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Toward Traditional Resource Rights for Indigenous Peoples and Local Communities Darrell A

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Toward Traditional Resource Rights for Indigenous Peoples and Local Communities Darrell A Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities Darrell A. Posey and Graham Dutfield INTERNATIONAL DEVELOPMENT RESEARCH CENTRE Ottawa • Cairo • Dakar • Johannesburg • Montevideo • Nairobi • New Delhi • Singapore Published by the International Development Research Centre PO Box 8500, Ottawa, ON, Canada K1G 3H9 © International Development Research Centre 1996 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, or otherwise, without the prior permission of the International Development Research Centre. The views expressed in this publication are those of the authors and do not necessarily represent those of the International Development Research Centre. Mention of proprietary names does not constitute endorsement of the product and is given only for information. IDRC BOOKS endeavours to produce environmentally friendly publications. All paper used is recycled as well as recyclable. All inks and coating are vegetable-based products. Contents Preface Acknowledgments Introduction Chapter 1: Who visits communities, what are they seeking, and why? Chapter 2 : What happens to traditional knowledge and resources? Chapter 3: Who benefits from traditional resources? Chapter 4: Will the community be informed? Chapter 5: What right do communities have to say “yes” or “no” to commercialization? Chapter 6: How can a community take legal action? Chapter 7: What are contracts and covenants? Chapter 8: Are intellectual property rights useful? Chapter 9: Can communities develop their own system for protecting traditional resource rights? Chapter 10: Are legally binding international agreements useful? Chapter 11: How can communities use “soft law” and nonbinding international agreements? Chapter 12: Are nongovernmental, nonlegal instruments useful? Chapter 13: Why are funds and funding guidelines important? Chapter 14: What creative strategies and unique solutions have been developed? Chapter 15 Toward protection, compensation, and community development Appendices Glossary Acronyms and abbreviations References Resource guide List of boxes Preface The Working Group on Intellectual Property Rights was established in 1990 by the Global Coalition for Bio-Cultural Diversity, whose mission was to to unite indigenous peoples, scientific organizations, and environmental groups to implement a forceful strategy for the use of traditional knowledge, involvement of local peoples in conservation and development strategies, and implementation of alternative, people-centred conservation models. With the generous support of the World Wide Fund for Nature International, funds were acquired by the working group to establish a mailing list and a database of publications and people interested in intellectual property rights (IPR) and to hold a number of seminars for indigenous peoples on this subject. The seminars were aimed at alerting indigenous peoples to the relevance and urgency of IPR issues in the context of two major global negotiation processes — the United Nations Conference on the Environment and Development (UNCED), or Earth Summit (Rio de Janeiro, 1992), and the General Agreement on Tariffs and Trade (GATT). Another purpose of the seminars was to listen to the concerns of indigenous communities so as to orient the IPR debate toward their needs, expectations, and practical problems. During the Earth Summit, the Global Coalition organized the Earth Parliament as the principal venue for indigenous and traditional peoples. This forum brought together indigenous leaders from over 80 countries to discuss issues of mutual concern, including IPR. Since the Earth Summit, dozens of conferences, seminars, and workshops have been held with indigenous peoples to discuss the evolving debate over IPR. These meetings include the ones held for 4 consecutive years by the United Nations Working Group on Indigenous Peoples in Geneva, Switzerland, as well as the United Nations Conference on Human Rights, held in Vienna, Austria, in 1993. This book embodies these efforts and the input of many people over a considerable period of time. It is organized around a series of questions that we believe might emerge in a community when a visitor arrives to collect information or cultural or biogenetic materials. These questions would be the same whether the community was an indigenous settlement in the Amazon or a village in rural England. Each chapter begins with a summary of the main issues it addresses and ends with options and suggested actions. The terminology used here is a mixture of scientific, legal, economic, and political jargon — not always