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Intellectual Property Rights Series

Biodiversity, Traditional
Knowledge and Rights of
Indigenous Peoples

Victoria Tauli-Corpuz

TWN
Third World Network

5

Biodiversity, Traditional Knowledge and
Rights of Indigenous Peoples

Victoria Tauli-Corpuz

TWN

Third World Network

Biodiversity, Traditional Knowledge and
Rights of Indigenous Peoples
is published by
Third World Network
121-S, Jaian Utama
10450 Penang, Malaysia.

© Third World Network 2003

Printed by Jutaprint
2 Solok Sungei Pinang 3, Sg. Pinang
11600 Penang, Malaysia.

ISBN: 983-2729-24-6

CONTENTS

Preface
1

Heritage and Traditional Knowledge
Interdependent whole

i

1

IPRs Regime and Traditional Knowledge
IPRs and traditional knowledge
Flaws of the IPRs regime
Concept of public domain
Concept of property
Breaking up of heritage and knowledge

6
7
11
13
14

3

The World Intellectual Property Organization
Sui generis systems
Challenges to the WIPO-IGC

16
20
21

4

WTO TRIPS Agreement
TRIPS and harmonization
Article 27.3(b) and the patenting of life
TRIPS and plant variety protection and sui generis systems

23
23
24
31

5

The Convention on Biological Diversity
National sovereignty principle
United Nations bodies

32
33
39

6

The Way Forward

41

2

5

Preface

THIS booklet is my report of the discussions, analyses and conclusions of the
“Workshop on Biodiversity, Traditional Knowledge and Rights of Indigenous
Peoples” organized by the Tebtebba Foundation in coordination with the Third
World Network and GRAIN which was held in Geneva, Switzerland, on 3-5
July 2003.

A workshop statement which has the consensus of the all the participants is still
being processed. Since it was felt that a report on this workshop is important to
share with others I summarized the main points which were discussed and de­
bated upon.
The recommendations which appear in this booklet do not have the consensus
of the participants as there are a few of the participants who decided that they
would not like to engage with bodies like the Convention on Biological Diver­
sity, the World Intellectual Property Organization, nor the World Trade Organi­
zation. However, for those who opt to engage with these bodies, the recommen­
dations which are here reflect what has been agreed upon.

The participants of the workshop were indigenous representatives from Africa,
South America, Asia, the Pacific, the Arctic and North America and represen­
tatives of international and national NGOs. A few representatives of UN agen­
cies were present as observers.
This workshop was held so that we would have a better understanding of the
state of play on how traditional knowledge and biodiversity are being addressed
by intergovernmental agencies and to see how these processes relate to discus­

sions around indigenous peoples' rights.

We shared our experiences on the ground and in engaging with multilateral
bodies and our own perspectives and analyses of the issues. On the basis of our
understanding, our own experiences and insights, we formulated this statement,
which we hope would serve as a framework to guide us in our work on safe­
guarding our heritage.
The main multilateral organizations we looked into were the World Intellectual
Property Organization (WIPO), World Trade Organization (WTO) and the Con­
vention on Biological Diversity (CBD).

We also looked at the “International Treaty on Plant Genetic Resources” of the
Food and Agriculture Organization (FAO) and United Nations bodies dealing
with indigenous peoples, particularly, the Working Group on Indigenous Popu­
lations, Working Group Elaborating on a Draft Declaration on the Rights of
Indigenous Peoples, and the Permanent Forum on Indigenous Issues.
We looked at the synergies and contradictions, gaps and limitations on how
these various bodies are addressing traditional knowledge, biodiversity and in­
digenous peoples’ rights. We shared our experiences on how we are safeguard­
ing and perpetuating biodiversity and traditional knowledge and how these ef­
forts link with our overall struggles for our rights as indigenous peoples.
We highlighted the key problems and tried to reach common views and posi­
tions on how to deal with these. Finally, we agreed on some follow-up activities
which we would undertake jointly and activities which we can carry out in our
own communities and organizations.

Victoria Tauli-Corpuz
Executive Director
Tebtebba Foundation,
Philippines

1

Heritage and
Traditional Knowledge

HERITAGE is everything that defines our distinct identities as peoples. This is
bestowed on us by our ancestors and endowed to us by nature. It includes our
socio-political, cultural and economic systems and institutions; our worldview,
belief systems, ethics and moral values; and our customary laws and norms.
It includes traditional knowledge, which is the creative production of human
thought and craftsmanship, language, cultural expressions which are created,
acquired and inspired, such as songs, dances, stories, ceremonies, symbols and
designs, poetry, artworks; scientific, agricultural, technical, and ecological
knowledge and the skills required to implement this knowledge and technolo­

gies.
Heritage includes human genetic material and ancestral human remains. It in­
cludes what we inherited from nature such as the natural features in our territo­
ries and landscapes, biodiversity which consists of plants and animals, culti­
gens, micro-organisms and the various diverse ecosystems which we have nur­
tured and sustained.
It includes our sacred sites, sites of historical significance, and burial sites. It
also includes all documentation of us on film, photographs, videotapes and au­
diotapes, scientific and ethnographic research reports, books and papers.

Interdependent whole
Our heritage cannot be separated into component parts. It should be regarded as
a single integrated, interdependent whole. We do not award different values to

different aspects of our heritage and we do not classify them into different cat­
egories such as ‘scientific’, ‘spiritual’, ‘cultural’, ‘artistic’ or ’intellectual’, nor
separate elements such as songs, stories, science, etc.

We also do not differentiate levels of protection to the different aspects of our
heritage. All aspects are equal and require equal respect, safeguarding and pro­
tection. In the same vein, we do not see the protection of our rights to our
cultures as separate from territorial rights and our right to self-determination.
Heritage and traditional knowledge are inextricably linked to our territorial and
resource rights and our cultural rights. These form an indivisible whole which
cannot be fragmented. Our responsibility is to safeguard, develop and protect
our heritage from misuse and misappropriation, so it could be passed on to
future generations.
Our claim to the right to control and manage our heritage, knowledge and
biodiversity is based on our inherent right to self-determination. The success of
our struggles to have our right to self-determination and to our territories and
resources recognized will ensure the perpetuation, safeguarding, protection and
further development of our heritage.

The dismemberment of our rights and the way our heritage is broken up,
folklorised and wrenched away from the territories and resources to which it
was intrinsically linked is a major threat to its continuing existence.

The seamless relationship of our heritage to our economic, social, cultural, civil
and political rights and the indivisibility of all these rights must be acknowl­
edged and mechanisms should be put into place to protect these rights as an
integrated whole. The indivisibility of these rights is captured in the United
Nations Draft Declaration on the Rights of Indigenous Peoples. Thus, we have
made it our priority to work towards its adoption by the UN General Assembly,
and to ensure that there are national legislations recognizing the rights of indig­
enous peoples.

2

The erosion and loss of our heritage, traditional knowledge, cultures and
biodiversity has been mainly caused by colonization where Western economic,
cultural and political systems were super-imposed over our traditional systems.
Even after colonization we still face the following problems:
•
the appropriation, alienation and degradation of our ancestral territories;
•
the denial of our territorial and resource rights;
•
discrimination and the lack of respect for cultural rights which has led to
the erosion of our cultures;
•
the incursion of so-called development projects such as big dams, min­
ing, oil and gas extraction, logging of protected areas, chemical-based and
biotechnology-driven intensive large scale agriculture, which have led to
the destruction of our ecosystems;
•
the militarization of our communities and the displacement from our terri­
tories; and
•
the imposition of neo-liberal and economic globalization policies and pro­
grams.
The best protection and defence of our biodiversity and traditional knowledge
is for us to persistently assert our right to self-determination and our rights to
our territories and resources. Self-determination means our right to freely de­
termine our political status and freely pursue our economic, social and cultural
development.

Self-determination also means that in no case may we be deprived of our own
means of subsistence. This includes our right to free and prior informed consent
and our right to say no to dams, mining, oil and gas extraction, logging,
bioprospecting and research done in our communities by external entities. It
was because our ancestors resisted colonization and we persisted in resisting
against destructive projects and programs that we were able to save the remain­
ing biodiversity in our territories.

