Bioprospecting and Access to Indigenous Flora: Policy Implications of Contested Ways of 'Knowing' and 'Owning'

Author Seini, Monica Michelle

Published 2005

Thesis Type Thesis (PhD Doctorate)

School School of Science

DOI https://doi.org/10.25904/1912/3310

Downloaded from http://hdl.handle.net/10072/366804

Griffith Research Online https://research-repository.griffith.edu.au

Bioprospecting and Access to Indigenous Flora: Policy Implications of Contested Ways of ‘Knowing’ and ‘Owning’

Monica Michelle Seini BSc (Hons)

School of Science, Griffith University

Submitted in Fulfilment of the Requirements of the Degree of Doctor of Philosophy

2003

ACKNOWLEDGEMENTS

Having completed this thesis, I would now like to thank some of those that have survived it with me.

Firstly I would like to thank my supervisors Professor David Burch and Dr Richard Hindmarsh. Many thanks to both of you for your patience and for sharing with me your wisdom, valuable advise and precious time. David has been a great support to me throughout my entire time at university and I shall always look back at that experience very positively. Richard has also been very supportive, particularly in the last year of this thesis, providing encouragement and mentoring when I most needed it. Without him, I am not sure I would be submitting this thesis today. I would also like to thank Professor Athol Chase and Dr David Hyndman for their guidance in the early stages of this thesis.

I also want to thank all the great friends I have made during my time at university, especially Jacqui Heywood (the most intellectual and generous person I know), Adrienne Hallam, Edgar Linder, Kristen Lyons, John Forge, Jasper Goss and Mohamad Abdulla. A special thanks to you all for your wonderful friendship and the fun times we have had together. A special thanks also to Rachel and Gabriel Estay and family for all the things ... you know ... for just being who you are!

Last but not least, thanks to my wonderful family who no doubt deserve medals for tolerating my ups and downs throughout this thesis, particularly though these last few months. The most tolerant and understanding person has been my wonderful husband Sababi. Thank you for your love and encouragement. To my two gorgeous daughters Ketumi and Alima, I love you ‘more than this ....’ ‘more than right up to outa outer space’. I am happy, I am happy, two beautiful girls, two beautiful girls, Ketumi and Alima, Ketumi and Alima. To Mum and Dad, thank you for being my mum and dad. You have provided for me and my family so much support throughout my university years it is almost embarrassing. We showed Sister Rita didn’t we!

STATEMENT OF ORIGINALITY

I certify that this work has not previously been submitted for a degree or diploma in any university. Further, to the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made in the thesis itself.

Monica Michelle Seini

TABLE OF CONTENTS

Page No.

Synopsis ii Acknowledgments iv Statement of Originality v Table of Contents vi List of Tables x List of Figures x Abbreviations xi

1. Introduction 1

Background to the Study 2 Research Problem 4 Contemporary Theoretical Framework 7 Core Analytical Concepts Ways of Knowing 11 Ways of Owning 11 Ways of Resisting 12 Methodology 13 Foucault’s Genealogy 13 Social Constructionism 15 Colonial Legal Framework 17 Construction of Indigenousness 17 Indigenous knowledge 18 Note on Research Ethics 19 Outline of Chapters 21 Endnotes 25

2. Prospecting for Bioresources 31

Introduction 31 Plants as Materia Medica 33 ‘Folk’ Medicinal Knowledge 35 Indigenous Medicinal Knowledge 36 Contemporary Interest in Indigenous Materia Medica 39 Hoodia and the San People of the Kalahari 39 Sharman Pharmaceuticals 40 Ethnobotanical Leads 42 Modern Bioprospecting Techniques 43

Intensified Interest in Bioprospecting 49 Technological Innovations 49 Commercial Viability of Bioprospecting 52 ‘Disappearing’ Knowledge and Practitioners 53 Conclusion 57 Endnotes 59

3. Contemporary Theoretical Perspectives: From Fourth World to Questions of Power 70

Introduction 70 Situating ‘Undecolonised’ Indigenous Nations 72 The Global Political Divide 73 The Fourth World Nation in the World System 75 Theories of Power 82 Foucault and Power 83 Techniques of Power 86 ‘Ways of Knowing’ as a Technique of Power 86 ‘Ways of Owning’ as a Technique of Power 89 Fourth World as a Site of Resistance 93 Emulating Escobar’s Foucauldian Approach 95 Conclusion 97 Endnotes 99

4. Nature, Science and ‘Ways of Knowing’ 112

Introduction 112 Knowledge Perspective 114 The Social Construction of Nature and Knowledge 117 Core European Thinkers on Nature and ‘Knowing’ 119 The Scientific Revolution 121 Science as Technology 122 Dualism and a Mechanical Universe 124 Rethinking the Canon 127 Enlightenment Interpretations of the Scientific Revolution 129 Science and the ‘Other’ 131 Linking Science with ‘The Useful Arts’ 133 The ‘Triple Helix’ Academic-Industrial-Government Complex 136 Conclusion 139 Endnotes 141

vii

5. Property, Intellectual Property and ‘Ways of Owning’ 154

Introduction 154 Western Legal Framework 156 Foundations of Western Legal Philosophy 156 Individualism and the Legal Framework 159 Legalism and Property Rights as Techniques of Power 160 Intellectual Property law as a Technique of Power and Ownership 162 Copyright as a Technique of Ownership 164 Patents as a Technique of Ownership 166 International Techniques of Power and Ownership 169 GATT, TRIPS And The WTO as Agents of Power and Ownership 170 The CBD as an Agent of Power and Ownership 173 Ownership and State Legislative Responses 181 Conclusion 185 Endnote 187

6. Bioprospecting and Indigenous ‘Ways of Resisting’ 200

Introduction 200 The Concepts of ‘Fourth World’ and ‘Indigenous’ 202 Construction of the Indigenous Other 204 The Colonial Disempowerment of Fourth World Nations 216 Indigenous Practices of Resistance 220 Complexities Inherent in Engagement with Bioprospecting 211 Documentation, Intellectual Property and Biological Resources 213 Education and Representation 217 Emergence of Indigenous Peoples as International Actors 219 Inclusion in International Discourse 220 Indigenous Discourse of Resistance and Empowerment 225 An Indigenous Environmental Ethic? 227 Symbolics in Indigenous Representation 229 Conclusion 231 Endnotes 233

7. Australia: Trends in the Global Terrain 244

Introduction 244 Australia as the Only Mega-Biodiverse ‘Developed’ Economy 245 Aboriginal Political Activism 247 The Construction of Australia and Its Indigenous Peoples 250 Historical and Contemporary Bioprospecting Ventures 252 Current Bioprospecting Ventures 255

viii

Queensland’s Smart State Approach 258 Normalising Biotechnology as a Dominant ‘Way of Knowing’ 259 Normalising Dominant ‘Ways of Owning’ 263 Documentation: A Vulnerable Practice of Resistance 270 Moves to Self-Determination and Positive Outcomes 274 Conclusion 275 Endnotes 277

8. Conclusion 281

Introduction 291 Summary and Critique of Theory 292 Thesis Findings 293 Dominant ‘Ways of Knowing’ as a Technique of Power 293 Dominant ‘Ways of Owning’ as a Technique of Power 295 Fourth World Resistance as a Technique of Power? 297 Reflections and Suggestions for Future Research 299 Conclusions 300 Endnotes 302

Bibliography 303

ix LIST OF FIGURES

Page

1. Diagram of the Thesis Structure 22

LIST OF TABLES

Page

1. McCall’s Power Model (1980) of Global Political and Economic System 77

2. Queensland State Government Funding for Biotechnology (2001-2003) 260

x ABBREVIATIONS

ABS Access and Benefit Sharing AIDS Acquired Immune Deficiency Syndrome AIMS Australian Institute of Marine Science AMRAD Australian Medical Research and Development Corporation ATSIC Aboriginal and Torres Strait Islander Commission AZGU AstraZeneca Griffith University BCA Queensland Government Biodiversity Collection Authority CALM Western Australian Department of Conservation and Land Management CBD United Nations Convention on Biological Diversity CBRs Community Biodiversity Registers CDEP Community Development and Employment Program CEFIC European Chemical Industry Council CERD Committee for the Elimination of Racial Discrimination CIEL Center for International Environmental Law COP CBD Conference of the Parties CRC Cooperative Research Centre CSIR Council for Scientific and Industrial Research (South Africa) CSIRO Commonwealth Scientific and Industrial Research Organisation CTE Committee on Trade and Environment DATSIP Queensland Department of Aboriginal and Torres Strait Islander Policy DFAT Department of Foreign Affairs and Trade DIIE Queensland Department of Innovation and Information Economy DNA deoxyribonucleic acid DNRM Department of Natural Resource Management DOGIT Deed of Grant in Trust EPA Environment Protection Agency ETC Erosion, Technology, Concentration FAO Food and Agriculture Organisation FFM WIPO Fact Finding Mission GATT General Agreement on Tariffs and Trade

xi GBF Global Biodiversity Forum GBIF Global Biotechnology Information Facility GEF Global Environment Facility GRAIN Genetic Resources Action International HIV human immuno-deficiency virus HTS high-throughput screening IBAMA Environment Agency Brazil ICBG International Collaborative Biodiversity Group ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights IGOs Intergovernmental Organisations IIPR Indigenous Intellectual Property Rights IISD International Institute for Sustainable Development ILO International Labour Organisation ILUA Indigenous Land Use Agreement IMF International Monetary Fund IP Intellectual Property IPRs Intellectual Property Rights MEAs multilateral environmental agreement MNCs Multinational Corporations MTAs material transfer agreements NATO North Atlantic Treaty Organisation NCI National Cancer Institute (US) NGO Non-Government Organisation NHMRC National Health and Medical Research Council NPA Natural Products Australia OAU Organisation of African Unity OECD Organisation for Economic Co-Operation and Development QIMR Queensland Institute of Medical Research

xii QLD Queensland PBR Plant Breeders Rights PBRs Peoples Biodiversity Registers PIC Prior Informed Consent PPP Public Private Partnership PRECIS Pretoria National Herbarium Computerised Information Network R&D Research and Development RAFI Rural Advancement Fund International S&T Science and Technology SABONET Southern African Botanical Diversity Network SCBD Secretariat of the Convention on Biological Diversity SRISTI Society for Research and Initiative for Sustainable Technologies TKDL Traditional Knowledge Digital Library TEK Traditional Ecological Knowledge TK traditional knowledge TRIPS WTO Agreement on Trade Related Intellectual Property Rights UN United Nations UNCED United Nations Conference on Environment and Development UNCTAD United Nations Conference on Trade and Development UNESCO United Nations Education, Scientific, and Cultural Organisation UNEP United Nations Environment Program UNESCO United Nations Educational, Social and Cultural Organisation UQ University of Queensland US United States of America USDA United States Department of Agriculture VCU Queensland Government’s Venture Capital Unit WA Western Australia WGTRR Working Group on Traditional Resource Rights WIPO World Intellectual Property Organisation WTO World Trade Organisation

xiii

Chapter 1

Introduction

Access to biological resources through bioprospecting is a highly topical and important policy issue, especially with regard to the emergent bioeconomy and Indigenous peoples cultural traditions. It is the topic of my thesis. I am interested in how these resources are commodified within the biopharmaceutical industry. In particular, I examine the role of Indigenous peoples’ knowledge within bioprospecting projects.1 The erosion of the rights of Fourth World peoples--those Indigenous Nations of peoples encapsulated within First World states—to control access to biological resources and knowledge that they identify as their own, is of particular interest.2 These are rights, it has been argued, that have not been adequately protected within relevant policy. Indigenous peoples are increasingly questioning this, as are others in the community. I explore Australia’s reluctance to recognise the knowledge and resources rights of Indigenous Australians, while simultaneously seeming to privilege biotechnology and the interests of the biopharmaceutical industry in contemporary bioprospecting policy developments. My case study examines bioprospecting in Australia, and more specifically, the Queensland Government’s bioprospecting policy, known as the Smart State Biodiscovery Policy.

To address the ‘privileging’ of biotechnology, the subjugation of the knowledge of Indigenous peoples, and the associated subjugation of nature in bioprospecting projects, I develop a theoretical approach that embraces Fourth World theory with elements of Foucault’s analytics of power. This framework was inspired by the work of Annette Holden, who, in her study of Aboriginal Australians as Fourth World Peoples, uses Fourth World theory in combination with elements from structural theory.3 However, this thesis departs from Holden insofar as it also adopts post-structuralist ideas. The merging of post-structural ideas with a structuralist perspective may seem incongruous but it is, in fact, modelled on the work of researchers such as Arturo Escobar, who Introduction 2

combines a Foucauldian perspective with Third World political economy studies.4 The originality of the theoretical framework of this thesis is that it explores a different perspective to Escobar, by synthesising elements of Foucault’s work and Fourth World theory. I use a methodology that draws on constructivist and Foucauldian genealogical approaches, which is informed by literature from science studies, including the emergent area of postcolonial science and technology studies. The next section outlines the background to the study.

Background to the Study

The world’s biological diversity has been considered generally to be the ‘common heritage of mankind’. This term, first coined at the 1930 Convention of the League of Nations, was later incorporated into the 1972 World Heritage Convention.5 Accordingly, ‘common heritage’ is characterised as an absence of private property rights. This is used to justify ‘open access’ to natural resources, including those of Indigenous and peasant peoples. Implied in the term are two seemingly contradictory aims. One is the provision of access to biological resources for all people, and the other is the preservation of heritage for future generations. The two competing interests of commodification and preservation are not easily accommodated; especially as areas of high biological diversity decline in size, while demand for the resources within these area grow. Hence, increased demand for biological resources in recent decades, especially from the biotechnology industry,6 alongside an evident decline in biodiversity,7 has made access to biological resources an increasingly important political issue.8

The 1992 Convention on Biological Diversity9 (CBD) is the policy catalyst that established rules for access to biological diversity in the international, central state and local state policy arenas. With this Convention, the notion of ‘common heritage of mankind’ was replaced by an affirmation that states are the legitimate owners of biodiversity within their respective territories. Signatories to the CBD are obliged to provide access to their biological resources for entities seeking access for commodification. These resources are in high demand as source material for natural Introduction 3

product research, particularly in the fields of agriculture and pharmaceuticals, under the impact of biotechnology. States are keen to exploit these assets through contractual agreements with bioprospectors, or those who practice bioprospecting.10 This practice also referred to by its critics as ‘biopiracy’ when conducted illegally,11 seeks to provide industry with the raw material needed for further scientific and technological advances.12 It reinforces also the thrust of industrial science and technology to control nature within the dominant neo-liberal economic framework.

Operating within this framework, state and international institutions have adopted policies delineating their central task as promoting the exploitation of commodifiable elements of nature, as a vehicle for achieving economic growth and development. Biotechnology, as the primary technique employed within the biopharmaceutical industry to commodify resources sourced through bioprospecting, has within recent years emerged as a dominant industrial science, along with other technologies of globalisation, such as communications and transport that are driving economic and political decision-making systems. At international, central state and local state levels, policies have been adopted to protect, promote and privilege biotechnology over other forms of knowledge, as will be discussed in some detail in this study, particularly in Chapters 4 and 8. The commodification of biological resources is therefore a central issue focussed upon here, as policy determining access rights is essential in the commodification process. Very often, this can be contrary to traditional Indigenous values and belief systems as these relate to nature and to natural resource use.

Prior to the CBD, the main policy concerns at the international, central state and local state levels focused on regulation of biotechnology and intellectual property rights. Accompanying the addition of ‘access’ to the policy agenda was recognition of the complexity of determining access rights to biological resources. Many problematic issues emerged. One of those issues⎯acknowledgement and protection of Indigenous peoples rights to their resources and knowledge⎯has never been adequately dealt with in Australia. This is similar to other developed states with encapsulated Indigenous Nations, known as Fourth World Nations. Introduction 4

Research Problem

Given this background, this thesis explores the unique and largely marginalised position of Indigenous peoples, more specifically those Indigenous Nations encapsulated within developed states as Fourth World Nations, in the policy debate on access to natural resources, which focuses on biotechnology and bioprospecting. Before moving on, a note on terminology is necessary. Anaya13 refers to Indigenous peoples as,

the living descendants of pre-invasion inhabitants of lands now dominated by others. They are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest. Their ancestral roots are embedded in the lands in which they live, or would like to live.

Despite the strength of this definition, the term ‘Indigenous’ is recognised in this study as problematic, as it suggests as essentialist collective identity common to all peoples classified using terms such as ‘Aborigines’, ‘First Nations’ and ‘First Peoples’. I use ‘Indigenous’ as it has been applied since the 1970s by ‘Indigenous peoples’ (with a capital ‘I’ and a final ‘s’) to symbolise an ‘internationalised’ experience and struggle by colonised peoples.14

Also needing explanation is the use of the word ‘science’ in this study. Although Sandra Harding is critical of the term science (singular) as it does not accommodate the multiplicity of sciences (plural) that exist,15 science in the singular is the term used in this study to identify Western science as a knowledge system different from, and privileged over, other knowledge systems. Further, as Western “scientific knowledge is inseparable from the technologies of its production, these have social and political preconditions and effects, and they provide blueprints for subsequent technological innovation”.16 Therefore, biotechnology, while a technology rather than a science, will be recognised and analysed in this study as deeply interconnected with science economically, politically and socially.17

Introduction 5

While not a detailed study of this technology per se, the thesis emphasises the social and political processes that have constituted biotechnology as a dominant knowledge, and bioprospecting as a legitimate process for accessing natural resources. It is my intention to thus explore the power relations embedded within the practice of bioprospecting and the issue of access rights to biological resources, especially the role of dominant knowledge and ownership systems in this policy arena. Policy specific to Indigenous ownership of natural resources has never emerged within Australia, and is too rarely explored within academic literature.

I thus examine the appropriation of Indigenous plant resources and knowledge through the vehicle of bioprospecting. This educes the terms and conditions under which biotechnology corporations, and their research affiliates, are gaining access to Indigenous plant resources and knowledge. It also seeks to determine the extent to which this disempowers Indigenous peoples and excludes them from policy processes. Empowerment through resistance is also explored, in order to see under what conditions Indigenous peoples have opportunity to affect the policy processes determining access to biological resources.

The central research question is to explore whether the policy apparatus of existing international, central state, and local state institutional arrangements and contemporary policy directives can effectively deal with these issues. In answering this question, three key research aspects emerge. First, an understanding of the historical context for the appropriation of Fourth World peoples knowledge is required, especially when exploring their marginalisation within the policy debate on bioprospecting. Second, an understanding of the mechanisms of power that result in the privileging of certain knowledge and ownership systems over others is also critical. Third, an exploration of the ways in which Indigenous peoples use resistance as a tool for enabling their greater participation in policy debates is essential.

Introduction 6

Following the central question of the thesis, the aims are: (1) To analyse and understand the privileging of biotechnology and its associated practice of bioprospecting within contemporary policy debates through examination of techniques of dominant power; (2) To examine how Fourth World Nations are situated politically within the dominant discourse involving access to, and use of biological resources; (3) To develop a theoretical framework that synthesises Fourth World theory and elements of Foucault’s analytics of power in order to interrogate the research problem of this thesis; and, (4) To apply that new theoretical framework to a case study, based on the development of bioprospecting policy in Australia, and more specifically Queensland, in order to answer the central research question of this thesis.

My overall thrust in the thesis is that traditional rights of Indigenous peoples to their property are being denied in this important area, and, in the context of the ongoing dire social impacts of colonisation for Indigenous peoples. Therefore the issue of bioprospecting of Indigenous peoples resources and knowledge requires serious policy engagement. This argument will be elaborated upon in analysing the development and application of policy on biotechnology and bioprospecting, and more particularly the denial of traditional rights to biological resources within this policy arena. This will be achieved by examining the issue at various policy levels—central state, local state and international—and in Indigenous discourse.

The thesis contributes to the debate on bioprospecting in two principle ways. First, it raises the profile of Fourth World peoples rights to their knowledge and resources as a policy issue previously under-explored in Australia and other settler states. Second, it fills the gap that currently exists in academic discourse, namely the poverty of theory and methodology being applied to an examination of the issue of Fourth World peoples rights to their resources and knowledge. Because of the paucity of such analysis, and the complexity of the topic as a contemporary policy issue, it lends itself to a ‘novel’ or reconceptualised theoretical framework. Introduction 7

Contemporary Theoretical Framework

The theoretical framework adopted in this study provides a unique perspective by synthesising Fourth World theory and elements of Foucault’s analytics of power. Fourth World theory applies to Nations encapsulated within ‘settler’ developed states, a term reflecting the permanent settlement of European colonisers within the colonised land.

The analysis of social formations categorised (and contested) as ‘First World’ or ‘Third World’ is discussed at length in Chapter 3. But, in summary, it derives from early post- World War II writings that were attempting to conceptualise and analyse the newly- independent states emerging as a result of decolonisation by Britain, France and other colonial powers.18 The term ‘First World’ was held to apply to the developed capitalist states of Western Europe, North America and Australasia; the idea of the ‘Second World’ was associated with the bureaucratic communist states of Eastern Europe, and led by the Soviet Union; and the ‘Third World’ was used for those countries who achieved self-rule from the colonial power, beginning with India, Pakistan, Burma and Ceylon, and soon followed by Indonesia, Ghana and others. Following on from this system of categorisation, the term ‘Fourth World’ began to be applied by Indigenous peoples themselves in the 1970s to Nations that found themselves still encapsulated within First World states.

Terms such as ‘Third World’ are increasingly deemed irrelevant in contemporary development discourse, if only because there no longer exists a ‘Second World’, making distinctions according to a particular ‘World’ questionable for some commentators. These distinctions are heuristic tools only, used to group, organise and categorise otherwise heterogeneous groups under one term, a term that has the capacity to limit possibilities for those categorised under this umbrella. Yet these terms are important in the context of this study.

While most Indigenous peoples are located within the Third World, Fourth World Nations are located in the First World. This gives Fourth World Nations a common Introduction 8

experience that cannot be claimed for Third World states. Generally, Fourth World peoples are the original inhabitants of a region, who came to constitute a dispossessed and marginalised minority within their own land, as that land was included within new geographical boundaries. The distinction between Third World and Fourth World is therefore important, as most discourse concerning Indigenous issues, and more specifically bioprospecting, focuses on the Third World, while the concerns of Indigenous peoples within developed states are largely ignored. The use of Fourth World theory is thus very relevant.

Yet, not all Indigenous peoples, and even fewer academics, embrace the term ‘Fourth World’. This is because it is perceived to have negative hierarchical connotations. In sum, it can be seen to place Indigenous peoples on a ‘lower’ level of development or of political and economic influence than that of the Third World. The Fourth World is indeed peripheral to the First, Second and Third Worlds, and a perceived acceptance of this geopolitical peripheral status is what concerns some analysts. In contradistinction, many Indigenous peoples themselves find the term empowering. Indeed, Indigenous peoples chose to use this term at the 1972 United Nations Environment Conference in Stockholm, Sweden, as a strategic language to resist the oppressive categories normally assigned by dominant actors within such fora. Terms such as ‘Third World’, ‘developing’, and ‘less-developed’, have been used as tools of oppression, categorising countries and groups as ‘traditional’ and ‘backward’’,19 and denying the historical conditions which located these countries in this position within the dominant global political and economic system. Instead, Indigenous peoples use the term ‘Fourth World’, to counter the dominant version of their history. It is an assertion that—despite all the oppression experienced by Indigenous peoples—they have survived and are now more than ever displaying resistance to the dominant or ‘colonising’ powers.

The term ‘Fourth World’ then is not simply a heuristic device. Rather than a passive acceptance of a hierarchical schema, it is a powerful symbol of resistance. Hence, historical accounts of domination and resistance provide the rationale for use of Fourth World as a preferred theoretical site of resistance to the dominant economic, ecological, Introduction 9

scientific and technological paradigms, particularly biotechnology, and yield it as a very useful theory for analysing social power relations. When used for analytical purposes, Fourth World theory pulls into focus the largely unique and unrecognised concerns of Indigenous peoples encapsulated within First World States. Their unique interests have never been adequately represented, and no comparable analytical framework exists to articulate their concerns in relation to bioprospecting.

The greatest strength of Fourth World theory is that it focuses specifically on the experiences of encapsulated Indigenous Nations. But, it has shortcomings in the analysis of power relations that have positioned it in this very context. I therefore seek to strengthen its analytical powers by combining Fourth World theory with core power relations concepts from Foucault. It is my view that Fourth World theory and elements of Foucault’s theory can be seen to complement each other, and provide important new insights, particularly when examining social power relations.20

This thesis utilises concepts from Foucault to explore biotechnology, bioprospecting and Indigenous knowledge. For example, I use Foucault’s concept of ‘truth’, which he suggests is connected to ‘power’; and in turn ‘power’ and ‘knowledge’ operate together.21 Foucault’s concept of the power/knowledge nexus as expressed in discourse is thus relevant. ‘Discourse’, for Foucault, refers to the collection of ideas and concepts that are constructed within specific relations of power/knowledge.22 Discourse, or discursive practices, creates a space within which only certain things can be said, or even imagined. The unity of discourse on a particular topic is due to the interplay of rules that define it, and create a ‘truth’ about it.23

An example of the ‘truth’ constructing power of discourse is a process Foucault called ‘normalisation’, where society is increasingly rationalised, organised and homogenised to the desires of the state, to integrate people into the economic system.24 People, and other subjects of normalising techniques, are moulded into a category of ‘normal’, or alternatively, are placed outside normality as ‘abnormal’. Foucault argues that issues must be ‘problematised’, or probed and questioned, as solutions will always be Introduction 10

normalised in accordance with dominant understandings of what constitutes knowledge. In addition, there will always be struggles to secure a dominant discourse and to marginalise alternative ‘truth regimes’.

Another key idea of Foucault’s is his assertion that when power is operating, it can be both dominant and/or resisted.25 This introduces the possibility of the formation of a reverse discourse.26 Through reverse discourse, the subjugated can assert their own legitimacy, often adopting and adapting the same language that has been used to subjugate them.

The theoretical framework of this study also explores the role of the state within Fourth World theory and Foucault’s social power relations. The state is an important entity in Fourth World theory as their historical and contemporary relations with their encapsulating state inform Indigenous peoples’ self-identity. But, for Foucault, the state is only one actor, albeit the main actor, within networks of power employing techniques and strategies that privilege, normalise and exclude, a practice referred to by Foucault as governmentality.27 The power of the state is conferred and legitimised within these networks, where specific interests are also able to shape policy processes.28 Foucault’s assessment of the state, however, is not incompatible with Fourth World theory. The role of the state in situating Indigenous Nations historically and in the contemporary era is undeniable. Yet, Foucault’s biopolitics thesis on the ways in which social power operates, provides a coherent and insightful account that can be applied to the subjugation of Fourth World peoples and their knowledge, informing and strengthening the potential for resistance.

This thesis then uses Fourth World theory and Foucault’s approach to power relation to develop a framework that seeks a coherent explanation of how language, dominant knowledge and ownership systems, states, and global economic imperatives within the area of bioprospecting marginalise Fourth World peoples. By extension, examination of power relations and the power/knowledge nexus provides insights into how Fourth World Nations have been marginalised from policy processes. Yet, Foucault Introduction 11

acknowledges that power is not always negative (or oppressive), and can be exercised from below.29 When Fourth World theory is combined with Foucault’s understandings of resistance then, they also provide a rich theoretical framework for exploring empowerment.

Core Analytical Concepts

The theoretical framework of this thesis will turn on three core analytical concepts. These emerge from a reading of Foucault’s analytics of power, although Foucault makes it clear that a multitude of techniques of power may exist at any one time within social systems.30 The three techniques of power revealed in this study as central to understanding the debate on biological resources and the appropriation of Indigenous resources and knowledge are: (1) ‘ways of knowing’ as a technique of power; (2) ‘ways of owning’ as a technique of power. These two concepts on power are concerned with dominant power; and (3) Fourth World as a site of resistance. This is concerned with power to resist.

Ways of Knowing as a Technique of Power To address the central research question of whether existing institutional arrangements and policy directives can deal with the issue of access to biological resources and Indigenous knowledge, it is necessary to explain the social power relations embedded within the debate on biotechnology and bioprospecting. The positivist, rational approach of science applied to natural resource management policy processes, and thus biotechnology as a ‘way of knowing’, is privileged as a reasoned and rational way of exploiting nature. There is a need then, to highlight ‘ways of knowing’ as a technique of power. This involves critically examining central components of modern epistemologies, to identify the impact the dominant knowledge regime has had on alternative ‘ways of knowing’.

Ways of Owning as a Technique of Power In order to develop a framework that can be applied to the case study on bioprospecting in Australia, ‘ways of owning’ as a technique of power needs to be examined, as Introduction 12

dominant ownership regimes privilege ownership for commodification. Central to this analytical framework is the intellectual property debate, as intellectual property is the main instrument for securing ownership of biological resources and associated knowledge. Intellectual property regimes, however, do not secure ownership rights for all knowledge and resource claims. Instead, these regimes act as a privileging technique.

Fourth World as a Site of Resistance Through knowledge and ownership as techniques of power, Indigenous knowledge has been subjugated. Foucault defined subjugated knowledges as, “a whole set of knowledges that have been disqualified as inadequate to their task or insufficiently elaborated”.31 Yet Indigenous knowledges, like Indigenous peoples themselves, have survived, maintained locally with varying degrees of success. While Western led development programs have struggled to break down resistance within traditional cultures to modern science and technology,32 Indigenous peoples have mounted campaigns of resistance, struggling for recognition of their knowledge and ownership rights.

The issues for Fourth World peoples differ, however, from those of the Third World. Within the underdeveloped policy area dealing with access to biological resources in developed countries, these resources are deemed property of the state. As such, the compulsion to exploit and commodify these resources is normalised as the economic goal of the state. There is inadequate recognition of the alternative ownership rights of the Indigenous Nations encapsulated within these developed states. As Nations of peoples within developed states, Fourth World peoples are presumed to share the values and ideals of their encapsulating states, and to be beneficiaries of bioprospecting projects along with the wider polity. Exploitation of Third World countries through bioprospecting projects, however, has garnered much more support in academic literature and within international policy fora with the issue emerging within wider environmental and development discourse.

Introduction 13

While Fourth World peoples have made it clear that their interest and values are unique and different from those of the state, they have also been able to take advantage of their position within developed states, accessing education and the political processes that enable their participation at a central state, local state and international level, with varying degrees of success. An assessment of their effectiveness at the state and international level form part of the analysis.

Methodology

To apply this analytical framework, Foucault’s genealogical method is used to explore the history of knowledge within the field of bioprospecting. Foucault describes genealogy as a “history of the present”, a method urging a rethink of the historical roots of present forms of knowledge, relations of power and subjugation.33 To understand dominant discourses, it is necessary to understand their historical context.34 In this thesis I use a ‘history of the present’ to explain power relations within the contemporary debate on the use of biological resources by the biopharmaceutical industry. I explore the institutional power mechanisms that construct intellectual property regimes as reservoirs of knowledge. My aim is to explain the dominant discourse surrounding biotechnology and bioprospecting debates.

Foucault’s Genealogy As part of doing a ‘history of the present’, I trace the marginalisation of Indigenous peoples and their knowledge. The human subject designated as ‘abnormal’ becomes an ‘object’ of knowledge, studied and problematised.35 Examined are the institutional mechanisms and networks of power complicit in the processes situating Indigenous peoples as objects of knowledge. My method is to reveal the techniques of power linked with dominant discourse.

Hence, genealogy as a method of research complements the goals and aims of the thesis, which necessitate a thrust to re-orient our thinking to a critical viewpoint on Fourth World peoples’ standing within the policy processes determining access to biological Introduction 14

resources within states. This is consistent with the second aim of the thesis to examine how Fourth World Nations are situated politically within the dominant discourse involving access to, and use of, biological resources.

When exploring how Fourth World peoples are situated politically within contemporary policy debates, the methodology is also informed by the work of post-colonial theorists. Defining and historicising are powerful discursive means of constructing reality, and by association, exclusion of the colonised.36 Leading thinkers within the field of postcolonial theory including Edward Said,37 Frantz Fanon38 and Homi Bhabha; all examined the way colonial powers justified colonialism through their ability to perpetuate images of the colonised as ‘inferior’.

Central to postcolonial theory then is the concept of ‘Otherness’. The notion of ‘Other’ is explained by the concept of binary opposition. Once employed by Aristotle to justify slavery, it has since been used by ‘European man’ to conceptualise the world in pairs of opposites: Self and Other; master and slave; man and woman; man and beast; man and nature; pious and impious; civilised and ‘primitive’.39 Categories that differentiate the ‘dominant’ from the ‘Other’ are not natural but are created according to institutionalised norms. Foucault argued that the dominant group establishes itself as such, by identifying a subordinate Other.40 For example, the concept of ‘race’ has been used by the so-called ‘superior race’ to differentiate between ‘Self’ and the Other. Hence, as we shall see later, Western systems for authenticating ‘ways of knowing’ and ‘ways of owning’ are identified as superior to the systems of the Other.

Such dualism attempts to condemn to a position of inferiority, or marginalise, the Other, including the ‘Indigenous Other’. For example, dominant discourses here include: ‘We’ dominate nature, the Other are dominated by it. ‘We’ utilise land and resources ‘efficiently’, while the Other lives a mere subsistence lifestyle simply eking out an existence, informed by a ‘primitive’ worldview. In accordance with this value system, Indigenous peoples utilise natural resources inefficiently and ineffectively.41 This justifies their historical exclusion from natural resource policy making. Yet, for Introduction 15

Indigenous peoples, a relationship with land based on rights and responsibilities is often maintained as an inherent and central part of their culture. Little regard though has been given to the reality of that relationship by policy makers within the dominant society, who have become largely ‘disconnected’ from nature.42

The dualist, dominant coloniser appropriated and incorporated the colonised, and thereby informed the identity of both. In short, this relationship created dependency by subjugating the colonised. This also created a reverse dependency, but one that has been rarely acknowledged by the dominant. Hence, as Val Plumwood argued in Feminism and the Mastery of Nature,43 dualism is more than binary opposition, it is often a denied dependency by the dominant on the subordinated Other.

Social Constructionism To explore these ideas further, it is advantageous to apply another methodological tool. Consistent with Foucault’s genealogy, a social constructivist, or constructionist, methodological framework facilitates recognition of the socio-cultural context of knowledge production and legitimisation. Social constructionism is a school of thought applied in many fields of study, including post-Kuhnian studies of science. Leading thinkers include Bruno Latour,44 David Bloor45 and Paul Feyerabend.46 They have challenged the rationalist, objectivist and universalist claims within Western scientific epistemology. Adherents to the ‘strong’ program of social constructivist thought (for example Bloor) deem socio-cultural influences to be the central deciding factors in scientific practice. The ‘weak’ program is considered to be more moderate, identifying socio-cultural influences as important in the construction of scientific knowledge, along with other factors. Latour’s study of scientific practice showed that science is not just conducted in the laboratory, but also through negotiations, political decisions and social power.47 Latour’s findings align with Foucault’s,48 and influence this study examining the dominant knowledge and ownership techniques influencing policy processes and the social power relations that have privileged biotechnology.

Introduction 16

Also influencing my analysis is the work associated with the relatively new field of postcolonial science and technology studies, including the work of Sandra Harding,49 David Hess,50 Helen Verran51 and David Turnbull.52 Postcolonial science and technology studies questions the universal claims of Western science by investigating the relations between empire and science, acknowledging the many and varied contributions of non-European knowledges to the dominant knowledge system. As all knowledge is local, Western science is recognised within this postcolonial field of study as only one culturally specific ethnoscience. Harding’s central argument is that Other sciences should be included within the term ‘science’ through an acceptance of the diversity of knowledge—a multicultural epistemology—rather than a unity of science.53

In sum, social constructivists question the principle thesis of realism—that there is a reality that exists independently of our representation of it—which is based on the assumption that knowledge created through science is ‘natural’ rather than being a ‘social’ human creation.54 Rather, following an idealist principle, social constructivists argue that the ‘real’ is dependent upon our representation of it. This position does not equate to a rejection of reason, rather it enhances it, based on a challenge to the social power relations that privilege certain knowledge.55 It challenges the conventional notion of science and technology as an “unambiguously progressive, necessary and neutral means of realising undisputed political objectives such as growth, progress and development”.56

To the social constructivist, the ‘facts’ and ‘truth’ attributed to science do not just exist in the world, but are created in response to our efforts to discover them. The scientific knowledge we produce is thus inevitably a product of unrecognised social and religious legacies.57 This can be observed by examining historical context and contemporary outcomes. One outcome is that the social construction of Western science as universal, neutral, value-free and objective has resulted in the delegitimatisation of other knowledge systems, and, this, in turn, has contributed to the delegitimatisation of other ownership systems.

Introduction 17

A combined method of genealogy and social constructivist approaches thus provides the main tools for my analysis that identifies the situation of Indigenous peoples as the inferior Other in biotechnology and bioprospecting policy discourse. A ‘history of the present’ enables me to examine how certain knowledge systems are constructed as truth in dualist terms. It also facilitates an examination of the situating of Indigenous peoples politically. The situating of Indigenous peoples within the biotechnology and bioprospecting debate is then revealed through three pivotal avenues. First, an explanation of the legal frameworks which supported colonial legacies. Second, a historical and contemporary analysis of the concept of ‘Indigenousness’. Third, an examination of the issue of access to Indigenous resources and knowledge within the area of bioprospecting.

