Shared Indigenous Knowledge And Benefit-Sharing Needs Particular Attention, Panel Tells CBD

SHARM El-SHEIKH, Egypt — Traditional knowledge associated with genetic resources held by indigenous and local communities is often not confined to one group or one specific geographical location. Displacement whether cultural or forced, political redesigning of borders, and exchanges with other communities have all contributed to the dispersion of that knowledge. This shared knowledge poses an issue in the context of benefit-sharing of commercial benefits on inventions derived from this knowledge. A side event on the side of the biennial meeting of the UN Convention on Biological Diversity looked at how to address shared traditional knowledge.

The side event was organised by the International Intellectual Property Law and Innovation, Centre for International Governance Innovation (CIGI) on 27 November, alongside the 14th meeting of the Conference of the Parties to the Convention on Biological Diversity (CBD), and the third meeting of the Parties to the Nagoya Protocol [pdf] on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization is taking place from 13-29 November.

Oluwatobiloba Moody, post-doctoral fellow at the Center for International Governance Innovation, said shared traditional knowledge associated with genetic resources is not an exception to the rule but more the norm. Traditional knowledge is held by indigenous groups across different jurisdictions or held by separate indigenous groups in the same or separate countries, he said. He underlined the importance of the issue of shared traditional knowledge in the context of benefit-sharing.

According to Moody, monetary benefits might not be the main driver for indigenous peoples, as it is not the way indigenous peoples tend to consider benefits.

South Africa Model Traditional Knowledge Protection Regime

Margo Bagley, Asa Griggs Candler professor of law, Emory University, and senior fellow at CIGI, said South Africa has a “very interesting” traditional protection regime.

The South African regime, she explained, includes bioprospecting laws and regulations, and a new traditional knowledge collection, documentation and publication system (NIKMAS/NRS).

Although not completely operational, she said, the South African system could become a model for other countries. The system also includes a sui generis indigenous knowledge protection through the Protection, Promotion, Development, and Management of Indigenous Knowledge bill, expected to be adopted soon, according to Bagley.

She illustrated the successes of the South African regime with three examples. One of them was the rooibos case. Rooibos, which is a plant with anti-oxidant and other medicinal properties, comes from western South Africa and has been harvested and used for centuries by the Khoi and San peoples.

In 2009, she said, Public Eye, a Swiss non-governmental organisation, found that Nestlé had filed five patent applications relating to rooibos. The case led to a biopiracy uproar, she said.

Natural Justice, an African NGO, helped identify the holders of the knowledge and determined that both Khoi and San people were holders. A benefit-sharing model was established, through which benefit-sharing would be divided equally between the Khoi and the San peoples.

The benefit-sharing agreement was signed by Nestlé, she said, and since then at least two payments have been made to the communities.

However it is not the end of the story, she said, as there are currently further negotiations to create an industry-wide access and benefit-sharing agreement.

Same Knowledge, Different Rules, Protection

Jennifer Tauli-Corpuz, program coordinator at the Tebtebba Foundation, Indigenous Peoples’ International Centre for Policy Research and Education, took the Philippines as an example. She said the Philippines has a number of indigenous groups which might share the same traditional knowledge, but under different indigenous rules.

She illustrated this disparity with a contraceptive pouch used by women, worn around the waist and filled with plants. Women in different communities have different versions of this contraceptive pouch, she explained.

Some shared traditional knowledge might be spread across different countries, with different levels of legal protection for traditional knowledge, she said, adding that some countries recognise indigenous peoples, others do not. There has to be a system to address this issue, she said, if now bioprospectors will look for the country with the weakest protection to acquire the traditional knowledge.

A global mechanism would seem to be the solution of shared traditional knowledge, in particular when the protection is uneven, she said.

Gaps in Reasoning in WIPO Discussions

Preston Hardison, policy analyst for the Tulalip Tribe, said the Nagoya Protocol should be implemented but the protocol’s concept suffers from a structural issue.

Most of what indigenous peoples do is long term, while the access and benefit-sharing system is a transactional regime, he said. Indigenous peoples live a relational lifestyle, relationship with land, water, resources, which they consider as full kin, he said.

He commented on the discussions taking place at the World Intellectual Property Organization Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC). The real danger in those discussions, he said, is that there are gaps in the reasoning, in particular when it comes to the public domain. When someone goes to indigenous peoples with a contract it is essentially asking them to exchange the knowledge they have held since time immemorial at one point of time, he explained, adding that indigenous peoples often see commercial exploitation as a kind of desecration.

The IGC is also considering a potential “tiered approach” for protection of traditional knowledge, in which different protection would be given to differently graded traditional knowledge, such as sacred, secret, or widely known.

If there are to be tiers, they need to be determined nationally by indigenous peoples, and not through abstract categories drafted by IGC delegates, Hardison said.

The next session of the IGC is taking place from 10-14 December.

He mentioned the case of the wild rice manoonim, cultivated by a tribe in Canada and another one in Minnesota. They say they get the knowledge through holy dreams and conversation with the rice spirit, he added. If the wild rice disappears, they feel they are being punished for not maintaining proper relationship with the rice, he said.

In the 1970s, according to Hardison, the University of Minnesota bred the rice so it stayed on the stem, which the wild rice manoonim did not. As a consequence, a company developed around this new variety of rice, endangering the wild rice economy, he said.

Lucy Mulenkei, executive director of the Indigenous Information Network, said in Africa – in Kenya for example – a number of tribes are sharing their knowledge, in their own way. That knowledge might be shared during cultural festivals, she said.

However, African tribes have no knowledge of traditional knowledge instruments, she said, citing the African Regional Intellectual Property Organization (ARIPO) Swakopmund Protocol on Traditional Knowledge and Expressions of Folklore.

 

Image Credits: Catherine Saez