3

We have our own customary laws, social, economic, and political systems which
define our relationships to our territories, to the natural world, to our ancestors,
the spirits and gods and goddesses, and with our neighbours. These predate the
laws and systems of the colonizers and the post-colonial nation-states and have
sustained us and our ancestors over centuries.
However, many of these were undermined and destroyed by the colonizers and
post-colonial nation-states who imposed their own systems on us. The legisla­
tions. policies and programs were deliberately put in place to dominate us and
prevent us from using our own customary laws and asserting our right to selfdetermination.
In spite of all these, however, many customary laws and practices still persist.
These include, among others, laws which pertain to the regulation, safeguard­
ing. protection and use of our heritage and knowledge, administration of jus­
tice, customary laws on land and land tenure systems, laws which govern our
relationship with Mother Earth, with our ancestors and with each other, and
systems of conflict resolution when there are disputes arising between commu­
nities or tribes. In some countries, where there are existing laws or policies
recognizing the rights of indigenous peoples, the use of some of these custom­
ary laws are recognized by government.

The dominant development model, which is undergirded by neo-liberalism and
economic globalization and which is adopted by most governments in the world
today, is highly detrimental to indigenous peoples. This model was designed by
the former colonial powers now called the Group of 8 (G8) and it is perpetuated
by institutions they control, like the World Bank, the International Monetary
Fund (IMF), and now increasingly by the WTO. Transnational corporations are
heavily influencing these institutions through direct lobbying or through gov­
ernment officials who represent their interests.

4

Regime and
2 IPRs
Traditional Knowledge

ONE key feature of the dominant development model is the creation of the
intellectual property rights (IPRs) regime, which is a system based on Western
legal and economic philosophy and theory and Western property law. This has
its own theory of human nature and believes that private incentives are needed
for people to perform labor, innovate and create wealth. It is a historically con­
structed worldview which arose during the industrial revolution to protect me­
chanical inventions. Now it is being perpetuated as natural or universal law.
The universalization of IPRs is done through the harmonization efforts of the
World Trade Organization (WTO) and the World Intellectual Property Organi­
zation (WIPO) in which they are obliging their member-states to legislate or
change their IPRs law to fit this mold.

IPRs were developed as economic or commercial property rights over various
forms of knowledge. IPRs create government sponsored monopolies over knowl­
edge, processes, products, innovations, inventions, even over naturally-occur­
ring plants, animals, human genetic material, microorganisms, and parts or com­
ponents of plants and animals, such as genes, cells, DNA sequences and bio­
logical, microbiological processes and non-biological processes. Without gov­
ernment intervention these could not be monopolized. Essentially, IPRs are
legal means used to appropriate knowledge.

The IPRs regime reduces knowledge to a commodity which can be privately
owned by an individual, legal person (e.g., corporations) who claim exclusive
rights over this. Clearly, IPRs can only emerge from a society where individual

private property rights are held inviolable. The preamble of the Trade-Related
Aspects of Intellectual Property Rights (TRIPS) Agreement of the WTO ex­
plicitly says that “intellectual property rights are private rights”.
The IPRs regime which includes IPRs treaties and conventions (e.g., the Paris
Convention for the Protection of Industrial Property (1883), Berne Convention
for the Protection of Literary and Artistic Works (1886), UPOV - International
Union for the Protection of New Varieties of Plants, Patent Cooperation Treaty,
etc.) are administered by WIPO.
The WTO established the minimum standards of IPRs protection under its TRIPS
Agreement and this has extended IPRs to living organisms and life-processes.
This agreement obligates the WTO members to change their IPRs laws to con­
form to these standards. WIPO is helping to strengthen and harmonise IPRs
laws of its member states many of which are the same members of WTO.

IPRs and traditional knowledge
We, indigenous peoples, have our own sources of natural law and we consider
the values propagated by the individual property-based IPRs regime as values
that we do not agree with.

Our indigenous cosmologies and worldviews regard knowledge as gifts or heri­
tage from nature, from the creators and great spirits, and from the ancestors.
Knowledge is created collectively, accretionally, and inter-generationally and
not just by individuals.
Indigenous innovation is not just motivated by the desire for profit or for com­
mercialization. Indigenous innovation is the result of the deep interrelationship
between us and our territories and resources, between us and our ancestors and
our gods and goddesses, and among ourselves.

IPRs are based on the protection of individual property rights and these are
given as exclusive rights whereas traditional knowledge is held by individuals,
6

clans, tribes, nations and different independent communities and the use and
sharing of this is guided and regulated by complex collective systems and cus­
tomary laws and norms.

Even if individuals hold the knowledge, their right to use it is collectively de­
termined. They cannot use this in an unconstrained and free manner because
they are bound by the laws and customs of their people.
Traditional knowledge cannot be alienated from the community by transferring
ownership to another person or corporation because that knowledge is part of
the distinct and collective identity and has meaning in the context of that com­
munity, not outside it. Consent to use, display, depict or exercise, is therefore
temporary, and given only on the basis of trust that recipients respect and up­
hold the conditions and customary laws that are attached to particular aspects
of the heritage.
Traditional knowledge is to be kept in perpetuity to be safeguarded, developed
and passed from one generation to the next. The transfer of this knowledge is a
collective responsibility and in most cases it is transmitted orally. In some cases
these are codified in texts. IPRs, on the other hand, whether in the form of
patents, copyrights, trademarks, industrial design, geographical indications, trade
secrets, plant breeders rights, database protection, etc., grant protection for a
limited period of time.

IPRs emerged from a particular worldview about human nature, knowledge
and innovation, and these are designed to protect the rights of individuals and
corporations and the economic interests of highly developed countries. We,
therefore, cannot see what advantages it can offer to us, indigenous peoples.

Flaws of the IPRs regime
The fundamental flaw of existing national and international IPRs regimes is
their failure to acknowledge and recognize the customary laws and systems
developed and used by us to protect, safeguard and perpetuate our heritage and
7

traditional knowledge. This is discriminator}' and racist because they ignore
other systems which do not conform to their own economic and legal frame­
work.

We take issue with the universalization of the Western I PR regime which is
being carried out mainly by institutions like the WIPO, the WTO and with strong
support by the World Bank and IMF, through their loan conditionalities. The
WIPO and the WTO are the main bodies acting as protectors of intellectual
property throughout the world.

The WIPO is basically the collector of intellectual property-related rents for
multinational corporations and for the rich industrialized countries. 90 percent
of its budget does not come from member governments but from the patent
revenues paid by patent applicants under the Patent Cooperation Treaty (PCT).
With the combination of the WTO’s power to impose sanctions on its members
if they fail to adhere to the Agreements they signed on to, and the WIPO’s
resources which are used for so-called technical assistance and capacity build­
ing programs to ensure that its members adopt and effectively implement the
IPRs regimes, the universalization of the IPRs regime is taking place at a very
fast pace.
Other United Nations bodies which are tasked to ensure that economic, social,
cultural, civil and political rights are protected, do not have such powers to
enforce compliance or adequate resources to do technical assistance programs.
In many cases we also cannot see the political will to go against the powerful
rich member-states. Thus, the balance that we are looking for which can ensure
that our indigenous systems and customary laws will get a fair chance to even
continue to exist is difficult to see.

The dominant view being promoted is that IPRs forms of protection over tradi­
tional knowledge may provide protection to traditional knowledge and can be a
basis for recognizing the contributions of indigenous peoples. This recognition

8

can then make it possible for us to share the benefits which will be generated
from the use of our knowledge. This view is fraught with dangers.
First, it fails to acknowledge that we have our customary systems to safeguard
and our knowledge to protect.
Secondly, it pushes us to accept a framework which was constructed, in the first
place, not to protect our collective rights over our heritage and knowledge. It
gives an illusion that the problems of injustice, discrimination, inequity which
we are confronted with in relation to how our heritage is used and the continu­
ing erosion of our traditional knowledge can be solved by adopting existing or
new forms of IPRs protection.

Thirdly, it does not show the high social costs which come about with the grant­
ing of exclusive IPRs to individuals and legal persons. The social costs range
from the undermining and destruction of indigenous peoples cosmovisions,
cultures and heritage, theft or biopiracy of plant, animal, and human genetic
materials and the knowledge around these, the increasing difficulty for millions
of poor people to have the access to traditional medicines and treatments, and
the increasing monopolization of control over knowledge and technologies by
fewer individuals, countries and corporations.
We are convinced that intellectual property rights cannot and will not adequately
protect traditional knowledge, much less our ancestral heritage. IPRs remain
incapable of protecting traditional knowledge and rights which are generally,
collectively held and protected by customary laws.
In contrast to the Western legal system of IPRs, our traditional knowledge can­
not be alienated, surrendered or sold on an unconditional basis. Our traditional
knowledge is a collective right and the responsibility for its use and manage­
ment in accordance with indigenous laws and traditions is borne by the com­
munity as a whole.

