4.3. Indigenous peoples, responses to bioprospecting

MARCUS COLCHESTER

Indigenous peoples now face an intensifying challenge to the integrity of their societies. There is increasing pressure from outsiders to document, utilize and commercialize biodiversity and related indigenous knowledge. Some of this exploitation is being justified in the name of the conservation of indigenous culture. It is also being justified in the wider interests of humankind. The main threats that indigenous societies face from the wave of commercialization are:

o The expropriation of knowledge and resources
o The debasement of knowledge through the violation of sacredness and loss of identity
o The commodification of knowledge, biotechnologies and natural resources.

Indigenous peoples are now seeking new means of asserting their rights over knowledge and biotechnologies as part of a parcel of demands for the right to self-determination. The threats they see posed by the commercialization of their heritage are not confined to questions of intellectual property. The wider concern is to retain control of their territories, a struggle which has existed throughout history, but was intensified with devastating results with the expansion of colonial enterprises.

A historical perspective

It was immediately apparent to indigenous peoples that the invading societies held completely different views on their relationship to the land. Yet, encroaching Northern concepts of land ownership were hard to resist. Through a mixture of motives - some malign, some benign, but all largely misconceived - many indigenous peoples were accorded Northern-style titles to land. In many cases the results have been devastating: many communities discovered that the recognition of indigenous ownership rights to land was little more than a licence to parcel up, commodity and sell their lands and resources. The result was the fragmentation of indigenous territories and societies, and the wholesale alienation of land to outsiders. Outside forces were primarily responsible for this catastrophe, but internal division within indigenous societies were readily exploited. Individuals' shortsightedness, cash interest and personal gain all played a role in the break up of indigenous communities.

Many indigenous peoples concluded that indigenous and Northern concepts of land ownership were irreconcilable. A common statement among indigenous peoples up to the 1960s and 1970s was, 'We do not own the land, the land owns us'. However, in the ensuing years there was a more pragmatic acceptance that some kind of legal validation of indigenous land rights was necessary to secure their societies against the force of the market. In many countries, such as Colombia and Brazil, a conscious strategy was adopted to secure indigenous rights within the arena of the state.

Three concepts have been crucial to indigenous peoples in defining their relationship to land in Northern legal terms. The first is collective ownership as opposed to the individual titles favoured by the North. The second is the assertion of rights to 'territories' not to 'land', by which indigenous peoples assert their right to the whole ecosystem in which they live, including surface and subsurface resources, and not just the 'dirt' on which they dwell and plant crops. The third concept is 'inalienability' by which they mean not just that the land cannot be taken over by outsiders, but that indigenous peoples are one with the land and cannot be separated from their own territories. With these crucial modifications to Northern notions of land ownership, indigenous peoples feel better able to defend themselves against the pressures of the market in which they are increasingly involved.

However, even where these concepts are recognized in law and respected, indigenous peoples find that they are not automatically insured against exploitation. 'Inalienability' can be circumvented by a number of means. Imprecisions in the law about which collectivity owns land and resources may favour the interests of a few at the expense of the wider group. For instance, indigenous societies can lease their lands to the state, which then leases them back to an elite intent on commercializing resources for their own benefit.

There are two main lessons in all this. The first is that the overhasty application of Northern legal concepts of ownership to indigenous commons systems can do more harm than good, which often leads to the process of commodification of resources and the breakup of society. The second is that resistance to outside pressures depends ultimately on the unity and coherence of the peoples themselves and is not something that can be provided through external laws. Where indigenous societies are internally divided, 'ownership' titles may hasten the process of alienation.

Strategies for securing indigenous control

Indigenous peoples have made a number of statements demanding control of their knowledge and biotechnologies. The Charter of the Indigenous Tribal Peoples of the Tropical Forests set out in Malaysia in 1992, and the Maatatua Declaration of Indigenous Peoples articulated in 1993, demand the recognition of the rights of indigenous peoples as the exclusive owners of their traditional knowledge.

International law is in the process of responding to such demands. The 1993 draft of the proposed UN Declaration on the Rights of Indigenous Peoples states that indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. It also reaffirms that they have the right to special measures to control, develop and protect their sciences, technologies and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literature, designs and visual and performing arts.