easily understood and even more difficult to translate. Yet, the synthesis necessary to develop the sui generis view of TRR bound us to acquaint the reader with as many of these terms as possible. Words and terms defined in the glossary appear in heavy italics where they are first mentioned. The book concludes with some warnings and suggested actions for local communities. These are intended to help guide communities through the basic questions that they should be asking when confronting those interested in their knowledge, natural resources, or biogenetic materials. As the legal instruments used to invoke IPR are inadequate to protect the cultural, scientific, and intellectual resources of indigenous peoples, the IPR issue has outgrown its name. The term traditional resource rights (TRR) has emerged to define the many “bundles of rights” that relate to protection, compensation, and conservation. The aim in this book then is to outline the nature of these bundles and suggest how these rights can be made accessible to local communities. In 1994, the Working Group on Intellectual Property Rights changed its name to the Working Group on Traditional Resource Rights in response to the advice, suggestions, criticisms, and, most importantly, invaluable materials and resources provided by over 450 participants. This book likewise reflects the input of many people over this long process. Darrell A. Posey Graham Dutfield December 1995 Acknowledgments We thank Ernst Josef Fittkau, director of the Zoologische Staatssammlung in Munich, who kindly provided office space in 1989 and 1990, during which time a fellowship from the Alexander von Humboldt Stiftung made it possible to start the first Working Group on Intellectual Property Rights. During that period, four devoted researchers — Ulrike Hagen- Sautier, Christiane Lambert-Dobler, Sybille Nahr, and Andreas Zeidler — and their assistants helped develop the broad intellectual underpinnings for the concept of intellectual property rights (IPR) and traditional resource rights (TRR). We also thank Chris Elliot of the World Wide Fund for Nature (WWF) International, who had the foresight to recognize the importance of IPR and conserving biodiversity and who secured the first funds for the working group. His colleague, Michael Pimbert, likewise generously supported these efforts and provided many useful insights, ideas, criticism, and encouragement at critical times. The Heinz Foundation, through a grant to the University of Pittsburgh’s Center for Latin American Studies, provided D.A. Posey with a year’s research time to work on IPR issues as they relate to indigenous peoples of Latin America. This handbook has benefited from this research, as it has from a consultancy with the International Union for the Conservation of Nature (IUCN) on the importance of IPR in the Convention on Biological Diversity vis-à-vis indigenous and traditional communities. We are grateful to Jeffrey McNeely and Caroline Martinet for this opportunity. The Institute of Social and Cultural Anthropology (ISCA) of the University of Oxford generously provided office space for the Working Group on Traditional Resource Rights during the preparation of this handbook. We are grateful to Isabella Birkin and to colleagues at ISCA for their support and interest in this project, especially Peter Rivière and John Davis. We also thank John Muddiman and Michael Freeden of the Oxford Centre for the Environment, Ethics and Society, as well as Dennis Trevelyan, principal of Mansfield College, for their support. This handbook owes its existence, above all, to the hard work and the intellectual contributions of a considerable number of individuals, nongovernmental organizations, and people’s organizations. Some sections of the book were improved significantly as a result of the expert contributions of Kristina Plenderleith, Sarah Laird, and Tom Griffiths, as well as Gernot Brodnig and Eugenio da Costa e Silva. Casper Henderson provided editorial assistance. The learning process that we needed to go through during the project was enriched by several pioneering individuals and organizations who contributed through discussions, papers, articles, and books and by organizing conferences and workshops. We owe a debt of gratitude to: Julian Berger (United Nations Centre for Human Rights), who provided facilities for workshops for the United Nations Working Group on Indigenous Populations; Stephen Brush and the participants of the Intellectual Property Rights and Indigenous Knowledge Conference at Lake Tahoe, California, in October 1993; Valerio Grefa, who organized the meeting sponsored by Coordinadora de Organizaciones Indigenas de la Cuenca Amazónica on intellectual property rights and biodiversity in Santa Cruz, Bolivia, in October 1994; the IUCN Task Force
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