9

We find it ironical that the IPRs regime, which is an alien and problematic
construct for us, is now being proposed as a solution for the protection and
safeguarding of our heritage. We discern a similar pattern between how our
lands and resources were taken away from us and how our traditional knowl­
edge is being privatized and monopolized by IPRs holders.
When colonizers and governments imposed alien land laws on our ancestors,
most of them refused to adhere to the requirements for cadastral land surveys
and land registration and titling as individual private property. The main reason
was that these land laws ignored our complex customary land tenure systems
which included individual, clan, and communal ownership and rights were
more custodial and usufructuary.
Our ancestors foresaw that if they use the colonizer’s laws our ancestral territo­
ries will be dismembered and lost. The imposition of intellectual property rights
laws on us would have the same effect. IPRs will fragment our traditional knowl­
edge into pieces to be monopolized and sold until nothing remains of it.

We can ensure the viability and preservation, safeguarding and protection of
our heritage through continuous use, by transmitting it to the next generation
and through sustained revitalization. We ask that the international community
and national governments recognize and support our ways of safeguarding and
protecting our heritage and traditional knowledge. Thus, we should not suc­
cumb to the proposal to use IPRs to protect our traditional knowledge even with
the attraction of benefit-sharing.
It is within this context that we reject the use of the term ‘intellectual property’
to refer to our traditional knowledge. We realize that the term cannot be generi­
cally used to refer to knowledge and heritage because the use of the term as­
sumes an acceptance of the ideology and context behind its use.

Biopiracy has been taking place and is still happening in many of our commu­
nities. This includes, among others, the collection and patenting of our tradi­

10

tional knowledge and genetic materials found in our bodies, medicinal plants,
seeds, animals and microorganisms found in our territories.

Our knowledge around plants, animals, microorganisms, ecosystem manage­
ment, among others, is essential in conserving and using biodiversity, ensuring
food security, meeting our health needs, the continuing exercise of our sacred
rituals and ceremonies and assertion of our distinct identities.
Some of our movable heritage, cultural expressions, plant, animal, microorgan­
ism and human genetic materials are now found in public and private gene
banks, research and health institutes, museums, botanical parks, and in the labo­
ratories and databases of universities and corporations.

We believe that the misuse of the knowledge we share can cause severe physi­
cal or spiritual harm to the custodians of the knowledge or to their entire tribe
or nation. This is because they have not ensured that this knowledge is properly
used. Thus, misappropriation or misuse is not just a violation of the rights of the
knowledge holders but could also have serious implications for their continu­
ing survival as distinct peoples.

Concept of public domain
The evolution of the concept of public domain is also very much linked with the
evolution of intellectual property rights. Public domain refers to that which is
not claimed as private property or that which is commonly known or disclosed.
What is categorized to be in the public domain can be accessed and freely used
by anybody.

Generally, public also refers to the State. That which is not privatized is owned
by the State. Much of our knowledge and our plant, animal and human genetic
resources, cultural expressions which are now considered to be in the public
domain were acquired from us without our free, prior and informed consent.

11

Traditional knowledge is not in the public domain. While much of it is known
because we openly share this knowledge, it is still held by individuals, clans,
tribes, nations and different independent communities. The use and sharing of
this knowledge is guided and regulated by complex collective systems, custom­
ary laws and norms.
While we share some of our knowledge and genetic materials, we reiterate, this
does not mean that we put these in the public domain for unfettered use by
anybody. We share these with those who are trusted, those who will use these
for the common good and not for their own selfish ends, and those who know
their roles and responsibilities in using the knowledge and resources.

We have developed nuanced systems and mechanisms which enable us to safe­
guard and protect our knowledge and to define how, when and to whom it can
be shared with. The public domain concept has not taken these into consider­
ation. There are many significant studies already done which document these
systems and these show clearly the inappropriateness of applying the concept
of public domain to the knowledge and heritage of indigenous peoples.
It is on this basis that we are calling for the protection of our heritage which is
considered to be in the ‘public domain’ and this protection will be mainly done
through our customary laws which the broader society, the governments and
the international community should respect.

Our cultural expressions and symbols and even our ancestral remains which
were taken without our consent and are put in the museums and our traditional
seeds and plants which are in genebanks and laboratories, and even our human
genetic materials which are also in laboratories, cannot be considered to be in
the public domain.
Thus, the assumption that our heritage is in the public domain and therefore
cannot be protected by IPRs and can be appropriated and used by anybody is
fallacious to us. First, our consent has not been acquired when many of these

12

knowledge and resources were taken away from us and put in the so-called
public domain. Secondly, we are not asking that our knowledge be protected by
the IPR system. We would like to protect these using our own systems.

Concept of Property
This also explains why we are not comfortable with the use of the term ‘prop­
erty’, especially in relation to knowledge and resources. The Western concept
of property and the associated rights of ownership does not have an exact equiva­
lent in indigenous customary laws and tradition.
We do have various concepts of ownership which could be individual or collec­
tive ownership by the clan, tribe or nation but this is not similar to the sense of
property in the western system. We conceive of ourselves as custodians or care­
takers of knowledge, resources and territory and not as absolute owners.
Knowledge, lands and resources are bestowed to us for our collective and some­
times, exclusive, use, but we have to fulfill our obligations as caretakers of
these. Being custodians, we have obligations to link the past, present and future
and to ensure that our heritage passes on from generation to generation.

We would rather say we have a relationship of reciprocity with the land, water,
the air, Mother Earth and Father Sky, with all other living and non-living things,
with the spirits, gods, and goddesses, with our ancestors and the future genera­
tions, and with each other.
Our rights to our knowledge, lands and resources are not permanent and the
enjoyment of these rights are contingent on how we fulfill our obligations and
how we perform our roles as stewards. We cannot claim property rights over
life and life forms which is what Article 27.3.b of the TRIPS Agreement is all
about. We cannot claim property rights over knowledge. While we would like
to perpetuate our knowledge and heritage to future generations, this is not through
a system of private property rights.

13

We have to constantly renew our relationships. Some of us are identified with
our totem relatives, such as the salmon, turtle, eagle, the corn, among others.
Many of us have the concept and practice of usufructuary rights over lands and
resources. Our rituals and ceremonies are renewal rites to express our deep
kinship and relationship with our totem relatives, our seeds, our sacred sites,
our waters and lands, and with each other. These renewal rites and ceremonies
are one of the effective ways of protecting, safeguarding and perpetuating our
knowledge and heritage.

Breaking up of heritage and knowledge
Our ways of safeguarding and protecting our heritage and knowledge are clearly
different from the IPRs route of the WIPO and the WTO. The main area of
divergence is between the commercial approach taken by the IPRs proposals
and the rights-based approach which is the framework used by us.

We look at our heritage from a comprehensive moral and human rights perspec­
tive. Our right to our heritage which includes, among others, traditional knowl­
edge and our genetic materials, cannot be delinked from the bundle of civil,
political, economic, social and cultural rights which we are entitled to enjoy.
All these rights flow seamlessly into each other. Thus, the desegregation of our
rights as if these can be treated as separate issues and the breaking up of our
heritage to be handled by different international intergovernmental bodies is
creating multiple problems for us.
Those among us who are participating with the WIPO and the CBD have asked,
time and again, that the link between traditional knowledge, biodiversity and
genetic resources with territorial and resource rights and the right to self-deter­
mination be acknowledged and established.

However, the WIPO maintains that its mandate is to promote and protect intel­
lectual property rights and not human rights. The CBD says its mandate is the
conservation and sustainable use, and equitable sharing of biological diversity.
14

Therefore, human rights issues such as land rights and self-determination should
be brought to the UN Commission on Human Rights.

It is clear to us that these bodies have inherent limitations in addressing more
holistically our issues. However, some of us still engage with these bodies to
ensure that our concerns can still be presented and considered by the govern­
ments.

We also see the need to persist in challenging these bodies to adapt the rightsbased approach and not just the commercial approach. Furthermore, we are
challenging the WIPO and the WTO to explore what they can do as individual
institutions or jointly with other UN bodies to be more holistic, developmentoriented, and rights-based in the way they address these issues.