However, in some areas, such as South and South-east Asia, many indigenous people have been much more cautious about asserting their demands in such terms. Echoing indigenous anxieties about the impositions of inappropriate forms of land ownership and as a result of their long experience with the loss of control of their seed stocks to multinational companies spurred by the Green Revolution, they have expressed concern that the assertion of legal ownership of traditional knowledge may hasten rather than delay the commodification of their knowledge and natural resources. Such groups view the whole notion of intellectual property rights as a sophisticated form of theft.

Divergent as these two strategies appear, they both aim to protect indigenous peoples from exploitation by commercial interests.

Some kind of legal protection of indigenous traditional knowledge seems warranted, but until the legal framework can incorporate the concepts of collective ownership, territory and inalienability, the fear is that overhasty prescriptions may backfire on indigenous peoples in the same way that individual land titling has. Legal measures, beyond those of standard Northern property rights regimes, that exist or that have been suggested for securing indigenous knowledge include the following (described further in Chapter 6.1):

o existing controls over indigenous knowledge: e.g. confidentiality, secrecy

o direct control of natural resources: e.g. territorial and land rights, exclusive rights to resources

o political control over access and use: e.g. rights of control, management and self-government; 'discovery rights'

o new rights over indigenous knowledge: e.g. Model Provisions on Folklore (UNESCO/WlPO); recognized and/or registered community ownership

o options to limit the power of commercial enterprises: e.g. prohibition on the patenting of life forms; assertion and/or expansion of Farmers' Rights; codes of conduct and licensing of prospectors; model agreements between prospectors and the local people; licence of right to prohibit monopolization.

Outstanding dilemmas

The many dilemmas that indigenous peoples face in the assertion of their rights to maintain control over their traditional knowledge are discussed in Chapter 4.1. Some of the most thorny relate to the wide sharing of knowledge amongst these groups and to determining which indigenous institution should be the legal entity to hold and negotiate the use of the knowledge. It may be argued that in such circumstances indigenous peoples are better defended by the existing uncertainty than by the creation of new ambiguous legal mechanisms which would allow outsiders to sign contracts with false indigenous representatives. In my view, none of the proposals put forward so far, by non-indigenous and indigenous people alike, offer convincing means of overcoming these problems. Some of the proposals may even create serious new problems. In particular, there is an uncomfortable feeling about proposals to compensate indigenous peoples for the use of their knowledge through trustee arrangements not under full indigenous control, such as those relying on the good offices of state institutions or mechanisms such as Farmers' Rights (see p. 165).

Most indigenous groups are demanding the vesting of rights of ownership and control with the indigenous peoples and communities themselves. The main concern here is that the provision of inappropriate rights to negotiate contracts may accelerate the process of commodification. The introduction of sui generis legislation results in a trade-off between protecting indigenous knowledge and biotechnology from being monopolised by commercial interests and facilitating the commodification of indigenous knowledge, albeit in a less exploitative manner.

One of the problems highlighted by indigenous peoples is the risk of uniform legal solutions being imposed on very diverse local social and political realities. The needs of peasant communities struggling to retain control of their seedstock may differ in important ways from indigenous communities trying to prevent the commercialization of sacred herb-lore, and will differ again from other groups trying to assert some kind of copyright over traditional designs produced for the tourist market. Uniform national legislation and, worse still, inter-governmentally imposed international laws (such as under GATT) may pose serious problems to indigenous communities.

It is in the nature of knowledge that it can be shared and transmitted between individuals and generations. It is thus replicable in a way that land and territory are not. A legal equivalent to 'inalienability' applied to knowledge may thus be a contradiction in terms. If this is so, the break up and commodification of indigenous knowledge may he an unavoidable consequence of indigenous peoples entering the global market, and legal defence may be able to achieve little more than mitigate some of the worst abuses. It seems obvious that no single legal option will deal with the huge range of problems thrown up by this meeting of worlds. The aim should be to ensure that proposed solutions are mutually reinforcing and not contradictory.