Colonial Legal Framework This thesis argues that colonial history and its various accompanying doctrines of dispossession enabled the construction of legal frameworks that reflect those of the colonisers. This, of course, advantages these same colonisers. Indigenous knowledge and resource use systems, or even their existence, were denied or were deemed too unfamiliar or simply irrelevant, and were subsequently quashed along with the rights of Indigenous peoples—a legacy surviving to this day. This thesis explores the implications of this colonial legal framework for contemporary resource commodification projects, and its effects on Fourth World peoples’ ability to participate in these projects equally, or to resist commodification pressures.

Construction of Indigenousness This thesis explores the construction of the notion of what it means to be Indigenous and discusses how these constructs have played out within policy fora and policy discussions in relation to bioresources in terms of ownership and access. Indigenous peoples have been constructed in dualist terms as a ‘part’ of nature. Such a construct facilitates denial of Indigenous peoples connate rights to natural resources through a process of denied history. Unlike people in the Third World, however, Fourth World peoples have concomitantly been constituted as part of First World states, which have Introduction 18

the capacity to exploit nature through advanced science and technology, which, in turn, poses unique challenges for claims to connate resource rights.

Indigenous Knowledge Indigenous knowledge is the third concept this thesis employs to examine how Indigenous peoples are situated politically within the international, central state and local state policy debates on access to, and use of, biological diversity. In particular, Indigenous knowledge is explored within the information rich context of bioprospecting. Indigenous medicinal knowledge has long been recognised and documented, but has been simultaneously denied validity. As power defines knowledge, Indigenous knowledge is defined as inferior. This thesis examines Fourth World resistance to the situating of their knowledge as inferior, and to the appropriation and incorporation of their knowledge and natural resources in biopharmaceutical projects.

To summarise the methodological approach taken, recognition of knowledge production as a process occurring within a social context is methodologically central to this study. The dominant regime of knowledge and truth constructed in relation to biotechnology has shaped policy on bioprospecting. ‘Genealogy’, the term Foucault uses to define a research method that reveals the mechanisms used to marginalise and subjugate the knowledge systems of the Other,58 is appropriate here. As a research method it reveals within discourse, the governance strategies and techniques of power employed to exclude and disempower.

The utility of this research method will be demonstrated in the Queensland case study in Chapter 7. Through the case study, I explore the techniques of power and governance strategies used to privilege biotechnology and advance policy on corporate/state bioprospecting. I examine how this privileging process also marginalises and subjugates Indigenous knowledge and ownership rights in Queensland.

Introduction 19

Genealogy as a research method acknowledges the existence of other knowledges, and therefore, is also an ideal tool to explore resistance. For Foucault, relations of power, knowledge and resistance emerge from discourse, and discourses compete in the struggle to secure specific understandings of knowledge and truth.59 It is recognised within this study then, that language is used as a tool for empowerment by social groups—both by the dominant and by those resisting dominant power.

Relevant data to explore includes that advanced as policy and comment by governments, industry, Indigenous peoples, non-government organisations (NGOs), at international conferences and meetings, and in the wider literature. This approach enables an examination against an international backdrop, of the situation facing Indigenous peoples in Australia, and particularly in Queensland, not only in terms of policy development, but also in terms of the demands being made by those concerned with bioprospecting. In very recent years, literature specifically focusing on bioprospecting has begun to emerge. Significantly though, none has been analysed from a Fourth World theoretical position. A comprehensive review of this literature has provided the framework for this study. Other sources of data consist of archival material, press releases, and personal communication obtained through informal interviews with researchers, bureaucrats, Indigenous representatives, and other interest groups.

Note on Research Ethics

A study of this kind is not without its specific problems and ethical issues. For example, researchers on the topic of Indigenous rights often have a tendency to adopt an essentialist view. They speak of Indigenous knowledge as though all Indigenous peoples possess a ‘common wisdom’, something that non-Indigenous people do not inherently possess, and that should be preserved in situ, in some sort of ‘natural state’. But this view tends to deny Indigenous peoples and their traditions a history. It assumes that knowledge has been passed down from generation to generation virtually unchanged, and that there has been no reciprocal exogenous influence, and if untouched the Introduction 20

tradition will continue. The preparation of this study has required a careful and critical examination of this essentialist perception. This is to ensure, as a study conducted by a non-Indigenous person, that the narrative is not a paternalistic and romanticised portrayal of an important social and political issue.

However, researchers as political allies have often unwittingly participated in the further marginalisation of Indigenous peoples. The very process of placing Indigenous issues into a language and context accessible to non-Indigenous peoples can be considered a form of Europeanisation. There have also been examples of researchers and other supporters wanting to become Indigenous peoples, what is sometimes referred to as “playing Indian”.60 Semali and Kincheloe thus ask: “[W]hat is the difference between a celebration of Indigenous knowledge and an appropriation?”61 In turn, Routledge cautioned, “the spaces within which, and from which we speak and write, are imbued with relations of power/knowledge”.62 However sympathetic, non-Indigenous researchers need to acknowledge that they are almost invariably working from within pre-determined elitist hegemonic structures that may affect their analysis.

Despite warnings of the possible pitfalls, Semali and Kincheloe support participation of non-Indigenous ‘allies’ in the Indigenous struggle.63 Conklin tells us that even Indigenous peoples who participate as researchers or as activists have been seen to compromise their ‘Indigenity’ by conforming to Europeanised exotic images and discourse.64 Yet, for Indigenous peoples to refuse to participate in such research may be counter-productive to their own struggle, as “a fear of Europeanisation reflects a view of Indigenous culture as an authentic, uncontaminated artifact that must be hermetically preserved regardless of the needs of living Indigenous people”.65 Further, the issues emanating from bioprospecting, such as illegal or unsustainable access to biological resources, are also important to non-Indigenous peoples, making this a social issue of interest to the wider community and a policy issue with broad implications.

Thus it is important to highlight that in examining this area, I make no attempt to articulate the views or opinions of Indigenous peoples. While the study does give Introduction 21

examples of biopiracy and bioprospecting arrangements that are imbued with skewed power relationships and examples of Indigenous resistance, actual opinions and views as representations of Indigenous consciousness can only viably be articulated through Indigenous representation. My aim is specifically to ask the ‘what’ questions in order to promote interrogation of the topic. What would a new reading look like informed by a Fourth World and Foucauldian power relation perspective? What new insights might be gained from this reading? How might such interpretation enlarge our current understanding? What might a study like this do to highlight policy issues that have received too little attention? What policy lessons might be gleaned? These are central questions informing such interrogation.

Outline of Chapters My thesis is organised in the following way. Chapter 2 provides a broad background to the issue of bioprospecting. While Chapter 3 outlines the theoretical framework, the next three Chapters (4-6) construct the analytical framework, to examine the case study in Chapter 7. ‘Ways of knowing’ in Chapter 4 and ‘ways of owning’ in Chapter 5 are identified as techniques of dominant power, and ‘ways of resisting’ in Chapter 6 as a site of resistance to dominant power. Figure 1 provides a diagrammatic outline of this structure.

Chapter Two ⎯ Prospecting for Bioresources ⎯ explores bioprospecting in detail using illustrative examples from around the world. The central task of this chapter is to provide a background of the historical and contemporary appropriation of Indigenous peoples’ resources and knowledge over the last decade. I also introduce the idea that while there is a First World/Third World (North/South, developed/developing) divide concerning bioprospecting issues, there is also a divide between the interests of Indigenous Nations within the Third and Fourth Worlds.

Chapter Three ⎯ Contemporary Theoretical Perspectives ⎯ develops a theoretical framework for analysing the issue of access to biological resources and Indigenous knowledge. I identify a poverty of theory for studying Fourth World peoples and power. Introduction 22

In response, I synthesise Fourth World theory with elements of Foucault’s analytics of power to address the diverse but interacting political, economic, social and ecological interests impacting upon the policy process and determining policy outcomes in relation to bioprospecting.

Chapter One INTRODUCTION

Chapter Two PROSPECTING FOR BIORESOURCES

Chapter Three CONTEMPORARY THEORETICAL PERSPECTIVES

Chapter Four Chapter Five NATURE, SCIENCE AND ‘WAYS OF PROPERTY, IP AND ‘WAYS OF KNOWING’ OWNING’

Chapter Six

INDIGENOUS ‘WAYS OF RESISTING’

Chapter Seven AUSTRALIA: TRENDS IN THE GLOBAL TERRAIN

Chapter Eight CONCLUSION

Figure 1: Diagram of the Thesis Structure

Introduction 23

Chapter Four ⎯ Nature, Science and ‘Ways of Knowing’ ⎯ is the first of three Chapters constructing the analytical framework for the case study. It identifies ‘ways of knowing’ as a dominant technique of power. My central task here is to develop a historical understanding of how Western science has been constructed, institutionalised and privileged as the only, or the only ‘rational’ and ‘reasoned’, ‘way of knowing’. I show how these historical circumstances have shaped the subjugation of Indigenous knowledge systems, and the privileging of dominant knowledge systems, and more specifically, biotechnology.

Chapter Five ⎯ Property, Intellectual Property and ‘Ways of Owning’ — identifies ‘ways of owning’ as a dominant technique of power. From an historical perspective, I show how dominant power is not exclusively about knowledge but also about ‘ownership’, making techniques that allow states and corporations to exercise ownership power critically important. Contemporary intellectual property techniques as mechanisms of power and ownership, including copyright and patents, will be explored, particularly for their capacity to protect Indigenous intellectual property rights (IIPRs).

Chapter Six ⎯ Bioprospecting and Indigenous ‘Ways of Resisting’ — is concerned with Indigenous resistance to dominant power. By examining the discourses at international fora attempting to deal with Indigenous concerns about bioprospecting, certain normalising ‘solutions’ to Indigenous ‘problems’ through institutionalisation, are revealed. Also revealed are how Indigenous representatives have adopted the appropriate language of engagement to make them more effective politically at the international level, and the value of alliances with other civil society action groups.

Chapter Seven ⎯ Australia: Trends in the Global Policy Terrain ⎯ is a case study focusing on bioprospecting in Australia. Australia has never adequately articulated legislative responses to the claims of Aboriginal people about their connate rights to resources and knowledge they identify as their own. My main task is to interrogate bioprospecting not just as an issue of access to biological resources, but also one of justice and equality for Indigenous Australians. By examining colonial legal legacies, the construction of Introduction 24

‘Indigenousness’, and the delegitimisation of Aboriginal knowledge, the historical context within which Aboriginal peoples have had their rights and claims undermined by their encapsulating State is revealed. The ‘privileging’ of dominant ways of ‘knowing’ and ‘owning’—particularly through biotechnology—become evident within the academic-industrial-government complex that has emerged, particularly in Queensland. The Queensland Governments’ proposed Smart State Biodiscovery Policy is analysed. Aboriginal tactics as a form of Fourth World resistance also forms an essential part of the analysis.

Chapter Eight—Conclusion—draws together the arguments made in the study, undertakes a critique of the theory and presents the major findings.

Introduction 25

ENDNOTES

1 Soejarto, Djaja Djendoel., “Biodiversity Prospecting and Benefit-Sharing: Perspectives from the Field” Journal of Ethnopharmacology, 51, 1996, p. 14.

2 I recognise these concepts—First World, Fourth World—as contested, but their relevance to this study will be made clear below in this Chapter, and in later Chapters.

3 Holden, Annette., Fourth World Economic Development: The Establishment of Capitalism in Three Aboriginal Communities in Cape York Peninsula, Queensland?, unpublished PhD thesis, Division of Commerce and Administration, Griffith University, 1994.

4 Escobar, Arturo., “Discourse and Power in Development: Michel Foucault and the Relevance of his Work to the Third World”, Alternatives, X, 1984, pp. 377-400. ; Escobar, Arturo., Encountering Development: The Making and Unmaking of the Third World, New Jersey: Princeton University Press, 1994.

5 Lerch, Achim., “Property Rights and Biodiversity”, European Journal of Law and Economics, vol. 6, 1998, p. 288.

6 According to the Office of Technology Assessment of the United States Congress, biotechnology is “any technique that uses living organisms and substances from these organisms, to make or modify a product, to improve plants or animals, or to develop microorganisms for specific uses”. The World Bank, Agricultural Biotechnology: The Next Green Revolution?, Washington DC: The World Bank, 1991, p. 1. ; Faulkner, W., “Linkage Between Industrial and Academic Research”, cited in Walsh, V., “Demand, Public Markets and Innovation in Biotechnology”, Science and Public Policy, Vol. 3, No. 2, 1993, p. 8. ; Biotechnology is not in itself an industry, rather techniques that enable industry to exploit biological resources. Modern biotechnology6 is a multidisciplinary field with contributions from biochemistry, cell and molecular biology, microbiology, genetics, engineering and computer science, along with other sciences. Barnum, Susan. R., Biotechnology: An Introduction, Belmont, California: Wadsworth Publishing, 1998: p. 2. Biotechnology emerged some ten thousand years ago when people began selectively collecting seeds of wild plants and cultivating them, favouring those with the most desirable traits. As a result of this process many hunter gatherer peoples abandoned their nomadic ways for a more sedentary lifestyle, which in turn demanded techniques for preserving foods. ‘First-generation biotechnology’, also known as ‘ancient biotechnology’, which refers to the production of food and drinks using traditional fermentation processes, emerged. As part of ‘second-generation biotechnology’, these traditional fermentation techniques were integrated into the industrialisation process, and after extensive research by private corporations and in publicly funded institutions, evolving into what is now referred to as ‘third-generation’ or ‘modern’ biotechnology. The term biotechnology will be used here in reference to ‘modern’ or ‘third-generation biotechnology’ unless otherwise specified.

7 Biodiversity: “The millions of life forms found on earth, the genetic variety and variability, the ecological roles they perform and the interrelated and interdependent Introduction 26

ecological communities or ecosystems they form, or are found in”. “Glossary”, Altered Genes: Reconstructing Nature, Richard Hindmarsh, Geoffrey Lawrence and Janet Norton (eds), St Leonards, NSW: Allen and Unwin, 1998, p. 200.

8 Davalos, L.M., “Regulating Access to Genetic Resources Under the Convention on Biological Diversity: An Analysis of Selected Case Studies”, Biodiversity and Conservation, No. 12, 2003, p. 1512.

9 The Convention on Biological Diversity (CBD) was negotiated during the United Nations Conference on Environment and Development (UNCED) held in Rio in 1992.

10 Bioprospecting can be defined as “the exploration, extraction and screening of biological diversity and indigenous knowledge for commercially valuable genetic and biochemical resources”. Rural Advancement Foundation International., “Bioprospecting/Biopiracy and Indigenous Peoples”, RAFI Communiqué, November 1994, p. 1.

11 Christie, J., “Enclosing the Biodiversity Commons: Bioprospecting or Biopiracy”, Altered Genes: Reconstructing Nature: The Debate, R. Hindmarsh, G. Lawrence and J. Norton (eds), St Leonards, NSW: Allen and Unwin, 1998, p. 64. ; and see publications by RAFI including “Bioprospecting/Biopiracy and Indigenous Peoples”, RAFI Communique, November, 1994; and “RAFI’s List of Bioprospectors and Biopirates” RAFI Communique, September/October, 1995.

12 From minute samples, plant biotechnologists are able to synthesise and even create complete mature plants using plant cells or tissue. Clonal micropropagation using plant tissue culture enables the production of unlimited numbers of identical plants in laboratories and plant nurseries. Both synthesising and clonal techniques are invaluable when access to in situ plants is no longer viable. Such is the case when pharmaceutical corporations have control of a small sample of a valuable plant they accessed through bioprospecting, but are not in a position to reaccess the plant, perhaps for economic, ecological, or political reasons. Using clonal propagation techniques then, they are able to reproduce as much of the sampled plant as is necessary, to utilise that plant and to incorporate the end product into their knowledge system as a product different from the original plant.Tissue culture is “[t]he growth and maintenance (by researchers) of cells from higher organisms in vitro, that is, in a sterile test tube or petri dish environment which contains the nutrients necessary for cell growth”. http://biotechterms.org/sourcebook/saveidretrieve.php3?id=1874 Biotechterms.org., Tissue Culture. ; Some main advantages for the pharmaceutical industry from biotechnological applications are the development of new patentable drugs, improved vaccines, gene therapy, and therapeutic and diagnostic tools. Barnum., op. cit., pp. 91-2.

13 Anaya, S.J., Indigenous Peoples in International Law, New York: Oxford University Press, 1996, p. 3.

Introduction 27

14 Smith, Linda Tuhiwai., Decolonising Methodologies: Research and Indigenous Peoples, London: Zed Books, 1999, pp 6-7.

15 Harding, S., Is Science Multicultural? Postcolonialisms, Feminisms and Epistemologies, Bloomington: Indiana University Press, 1998, p. 11.

16 Ibid.

17 Reynar, Rodney., “Indigenous Peoples Knowledge and Education: A Tool for development”, What is Indigenous Knowledge? Voices From the Academy, Ladislaus M. Semali and Joe L., Kincheloe (eds), Ney York: Falmer Press, 1999, p. 291.

18 Horowitz, Irving Louis., Three Worlds of Development, Oxford: Oxford Uni Press, 1966.

19 Wolf, E., Europe and the People Without History, Berkley: University of California, 1982.

20 One factor demonstrating the compatibility of the two theories is that Fourth World theory rejects totalising grand narratives that generalise and place specific phenomena under one explanatory concept. Foucault also rejects totalising theories, instead encouraging a perspective that acknowledges power as being diffuse and having an institutional and regulatory context in which experts exercise power via a multitude of techniques of power. Foucault, M., “Two lectures”, Power and Knowledge: Selected Interviews and Other Writings 1972-77: Michel Foucault, C. Gordon (ed), Brighten: Harvester Press, 1980b, p. 91. ; Deacon, R. A., Fabricating Foucault: Rationalising the Management of Individuals, Milwaukee: Marquette University Press, 2003.

21 Foucault, M., “Two lectures”, Ibid.

22 Foucault, M., The Archaeology of Knowledge, translated by A. Sheridan, London: Tavistock, 1972, pp. 41-42.

23 Escobar, Arturo., “Anthropology and the Development Encounter”. American Ethnologist, 18, 4, 1991, p. 663.

24 Foucault, M., “Two lectures”, Power and Knowledge: Selected Interviews and Other Writings 1972-77: Michel Foucault, C. Gordon (ed), Brighten: Harvester Press, 1980b, p. 95.

25 Foucault, M., Power/Knowledge, translated by Colin Gordon, New York: Pantheon Books, 1980a.

26 Andree, Peter., “The Biopolitics of Genetically Modified Organisms in Canada”, Journal of Canadian Studies, Fall 2002; 37, 3, p. 166.

27 Foucault, M., “Governmentality”, Ideology and Consciousness, 6:5-21, 1979.

Introduction 28

28 Foucault, M., “Governmentality”, The Foucault Effect: Studies in Governmentality, G. Bruchell, C. Gordon, and P. Miller (eds), Hemel Hamstead: Harvester Wheatsheaf, 1991.

29 Hindess, B., Discourses of Power: From Hobbes to Foucault, Oxford, UK: Blackwell Publishers, 1996.

30 Foucault., “Two lectures”, op. cit., p. 102.

31 Foucault, M., Power/Knowledge, op. cit., p. 82.

32 Reynar., “Indigenous Peoples Knowledge and Education”, op. cit., p. 291.

33 Deacon., Fabricating Foucault, op. cit., p. 9.

34 Andree., “The Biopolitics of Genetically Modified Organisms in Canada”, op. cit., p. 165.

35 Relations of power/knowledge form human ‘subjects’, and subject them to historically produced norms and standards. Foucault, M., The Order of Things: An Archaeology of the Human Sciences, London: Travistock Publications, 1970.

36 Foucault, M., “The Order of Discourse”, Language and Politics, M. Shopiro (ed) Oxford: Blackwell, 1984, p. 110.

37 Said, E., Orientalism, London: Vintage Books, 1978.

38 Fanon, F., The Wretched of the Earth, London: Penguin, 1990. ; Fanon, F., Black Skin, White Masks, London: McGibbon and Kee, 1968.

39 Clarke, J., “Law and Race: the Position of Indigenous peoples“, Law in Context, Stephen Bottomley and Stephen Parker (eds), 2nd edition Leichhardt, NSW: Federation Press, 1997, p. 232.

40 Foucault, The Order of Thing, op. cit.

41 Bodley, John. H., Victims of Progress, 2nd edition, Mayfield: Palo Alto, 1982, p. 6.

42 Hawthorne, Susan., Wild Politics: Feminism, Globalisation, Bio/Diversity, North Melbourne: Spinifex Press, 2002.

43 Plumwood, Val., Feminism and the Mastery of Nature, New York: Routledge, 1993.

44 Latour, B., and Woolgar, S., Laboratory Life: The Social Construction of Scientific Facts, Beverly Hills, California: Sage, 1979. ; Latour, B., Science in Action, Cambridge: Harvard University Press, 1987.

45 Bloor, David., Knowledge and Social Imagery, London: Routledge and Kegan Paul, 1977. Introduction 29

46 Feyerabend, Paul., Against Method, London: New Left, 1975.

47 Latour., Science in Action, op. cit.

48 Rutherford, Paul., The Problem of Nature in Contemporary Social Theory, unpublished PhD thesis, The Australian National University, 2000, p. 12.

49 Harding, S., Is Science Multicultural?, op. cit.

50 Hess, David., Science and Technology in a Multicultural World: The Cultural Politics of Facts and Artifacts, New York: Columbia University Press, 1995.

51 Verran, Helen., “A Postcolonial Moment in Science Studies: Alternative Firing Regimes of Environmental Scientists and Aboriginal Land Owners”, Social Studies of Science, Vol. 32, No 5/6, Oct/Dec 2002, pp. 729-762. ; Verran, Helen., “Re-imagining Land Ownership in Australia’, Postcolonial Studies, Vol 2 July 1998, pp. 237-254.

52 Turnbull, David., “Local Knowledge and Comparative Scientific Traditions”, Knowledge and Policy, 6:3/4, 1993, pp. 29-54.

53 Harding, S., Is Science Multicultural?, op. cit.

54 Hannigan, J. A., Environmental Sociology: A Social Constructionist Perspective, London: Routledge, 1995, p. 76-77.

55 Harding, S., “After Eurocentrism: Challenges for the Philosophy of Science”, Proceedings of the Biennial Meeting of the Philosophy of Science Association, Volume Two, symposia and invited papers, 1992.

56 Moser, Ingunn., “Introduction: Mobilising Critical Communities and Discourses on Modern Biotechnology”, Biopolitics: A Feminist and Ecological Reader on Biotechnology, Vandana Shiva and Ingunn Moser (eds), London: Zed Books, p. 3.

57 Hewitt, J.P., “The Social Construction of Social Construction”, Qualitative Sociology, Vol. 24, No. 3., 2001, p. 421.

58 Foucault., “Two Lectures”, 1980b, op. cit., p. 83.

59 Foucault, M., The Archaeology of Knowledge, translated by A. Sheridan, London: Tavistock, 1972, pp. 216-217.

60 Semali, Ladislaus. M., and Kincheloe, Joe. L., “Introduction: What is Indigenous Knowledge and Why Should We Study It?”, What is Indigenous Knowledge? Voices from the Academy, New York: Falmer Press, 1999, p. 20

61 Ibid. Introduction 30

62 Routledge, Paul., “The Third Space as Critical Engagement”, Antipode, Cambridge: Blackwell Publishers, 1996, p. 402.

63 Semali and Kincheloe., “Introduction”, op. cit. I accept the contention that research by Indigenous and non-indigenous people is important, therefore it should be encouraged.

64 Conklin, Beth. A., “Body Paint, Feathers and VCRs: Aesthetics and Authenticity in Amazonian Activism” American Ethnologist, 24 (4), 1997, p. 712.

65 Semali and Kincheloe., “Introduction”, op. cit., p. 20.

Chapter 2

Prospecting for Bioresources

[w]e have to realise that there is no such thing as Western medicine, there is only one universal medicine and that is scientific medicine, which is the sum and synthesis of all the world’s medicinal experience. To this, peoples of all races, cultures and nations have and are contributing.1

Introduction

Access to biological resources and Indigenous knowledge through bioprospecting was identified in Chapter One as the key policy issue of this thesis. This chapter provides the background for the thesis. It describes recent developments in bioprospecting (the appropriation and incorporation of Indigenous peoples’ resources and knowledge into commodification processes through the use of biotechnology), and places the practice within its historical context. The background is gleaned from the relevant literature on bioprospecting that has emerged especially over the last decade. I will show how and why Indigenous resources and knowledge are being documented, incorporated and also appropriated, often illegally, by First World States and corporate allies. I identify some of the factors that underpin the contemporary intensification of bioprospecting within the biopharmaceutical industry, including technological innovation, commercial viability and the possibility of ‘disappearing’ Indigenous medicinal knowledge.

Within Foucault’s genealogy framework, a ‘history of the present’ with relation to bioprospecting is conducted in order to understand the “historical conditions which motivate our conceptualisation” of the present concerning our inquiry.2 Bioprospecting, in conjunction with biotechnology, is most often promoted technically as a tool for achieving ‘progress’ and ‘development’. I examine this situation by presenting an historical account of bioprospecting as a practice of the present, emphasising its often illegal nature, and the impact it has had on Indigenous peoples. Through this approach I Prospecting for Bioresources 32

aim to contextualise the historical and contemporary appropriation of Indigenous resources and knowledge.

Of note is that I use the term ‘Indigenous resources and knowledge’ constantly throughout this thesis. The reasoning behind the use of this term is my argument that Indigenous peoples have a connate (birth) right to specific resources and knowledge they can identify as their own. While the assumption that Indigenous peoples have a connate right informs the analysis, I do not dismiss easily protestations to these rights claims, particularly by states and corporate interests. On the contrary, consideration of those protestations enables a critique of the institutions and language that have emerged to dispossess Indigenous peoples of their resources and knowledge, through the ‘privileging’ of ‘superior’ ‘ways of knowing’ and ‘ways of owning’. This privileging, which is introduced in this Chapter and expanded on in following Chapters, enables policy makers to marginalise Indigenous peoples from policy processes.

Policy decisions on technological change and resource access rights are made through processes which often have the social effect of marginalising wider public participation.3 The ‘natural’ rights of Indigenous peoples to property (physical and intellectual) are often denied.4 In the case of biotechnology and bioprospecting, Indigenous peoples have appealed for recognition of their resources and knowledge rights, and rights to greater participation in policy processes determining access, at the central state, local state and international levels.5 They have made these appeals based on their recognition of wider communal and international commitment to social justice through the ideals of human rights, just treatment and the elimination of inequalities and marginalisation.6 In recent times, it has become apparent that more effective then appeals for protection of human rights is the assertion of connate (birth) rights to land and the resources, and knowledge associated with it.7

I begin this Chapter by establishing the historical significance of European folk knowledge and Indigenous knowledge and resources for the pharmaceutical industry. The historical use of medicinal plants and the development of medicinal knowledge in Prospecting for Bioresources 33

Europe and the Islamic world is significant to this study, because it establishes an understanding of the worldview within which the bioprospecting of Indigenous resources and knowledge occurred and is occurring. This establishes the importance of these resources and knowledge alike to industry and to Indigenous peoples. Next, I provide insights into the complexity of the use and enclosure of Indigenous resources and knowledge, as evidenced by conflicting understandings of utility and ownership. In identifying the bioprospecting methods currently used, I also introduce debates over the ‘usefulness’ or otherwise, of Indigenous knowledge to contemporary pharmaceutical research and development (R&D). The construction of Indigenous knowledge as inferior, and of questionable use value for industry, has proved an effective tool for those who wish to exploit it.

Greater insights into bioprospecting are also achieved by highlighting that there is a First/Third World (North/South, developed/developing) divide concerning bioprospecting issues. Finally the concluding section introduces the idea that a divide also exists between the interests of the Third World and the Fourth World, meaning those Indigenous Nations within the First World. This is an important distinction rarely made in the bioprospecting debate, as the issue is not generally assessed with reference to the unique concerns of Fourth World peoples and their rights.

Plants as Materia Medica

The earliest written documentation of medicinal use of plants comes from Egypt and is dated around 3000 B.C. Specialist physicians administered plant and animal based “ointments, pills, liquids and suppositories”.8 Similar written records emanated from Mesopotamia around 2000 B.C., and from China, including a documented herbal compilation attributed to Chinese Emperor Shen Nung, dated pre 2000 B.C. In the sixth century B.C., Greek and Roman medicine emerged based upon philosophies still accepted to some degree in the Western world today, particularly those of Hippocrates in the fourth century B.C.9 Building on established Egyptian medicine, Greek medicine extended for about six centuries from Hippocrates (ca. 460 to ca. 375 B.C.) to Galen (ca. Prospecting for Bioresources 34

A.D. 130 to ca. 200),10 making this the era of greatest influence of Greek medicine. The influence of Galen remained until the seventeenth century. The documentation of botanical knowledge continued, and gained prominence with works by Aristotle in the fourth century A.D. Aristotle’s students Theophrastus and Alexander the Great carried on this legacy, particularly in the recording of folk use of medicinal plants.11

In turn, Medieval Islam translated, appropriated and incorporated the works of Aristotle, Galen and Hippocrates, while simultaneously assimilating Persian and Indian traditions. The Arabs had their own medical knowledge, but by incorporating other medical tradition and knowledge, “Islamic doctors such as al-Razi (Rhazes, 854-925), al- Majusi (Haly Abbas, d. 995), Ibn Sina (Avicenna) and others developed unprecedentedly sophisticated and expert understanding of diseases and medical treatments”.12 Syrian physician Ibn al-Nafis documented a comprehensive theory on the circulation of blood in the thirteenth century, which was discovered by Andrea Alpago in the sixteenth century.13 Spanish physician and theologian Miguel Serveto (Michael Servetus 1511- 1553) read Alpago’s translations of al-Nafis’ theory, which he, in turn, made available to William Harvey, the English physician credited in the Western history of science as the person who first explained the circulation of blood.14

The original theory by al-Nafis is, however, rarely mentioned in Western literature. This is undoubtedly one of countless examples of appropriation of Arab knowledge by the West, which, as noted above, was itself largely a compilation of many knowledge traditions. Civilisations that were open to new knowledge traditions inevitably benefited from that openness economically, and in terms of influence and power. The sheer volume of work generated in the Middle East in the Medieval era and the Middle Ages was undoubtedly a product of, and a contribution to, the might of the Islamic Empire at that time. While much of that literature has not been read outside the Islamic world, there is no doubting the impact of Islamic medicine on the West. Avicenne alone wrote five volumes on medicine and the use of drugs. This influenced the practice of medicine in Europe for the next 500 years, while Averroes (Abu-I Walid Mahammad ibn Ahmed ibn Rushd) wrote seven volumes and influenced, among others, St Thomas Aquinas.15 Prospecting for Bioresources 35

‘Folk’ Medicinal Knowledge

In the early Renaissance, the publication of herbals flourished in Europe, particularly after the advent of printing. While herbals are—by their very nature—ethnobotanical or ethnomedical compilations of acquired communal or folk knowledge, the first printed herbals were not folk knowledge, but copies in Latin of translated Arabic works by Avicenna, Averroes and others.16 None were in vernacular Western languages, which symbolised a privileging of knowledge to those schooled in Latin. Further, as they were simply translations, they were not the product of empirical observation. “Folk herbal knowledge on the other hand, was not based on Latin or Greek authors. People got most of the drugs they used out of their gardens, and from the fields and woodlands.”17 While orthodox histories of medicine largely ignored folk practitioners and most of their knowledge went unrecorded, the invent of printing and the eventual printing in languages other than Latin, enabled European women healers to access herbals, increase their own knowledge, and inevitably contribute to knowledge accumulation and documentation. The importance of women in medicine is evident when we consider the fear of their power, represented by the burning of female healers as ‘witches’ from the Middle Ages through to the eighteenth century.18

A significant contribution to medicinal knowledge building by a Celtic woman in the thirteenth century was acknowledged in 2003 by researchers at the University of Wales.19 They had been examining the 600-year old Red Book of Hergest, a herbal used by the famed Physicians of Myddfai, where Myddfai is a village in South Wales. According to Welsh legend, a physician named Rhiwallon was the son of a ‘lake fairy’ who relayed to him her extensive knowledge of the medicinal use and location of plants. Rhiwallon documented the knowledge as the Red Book of Hergest, and founded a line of physicians that fanned out over Wales, practising medicine as instructed in the Book for hundreds of years. Contemporary researchers are impressed by the detail of this thirteenth century herbal. In late 2003, they started testing the knowledge held within the Book, using modern screening and tissue culture techniques.20

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This screening follows past success using herbal publications, which has led to the discovery of drugs still in use today. Of particular importance is The Herball, or General Historie of Plantes, published in 1597 and authored by John Gerard. This study has remained in print for over 400 years and has been used extensively by practitioners.21 In The Herball, Gerard claimed that the foxglove plant, Digitalis purpurea (Shrophulariaceae) was beneficial for treating disease in internal organs including the liver and spleen. Two hundred years later, William Withering investigated a herbal recipe used by an old woman in Shropshire to treat ‘dropsy’, “an ailment characterised by swelling of the limbs and torso, which we now know is due to inadequate pumping of the heart”.22 Upon referring to Gerard’s Herball, Withering identified foxglove as the active ingredient in the herbal medicine used by the English healer. Withering’s new drug was given the name Digitalis, which remains a popular drug for treating atrial fibrillation.23 But, in this example of the earlier illegitimate appropriation of knowledge, discovery of Digitalis is attributed to Withering without adequate acknowledgement of the contribution made by Gerard and the folk users of the plant.24 The documentation of this knowledge placed it in the public domain, where it became common knowledge or ‘common heritage’, which has made any claims of prior ownership difficult to verify.

Indigenous Medicinal Knowledge

The situation of folk medicinal knowledge is analogous to what has occurred, and is occurring, with Indigenous medicinal traditions. Biological resources and associated knowledge have been appropriated and effectively incorporated into dominant systems of ‘knowing’ and ‘owning’, most often without due recognition, acknowledgement or permission. One of the key differences between Indigenous knowledge traditions and folk knowledge is that Indigenous peoples transmit knowledge orally and therefore few records exist from antiquity. While folk knowledge is also an oral tradition, it has a much longer recorded history. Documentation of Indigenous knowledge has transpired only since first contact between Indigenous and non-indigenous peoples, where the practice of the latter is to record.

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This documentation process occurred not only due to curiosity and the emerging scientific tendency to observe and hypothesise, but was also borne out of necessity. Harding explains that, 25 since 1492, Europeans needed to attain the knowledge not only to reach other parts of the world, but to survive there. Worsley explains how American pioneers ‘borrowed’ Native American medicinal knowledge for survival,26 and incorporated it into herbals in the eighteenth century as ‘folk’ knowledge, while simultaneously declaring that Native peoples had no knowledge of value to the European settlers. Hence the documentation process of Indigenous knowledge was also borne out of the desire to expand the Empire. Brockway gives examples of the high mortality rates suffered by British colonists,27 especially in India and Africa. If not for the development of a cheap and reliable source of quinine, an anti-malarial drug developed from Cinchona, the Andean fever-bark tree, colonial expansion into many parts of the world by European powers would not have been possible. Cinchona was transported from the Andes to the Royal Botanical Gardens at Kew in the United Kingdom, specifically to meet the need for a fever medicine. Brockway makes a strong argument that plants were sourced from around the world at the request of Kew botanists to meet the economic goals of the Empire.28 Brockway examined the networks of relations between the collectors of botanical material, colonial governments and commercial interests, identifying these networks as the mechanism for Western botanical expansion. Collectors were “making and implementing decisions of worldwide implications with the wholehearted support of their government and the commercial establishments”.29

Throughout the nineteenth century, European governments, particularly the British, dispatched many plant collection missions. Some voyages were purely scientific, such as those of the Beagle, which facilitated the enormously influential work of the naturalist Charles Darwin.30 Many were carried out by botanists and naturalists attached to colonial expeditions. The plants collected and the accounts of the flora and people, documented by the collectors, provided information that often led to the political annexation of lands and people. Seeman’s expedition to Fiji, Baikie’s to Niger, and Livingstone’s on the Zambezi River are given as examples by Brockway of studies that Prospecting for Bioresources 38

led to eventual annexation. 31 In Australia, traditional plant use knowledge was recorded from first contact by explorers, missionaries, anthropologists, linguists, and some settlers.32

An essential element of this colonial process of appropriation was thus the establishment of botanical gardens to store accumulated samples of flora. Information pertaining to the traditional Indigenous use of these plants, although granted very little credibility at that time, was judiciously documented and is now found in archives.33 The material held in botanical gardens, and the archival and database information concerning the use of these biological resources, have become salient principal elements of research, providing leads for scientists in many bioprospecting projects.34 Without the observation of Indigenous peoples and the documentation of their medicinal knowledge, it is unlikely that the potential use value of these plants to the Western pharmaceutical industry would ever have been recognised or commodified.35

These historical experiences of bioprospecting are of significance to contemporary practices. The difference now is that the same knowledge and resources have the potential to reap a new form of economic reward, as technological advances have enabled novel uses for biological resources in a system further geared to private ownership for the purpose of capital accumulation. It is a new form of Empire building, as documented Indigenous knowledge and resources are targeted as ‘common heritage’ open to ‘legitimate’ appropriation. The outcome of this process is that while benefits from bioprospecting may materialise for states and corporate interests, dividends for Indigenous peoples have been largely illusionary. Few bioprospecting agreements signed thus far have provided significant benefits. Resulting royalties have been as low as 0.2 percent (or one fifth of one percent).36 Access to Indigenous peoples’ resources and knowledge has been therefore continuously pursued by bioprospectors informed by historical accounts and motivated by their willingness to discover ‘new’ sources of Indigenous resources and knowledge.