15

he World Intellectual
3 TProperty
Organization

THE World Intellectual Property Organization (WIPO) Intergovernmental Com­
mittee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowl­
edge and Folklore was created to explore the use of IPRs regime to protect our
traditional knowledge and our genetic materials.

We recognize that the committee has given a higher visibility to indigenous
peoples’ issues and a greater concern over traditional knowledge, traditional
cultural expressions and genetic resources. However, we still maintain that WIPO
is the inappropriate forum to develop any policy recommendation which will
safeguard our heritage.

It has inherent limitations because of its mandate and because the philosophy
behind the IPRs regimes it promotes and administers, conflicts with indigenous
peoples’ worldviews and values on knowledge and heritage. Besides, WIPO, as
mentioned earlier, is one of the main organizations, outside of the WTO, which
is promoting harmonization and stronger IP protection.
We are concerned over the way WIPO has appropriated and limited the use of
the term ‘protection’ to IP protection and how it has distinguished this from the
concepts of “safeguarding” and “preservation”. For us protection also means
safeguarding and preserving as well as ensuring that our heritage is perpetuated
for the use of future generations. This includes preventing the misappropria­
tion, misuse and commercialization of our heritage without the free, prior in­
formed consent of the custodians of the culture, knowledge and biodiversity. It
also means controlling or regulating the use of this.

The non-IPRs route of safeguarding and protecting indigenous heritage, par­
ticularly knowledge and genetic resources, has to be acknowledged and explic­
itly supported by WIPO. The non-IPRs route is through the recognition of our
rights to our territories and resources and to self-determination. It is also through
the recognition of our customary laws and systems.

If WIPO uses the term “protection”, it should always qualify it by referring to it
as IPRs protection so that the wider definition of protection as used by indig­
enous peoples and others will not be eclipsed by WIPO’s narrow definition.

We do not concede that the framework and definition of the Western legal and
economic system of property, in general, and intellectual property, in particular,
should be the only definitions and concepts which should be accepted and used.
Indigenous peoples have their own philosophies, customary laws, values and
norms around relationships to land, resources and knowledge, which have been
used for centuries up to the present, which should be acknowledged as valid
and relevant.
WIPO should promote the protection of genetic resources and traditional knowl­
edge based on the customary laws of the indigenous peoples themselves. Dis­
putes over the acquisition and use etc., of indigenous peoples’ heritage should
be resolved according to the customary laws of the indigenous peoples con­
cerned.

(a)

We therefore recommend that much more extensive dialogues and deeper
review of the problems around the concept of IPRs and associated con­
cepts with it such as public domain, property, etc., especially as these re­
late to indigenous peoples, be undertaken. If WIPO chooses not to do this,
we urge other relevant international organizations to do it. It is important
to stress, however, that this should be done in collaboration with indig­
enous peoples, so that there will be genuine dialogue and our views, expe­
riences and analysis will be faithfully reflected and considered.
17

(b)

As stated earlier, the western construct of public domain is related with
disclosed and undisclosed knowledge and the proposals for disclosure and
development of databases. The defensive protection proposal of the WIPO
IGC says that we have to document and record our knowledge and put
these in databases so that we can claim prior art and therefore prevent
others from claiming IPRs over these. If we do not document these then
there is no way patent examiners can know that these are already known.
Again, we have a problem with this.

(c)

Some of us are presently documenting our knowledge and making com­
munity registers of our resources. However, these efforts are mainly in­
tended to record what we have for our own selves and for the use of future
generations. These are to be kept in the communities and not necessarily
for public disclosure. In situations where our knowledge and resources
have been stolen and we have to resort to the use of courts to reclaim
these, such documentation can be used.

(d)

Most of us, however, have not done documentation or codification for
various reasons:
• Many of us, still basically have oral traditions. Knowledge is passed
from generation to generation through oral transmission. Some of our el­
ders express concern over codifying or documenting these because they
fear this can cause the disappearance of traditional knowledge. The cer­
emonies, rituals, story telling, songs and other processes we use to orally
transmit these might not be done anymore because we already have re­
corded what needs to be transmitted. Our elders also say that even if we
document these if we do not use the knowledge and enable the youth to
learn these by doing, these can disappear very fast.
• There is fear that if traditional knowledge is documented then it would
be easier for others to appropriate genetic resources and such knowledge.
We already have many cases and evidences to show how researchers who
get the idea of how indigenous peoples use a certain plant, then collect

18

this plant and with their modern technologies which can isolate the active
principles or insert a gene into these, they can claim patent rights over
these.

• Documentation entails a lot of money and the use of very modem tech­
nologies which most of us do not have nor have any access to.
(e)

There is lack of good faith and honesty on the part of countries who ap­
prove patent applications of researchers, institutions, or corporations on
our resources and knowledge. Some countries can lower their standards
of patentability and they can patent what they call “discoveries”. A person
can claim she/he discovered the use of the plant or a gene sequence and on
this basis can get a patent. Many of these so-called “discoveries” are al­
ready known by indigenous peoples even if we did not register or docu­
ment these in writing. These countries do not even adhere to what they
had once established as patentability criteria when their economic inter­
ests are at stake.

We find the proposal for an international, centralized international database on
traditional knowledge dangerous. As we said earlier, databases if done and con­
trolled by indigenous peoples in their own communities can be acceptable.
However, getting this knowledge and storing it in a place which indigenous
peoples cannot have any control nor access to, will further diminish any possi­
bility for us to have a say on how this knowledge should be used.
There are many bad patents granted over medicinal and food plants which we
have been using for thousands of years. The patent applications for these have
not acknowledged the prior knowledge of and the use by indigenous peoples of
these resources. In some cases, even if researchers knew of this, patent laws in
some countries do not recognize certain forms of disclosure as prior art.
The requirement for written documentation to adhere to the international clas­
sification standards set in the WIPO International Patent Classification (IPC)
System so that the data can be used by patent examiners, is something beyond
19

our resources and capacities. This is yet another reason why we have problems
with disclosure proposals.

The burden of proof to show that these are used by indigenous peoples should
lie with the patent applicants, not on indigenous peoples. Why should we be
burdened with having to document and register our knowledge in the way WIPO
wants so that we can defend these from being misappropriated and misused?
If there are ongoing processes where traditional knowledge are being docu­
mented. it is of crucial importance that no such documentation be carried out
without the relevant people's prior and informed consent. It follows from the
fundamental right to self-determination that it is up to us to decide whether or
not to document our knowledge and heritage. If we do it, it should be done
according to the respective needs and objectives set by our own people.

Should documentation be done by outsiders, and the documentor fails to pro­
vide evidence that free and prior informed consent has been obtained, the docu­
mentation should be erased or relumed, if the custodians of this knowledge so
demand.

Sui Generis systems
The IP sui generis (unique, or of its own kind) proposal to protect traditional
knowledge also poses problems for us.

A suigeneris system within the IPRs framework is still IPRs. By definition, sui
generis regimes should be adapted to the object to be protected and to the con­
text where it should be applied. Suggesting a single model of such a regime,
defeats the very concept of sui generis.

We see our customary laws as unique and of their own kind. These are laws
which are appropriate for our own context and worldviews. Governments do
not have to create any new sui generis laws to protect our traditional knowl­
edge. We reiterate that what governments and the international community can
20

do is to recognize our customary laws and ways of safeguarding, preserving and
protecting traditional knowledge as viable laws and systems. While we are
convinced that IPRs cannot adequately protect our traditional knowledge and
genetic resources we are also aware that some indigenous individuals use IPRs
to protect their individual cultural creations like songs, arts, handicrafts, etc.
The few indigenous communities who have opted to use IPRs are exercising
their right to self-determination and we respect this. There are rare cases where
IPRs can, if utilized correctly by the rightful holders, to a certain extent serve to
protect indigenous genetic resources, knowledge and biodiversity.

Since the WIPO-IGC has gone a long way in trying to explore how traditional
knowledge, traditional cultural expressions and genetic resources can be pro­
tected by IPRs we would like to challenge this Committee, if it chooses to
continue to exist, to get engaged in rectifying what is wrong with the IPRssystem.

Challenges to the WIPO-IGC
In particular, the WIPO-IGC can do the following:

(a)

Make a study of the extent of biopiracy which has taken place and which
is still continuing in our territories. On the basis of this, come up with
recommendations on how remedies can be taken to redress the injustices
caused to indigenous peoples. There should be mechanisms set up to repa­
triate illegally and even legally appropriated genetic materials from us.

