Indigenous Panel At WIPO Asks For International Instrument Compliant With Recognised Rights

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A panel addressing negotiators this week at the World Intellectual Property Organization asserted the property rights of Indigenous Peoples and Local Communities over traditional knowledge and genetic resources and called on delegates to draft an international instrument compliant with their internationally recognised rights.

A panel of Indigenous and local communities took place on the first day of the 26th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). This session, taking place from 3-7 February, is focussed on the issue of genetic resources (GRs).

The three panellists were: Prof. James Anaya, United Nations Special Rapporteur on the Rights of Indigenous People, Hema Broad, director of Nga Kaiawhina a Wai 262, and Marcial Arias Garcia, policy advisor for “Fundacion para la Promocion del Conocimiento Tradicional”.

Anaya focused his intervention on rights that Indigenous Peoples have over genetic resources according to human rights instruments, with a particular emphasis on the UN Declaration on the Rights of Indigenous People (UNDRIP). He mainly focussed on three core principles: the right to self-determination, the right over land and natural resources, and the principle of equality (non-discrimination).

With regards to the IGC negotiations, Anaya emphasised the relevance of the draft document, while warning that it should not lead to an instrument “that goes below or undermines” the existing standards. Control of access to GRs and benefit-sharing for utilization must benefit the owners, he said.

While acknowledging the relevance of the disclosure of source or origin requirement in patent registration, he said he considers that it should not only refer to the state of origin but also to Indigenous owners where relevant.

Anaya criticised a proposal to exclude from disclosure requirement traditional knowledge in the public domain, and considered that databases or similar mechanisms might be useful but may not always be culturally appropriate, for instance where customary laws forbid disclosure to non-community members.

Broad dedicated her intervention to explaining the particular relationship that Indigenous Peoples have with their traditional knowledge. She also talked about the WAI262 complaint before the Waitangi Tribunal (New Zealand) lodged by six tribes aiming to recover their rights over lands and knowledge. She advocated for control over their property, partnership in decision-making, and meaningful participation before New Zealand institutions.

Garcia stressed the importance of prior informed consent to access and use of GR and TK according to Article 3 of UNDRIP on self-determination of Indigenous Peoples. He pointed out that all states in the room have consented to at least one international instrument protecting the rights of Indigenous Peoples.

This prior and informed consent has to be granted through the traditional representative structures of Indigenous Peoples, according to their own protocols and without pressure from transnational corporations, he said. The main obstacles concerning IP rights of Indigenous Peoples are public domain and the issue of novelty in patents. He also advocated that TK put in the public domain without consent must be returned to their original owners.

Maëli ASTRUC is an intern at Intellectual Property Watch. She has a Master’s Degree in International Law from Aix-en-Provence University and a LL.M from Ottawa University. During her studies, she developed a high interest in intellectual property issues in particular related to agriculture and traditional knowledge.

Maëli Astruc may be reached at info@ip-watch.ch.

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