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Contemporary Interest in Indigenous Materia Medica

There are many projects currently underway which aim to discover and exploit Indigenous knowledge. As awareness of the value of Indigenous resources and knowledge grows within industry; wider academic and civil interest in the issue also grows. Popular literature and television documentaries on bioprospecting and the high value of Indigenous resources and knowledge have emerged increasingly in recent years. For example, researchers from the University of British Colombia have participated in the production of a television documentary called ‘Coming Full Circle’.37 The researchers employ archival Native American medicinal knowledge on rainforest plants to help them identify commercially valuable genetic and biochemical resources. Considerable success has been attained. Of the first 100 plants screened, 91 had useful activity against viruses and bacteria that affect people in developed and developing countries. The project researchers have come to the realisation that the traditional medicinal knowledge of Indigenous peoples, in this case Native Americans, is not only ‘credible’ but very sophisticated. Allison McCutcheon, the scientist undertaking the bioprospecting for this project, ‘marvelled’ at how the Indigenous population knew how to strip back so many layers of bark and then prepare the pulp in a certain manner to create a treatment for a specific disease. While McCutcheon concluded that such knowledge must be the result of trial and error, Rena Bolton, an Indigenous woman of British Colombia explained that the knowledge was instead revealed to them by the ‘great spirits’. 38

Hoodia and the San Peoples of the Kalahari Another illustration of contemporary interest in Indigenous knowledge is the case of the Hoodia cactus, a plant used by the San people of the Kalahari Desert as an appetite and thirst suppressant. The South African Council for Scientific and Industrial Research (CSIR) ‘discovered’ the potential of Hoodia through ethnobotanical publications, and patented the active constituents of the plant in 1996.39 In 1998, Phytopharm — a UK- based biotechnology company — signed a licensing agreement with the CSIR to develop an anti-obesity drug from Hoodia, before selling the licence to Pfizer in 2002. It is Prospecting for Bioresources 40

estimated that a drug derived from this plant could be worth between US$2 billion and US$8 billion per year.40 Chief Executive of Phytopharm Richard Dixey declared that it was difficult to reward the traditional owners of the knowledge of Hoodia properties as the people have ‘disappeared’. The ‘disappeared’ San peoples replied with a successful lawsuit and a highly successful public campaign which gained them support worldwide. It was an issue of focus at the 2002 Earth Summit in Johannesburg.41

As a result, the CSIR was forced to sign a benefit sharing agreement with the San in March 2003. The San will receive six per cent of any royalties received by CSIR and eight per cent of milestone payments through the various stages of drug production.42 Benefits though will be whittled away as Pfizer pays royalties to Phytopharm, who in turn pays royalties to CSIR, before the San are allocated their share from the royalties received by CSIR. Nevertheless, the San are likely to receive money from a drug with such enormous market potential. The money will be paid into a trust set up by the CSIR and the South African San Council. The trust will fund projects that aim to benefit all San peoples in Southern Africa, including those in Angola, Botswana, Namibia, Zambia and Zimbabwe.43 This ‘win’ by the San is considered a landmark case.

The general trend though is that bioprospecting contracts have not been sufficient to protect the interests of Indigenous Nations. Private corporations rarely deal with Indigenous peoples directly, but rather through intermediaries such as research scientists affiliated with universities and botanical gardens.44 A celebrated exception is (the now defunct) Shaman Pharmaceuticals.45 A closer look at Shaman however, reveals hidden perils in agreements signed for access to plant resources and/or knowledge that may eventually be detrimental to Indigenous peoples.

Shaman Pharmaceuticals

Shaman Pharmaceuticals began operating in 1990 as a pharmaceutical company reliant exclusively on the ethnomedical knowledge of Indigenous and local peoples for leads in pharmaceutical research. They claimed a 50-70 per cent success rate based on their own criteria.46 The company claimed to be successful in drug development, and in its Prospecting for Bioresources 41

relationship with Indigenous peoples and their environment. Shaman proposed a unique bioprospecting approach promising short-term benefits (for example, building of airstrips for local communities), medium-term benefits (for example, training of people to collect and prepare plant samples), and long-term benefits (for example, a return of profits to all groups willing to participate).

Shaman also established the Healing Forest Conservancy to promote the conservation of biological and cultural diversity in tropical forests. According to King et al — employees of Shaman Pharmaceuticals — the Conservancy was created to channel compensation into projects that conserved biocultural diversity.47 Shaman also benefited from the creation of the Conservancy, as it guaranteed a sustained natural product supply. Additionally, Western ‘Physicians’ assisted the ethnobotanists collecting for Shaman. The first task of the physician was, ostensibly, to administer medical care. The second task was to assist with ethnomedical information in order to diagnose disease seen or discussed with local healers and streamline analysis.48

Shaman thus promoted itself as an ethical organisation, and equally rewarded all communities who participated, regardless of whether their specific knowledge or resources contributed to profit making for the Company.49 But it was criticised by others, as the contributions of participating Indigenous and local communities were not mentioned in patent applications made by Shaman Pharmaceuticals, and were rarely mentioned in promotional material.50 In January 2001, Shaman Pharmaceuticals Inc. filed a petition for protection under US federal bankruptcy law, thereby ceasing all pharmaceutical development, manufacturing, and marketing. They have since ceased to exist as a company. A concern now for those communities who participated in the Shaman bioprospecting projects, is the future of the extensive database created by Shaman, with over 2600 tropical plants accompanied by documented ethnomedical histories of their use.51 There is the legal uncertainty as to who will now ‘own’ these samples and their associated intellectual property?

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Ethnobotanical Leads Examples of some well-known drugs discovered through ethnobotanical leads include aspirin, digoxin, digitoxin, morphine, codeine, reserpine, and pseudoephedrine.52 An odourless white powder derived from the bark of the quinine tree by Peruvian healers to treat fevers is now widely known to be useful against malaria and cardiac arrhythmia.53 Rosy periwinkle (Catharanthus roseus) has been recognised and used for its medicinal properties by many communities across the world from Madagascar to the West Indies. Research by pharmaceutical companies on rosy periwinkle led to the development of a drug vinblastine for treatment of Hodgkin’s disease, testicular cancer and breast cancer, and another drug vincristine for the treatment of childhood leukaemia.54 The red sap of bloodroot (Sanguinaria canadensis) was used by Native North Americans to induce vomiting, for relief of respiratory problems, and to treat warts and some cancers.55 The anti-microbial properties of bloodroot were recognised by the pharmaceutical industry, and oral health products based on the plant have been developed. A problem, though, that has become evident for Indigenous peoples is how to establish a claim to a medicinal plant when it is utilised by industry to treat an illness different to the use identified by Indigenous peoples. Another problem concerning ‘ownership’ and ‘access’ arises from recognition that many groups from diverse regions may share similar knowledge of a plant, such as, for example, rosy periwinkle.

The paths for bioprospectors to specific communities with knowledge that shows promise for pharmaceutical research are further illuminated by contemporary popular literature. Glossy publications on, for example, Australian Aboriginal medicinal plants, including those by Isaccs,56 Low,57 and Lassak and McCarthy,58 respectively, are to be found on the shelves of major book stores, as the knowledge of the Aboriginal ‘Other’ continues to be collected, documented and archived, often prompted by the presumption that such knowledge systems need to be ‘rescued’ as artefacts.59 Despite Moran’s assertion that 80 percent of the world’s population depend on traditional medicines,60 it is widely perceived that Indigenous medicinal knowledge is fast disappearing along with its practitioners.

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Thus, concern has emerged among Indigenous and non-indigenous people alike, as has support for the promotion of the documentation of Indigenous medicinal knowledge for posterity. Exercises such as the Traditional Medicines Project conducted in Australia’s Northern Territory and funded by the Australian government, resulted in two major publications, Traditional Bush Medicines–An Aboriginal Pharmacopoeia (1988)61 and Traditional Aboriginal Medicines In the Northern Territory of Australia (1993).62 Such projects may be motivated by good intentions but they can have negative impacts, including the loss of intellectual property rights for Indigenous peoples (as discussed further in later Chapters). Further, expressions of concern for knowledge loss can delegitimise living cultural knowledge systems by negating the fact that medicinal research conducted by Indigenous peoples is not restricted to historical data; similar to other cultural activities it is a dynamic, ongoing process, not simply an artefact.

In sum, documentation and incorporation of medicinal knowledge has occurred presumably at least since written languages emerged. The fact that bioprospecting has only recently gained recognition as an issue that requires a political solution, reflects the power relations that have worked to ensure this practice has been considered ‘normal’, and the power vested in the ownership regimes that have served to facilitate the exploitation of natural resources as ‘private property’ and ‘intellectual property’. Contemporary techniques utilised to access, transform and enclose Indigenous resources and knowledge also reflect relations imbued with power favouring those with control of such mechanisms.

Modern Bioprospecting Techniques

Bioprospecting is portrayed as a vitally important tool for the pharmaceutical industry to attack new diseases such as Ebola. In addition, long established afflictions such as cancer and HIV AIDs are proving difficult to treat, and drug resistant old diseases including tuberculosis have re-emerged.63 All have prompted a resurgence of interest in developing drugs from natural products. From the end of World War Two through to the early 1970s, extracts of active substances from plants were central to the development of pharmaceuticals. In the 1980s, the importance of natural products to the Prospecting for Bioresources 44

pharmaceutical industry declined.64 It was instead widely believed within the industry that drugs could be chemically synthesised in the laboratory faster and at less expense. Ethnobotanical approaches to drug research became thought of as antiquated in comparison to computer-assisted “designer pharmaceuticals.”65 In the current climate of rapidly expanding technology, particularly in biotechnology, the industry has come ‘full circle’, with the development of drugs from natural products again considered commercially attractive.66

There are estimated conservatively to be around 1.4 million organism species on the planet,67 including some 250,000 to 500,000 plants,68 the vast majority of which are located in the economically poor, but culturally and biodiversity rich, Third World, and on ‘frontier’ lands occupied and/or claimed by Fourth World peoples. Microbial metabolites isolated from environmental samples such as soil, leaf litter, animal dung and beetle carcasses are the most useful elements to pharmaceutical natural product research.69 Yet, plants remain popular precisely because they are so diverse and numerous,70 and despite problems with screening, including poor solubility and instability of some plant extracts,71 the contemporary challenge facing industry is how best to access and identify useful plant resources for commodification.

Bioprospectors are known to use phylogenetic information to collect samples of the same taxon as those already showing promise in laboratory tests.72 The most appropriate and prolifically applied method in the search for plants with specific application in pharmaceutical and other industries is, according to researchers working in the field, ‘serendipity’ or random sampling.73 While it would appear to be prohibitively expensive and logistically impossible to simply collect and test plants indiscriminately for specific activity, Borris74 and Turner75 identify this method as the most appropriate. Soejarto, however, disputes this assertion, claiming the term ‘random sampling’ is a misnomer, “as botanists do not simply walk into the forest blindfolded”.76 They are looking for as yet ‘undiscovered’ plants with potential application in industry. These ‘undiscovered’ plants often represent essential components of Indigenous pharmacopoeia. Prospecting for Bioresources 45

Another rarely used bioprospecting method is to observe interactions between organisms—plants and insects, plants with other plants—where chemicals might be produced to deter predators. Such bioactive compounds may show activity in humans. This method though is time consuming and expensive for bioprospectors, and has a low probability of success.77 Yet, it is a technique utilised by Indigenous peoples as documented by ethnobotanists. For example, in 1733, Carl Linnaeus, the famous Swedish naturalist and ethnobotanist, documented the use of insectivorous plants by the ‘Lappish’ or Sami peoples. His observation of the Sami using the leaves of one such plant to curdle milk “demonstrated how people had exploited for a new purpose an enzyme used by the plant for the digestion of insects”.78 Plants in tropical areas are especially likely to develop mechanisms against predation by insects, animals and disease, and in a crowded and competitive environment, mechanisms for efficient use of energy and nutrients. Sheldon et al. explain that:

For these reasons a greater proportion of tropical plants contain alkaloids (and other secondary compounds that are potentially useful medicinals) than can be found in any other type of climate or vegetation. It is believed that these compounds evolved to act on species with metabolisms similar to ours, so it seems logically possible that they would have an effect on humans as well. These secondary metabolites – in many cases the front line of a plant’s defence – are ironically the reason that many medicinally valued species are now being overharvested to a point that threatens their survival and, indirectly, our own.79

Without observing such Indigenous use knowledge, again, it is highly unlikely that the potential value of these plants to Western medicine would have been recognised.

As medicinal research by Indigenous peoples is a dynamic, ongoing process, bioprospectors are also greatly interested in contemporary Indigenous medicinal knowledge and medicinal practice. An increasingly prevalent industry approach in the search for raw materials is, therefore, the contemporary observation of Indigenous peoples for their botanical, agricultural and pharmaceutical knowledge. It is widely considered a research ‘shortcut’.

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Collecting institutions bioprospect within their area of origin and beyond, aggregating impressive stores of genetic and biological material and conducting basic research. Legal access to these resources is secured through contracts and agreements.80 For example, the University of Illinois Chicago (UIC) has contracts and agreements signed with representatives of the owners of samples collected. Through these, the UIC secures the right to patent material and transfer it to other government organisations such as the National Cancer Institute (NCI) or to industry through Material Transfer Agreements (MTA). But generally lost in these commercial transactions are the intellectual property rights of Indigenous peoples. They are often unaware that their knowledge and resources are being transferred without their permission and without prospects for reward or acknowledgement.81 While the original contracting party, in this case the UIC, can negotiate with the third party (for example, the NCI and industry) for a share in the profits for the Indigenous owners, there are no guarantees of benefit sharing.82

Operating within this approach are companies and individuals who collect genetic material for sale. Biotics, a British bioprospecting company, freely admits that it provides genetic resources and information to pharmaceutical corporations without rewarding the original owners, maintaining that these corporations prefer material which has been obtained illegitimately.83 A Connecticut based company, Microsource Discovery Systems Inc., claims to provide chemical extracts from the Amazon.84 It advertises ‘one stop shopping’ with ‘no rights retained’: presumably no rights retained for the original owners or suppliers either. Such examples support the assertion that, at present, many bioprospecting projects are carried out illegally, and for some, this amounts to ‘biopiracy’.

Research institutions may also dispatch contracted collectors into a community to simply spy. The collector may ask a local healer ‘what is that plant?’, or ‘what do you use it for?’, or ‘how do you prepare it?’ They then relay that information, together with samples, back to their research institution. Once back in the institution, plant extracts are screened against any number of known diseases. If they show promise, then further biotechnological techniques may be employed in an attempt to produce a commercial Prospecting for Bioresources 47

product. If a sample is not found to be useful for treating a specific disease of interest to the company, it is stored for possible future use or traded like any other commodity to other pharmaceutical, agricultural, food, or chemical companies.85

Videl draws attention to the experience of ethnobotanist Conrad Gorinsky, who spent several months with the Wapishana tribe in Guyana and simply picked up off the ground a nut from the greenheart (Octotea rodiaei) tree and asked, “what can I do with this?”86 He has since patented a chemical protein from the greenheart tree, amid criticism for theft of the knowledge that he acquired during his time spent with the Wapishana tribe. The Amazon rainforest vine Ayachuasca (Banisteriopis cappi), traditionally used as a hallucinogenic medicine in sacred ceremonies, has had a US patent re-instated (US patent #5751) after an appeal by the traditional owners of the knowledge against the original patent was quashed.87 The Andean Root Maca, used traditionally as a medicinal plant by Native Peruvians and recognised in the pharmaceutical industry for its ‘Natural Viagra’ properties,88 has recently been patented in the USA. This has incited strong outcries of biopiracy from communities in Latin America and maca grower associations in Peru.89 Similarly, in India, activism resulted in a positive outcome when the wound healing properties of tumeric as used by Indians, was recognised and patented by a US pharmaceutical company. The patent was overturned due to the determination of activists who took the issue to court and won.90 They were supported by non-government organisations (NGO’s) such as the Erosion, Technology and Concentration (ETC) Group (formerly RAFI), and Genetic Resources Action International (GRAIN).

The healing properties of honey from the Manuka tree have also been recognised as successful in treating many of the ‘superbugs’ present in hospitals, including Staphlyococcus and Entrrococcus, which cannot be treated even with strong ‘last resort’ antibiotics including methicillin and vancomycin.91 Honey as a medicine has a long history going back to recommendations by Aristotle.92 Unlike honey varieties that kill bacteria by forming hydrogen peroxide when diluted, manuka honey has unique values which researchers have not yet been able to identify.93 Made from the flower essences of Prospecting for Bioresources 48

the New Zealand manuka or tea tree (Lepospermum scoparium), the honey has long been used as a medicine by Maori, the Fourth World peoples of Aotearoa/New Zealand. A rubbery wound dressing made entirely from manuka honey has been produced for the market, and research into further commercial possibilities is currently under way without, in the view of many Maori, acknowledgement or reward for Maori people.94 A further complication to the Maori claims has emerged, as screening of honey from tea tree (Leptospermum polygalifolium) in Australia has demonstrated the same properties.95

Disputes over the origin of resources and knowledge are significant, particularly in relation to intellectual property rights claims, a complex area addressed in Chapter Five. Nevertheless, such disputes do not detract from critiques of the ways Indigenous resources and knowledge are accessed. By comparing the method used in the eighteenth century by Withering in the ‘discovery’ of digitalis with the methods used by ethnobotanists in the search of ethnobotanical resources today, Balick and Cox demonstrate that little has changed in the discovery process,

[as] folk knowledge of a plants possible therapeutic activity accumulates; (2) a healer uses the plant for her [sic] patients; (3) the healer communicates her knowledge to a scientist; (4) the scientist collects and identifies the plant; (5) the scientist tests extracts of the plant with a bioassay (a preliminary screen for the desirable pharmacological activity); (6) the scientist isolates a pure compound by using the bioassay to trace the source of the activity in the plant extract; and (7) the scientist determines the structure of the pure substance.96

As this knowledge is often accessed without the fully informed consent of the original owners or custodians of the knowledge, this bioprospecting technique is identified by Christie97 as illegitimate, and is often referred to as ‘biopiracy’ by its critics.98 In Chapters Four and Five it is demonstrated how dominant knowledge and ownership regimes have supported ‘biopiracy’, in not recognising and rewarding original knowledge and ownership systems. The Indigenous resources and knowledge secured in this manner can, through the use of biotechnological techniques, be incorporated, ‘enclosed’ and transformed into knowledge understood only by a privileged few trained in this field of science as I have already acknowledged. The resources and knowledge can further be enclosed using intellectual property rights mechanisms including Prospecting for Bioresources 49

patenting, that assign exclusive ownership to the ‘biopirates’ or third parties. It is then increasingly evident why, despite repudiation within the biotechnology industry of its value, there is such a keen interest in Indigenous resources and knowledge.

Intensified Interest in Bioprospecting

In addition to historical knowledge and ownership legacies, there are three more important reasons why interest in bioprospecting is intensifying: (1) technological innovations; (2) commercial viability; and, (3) concern that knowledge is disappearing with its practitioners.

Technological Innovations

Aided and abetted by technological innovations, particularly biotechnology and microelectronics, a return to natural product research has become more economically viable, particularly when the research field can be narrowed using the traditional medicinal knowledge of Third and Fourth World peoples. Extracts from dried biological samples that have potential in drug development can be assayed for active compounds using high-throughput screening techniques. Since the 1980s, robotics has freed researchers from the manual tasks of running assays, while miniaturisation has drastically reduced the amount of reagent used (down to as little as 20 nanolitres in volume). This has enabled high-throughput screening of up to 100 000 compounds a day.99 Also Bioinformatics (the management and analysis of biological information) is a substantial technological innovation, central to advances in modern pharmaceutical research and modern biotechnology.100

Combinatorial chemistry (combichem) is another significant technological innovation. It is a method for creating a large number of chemicals with the overall aim of finding one compound that will match a given drug target.101 Combichem has been used to generate collections of compounds stored in databases, produced in academic and other public institutions, and accessed by researchers (mainly working in the private sector) to find compounds similar to ones they may be researching. Chemical databases were initially Prospecting for Bioresources 50

created as repositories for synthesised compounds, but now are an important tool for pharmaceutical research as they can provide leads for drug discovery.102 These databases are referred to as ‘virtual libraries’ enabling virtual screening (VS) methods that allow researchers to filter databases for desired (or undesired) compounds, assessing drug-like characteristics, solubility and absorption characteristics and so on. Small subsets of compounds are computationally selected from large databases and assayed,103 and then from the results, research is refined. This process is streamlined using high-throughput screening.

These enhanced bioassay methods and chemical instrumentation—chromatography and mass spectrometry—ensure that biologically active molecules can be detected, isolated and identified from sub-milligram samples.104 As a result, the cost of screening plants has declined dramatically. With expected advances in virtual screening, robotics and miniaturisation in the next decade the process will be even more expeditious and inexpensive. At present, microbial samples—soil, leaf litter, animal dung or beetle carcasses—of as little as one gram up to 50 grams, and plant material of between 200 and 500 grams dry weight, are normally required, although archived herbarium specimens may even be sufficient.105 Formerly, between one and ten kilograms of plant material of one sample was required for the initial research phase, and if promising, access to hundreds of kilos of the same in situ resource, perhaps on several occasions, would be needed to undertake an effective screening program.

While some bioprospectors may seek to harvest large quantities of resources if the initial research phase shows promise, bioactive compounds can now be synthesised making it unnecessary to re-access the in situ resources. Moreover, advances in tissue and cell culture mean that secondary metabolites can be produced on an industrial scale. Such production will progressively eliminate the need for mass cultivation or collection of in situ raw material, and will eventually eliminate need for the natural product.106 These techniques are invaluable when access to in situ plants is no longer viable, as is the case when pharmaceutical corporations have control of a small sample of a valuable plant they have accessed through bioprospecting, but are not in a position to re-access the Prospecting for Bioresources 51

plant perhaps for economic, ecological, legal or political reasons. Using clonal propagation techniques, companies are able to reproduce as much of the sampled plant as is necessary, to utilise that plant and to incorporate the end product into their knowledge system as a product different from the original plant, and thus patentable. The power of biotechnology corporations is thus enhanced by their ability to appropriate the knowledge and resources of others as a source of economic and political gain.

Moreover, commentators lament that despite all the advances in technology, no increase in productivity has resulted.107 As discussed earlier, despite rapid increases in R&D expenditure, the number of drugs developed has declined dramatically. Reliance on methods such as combinatorial chemistry to boost drug development prospects has also become questionable. Vince Anido, CEO of CombiChem Inc. has warned against placing too much faith in simply producing millions of compounds and storing them in libraries as a means to drug development.108 The difficulty of achieving success in drug development using this method is evident as plants and microbes produce hundreds of thousands of chemicals, each with its own unique mix, and involves a complexity that cannot be matched in the laboratory. This is one of the major limitations on drug development from bioprospecting.

In 1995, these limitations were recognised by researchers participating in a bioprospecting project originating from the University of British Columbia, Canada, when they noted the difficulties involved in synthesising resources from nature. Taxol, a compound extracted from the Yew tree, a plant used for medicinal purposes by the First Nations of Canada, had shown strong cancer fighting activity, but proved to be a significant challenge for researchers. To use the product directly from nature, more that 1000 Yew trees would have been required to treat one patient. Yet synthesising taxol from its chemical constituents was difficult to accomplish, because 27 different chemistry steps are required to achieve this, as it has an unusually difficult structure.109

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With the challenges nature produces by its complexity, acknowledgement has emerged that nature is ‘hard to beat’. Monsanto’s Robert Horsch explained that there has been a lot of focus on synthesising proteins in recent years, “but we can’t even dream of making all possible combinations. Nature has been trying this experiment for two billion years”.110 Peter Raven, Director of the Missouri Botanical Gardens is confident that plants will increasingly become more important to drug discovery, conceding that: “[I]t is true that the large drug companies aren’t spending much time looking at them now – but they will.”111 Most conclude, however, that the probability of finding a compound useful in drug development from either nature or from synthetic means is minimal.112 Instead, the most likely outcome will be a combination of natural and synthesised products in drug development.113

Commercial Viability of Bioprospecting

The second reason interest in Indigenous resources and knowledge has been augmented is due to the recognition of the value of this information in commercial terms to the industry.114 In 1986, one industry analyst issued a warning that each medicinal rainforest plant lost though diminishing biodiversity could cost pharmaceutical companies more that US$200 million in lost earnings.115 Note, the primary concern is for lost sales, not for lost biodiversity. While Lewis maintains that Indigenous peoples have, to date, underestimated the value of their knowledge,116 others argue that their perception of the value of their knowledge and resources is exaggerated.117 Regardless of whether ethnobotanical information is utilised or plants are collected on a purely random basis, all samples destined for pharmacological development require assaying within a laboratory, which is expensive, time consuming and produces few results. Yet, any ethnomedical information accompanying a sample is routinely and dutifully procured and collated.118

Despite claims by Laird,119 and Farnsworth and Soejarto,120 that approximately 74 per cent of all modern drugs discovered are the result of leads provided by Indigenous medicinal knowledge acquired mostly from literature, other commentators—for example, Sittenfeld and Gamez,121 Borris,122 Turner,123 and Davidson et al.,124—dispute Prospecting for Bioresources 53

the value of ethnobotanical and ethnomedical information to pharmaceutical research. Indeed, Borris and Turner maintain that the value of Indigenous knowledge to natural product research in the pharmaceutical industry is minimal. It is a costly, but necessary complement to “the basic pharmacology/cell biology/ biochemistry based discovery program”, pursued only for diversity in pharmaceutical research. 125 Both Borris and Turner assert that in the current research climate where all samples are tested in all available screens, Indigenous medicinal knowledge is irrelevant.126 Davidson et al. agree with that argument, claiming that such knowledge is only beneficial if researching a narrow range of target diseases.127

Although Soejarto hails traditional medicinal knowledge for providing leads that shortcut the discovery of modern medicine, he does concede that the “hit rate” has been high only when the treatment and cure relationship is obvious, as in antibacterial, antifungal and antiviral treatments.128 There has been less success in the anticancer and anti-HIV screens. It has to be conceded that very few pharmaceutical companies have developed drugs in these specific disease areas using Indigenous resources and knowledge; or few have acknowledged success using resources and knowledge they had legal access to. The answer to this enigma probably lies in the fact that the diseases most evident today were virtually unknown in Indigenous communities of the past. Another answer could be the failure, as noted earlier in this chapter, to adequately acknowledge the source of historically documented knowledge which is now often leading research projects. If indeed the usefulness of Indigenous knowledge is questionable, then this highlights the logical paradox of why bioprospecting collectors— who ‘comb’ the earth, particularly tropical areas of high biological and cultural diversity, collecting biological resource samples—are so keen to consult Indigenous knowledge.

‘Disappearing’ Knowledge and Practitioners

The third reason that bioprospecting (and biopiracy) is gaining momentum is a perceived loss of Indigenous knowledge. Although 80 per cent of the world’s population depend on traditional medicines,129 Indigenous medicinal knowledge is perceived to be Prospecting for Bioresources 54

disappearing along with its practitioners. According to Rural Advancement Foundation International (RAFI), such knowledge is sometimes referred to in the West as the ‘3Qs’ ⎯ ‘quaint’, ‘quackery’ and ‘quit’. 130 ‘Quit’, a presupposition of impending extinction implies that if Indigenous peoples are no longer living in a traditional manner—that is living a subsistence lifestyle on traditional land—then they no longer possess knowledge. Yet, worldwide, Indigenous people who have been living ‘Western’ lifestyles for generations are continually exposed to their oral traditions and traditional life skills, and some continue to use traditional medicines.131 Undoubtedly, an inordinate quantity of precious knowledge has disappeared, an irrevocable situation due especially to assimilation and acculturation pressures, acutely evident as young Indigenous people accept Western lifestyles and turn away from traditional ways.132

Significantly, the UK based Working Group on Traditional Resource Rights (WGTRR) attributes the loss of plant knowledge to the loss of traditional languages.133 As Brush argues, “[L]ike biological diversity, language and culture are repositories of information gained through evolution … Culture and language loss depletes the store of information as surely as the loss of biological diversity”.134 Balick and Cox confirm the importance of language when they encourage all ethnobotanists to master the vernacular of the healers they are working with.135 Translations of the categories and explanations for disease may render them meaningless, as no comparative terms or ideas may exist in other languages. This can often prove difficult, as the languages of many Indigenous cultures have no written form, or exist only as translations of religious texts.136

Brush laments the rapid loss of “human cultures and languages”, some of which have been documented by linguists and anthropologists.137 Valued for their antiquity, they have been incorporated into Western institutions such as museums, libraries, universities and other places of learning. Languages and cultures are, however, different to biological resources, in that they cannot adequately be preserved in museums or ‘language banks’. They need to be kept ‘alive’ and in use.138 Much of the established terminology accepted in Western taxonomy and pharmacology has roots in Indigenous languages. In fact, the study of Sami and other Indigenous nations by Linnaeus led to Prospecting for Bioresources 55

the formal system of classification universally accepted in botany, known as Linnaean taxonomy.139 Science historian David Arnold believes the reluctance to explore and credit Indigenous knowledge systems is based on “cultural prejudice” evident since the colonial era began.140 As Balick and Cox commented:

Since Western medicine was regarded as prima facie evidence of the intellectual and cultural superiority of Europeans, the figure of the medicine man or shaman was often viewed as inimical to social and cultural progress. Indeed the pejorative term ‘witch doctor’ has come to stand for savagery, superstition, irrationality, and malevolence.141

Therefore, despite the recent interest in this knowledge, the cultural divide remains and is portrayed as a schism between modernity and antiquity, as discussed further in Chapter Four. Turner, for instance, discredits ethnobotanical and ethnomedical information and its possible utility in contemporary scientific, and specifically pharmaceutical research, as it “does not define disease in terms that we conveniently understand”.142

Regardless of disagreements concerning the validity of explanations for disease, there is evidence that the efficacy of traditional medicine in treating and preventing disease is often comparable to modern industrial medicine. Paradoxically, Indigenous peoples generally have the worst health conditions in the world, but the historical genesis of this situation lies with European expansion, which resulted in the spread of new diseases to people with no immunity. Introduced disease was followed by introduced and unaffordable medicines, resulting in what Bulard calls the “apartheid of pharmacology”,143 while traditional medicines were strongly decried and in some cases outlawed.144

As a result, there is now a prevailing, yet paradoxical assumption within Indigenous communities themselves that Western medicine is always superior, especially amongst those most affected by colonial hegemony. This has led young Indigenous peoples especially to feel shame rather than pride in traditional medicinal knowledge, even as bioprospectors increasingly target their knowledge for the development of Western Prospecting for Bioresources 56

drugs.145 Some elders have thus come to the view that traditional knowledge is unlikely to attract its young unless it offers some economic benefit.146 This then raises the question of whether viable economic opportunities are forthcoming for those Indigenous communities who embrace bioprospecting.

Some Mayan communities in Chipas, Mexico, are supportive of proposed bioprospecting projects, although the Action Group on Erosion, Technology and Concentration (ETC Group⎯formerly RAFI) has been critical of the proposed bioprospecting agreements.147 However, Darrell Posey, himself an informed critic of bioprospecting, has attacked the ETC Group, accusing them of conducting a smear campaign against Brent Berlin and his US-funded International Collaborative Biodiversity Group (ICBG) bioprospecting project. Posey believes the ETC Group are misguided when they criticise all bioprospecting as they undermine the possibility of some Indigenous peoples being able to enter into agreements that provide equitable benefits for the sustainable use of their resources.148

The Kuna Indians of Panama have established a system of controlled access for researchers on native land, as have the Awa of Cachi in Ecuador.149 Hawley reported that some groups in Latin American see bioprospecting as an opportunity to develop capitalist ventures. This, they perceive, will help maintain their cultural integrity and also provide funds for insurgency operations aimed at gaining self-determination.150

Reid et al., while not specifically identifying Indigenous peoples as beneficiaries, strongly advocate bioprospecting, insisting that the commercialisation of Indigenous knowledge and resources will facilitate economic development.151 While Grifo and Downes essentially agree,152 Brush continues to harbour some reservations.153 This author argues that economic benefit from commodification may be allocated entirely to the elite, those within non-Indigenous or Indigenous communities who can claim sovereignty over resources, while the majority of Indigenous peoples will lament the loss of another of their commercially valuable and culturally fundamental assets. With Prospecting for Bioresources 57

its focus on access issues, this study thus also probes the possibility, and implications, of further disempowerment of the Nation from within.

Conclusion

Oriental, Indigenous and peasant ‘folk’ knowledge has proved valuable for basic research in drug ‘discovery’ programs for centuries. The judicious collection and documentation process was carried out as an integral element of colonisation, and indeed, the medicinal knowledge acquired through these processes facilitated the colonisation process, enabling colonisers to survive and to even annex new lands and people. In the contemporary setting, the practice of bioprospecting is flourishing, while continuing to provide minimal rewards for Indigenous peoples whose knowledge and resources inform the practice. This theme underpins issues of access and is central to this study and its progress of identifying historical and contemporary explanations for the marginalisation of Indigenous peoples and their knowledge and ownership systems in the debate on access to biological resources. Biotechnological processes enable some people to have access to and control of knowledge used to transform and give new meaning to, for example, natural resources, a meaning shared by a select few privileged by their training.

In recent years, critical literature has raised awareness of the sometimes unethical, though often not illegal, nature of bioprospecting. Yet I have observed in the literature an overall failure to identify the unique interests and concerns of Fourth World Nations as opposed to the interests and concerns of the Third World. For example, the experience of Aboriginal Australians is significantly different to that of peoples in Africa, Asia or Latin America. The essentialist assumption in the literature is of a similar experience, as though all Indigenous peoples have a single history. While some of the experiences of biopiracy are comparable, there is a need to recognise that the different geopolitical positions of Third and Fourth World peoples make their experiences very different, which is particularly important when considering policy development. Tensions between states and their encapsulated Nations mostly revolve around land, Prospecting for Bioresources 58

cultural and resource rights, and constitutional issues.154 To establish a contemporary theoretical framework for this exploratory thesis analysing Fourth World issues in relation to bioprospecting, I return to a review of relevant theoretical literature in the following chapter.

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ENDNOTES

1 Ho., P. Y., and F. P. Lisowski., Concepts of Chinese and Traditional Healing Arts: A Historical Review, cited in book review by Frederic Clairmont., “The Chinese Contribution to Universal Medicine”, Third World Resurgence, No. 44, April 1994, p. 51.

2 Dreyfus, Hubert. L., and Rabinow, Paul., “The Subject and Power”, Michael Foucault: Beyond Structuralism and Hermeneutics, 1982, pp. 208-209.

3Shiva, V., “Biotechnological Development and the Conservation of Biodiversity”, Biopolitics: A Feminist and Ecological Reader on Biotechnology, Vandana Shiva and Ingunn Moser (eds), London: Zed Books, 1995, p. 193.

4 Lavenda, R. H., and Schultz, E. A., Core Concepts in Cultural Anthropology, second edition, Boston: McGraw Hill, 2003, p. 197.

5 Viergerer, Marcel., “Indigenous Knowledge: An Interpretation of Views from Indigenous Peoples”, What is Indigenous Knowledge? Voices from the Academy, Semali, Ladislaus. M., and Kincheloe, Joe. L., (eds), New York: Falmer Press, 1999, p. 337.

6 Lavenda and Schultz., Core Concepts, op. cit.

7 Dyck, Noel., “Aboriginal Peoples and Nation-States: An Introduction to the Analytical Issues”, Indigenous Peoples and the Nation-State, St Johns Institute of Social and Economic Research, Memorial University of Newfoundland, 1985, p. 16.

8 Bracegirdle, B., “Medicine is History”, Devils, Drugs and Doctors: A Welcome History of Medicine, Sydney: The International Cultural Corporation of Australia, 1986, p. 34.

9 “Health was thought of as the proper balance between four ‘humors’ – phelegm, blood, black bile and yellow bile….treatment was based on diet rather than drugs, as the intention was to recreate the proper harmony of the humors.” Bracegirdle, Ibid., p. 35.

10 Moore, J.A., Science as a Way of Knowing: The Foundations of Modern Biology, Cambridge, MA., Harvard University Press, 1999, p. 49.

11 Balick, Michael J., and Paul Alan Cox., Plants, People and Culture: The Science of Ethnobotany, New York: Scientific American Library, 1997, p. 13.

12 McClellan, J.E III., Dorn, H., Science and Technnology in World History: An Introduction, Maryland, US: The John Hopkins University Press, 1999, p. 111.

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13 Lewis, B., What Went Wrong?: The Clash Between Islam and Modernity in the Middle East, London: Weidenfeld & Nicolson, 2002, p. 79.

14 Ibid. p. 79-80.

15 Worsley, P. Knowledge: What Different :Peoples Make of the World, London: Profile Books, 1997, p. 187-8.

16 Ibid.

17 Balick and Cox, Plants, People and Culture, op. cit., p. 13.

18 Easlea, Brian., Witch-hunting, Magic and the New Philosophy: An Introduction to the Debates of the Scientific Revolution, Brighton, Sussex: Harvester Press, 1980. ; Orenstein, G., excerpt from The Reflowering of the Goddess, New York: Pergaman Press, 1990, www.dhushara.com/book/renewal/voices2/oren.htm

19 Whitfield, John., “Botanists Probe Medieval Medicine”, Nature Science Update, February 12 2003, www.nature.com/nsu/020715/020715-15.html

20 Ibid.

21 Balick and Cox., Plants, People and Culture, op. cit., pp. 13-14.

22 Ibid., pp. 14.

23 Ibid., p. 17.

24 The development of aspirin, another plant derived drug, has a similar history. In the Herball, Gerard wrote about the plant from which aspirin is obtained: “the roots of this plant ‘when boiled in wine and drunken, are useful against all pains of the bladder’.” Ibid. p. 32. Research on the plant continued over the next three hundred years, particularly in efforts to alleviate side effects. “Then in 1899 the Bayer company began to market a synthetic derivative, acetylsalicylic acid, which has higher pharmacological activity and fewer side effects.” Ibid. p. 32.