(b)

Explore together with other UN bodies, like the Commission on Human
Rights, the Permanent Forum on Indigenous Issues, etc., the creation of
effective global, regional or national mechanisms for the repatriation of
genetic resources, cultural expressions, traditional knowledge which were
illegally taken away from us and put in the public domain, public or pri­
vate gene banks, private collections, corporations, university laboratories,
museums, etc.

<?(- uo
11M3G I

(c)

Review the standards for patentability of WIPO member states which al­
low the unwarranted patenting of indigenous knowledge, genetic resources
and other life-forms and come up with recommendations on how to rec­
tify these.

(d)

Cooperate with other UN bodies and with indigenous peoples and local
communities to start the work towards the creation of an international
legal frame-work for the protection of indigenous knowledge and genetic
resources.

(e)

Facilitate our participation, not only in the WIPO-IGC but also in other
relevant WIPO committees or working groups, if we so choose, and other­
wise ensure that our concerns are being taken into account in all its work.
The proposal for the creation of a voluntary fund for indigenous peoples
should not only be for our participation in the WIPO-IGC but in other
relevant WIPO bodies.

(f)

As previously stated, IPRs cannot adequately address our concerns with
regard to traditional knowledge and genetic resources. Therefore, it is para­
mount that the 1GC process does not pre-empt the discussions on these
issues in other processes, such as the in the Working Group on the Decla­
ration on the Rights of Indigenous Peoples and in the Convention on Bio­
logical Diversity. An adequate protection for indigenous knowledge and
genetic resources requires that these issues be dealt with from a human
rights and sustainable development perspective.

(g)

We propose that the Permanent Forum on Indigenous Issues convenes vari­
ous UN bodies and specialized agencies, including the WIPO and the WTO,
to discuss the issues of indigenous heritage, traditional knowledge,
biodiversity and indigenous peoples’ rights. The work done by the WIPOIGC can be an important input in this process, so we urge WIPO to ex­
plore with the Permanent Forum the possibility of holding such a process
and provide full support for this.

22

4 WTO TRIPS Agreement
WE also looked at the WTO, particularly the Trade-Related Aspects of the
Intellectual Property Rights Agreement (TRIPS). The particular issues which
we were concerned with in relation to the WTO and TRIPS are the following:

TRIPS and harmonization
We stated earlier that we are very much concerned with the role of the WTO in
harmonizing IPRs. TRIPS establishes minimum standards, which in reality are
very high standards for countries to adopt in the protection and enforcement of
almost all the most important forms of IPRs.
These minimum standards are derived from the legislation of highly industrial­
ized countries, which means that TRIPS imposes their forms and levels of pro­
tection on all WTO members. While there are some flexibilities allowed, the
general aim is to have all WTO members accept the Western IPRs regime.

As previously stated, we are concerned about the imposition and harmoniza­
tion of TRIPS because of its impacts in undermining our values and worldview
on the sacredness of life, and our customary laws on knowledge and biological
and cultural diversity.
We reiterate that harmonizing legal systems to fit within a single construct which
promotes economic, commercial and trade interests of the rich industrialized
countries and corporations is discriminatory and racist. This will make our

struggles to have our rights recognized and promoted in the national and global
arena even more difficult.

As a result of our struggles some countries have legislated laws recognizing our
rights. In the international arena there is the ILO Convention 169 and the Draft
Declaration on the Rights of Indigenous Peoples which is presently being dis­
cussed at the Commission on Human Rights. Existing national laws and poli­
cies on indigenous peoples’ rights are in danger of being considered trade
distortive because they may not be consistent with the TRIPS Agreement and
other WTO Agreements.
The enforcement mechanism of the WTO is the most powerful one, so far,
because non-compliance with the agreements could result into trade sanctions
through its dispute settlement system. National laws are now being amended to
comply with TRIPS standards and obligations.

Before the TRIPS Agreement, most countries do not allow patents for pharma­
ceutical compounds or compositions and also restrict patents for biotechno­
logical processes and their products. Now, the scenario is fast changing because
countries are now being pressured to adhere to their WTO obligations to har­
monize their laws to WTO standards.

Article 27.3(b) and the patenting of life
Article 27.3(b) of TRIPS is the key provision which has opened the floodgates
for patenting of life. This Article states: "Members may also exclude from pat­
entability.. b) plants and animals other than micro-organisms, and essentially
biological processes for the production ofplants and animals other than nonbiological and microbiological processes. However, Members shall provide for
the protection ofplant varieties either by patents or by an effective sui generis
system or by any combination thereof. The provisions of this paragraph shall
be reviewedfour years after the date ofentry into force of the WTO Agreement.
In the past, patents were restricted to the protection of industrial and mechani­

24

cal processes and products. Now, with Article 27.3(b) patents are allowed on
life-forms and life-processes It does not prohibit WTO members from provid­
ing patent protection for plants and animals and requires them to provide patent
protection of micro-organisms, non-biological and microbiological processes.

We agree with many of the views raised by indigenous peoples in various fo­
rums, by NGOs and even by developing country governments in their submis­
sions to the WTO.
We remain steadfast in our demand for a ban on all patenting of life forms. We
reiterate what indigenous peoples said in the statement entitled “No to Patent­
ing of Life” (1999), which states “Nobody can own what exists in nature, ex­
cept nature, itself. Humankind is part ofMother Nature. We have created noth­
ing and so we can in no way claim to be owners of what does not belong to
us... ”
Patenting and commodification of life is against our fundamental values and
beliefs regarding the sacredness of life and life-processes and the reciprocal
relationship which we maintain with all creation. The patenting of human ge­
netic materials is a violation of the dignity of human beings and their basic
human rights.
The distinction made between plants and animals and micro-organisms, and
between biological and non-biological and microbiological processes is mean­
ingless to us because these are all life-forms and life-creating processes which
are sacred and which cannot become the subject of individual property rights
and ownership.

Mechanical processes and inventions like tools, appliances and machines, which
were protected by patents, are totally different from biological and life pro­
cesses and products. Living things can only be created by nature and nobody
can claim that they invented or created a living organism like they invented a
mechanical tool or a machine.

25

Even with genetic engineering, what the genetic engineer does is to introduce a
gene into an organism. When a gene is introduced to the self-organizing, self­
replicating living organism, this organism will take over and does its own
processes. So there is no invention in the way that mechanical products are
invented. Thus, even the basic patentability criteria of novelty and inventive
step can never be claimed for living things.
Patenting of life facilitates biopiracy (misappropriation of genetic resources
and related traditional knowledge) because third parties (corporations, research­
ers, governments) can make patent claims on genetic materials of plants, ani­
mals or microorganisms, based on the knowledge of indigenous peoples and
farmers on the uses of these for medicinal, food or agricultural purposes.

Many legal and scientific questions are raised on the validity of patents over
life-forms. In spite of these, however, we see on a daily basis, patents being
granted over micro-organism, plants, and animals, the species of an entire food
crop, gene sequences and even cell lines of human beings.
Some indigenous peoples (e.g., the Hagahai of Papua New Guinea, the Guaymi
of Panama, among others) had their cell lines collected and patented without
their free and prior, informed consent. We are appalled at the proliferation of
bad patents and the way some countries can just violate their own standards of
patentability.

There are hundreds of examples of the patents granted on plant, animal and
human genetic materials, processing techniques, known and used by indigenous
peoples all over the world. Some of the more known ones, are the hoodia plant
of the San peoples in the Kalahari Desert, ayahuasca, sangre de drago, quinoa,
maca, among others, of the indigenous peoples of Central and South America,
neem, turmeric, basmati rice, jasmine rice, bitter melon, kava, nona, etc., from
Asia and the Pacific. There are many of these examples which have yet to be
exposed and included in the increasing list of knowledge and materials which
have been pirated from us.

26

The few cases where patents were revoked on grounds that they were invalid as
they were based on traditional knowledge and therefore did not satisfy the cri­
teria of novelty and inventiveness (neem and turmeric) only happened because
of massive protests from farmers, indigenous peoples, NGOs and even govern­
ments of countries where these were taken from. The expenses and energies
required to have these revoked were tremendous.
We do not think that this should be the route we should take every time there are
cases of biopiracy, misappropriation and misuse. There is something clearly
wrong within the patent system which has to be corrected and the ones who
should bear the primary responsibility in correcting these should be those who
created and who are using it.

