals can have specific uses, such as for the pharmaceutical industry, or the dying of clothes.

Mechanisms should be established to ensure the full participation of indigenous peoples, she said, and indigenous peoples should not be restricted to the providers of genetic resources but there should be a full recognition of indigenous peoples as right holders of active principles and the genetic basis from which applications can be derived.

As an example, she said indigenous peoples have converted bitter potatoes into more than 4,000 different kinds of potatoes. “Even though this was unofficial, that does not mean that we have not contributed to the fund of knowledge of mankind,” she said.

She called for the institutionalisation of the participation of indigenous peoples in international negotiations, as is the case in working groups of the Convention of Biodiversity, the Food and Agriculture Organization of the United Nations, or the International Fund for Agricultural Development.

Indigenous peoples are not denying progress made by modern science and technology, but do not want to continue being the subject of appropriation or robbery, she said, adding “we have to defend ourselves against appropriation by third parties,” including states.

For Tumushabe, the international community lacks the boldness and the imagination to be able to achieve the desirable kind of progress that is needed. Saying that traditional knowledge shall be subject to national legislation “is one way of avoiding taking action,” he said. In the area of intellectual property of access to genetic resources, the process of translating commitments included in international instruments into national legislations has been facilitated by a number of actors, such as WIPO, he said, adding that the whole issue of IP has been pushed beyond the international instruments.

“When you go to the national level, you find that WIPO is working with patent offices trying to domesticate the TRIPS [World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights] agreement or other instruments,” he said. The WTO is also very active, he said, along with the private sector engaging funds to put IP regimes in place “because it is important,” while no such investment have been made towards the protection of traditional knowledge.

The draft instrument talks more about IP than traditional knowledge and what patents can do and what they cannot do, but there must be a way to have an instrument which focusses on the limits traditional knowledge can have on patents, he said, calling for the objectives of the instrument to be recast so that it protects the rights of traditional knowledge holders and local communities.

WIPO Voluntary Fund Almost Dry

IGC Vice-Chair Alexandra Grazioli of Switzerland called for contributions to the WIPO Voluntary Fund for Accredited Indigenous and Local Communities.

The fund, which has supported participation of indigenous and local communities since its establishment in 2005, has benefitted from different contributors, among them Australia, France, Norway, South Africa and Switzerland, she said. According to most, she added, the fund has been operated successfully in a transparent, efficient and independent way. But despite the efforts of the WIPO secretariat, the fund will run out of funds after this session of the IGC. Remaining funds can only cover two or three applicants to attend IGC 24, she said.

“This regrettable situation is a great shame,” Grazioli said, and could have the effect of harming the credibility of the IGC. The General Assembly may be asked to amend the rules of the fund in order to allow the WIPO budget to contribute to the fund under conditions, she added, calling for delegates to appeal to their capitals to remedy the situation.