25 Harding, S., Is Science Multicultural, op. cit., p. 43.

26 Worsley., Knowledge: What Different, op. cit., pp. 211-214.

27 Brockway, Lucille. H., Science and Colonial Expansion: The Role of the British Royal Botanical Gardens, New York: Academic Press, 1979, p. 127.

28 Ibid., pp. 126-133.

29 Ibid., pp. 9-10.

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30 Ibid., pp. 84.

31 Ibid.

32 Webb, L. 1969. Australian Plants and Chemical Research Brisbane: Jacaranda Press, p. 84.

33 Soejarto, Djaja Djendoel., “Biodiversity Prospecting and Benefit-Sharing: Perspectives from the Field” Journal of Ethnopharmacology, 51, 1996, p. 14.

34 Their aim is to access and identify useful genetic resources. Reid, Walter V., “Gene Co-Ops and the Biotrade: Translating Genetic Resource Rights into Sustainable Development”, Journal of Ethnopharmacology, No. 51, 1996, p. 82.

35 Ibid.

36 Ibid., p. 45.

37 Coming Full Circle: Plants That Heal, Audiovisual, Force Four Productions Ltd. (Vancouver) in Association with The Discovery Channel and WorkWeek Television Product Inc, 1995.

38 Ibid.

39 Wynberg, R., “Sharing the Crumbs With the San”, Biowatch, March 2003, p. 1, www.biowatch.org.za/csir-san.htm ; Sayagues, Mercedes., “Rights: Reversing Worldwide History of Exploitation of Indigenous Peoples”, Inter Press Service News, 28 March 2003, p. 1, http://ipsnews.net/interna.asp?idnews=17121

40 ETC Group. 2002. ‘Biopiracy + 10’. Communique. Issue No. 75, March/April, p. 4. Wynberg., “Sharing the Crumbs With the San”, op. cit, p. 1.

41 Sayagues., “Rights”, op. cit., p. 2.

42 Ibid. ; UN Integrated Regional Information Network. 2002. ‘Earth Summit: Focus on Biopiracy in Africa’. GRAIN. August 30. p. 4.

43 Wynberg, “Sharing the Crumbs With the San”, op. cit., pp. 1-2. ; Sayagues., “Rights”, op. cit., pp. 1-2.

44 Rural Advancement Foundation International., “Bioprospecting/Biopiracy and Indigenous Peoples, RAFI Communique, November, 1994, p. 4.

45 King, S.R., Carlson, T.J., and Moran, Katy., “Biological Diversity, Indigenous Knowledge, Drug Discovery and Intellectual Property Rights”, S.B. Brush and D. Stabinsky (eds), Valuing Local Knowledge: Indigenous People and Intellectual Property Rights, Washington D.C.: Island Press, 1996.

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46 Rubin, Stephen M., and Fish, S.C., “Biodiversity Prospecting: Using Innovative Contractual Provisions to Foster Ethnobotanical Knowledge, Technology and Conservation”, Endangered Peoples: Indigenous Rights and the Environment. Colorado Journal of International Law and Policy, Vol 5:1, p. 29.

47 Ibid.

48 Ibid., pp. 47-8.

49 King, Steven R., “Establishing Reciprocity: Biodiversity, Conservation and New Models for Cooperation Between Forest Dwelling Peoples and the Pharmaceuticals Industry”, Intellectual Property Rights for Indigenous Peoples: A Sourcebook, Tom Greaves (ed), Oklahoma City, Oklahoma: Society for Applied Anthropology, 1994.

50 GRAIN. 1997. ‘Biopiracy’s Latest Disguises’. Seedling. June. p. 7. www.grain.org/publications/jun971-en-p.htm

51 MultexInvestor. 2002. ‘Shaman Pharmaceuticals Inc. (OTC) – Business Description’. MultexInvestor. http://yahoo.marketguide.com

52 Myerscough, M., The Biological Activity of Some Tiwi Medicinal Plants, unpublished Masters Thesis, University of Sydney / Menzies School of Health, 1997, p. 17.

53 Balick and Cox. Plants, People and Culture, op. cit., p. 27.

54 Wood Sheldon, J., Balick, M., and Laird, S., Medicinal Plants: Can Utilisation and Conservation Co-Exist, New York: The New York Botanical Garden, 1997, p. 13.

55 Ibid., p. 8.

56 Isaacs, J. Bush Food: Aboriginal Food and Herbal Medicine, McMahons Point, NSW: Weldons, 1987.

57 Low, T. Bush Medicine, North Rhyde, NSW: Angus and Robertson, 1988.

58Lassak, E. & McCarthy, T. Australian Medicinal Plants, Port Melbourne: Mandarin Australia, 1983.

59 Smith, L. T1999. Decolonizing Methodologies: Research and Indigenous Peoples, London, Zed Books, p. 61.

60 Moran, K. 1994. Biocultural Diversity Conservation Through the Healing Forest Conservancy. In T. Greaves (ed) Intellectual Property Rights for Indigenous Peoples: A Sourcebook, Oklahoma City, OK, Society for Applied Anthropology, p. 102.

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61 Aboriginal Communities of the Northern Territory., Traditional Bush Medicines – An Aboriginal Pharmacopoeia, Darwin, Australia: Greenhouse Publications, 1988.

62 Aboriginal Communities of the Northern Territory., Traditional Aboriginal Medicines in the Northern Territory, Darwin, Australia: Conservation Commission of the Northern Territory of Australia, 1993.

63 The indigenous peoples of British Colombia had a natural cure for tuberculosis (TB), one of the ‘old’ diseases that is making a comeback - a new multi-resistant TB. Coming Full Circle., op. cit.

64 Fellows, L., “What Are the Forests Worth?”, The Lancet, Vol. 339, p. 1330.

65 Balick and Cox., Plants, People and Culture, op. cit., p. 36. According to Fellows, no US pharmaceutical companies were using plants in their search for new drugs in the 1980’s. Fellows, L., p. 1330.

66 Sittenfeld, Ana., & Gamez, Rodrigo., “Biodiversity Prospecting by INBio”, Walter V. Reid et al (eds) Biodiversity Prospecting: Using Genetic Resources For Sustainable Development, A World Resources Institute Book, 1993, p. 74.

67 Soejarto, D.D., “Biodiversity Prospecting”, Ibid, pp. 2.

68 Borris, Robert P., “Natural Products Research: Perspectives From A Major Pharmaceutical Company”, Journal of Ethnopharmacology, No. 51, 1996, p. 34.

69 Metabolite – “A chemical compound that is formed by, or participates in, a metabolic process.” Bennington, James. L., Saunders Dictionary and Encyclopedia of Laboratory Medicine and Technology, Philadelphia: W.B. Saunders Company, 1984, p. 958. ; These samples yield compounds such as cephalosporins, clavulanic acid, avermectins, mevinolin and cyclosporins. Myerscough, The Biological Activity, op. cit., p. 5.

70 Borris., “Natural Products Research”, op. cit., pp. 31, 34.

71 Bruhn cited in Myerscough., The Biological Activity, op. cit. P. 6.

72 There has been moderate success in pharmaceutical research using this method, prompting the continued screening of companion organisms. Reid. Walter, V., Sarah A. Laird., Rodrigo Gamez., Ana Sittenfeld., Daniel H. Janzen., Michael A Gollin., and Calestous Juma., “A New Lease on Life”, Walter V. Reid et al (eds), Biodiversity Prospecting: Using Genetic Resources for Sustainable Development, World Resources Institute, 1993, p. 35.

73Borris., “Natural Products Research”, op. cit.; Turner., David M., “Natural Product Source Material use in the Pharmaceutical Industry: The Glaxo Experience”, Journal of Ethnopharmacology, 51, 1996. Prospecting for Bioresources 64

74 Borris., “Natural Products Research”, op cit., p. 35.

75 Turner., “Natural Product Source Material”, op. cit., p. 44.

76 Soejarto., “Biodiversity Prospecting”, op. cit., p. 4.

77 Ibid., p. 5.

78 Balick and Cox, Plants, People and Culture, op. cit., pp. 18-19.

79 Sheldon, Jennie Wood., Balick, M.J., and Laird, S.A., Medicinal Plants: Can Utilization and Conservation Coexist, Bronx, New York: The New York Botanical Garden, 1997, p. 5.

80 Shiva, Vandana., “Biopiracy: The Plunder of Nature and Knowledge”, op. cit., p.17.

81 RAFI., “Bioprospecting/Biopiracy”, op. cit., p. 4. Most contracts and agreements are written in a legal language inappropriate for dealing with indigenous peoples who often have to have the contents of the contracts interpreted for them.

82 Bertha, Steve L., “Academic Research: Policies and Practice” Journal of Ethnopharmacology 51, 1996, p. 62.

83 Shiva, Vandana., “Biodiversity, Biotechnology and Profit: The Need For a Peoples Plan to Protect Biological Diversity”, The Ecologist, Vol. 20., No. 2., March/April, 1990, p. 46.

84 Reid, “Gene Co-Ops and the Biotrade”, op. cit., p.83-84.

85 Borris., “Natural Products Research”, op cit., p. 31. In this situation, even if there is an agreement on compensation and royalties between the original owners and the first corporation, such financial commitments may not extend to third parties.

86 Videl, J., “Biopirates Who Seek the Greatest Prizes”, The Guardian, www.guardianunlimited.co.uk/Print/0,3858,4090906,00.html

87 ETCgroup., Communique, issue No. 75, March / April 2002, p. 2.

88 ETCgroup., “Peruvian Farmers and Indigenous People Denounce Patents on Maca”, July 3 2002, www.etcgroup.org

89 Ibid., ; ETCgroup., “Another Theft of Indigenous Knowledge”, July 16 2002, www.etcgroup.org

90 UN Integrated Regional Information Networks., “Focus on Biopiracy in Africa”, IRIN News (Nairobi), August 30 2002, www.irinnews.org/report.asp?ReportID=29628

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91 Powell, K., “Honey Kills Antibiotic-Resistant Bugs”, Nature Science Update, November 19 2002, www.nature.com/nsu/021118/021118-1.html

92 Burcher, S., “Honey Beats Superbugs”, Institute of Science in Society (ISIS), www.i- sis.org.uk/Honeybeatssuperbugs.php accessed on February 3 2003.

93 Powell., “Honey Kills Antibiotic-Resistant Bugs”, op. cit.

94 Burcher., “Honey Beats Superbugs”, op. cit.

95 Ibid.

96 Balick and Cox., Plants, People and Culture, op. cit., p. 25-6.

97 Christie, J., “Enclosing the Biodiversity Commons: Bioprospecting or Biopiracy”, Altered Genes: Reconstructing Nature: The Debate, R. Hindmarsh, G. Lawrence and J. Norton (eds), St Leonards, NSW: Allen and Unwin, 1998, p. 64.

98 Ibid.; and see publications by RAFI including “Bioprospecting/Biopiracy and Indigenous Peoples”, RAFI Communique, November, 1994; and “RAFI’s List of Bioprospectors and Biopirates” RAFI Communique, September/October, 1995. “Biodiversity prospecting is the exploration, extraction and screening of biological diversity and indigenous knowledge for commercially valuable genetic and biochemical resources”. Rural Advancement Foundation International., “Bioprospecting/Biopiracy and Indigenous Peoples”, RAFI Communiqué, November 1994, p. 1.

99 However, this rate is rarely or perhaps never met, due to the operational challenge it poses, which requires someone to constantly standby to transfer sample plates between tests. Chapman, T., “Lab Automation and Robotics: Automation on the Move”, Nature, Vol. 421, 6 Feb 2003, p. 661-3. This is despite claims that “molecular biology, high-throughput screening, and combinatorial chemistry have revolutionised” drug discovery. Lanfear, J., “Dealing With the Data Deluge”, Nature Reviews Drug Discovery, Vol. 1, June 2002, p. 479. The research process has arguably come to represent more of a production line culture, where researchers are more than ever required to perform repetitive tasks.

100 Biotechnology and Development Monitor., “Bioinformatics and the Developing World”, Biotechnology and Development Monitor, No. 40, Dec 1999, p. 10.

101 Robbins, C., From Alchemy to IPO: The Business of Biotechnology, Cambridge MA: Perseus Books, 2000, p. 98.

102 Miller, Mitchell., “Chemical Database Techniques in Drug Discovery”, Nature Reviews Drug Discovery., Vol. 1, No. 3, p. 220.

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103 Bajorath, J., “Integration of Virtual and High-Throughput Screening”, Nature Reviews Drug Discovery, Vol. 1, No. 11 Nov 2002, p. 882.

104 “In theory high-throughput systems should be able to screen about 100,000 compounds a day against a single disease target. But such rates can rarely be maintained consistently because of problems and delays in transferring sample plates between individual tests and preparation processes.” Chapman,. Lab Automation and Robotics, op. cit., p. 664.

105 Reid., “Gene Co-Ops and the Biotrade”, op. cit., p. 79.

106 Borris., Natural Products Research, op. cit., p 77.

107 Smith, Adam., “Screening for Drug Discovery: The Leading Question”, Nature, Vol. 421, 25 July 2002, p. 453.

108 Anido instead advocates the idea of “rational drug design” where fewer more targeted compounds are produced. Access Excellence., “Combinatorial Chemistry: Making More Drugs”, Access Excellence @ The National Health Museum, www.accessexcellence.org/AB/BA/combiChem/combiChem5.html accessed on 3/8/03.

109 Coming Full Circle: Plants that Heal, audiovisual, Force Four Productions Ltd (Vancouver) in association with Discovery Channel and WorkWeek Television Production Inc, 1995.

110 Macilwain, C., “When Rhetoric Hits Reality in Debate on Bioprospecting”, Nature, Vol. 392, 1998, p. 537.

111 Ibid., p. 539.

112 Firn, R., “Bioprospecting – Why is it so Unrewarding?”, Biodiversity and Conservation,Vol. 12, 2003, p. 210.

113 Macilwain., “When Rhetoric Hits Reality”, op. cit., p. 539.

114 RAFI, “Conserving Indigenous Knowledge”, op. cit., p. vii. RAFI estimates Third World germplasm to be worth approximately US$32 billion per year to the pharmaceutical industry. ; The value in terms of marketable drugs was estimated by Soejarto in 1996 to be between US$200 billion and US$1.2 trillion annually. Soejarto., op. cit., p.3.

115 Anon, “Medicinal Plants Lost?”, Script-World Pharmaceutical News, October 1, 1986, p. 22, cited in RAFI, “Bioprospecting/Biopiracy and Indigenous Peoples”, op. Cit., p. 2.

Prospecting for Bioresources 67

116 Lewis, Damien., “The Gene Hunters”, Geographical Magazine, Vol. LXIII, No. 1, January 1991, p. 37.

117 According to Stephen Blackmore of the Museum of Natural History in London. Cited in Macilwain, C., “When Rhetoric Hits Reality”, Nature, Vol. 392, 1998, p. 536.

118 Turner., “Natural Product Source Material”, op. cit., p. 43.

119 Laird, Sarah., “Natural Products and the Commercialisation of Traditional Knowledge”. Tom Greaves (ed), Intellectual Property Rights For Indigenous Peoples: A Sourcebook, Oklahoma City, OK: Society For Applied Anthropology, 1994, p. 148.

120 Farnsworth, N. R., and Soejarto, D. D., “Potential Consequence of Plant Extinction in the United States on the Current and Future Availability of Prescription Drugs”, Economic Botany, 39, 1985.

121 Sittenfeld and Gamez., “Biodiversity Prospecting by INBio”, op. cit.

122 Borris., Natural Products Research, op. cit.

123 Turner., “Natural Product Source Material”, op. cit.

124 Davidson et al., op. cit., p. 24-5.

125 Turner., “Natural Product Source Material”, op. cit., p. 42.

126 Borris., Natural Products Research, op. cit., p. 35. ; and Turner., “Natural Product Source Material”, op. cit., p. 43.

127 Davidson et al., op. cit.

128 Soejarto., op. Cit., p. 3.

129 Moran, Katy., “Biocultural Diversity Conservation Through the Healing Forest Conservancy”, Tom Greaves (ed), Intellectual Property Rights for Indigenous Peoples: A Sourcebook, Oklahoma City, OK: Society for Applied Anthropology, 1994, p. 102; RAFI, “Conserving Indigenous Knowledge”, op. Cit., p. vi.

130 RAFI., “Conserving Indigenous Knowledge”, op. Cit., p. 3.

131 Personal communication with Carol Ridgeway-Bissett – Maaiangal Aboriginal Heritage Society. Carol is a traditional Aboriginal healer and cultural custodian from the Woromi clan, Post Stevens area of the Hunter Valley, New South Wales.

Prospecting for Bioresources 68

132 Desmarchelier, C., A. Gurni, G. Ciccia, A.M. Giulietti., “Ritual and Medicinal Plants of the Ese’ejas of the Amazonian Rainforest (Madre de Dios, Peru)” Journal of Ethnopharmacology 52, 1996, p. 51.

133 Working Group on Traditional Resource Rights (WGTRR), “Disappearing Languages”, Bulletin of the Working Group on Traditional Resource Rights, Spring 1996, No. 2. p. 8.

134 Brush, Stephen B., “Whose Knowledge, Whose Genes, Whose Rights?”, Valuing Indigenous Knowledge: Indigenous People and Intellectual Property Rights, Stephen B. Brush and Doreen Stabinsky (eds) Washington D.C.: Island Press, 1996, p. 3.

135 Balick and Cox, Plants, People and Culture, op. cit., p. 41.

136 Religious texts such as the Bible and the Koran. Ibid.

137 Brush., “Whose Knowledge”, op. cit., p. 5.

138 Ibid., p. 4.

139 “Before Linnaeus their was no unified scheme for plant nomenclature. Linnaeus codified the use of Latin binomials for plants, together with rules to distinguish between competing names invented by different botanists”. Balick and Cox, Plants, People and Culture, op. cit., p. 18.

140 Cited in Balick and Cox., Plants, People and Culture, op. cit., p. 36.

141 Ibid.

142 Turner., “Natural Product Source Material”, op. cit., p. 44.

143 Bulard, M., “Apartheid of Pharmacology”, Le Monde Diplomatique, January 2000, www.monde-diplomatique.fr/en/2000/01/12bulard

120 Frayssinet, Fabiana., “Mayan Medicine Enjoys Revival”, Third World Resurgence, No. 45, May 1994, p.15.

121 Linden, Eugene., “Lost Tribes, Lost Knowledge”, Time, September 23, 1991, p. 58.

146 Posey, Darrell Addison., “Intellectual Property Rights: What is the Position of Ethnobiology?”, Journal of Ethnobiology, Vol. 10, No. 1, Summer 1990, p. 95.

147 The ECT Group, formerly the Rural Advancement Foundation International (RAFI), have produced many articles on this topic. See for example, RAFI., “Biopiracy Project in Chiapas, Mexico”, RAFI News Release, December 1 1999, www.rafi.org/news ; The Action Group on Erosion, Technology and Concentration (The ETC Group)., “Mexico Prospecting for Bioresources 69

Biopiracy Project Project Cancelled”, ECT Group News Release, November 9, 2001, www.rafi.org/article.asp?newsid=279.

148 Dr Darryl Posey, who is within the University of Oxford Centre the Environment, Ethics and Society , responded to RAFIs critique by sending them an email which he also sent to Bob Phelps of the GeneEthics Network in Australia.

149 Ten Kate, Kerry., “Biodiversity Prospecting Partnerships”, Biotechnology and Development Monitor, No. 25, December 1995, p. 18.

150 Hawley., “Neo-Liberalism and the Plunder of Nicaragua’s Atlantic Coast”, op. cit., p. 3.

151 Reid et al., “A New Lease on Life”, op. cit., p. 4.

152 Grifo, F. T., and Downes, D. R., “Agreements to Collect Biodiversity for Pharmaceutical Research: Major Issues and Proposed Principles”, Valuing Local knowledge: Indigenous People and Intellectual Property Rights, S. B. Brush and D. Stabinsky (eds), Washington D.C.: Island Press, 1996.

153 Brush, Stephen B., “A Non-Market Approach to Protecting Biological Resources”, Tom Greaves (ed), Intellectual Property Rights for Indigenous Peoples: A Sourcebook, Oklahoma City, OK: Society for Applied Anthropology, 1994, p. 137.

154 Dyck., “Aboriginal Peoples and Nation-States”, op. cit., p. 2.

Chapter 3

Contemporary Theoretical Perspectives: From Fourth World Theory to Questions of Power

Truth isn’t outside power, or lacking in power: contrary to a myth whose history and functions would repay further study, truth isn’t the reward of free spirits, the child of protracted solitude, not the privilege of those who have succeeded in liberating themselves. Truth is a thing of this world: it is produced only by virtue of multiple forms of constraint. And it induces regular effects of power.1

Introduction

In this chapter, I posit a new approach to a richer understanding and analysis of how Indigenous peoples encapsulated within developed, settler states have been marginalised in political processes concerning biotechnology, and its associated practice of bioprospecting. From the literature on bioprospecting reviewed in Chapter Two, it is evident that there has not been adequate recognition of the unique position of Fourth World peoples in policy processes, as reflected in policy discourse on biotechnology and bioprospecting, and more broadly in international relations and development literature. By contrast, the Third World is examined extensively in the literature, providing strong arguments for the recognition of the knowledge and ownership rights of Third World peoples, or more specifically, Third World states. The aim of this chapter then is to develop a new theoretical positioning with which to address the poverty of theory for studying Fourth World peoples and power. To demonstrate its practical application, this new approach will then be applied to a case study in Chapter 7 on bioprospecting in Australia, and more specifically, Queensland.

Fourth World theory has been used effectively in academic literature to explain the unique position and experience of Fourth World peoples.2 Following a genealogical approach, I analyse the present position of Fourth World peoples through a ‘history of Contemporary Theoretical Perspectives 71

the present’, examining the discursive (talk, text, writing) and non-discursive (institutional, social, economic) practices which constitute the historical conditions for marginalisation of Fourth World peoples through the construction of dominant discourses on knowledge and power. I search for explanations in theories of power, settling on Foucault, as his approach to power gives coherent shape to the study by providing the theoretical tools to demonstrate practices of dominant power, and of resistance to dominant power. By combining Fourth World theory and Foucauldian concepts of power and resistance, I create a new conceptual space for the analysis of bioprospecting in my case study.

Initially within this chapter, the term ‘Fourth World’ is introduced and examined within its political context. Indigenous political discourse informs this process and subsequent arguments. This is not an attempt to appropriate, romanticise or essentialise an ‘Indigenous worldview’. Rather it is an attempt to broaden discourse to accommodate multiple worldviews and to provoke a rethink of dominant discourse. I begin the chapter by presenting an historical account of the global political divide that differentiates Nations from states. By identifying Nations and states as constructs, I am able to explore how, in political and development discourse, states have been assigned uppermost legitimacy as political entities.

I then go on to map out the unique position of Fourth World peoples and make the case for a new positioning or intersection of the theory, combining Fourth World theory and elements of Foucault’s analytics of power. I do this by using Foucault’s idea of dominant power. I explore this within my thesis under the terms ‘ways of knowing’ and ‘ways of owning’. I also use Foucault’s idea of power being both dominant and resistant, and examine power relations under the concept of ‘ways of resisting’. I then discuss what a synthesis of Fourth World theory and Foucault’s power analytics might look like.

I suggest that this theoretical approach provides a new and rich reading of how biotechnology has been privileged, and Indigenous peoples have been marginalised from policy processes on bioprospecting. Moreover, the application of Foucault’s Contemporary Theoretical Perspectives 72

concept of power/knowledge helps to expose the strategies and techniques of power employed to privilege, exclude and marginalise, through the construction of dominant ways of ‘knowing’ and ‘owning’, and the subjugation of the Fourth World ‘Other’. My theory work provides new and useful insights to the constructed policy terrain of access to biological resources and the place of Indigenous peoples in that bio-political struggle.

Situating ‘Undecolonised’ Indigenous Nations

The predominant value system governing culture, international law and politics from the seventeenth to the twentieth centuries condoned the conquest and occupation of land ‘discovered’ by existing European States (even though some gains were secured through treaties with Indigenous peoples).3 This imperialist legal accord facilitated the colonisation of land and resources occupied and utilised by Indigenous peoples of the Americas, Australasia, Asia and Africa. During the maelstrom of colonialism, the prime objective of European States was to identify and expand jurisdictional boundaries in order to facilitate the expansion and transformation of their economies.4 Yet, by the early stages of the twentieth century, after European States had claimed the bulk of the world’s landmass, conquest was seen by most of the major powers as no longer legitimate as a means of executing foreign policy.5

As World War Two drew to a close, a popular argument circulating in the United States was the impending emergence of ‘one world’. It was a positive image of states working together to build a New World.6 Values and norms promoted and accepted by many, including US President Roosevelt, came to be seen as a basis for a new peaceful era of international politics, and the United Nations was created.7 Britain and France were pressured by the USA to decolonise as, ostensibly, colonisation was considered “inconsistent with fighting communism”.8 The more accurate motivation for such pressure was arguably the desire to ‘free up’ these economies, and remove imperial barriers to expanding US markets.9 In addition, the USA offered foreign aid and access to its markets for newly decolonised countries that chose capitalism over communism.10 Contemporary Theoretical Perspectives 73

A concern for human rights, which addressed the rights of prisoners of war, women, children, and racial, ethnic and national minorities among others, also gained prominence.11 In 1960, the UN Resolution 1514 Declaration on the Granting of Independence to Colonial Countries and Peoples gave many former colonies that had not previously gained independence, self-determination and sovereign rights to their land and natural resources, though some still remained under colonial rule.12 This resulted in both positive and negative internal political dynamics and social change. Some decolonised states emerge with a reasonable level of stability while others have continually been wracked by uncertainty and political disturbances..13 Excluded from these newly regained rights to independence, however, were Indigenous peoples within and across countries dominated by descendants of the European colonists. This led to these peoples being referred to by the rather unpalatable term, ‘undecolonised’,14 or as ‘internal colonies’ in anthropological and development literature.

The challenges faced by ‘undecolonised’ Indigenous Nations within developed countries were and are unique when compared with the decolonised Third World, a distinction not made within conventional theories applied in international relations and development studies. Therefore, a new conceptual approach to analysis is necessary to signify how the experience of Fourth World internal colonies differs from the Third World and from their encapsulating states. The use of Fourth World theory fills that theoretical gap. But first, before exploring Fourth World theory, we need to appropriately contextualise it by exploring the essential differences identified within Indigenous politics between Nations and states. This is a geopolitical consideration often neglected in international relations theory,15 but is central to my analysis.

The Global Political Divide

In Indigenous political discourse,16 countries and the peoples of the world are geopolitically divided into Nations and states. Given the challenge in this discourse to conventional understandings of the state, the terms and concepts of ‘state’, ‘Nation’ and Contemporary Theoretical Perspectives 74

‘nation-state’ are all highly contested and require exploration. In the opinion of Nietschmann,17 and Connor,18 all three terms are commonly and incorrectly used interchangeably in reference to the almost 200 entities that are referred to as states. ‘States’ are recognised and legitimised as sovereign entities by similar entities—other states. They secure their sovereignty through the defence of territorial integrity, maintenance of internal order, and the securing of resources.19 International recognition is the key to a state gaining sovereignty, where sovereignty means the legitimate power to achieve the above territorial, legal and resource objectives.20 In general, the key to maintaining such recognition is to uphold the shared value system of the international community of states, which is widely based on liberal democratic principles.21

By way of contrast, Goldsmith describes a ‘Nation’ as “a land whose citizens, in their overwhelming majority, share a common culture, sense of identity, heritage and traditional roots”.22 According to this definition, a state is not necessarily a Nation, and a nation-state is not a state. The term nation-state was initially coined to define a Nation that has its own state,23 a phenomenon described by Borchert as “an unrealisable ideal at the end of the twentieth century”,24 as most states are now ‘multicultural’ mixes of people from many different countries. Examples of nation-states are indeed rare and include Iceland, Western Samoa, North Korea and South Korea, as these are states whose citizens are considered to share a common heritage.25 Implicit in the term nation- state is an assumption of ethnic or national uniformity, where a shared culture and value system exists. This assumption assists the state to engender a sense of nationalism,26 and deny conflicting interests between it and Other entities encapsulated within the state, including Indigenous Nations. Yet, to enforce nation status on people does not necessarily engender a sense of nationhood. This is particularly evident in cases such as the former Yugoslavia and Czechoslovakia and in almost every country in Africa.27

Another definition is provided by Churchill,28 and Nietschmann.29 To these authors, a Nation is a self-defined grouping of peoples bound within a specific bioregion, with common cultural characteristics that the group believes differentiates its members from the wider community. As such, those nations construct their identify as different to, and Contemporary Theoretical Perspectives 75

separate from their encapsulated states. Approximately one third of the world’s population identify themselves as being members of between three and five thousand Nations, persistent cultural groups existing within, and often divided between, one or more internationally recognised states.30 According to Connors’ understanding, being of a common genetic strain is not essential, as the defining distinction is “not what is but what people believe is”. 31 A Nation has common social and cultural features that bind its members, which in Nietschmann’s view, negates the necessity for the centralised political and military apparatus often utilised by states to create a national sentiment.32 A link to a particular territory is another fundamental element verifying membership within a Nation, and providing a strong sense of belonging. But this connection is not necessarily tangible, as a consciousness of nationhood can exist outside the territorial boundaries of a Nation.33

From definitions of Nations and states within Indigenous political discourse, this thesis proposes to demonstrate an understanding of how some within the policy processes dealing with access to biological resources are empowered, while others are disempowered. Recognition of Nations by states would further complicate policy processes relating to access to biological resources, and challenge existing power networks. Considering the barriers to participation created through colonial legal, political, economic and social legacies, and the Othering of Indigenous peoples as inferior, the probability of such recognition is limited. But it does not deter Fourth World Nations from their struggle. Nation and state both are clearly political terms, constructed to set out and achieve political objectives, making it necessary to place Fourth World Nations politically within the World System dominated by states.

The Fourth World Nation in the World System

The World System of internationally recognised states has been categorised within terms of three worlds, the First, Second and Third. These terms are a heuristic device derived from a conceptual framework which is highly contested, as they are not composed of analytically relevant categories which have objective meaning. Many observers reject the Contemporary Theoretical Perspectives 76

term Third World, for example, because it is analytically meaningless when used to encompass a wide array of states of development.34 The idea of a World System first emerged in a book by Horowitz entitled Three Worlds of Development.35 The terminology was then instituted and modified within the historical context of development.

Following World War Two, the world was ideologically divided into the USSR- dominated communist East and the US-dominated capitalist West,36 and economically divided between the industrialised North and the mostly rural South.37 Despite criticism of the generalisations and essentialism implicit in these heuristic terms, Heywood considers the economic inequality perpetuating the North-South divide as increasingly important in terms of global conflict.38

In the initial post-World War Two period, the term ‘Third World’ was used to identify those neutral states non-aligned with Cold War superpowers of the East and West.39 They were neither capitalist not communist—a Third way. During the 1950s and 1960s, as more European colonies were decolonised, the term Third World was used to identify the economically poor states.40 According to Worsley’s ideological model of the world political and economic system, the First World encompassed the capitalist states of Europe, North America and Australasia, the Second World the socialist states of the Soviet Union and its satellites, and the Third World, the poor former colonies of the European powers.41

By way of contrast, the Chinese Power Model of world order recognised the First World as the superpower(s), which included the USA and formerly the USSR, the Second World as industrialised countries, and the Third World as primary producers.42 Neither of the above models, however, reflects the contemporary geopolitical world map. The decline of state socialism in Eastern Europe, and the resultant proliferation of states emerging from the former Soviet Union, have forced a theoretical reformulation of the global political and economic system, which is based exclusively on states. However, states are dividing and ‘Nations without states’, demanding self-determination and statehood, have also emerged.43 Contemporary Theoretical Perspectives 77

A new power model is offered by McCall to address the phenomenon of ‘Nations without states’.44 In a 1980 study, McCall identified four worlds by their relationship to the productive process, rather than emphasising ‘negative’ attributes such as impoverishment. Power, according to McCall, is derived in the long term through mastery over the different phases of the production process. According to McCall’s model, the First World encompasses the superpowers, those that control the ‘tertiary’ service sector, which include the United States of America and the former Soviet Union. The Second World is made up of the semi-dependent satellites of the First World, the secondary industrial sector. Examples include Japan, Germany and France, and the rest of the so-called ‘developed’ states. The Third World states constitute the underdeveloped dependants of the First and Second Worlds, the primary resource sector. McCall then introduces the Fourth World, the ‘Nations without states’, and the holders of land and labour.45

Table 1. McCall’s Power Model (1980) of the Global Political and Economic System

World Status Productive Process Examples First superpowers tertiary service sector US, USSR (former)

Second semi-dependant secondary industrial Japan, Germany, satellite States sector France, Britain

Third underdeveloped States primary resource India, China and dependent on First and sector majority of Worlds’ Second World states

Fourth Nations encapsulated original inhabitants Aboriginal Australians, as internal colonies of the land, connate Native North within First and rights claimants Americans, Maori, Second World Sami

Source: Adapted from McCall.46 Contemporary Theoretical Perspectives 78

The Fourth World is peripheral to the First, Second and Third Worlds, made up of the Nations encapsulated within states. McCall emphasises in his theory that Nations and states can move from one world to the next. This is evident, as the Soviet Union is no longer a superpower, while France, Germany and Britain are displaying aspirations for superpower status within the framework of an emerging European community. On the other hand, some Nations within states have gained statehood including those within the former Yugoslavia and East Timor. For most Indigenous Nations encapsulated within developed states, however, the prospect of moving out of the Fourth World appears minimal.

Consistent with contemporary use, the term Fourth World is used exclusively in this thesis to define those Nation encapsulated within developed states. Within this context, Fourth World Nations have, in most cases, no control over resources, military or economic, and no internationally recognised sovereignty (and therefore no seat at the table of state or global politics). In addition, they have little or no control over the political institutions of the state within which they are encapsulated.47 Accordingly, one might suggest they are completely powerless in the policy arena. However, this appears less the case, particularly at the international level, as Indigenous peoples use the power of protest, direct action, and moral persuasion to influence politics.48 Indigenous peoples encapsulated with developed states identify themselves and their objectives as distinct from those of non-indigenous people, as a group outside those already identified within the modern world system: in short, as ‘Fourth Worlders’.49 At the international level, they are joining forces and building coalitions.

There are, of course, some similarities between the Third and Fourth Worlds: low income and ‘productivity’, high unemployment, and poor health. Also, as noted by Holden, a vulnerability in external relations exists in both.50 This means that Third World relations with other states, transnational capital, and development agencies are comparable to Fourth World relations with central state and local state governments, bureaucracy, and capital. The key difference between the Third and Fourth World is the issue of sovereignty. A lack of sovereignty for the Fourth World can be disempowering, Contemporary Theoretical Perspectives 79

but it can also be viewed positively, as it places certain obligations on states in relation to their encapsulated Nations, though Nations and states may not agree on the ‘needs’ of the Nations. The values and norms advocated and shared by First World states and reflected in development strategies are generally presumed to be universal in the various theories of the state, leaving no political space for any alternative values and norms held by Nations within states.

Some, particularly non-Indigenous authors, reject the term ‘Fourth World’ in reference to encapsulated Indigenous Nations. Connell and Howitt51 understand the neologism, ‘Fourth World’, as primarily negative, focusing on Indigenous peoples’ lack of both autonomy and political independence, as opposed to positive and empowering features such as cultural values, tribal social structures, survival history, and the subsistence economies that characterise Indigenous groups. As stated earlier, another concern is that in identifying themselves as ‘Fourth World’, Indigenous peoples run the risk of placing themselves on the bottom of a political hierarchy—the First World over the Second World, over the Third World, over the Fourth. It may also be interpreted as a general acceptance on the part of Indigenous Nations, of an inferior ranking of importance in the global political arena. A further negative perception has arguably emerged from the varying use, and some might say misuse, of the term as it has been applied disparately throughout the literature to refer to various groups including poor, disenfranchised, oppressed minorities, such as the imprisoned, sick, mentally ill and the elderly.52 It has also been used in relation to well recognised economically destitute, or, as described by Graburn, “basket case” countries such as Bangladesh.53 Furthermore, the power of the term ‘Fourth World’ has been somewhat undermined through a process of Othering all those entities that have not achieved the ‘modern’ status of developed states.

Despite these concerns, the term ‘Fourth World’ has effectively been used descriptively by anthropologists such as McCall,54 Worsley55 and Jaimes,56 when explaining the relations between states and their internal Nations. It has been applied analytically by Graburn,57 Dyck,58 Burger,59 and Aga Khan and bin Talal60 to critical studies identifying the political and social problem of Fourth World peoples. As a framework for analysis, Contemporary Theoretical Perspectives 80

Fourth World theory has been used most effectively by Annette Holden.61 Holden combined Marxist and Fourth World theories to examine Aboriginal economic development in Australia. Colonial legacies and the continuing colonial relationship between the local state of Queensland and many remote Aboriginal communities led Holden to conclude that Australia is not a fully post-colonial state, where post-colonial would mean full independence from colonial hegemony.