The experience of the San peoples of Southern Africa with the patenting of the
hoodia plant which was and is still used by them as a thirst and appetite sup­
pressant, was shared with us. Their hoodia plant was registered in 1996 as an
international family of patents codenamed “P57” by the South African Council
for Scientific and Industrial Research (CSIR). The rights to further research.
trial and commercially exploit the patent were licensed to Phytopharm in the
United Kingdom and Pfizer Inc. in the USA.

We were appalled by the claim of the head of Phytopharm in the United King­
dom, that to the best of his knowledge, “the San tribe that had provided this
knowledge was unfortunately extinct”. This statement implied that no form of
appropriate benefit sharing can be negotiated. This was clearly a case of a bad
patent. The San peoples could have challenged it but they decided to negotiate
a benefit-sharing agreement with the CSIR which was concluded and signed on
24 March 2003. We respect the decision made by the San, and we definitely
learned a lot of lessons from this experience which we can share with our own
communities.
In the review of TRIPS we looked into some of the proposals from groups of
countries on this. One was from Brazil, Cuba, Ecuador, India, Peru, Thailand
and Venezuela which proposed that a requirement for disclosure of origin of
27

biological material and traditional knowledge related to an invention be incor­
porated into the TRIPS Agreement as a means of preventing biopiracy and to
harmonize TRIPS with CBD. For an effective and strong mechanism for dis­
closure the proposal requires that this be mandatory (all countries will imple­
ment it as a requirement for a patent grant), linked to patentability, to prior and
informed consent and to benefit sharing.
While this proposal may prevent biopiracy because of the strict requirements
pertaining to the disclosure of origin, we are still concerned for reasons we
have cited earlier on in the section on disclosure and databases. This position
also does not challenge the patentability of traditional knowledge and life-forms
which is our basic position with regard to the review of TRIPS.
Nevertheless, we take note that this proposal has raised some issues which we
have discussed earlier in this statement:

First it acknowledged “that databases may be inappropriatefor reasons ofloss
of confidentiality of the traditional knowledge, which is not in the public do­
main. ”
Secondly, it states that if there are bad patents “pursuing a legal remedy under
international laws and in multiple jurisdictions is complicated and expensive,
and may not be economicallyfeasible for many aggrieved countries. Moreover,
the peculiar nature of the patent laws in countries which recognize prior art
outside their country only in the form of written and published information,
make legal challenges formidable and cumbersome”. These statements rein­
force our arguments presented earlier.

The European Union and Switzerland also had a proposal which have indicated
their willingness to negotiate on disclosure of origin. Flowever, they refuse to
make it a mandatory requirement nor link it to benefit sharing. They even limit
the concept of origin to just an indication of a geographical area (EU) or just a
“source” (Switzerland).

28

Another position in both these papers is that the WTO is not the appropriate
body to discuss traditional knowledge. The W1P0-IGC is dealing with this and
unless they get a final report from the WIPO on their recommendations it is not
advisable for WTO to address the issue.

The Africa Group made a comprehensive proposal for the review of TRIPS and
this comes in the form of a Decision which WTO members can adopt. We ap­
preciate their proposal in their Joint Communication “..that Article 27.3(b) be
revised to prohibit patents on plants, animals, micro-organisms, essentially bio­
logical processes for the production ofplants or animals.. ”
They also reiterated their proposal in the WTO Seattle Ministerial Meeting,
that
the distinction drawn in Article 27.3(b) for micro-organisms, and for
non-biological and microbiological processes for the production ofplants or
animals, is artificial and unwarranted, and should be removedfrom the TRIPS
Agreement, so that exception from patentability in paragraph 3(b) covers plants,
animals, and micro-organisms, as well as essentially biological processes and
non-biological and micro-biological processes for the production ofplants and
animals. ’’ This position echoes the same points we made in the “No Patenting
of Life-Forms Statement” we referred to earlier. We fully support this African
position.

We also appreciate the list they made on the “Draft Decision on Traditional
Knowledge” which identified rights that shall be protected relating to tradi­
tional knowledge. This stated that any local community or traditional practitio­
ner should be accorded the following:
i)
respect for their will and decision on whether or not to commercialise
their knowledge
ii) respect and honour of any sanctity they attach to their knowledge
iii) give prior and informed consent for any access and any intended use of
their knowledge
iv) full remuneration of their knowledge

29

v)

prevent third parties from using, offering for sale, selling, exporting or
importing, their knowledge and any article or product in which their knowl­
edge is input, unless all requirements under this Decision have been met.

However, we are seriously concerned over their proposal to allow the WTO to
deal with the issue of traditional knowledge. The WTO TRIPS Agreement, just
like the WIPO, promotes and supports Western IPRs regimes which we have
already extensively critiqued earlier. Granting that it will accept this decision, it
will still distort traditional knowledge to fit in within their IPRs framework and
in the end we might find ourselves in even a worse situation than where we are
now.

Another concern is paragraph 2(a) in the Draft Decision which says "Tradi­
tional knowledge is a category of intellectual property rights hereby recog­
nized and protected in accordance with this Decision. Members shall protect
and enforce rights in respect of traditional knowledge in accordance with the
provisions of this Decision. Members may adopt sui generis systems for more
extensive protection. " Again, we say that traditional knowledge is an integral
aspect of our heritage which cannot be adequately protected by IPRs.

We request the African group of countries to stand firm in their position to get
the TRIPS Agreement to ban patenting of life-forms and to explore other inter­
governmental mechanisms which can address the protection and safeguarding
of traditional knowledge more appropriately. We urge other governments to
support the demand for patenting of life-forms and to get this language in the
TRIPS review.
We do not agree that the WTO nor the WIPO-IGC are the right bodies to deal
with traditional knowledge mainly because these bodies are the protectors of
IPRs and we have already stated that IPRs cannot protect traditional knowl­

edge.
We propose that the United Nations Permanent Forum on Indigenous Issues
(which is under the UN Economic and Social Council) together with the UN
30

Working Group on Indigenous Populations (which is under the Commission on
Human Rights), to bring together governments, UN agencies and other multi­
lateral bodies, indigenous peoples and local communities, to a technical meet­
ing which can explore which UN and other multilateral bodies can jointly put
their efforts in addressing indigenous heritage and traditional knowledge. The
Convention on Biological Diversity, the WTO and the WIPO should be invited
to this technical meeting as these are the main bodies which have been dealing
with these issues.

TRIPS and plant variety protection and sui generis systems
Plant variety protection (PVP) was developed to protect the interests of com­
mercial plant breeders and not indigenous peoples and farmers. UPOV 1991 is
one form of a PVP protection which has high standards of protection for plant
breeders that can further facilitate the misappropriation of germplasm and tra­
ditional varieties bred and nurtured by indigenous peoples and farmers.

Article 27.3(b) requires member states to protect plant varieties through pat­
ents or through the creation of a sui generis (i.e., unique or of its own kind)
system or any combination of the two.
Developed country governments are pushing developing countries to adopt
UPOV 1991 and to consider this as a sui generis system. Again, this proposal
for a sui generis system still is within the IPR framework and does not detract
from the patenting of life approach.

Convention on
5 TBhe
iological Diversity

MANY indigenous peoples have been actively engaged in the Ad-hoc Working
Group on Article 8(j) and related provisions of the Convention on Biological
Diversity (CBD) and recently, in the ad-hoc Working Group on Access and
Benefit Sharing. The CBD is mandated to promote the conservation of biologi­
cal diversity, sustainable use of its components, and the equitable sharing of
benefits arising out of the utilisation of genetic resources.

In relation to traditional knowledge, Article 8 (Jn-situ Conservation) section j
of the CBD says - each Contracting Party shall: Subject to its national legisla­
tion, respect, preserve and maintain knowledge, innovations and practices of
indigenous and local communities embodying traditional lifestyles relevantfor
the conservation and sustainable use of biological diversity and promote their
wider application with the approval and involvement of the holders of such
knowledge, innovations, and practices and encourage the equitable sharing of
benefits arising from the utilization of such knowledge, innovations and prac­
tices.
Biodiversity has become such an important concern within the past 20 years
not only because it is fast disappearing but also because of the growing recogni­
tion of its increased economic value and potential for the biotechnology indus­
try. Bioprospecting has become the new extractive activity just like prospecting
for minerals in the early days of colonization. The biotechnology industry or
life industry and most governments see profits in biodiversity. In the past
biodiversity was regarded as the common heritage of humankind and therefore

anybody can have free access to it.