Fourth World has also been used as a labelling tool by Indigenous activists including Wilmer62 and Weyler,63 as a device to differentiate their own experience and identity from the dominant worldview within their encapsulating state, as a ‘reverse discourse’ of resistance, in Foucault’s terms.64 The term Fourth World was first coined at the 1972 United Nations Environment Conference in Stockholm, Sweden. Westernised Third World elites attending the Conference, particularly those from Africa and Asia, vigorously embraced a development ideology. This was ostensibly motivated by their desire to ‘modernise’ in accordance with the dominant development discourse of economic progress through western science and technology. Arguably, it was also based on a perception that embracing a development discourse was the way to access the resources needed for personal enrichment.

Nevertheless, First and Third World views in this elite sphere merged. The Indigenous Nations’ views, however, diverged. According to Weyler,65 it was a case of Western influenced science and technology development objectives versus the desire for a more “spiritual” approach by the Indigenous Nations. Native North Americans and other Indigenous groups from Europe, Australia, Aotearoa / New Zealand and elsewhere, accordingly withdrew from the process, realising they had more in common with each other than with the developmental objectives of the governments of their encapsulating states and Third World states. They decided to differentiate themselves by adopting the term ‘Fourth World’. As a self-descriptive term, it has immense meaning and relevance outside the heuristic, hierarchical World System.

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‘Fourth World’ has thus become a political term. As a labelling tool for the self- identification of Indigenous peoples, it has come to represent a symbol of empowerment. Other groups have experienced empowerment through such self- identification:

The name for a particular racial or ethnic group can be highly contested, since it carries with it a great deal of information about the groups social history. The effort by many groups to ‘name themselves’ reflects their belief that passive acceptance of the name bestowed by society’s dominant group is to accept being silenced.66

Individual identity consciousness determines who is in, or identifies with, the Fourth World.67 By taking control of the term, those Indigenous Nations identifying themselves as Fourth World are able to construct an understanding of themselves as they see it, not as a construct determined by non-Indigenous understandings of Indigenousness: as ‘Third Worldness’ has been determined by others.68

This is a strength of the concept of ‘Fourth World’. It is a rejection of development and modernisation narratives and political pressures emerging from the alliances of Western and Third World elites. Used by Indigenous Nations, it promotes solidarity between those Nations encapsulated within developed states. As internal colonies, Fourth World Nations share the continued experience of having their resources and knowledge exploited in the name of ‘progress’. They are portrayed as beneficiaries of that exploitation as they reside within developed states that are capable of providing economic and social services, along with political participation. Almost universally, however, Fourth World peoples have not been, nor consider themselves as, beneficiaries. In turn, they have politicised their desire for recognition of their connate resource and knowledge rights.

In sum, despite the term Fourth World symbolising empowerment for Indigenous peoples, these Nations are entities with minimal power and access to policy-making within their encapsulating states. They have limited capacity to control access to resources and knowledge they identify as their own. Accordingly, it is the aim of this Contemporary Theoretical Perspectives 82

thesis to explore the power relations that serve to exclude Fourth World peoples and to privilege biotechnology and bioprospecting in policy processes.

Theories of Power

To examine the central research question of this thesis, which is to explore the institutional and policy arrangements for dealing with biotechnology and bioprospecting projects, a number of theories of power have been considered. The theories of power adopted by Bachrach and Baratz,69 Lukes,70 and scholars within the Marxist tradition,71 in some ways explain the exclusion of Fourth World peoples from policy processes. Each identify the oppressive structures of the state and of capital which can be said to exercise hegemonic power over Fourth World peoples.72

Application of the ideas advanced by these theorists would see power exercised over Indigenous peoples variously through hegemonic structures,73 manipulation of the policy agenda through the “mobilisation of bias”,74 and exclusion from policy processes through the suppression of real interests.75 The pessimistic picture painted by these theorists is of social and political structures in which individuals have no autonomy, and therefore have little capacity to influence political processes. From this position, it is assumed that effective resistance is not really possible. Passive acceptance by Indigenous peoples of the appropriation and incorporation of their knowledge and resources in bioprospecting projects would be most expected.

Another view emerges from the work of Michel Foucault, who holds a position of great significance in any discussion on power. Foucault addressed the ‘problem of hegemony’ by arguing that hegemony constitutes a form of social cohesion not through force or coercion, but through: practices, techniques and methods which infiltrate minds and bodies, cultural practices which cultivate behaviours and beliefs, tastes, desires, and needs as seemingly naturally occurring qualities and properties embodied in the psychic and physical reality (or ‘truth’) of the human subject.76

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Foucault differed significantly from conventional theorists in his view of how power is exercised.77 Power for Foucault is not held within structures, nor is it held by individuals as a “property, possession, or privilege”.78 Instead power is a “strategy, and the dominated are as much a part of the network of power relations and the particular social matrix as the dominating”. According to this view (discussed more below), power is not always exercised negatively to repress and exclude. The relationship between Fourth World peoples and their encapsulating settler states can be explored using Foucault’s understanding of power or ‘bio-power’, and the scope for resistance.

Foucault and Power

In his studies on power, Foucault adopted a genealogical approach that does not privilege one dominant class over another, such as the bourgeoisie over the proletariat. Foucault was swayed by Machiavelli’s sixteenth century view of power, allowing him to map historically networks of power relationships.79 Power, for Machiavelli, does not belong to anyone and is not exercised by the state. Rather, Machiavelli focussed on ‘what power does’, emphasising the importance of strategy and organisation, as power is relational.80 Following Machiavelli, Foucault extolled the importance of technique and method for achieving relationships of segregation, social hierarchization, domination and hegemony through the power of strategic alliances and networks.81 He was also interested in the techniques through which humans are made subjects, and are subjected to power.

In the late seventeenth to early nineteenth century period in Europe, religion and tradition were seen to be replaced by science and ‘progress’.82 Within the ‘modern’ tradition of rationalism, individualism and materialism, relations of power evolved under the influence of the emerging world system of states, expansionist capitalism, industrialism, and private property.83 The accumulation of capital and political power were dependant on each other for success. They were also dependant on the “insertion of disciplined, orderly individuals into the machinery of production”.84

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Foucault argued that in the seventeenth century there was a shift from the ancient sovereign power to take, or dispose of life, to a more ‘caring’ power over life, which he termed ‘bio-power’.85 This power over life involves two components. One component is “an anatomo-politics of the human body”, which is centered on the body as a machine.86 Disciplinary techniques and methods of biopower optimise the body’s economic utility and ensure its docility. The second component of bio-power focuses on the scientific categories of human beings (population, ‘race’, gender), their vitality (reproduction, mortality, health), and government supervision, intervention and regulation of the population. Foucault calls this component a biopolitics of the population.87 Biopower refers then to the exercise of power over life through disciplines of the body, and regulations of the population, where the intention is no longer to kill (take life), but to control life, to enhance its performance or usefulness for integration into economic systems. Foucault argued that bio-power is a defining characteristic of modern societies and was an essential element in the development of capitalism.88

State and civil institutions such as prisons, schools and churches have been effective tools for the creation of a docile society which can easily be incorporated into economic production processes. Power is therefore, productive, in that it produces knowledge and skills within schools, produces health in hospitals, and also produces destruction, as in the army.89 From this perspective, Foucault argues that the state developed as a sophisticated structure that did not ignore individuals in favour of the interests of the totality or a specific class or group. On the contrary, with the decline of the influence of Christianity in the eighteenth century, the state took over the ‘individualizing power’ hitherto held by the Church.90

The technique of bio-power effecting this disciplinary control ensures progress in political representation and a certain amount of equality in the institutions of the state. Another outcome, however, is that within society, individuals and groups are not equal and are not equally powerful.91 Power as technique reflects the effectiveness of those strategies for attaining a greater scope of action for oneself while limiting the scope of action of others implicated by the strategies.92 Individual and group freedom of choice Contemporary Theoretical Perspectives 85

and capacity to act is limited to that authorised by power relations or networks of power, within which all subjects participate.

State power became an issue of ‘government’, meaning not only the management of political structures and the state, but more so the management of individuals and populations. So the state does not operate merely as a subjugating force. It also operates in a more subtle, less repressive way, through the structuring of a “possible field of action of others”.93 This means the state helps shape the ability, or inability, of individuals to exercise power. Foucault coined the terms ‘govermentality’ and ‘govermentalization’ to explain the complex processes involved in the development of technologies or techniques of bio-power to effect social cohesion.94 Such cohesion is not secured by force exercised by the state, but is maintained by state institutions combined with sections of civil society.

the state is not simply one of the forms or specific situations of the exercise of the power—even if it is the most important—but that in a certain way all other forms of power relations must refer to it. But this is not because they are derived from it; it is rather because power relations have come more and more under state control ... In referring here to the restricted sense of the word government, one could say that power relations have been progressively governmentalized, that is to say, elaborated, rationalized, and centred in the form of, or under the auspices of state institutions.95

Through ‘normalization’, society is rationalised, organised and homogenised in accordance with the desires of the state, to integrate people into the economic system.96 Normalising technologies or techniques establish a common definition of goals and procedures, or “agreed upon examples of how a well-ordered domain of human activity should be organised”.97 They define what is normal, and what falls outside that definition, as behaviour in need of normalisation. There is of course no intrinsic validity in what is considered ‘normal’ society. Nevertheless, it is a totalising activity where dominant members within networks of governmentality normalise inequalities through discursive practices, which have the effect of control and discipline, and of exclusion and domination.

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Consistent with Foucault’s argument that normalising and truth creating mechanisms of power are institutionalised and regulated through discursive practices or tactical elements such as discourses.98 Michel Callon studied networks from a presumption of initial equality of actors. Callon, explaining the production of inequalities within the networks through problematization, enrolment, and mobilization.99 According to Hess,100 scientists, engineers and other ‘experts’ within networks attempt to convince others of what is ‘truthful’ or ‘successful’, and thereby influence network outcomes. For this reason, networks appear to be far from democratic. The weaker actor within a network simply serves the larger system it operates within and is most often silenced by the power of the socially negotiated ‘truth’ of the more powerful actors.

Techniques of power

State power is also established through a normalisation of essentialist understandings of concepts such as ‘knowledge’ and ‘property’, as public institutions rationalise and legitimate action taken against others, while normalising dominant ways of ‘knowing’ and ‘owning’. I have adopted Foucault’s analytics of power in this study to reveal as techniques of power three strategies which were identified in Chapter One. These strategies can be seen to have been utilised to control access to, and ownership of, biological resources and medicinal knowledge in Australia, and the appropriation and subjugation of Indigenous people and their knowledge: ‘ways of knowing’ as a technique of power (Chapter 4); ‘ways of owning’ as a technique of power (Chapter 5); and Fourth World as a site of resistance (Chapter 6).

Ways of Knowing as a Technique of Power The idea of effecting advancement through dominant ‘ways of knowing’ as a technique of power is based on the notion of ‘progress’, an enduring Enlightenment principle. The term ‘Enlightenment’ refers to the movement toward humanism, secularism, and liberalism, and the adoption of the sciences and an ‘enlightened’, ‘rational’ worldview, which emerged, as argued by Dorinda Outram and Isaac Kramnick, from the late seventeenth century.101 The universality, certainty, and homogenity of human reason Contemporary Theoretical Perspectives 87

and empirical scientific analysis were seen to separate ‘enlightened man’ from his immediate Christian past and from antiquity. Modernity’s Enlightenment thought instilled faith in human reason to objectively and scientifically describe and explain the world, and accordingly, constructed the knowledge to transform and control it, justified through scientific regimes of truth.102 Regimes of truth are produced according to prescribed rules and programmes, or techniques of power, that inform social and economic activities.103 Foucault promoted analysis of the forms and effects of power to determine how the divisions between ‘true’ and ‘false’ emerged historically and have been rationalised and legitimised to justify accepted power relations.104

Foucault was critical of the Enlightenment humanist focus on ‘science’ as ‘truth’,105 and the insistence that both should be free from power.106 For Foucault, the production of knowledge was inevitably linked to ‘truth-claims’, fabricated through complex relations of power.107 Foucault understood that knowledge is power, meaning not as Bacon asserted that knowledge leads to power, but rather that the two concepts are interdependent as knowledge is a function of power relations.108 The thrust of Enlightenment has been the objectification and subjection of society to those who are powerful, knowledgeable, and institutionally legimitated.109 Of great concern to Foucault then was how knowledge as power led to the formation and normalisation of beliefs of what constitutes knowledge and power, truth and falsity.

Central to Foucault’s analysis of the political problem(s) of truth have been both a recognition of the importance of a scientific hierarchization of knowledges through which ‘true’ and ‘false’ have increasingly been distinguished in modern Western societies, an important consequence of which has been the disqualification of low-ranking, local, and popular forms of knowledge (‘le savior des gens’).110

Foucaults’ is a theory of discourse. Foucault links discourses to power and knowledge, as discourses are not just “thoughts, representations, images, themes”, but are “practices obeying certain rules”.111 Everything spoken and written is regulated by the world in which we live, and from this discourse, emerge the rules by which dominant knowledge is produced, organised and validated within an historical context. Language, and the implicit rules that govern its use, are, therefore, key instruments of power.112 Contemporary Theoretical Perspectives 88

Another theorist who builds on Foucault is political scientist Herbert Gottweis. He speaks of metanarratives, which serve the same function as discourse. Gottweis outlines the role of language and of political metanarratives in policy-making, which together form frameworks of a collective political identity within which dominant state projects are pursued.113 The dominant political metanarrative in a particular society at any given time is a social construct, as are the policy narratives, which are the ‘fields of action’ posited to pursue political metanarratives.114 For example, the policy narratives of state policymakers may privilege a particular field of science or technology, justifying this privileging as essential for the economic prosperity central in the political metanarrative of the state.

As the legitimacy of policy-making increasingly relies on technological and scientific ‘facts’ and ‘truth’, “the exercise of power is predicated upon the deployment of knowledge”.115 Truth is generally linked to knowledge derived from scientific theories, technological practices, and economic forecasts. The link between power and knowledge is thus evident as governments gain policymaking legitimacy through recourse to technological and scientific truth-claims produced through narratives and discourses. The producers of technological and scientific truth-claims, however, “tend to adopt interpretations, theories, or lines of research that enable them to monopolise areas of investigation, dismiss the work of competitors, or answer to the social demands of a particular class (such as the state, a political party, or a church)”.116

Some scholars in science and technology studies, including Latour,117 Hess,118 Fuller,119 and Pickering120 also highlight the social production of scientific knowledge. Science as a system of knowledge is stabilised and secured through a process referred to by Michel Callon and Bruno Latour121 as ‘black boxing’; the locking into place as ‘fact’, knowledge that may no longer be considered or questioned. At the same time, access to specific knowledge is privileged. Latour and Woolgar122 explain how nature, and knowledge relating to nature, are translated into a language or discourse understood and accessed by a select ‘enlightened’ few. This aligns to Foucault’s meaning of discourse. Contemporary Theoretical Perspectives 89

Within regimes of governmentality, normalisation of particular knowledge and regulation through techniques administered by government (or government appointed agents), has a distinct effect of legitimising intervention and control. These techniques also enable the delegitimisation of the knowledge and ownership regimes of specific target populations—for instance, the Indigenous Other within the state—and in turn, for reverse discourses of resistance to emerge.

Ways of Owning as a Technique of Power Rationalism and scientific thought also influence the development of law. The personal rights of the individual are subjected to the laws of nature and society, a form of subjected sovereignty. Law does not rely on morality for its validity, rather its authority arises simply by being laid down or ‘posited’ by institutions of the state.123 The freedom of choice and capacity to act of individuals and groups depends on this authorisation. This is evident in the case of private property, where the proprietor can control, use, and even abuse his or her goods, providing he or she submits to the law that supports his or her property claim. John Locke’s seventeenth century central political principle was that property rights are the basis of human freedom and government exists to protect them.124

In this current era of globalisation, where goods and ideas traverse the globe, Greider argues that state governments are invaluable to global capital, due to their offer of protection in the form of property rights.125 International law in relation to private property, trade, and human rights, in particular, is also becoming increasingly important. Ecofeminist Vandana Shiva writes extensively and critically on reductionist science and the exclusion present in intellectual property rights (IPRs) regimes.126 Shiva also notes that the combination of dominant knowledge (biotechnology) and ownership (IPRs) regimes have created new subjective relations between technology and nature. Biotechnology enables the appropriation and manipulation of knowledge and nature, and their transition from existing systems of ownership to ‘enclosure’ within dominant regimes of ownership. Shifting constructions of nature from the ‘common heritage of Contemporary Theoretical Perspectives 90

mankind’ to private property have occurred in order to serve dominant, often multinational, corporate interests.

Western law is, therefore, incomprehensible if removed from the complex relations within which it developed. Law is not intrinsic, universal, natural or eternal, but contrived and constructed, and historically and linguistically specific. Foucault argued that what is accepted as lawful is effected by power, and constituted by those with institutionalised authority.127 The regime of truth created through law has the effect of protecting the insider while excluding the outsider, repressing and subjugating other ‘ways of owning’ and, thus, other understandings of truth.

Combined, dominant ‘ways of knowing’ and ‘ways of owning’, therefore, operate as techniques of subjugation. For example, the rights in property and human freedom of those peoples subjugated by Western states through colonialism were most often negligible. According to Ellul, the West,

subjugated, conquered, and exploited them [other peoples], even when it went on talking about freedom. It made the other peoples conscious of their enslavement by intensifying their enslavement and calling it freedom. It destroyed the social structures of tribes and clans, turning men into isolated atoms, and shaped them into a worldwide proletariat, and all the time kept on talking of the great dignity of the individual, his autonomy, his power to decide for himself, his capacity for choice, his complex and many-sided reality.128

What Ellul demonstrates here is an understanding of how power is exercised to subjugate Third and Fourth World peoples. At the time of colonisation, the ‘wardship principle’ was used by states to generate discourse that identified Indigenous peoples as “incompetent or even retarded children”.129 This worked to satisfy both the “conscience and the economic needs of modern states”.130 Only by conceiving of Indigenous peoples in this way could the Enlightened colonisers represent themselves as the pinnacle of civilisation and human history.131

Foucault’s identification of the historical modes by which humans and their cultures have been made subjects is of further illumination here. To Foucault, highly significant in this context is the development of scientific modes of inquiry which objectivise the Contemporary Theoretical Perspectives 91

subject, and the associated ‘dividing practices’, which separate the subject from others: mad/sane, healthy/sick, criminal/law abiding.132 Colonialism, which continued throughout the eighteenth and into the nineteenth centuries, was justified in Western dualist thought by appeal to a European/non-European, subject/object, culture/nature dichotomy, where the non-European Other could be studied within the realm of nature. Like nature, the Other could be observed from the privileged position of scientific knowledge, and could, therefore, be “governed, controlled, mastered, and enslaved”.133

In Deacon’s opinion, Foucault held the “anti-humanist view that the forces of normalisation have subjected us to freedom and in the process fabricated what we now believe to be our true nature”.134 According to this view, individuals “become subject to, and dependant upon the control of someone else, and therefore participate in their own subjugation”.135 Dividing practices are based on the pre- and post-Enlightenment division between true and false, reason and rationality, each justifying social and political prohibitions on the right to speak.136

Franz Fanon’s compelling accounts of the dehumanising effects of colonialism in The Wretched of the Earth and Black Skin White Mask, and his own internalised negative perspective on being black, prompted a wealth of literature labelled as ‘postcolonial’. The main theme of postcolonialism is the construction of the inferior colonised ‘Other’, and the internalising of this construction by both the colonised and coloniser. A further theme is the endurance of colonialism, as its effects remain as a legacy even after its legal demise. Ngugi Wa Thiong’o137 and Ladislaus Semali138 both give emotional personal accounts of their experiences in post-colonial Africa. Throughout Africa, there is a sustained difficulty dealing with the internalised negativity resulting from the Eurocentric worldview in educational and bureaucratic institutions, and in the African mind. Edward Said explained in Orientalism how Western hegemony in the Orient since the eighteenth century constructed an ‘understanding’ of Oriental ‘backwardness’ through discourse, whilst securing its own superiority, identity and strength.139

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From a Fourth World perspective, Irene Watson documents the impact the legal doctrine of terra nullius has had, and continues to have, on Aboriginal Australians.140 The colonial legal system colonised, dispossessed and disempowered Aboriginal peoples, “as a legitimate ‘act of state’”.141 Watson further argues that the ‘decolonisation’ of Australia from British rule is meaningless for Aboriginal Australians, as they have not achieved decolonisation from the ‘colonial’ Australian government. Maori academic Linda Tuhiwai Smith advocated Decolonising Methodologies as a way for Maori peoples to reclaim their identity by researching themselves, a project she calls “’researching back’, in the same tradition of ‘writing back’ or ‘talking back’, that characterised much of the post-colonial or anti-colonial literature”.142 Tuhiwai Smith explains that Maori peoples are sceptical of research, as they consider research processes to be the handmaiden of imperialism and colonialism, which facilitates domination.143

In adopting a Foucauldian approach to studying dualism, Val Plumwood explains in Feminism and the Mastery of Nature that for domination to exist the dominated must participate by internalising the inferior identity and low valuation assigned to them by the dominating.144 The master and dominator, in turn, considers the view of the Other as inessential, while situating the view of the dominator as universal. Plumwood has made another convincing observation: A dualism, I have argued, results from a certain kind of denied dependency on a subordinated other. This relationship of denied dependency determines a certain kind of logical structure, in which the denial and the relation of domination/subordination shape the identity of both the relata.145

The dominator requires the dominated for its identity, for it is the slave who makes the master a master, the colonised who make the coloniser, the periphery who make the centre.146 Hall makes a similar point, arguing that Western hegemony would be “unthinkable” outside of complex power relations that deny the dependence of the West on the external (Third World) and internal (Fourth World) Other.147 One can draw from these arguments the positive potential for the dominated to challenge and change this relationship by resisting oppressive power.

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Fourth World as a Site of Resistance Influenced by the political struggles Foucault witnessed in the 1960s by the political left, women’s movements, and opponents of psychiatric institutions—each sharing a common hostility to the individualising and totalising technologies of the state— Foucault developed an interest in resistance.148 His approach, however, was unique. He saw domination as positive, as it allowed the dominated relatively greater scope and encouragement for reclaiming their identity.149 A society without power is not possible, and indeed not desirable according to Foucault, as power struggles enable resistance to the exercise of dominant power. Promises of an ‘end of power’ prominent in some anarchist models of emancipation are therefore pointless. He was not saying that oppressed and dominated peoples should not struggle for emancipation, but that power relations are essential to the emancipation process, a position widely criticised by those who believe all power in ‘colonial’ situations is exercised negatively.150 Essentially, Foucault was interested in how power is realised, not how it is opposed.151

Foucault advocated the creation of a “‘new politics of truth’”, but has been criticised for not providing strategies for resistance or policy alternatives.152 Yet that was not Foucault’s objective. Instead, his aim was to create the conditions for others to act by identifying how power works, and its strengths and weaknesses, leaving “the questions of tactics, strategies and goals to those directly involved in struggle and resistance”.153 As discussed earlier, Foucault did not advocate an ‘end of power’ as power relations are essential for resistance. But by contributing to a deeper understanding of power, his ideas empower those who are resisting oppression to assess the tools used to subjugate them, such as Western versions of history, and the path to ‘modernisation’ advocated in dominant development discourse.

According to development discourse, the need to abandon tradition and modernise, to ‘Westernise’, is considered paramount for Third World States and Fourth World Nations. Propelling this discourse early in the post-World War II era was modernisation theory as espoused by W.W. Rostow.154 More lately it has been espoused by The Sceptical Environmentalist Bjorn Lomborg,155 and ‘ecological modernisation’ theorists. Contemporary Theoretical Perspectives 94

Modernisation theorists canvass the idea of a progression from ‘primitive’ through to ‘complex’ societies. Citing an idealised version of North American and European history,156 modernisation theory proposed that all societies were capable of developing and modernising in line with the West if they were willing to reject ‘irrational obstacles’ to economic liberalisation and liberal democracy, including culture, religion, traditionalism, and nationalism. 157

Development discourse supports the interests of powerful core countries, Third World elites, and increasingly, transnational capital.158 International organisations including the World Bank and the International Monetary Fund contribute to the discourse by supporting neo-liberal development strategies. This reflects their close ideological relationship with the core industrialised countries.159

Criticism of modernisation in Marxist literature on development emerged in the 1960s, particularly in Latin America, where dependency theory emerged from the leftist ‘radical Third Worldism’,160 through Andre Gunder Frank,161 Johan Galtung,162 and World Systems theorist Immanual Wallerstein.163 In this schema, power in the international economy is not held by states, but by elite decision-makers within the structure itself. The theories developed by Frank, Galtung, Wallerstein and others, are still supported by many, and indeed still have very relevant contributions to make in understanding the processes of the modern global economy. A weakness of these as theories for analysis in this thesis, however, stems from an overemphasis on the Third World, and little recognition of the Fourth World, as well as their failure to provide a coherent schema for a better understanding of power and the marginalisation of Fourth World Nations.

Foucault explains that resistance also occurs through techniques of power such as reverse discourse.164 Indigenous peoples encapsulated within modern states through the colonisation process have, to date, continued to struggle to find their place and establish their rights within this space. Indeed, they have began to challenge dominant regimes of ‘knowing’ and ‘owning’, and to challenge their subjugation. Increasingly, Indigenous Contemporary Theoretical Perspectives 95

peoples are taking their concerns, including issues surrounding the appropriation of natural resources and knowledge, onto the global stage. On this stage, the United Nations, has become a “moral authority” which Indigenous peoples, environmentalists, feminists and others turn to.165 The United Nations Conference on Environment and Development (UNCED) and the Working Group on Indigenous Peoples, among other UN agencies, have provided a platform for Indigenous peoples to air grievances which, at the state level, often are suppressed. Global fora thus allow Indigenous Peoples to seek redress for what they perceive to be injustices.

Subsequently, from the perspective of those resisting dominant (corporate, state) power structures, the devolution of power from the state to institutions such as those operating under the auspices of the United Nations may not be entirely negative. If it is true, and the territorial boundaries of existing states are losing their significance as propounded by the globalisation thesis,166 it is necessary to ascertain how, as Other entities within states, Fourth World Nations, can, and do, function within a globalised environment. While representatives from Fourth World Nations have been keen to participate in UN fora, they could, and perhaps should, be justifiably sceptical about taking their concerns to this international body. This is because the UN is dominated by states, both developed and developing, that share similar values to the states that encapsulate them, and corporations motivated by their desire to capture resources and knowledge.

Yet Foucault offers a possibility of resistance by asserting that the marginalised also have the capacity to exercise power. Although he never referred specifically to the Third or Fourth World, his ideas have been applied to the Third World. The work of Arturo Escobar167 provides an example of the application of Foucault to form a new approach to development discourse and the control of biological resources, demonstrating the appropriateness of a synthesised Fourth World Foucauldian approach for this thesis.

Emulating Escobar’s Foucauldian Approach

Although Arturo Escobar studies the Third World and not the Fourth, he does address access to biological resources and therefore provides insights for analysis of Contemporary Theoretical Perspectives 96

bioprospecting. In following the work of Michel Foucault, Escobar understands the Third World as a negative ‘construct’ conceived by the First World, who have, in turn, constructed their own identity as superior.168 In an example of the deployment of biopower, the relentless production of development discourse has facilitated the domination and continued exploitation of the Third World by the First. By problematising certain features such as illiteracy and malnutrition, the First World has justified the adoption of strategies and programs to study these ‘abnormalities’. Following World War Two, numerous organisations were established to assist the Third World to ‘develop’ in the Western tradition and to reject communism,169 and to incorporate the Third World into the capitalist economic system.

Numerous theories on development, as previously discussed, emerged from North America and Europe. The professionalisation of development has seen the proliferation of disciplines and subdisciplines, wherein the problems of development, or a lack of it, are studied. Frequently, scientific solutions are posited. Escobar uses the example of hunger. Instead of addressing hunger as a “pathetic sign of power over the Third World”, developed countries offer scientific ‘solutions’ such as the Green Revolution, single cell protein or the many proliferating biotechnological techniques,170 known as the ‘doubly Green Revolution’,171 as a means of combating inadequate food supply. Through discourse, power and knowledge have been deployed to enable the West to “manage and control and, in many ways, even create the Third World politically, economically, sociologically and culturally”,172 determining what others, and often the Third World countries themselves, understand by the term ‘Third World’. That understanding generally has been framed negatively.

Foucault’s enlightening ideas concerning the power in discourse, as adopted by Escobar, are thus also adopted here to establish an understanding of the relative powerlessness associated with Fourth World Nations.173 Indigenous culture has been problematised by programs and strategies of the encapsulating states to counter ‘primitiveness’. Institutionalised domination of Indigenous peoples of the Fourth World has been justified by referring to them through the use of pejorative appellatives.174 Connor Contemporary Theoretical Perspectives 97

explains how Europeans have patronisingly used terms such as primordialism and tribalism to describe loyalty to a Nation, analogous to Europe in the Dark Ages.175

Official policies of assimilation and acculturation in colonial situations were justified by utilising the conventional wisdom emerging from discourse concerning Fourth World peoples—discourse enabled by colonialism, and which facilitated the perpetual power exercised over Fourth World peoples by this knowledge. For example, the construction of Aboriginal Australians as a ‘dying race’, as a ‘burden’, as ‘inferior’, engendered acceptance of these views in the general community and at a policy level for generations, and arguably lingers in the political air today.

The circumstances of Fourth World peoples are thus problematised as abnormal and dysfunctional by determining ‘normality’ and placing the Other outside of this normality. Contemporary issues such as alleged alcoholism and indolence are not addressed as problems arising from the exertion of power by dominant groups. Instead, they are situated as characteristics inherent in Indigenous societies. The pursuit of development in accordance with the values of those who consider themselves ‘normal’ is portrayed as the vehicle for countering ‘abnormality’. Annette Holder176 gives detailed accounts of the policies and programs that have been developed to foster economic development in North Queensland Aboriginal communities, and their subsequent failure. This failure was primarily due to an assumption implicit within the projects, which was the requirement of cultural change to accommodate progress.

Conclusion

Fourth World Theory—a theoretical perspective aimed specifically at the unique predicament of Indigenous Nations encapsulated within First World states—together with the theoretical insights provided by Foucault’s approach to power relations, form the theoretical framework of the thesis. By situating Indigenous Nations encapsulated within states as valid stakeholders vying for their rights to their resources and knowledge, this study adopts the term Fourth World theoretically and analytically. By Contemporary Theoretical Perspectives 98

analysing the contemporary debate on bioprospecting within this framework, obstacles previously excluding Fourth World interests from policy analysis are reframed and better understood as constructed and fabricated. Foucault’s ideas on power and resistance help to explain the position of Fourth World Nations in relation to their encapsulating states, and their reaction to the very political issue of bioprospecting. The two approaches are compatible, as both have a focus on analysing dominant power, and both reject the totalising explanatory narratives adopted in development discourse, and in conventional theories on power and the state.

Foucault examined how truth producing sites of government, both political and non- political institutions of civil society, combine discursively to implement state strategies within networks that simultaneously privilege and marginalise or exclude. The state and its institutions are accompanied by markets, research institutions, biotechnology companies and other actors as sites of government that influence policymaking. Together, they contribute to the regime of governability over access to biological resources.

Finally, it has been found that the exercise of ‘power over’ Fourth World Nations is evidenced through an examination of history, language and discourse. It is also clear that such exercise of power has an institutional base in multinational corporations, international institutions, and the state. In the next chapter, I will use this theory to explore ‘ways of knowing’ as a technique of power manifest in the bioindustry.

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ENDNOTES

1 Foucault, M., The Foucault Reader, P. Rabinow (ed), Harmondsworth: Penguin, 1984a, pp. 72-73.

2 For example see Holden, Annette., Fourth World Economic Development: The Establishment of Capitalism in Three Aboriginal Communities in Cape York Peninsula, Queensland?, unpublished PhD thesis, Division of Commerce and Administration, Griffith University, 1994.

3 This thesis will examine treaties to determine the significance of such historical agreements to contemporary Indigenous attempts to secure rights to land and resources, as compared to peoples whose land was simply invaded.

4 Wilmer, Franke., The Indigenous Voice in World Politics, Newbury Park, CA: Sage Publications, 1993, p.48

5 Despite this, Wilmer claims that although the US Supreme Court recognised Indigenous sovereignty, in “1987 the US government was still asserting the law of conquest”. Ibid., p. 163.

6 Greider, William., One World Ready or Not: The Manic Logic of Global Capitalism, London: Penguin Books, 1997, p. 16.

7 Heywood, A., Politics, London: Macmillan Press, 1997, p. 158.

8 Ibid., p. 116.

9 For example, programmes of US aid to the UK (Dollar Loans etc) were conditional upon the transfer of UK military bases to the US, and a commitment to begin the dismantling of Britain’s system of imperial preference. Burch, David., Overseas Aid and the Transfer of Technology, Averbury: Alderstok, 1987, pp. 43-52.

10 Heywood., Politics, op. cit., p. 118.

11 Wilmer., The Indigenous Voice in World Politics, op. cit., p. 164.

12 Papua New Guinea, for example, did not achieve independence from Australia until 1975.

13 Nietschmann, B., “ The Third World War”, Cultural Survival Quarterly, Vol. 11, No. 3, 1987, p. 6.

14 Wilmer., The Indigenous Voice in World Politics, op cit., p 23, p. 153. Initial efforts to have indigenous peoples included in this UN program were blocked by “powerful interests” within North, South and Central America. Contemporary Theoretical Perspectives 100

15 Ibid.

16 For example see Nietschmann., “ The Third World War”, op. cit., p. 381. ; Wilmer., The Indigenous Voice in World Politics, op. cit. ; Walker., op. cit. ; and a discussion in Lavenda, R. H., and Schultz, E. A., Core Concepts in Cultural Anthropology, second edition, Boston: McGraw Hill, 2003, pp. 119-120.

17 Nietschmann., “ The Third World War”, op. cit., p. 381.

18 Connor identifies some of the misnomers resulting from, in his view, the failure to distinguish between the terms nation and state, including ‘United Nations’, ‘International Monetary Fund’ and ‘Transnational Corporations’, as they are dealing with relations between states not nations. Connor, Walker., “A Nation is a Nation, is a State, is an Ethnic Group is a ...”, Ethnic and Racial Studies, Vol. 1, No. 4, October, 1978, p. 383.

19 Rose, Richard., “On the Priorities of Government: A Development Analysis of Public Policies”, European Journal of Political Research, 4, 1976, p. 250.

20 Rose., “On the Priorities of Government”, ibid.; Heywood, Politics, op. cit., p. 143.

21 Fukuyama, Francis., The End of History and the Last Man, London: Penguin Books, 1992, pp. 12, 37, 47-51.

22 Goldsmith, J., The Trap, New York: Carroll and Graf Publishers, 1994, p. 55.

23 Nietschmann., “ The Third World War”, op. cit., p. 382.

24 Borchert, Donald, M., “Nationalism and International Relations”, The Encyclopedia of Philosophy Supplement, New York: Simon and Schuster Macmillan, 1996, p. 370.

25 Nietschmann., “ The Third World War”, op. cit., p. 3.

26 Jaensch, D., The Politics of Australia, Melbourne: Macmillan, 1997, p. 5.

27 Ibid., p. 56.

28 Churchill, W., “I Am Indigenist”, Struggle For the Land, Monroe, Mayne: Common Courage Press, 1993, p. 433.

29 Nietschmann, “ The Third World War”, op cit., p. 1.

30 Ibid.., pp. 1-3. These Nations are located in developed and developing countries, for example in Central and South America, Asia and Africa, as well as Europe, North America, Japan, New Zealand and Australia. Contemporary Theoretical Perspectives 101

31 Connor., “A Nation is a Nation”, op. cit., p. 380.

32 Nietschmann., “ The Third World War”, op. cit., p. 1.

33 Jaensch, The Politics of Australia, op. cit., p. An example would be Palestine, where the Palestinian diaspora maintain a strong sense of identity linked to their land.

34 For example, what do Burkina Faso, and Laos and Mexico really have in common?

35 Horowitz, Irving Louis., Three Worlds of Development, Oxford: Oxford Uni Press, 1966.

36 In this post Cold War period East-West relations are now less important in the analysis of global politics. Heywood., Politics, op. cit., p.140.

37 Ibid., p.152. The heuristic division of the world into a ‘North’ and a ‘South’ is conceptual rather than geographical, based on the idea that industrial development is concentrated in the northern hemisphere and poverty and underdevelopment are concentrated in the southern hemisphere. There are obvious exceptions including Australia and Japan.

38 Ibid.

39 Ibid.

40 Nietschmann, “ The Third World War”, op cit., p. 3.

41 McCall, Grant., “Four Worlds of Experience and Action”, Third World Quarterly, Vol. II, No. 3, July 1980, p. 538.

42 Ibid., p. 539.

43 For example, the Karen, Kurdish, Palestinian and Tibetan Nations.

44 McCall., “Four Worlds of Experience and Action”, op. cit., p. 545.

45 Ibid., p. 543. According to McCall p. 544, this is a dynamic model, where nations and states can and do move from one world to another. For example, China is identified as a Third World country but is seeking Second World status. Those within the Second World, including Germany, Japan and France, are seeking First World status.

46 Adapted from the ideas presented in McCalls paper. McCall., Ibid.

47 Wilmer., The Indigenous Voice in World Politics, op cit., p. 31.

48 Ibid., p.32.

Contemporary Theoretical Perspectives 102

49 Graburn, N. H. H., “1, 2, 3, 4, … Anthropology and the Fourth World”, Culture, No. 1, Vol. 1, 1981, pp. 66-70; Connor., op. cit.; Wilmer, op. cit.

50 Holder., Fourth World Economic Development, op. cit.

51 Connell, J, and Howitt, R., ”Mining, Dispossession and Development” Mining and Indigenous Peoples in Australasia, Sydney: Sydney University Press, 1991, p. 3.

52 Graburn, “1, 2, 3, 4, … Anthropology and the Fourth World”, op. cit.

53 Ibid., p. 67.

54 McCall., “Four Worlds of Experience and Action”, op. cit.

55 Worsley, Peter., “World-System Theory”, The New Modern Sociology Readings, London: Penguin Books, 1991, pp. 113-9. ; Worsley, Peter., “How Many Worlds?”, Third World Quarterly, 1 (2), 1979, pp. 100-7.

56 Jaimes, M., “American Indian Studies: Towards an Indigenous Model”, American Indian Culture and Research Journal, 11 (3) pp. 1-16.

57 Graburn, Nelson H.H., “1, 2, 3, 4... Anthropology and the Fourth World”, op. cit., pp. 66-70.

58 Dyck, Noel., “Aboriginal Peoples and Nation-States: An Introduction to the Analytical Issues”, Indigenous Peoples and the Nation-State, St Johns Institute of Social and Economic Research, Memorial University of Newfoundland, 1985, pp. 1-26.

59 Burger, Julian., “A Project for the Decade” Cultural Survival Quarterly, Spring 1994.. ; Burger, Julian., Report From the Frontier: The State of the Worlds Indigenous Peoples, London: Zed Books, 1987.

60 Aga Khan, S., and bin Talal, H., Indigenous Peoples, A Global Quest for Justice: A Report for the Independent Commission on International Humanitarian Affairs, London: Zed Books, 1987.

61 Holden., Fourth World Economic Development, op cit.

62 Wilmer., The Indigenous Voice in World Politics, op cit..

63 Weyler, Rex., Blood of the Land, New York: Vintage Books, 1984.

64 Foucault, M., The History of Sexuality: An Introduction, p. 101.

65 Ibid., p. 213.

66 Appelbaum, R.P., and Chambliss, W.J., Sociology, New York: Harper Collins, 1995, p. 245. Contemporary Theoretical Perspectives 103

67 Yet, it must be restated at this point, that the term Fourth World, which is commonly used by Native Americans and in Europe, is not universally utilised by Indigenous peoples encapsulated within developed states.

68 Reservations concerning the use of the term Fourth World by non-indigenous peoples, particularly as an analytical term, reflect the desire by Fourth World Nations to maintain control of the term they have opted to identify with. As a researcher, I am aware of these concerns. The appropriation of a term can indeed lead to disempowerment. Use of the term for analytical purposes can however, also have empowering tendencies if it can provide a new tool for assessing and critiquing the prevailing structures that are untimately responsible for disempowerment of Fourth World peoples. The use of Fourth World theory, together with Foucault approach to power, does provide that new framework for analysis.

69 Bachrach and Baratz argued that power can be exercised to ensure that things do not get done, and to intentionally ensure that some actors are excluded from access to the agenda of politics. Hence, they emphasise the need to consider the structure behind the exercise of power in an organised setting. Bachrach, P., and Baratz, M. S., Power and Poverty: Theory and Practice, London: Oxford University Press, 1970, pp. 42-3.

70 Lukes introduced the so-called three-dimensional view of power based on the idea of ‘power over’, where A exercises power over B, causing B to accept what would appear to be against the interests of B. Lukes, S., Power: A Radical View, London: Macmillan Press, 1974, p. 23.

71 The capitalist State according to Marxists is the antithesis of that described by classical pluralists, as the State is a product of the class system and therefore an instrument of class oppression. Clegg, Stewart, R., Frameworks of Power, London: Sage Publications, 1989, p. 29.

72 In Marxist theory “hegemony refers to the ability of a dominant class to exercise power by winning the consent of those it subjugates, as an alternative to the use of coercion”. Heywood., Politics, op. cit., p. 190.

73 Italian Marxist and social theorist Antonio Gramsci explained that power within the State is maintained through unequal economic and political power and the absolute hegemony of bourgeois ideals and values, permeated throughout society and “into the very common sense of the age”. Ibid., p. 191.

74 Schattschneider was the first to introduce the idea of a “mobilisation of bias”, where certain elite individuals and groups exercise power by establishing “predominant values, beliefs, rituals and institutional procedures (‘rules of the game’)”. Bachrach and Baratz., Power and Poverty, op. cit., p. 43-4. Davis, G., et al., Public Policy in Australia, Sydney: Allen and Unwin, 1988, p. 117. Any challenge to these predominant values and beliefs however can be suppressed by what Bachrach and Baratz refer to as ‘nondecision-making’. This means that certain issues will never make it through the Contemporary Theoretical Perspectives 104

policy process to the implementation stage. That is, a final decision will never be made on an issue if it is considered a challenge to dominant power relations. Lukes, Power, op. cit., p. 11. Decision-makers may exercise power through nondecision-making, for example, by creating an illusion of participation by diverse interests, or by establishing commissions or committees to carryout long drawn-out studies of an issue. Bachrach and Baratz also introduced the idea of “decisionless decisions” which they acknowledged as being analogous to Braybrooke and Lindblom’s idea of “disjointed incrementalism”. This “is the process of making policy choices by means of a sequence of steps, each of which effects a small change at the margin”. Bachrach, P., and Baratz, Power and Poverty, op. cit., pp. 42-43. Advantages can accrue in taking this route over the opposing tendency to develop ad hoc policies, because it allows time for consideration of all possible problems or difficulties. However, in Bachrach and Baratz’s view, incremental decision-making can also lead to ‘decisionless decisions’, which are unintended, unforeseen and often undesired major policy outcomes. Such decisions can thus be both “unwitting and deliberate”. Ibid., p. 43. Bachrach and Baratz however caution against apportioning blame for major policy changes arising from decisionless decisions entirely on those involved in the last incremental steps of the process, as the process may have commenced years before a major change is evident. Ibid.

75 According to Lukes, the absence of observable conflict may be, in itself, a reflection of power exercised to successfully avert conflict. Ibid., p. 23. Latent conflict may nevertheless exist, evident in “a contradiction between the interests of those exercising power and the real interests of those they exclude”. Ibid., p. 25. Emphasis authors own. Those excluded—B—may be unable to express their interests or simply not even be conscious that their real interests are being suppressed. Thoughts and desires can be manipulated to ensure compliance. Lukes denounces the prevention of the expression of grievances by the shaping of “perceptions, cognitions and preferences” as “the most insidious exercise of power”. Ibid., p. 24.

76 Smart., Barry., “The Politics of Truth and the Problem of Hegemony”, Foucault: A Critical Reader, D.C. Hoy (ed), Oxford, UK: Blackwell, 1986, p. 160.

77 “Power is not something located in and symbolised by the sovereign, but permeates society in such a way that taking over the state apparatus (through political revolution or coup) does not in itself change the power network”. Hoy, D. C., “Power, Repression, Progress: Foucault, Lukes, and the Frankfurt School”, Foucault: A Critical Reader, D.C. Hoy., (ed), Oxford, UK: Blackwell, 1986, p. 134.

78 Ibid., p. 134.

79 Ibid., 128. ; Machiavelli, a Florantine politician and philosopher briefly imprisoned by the state he served, wrote a scathing but realistic account of politics in The Prince. Machiavelli, N., The Prince, London: Everyman, [1531] 1958. ; Heywood, Politics, op. cit., p. 6.

80 Clegg. Frameworks of Power, op. cit., p. 4, 5, 32. Contemporary Theoretical Perspectives 105

81 Ibid., p. 38.

82 Deacon, R. A., Fabricating Foucault: Rationalising the Management of Individuals, Milwaukee: Marquette University Press, 2003, p. 270.

83 Ibid., p. 21.

84 Foucault, M., Discipline and Punish: The Birth of Prison, New York: Vintage Books, 1979b. ; Dreyfus, H.L., and Rabinow, P., Michel Foucault: Beyond Structuralism and Hermeneutics, Brighton, Sussex: The Harvester Press Limited, 1982.

85 Foucault, Michel., The Will to Knowledge: The History of Sexuality: 1, London: Penguin Books, 1978, p. 139.

86 Ibid.

87 Ibid.

88 Ibid.

89 Foucault, M., Power/Knowledge, translated by Colin Gordon, New York: Pantheon Books, 1980a, p. 161.

90 Individualising strategies break the link between the individual and others within their community, thereby constructing the individuals identity and facilitating control. Foucault, M., “Afterword: The Subject and Power”, Michel Foucault: Beyond Structuralism and Hermeneutics, H. Dreyfus and P. Rabinow (eds), Brighton, Sussex, UK: Harvester Press, 1982, pp. 212-214.

91 Dreyfus and Rabinow., Michel Foucault, op. cit., 1982, p. 135.

92 Clegg., Frameworks of Power, op. cit., p. 32.

93 Ibid., p. 221.

94 Foucault, M., “Governmentality”, Ideology and Consciousness, 6:5-21, 1979a, p. 13.

95 Foucault., “Afterword”, 1982, op. cit., p. 224.

96 Foucault, M., “Two lectures”, Power and Knowledge: Selected Interviews and Other Writings 1972-77: Michel Foucault, C. Gordon (ed), Brighten: Harvester Press, 1980b, p. 95.

97 Dreyfus., and Rabinow., Michel Foucault, op. cit., 1982, p. 135.

98 Foucault, “Two Lectures”, op. cit. p. 93.

Contemporary Theoretical Perspectives 106

99 Problematization involves the identification of agents and artifacts as stakeholders in a policy field. For example, a government department of innovation decides biotechnology is the next area of economic ‘boom’, and identifies all the stakeholders who can help to achieve the departments goal as guided by States political metanarrative. These would include universities, research institutions, biotechnology companies, and other government departments. Enrolment is the next phase, where roles are assigned to actors often accompanied by government advise and offers of government incentives and subsidies. The final phase is mobilization, where actors within the established network take up their roles and attempt to influence power processes within the network, and overall policy processes. Callon, M., “Some Elements of a Sociology of Translation: Domestication of the Scallops and Fishermen of St Brieuc Bay”, Power, Action and Belief: A new Sociology of Knowledge?, J. Law (ed) Sociological Review Monograph 32, London: Routledge and Kegan Paul, 1986.

100 Hess., Science and Technology in a Multicultural World, op. cit. pp. 52-53.

101 There are debates about when the Enlightenment began and even if there is a period that can be termed ‘the Enlightenment’. I support Dorinda Outram’s argument that the Enlightenment began with the publication of Newton’s Principia. For a discussion on the debate see: Outram, Dorinda., The Enlightenment: New Approaches to European History, Cambridge, UK: Cambridge University Press, 1995. ; “Dating an intellectual movement like the Enlightenment is never precise, but a rough guide would emphasise the hundred plus years from the 1680s to the 1790s.” Hof, Ulrich. Im., The Enlightenment: An Introduction, translated by William E. Yuill, Oxford, UK: Blackwell Publishers, 1994.; Also see Gay, Peter., The Enlightenment: An Interpretation: 2 The Science of Freedom, London: Wildwood House, 1970.

102 Deacon., Fabricating Foucault, op. cit., p. 21.

103 Foucault, “Two Lectures”, op. cit.p. 83.

104 Smart., “The Politics of Truth and the Problem of Hegemony”, op. cit., p. 167.

105 Deacon., Fabricating Foucault, op. cit., p. 221.

106 Foucault, M., Power/Knowledge, op. cit., p. 222.

107 Foucault, M., “The Ethic of Care for the Self as a Practice of Freedom—An Interview With Michel Foucault”, Philosophy and Social Criticism, 12, 2/3, 1987, pp. 119, 129.

108 Gottweis, H. Governing Molecules: The Discursive Politics of Genetic Engineering in Europe and the United States. Cambridge, MIT, 1998, p. 29.

109 Deacon., Fabricating Foucault, op. cit., p. 272.

110 Smart., “The Politics of Truth and the Problem of Hegemony”, op. cit., p. 164.

Contemporary Theoretical Perspectives 107

111 Foucault, M., The Archaeology of Knowledge, translated by A. Sheridan, London: Tavistock, 1972, p. 138.

112 Foucault, M., “The Order of Discourse”, M. Shopiro (ed) Language and Politics, Oxford: Blackwell, 1984, pp. 108-138.

113 Dominant state projects such as neo-liberalism within the discourse of modernisation. Gottweis., Governing Molecules, op. cit., p. 32.

114 A narrative is a story or line of argument providing meaning and orientation. Ibid., p. 34.

115 Ibid., p. 28.

116 Ibid., p. 29.

117 Latour, B., Science in Action, Cambridge: Harvard University Press, 1987.

118 Hess., Science and Technology in a Multicultural World, op. cit.

119 Fuller, S., “Does Science Put an End to History, or History to Science? Or Why Being Pro-Science Is Harder Than You Think”, Science Wars, Andrew Ross (ed), London: Duke University Press, 1996, pp. 29-60

120 Pickering, A., Constructing Quarks, Chicago: University of Chicago Press, 1984.

121 Callon, M., and Latour, B., “Unscrewing the Big Leviathan: How Actors Macrostructure Reality and Sociologists Help Them Do So”, Advances in Social Theoryand Methodology: Towards an Integration of Micro- and Macro-Sociologies, K.D. Knorr-Cetina and A. Cicourel (eds), London: Routledge and Kegan Paul, 1981, pp. 284- 285.

122 Latour, B., and Woolgar, S., Laboratory Life: The Social Construction of Scientific Facts, Beverly Hills, California: Sage, 1979.

123 Davies, Margaret., Asking the Law Question, 2nd edition., Sydney : Law Book Company, 2001.

124 Stephens, G.M., “John Locke: His American and Carolinian Legacy”, John Locke Foundation, 1998, www.johnlocke.org/whowasjl.html Of course, the ‘human’ Locke referred to was male and European – there was minimal equality in property rights for women and non-Europeans.

125 Greider, William., One World Ready or Not: The Manic Logic of Global Capitalism, London: Penguin Books, 1997, p. 256.

Contemporary Theoretical Perspectives 108

126 Shiva, Vandana., “Epilogue: Beyond Reductionism”, Biopolitics: A Feminist and Ecological Reader on Biotechnology, Vandana Shiva and Ingunn Moser (eds), London: Zed Books, 1995.

127 Foucault., Power/Knowledge, op. cit. ; Foucault., The Order of Things, op. cit.

128 Ellul, Jacques., “The Betrayal of the West”, extract from 1978 publication of the same title, Sources of the Western Tradition, 3rd edition, M. Perry, J.R. Peden, and T.H. Von Lave (eds), Boston: Houghton Mifflin Company, 1995, p. 418.

129 Bodley, J.H., Victims of Progress, 2nd edition, Mayfield: Palo Alto, 1982, p. 11.

130 Ibid., p. 12.

131 Hall, S., “The West and the Rest: Discourse and Power”, Formations of Modernity, S. Hall and B. Gieben (eds), Cambridge: Polity, 1992, pp. 300.

132 Foucault., Discipline and Punish, op. cit. ; For a relevant studies on normalisation and disability see: Chadwick, Alden., “Rights on a Wrong Wheel: The Dangers of a Medical Approach to Civil Rights”, Australian Disability Review, 2, 1995, pp. 40-57.

133 Davies., Asking the Law Question, op. cit., p. 273.

134 Deacon., Fabricating Foucault, op. cit., p. 280.

135 Althusser cited in Deacon., Fabricating Foucault, op. cit., p. 234.

136 Foucault., The Order of Discourse, op. cit., p.113.

137 Thiong’o, Ngugi Wa., Decolonizing the Mind: The Politics of Languagein African Literature, James Currey, London, 1986.

138 Semali, Ladislaus. M., and Kincheloe, Joe. L., “Introduction: What is Indigenous Knowledge and Why Should We Study It?”, What is Indigenous Knowledge? Voices from the Academy, New York: Falmer Press, 1999, pp. 3-57.

139 Said, E., Orientalism, London: Vintage Books, 1978.

140 The legal term terra nullius portrays the legal fiction of an unoccupied land. Watson, Irene., “Indigenous Peoples’ Law-Ways: Survival Against the Colonial State”, Australian Feminist Law Journal, 39, 1997, pp. 47-48.

141 Ibid.

142 Smith, L Tuhiwai., Decolonising Methodologies: Research and Indigenous Peoples, London: Zed Books, 1999, p. 7.

143 Ibid. Contemporary Theoretical Perspectives 109

144 Plumwood, Val., Feminism and the Mastery of Nature, New York: Routledge, 1993, p. 47.

145 Ibid., p. 41.

146 Ibid., p. 49.

147 Hall., “The West and the Rest”, 1992, op. cit., p. 280.

148 Deacon., Fabricating Foucault, op. cit., p. 250.

149 Ibid., p. 34.

150 Bodley., Victims of Progress, op. cit., p. 11 .

151 Said., E. W., “Foucault and the Imagination of Power”, Foucault: A Critical Reader, D.C. Hoy (ed), Oxford, UK: Blackwell, 1986, p. 151.

152 Smart., “The Politics of Truth and the Problem of Hegemony”, op. cit., p. 167.

153 Ibid.

154 Rostow, a proponent of modernisation noted for identifying five stages of modernisation from traditional society through ‘take-off’ to the age of high mass consumption, advocated that once the first stage had been achieved, the process to full modernisation was inevitable and even irreversible. Black, Jan Knippers., Development in Theory and Practice: Bridging the Gap, Bolder, Colorado: Westview Press, 1991, p. 24; Rostow, W. W., “The Stages of Economic Growth”, 1960, Peter Worsley (ed), The New Modern Sociology Readings, London: Penguin Books, 1991, pp 101-6. Berger., op. Cit., p. 259. The link between economic growth, social change and democracy was integral to this theory. Proponents of modernisation claim an ‘end of history’, as philosophers such as Hegel had predicted would occur, with the climax of the achievement of the modern liberal democratic State. Hegal’s Eurocentric view placed Europe as the “beginning, centre, and end of world history”. Saenz, M., “Book Review”, Review of Enrique Dussel’s The Invention of the Americas in Continental Philosophy Review, Vol. 31., 1998, p. 430. Hegel, an idealist, and his admirer Karl Marx, agreed that all human societies must evolve from ‘primitive’ through to high levels of complexity. The contradictions at each level of this process meant that the system would collapse and be replaced by a higher one until the ‘end of history’ was reached. Ideologically, Hegel and Marx differed in that Marx believed the liberal democratic State was not the ‘end’, and that it would be replaced by a higher socialist one, and while Hegel accepted the bureaucracy of the modern liberal democratic State as the legitimate representative of the people, Marx considered them representative of the dominant capitalist class. Fukuyama., The End of History and the Last Man, op. cit., pp. 64-8.

155 Lomborg, Bjorn., The Sceptical Environmentalist, Cambridge: Cambridge University Press, 2001. Contemporary Theoretical Perspectives 110

156 Berger., “The End of the ‘Third World’?”, op. cit., p. 260.

157 Modernisation theory was largely replaced in the 1980s by neo-liberalism theory, which is based on the neo-classical principles of economic liberalism, free markets, deregulation and privatisation. The New Right combination of neo-liberalism and neo- conservatism premised on nineteenth century social values is linked to an insular form of nationalism that is sceptical about the declining role of the State and associated growth in the influence of supranational bodies such as the United Nations and the European Union. Clairmont, F. F., The Rise and Fall of Economic Liberalism: The Making of the Economic Gulag, Mapusa, Goa, India: The Other India Press, 1995. This new political approach became known as ‘Reaganism’ and ‘Thatcherism’, after its two strongest proponents. Heywood., Politics, op. cit., p. 48.

158 Brohman, John., “Universalism, Eurocentrism and Ideological Bias in Development Studies: From Modernisation to Neoliberalism”, Third World Quarterly, Vol. 16, No. 1, 1995, p. 138.

159 Ibid.

160 Berger., “The End of the ‘Third World’?”, op. Cit., p. 260.

161 Arguably the most celebrated dependency theorist, Andre Gunder Frank, asserted in his 1967 book Capitalism and Underdevelopment in Latin America, that capitalism resulted in the “development of underdevelopment”. Frank was criticised, particularly by Argentinean economist Ernesto Laclau (1971), for his “mistaken definition of capitalism”, as Frank did not distinguish between modes of production. Frank had asserted that capitalism prevailed everywhere in Latin America since the beginning of the colonial period, incorporating non-capitalist modes of production, which in Laclau’s assessment turned capitalism into a meaningless concept that could even be applied to production by the Ancient Greeks. Schuurman, F.J., “Introduction: Development Theory in the 1990s”, Beyond the Impasse: New Directions in Development Theory, F.J. Schuurman (ed), London: Zed Books, 1996, pp. 6-8.

162 Johan Galtung elaborated on Frank’s theory, developing the Centre-Periphery model, where capital is extracted from the periphery to the centre, or metropolis, facilitated by a relationship between hegemonic powers and a clientele class within client states. Ibid., p. 261. Black., Theories of Development, op. Cit., p. 28.

163 Following on with this dependency argument, Immanual Wallerstein’s World Systems Theory identified three levels of the world economy—the periphery, the semi- periphery and the core, created when previously non-capitalist economies became incorporated into the capitalist world economy. Schuurman., “Introduction”, op. cit., p. 8. A critical examination of the power structure within the global economic system, as championed by the above authors among many others, was dismissed out of hand when, in the 1980’s, conservative governments gained power in North America and Contemporary Theoretical Perspectives 111

much of Western Europe. The causes of underdevelopment were then deflected squarely back onto corrupt and authoritarian Third World Governments. Berger., “The End of the ‘Third World’?”, op. cit., p. 265.

164 Foucault., “Afterword”, op. cit., pp 211-212. ; Foucault, Michel., The Will to Knowledge: The History of Sexuality: Volume 1, London: Penguin Books, 1990 (French version 1976).

165 Heywood., Politics, op. cit., p. 160.

166 Ibid.,. p. 145.

167 Escobar, Arturo., “Discourse and Power in Development: Michel Foucault and the Relevance of His Work to the Third World” Alternatives, X, 1980.

168 Ibid. ; Escobar, Arturo., Encountering Development: The Making and Unmaking of the Third World, New Jersey: Princeton University Press, 1994.

169 Berger., “The End of the ‘Third World’”, op. cit., p. 259.

170 Escobar, Arturo., “Discourse and Power in Development”. op. cit., p. 389.

171 Hindmarsh, R.,. “Genetic Modification and the Doubly Green Revolution”, Society, 40(6): 9-19, 2003.

172 Escobar, Arturo., “Discourse and Power in Development”. op. Cit., p. 384.

173 The Colonial power was established and maintained using artificial territorial boundaries often encompassing many Nations of Indigenous peoples. Anti-colonial nationalism, as a form of nationalism which involves a unity of Nations within territories designated by former colonial powers, has often been linked to socialism. The emphasis on ‘community’ and ‘co-operation’ evident in socialist theory is considered more compatible with the traditional values of pre-industrial societies than capitalist individualism. The threat of widespread communism resulting from anti- colonial Nationalism in some countries during the Cold War, led to ethnocentric programs for economic development, combined with tenacious anti-Communist rhetoric, emanating from the West. Escobar, A., Encountering Development: op. cit., p. 43.; Heywood., Politics, op. cit. pp. 108-9.

174 Pejorative appellatives such as ‘primitive’, ‘savage’, ‘backward’ and ‘morally inferior’, and, in the case of Indigenous healers, as ‘witch doctors’. Wilmer., The Indigenous Voice in World Politics, op cit., p. 35.

175 Connor., “A Nation is a Nation”, op cit., p. 395.

176 Holden, Fourth World Economic Development, op. cit.

Chapter 4

Nature, Science And ‘Ways of Knowing’

there is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose and constitute at the same time power relations.1

Introduction

In this Chapter, and in Chapter 5 respectively, I examine ‘ways of knowing’ and ‘ways of owning’ as core strategies or techniques of power utilised by political and economic interests to secure access to biological resources. The historical and contemporary shaping and situating of science and technology as the dominant ‘ways of knowing’, and the ownership regimes operating within the capitalist system as the dominant ‘way of owning’, are central considerations in these two chapters. In this chapter I undertake an historical examination of the social construction of scientific knowledge embedded within the history of colonialism and industrialisation. My central task in this chapter is to develop a historical analysis that will enable an examination of how Western science has been institutionalised as the dominant, or the only rational and reasoned, ‘way of knowing’ the natural world.

According to traditional accounts, positivist ‘modern’ ‘natural’ science emerged in the sixteenth century through the ‘discoveries’ of core European thinkers of the Scientific Revolution including Descartes and Bacon. However, I draw on recent accounts of the Scientific Revolution that challenge the traditional, constructed, ‘heroic’ chronological account of the core canonical thinkers. These new accounts promote a rethink of history through the examination of social context. This fits well with Foucault’s genealogical approach. Informed by these new accounts, I have undertaken a ‘history of the present’ by exploring how it is that some ‘ways of knowing’ are deemed superior, while other Nature, Science and ‘Ways of Knowing’ 113

systems of knowledge are marginalised and relegated to an inferior position within particular social contexts.

However, at this point, it is necessary to deal with an obvious contradiction. While I acknowledge the difficulty of relying on ‘heroic’ accounts that focus on individuals, I nevertheless continue to identify the core European thinkers of the Scientific Revolution as pivotal to current understandings of knowledge and nature. I do this because such thinkers set up the dominant cultural context within which ‘modern’ science emerged, where a mechanical nature could be dominated and controlled by ‘science as technology’. According to traditional scientific epistemology, “there is only one ‘nature’, one truth about it, and one science; and such a science can in principle reveal the complete, unitary, and harmoniously integrated truth about a reality”.2 The core thinkers produced ‘universal’ laws and the possibility of mastering nature, as an objective scientific understanding of nature through the scientific method became a “universal possession of rational man”.3

My analysis tracks the history of the emergence of ‘the’ Western scientific worldview. I explore the core elements that underpin this worldview, for example, I look at the notion of science as technology, dualism and nature as a machine. In the light of this historical overview, I maintain that the social, cultural and intellectual legacies of this worldview enabled the emergence of new sciences that fuse science and technology, such as, biotechnology. I analyse the contemporary issue of bioprospecting, and affirm ‘ways of knowing’ as a technique of power utilised in the privileging of the current biopharmaceutical industry.

Additionally, I suggest that the biopharmaceutical industry reflects the institutional context of power embedded in the academic-industrial-government complex. Embedded in this nexus is a discursive understanding of the world that employees a positivist rational approach of science, and applies it to natural resource management policy processes. My argument it that this power arrangement privileges biotechnology, Nature, Science and ‘Ways of Knowing’ 114

and I will demonstrate this in my Queensland case study on bioprospecting policy development in Chapter 7.

Knowledge Perspectives

A great deal of the misunderstanding between traditional and Western science occurs because of differences concerning epistemology. Western scientists seem unable to accept Indigenous approaches to knowledge building.4 For example, French anthropologist Emile Durkheim believed that religion was the sole source of scientific thought in Indigenous systems, with plants and animals classified according to religious significance. Levi-Strauss attacked Durkheim’s view as reductionist, a criticism supported by Worsley.5 Worsley found that totemic thinking is a key way Australian Aboriginal people classify nature. However, like Western science, Indigenous peoples most often empirically observe similarities and differences in nature resulting in separate non-religious biological classification of plants and animals. It seems neither scientists, nor Indigenous peoples, appreciate how much they have in common in knowledge production processes.

How then does modern science claim to be so different from other knowledge systems? As signalled above, Indigenous empirical knowledge of chemistry, taxonomy and ecology is often similar and, like Western science, is very detailed.6 Likewise, methodology is not necessarily very different from Western science:

every time a Shipibo hunter fires a poison dart at an animal or a Tahitian healer administers a medicinal plant to a sick child, the efficacy of the indigenous tradition is empirically tested. It appears that indigenous traditions and science are epistemologically closer to each other than Westerners might assume. The context of trials performed by Western scientists and Shipibo Indians or Tahitian healers are obviously very different, but the empiricism in both is of interest.7

Explanation is where some of the major differences between Western science and Indigenous knowledge production occurs.8 Western science is constrained ostensibly by ‘objective’ and ‘value free’ explanations, while Indigenous knowledge systems are receptive to multiple explanations, incorporating empirical, cultural, and spiritual Nature, Science and ‘Ways of Knowing’ 115

‘reasoning’. While Indigenous peoples may accept the Western rationale that, for example, a virus causes a certain disease, it does not necessarily displace traditional explanations. Disease in many Indigenous societies is not necessarily, or at least not exclusively, explained according to conventional Western standards. There is a “need to be at ease⎯not disease”⎯with others within ones community and with supernatural forces.9 Disease may be caused by antisocial behaviour such as dishonesty, incest, adultery, or disrespecting elders’.10 To be forgiven for one’s wrongdoing can have a placebo effect, enhancing the efficacy of the traditional medicine administered.11 Therefore the function of knowledge produced can also be different. Both systems are aimed at treating and controlling disease but the Indigenous system is often also a tool for social control that encourages a preventative approach to disease or ill-health. It validates and maintains social and cultural integrity,12 valuable objectives that are part of ‘living’ knowledge, and that cannot be fully articulated in documentation of Indigenous knowledge.

Semali and Kincheloe explain how “modernist science produces universal histories, defines civilisation, and determines reality: such capabilities legitimate particular ways of seeing and ... delegitimate others.”13 As part of that process, particularly evident for Fourth World peoples, First World colonisers systematically destroyed many Indigenous languages and knowledge systems. There was, and there still remains, an assumption within dominant societies that Fourth World Nations could and should be integrated fully into the First World economy of their encapsulating states. This results in very little academic interest in their unique predicament compared to that of, for example, the Third World. Occurring simultaneously with the destruction of languages and knowledge systems has been the categorising of remaining Indigenous science and knowledge systems as ‘ethnoscience’, ‘ethnobotany’, ‘ethnobiology’, ‘ethnozoology’, or ‘ethnomedicine’, where ‘ethno’ derives from the Greek ‘ethnos’ meaning ‘race’ or ‘nation’.

They are thus situated in a ‘category of Otherness’.14 The idea of ethnoscience as ‘Other’ is, however, only possible when we have an understanding of ‘science’, where the Nature, Science and ‘Ways of Knowing’ 116

relentless production and promotion of advances in science and technology situate Western science as superior. In Science in Action, Bruno Latour spoke of ‘The Great Divide’,15 a construct that separates cultures that ‘believe’ in things (knowledge embedded in society) and cultures that ‘know’ things (knowledge independent of society). By undermining the value of Other ‘ways of knowing’ and of alternative epistemologies and worldviews, dominant actors in knowledge networks are able to determine what constitutes acceptable and credible knowledge. Foucault emphasised this action of the dominant narrative as an archive, which becomes dominant by determining “what may be spoken of in a discourse, which statements survive or are repressed, and what individuals or groups have access to particular kinds of discourses”.16

Hence, Western science is proclaimed as universal—and is increasingly practised mainly in one universal language, English—denying all historicity of knowledge building. Yet in the words of Lynn White, “our science is the heir to all the sciences of the past”.17 While it is fair to say that most modern science and technology is Occidental—it belongs to the West particularly Europe and North America—the contribution of knowledge from other origins, such as that of Arab and Greek science is often overlooked.18 Indigenous knowledge systems are also overlooked.

Worsley suggests that different systems of knowledge are simply co-existing subcultures, and makes the point that there are different ‘schools of thought’ within all science, reinforcing the oft raised question: Is it possible to have one universal, homogenous science?19 Detailed research of Aboriginal biological knowledge systems by Waddy demonstrated an interesting point.20 Aboriginal ‘specialists’ may classify plants and animals in different ways, thereby quashing the assumption of a uniform ‘way of knowing’ within single cultures. Just as there are conflicting ‘schools of thought’ within Western science, such divergence also exists within Other knowledge traditions. This point leads Worsley to ponder, “when we talk about the ideas of this or that ‘people’, who exactly are we talking about? For thought does not think itself; it is individuals who think”.21 Nature, Science and ‘Ways of Knowing’ 117

Who then are the people who “created, codified and transmitted” the ideas that the ‘West’ considers to be its own?22 To address this question satisfactorily we need to take a longer look into the history and philosophy of Western science, examining its relationship with nature and Other peoples. This exercise will help map out the social construction of nature and knowledge.

The Social Construction of Nature and Knowledge

‘Nature religions’ are known to have existed in Europe since around 7000 B.C., and were apparently based on a fusion between humans and nature rather than a dualism.23 The ancient paganism that existed within nature ‘religions’ assigning spiritual value to all nature, requiring humans to placate the spirit of a tree or plant or river before exploiting it as a resource. Aristotle understood that “[M]an, though a part of nature, could control nature through the exercise of his will: it is this which separates him from all other creatures”.24 Control, for Aristotle, could be achieved through alchemy.25 Aristotle embraced alchemy as a way of ‘helping’ nature as “everything in nature strives toward perfection ... The alchemist’s task therefore was merely to help nature achieve its innate desire” for perfection.26

Pre-Christian Aristotelian traditions giving meaning to nature were carefully re- constructed theologically by the Catholic Church. This positioned a Judeo-Christian God as central to natural philosophy (meanings found in nature), subordinating other views of the world.27 In the opinion of historian Lynn White, by destroying pagan animism, Christianity enabled the exploitation of nature to occur in a “mood of indifference to the feelings of natural objects”.28 However, the early Christian era, and beyond, continued to be dominated by alchemy and astrology, where disease would likely have been explained through magic or cosmic forces, with the only cure being prayer and offerings. Officially, in Christian Europe, alchemy was viewed very differently, as it was associated with heresy, magic, and the work of the devil. This perception was encouraged by the hegemonic Catholic Church in an effort to control rival knowledge production. 29 Nature, Science and ‘Ways of Knowing’ 118

The Church did effectively control ‘ways of knowing’ for much of the Christian calendar, significantly deciding what was considered appropriate knowledge and methods of production. Hence, the medieval worldview was of a universe with ‘man’ at the centre, and God surrounding its outermost spheres.30 The medieval era in Europe was characterised by feudal economies and a powerful Church from where religious explanations were sought.

From the thirteenth century however, the feudal system began to decline, peasants rebelled and class conflict emerged.31 There was a desperate need to expand the geographical base of the economy. This imperial program of expansion prompted the Age of Discovery.32 Such exploration demanded further advances in geography, astronomy, navigation, shipbuilding, and weaponry, especially when the land route to the Far East was closed during the fourteenth century due to the domination of Islam.33 Emerging technologies enabled the establishment of a new sea route to Asia, navigated by scientific, ‘rational’ minded mariners such as Christopher Columbus, whose main task on his fifteenth century voyages was to facilitate the conversion of heathens.34

By 1550, England in particular was experiencing industrial growth and commercial expansion.35 The acceptance of ideas that were to emerge from this time, constituting what we now call the Scientific Revolution, can therefore be considered all part of a larger historical process. Rapid change in the political, economic and social spheres made acceptance of the new scientific ideas more palatable. However, the development and adoption of these ideas was not immediate, occurring over almost 150 years from Copernicus in 1543 to the publication of Newtons Principia in 1687.36

Throughout this period, the Bible remained for most people the point of reference in all their thinking. 37 Hence, the Bible and Christian philosophy in general also had a significant influence on the ‘reasoning’ of the core European thinkers on nature and ‘ways of knowing’. Yet, the sixteenth century also saw a vigorous revival in occult science, which also had a profound impact on knowledge production.38

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Core European Thinkers on Nature and ‘Knowing’

Traditional historical narratives of the Scientific Revolution have emphasised the radical discontinuity of modern scientific thought from what came before.39 These narratives customarily focused on those individuals whom David Hess40 referred rather disparagingly to as the “Great White Men of early modern Europe”; the core European thinkers including Copernicus, Galileo, Bacon, Descartes and Newton. These individuals produced canonical ideas such as the centrality of reason, rationality and objectivity, secured through the use of mathematics and the scientific method to express nature’s laws. Science historian Richard Westfall41 analysed the canon as fundamental to present understandings of the world, and asserts that these thinkers of the past are important because they are similar to ‘us’.

According to traditional accounts, since the Scientific Revolution modern science has departed from non-European knowledge systems which are based on magic, superstition and pre-logical thought embedded in religious and local belief systems.42 Since the 1950s, these traditional master narratives have been challenged by some historians and those within the social studies of science. These recent studies give very different accounts to the traditional, portraying science of the Scientific Revolution as a knowledge system that is more akin to the belief system discredited by science today.

Historian Margaret Osler43 has condemned the heuristic function of the traditional historical accounts which essentialise science as “unchanging and unambiguously identifiable in every historical era”. Fellow historian Betty Jo Dobbs44 is another of those who has taken as her task the problematisation of the canon. Dobbs disagrees with Westfall’s account of history, instead arguing that the ‘heroes’ of the traditional account of the Scientific Revolution did not think in the same way as modern scientists, as they were more interested in theology and alchemy than in issues that concern scientists today.