National sovereignty principle
When the CBD was adopted in 1992, it changed the way biological resources
are regarded - from “a common heritage of humankind” to a principle of “na­
tional sovereignty”. Article 15.1. states, “Recognizing the sovereign rights of
States over their natural resources, the authority to determine access to genetic
resources rests with national governments and is subject to national legisla­
tion. ”

Biodiversity is now regarded as a resource upon which terms of ownership,
control, access, and benefit-sharing will be subjected to negotiations between
the Contracting Parties and even non-parties to the CBD.
We do appreciate that this principle was forwarded by developing country gov­
ernments to defend national interests against foreign developed country gov­
ernments and transnational corporations. Countries can now have the right to
regulate access to foreigners over their biological resources and knowledge as­
sociated with it and also to determine benefit-sharing arrangements.

However, we do not agree that it is just States who have the authority to deter­
mine access to genetic resources. If these resources are found in our territories
then we should have the primary authority to determine how these biodiversity
will be conserved and used. The need to obtain prior and informed consent
before access to genetic resources is allowed only pertains to the State not to
indigenous peoples nor local communities. This is a serious shortcoming of the
CBD. Fortunately, due to the struggles of indigenous peoples in many countries
some access and benefit sharing national laws do acknowledge that the prior
informed consent of communities have to be obtained.
We should actively engage with States to remind them that their objectives for
biodiversity conservation and equitable sharing of benefits cannot be achieved
if they do not recognize our rights over our territories and resources. They should
not look at this demand as a threat to their national sovereignty but as a signifi­
cant contribution in enriching the cultural and biological diversity within the
33

country and the whole world. It is also an acknowledgement that most coun­
tries are pluricultural and pluriethnic and this diversity should be seen as an
asset not a liability.

With Article 8(j) and associated articles (e.g., 10(c). 17(2), 18(4)), CBD does
have the potential to protect our resource rights and our rights to our traditional
knowledge and heritage. However there are elements in some of its provisions
which can restrict this potential. For instance Article 8(j) does not explicitly
recognize our rights to our knowledge and does not link this with our territorial
and resource rights. Furthermore, it has the qualifier which says “subject to
national legislation". What if there are no existing national legislations which
recognize indigenous peoples’ rights? Most countries, who have indigenous
peoples, do not yet have such legislation.
Most of our struggles are still around getting the States to recognize our territo­
rial and resource rights and our right to self-determination. Even if there are
national laws on biodiversity, if our rights to our lands and resources remain
unrecognized and unprotected, our capacity to conserve our biodiversity will
be compromised significantly.

In a way CBD affirms the effectiveness of IPRs in the conservation of biologi­
cal diversity. Article 16(2) says that access to and transfer of technologies should
be consistent with the “adequate and effective protection of intellectual prop­
erty rights.” There is no acknowledgement in the Convention that the IPRs
regime fails to recognise or protect our rights or interests in relation to biodiversity
conservation and use.
However, Article 16.5 says that the Parties should cooperate to ensure that pat­
ents and other IPRs are supportive of and do not run counter to the objective of
the CBD. Somehow, this raised doubts whether IPRs support CBD objectives
and acknowledged that there can be conflicts. It is silent on the existence of
indigenous and customary laws regulating the use and access of our heritage
and knowledge.

34

However, in spite of these reservations some of us are actively engaged in the
CBD because we would like to strengthen its potentials to conserve the
biodiversity which we have nurtured and sustained in our territories and to pro­
mote the recognition of our rights to our knowledge and resources. Some of us
have even been involved in the formulation of national biodiversity laws.

We noted that the Seventh Conference of Parties (COP) of the CBD is going to
take place in February of 2004. This is expected to address the following issues
in relation to traditional knowledge, access and benefit sharing and intellectual
property rights:
•
Development of an action plan on capacity-building with respect to ac­
cess and benefit sharing.
•
A review of legislation and procedures for securing the prior informed
consent of indigenous peoples and local communities.
•
Development of international guidelines for the equitable sharing of the
benefits arising from the utilisation of traditional knowledge.
•
The role of sui generis systems and customary law for the protection of
traditional knowledge and within access and benefit sharing arrangements.
Before this COP, there will be the second meeting of the Ad-hoc Working Group
on Access to Genetic Resources and Benefit Sharing and the third meeting of
the Ad-hoc Working Group on Article 8(j) and Related Provisions to be held in
December 2003. We should try as best as we can to formulate positions on the
issues to be tackled.
For Article 8(j), we proposed that governments and indigenous peoples start
contemplating the creation of a protocol on this. This could be called Tradi­
tional Knowledge Protocol ofthe CBD. Since the proposal of developing coun­
tries for the creation of an international legal instrument to protect traditional
knowledge has been tabled in the WIPO and the WTO, this will be within the
framework of IPRs. We would not like traditional knowledge to be dealt with
from an I PR framework. Since the CBD is not created to be a body to conserve
biodiversity it can develop a protocol on traditional knowledge on the basis of
Article 8(j) and related provisions like 10(c).
35

We also noted that the World Summit on Sustainable Development, which was
held in Johannesburg in September 2002, called for the establishment of an
international regime on Access and Benefit Sharing and the CBD was tasked to
take the leading role in this. This will, no doubt, be taken up at the COP 7. The
debate might focus on potential elements and legal standing of such a regime,
the role of the Bonn Guidelines on Access and Benefit-Sharing, the role of the
WIPO, and the relationship of this with the review of the TRIPS Agreement.
We should be active in monitoring and influencing the developments on this
proposal.
On access and benefit sharing we should be clear on our strategies. For those of
us who want to keep our heritage out of the market we should see what mecha­
nisms and capacities we should develop to achieve this. Some of us who opted
for this strategy are now more involved in strengthening the local organizations
so that they can assert their right not to allow access to their genetic resources
and traditional knowledge. This position has been taken because of increasing
biopiracy taking place in our communities where instead of us getting benefits
we even have to spend a lot of resources and energy to fight against these.

We have seen experiences where indigenous peoples who entered into some
kind of a partnership with biotechnology or pharmaceutical firms, ending up as
the gatherers of the raw materials for the corporations. A very unequal kind of
relationship has been established between the bioprospectors and the custodi­
ans of biodiversity and traditional knowledge.
For those us who decided to be engaged with the market we are strengthening
and building mechanisms so that we will get the maximum benefit from the
exploitation and use of our biodiversity and knowledge. The experience of the
San peoples is one way in which indigenous peoples managed to get an agree­

ment on benefit sharing.

Whether we are engaged with the market or not, we are united to fight against
the patenting of life.

36

We have identified several problems with access and benefit-sharing (ABS)
proposals. It is difficult to design ABS policies and laws for the following rea­
sons:
•
It is hard to identify who “owns” biodiversity and traditional knowledge.
Genetic resources and knowledge on the use of these cut across bound­
aries whether they are countries, provinces, or municipalities. Benefit­
sharing arrangements become highly impractical because many countries
and peoples would claim ownership over the same resource.
•
Conflicts between national interest and indigenous peoples’ assertion of
their right to have control over their resources are always in the picture.
•
Even the implementation of free and prior informed consent has been met
with many difficulties because there are different standards and criteria
used by governments and indigenous peoples and local communities.
Governments, corporations, or researchers may claim they obtained FPIC
from the communities, but the communities will claim otherwise.
•
The potential of benefit-sharing schemes to create conflicts and divisions
between communities and within communities is high especially if ben­
efits are just couched in terms of money.