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In The Reenchantment of the World, Morris Berman explains that the prevailing view of nature up to the eve of the Scientific Revolution was that of an enchanted world. Nature was alive and people were a part of it. Alchemy, Berman45 explains was the last expression of this worldview. From the sixteenth century there has been a progressive disenchantment of nature as articulated in mechanical philosophy. While this mechanical, disenchanted worldview developed from the ideas of the core European thinkers of the Scientific Revolution, they themselves operated within a complex worldview dominated by alchemy on one hand, and Christianity on the other. Yet, few would dispute that the resulting scientific worldview is an integral element of ‘modernity’ and is the framework of dominant ‘ways of knowing’. It has also had an impact on our consciousness in the West, and the way Other peoples and their knowledge systems are perceived.

The following section is an account of the Scientific Revolution informed by the new lines of thinking that depart from the master narrative. This account attempts to contextualise the knowledge claims attributed to the ‘core European thinkers’. The intent is not specifically to focus on the personalities per se, but to explore the development of knowledge, and to examine how dominant worldviews and institutions influenced knowledge production. I draw together historical information from sources that consider the social, political, economic and intellectual environment they operated within, to explore the influence of this context on the content of Western science. I demonstrate how dominant ‘ways of knowing’ have emerged as canonical through a process of normalisation, while other ‘ways of knowing’ are marginalised.

Sandra Harding46 and David Hess47 have argued that science is multicultural, as it draws on the knowledge traditions of many cultures and many knowledge traditions. Eurocentric accounts of the history of scientific knowledge have tended to diminish the significant influence of Medieval and Renaissance knowledge, as well as Arab, Indian, Chinese and other knowledge traditions, to the rise of ’Western’ science. The construction of ‘pre-modern’ and non-European knowledge as Other, demonstrates dominant ‘ways of knowing’ as a technique of power. Nature, Science and ‘Ways of Knowing’ 121

The Scientific Revolution The medieval Christian view, based on teachings articulated by Aristotle and Ptolemy, theorised that God created a stationary earth at the centre of a three-tiered universe, with hell below and heaven above the earth.48 This medieval worldview largely prevailed until Nicolaus Copernicus (1473-1543), himself a clergyman, published On the Revolutions of the Heavenly Spheres in 1543, and became widely known among the knowledge elite over the following century or so.49 The Copernican heliocentric system placed the sun, not the earth, at the centre of the universe. This challenged and overturned the central stationary earth view of the Aristotelian-Ptolemaic system. Although attributed to Copernicus, this, however, was not an entirely new idea. Pythagorean philosophers of the fourth century B.C. were also of the view that the earth rotated on its axis. Nevertheless, Copernicus’s ideas were rejected initially by most of the thinkers of that time, including Christian reformer Martin Luther,50 mainly due to the harm such a theory could do to the Holy Faith.51 Yet, heliocentricity reflected the growing awareness, due to European ‘discovery’ of other worlds, that the universe was infinite.52

Popularising Copernicus’ ideas was Galileo Galilei (1564-1642), an Italian mathematician, astronomer, physicist and amateur theologian.53 In supporting Copernicus’s theory, Galileo helped shape the modern scientific view of knowledge through ‘observation’. Galileo also challenged Aristotle’s teleological physics which had held sway thoughout the Middle Ages, and which was based on the idea that objects fall to the ground in search of their natural place at the centre of the earth.54 Galileo asserted that falling objects are inanimate and therefore have no goals or purpose, and no ‘natural place’. Instead, their falling can be explained through matter and motion that can be observing and measured. Galileo’s main contribution then was to change the question from ‘why’ objects fall to ‘how’ they fall.55 Nature, according to Galileo, could never really be controlled, but by breaking it up into its simplest parts and extracting its essence, it could be manipulated to human advantage.56

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Galileo asserted that scientific observation and experiments, not the Bible, would provide all the answers to questions on nature.57 Yet, Gould argued, “we must reject the cardboard and anachronistic account that views Galileo as a modernist scientist fighting the entrenched dogmatism of a church”.58 While ecclesiastical power had indeed been dealt a blow by his support of Copernicus through his own observations and deductions, Galileo was still a staunch Catholic and maintained his ardent faith until his death under house arrest for his teachings, a fate dealt to him by the Inquisition. Christian beliefs also informed significantly the work of most of the other ‘great thinkers’ on the Scientific Revolution, and helped shape the direction of ‘acceptable’ knowledge building. Nevertheless, Galileo’s work furthered the challenge to the ancient Aristotelian-Ptolemaic, and indeed Christian, worldviews. The paradigmatic shift to the ‘scientific model’ of the universe and approach to knowledge building spread.

Science as Technology Francis Bacon (1561-1626) feared that the attempts to suppress the scientific investigations of Copernicus and then Galileo would lead to a second Dark Age.59 Bacon was an English philosopher, not a research scientist, but is famed for his advocacy of the modern scientific method.60 He advocated a shift in reasoning away from the deductive approach prevalent at that time, which was practiced by philosophers and theologians; a practice characterised by the “habit of starting the enquiry with a point of view that was accepted as true and then deducing the consequences”.61 He argued that ‘objective observation’ is possible if one does not let preconceived ideas, values and beliefs sway the interpretation of observations: the perception of a neutral, value-free science that is still central to science today. “Bacon’s suggestion was to start with data not faith,”62 and obtain ‘facts’ through empiricism by checking your thoughts against the data.63 Yet, Berman64 points out that twenty years earlier, Galileo “had already made explicit what Bacon only implied as an artificial construct in his generalisations about the experimental method”.

Undoubtedly, one of the major Baconian legacies is the idea of vexing, disturbing and altering nature.65 Bacon asserted that through direct observation, nature could be Nature, Science and ‘Ways of Knowing’ 123

comprehended, and therefore mastered; “taken by the forelock”.66 Feminist writers often cite Bacon’s violent language concerning the “seduction, penetration and rape of nature” as evidence of the masculinization of thought during the Scientific Revolution.67 The fear of women expressed through the medieval image of the ‘witch’ was transferred to nature, justifying the need to control and tame it.68 According to Easlea,69 the ‘secrets’ of nature were described as deliberately and ‘slyly’ ‘concealed’ from the observer. As Merchant explains, the earth was no longer considered a ‘beneficent mother’ but a “hoarder of precious metals and minerals”.70

The advocacy of a tighter link between science and technology in the struggle to dominate nature is also attributed to Bacon. Hence, a second Baconian legacy is the combining of ‘truth’ with ‘utility’. Bacon understood that human power is attained through knowledge acquisition. Science produces knowledge, which produces ‘progress’. This signalled the breakdown of the barrier between the scholar and the craftsman, a barrier that had dogged Galileo’s work.71 As Lord Chancellor for King James, the writings of Bacon attained almost scriptural authority.72 His writings also reflected the differing attitudes in Britain and Continental Europe towards technology and ‘the useful arts’ or ‘mechanical arts’, made evident with the advent of the Industrial Revolution. Bacon referred to ‘science as technology’, emphasising utility and invention over speculative enterprise, as scientific knowledge was best judged, according to Bacon, by its usefulness.73 Commercial forces tightened the link between science and technology, and technology and the economy, and an acceptance of the mechanical worldview. This cemented the link between truth and utility.

Yet, according to Noble, “if Bacon’s effort was utilitarian in emphasis, it was transcendent in essence”.74 Bacon believed the advancement of knowledge and ‘the useful arts’ were essential for salvation and likeness with God, for sharing domination over nature. Like the alchemists, Bacon understood that nature could be manipulated and improved, but unlike many of the alchemists, Bacon placed his study of nature within the teachings of the Church.75 Guided by his Protestant faith and perhaps opportunist pragmatism, Bacon presented an anthropocentric view of a world that Nature, Science and ‘Ways of Knowing’ 124

without humans would have no purpose. “By neatly locating the basis of science in God’s laws as embodied in nature, he at one stroke made the study of such laws not only ethically respectable but virtually mandatory for the believing Christian.”76 Bacon’s overall legacy is that through science and technology, nature as a machine could be controlled for the service of human beings.

Dualism and a Mechanical Universe Renè Descartes (1596-1650) followed on from Bacon’s mechanical ideas of ‘mastering’ and ‘managing’ nature, and contributed further to the roots of ‘modern’ science and technology, though he was often criticised for not adopting Bacon’s experimental method.77 A French mathematician, philosopher and Catholic, Descartes supported Galileo’s heliocentric hypothesis, but on hearing of Galileo’s fate (house arrest) at the hands of the Inquisition, decided not to publish his own views on the topic. In other published works, Descartes discredited the ‘impious’ Aristotelian scolastic physics as a body of learning, and advocated his own ‘body of thought’ as “true science”, the precondition of the ‘modern age’.78

While Bacon advocated ‘empiricism’, a practice requiring the checking of thoughts against data, Descartes was concerned with ‘rationalism’ or the laws of thought, and mathematics as the basis of reason and knowledge. In practice, neither of these ideas was new. Galileo had earlier combined these two tools in experiments on how falling objects behave.79

Descartes also claimed to have introduced the concept of methodological doubt or ‘scepticism’.80 Blumenberg81 and Barker82 are very scathing of the widespread unquestioning acceptance of Descartes’ claims, attacking the very assumption that rationality and reason did not exist before Descartes.83 Sorell criticises the arrogance of Descartes, arguing that his “philosophy as epistemology pretended to be somehow better than, because fundamental to, the rest of science. It insulated science itself as the pre-eminent science, and was instrumental in making science seem the pre-eminent Nature, Science and ‘Ways of Knowing’ 125

form of culture.”84 Hence, with Descartes, science became privileged, and philosophy became privileged within science.

Yet Descartes’ ‘modern age’ accounts were, according to Barker, profoundly medieval. Barker also charged that Descartes attempted to conceal the roots of his ideas, thereby denying his appropriation of pre-existing knowledge.85 By way of example, Barker related that St Augustine introduced methodological scepticism with his principle of ‘I know that I live’, which is very similar to Descartes later idea that ‘I am thinking, therefore I exist’.86 Further, Barker concludes that Descartes’ interpretation of the idea of a separation between mind and matter—so-called ‘Cartesian opposition’—is the same as the medieval Christian doctrine of a separation between soul and flesh, aimed at proving the existence of God.87 Again, this was not a new idea, as central to the thinking of Socrates (around 470-399 B.C) was a separation of the immortal psyche (mind or soul) and the mortal body.88 Hence, Descartes dualist theory of a separate mind and body was not entirely original, nor was it, as some claim it to be, the antithesis of Christian belief.89 Rather, it continued the Christian dogma of “faith as prior to understanding”.90

Importantly, according to these ideas attributed to Descartes, the ‘rational’ human being is deemed to be better able to observe the natural world ‘objectively’, from a distance made possible by dualism, as ‘man’ is separate from, and superior to, nature. On this account, Descartes is nominated a key responsibility for reductionist thinking about nature, which is illustrated by his positing of a human/nature dualism, again consistent with Christian teaching, but the antithesis of many Indigenous worldviews. The advancement by Descartes of a separation of humans from nature, where ‘nature is a machine’, provided the philosophical grounds for further exploitation and dominion over nature.91 Descartes declared that mathematical thinking was the key to understanding a mechanical universe, as the complex natural world could be reduced to observable ‘parts’.92 The objectification of nature was thus made possible by dispelling the interconnectedness between humans and nature. Descartes position furthered Bacon’s ideas on the utility of nature achieved by removing spiritual and ethical connections to nature.93 His advocacy of ‘mastery of nature’ has led to the term Nature, Science and ‘Ways of Knowing’ 126

‘Cartesian’ being used in the contemporary sense from an environmentalist perspective to explain all that is considered negative about science and technology in society⎯materialist, logical, unfeeling, inhuman, non-spiritual. Yet, in keeping with the prevailing worldview at that time, Descartes also argued that the truths of logic and mathematics depend on God’s sovereign will.94

Some of the ideas of Descartes were questioned and rejected by English physicist Isaac Newton (1643-1727), though not his dualist philosophy or those on heliocentrism. Newton built on the insights of Copernicus and Galileo to demonstrate, “how the world worked and, not coincidentally, how God worked within the world”.95 Newton’s explanation of laws governing the movements of terrestrial and celestial bodies were said to draw the ‘last curtain’ on the medieval worldview. He established the ‘universal’ laws of physics enabling description of everything in the universe, revelations published in the 1687 three-volume work Philosophiae Naturalis Principia Mathematica, (generally referred to simply as the Principia.)96 Through Newton’s ideas, a mechanistic nature could be reduced to a set of basic elements or particles that are separate from each other. “The elements do not grow organically as parts of a whole, but are rather more like parts of a machine whose forms are determined externally to the structure of the machine in which they are working.”97

Although the pendulum, gravity and acceleration were subjects already studied by Galileo,98 and quite possibly by others, Newton is also famed for his work in these areas. The immediate image most have of Newton is of his observation of an apple falling from a tree, and in more colourful descriptions landing on his head, leading him to conclusions about the laws of gravity. Newton took up Galileo’s idea that our goal should be ‘how’ not ‘why’.99 That I can’t explain gravity is irrelevant. I can measure it, observe it, make predictions based on it, and this is all the scientist has to do.

Until that time, gravity had been considered an occult property, as it could not be seen, heard, felt or smelt.100 He was the “epitome of a rational scientist” most would conclude,101 as Newton demonstrated that there are natural explanations for things Nature, Science and ‘Ways of Knowing’ 127

previously considered magic or miracles. Yet, Newton documented his theories chiefly as proof of the domination of God,102 and spent far more time on Biblical studies then he devoted to physics.103 Recent research portrays him as a alchemist, as many of his contemporaries were, and a religious fanatic, obsessed with the occult, raising questions not only about ‘historical truths’, but the “cultural meaning of Newtonian science”.104 “This was not the Enlightenment’s Newton.”105 Significantly, Newton was publishing to an audience that had already been exposed to the ideas of Bacon. Bacon’s ideas, we now know, were also developed within the framework of his Protestant faith, but successfully encouraged the acquisition of knowledge for human betterment.

In sum, Bacon, Descartes and Newton, like many of their contemporaries, operated within a religious worldview, which shaped the knowledge they produced. The insights of these core European thinkers, as documented in traditional historical narratives, led to nature being described as a machine that could be understood quantitatively in mathematical and physics terms, and connected with a view to domination. As McCellan and Dorn commented, due to the ideology of these 17th century thinkers, “a distinctive imagery of the violent rape and torture of nature as an aspect of scientific practice came to the fore”.106

Bacon and Descartes separately voiced the view that humans should be the master and possessor of nature, that nature and the world’s natural resources should be vigorously exploited for the benefit of humankind — that is, those who own or control knowledge.107

Rethinking the Canon

In such surrounds, nature was no longer considered a living organic force, but a dead, mechanical framework made up of inert, atomised particles that could be manipulated.108 Moreover, the rise of capitalist economic production at that time enhanced the knowledge and power accumulated through the exploitation of nature, and through empiricism. In the thirteenth century, Roger Bacon pioneered an experimental method that was completely ignored,109 yet in the seventeenth century the experimental method of Francis Bacon was embraced. The methods of modern science Nature, Science and ‘Ways of Knowing’ 128

dovetailed perfectly with the emergence of capital accumulation. This does not necessarily mean that there was a causal relationship between capitalism and modern science, but Berman110 argues that science gained its factual and explanatory power within the context of capitalism. Science and technology were predominantly influenced by the industrial worldview tempered by liberal utilitarianism.

The traditional received narrative of the Scientific Revolution suggests a great schism between alchemy and mechanical philosophy.111 The Newton of traditional narratives, for example, is an enlightened figure who could not possibly have been concerned with alchemy or proving the existence of God.112 As we have seen, more recent accounts challenge that narrative. Sandra Harding,113 a feminist who situates herself within postcolonial science studies, dismisses the conventional epistemology of modern science, describing it as “a relic of modern Western ‘folk belief’’. She condemns the failure to recognise cultural and social influences on science. Harding114 argues that science produces information, but it also produces meaning. And this meaning is produced within society, as science and society co-construct each other.115

Successive generations have subsequently re-constructed the knowledge of the Scientific Revolution. Osler116 maintains that thinkers continuously appropriate ideas and incorporate them to solve the problems they are working on. Yet the appropriators change the established ideas, theories and techniques to suit their own context. “Thus it becomes evident that the concerns of the appropriators determines which past figures are useful, seminal, or important rather than the intrinsic or timeless merit of their ideas.”117 This idea fits well with Jacob’s118 observations: Heroes are not born, they are made. However brilliant Kepler or Newton had been, their innovative contributions would have remained relatively unknown, or esoteric, possibly even banished, without a larger transformation in the way literate westerners conceived both nature and history.

Yet a rethinking of the canon by reading it in context should not lead to a rejection of the idea that a profound, even revolutionary change occurred in the way natural philosophers viewed the world.119 This is a key point. Newton and many of his predecessors identified themselves as ‘natural philosophers’, a title which does not Nature, Science and ‘Ways of Knowing’ 129

correspond with today’s scientist. In natural philosophy, there is no demarcation between religion and what today we would consider ‘genuine’ scientific concerns.120

Newton’s aim had been to restore the original true religion of Christianity. If he had succeeded, Dobbs121 muses, we would now live in a very different world. Unique economic, political and social circumstances influenced the direction of knowledge production, bringing into question the assumption that there is only one true path to knowledge; one ‘way of knowing’. The inevitability of current dominant ‘ways of knowing’ are therefore, to a significant extent, a construct.

Enlightenment Interpretations of the Scientific Revolution

The knowledge that emerged during the Scientific Revolution has been revised and refined many times with successive generations, to arrive at the understanding we have today. The first revision occurred in the eighteenth century when the Scientific Revolution was constructed by natural philosophers who selectively took up the mechanical ideas of the core European thinkers while ignoring their religious and alchemical views. By the late seventeenth century, God was no longer a major consideration, a situation aligned with Enlightenment thinking.

There are debates about when the Enlightenment began and even whether there is a period that can be termed ‘the Enlightenment’. Dorinda Outram122 explains that the Enlightenment opened with Locke and Newtons Principia in the late seventeenth century. Isaac Kramnick123 would agree, explaining that “dating an intellectual movement like the Enlightenment is never precise, but a rough guide would emphasise the hundred-plus years from the 1680s to the 1790s.” Yet the Enlightenment was not a single mode of thought associated with specific “great men”, but a “movement of thought” that varied considerably.124 Early Enlightenment thinking was understandably closely linked to religion. Gradually, however, natural philosophy separated itself from theological thinking.

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By 1720, Newton’s followers had no understanding of alchemy, and by 1750, “alchemy had become obscure, esoteric, and, the enlightened said, ignorant”.125 Such a rapid shift confirms that a revolution in Western thinking about nature did occur with the Scientific Revolution. But subsequent interpretations of the knowledge emerging from the Scientific Revolution may have been even more revolutionary, as “heroic narrative of socially isolated geniuses” emerged.126 These interpretations underpin and “support beliefs as basic to Western thought as the value of technological development, industry, human freedom, the rule of law, and the possibility of progress”.127

During the 1790s the revolution in science became a central part of French Enlightenment,128 as revolutions in science, politics and industry were purposefully linked. The mechanical philosophy become an integral element of Enlightenment thinking, as natural philosophers added to the heroic story of the Scientific Revolution a message about its essential role in progress and prosperity. Mechanical science was the basis of competition between the French and British in manufacturing, transport and instrumentation.129

Foucault identified the end of the eighteenth century as the time when a radical transformation of science did occur. In the Order of Things, Foucault claimed that this paradigm shift occurred as it was acknowledged that nature too had a history.130 Fossil evidence did not match up with the Biblical chronology within the Book of Genesis. The God-centred version of humans being ‘with’ and at the same time ‘above’ other beings was broken, replaced by an understanding of humans as ‘subjects’ with other beings. Faced with the reality of being a mere object of nature, European ‘man’ struggled to gain a new understanding of ‘himself’, eventually finding a new role, as taking the place of God.131 No longer strictly limited by an exogenous heavenly force and its earthly institutions, the power of the intellectual as the arbiter of truth was enhanced, as humans had to generate discourse that created a new understanding of a separation between Europeans and nature, and Europeans and the ‘Other’.

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As Foucault posited, ‘man the thinker’ constructed an “artificial language” or discourse to describe and give meaning, linking together nature with human nature, and within this discourse there was no place for a “science of man”.132 Non-western ‘man’ was of course different and had long been the subject of inquiry, leading to the ‘construction’ of Indigenous peoples as inferior and the delegitimisation of Indigenous knowledge. The position of Western ‘man’ as subject of science could not occur “without the whole scheme undergoing a radical transformation.”133

Science and the ‘Other’ Dussel argued convincingly that the dominance of Enlightenment science and technology, and the genesis of modernity as historically accepted, was myth.134 This was because the Enlightenment worldview did not arise spontaneously and autonomously in Europe after the Scientific Revolution, but was related intimately to the earlier conquest of the Amerindian in 1492. That encounter signalled the emergence of the dualist Self/Other worldview, and was the pre-condition for European self-consciousness as universal and universalising, or, in the view of the Other, “totalising and totalitarian”.135 Hence from the end of the seventeenth century, the idea of infinite ‘progress’ for Europeans became dominant.

In the eighteenth century, Europeans became more aware of the different ‘exotic’ lands, climates and peoples of the world. Latour136 explains the process whereby early explorers gathered samples and documented information about the peoples and places they encountered, and returned that knowledge to their homelands. This process was a very powerful tool of domination, as, using one of Latour’s137 examples, scientists in Kew Gardens in London were able to “visually dominate all the plants of the earth”. As I explained in Chapter 2, the ‘observed’ fortuitously offered knowledge to the ‘observers’, including knowledge of medicines. This enabled the observers to survive, and later dominate. Latour explains that during the initial expeditions to the New Worlds, the observers were weaker that those they were observing, and were, in many cases at their mercy. Later expeditions, however, had access to this knowledge of the people and places prior to their arrival, and were therefore in a more powerful Nature, Science and ‘Ways of Knowing’ 132

position. The ‘Divide’ had grown in favour of the outsiders, and as their knowledge grew so did their power.

Viewed through an ‘informed’ European lens, Indigenous peoples were a part of nature and could therefore be dominated. Zaheer Berber138 has identified the role of scientific knowledge, institutions and colonial empires in the incorporation of the colonised Other into the world-system, and the construction of negative perspectives of the knowledge of the colonised Other. As Dorinda Outram explains, colonisation, the ‘exotic’ Other and the control and exploitation of natural resources were therefore inextricably linked as part of the same project in the eighteenth century.139

There was considered a ‘natural order of things’ for European ‘man’, toward development which was seen as the final inevitable stage of ‘history’, and attainable through science and technology.140 The ability to conquer the Other and appropriate its resources and knowledge thus created a power relationship still persisting in colonial legacies. As observed by Jung, Enlightenment reason “is not color-blind ... it is identified with ‘white mythology’” and is unquestionably Eurocentric or ‘Orientalist’.141 Thus, in accordance with Foucault’s critique of modernist ‘enlightened’ projects, the effectiveness of the European in excluding, marginalising, and disempowering the Other was evident.

As Latour142 also makes clear, there is no ‘natural’ Great Divide between ‘universal’ Western knowledge and the local knowledges of everyone else. The ability of Western knowledge to dominate is dependant on the networks established to secure an understanding of specific knowledge as dominant. The fallacy of a neutral, value-free science constructed during the Enlightenment became evident as science was tightly linked to the dominant powers, including the emerging states, and emerging industries. As well as industry and commerce, Aronowitz concludes that it was also war that “provided an underlying cultural framework for the development of science.”143 Overall, historical developments included the demand for greater navigational knowledge to assist European (especially British) navy and merchant Nature, Science and ‘Ways of Knowing’ 133

fleets; and to improve weapons of war, and find more effective ways to exploit natural resources for industry.144 There was a co-dependency of European sciences and European expansion, both effectively turning the world into a ‘laboratory’, where valuable resources could be identified, studied and appropriated, all aimed at benefiting the European.145

Linking Science with ‘The Useful Arts’ As already stated, the advocacy of a tighter link between science and technology for the domination of nature is attributed to Bacon.146 In Bacon’s time, science was a largely intellectual exercise practised quite separately to the technologies prevalent in the lower classes. Universities preceded organised industry.147 The sciences institutionalised in European universities were largely reserved for aristocrats and clerics, and favoured the ‘liberal arts’ of natural philosophy and mathematics, not laboratory based subjects.148 The laboratory-based natural sciences were considered artisan-like and were relegated to institutions such as military academies, which the French called polytechniques, and hospitals, where class distinction was less important. Yet, Bacon understood that mastery of nature and improved technology to that end could only be achieved if science and the scientific method became an integral element of education programs, along with technology. He therefore “urged the state to fund scientific institutions.”149

It was not until the 1870s that the idea emerged in Europe of integrating natural sciences into universities and making them part of general education. European universities continued to favour the older disciplines, however, and began insisting that the new students of natural sciences must first be trained in philosophy and art to cultivate the right values and “sensibilities about democracy, open-mindedness [and] criticism.”150 The acceptance of the new disciplines within the elite institutions was largely a catch-up exercise, as natural sciences at that time were already considered academic centrepieces in Japan and the United States, while philosophy and the arts were given less credence, and often discarded completely from academic curricular. In 1862, the Morrill Act established the first ‘land-grant’ universities in the USA. The focus of these institutions was to produce agricultural and industrial knowledge that could be ‘applied’ in external Nature, Science and ‘Ways of Knowing’ 134

institutions, and as part of the project, research stations and laboratories were set-up.151 The last training of the ‘generalist’—the “complete scientist” —took place in Europe in the 1880s.152 This was seen as a move away from ‘science for science sake’. 153

The power relations surrounding the production of science and technology became more evident in the late nineteenth century. Initially occurring in Germany, the production of dyes for newly emerging textile industries, and pharmaceuticals particularly following the discovery of immunisation, were the leading areas for collaboration and exchange of knowledge between industry and universities. Governments also had a growing role, for example, in the standardisation of pharmaceutical applications (vaccines). In the late nineteenth century, early twentieth century, such innovations as electricity, and the automobile, aeroplane and telephone, further globalised industry,154 and concentrated control of capital.

Yet, it is only in the last 100 years that scientists have truly made possible the control of nature biologically and industrially, “as opposed to their simply explaining the control that has already been obtained by strictly non-scientific means.”155 It was the twentieth century that saw the intensified spread of industrial science and technology, with greater production of scientific knowledge-based commodities in military- industrial-governmental complexes. World War One produced tangible evidence of the application of networks of production between the military, industry and government for state purposes, for example, with the production of poison gas firstly in Germany and then in the US and UK.156

State-funded research institutions linked to industry proliferated by the 1930s in the production of chemicals, electronics and pharmaceuticals.157 Later still, the atom bomb was an obvious outcome of the emerging military-academic-industrial-government complex, while aviation, ballistics, computing and space exploration also thrived, as did pharmaceuticals. These privileged areas of research saw government funding for research escalate dramatically, as the links between government, industry and universities strengthened in Europe and the USA during World War Two. Support of Nature, Science and ‘Ways of Knowing’ 135

pharmaceutical companies, particularly in the production of antibiotics and drugs for cardiovascular and nervous systems disorders, had obvious links to wartime needs associated with combat injuries, and were extended to the Korean War and the Cold War.158 In effect, science and technology (S&T) before and after World War Two was government supported and subsidised.

Biotechnology currently enjoys strong support from Western governments, which, together with representatives from the biotechnology community and bioindustry, are promoting it as the most effective contemporary way to control nature.159 Significantly, molecular biology, and thereby biotechnology, has provided the framework for the control of ‘life’, and the characteristics of life, as chemists and physicists share Bacon and Descartes “ideal of reducing life to human control”.160 Hence, ‘life’ is problematised and biotechnology is normalised as the technology holding all the answers to the ‘problems’ of life. This is particularly evident in the pharmaceutical and agricultural industries, enabling science to “save us”. These narratives of biotechnology as a ‘saviour’ and ‘panacea’ is exemplified by recent reductionist attempts to identify ‘the gene’, or genes, responsible for such afflictions as obesity, alcoholism, criminality, homosexuality,161 pauperism162 and infertility163 and the quest for solutions to “hunger, poverty and pollution problems”.164 In other words, these afflictions have been problematised and biotechnology normalised as the solution.

Biotechnology companies seeks to find, identify and manipulate the genetic variations that occur in nature.165 Using bio-techniques and computer science, scientists can create a set of instructions for producing unique compounds found in a given tissue sample, send those instructions around the world, and have a colleague synthesise the compound of interest in a remote location.166 This has great significance in relation to bioprospecting, and the associated difficulties with controlling access to, and intellectual property rights over, biological resources.

Nature, Science and ‘Ways of Knowing’ 136

The ‘Triple Helix’ Academic-Industrial-Government Complex The research activity required to produce new ideas and perspectives within the new knowledge-based economy generally flow from universities. Consequently, many of the first small biotechnology firms that led the ‘biorevolution’ in the late 1970s emerged from within universities, and were then followed by corporations.

With the late twentieth century, technological innovation facilitated even greater accumulation of capital for those corporations that had come to dominate the production process. What has emerged is a knowledge based global economy, which has in some ways superseded state based economies reliant on the exploitation of natural resources, where historically, the power of the state emanated from its control of land and natural resources, including biodiversity.167 In the contemporary global economic environment however, reliance on natural resources will not yield the same advantage.168 The comparative advantage now is in knowledge and the skills to utilise natural resources using biotechnological techniques.169 Those states enjoying established scientific capabilities possess a greater comparative advantage.

With transnational corporations (TNCs) now dominating the bioindustry,170 states are increasingly courting them for collaborative R&D ventures, and offering attractive incentives to entice their investment capital. Leydesdorff and Etzkowitz presented the ‘Triple Helix’ thesis as an interpretation of the trends towards a knowledge-based economy, and of the role of the university within the new economy.171 They suggested that universities, industry and government are, more that ever, networking to promote economic development and academic research. Within the academic-industry- government complex, each is increasingly assuming a similar role.

Under certain circumstances, the university can take the role of industry, helping to form new firms in incubator facilities. Governments can take the role of industry, helping to support these new developments through funding programs and changes in the regulatory environment. Industry can take the role of the university in developing training and research, often at the same high level as universities.172

Nature, Science and ‘Ways of Knowing’ 137

Yet, the primary message of the Triple Helix thesis is that while academics, industry and government may assume some of each others capabilities, each institution maintains its primary identity and role. All are bounded, independent institutions interacting equally.

Sheila Jasanoff is critical of this position, explaining that each of these actors use boundary defining language to create a distinction between science and policy- making.173 The constructed understanding of science as a rational, objective and neutral representation of ‘truth’ and of nature is reconfigured in the Triple Helix thesis. Consistent with historical representations since the Scientific Revolution, science is successfully portrayed as an apolitical, disinterested social institution, capable of delivering ‘truth’.174 Yet, the language used to affirm the boundaries between science and politics is itself politically charged, as each interest vies for greater power and prestige within the complex.175

Budgetary cuts to publicly funded institutions in most developed countries, including Australia, have made it necessary for universities to seek external funding for research, giving industry greater influence in the academic-industry-government complex. Corporations are willingly seizing the opportunity to establish research agreements with increasingly poorly funded public institutions.176 In the USA, generous tax concessions have induced greater academic-industrial links. Private funding of public research increased at an annual rate of 8.1 per cent between 1980 and 1998, and reached US$1.9 billion.177 Increasingly, universities are becoming entrepreneurial, are raising funds externally, and are setting up commercial arms to handle licensing and commercialisation of university innovations.178 In 1998, Novartis signed an agreement with the University of California at Berkley, which committed US$25 million for the right to license research results, and for the TNC to sit on university committees deciding the research priorities for the funding.179

The OECD encourages such close collaborative research relationships between public and private institutions.180 It advises governments to adopt a facilitator role with regard to science and technological progress in a desired transition to a ‘knowledge based’ Nature, Science and ‘Ways of Knowing’ 138

economy.181 The knowledge present in public institutions has provided the base for scientific and technological discoveries, and is, therefore, an asset leading to competitive advantage. ‘Competitiveness’ is one of the main political cues driving high technology development. The long gestation period and accompanying high cost and uncertainty involved, plus the financial unattractiveness of basic science to corporate interests, means that governments will need to continue to support long-term research,182 in both public-private collaboration and in public subsidies to private investment.

In Australia, the Commonwealth Scientific and Industrial Research Organisation (CSIRO), universities and other public research facilities, under pressure to be commercially viable, increasingly engage with industry through Cooperative Research Centres (CRCs), joint ventures, strategic partnerships and contract research (see Chapter Seven). Under such pressure, public research institutions are increasingly transferring research results and the rights associated with them to private interests such as pharmaceutical companies, in exchange for royalties and further research funding.183 Venture capital for public sector research usually entails access to publicly funded research including new patentable knowledge or licensing options on patentable knowledge produced within public institutions.

This knowledge can be the result of research conducted using unique biological resources, such as those indigenous to Australia, and the knowledge of Indigenous Australians, making closer academic-industrial-government collaboration attractive to pharmaceutical transnationals. Included in this ‘mix’ are herbariums, museums and other public institutions that may act as intermediaries, undertaking collections of natural product samples and any Indigenous knowledge of their application.

Nature within the biotechnology/bioprospecting debate has been shaped as a commodity by industry and academia acting politically within policy processes, while maintaining an apolitical guise. The boundary-making strategies of industry, governments and academia have been a success in establishing a receptive environment for the bio-industry and bioprospecting. Given that this academic-industry-government Nature, Science and ‘Ways of Knowing’ 139

complex is central to the biopharmaceutical industry in Queensland, I will analyse it as part of the ongoing construction of understandings of nature through a scientific lens. ‘Ways of knowing’ and, as I will discuss in the following Chapter, ‘ways of owning’ have been reshaped in recent years through biotechnology.

Conclusion

Dominant ‘ways of knowing’ are clearly a core technique of power used to privilege, normalise and exclude. When traditional constructed accounts of the development of Western Science are examined in cultural context, a new reading emerges that enables a rethink of dominant ‘ways of knowing’. The initial direction in which Western science developed was not a given, but a product of the society in which it emerged. It reflected the dominant worldview of seventeenth century Europe.

The significant influence of core European thinkers on contemporary knowledge has been traced historically in this Chapter. I agree with criticism in recent literature of ‘heroic’ accounts of the ‘Great White Men’ of the Scientific Revolution, such as those on Bacon, Descartes and Newton. At the same time, I support the argument that the worldview and ideas about nature attributed to these men have had an ongoing impact on accepted ‘ways of knowing’, as they established a dominant cultural and intellectual context. Indeed, science and technology would not have emerged in its contemporary form without knowledge from the Scientific Revolution, as it was interpreted in the Enlightenment and reinterpreted in subsequent generations. Europe was receptive to the ideas produced during the Scientific Revolution as they emerged in a period of significant political, social and economic change, as Europeans were expanding their interests worldwide. Hence, the ideas produced also had profound implications for relations between Europeans and the non-European Other.

When the Other, the non-Europeans, were ‘discovered’, they, their resources and their knowledge were studied as objects of science. As such, they were assigned a place that both denied their history as the original inhabitants of the land, and relegated them to Nature, Science and ‘Ways of Knowing’ 140

history, as it was deemed they were incapable of ‘progress’. The colonisers considered that the Other lacked reason and rationality. But, the colonisers were acting politically when they delegitimised the knowledge systems of the Other—particularly knowledge represented by ‘authorities’ such as ‘witch-doctors’—to neutralise and discredit alternative sources of power that were considered of threat to colonial control. Hence, modern science became a tool for the dominant societies, enabling colonisation, the positioning of Indigenous peoples as inferior, and thus the delegitimisation of Indigenous knowledge. Science was constructed and privileged as the only valid ‘way of knowing’.

A further component of this process of securing Western science as the dominant ‘way of knowing’ was the social construction of nature as a ‘machine’, and as an object that could be manipulated and utilised through ‘science as technology’. This has had profound contemporary implications for industry and technological change, especially in the biopharmaceutical industry. Science is integral to the achievement of ‘progress’ and ‘development’, and is often tied to state policy objectives. Foucault understood that “knowledge is always produced by power configurations and is tied to interests and purposes,” therefore, it can be concluded that knowledge production can never be truly objective and free of power relations.184

In sum, the historical construction of nature and ‘ways of knowing’ forms the cultural and intellectual context for exploiting nature, and the resources and knowledge of the Indigenous Other, particularly the Fourth World Other encapsulated within developed states. The potential benefit for states from this relationship will depend on their ability to maintain control of intellectual property. Intellectual Property mechanisms are detailed in the next Chapter, along with international regulatory institutions, as I explore dominant ‘ways of owning’.

Nature, Science and ‘Ways of Knowing’ 141

ENDNOTES

1 Foucault, M., Discipline and Punish: The Birth of Prison, New York: Vintage Books, 1979b.

2 Harding, S., Is Science Multicultural? Postcolonialisms, Feminisms and Epistemologies, Bloomington: Indiana University Press, 1998, p.3.

3 Fukuyama, Francis., The End of History and the Last Man, London: Penguin Books, 1992, p. 72..

4 Balick, Michael J., and Paul Alan Cox., Plants, People and Culture: The Science of Ethnobotany, New York: Scientific American Library, 1997, p. 3.

5 Worsley, P. Knowledge: What Different Peoples Make of the World, London: Profile Books, 1997, pp. 2-3.

6 Webb, L.J., “Australian Plants and Chemical Research”, Jacaranda Press, 1969(a), p. 84.; Indeed, Webb credits Indigenous women as being the founders of chemistry. Webb, L.J., “‘Eat, Die, and Learn’ - The Botany of the Australian Aborigines”, Australian Natural History, Vol. XVII, No. 9, March 1973, p. 3.