We propose that diverse benefit-sharing schemes be developed. The proposed
item to be discussed in COP on benefit-sharing which is the development of an
action plan on capacity-building with respect to access and benefit-sharing is a
good start. In addition we propose that the Secretariat should make a survey of
experiences on access and benefit-sharing, both positive and negative, and les­
sons can be learned from these which can be shared with indigenous peoples
and local communities.
We observed that while much attention has been given to Article 8(j), the re­
lated provision Article 10(c) has not been given much attention. This provides
that State Parties shall “protect and encourage customary use of biological
resources in accordance with traditional cultural practices that are compatible
with conservation or sustainable use requirements. " It would be worthwhile to
explore further how to use this Article to strengthen customary laws and sys­
tems and traditional knowledge on the conservation and use of biodiversity.
37

A major focus of the ongoing review of TRIPS has been on the “Review of
Article 27.3(b) of the TRIPS Agreement, and the Relationship Between the
TRIPS Agreement and the Convention on Biological Diversity and the Protec­
tion of Traditional Knowledge and Folklore”. The proposals from the various
groups of countries which were cited earlier were actually on this topic. Since
27.3(b) allows for the patenting of life-forms, which includes plant, animal,
micro-organisms, which are all part of biodiversity, it encroaches on the terrain
ofCBD.
Those who have analysed this issue, say that TRIPS does not support the CBD
objectives because the criteria for patentability do not include prior, informed
consent or mutually agreed terms for benefit-sharing. The CBD recognizes na­
tional sovereignty over genetic resources while the WTO is basically involved
in deregulating national laws which are seen to be trade-distortive because they
discriminate against foreign countries.
So while the CBD encourages countries to create their biodiversity laws which
will regulate the access to their biodiversity and define how benefits can be
shared on the use of biodiversity, the WTO is changing national laws to give
more rights to transnational corporations (TNCs) and foreign investors and to
allow for patenting of life. The operations of TNCs and the liberalization of
investments which has allowed the entry of mining companies, loggers, etc.
into our territories is causing the rapid erosion of biodiversity and traditional
knowledge.

For us, it is clear that there is a conflict between the objectives of the WTO and
the CBD. In spite of the limitations of the CBD we would like to see that its
objectives are given more priority than those of the WTO. We support the vari­
ous statements of developing country governments and NGOs which have
stressed time and again that the WTO Agreements should not supercede the
CBD. In the same manner, we would like to see that the Fluman Rights bodies
having more influence than the trade bodies like the WTO or financial institu­
tions like the World Bank and the IMF.

38

United Nations bodies
The majority of us who are active in the global arena, have put much of our
efforts in the UN bodies dealing mainly with our issues. These are the Working
Group on Indigenous Populations, the Working Group to elaborate on a Draft
Declaration on Indigenous Peoples, and the UN Permanent Forum on Indig­
enous Issues. Some of us are also involved with the Organization of American
States (OAS) which is also drafting a declaration on the rights of indigenous
peoples.

The Draft Declaration has been a centrepiece for many of our efforts because
we believe that it is crucial that the UN adopts a Universal Declaration on the
Rights of Indigenous Peoples. What we have up to now is a draft which is under
negotiation by UN-Member States of the Commission on Human Rights in the
Working Group on this.

We are actively participating in this Working Group because we want to ensure
that this comes up with a declaration which is similar or even better than the
existing Draft which was adopted by the Subcommission on the Prevention of
Discrimination and Protection of Minorities in 1993. To us this declaration rep­
resents the indivisibility of our civil, political, economic, social and cultural
rights.
We note that in paragraph 29 of this Draft the term intellectual property was
used. We do not agree that the term “intellectual property’’ or “intellectual prop­
erty rights” should be used in any draft on indigenous peoples rights because of
the reasons we extensively discussed earlier.
Aside from these bodies, the UN also has appointed a Special Rapporteur who
did a Study on the Protection of the Heritage ofIndigenous People. This study
has been finished and a final report was submitted to the Subcommission and is
found in UN Ecosoc Document E/CN.4/Sub.2/ 1995/26.
This report contained in its Annex the Revised Text of the Principles and Guide­
lines for the Protection of the Heritage of Indigenous People. This report rec­
39

ommended that the General Assembly may adopt a Declaration of Principles
and Guidelines on the Heritage of Indigenous Peoples in 1996. It further recom­
mended that a UN technical meeting to propose modalities for the cooperation
of relevant UN bodies and specialized agencies in protecting the heritage of
indigenous peoples be convened. These recommendations have not been acted
upon yet.
The second recommendation is in line with what we proposed earlier. The dif­
ference is that we are requesting that the UN Permanent Forum on Indigenous
Issues be the body to convene this technical meeting. One of the mandates of
the Permanent Forum is to coordinate various UN bodies and specialized agen­
cies so that there will be synergies on how they are addressing indigenous is­
sues. Thus, it is the most appropriate body to do this task. This meeting should
ensure the effective participation of indigenous peoples.
The creation of a final draft on a Declaration of Principles and Guidelines for
the Protection of the Heritage of Indigenous Peoples, can be one output of this
technical meeting.

We will present the results of this workshop at the 21 st session of the UN Work­
ing Group on Indigenous Populations and get the support of the experts and the
secretariat to help implement some of the recommendations we have. In par­
ticular, we would like them to pursue the recommendations of the Special Rap­
porteur on Indigenous Peoples’ Heritage in coordination with the Permanent
Forum and to do studies on the impact of globalization on indigenous peoples,
particularly the TRIPS agreement.

40

6 The Way Forward
MUCH more needs to be done to strengthen further our capacities to safeguard,
protect, and develop our heritage, traditional knowledge and our biodiversity.
We propose that this report be used as a discussion piece by indigenous peoples.

The views and proposals presented here can be discussed further and sugges­
tions for improvements or new recommendations and insights can be forwarded
to us.
•

We agree to organise ourselves into an “Indigenous Peoples Working Group
on Heritage, Traditional Knowledge and Biodiversity” and our task is to
pursue further the recommendations set forth in this Statement together
with other indigenous peoples and support NGOs and experts.

•

We will create an e-mail listserve among ourselves which can include
those who are interested in actively pursuing discussions and sharing ex­
periences and developments taking place in the communities up to the
international level. If we generate resources we may have a simple news­
letter which can be disseminated widely.
We will become active in the campaign against patenting of life-forms and
we will cooperate with other peoples’ organizations, farmers groups, sci­
entists, NGOs, etc., who are part of this campaign.

We will develop popular education and awareness-raising materials on
these issues, have them translated into Spanish, and encourage others to

translate in their own languages.

We will hold meetings among ourselves, the frequency at which will be
determined by available resources.

We will continue to engage the active support of our NGO partners in all
these endeavours and also the experts whom we invited to participate in

this workshop.

42

BIODIVERSITY. TRADITIONAL KNOWLEDGE AND RIGHTS OF
INDIGENOUS PEOPLES
This booklet is a report of the discussions, analyses and conclusions of a “Workshop
on Biodiversity. Traditional Knowledge and Rights of Indigenous Peoples” organized
by the Tebtebba Foundation in coordination with TWN and GRAIN, held in Geneva,
Switzerland, on 3-5 July 2003.
Since a workshop statement with the consensus of all the participants is still being
processed, the recommendations in this booklet reflect only the views of the indig­
enous representatives in the workshop who are engaging with some processes of bod­
ies like the Convention on Biological Diversity (CBD), the World Intellectual Property
Organization, and the UN Commission on Sustainable Development and, to a limited
extent, the World Trade Organization.

Apart from trying to capture the wealth of experiences of the indigenous peoples of
Africa, South America. Asia, the Pacific, the Arctic and North America in safeguard­
ing and perpetuating biodiversity and traditional knowledge, the booklet also attempts
to show how these efforts are linked with their overall straggles for their rights as
indigenous peoples.
It also highlights their shared experiences on the ground in dealing with issues such as
biopiracy, access and benefit sharing and traditional knowledge. It presents their in­
sights on proposals and programs of action from the CBD, the “International Treaty on
Plant Genetic Resources” of the Food and Agriculture Organization and UN bodies
dealing with indigenous peoples.
It concludes with common views and positions by most of the indigenous participants
on how to deal with key problems, and follow-up and joint activities which they can
carry out in their communities and organizations.
VICTORIA TAULI-CORPUZ is the Director of Tebtebba Foundation - an in­
digenous peoples' international NGO based in Baguio City in the Philippines which
undertakes research on the impact ofglobalization on indigenous peoples. Victoria
is an indigenous woman, a Kankana-ey Jgorot from the Philippines. She has writ­
ten many articles on indigenous women and on globalization as well as on the
environment and development issues ofindigenous peoples. She is the convenor of
the Asian Indigenous Women’s Network. She is the Chairperson-Rapporteur of the
UN Voluntary Fund for Indigenous Populations. She is also the indigenous, and
gender advisor of TWN.

TWN INTELLECTUAL PROPERTY RIGHTS SERIES
is a series of papers published by the Third World Network to provide
a critical analysis of intellectual property rights protection from a Third
World perspective. A particular focus is given to the WTO Agreement on
Trade-Related Aspects of Intellectual property Rights (TRIPS) and its
implications tor developing countries.

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