7 Balick and Cox., Plants, People and Culture, op. cit., p. 3.

8 Idea introduced by Mere Roberts from the University of Auckland, New Zealand, at the Science and Other Knowledge Traditions Conference, James Cook University, Cairns, 23-27 August 1996.

9 Worsley., Knowledge, op. cit., p. 170.

10 Desmarchelier, C., A. Gurni, G. Ciccia, & A.M. Giulietti., “Ritual and medicinal Plants of the Ese’ejas of the Amazon Rainforest (Madre de Dios, Peru)”, Journal of Ethnopharmacology, No. 52, 1996, p. 49.

11 The placebo effect also plays an important part in Western industrial medicine. For example, when we take paracetamol, our headache starts to dissipate long before the drug could possibly work.

12 Wilmer, F., The Indigenous Voice in World Politics, Newbury Park: Sage Publications, 1993, p. 53. When Western science pulled away from its religious base it freed itself from social responsibility. So biotechnologists can argue that they only develop the knowledge, they are not responsible for how it is used.

13 Semali, L. & Kincheloe, J. 1999. “Introduction: What is Indigenous Knowledge and Why Should We Study It?”, What is Indigenous Knowledge?: Voices From the Academy, New York, Falmer Press, p. 19.

Nature, Science and ‘Ways of Knowing’ 142

14 Semali & Kincheloe. “Introduction”, p. 19.

15 Latour, B., Science in Action, Cambridge: Harvard University Press, 1987, p. 211.

16 See: Gottweis, H. 1998. Governing Molecules: The Discursive Politics of Genetic Engineering in Europe and the United States. Cambridge, MIT, p. 35.

17 White, L. “The Historical Roots of Our Ecological Crisis”, Environmental Ethics: Divergence and Convergence, R. Botzler. & S. Armstrong. (eds.) 2nd edition, Boston: McGraw Hill, p. 205.

18 Science was practiced in the Middle East in the 11th century when no equivalent knowledge existed in Western Europe. When that knowledge, and scientific knowledge from Greece, were translated into Latin they were taken up in Western Europe and built on. White., “The Historical Roots of Our Ecological Crisis”. p. 205.

19 Worsley., Knowledge, op. cit. p. 6.

20 Cited in Worsley., Knowledge, op. cit. p. 6.

21 Ibid.

22 Ibid.

23 Merchant, Carolyn., Radical Ecology: The Search for a Livable World, New York: Routledge, 1992, p. 115.

24 Curzon, L.B., Jurisprudence, London, Cavendish Publishing, 1993, p. 16.

25 Alchemy, initially developed in China in the fifth century B.C., was a practice that attempted to transmute metals to gold, but later also aimed to develop medicines and achieve the goal of immortality. It was a practice embraced by the Arabs who, in fact, gave it its name (al, the; khem, Egypt = alkimia). Haynes, R.D., From Faust to Strangelove: Representations of the Scientist in Western Literature, Baltimore, Maryland: The John Hopkins University Press, 1994, p. 10.

26 Ibid.

27 Melchert, Norman., The Great Conversation: Volume 11: Descartes through Heidegger, 2nd edition, Mountain View, California: Mayfield Publishing, 1995, p.276.

28 White, L. “The Historical Roots of Our Ecological Crisis”, op. cit., p. 207. Genesis Chapter 1 in the Bible has God assigning humans to be ‘in charge’ of the fish, birds and animals, after He had provided grain and fruits for human sustenance. While one may not necessarily assume from this account a God-given right to dominate and exploit, White believes Christianity established a dualism of man and nature, as it was Nature, Science and ‘Ways of Knowing’ 143

assumed to be God’s ‘will’ that ‘man’ “exploit nature for his own proper ends” (emphasis added). Ibid., p. 109. Murdy, who refers to his own position as one of ‘new anthropocentrism’, refutes White, claiming that there is nothing wrong with exploiting nature for “‘proper ends’, which are progressive and promote human values” as opposed to “‘improper ends’, which are retrogressive and destructive of human values”. Human values according to an anthropocentric worldview that is. Murdy, W.H., “Anthropocentrism: A Modern Version”, In R. Botzler. & S. Armstrong. (eds.) Environmental Ethics: Divergence and convergence, 2nd edition, Boston, McGraw Hill, p. 317.

29 The Church discouraged independent thought, forbidding any but Biblical explanations, though some influential members of the Church, including Dominican Thomas Aquinas and Franciscan Roger Bacon, were practising alchemists. Hence, the practice was never fully suppressed, and indeed was very much alive in the scientific tradition. Haynes, From Faust to Strangelove: op. cit., pp. 10-11.

30 Berman, Morris., The Reenchantment of the World, London: Cornell University Press, 1981, p. 50.

31 Ibid, p. 52.

32 Haynes, R.D., From Faust to Strangelove, op. cit., p. 30.

33 Lewis, Bernard., What Went Wrong?: The Clash Between Islam and Modernity in the Middle East, London: Weidenfeld & Nicolson, 2002, p. 79.

34 Noble, D., The Religion of Technology: The Divinity of Man and the Spirit of Invention, New York: Penguin Books, 1999.

35 Berman., The Reenchantment of the World, op. cit., p. 54.

36 Jacob, Margaret. C., “The Truth of Newton’s Science and the Truth of Science’s History: Heroic Science at Its Eighteenth-Century Formulation”, Rethinking the Scientific Revolution, Margaret J Osler (ed), Cambridge, UK: Cambridge University Press, 2000, p 317.

37 Noble., The Religion of Technology, op. cit., p. 44. But, an English translation of the Bible was not available until the King James version in 1611. Only then could English people turn directly to the Bible for divine guidance. The corresponding increase in the importance of the Bible saw it become central to the arts and sciences by the 17th century.

38 Berman., The Reenchantment of the World, op. cit., p. 73.

39 Osler, Margaret., “The Canonical Imperative: Rethinking the Scientific Revolution”, Rethinking the Scientific Revolution, Cambridge, UK: Cambridge University Press, 2000, p. 10 Nature, Science and ‘Ways of Knowing’ 144

40 Hess, David., Science and Technology in a Multicultural World: The Cultural Politics of Facts and Artifacts, New York: Columbia University Press, 1995, p. 67.

41 Westfall, Richard. S., “The Scientific Revolution Reasserted”, Rethinking the Scientific Revolution, Margaret J Osler (ed), Cambridge, UK: Cambridge University Press, 2000.

42 Harding, S., Is Science Multicultural? op. cit., 1998 p. 9.

43 Osler, Margaret., “The Canonical Imperative”, op. cit., p. 12.

44 Dobbs, Betty Jo., “Newton As Final Cause and First Mover”, Rethinking the Scientific Revolution, Margaret J Osler (ed), Cambridge, UK: Cambridge University Press, 2000.

45 Berman., The Reenchantment of the World, op. cit., p. 17.

46 Harding, S., Is Science Multicultural? op. cit.

47 Hess, David., Science and Technology in a Multicultural World, op. cit.

48 Perry, M., J.R. Peden and T.H. Von Lave., Sources of the Western Tradition: Volume II: From the Renaissance to the Present, Boston: Houghton Mifflin Company, 1995, p. 31.

49 Ibid.

50 Ibid., p. 33.

51 Cardinal Bellarmine., “Attack on the Copernican Theory”, Perry, M., J.R. Peden and T.H. Von Lave, (eds) Sources of the Western Tradition: Volume II: From the Renaissance to the Present, Boston: Houghton Mifflin Company, 1995, p. 36.

52 Berman., The Reenchantment of the World, op. cit., p. 54.

53 White., “The Historical Roots of Our Ecological Crisis”, op. cit., p. 208.

54 Arisotle explained that falling objects “are excited, they are coming home, and like all of us they speed up as they approach the last leg of the journey”. Berman., The Reenchantment of the World op. cit., p.37.

55 Ibid., p. 37.

56 Ibid., p. 39.

57 Perry et al., Sources of the Western Tradition, op. cit., p. 162. The aged Italian scientist was put on trial as a heretic by the Inquisition in 1632 and ordered to renounce the Copernican theory or face a death sentence. Galileo decided, “not very courageously” in the opinion of John Shelby Sprong, to recant and save his live, a decision that did not diminish his perceived importance in the history of science. Sprong, John Shelby., Nature, Science and ‘Ways of Knowing’ 145

Why Christianity Must Change or Die: A Bishop Speaking to Believers in Exile, San Francisco: Harper Collins, 1999, p. 31.

58 Gould., S.J., Rock of Ages: Science and Religion in the Fullness of Life, London: Vintage, 2002, pp. 71-2. ; According to De Santilana Galileo’s fame (or notoriety) was due more to his literary and social skills than to his “fairly dubious experimental work”. Galileo gained the patronage of the powerful Florentine Crown, from which many Popes emerged, to enable him to pursue his studies. De Santilana cited in Aronowitz, S., “The Politics of the Science Wars”, Science Wars, Andrew Ross (ed), London: Duke University Press, 1996, p. 220. ; Galileo may have been harshly treated, but according to historical commentaries recounted by Gould he was “a brilliant hothead who had caused trouble before, and who now mocked prior papal directives”. It has to be remember that the Pope held full secular authority at that time and was protecting Rome’s institutions and dominant worldview. Had Galileo moved with more caution and less provocation, he may have retained the courtly patronage he once enjoyed and may even have positively influenced papal directives. Gould., Rock of Ages, op. cit., p. 74.

59 Haynes., From Faust to Strangelove: op. cit. p. 24.

60 Perry et al., Sources of the Western Tradition, op. cit., p. 43.

61 Bacon quoted in Moore, J.A., Science as a Way of Knowing: The Foundations of Modern Biology, Cambridge, MA., Harvard University Press, 1999, p86.

62 Ibid., p. 88.

63 The scientific method Bacon articulated is now known as induction where ‘facts’ are gathered based on observation and experimentation, before hypotheses are formulated to explain those facts.

64 Berman., The Reenchantment of the World, op. cit., p.37.

65 Ibid., p.31.

66 Perry et al., Sources of the Western Tradition, op. cit., p. 43.

67 Merchant, Carolyn., The Death of Nature, London: Wildwood House, 1980. ; Keller, Evelyn. Fox., “Fractured Images of Science. Language and Power: A Post-Modern Optic, or Just Bad Eyesight?”, Biopolitics: A Feminist and Ecological Reader on Biotechnology, Vandana Shiva and Ingunn Moser (eds), London: Zed Books, 1995, pp. 52-68.

68 Bordo, Susan., “The Cartesian Masculinization of Thought”, From Modernism to Postmodernism: An Anthology, Lawrence Cahoone (ed), Cambridge, MA: Blackwell Publishers, p. 650.

Nature, Science and ‘Ways of Knowing’ 146

69 Easlea, Brian., Witch-hunting, Magic and the New Philosophy: An Introduction to the Debates of the Scientific Revolution, Brighton, Sussex: Harvester Press, 1980.

70 Merchant, Carolyn., The Death of Nature, op. cit., pp. 169-171.

71 The College of Cardinals refused to look into Galileo’s telescope, not just through fear of truth, but because they could not reconcile using an artisans tool to solve a scientific or theological controversy. Galileo suffered the stigma of working in what amounted to a workshop. Berman., The Reenchantment of the World, op. cit., p. 57.

72 Noble., D., The Religion of Technology, op. cit., p. 48.

73 Lewis Mumford cited in Noble., The Religion of Technology, op. cit., p. 49.

74 Noble., D., The Religion of Technology, op. cit., p. 50.

75 Haynes., From Faust to Strangelove, op. cit., p. 28.

76 Ibid., p. 24. ; The ancient sanctions against exploiting the earth and introduced Church traditions decrying the acquisition of knowledge, were both overturned by the development of a new ‘language’ that permitted exploitation and knowledge building in the name of human salvation. Merchant., Radical Ecology, op. cit., p. 46.

77 Haynes., From Faust to Strangelove, op. cit., p. 37.

78 Sorell, T., Scientism: Philosophy and the Infatuation with Science, London: Routledge, 1991, p. 26.

79 Berman., The Reenchantment of the World, op. cit., p. 28.

80 Descartes presented philosophy as a field of study looking “for a class of ideas or representations which are certain, and which would serve as foundations of knowledge.” For Enlightenment philosophers, Descartes approach was foundational, and was adopted as a ‘true’ account of the historical coming into being of ‘rational self- consciousness’. Ibid.

81 Blumenberg cited in Barker, P., Michel Foucault: Subversions of the Subject, St Leonards, NSW: Allen and Unwin, 1994, p. 161.

82 Barker., Michel Foucault, Ibid.

83 Plato and Aristotle had advocated human reasoning in agreement with nature some 2000 years earlier. Davies, Margaret., Asking the Law Question, 2nd edition., Sydney: Law Book Company, 2001. The ancient Classical Greek philosophers Plato (a student of Socrates, who himself advocated reason, as did pre-Socratic thinkers) and Aristotle developed doctrines of natural law based on the question of what is good by nature (human), and the perception that humans should ‘reason’ in agreement with nature. Nature, Science and ‘Ways of Knowing’ 147

During the Classical era reason was considered one of the defining features differentiating humans from animals, the other features being speech and understanding. Natural law was considered universal and medieval philosophers of theology such as St Thomas Aquinas built on and linked this classical thinking with the newly emerged religious (Christian) ideas.

84 Sorrell., Scientism, op. cit., p. 26.

85 Barker., Michel Foucault, op. cit., p. 161.

86 Ibid., p. 191. Barker is surprised that Descartes could claim ignorance of Augustine’s ideas in this regard, when he liberally quotes St Augustine and St Thomas Aquinas to defend his position on other issues.

87 Ibid., p. 165.

88 Matthews, R.T and DeWitt Platt, F., The Western Humanities: Volume I: Beginnings Through the Renaissance, 2nd edition, Mountain View, California: Mayfield Publishing Company, 1995, p. 67.

89 Davies, Paul., God and the New Physics., London: Penguin Books, 1984, p. 78.

90 Barker., Michel Foucault, op. cit., p. 170.

91 Noble., D., The Religion of Technology, op. cit., p. 173.

92 Perry et al., Sources of the Western Tradition, op. cit., p. 46.

93 Leiss, W., “The Domination of Nature”, Key Concepts in Critical Theory: Ecology, Carolyn Merchant (ed), New Jersey: Humanities Press, 1994, p, 59. ; Sessions, G., “Ecocentrism and the Anthropocentric Detour”, Key Concepts in Critical Theory: Ecology, Carolyn Merchant (ed), New Jersey: Humanities Press, 1994, p. 143.

94 Kenny, A., A Brief History of Western Philosophy, Oxford, UK: Blackwell Publishers, 1998, p. 200.

95 Sprong., Why Christianity Must Change or Die, op. cit., p. 34.

96 Gribbin, J., Science: A History 1543-2001, London: Penguin Group, 2002, p.186.

97 Bohm, David., “Postmodern Science and a Postmodern World”, Key Concepts in Critical Theory: Ecology, Carolyn Merchant (ed), New Jersey: Humanities Press, 1994, p. 243.

98 Ibid., p. 72-79.

99 Berman., The Reenchantment of the World, op. cit., p. 45. Nature, Science and ‘Ways of Knowing’ 148

100 Ibid, p. 43.

101 McClellan, J.E III., Dorn, H., Science and Technology in World History: An Introduction, Maryland, US: The John Hopkins University Press, 1999, p. 250.

102 Newton, Isaac., “Principia Mathematica”, Sources of the Western Tradition: Volume II: From the Renaissance to the Present, Perry, M., J.R. Peden and T.H. Von Lave., (eds) Boston: Houghton Mifflin Company, 1995, p. 52.

103 Gould., Rock of Ages, op. cit., p. 84.

104 McClellan and Dorn, Science and Technology in World History, op. cit., p. 250.

105 Ibid., p. 253. ; He was, according to Sprong “a closeted Arian theologically, [and] was also an effective ecclesiastical politician”, who considered his central task as a scientist was “to discern God’s message in the book of nature”. Newton may well have been mostly concerned with furthering his political career within the Church, but for others the Church and God were increasingly irrelevant.

106 McClellan and Dorn, Science and Technology in World History, op. cit., p. 247.

107 Ibid., p. 246.

108 Merchant, Radical Ecology, op. cit., p. 48.

109 Berman., The Reenchantment of the World, op. cit., p. 49.

110 Ibid., p.50.

111 Osler, Margaret., “The Canonical Imperative”, op. cit., p. 21.

112 Dobbs, “Newton As Final Cause and First Mover”, op. cit., p. 35.

113 Harding., Is Science Multicultural?, p. 2.

114 Harding, S., Whose Science? Whose Knowledge? Thinking From Women’s Lives, Buckingham, UK: Open University Press, 1991, p. 42..

115 Harding., Is Science Multicultural?, p. 2.

116 Osler, Margaret., “The Canonical Imperative”, op. cit., p. 6-7.

117 Ibid., p. 8.

118 Jacob., “The Truth of Newton’s Science”, op. cit., p. 319.

119 Osler, Margaret., “The Canonical Imperative”, op. cit., p. 22. Nature, Science and ‘Ways of Knowing’ 149

120 Ibid., p. 17.

121 Dobbs, “Newton As Final Cause and First Mover”, op. cit., p. 38.

122 Outram, Dorinda., The Enlightenment: New Approaches to European History, Cambridge, UK: Cambridge University Press, 1995, p. 55.

123 Kramnick, Isaac., “Introduction”, The Portable Enlightenment Reader, New York: Penguin Books, 1995, p. x.

124 Outram, Dorinda., The Enlightenment, op. cit., p. 12. ; also see Hof, Ulrich. Im., The Enlightenment: An Introduction, translated by William E. Yuill, Oxford, UK: Blackwell Publishers, 1994.; Also see Gay, Peter., The Enlightenment: An Interpretation: 2 The Science of Freedom, London: Wildwood House, 1970.

125 Jacob, Margaret., “The Truth of Newton’s Science”, p. 332.

126 Ibid., p. 321.

127 Ibid., p. 332.

128 Ibid., p. 328.

129 Ibid., p. 320.

130 Dreyfus, H.L., and Rabinow, P., Michel Foucault: Beyond Structuralism and Hermeneutics, Brighton, Sussex: The Harvester Press Limited, 1982, p. 27.

131 Ibid., p. 30-1. Paradoxically, human beings (European) suddenly became subjects of empirical study (a knowledge building system established by human beings), and the product of an unknown history (a history that is developed by humans).

132 Ibid., p. 20..

133 Ibid.

134 Dussel cited in a review of his book The Invention of the Americas by Saenz, M., “Book Review”, Review of Enrique Dussel’s The Invention of the Americas in Continental Philosophy Review, Vol. 31., 1998, p. 430.

135 Ibid., p. 425.

136 Latour., Science in Action, op. cit., 1987, p. 217.

137 Ibid., p. 225.

Nature, Science and ‘Ways of Knowing’ 150

138 Beber, Zaheer., “Colonizing nature: Scientific Knowledge, Colonial Power and the Incorporation of India into the modern World-System”, British Journal of Sociology, Vol. No. 52, Issue No. 1, March 2001, p. 40.

139 Outram, Dorinda., The Enlightenment, op. cit., p. 63.

140 Rist, G., The History of Development: From Western Origins to Global Faith, London: Zed Books, 1997, pp. 37-40.

141 Jung, Hwa Yol., “Enlightenment and the Question of the Other: A Postmodern Audition”, Human Studies, Vol. 25, 2002, p. 302.

142 Latour, B., Science in Action, op. cit., p. 232.

143 Aronowitz., “The Politics of the Science Wars”, op. cit., p. 216.

144 Ibid.

145 Harding, Sandra., “Science is ‘Good to Think With’”, Science Wars, Ross, A., (ed) London: Duke University Press, 1996, pp. 22-23.

146 The claim that the Enlightenment aimed to produce knowledge that would enable nature to be ‘controlled’ as a means of ‘saving us’ through better medicine or agricultural practices was a misunderstanding. Cranston cited in Sorrel., op. cit., p.34. While Bacon did say in the Advancement of Learning and Great Instauration that the human condition could be improved through the arts and science, he cautioned against expecting too much from them. Instead, Bacon believed arts (or technology) was the way to redeem humans after the Fall, devoted more time to lamenting the ‘fallen condition of man’. Noble, D., The Religion of Technology, op. cit., p. 170. He attributed the Fall to a decline from “innocency and from his domination over creation”, which could be “in some part repaired; the first by religion and faith; the later by the arts and science”. Ibid. Hence, human salvation, Bacon believed, could not be achieved through science and the arts alone but through spiritual transformation found in Religion.

147 DaSilva, E., “Review: University-Industry Collaboration in Biotechnology: A Catalyst for Self-Reliant Development”, World Journal of Microbiology and Biotechnology, Vol. 14, 1998, p.155.

148 Fuller, S., “Does Science Put an End to History, or History to Science? Or Why Being Pro-Science Is Harder Than You Think”, Science Wars, Andrew Ross (ed), London: Duke University Press, 1996, p. 40.

149 Perry et al., Sources of the Western Tradition, op. cit., p. 48.

150 Fuller., “Does Science Put an End to History, or History to Science?”, op. cit., p. 44.

Nature, Science and ‘Ways of Knowing’ 151

151 Ibid., p. 40.

152 Ibid., p. 32.

153 Though, it is difficult to argue that there ever was a value-free ‘science for science sake’, independent of religion, government or industry, and from the personal values held by the scientist

154 Greider, William., One World Ready or Not: The Manic Logic of Global Capitalism, London: Penguin Books, 1997, p. 16.

155 Fuller., “Does Science Put an End to History, or History to Science?”, op. cit., p. 28.

156 Pickstone, J.V., Ways of Knowing: A new History of Science, Technology and Medicine, Chicago: The University of Chicago Press, 2001, p. 178.

157 Ibid., p. 181.

158 Ibid.

159 Regal, P., A Brief History of Biotechnology Risk Debates and Policies in the United States, an occasional paper of The Edmonds Institute, 1999, p. 3.

160 Ibid., p. 3.

161 Ibid.

162 Hubbard, R., “Genes as Causes”, Biopolitics: A Feminist and Ecological Reader on Biotechnology, Vandana Shiva and Ingunn Moser (eds), London: Zed Books, 1995b, p. 38.

163 Rowland, R., “The Quality-Control of Human Life: Masculine Science and Genetic Engineering”, Altered Genes: Reconstructing Nature: The Debate, Richard Hindmarsh, Geoffrey Lawrence and Janet Norton (eds), St Leonards, NSW: Allen and Unwin, 1998, p. 83.

164 Moser, I., “Introduction: Mobilizing Critical Communities and Discourses on Modern Biotechnology”, Biopolitics: A Feminist and Ecological Reader on Biotechnology, Vandana Shiva and Ingunn Moser (eds), London: Zed Books, p. 1; Hindmarsh, R., ‘Genetic Modification and the “Doubly Green Revolution’, Society, 40(6): 9-19, 2003.

165 Regal,. A Brief History of Biotechnology Risk Debates, op. cit., p. 3.

Nature, Science and ‘Ways of Knowing’ 152

166 “By culturing cells on three dimensional growth grids (or ‘matrices’), they hope to be able to grow replacement human organs (or pieces of organs) in the near future. Scientists are currently working with human skin, muscles, cartilage, heart values, and artery, blood, liver and kidney cells for transplant applications”. Ibid., p. 3.

167 Ohmae, Kenichi., The End of the Nation State: The Rise of Regional Economics, London: Harper Collins Publishers, 1995, p. 141.

168 Ibid., p. 60.

169 Thurow, Lester., The Future of Capitalism: How Today’s Economic Forces Will Shape Tomorrow’s World, St Leonards, NSW: Allen and Unwin, 1996, p. 68.

170 See: Hindmarsh, R. and Lawrence, G., Bio-Utopia: FutureNatural? In R. Hindmarsh & G. Lawrence (eds) Altered Genes II: The Future? Revised edition, Scribe, Melbourne, 2001.

171 Leydesdorff L., and Etzkowitz, H., “Emergence of a Triple Helix of University- Industry-Government Relations”, Report of the Double Helix Conference in Amsterdam, 3- 6 January 1996.

172 Leydesdorff L., and Etzkowitz, H., “The Transformation of University-Industry- Government Relations”, Electronic Journal of Sociology, 2001, p.2. www.sociology.org/content/vol005.004/th.html

173 Jasanoff, Shiela., “Contested Boundaries in Policy-Relevant Science”, Social Studies of Science, 17, 1987, p. 195.

174 Ibid., p. 196.

175 Ibid., p. 199.

176 Forster, J., Graham, P., and Wanna, J., “The New Public Entrepreneurialism”, in Wanna, J., Forster, J., and Graham, P., Entrepreneurial Management in the Public Sector, Brisbane: Centre for Australian Public Sector Management, 1996.

177 Ho, M., and Matthews J., “The ‘Academic-Industrial-Military Complex’ Engineering Life and Mind”, Institute of Science in Society, www.i- sis.org.uk/EngineeringLifeAndMind.php accessed 2/3/03, p. 6.

178 Selth, P., “Foreword”, in Kennedy, K., “Entrepreneurialism in the University Sector”, J. Wanna, J. Forster, and P. Graham., (eds) Entrepreneurial Management in the Public Sector, South Melbourne: Macmillan Education Australia, 1996, p. 145.

179 Ibid.

Nature, Science and ‘Ways of Knowing’ 153

180 Organisation for Economic Cooperation and Development (OECD)., Fostering Scientific and Technological Progress, OECD Policy Brief, June 1999, p. 4, www.oecd.org/publications/Pol_brief/

181 Ibid., p. 1.

182 Ibid., p. 3.

183 Bertha, Steven L., “Academic Research: Policies and Practices”, Journal of Ethnopharmacology, 51, 1996, p. 59-61. Most universities in the US have policies guiding the management of inventions. “The Bayh-Dole Act 1980 allowed universities in the US to own and manage inventions obtained using federal funds. This Act laid the foundation for university technology transfer activities…interaction between universities and industry has increased, and so has the sophistication in university intellectual property management” p. 59.

184 Hoy, D. C., “Power, Repression, Progress: Foucault, Lukes, and the Frankfurt School”, Foucault: A Critical Reader, D.C. Hoy., (ed), Oxford, UK: Blackwell, 1986, p. 138.

Chapter 5

Property, Intellectual Property And ‘Ways of Owning’

The intellectual property systems today, often negate, or deny the existence of inherent property rights of Indigenous people to our cultural and intellectual knowledge, by supplanting our knowledge systems with industrial knowledge systems, calling us ‘primitive’, while our medical knowledge, plants and even genetic material are stolen...by transnational corporations and international agencies.1

Introduction

In Chapter 4, I discussed ‘ways of knowing’ as a technique of power employed in the policy debate on access to biological resources. I identified the social power relations involved in the privileging of Western knowledge as the dominant ‘way of knowing’ the natural world, and the subsequent marginalisation of alternative ‘ways of knowing’. In this Chapter, I discuss ‘ways of owning’ as the other technique of power within the debate on access to biological resources. Power, within this debate, is not exclusively about knowledge, but also about ownership. This makes techniques that allow states and corporations to secure ownership of biological resources critically important. The central task of this Chapter, therefore, is to identify the techniques of power for controlling ownership of biological resources and knowledge as exercised through a legal framework characterised by individualism, property rights and intellectual property rights. I show how intellectual property mechanisms have been normalised as the only valid instrument for securing ownership of biological resources and associated knowledge. Examination of this technique of dominant power will help build an analytical framework, which I will apply to my case study on bioprospecting in Australia.

I adopt a genealogical approach to explain the historical roots of dominant knowledge and ownership regimes. Within this approach, I explore the historical construction of dominant ownership systems and their link to industrialisation. Laws designed to Property, Intellectual Property and ‘Ways of Owning’ 155

secure private property arose during the fifteenth and sixteenth centuries creating the required social conditions for capital accumulation through industrialisation.2 Like positivist science, law was considered natural, universal and eternal, creating the conditions for ‘progress’.3 Since the inception of property law, the concept of knowledge as collective and intergenerational has been replaced by proprietorial rights, where knowledge is understood to be a commodity, as property, that can be owned or traded.

The Chapter will look first at the Western legal framework; both at law and its theoretical and philosophical foundations--from Plato and Aristotle to Aquinas, Hobbes and Locke. This survey will demonstrate the progression from Natural Law to Positivist Law, the emergence of the concepts of individualism and private property as strategies of power in law, and the impact of Enlightenment thinking on law. Second, the Chapter will examine contemporary intellectual property techniques as mechanisms of power and ownership, including copyright and patents, particularly for their (in)capacity to protect Indigenous intellectual property rights (IIPRs). Third, the techniques of power and ownership exercised by international institutions responsible for administering IPRs and access to biological resources, also referred to as genetic resources,4 are examined. In particular, I look at the World Intellectual Property Organisation (WIPO), General Agreement on Tariffs and Trade (GATT), Trade Related Intellectual Property Rights (TRIPS) and World Trade Organisation (WTO). I also explore how the issue of ownership of biological resources emerged within international environmental policy processes under the Convention on Biological Diversity (CBD).

Finally, this Chapter considers the implications of these techniques of power and ownership, and their associated language, for Indigenous peoples and their own ownership aspirations. I look at how Indigenous peoples are engaging in these ownership debates. I conclude that there remains a significant failure to adequately address the concerns and interests of Fourth World peoples within these fora.

Property, Intellectual Property and ‘Ways of Owning’ 156

Western Legal Framework

Foucault argued that in “Western societies since the Middle Ages, the exercise of power has always been formulated in terms of law.”5 For Foucault, power is not always exercised negatively and can be positive and empowering for those generally considered ‘powerless’, but in the case of law, it is almost always practised as a negative power with regard to justifying domination.6 The essentialist and reductionist notion of law as universal privileges the Western systems of law, which was developed in a specific period of history and imposed on Indigenous peoples, effectively denying them their history. As with science, law became especially privileged over Other forms of knowledge through the language of law, which is generally understood only by those specialised in interpreting its many written texts and rules. These set law apart from society and from norms and morality. Law gains its authority from being part of the process of governance, and the institutions that administer the law have created a regime of ‘truth’, meaning anything (or anyone) ‘outside’ the law is ‘false’.7

Judged against the essentialist view of law, many societies are deemed not to have law or any comparable sanctioning system. This can then be used to justify their colonisation and, for example, the contemporary practice of bioprospecting. The appropriation of Fourth World peoples’ land, resources and knowledge was and still is upheld by law, as was the destruction of language and culture.8 Likewise, the legal authority to appropriate land belonging to Indigenous peoples and assert sovereignty over it was sanctioned by international law. Clarke argues that international law at the time colonisation was at its peak was a “code of honour among thieves”.9 It dealt with the relationship between European States, and was not concerned with the possible moral implications of colonialism or about the rights of the peoples of colonised territories.10

Foundations of Western Legal Philosophy Socrates believed that “an enduring moral and intellectual order existed in the universe”.11 People therefore chose to act morally or otherwise. A prevailing idea in law traced back to this is the distinction between ‘inside’ and ‘outside’. According to Davies, Property, Intellectual Property and ‘Ways of Owning’ 157

this distinction is fundamental to law for deeming certain behaviour acceptable and other behaviour unacceptable.12 The latter implies that people choose to be ‘outside’ of the law. Exclusion, though, may not always be by choice. For example, Davies explained that one’s sexuality or race—one’s ‘Otherness’—can lead to exclusion from the protection of the law.13 The law thus, can be developed to ‘exclude’. This relates especially to positivist laws, or laws that are ‘posited’ or laid down by humans, but this also applies to interpretations of ‘God-given’ ‘natural law’.

Plato (a student of Socrates), and Aristotle (a student of Plato’s Academy), developed the original doctrine of natural law. According to this classical doctrine, law exists in nature independent of humans and is discoverable by virtue of reason. While writing on politics, law and justice,14 Aristotle identified the difference between natural justice and legal justice.

Laws that are natural but man-made are not the same everywhere because forms of government are not the same either; but everywhere there is only one natural form of government, namely that which is best. ‘Natural’ justice is the same everywhere, regardless of whether it has been accepted as such, whereas ‘legal’ justice is that which has been laid down in any particular society: the significant question, for instance, of whether one goat or two sheep should be sacrificed is one which is to be determined by human acceptance and not nature.15

There are several key characteristics of natural law.16 First, is its universal and immutable status as a system of ‘justice’ (the righting of wrongs) to all those responsible for developing and enacting laws, at all times. Second, and by association, it is a ‘higher’ law, superior to laws developed by people, and is thus a benchmark by which the morality of ordinary laws are determined. Third, discovered by reason, it is held to distinguish humans from other animals, and, later, the European from the Other.

The source and validity of natural law was said to be God given.17 Hence, Christian dogma found that natural law was ‘open’ to be synthesised with Christian revelations and it thus became tied to the Roman Catholic Church by St Thomas Aquinas. Aquinas (1225 – 1274) interpreted law as part of God’s plan.18 He identified four types of law: (1) ‘Eternal law’ (God given); (2) ‘Natural law’ (discoverable through reason); (3) ‘Divine Property, Intellectual Property and ‘Ways of Owning’ 158

law’ (Scripture); and (4) ‘Human law’.19 Aquinas adopted Aristotle’s idea of laws as both natural and positive, but added that “an unjust law is not a law”. Just law was derived from Biblical revelation and theology, including, for example, ‘do not murder’.20 Aquinas argued that, “if a human law is at variance in any particular with the natural law, it is no longer legal, but rather a corruption of law”. 21

Harris claimed that Aquinas’ theory gives law makers flexibility for interpretation.22 They are able to develop law that is derived from, but not wholly determined by, natural law, so that coercive action can be taken to ensure compliance with law.23 Natural law can even be added to, enabling the inclusion in positive law of such concepts as slavery and private property. “The effect of the theory is to clothe all legislation with presumptive moral status; and even where positive law conflicted with natural law, compliance might still be morally required.”24 One interpretation therefore is that Aquinas thereby “threw over positive law a halo of moral sanctity”.25

Modern law emerged with the formation of the modern state in Western Europe in the sixteenth and seventeenth centuries. “In political-legal terms this modernity was established through the system of European Public Law (jus pubicum Europaeum)” moving from the religious-moral order to a secular political-legal order and development of the concept of sovereignty.26 The regime of new rival sovereign states, each based on civil and natural law, set the scene for the colonisation of the rest of the world.27 The colonised had to be governed and civilised: “law became the index of a ‘civilised’ society, marking a transition for humanity and society from an irrational to a rational state of being.”28 Hence, law became a gauge by which lawyers, sociologists and anthropologists could distinguish between the ‘civilised’ European and the so-called ‘primitive’ Other, and thereby if formed an effective tool for oppression and control.29

In the sixteenth and seventeenth century, natural law was reworked to fit in with the emerging tenet of the individual. This period did not produce a universal science or philosophy, but what it did produce was an epistemology or mode of thought that was wholly European, but which promoted itself as universal.30 The modernist philosophies Property, Intellectual Property and ‘Ways of Owning’ 159

that emerged with Bacon and Descartes (see Chapter 4) and those that followed them— philosophies involving ideas of rationality, objectivity, reason, truth, neutrality, individualism—have dominated Western thought since the Enlightenment and have influenced the development of law. Though law, of course, pre-dated the state and Enlightenment industrialisation, the modernist idea is that law is science and must be approached in a scientific manner that relies on objective facts and truth.31

Individualism and the Legal Framework The social contract theorists took up Descartes idea — ‘I think therefore I am’ — to develop theories of how the individual, free and rational subject is the foundation for a universal model of society. The ‘subject’ however, “was never a politically or culturally neutral character” as one’s gender and race determined (politically) whether one could be considered a free and rational subject.32 The subject therefore, is predominantly male and white (or Caucasian), as discussed in more detail later.

Thomas Hobbes (1588 – 1679) then introduced the idea of political rights and obligations as a social contract. Through the social contract, citizens submit to a Sovereign with a responsibility to protect them. The Sovereign power must enforce law unchallenged.

‘Good law’ should not be seen as the equivalent of ‘just law’, because a law made by a sovereign cannot be unjust. When a sovereign enacts a law he [sic] does so as though all his subjects were making it collectively; to enact that upon which his subjects have agreed cannot be unjust.33

When “bad law” exists, the Sovereign can be seen to have failed to protect citizens, though it is the Sovereign alone who has the power to determine the interests of citizens.34

By way of contrast, John Locke (1632–1704) argued that natural rights can endure with the social contract, and if governments failed to protect natural rights, citizens had good grounds to challenge the validity of government.35 The government’s role was preservation of the subject’s property, meaning “‘life, liberty and estates’”, which the government had no authority to acquire without consent. Governments also had no Property, Intellectual Property and ‘Ways of Owning’ 160

right to destroy, enslave, or impoverish subjects.36 From the late eighteenth century through to the early twentieth century, natural law was replaced by legal positivism as a result of the Enlightenment philosophies of modernism and liberalism, though the ideas of Locke and Hobbes continued to influence legal thought. Locke developed his ideas as a reaction to the exercise of arbitrary power by the monarchy and government in England.37 Locke’s idea of individual freedom as an inalienable right to be protected by the laws of the state, though in a limited and minimum way, is manifest in liberalism.38 The neoliberalism of the New Right in the 1980’s, though, advocated an absence of the state in favour of the market. Liberalism, the philosophical ideology of modernity and hence law, is expressed as liberty, individualism, rationality, rights, equality and justice, in short, those Enlightenment elements that underpin contemporary legal thought. The emergence of the free-thinking rational ‘individual’, rewarded by talent and hard work rather than social privilege, is reflected in much contemporary law.

Legalism and Property Rights as Techniques of Power According to Jeremy Bentham (1748–1832), law is based on ‘objective fact’, reflecting the influence of the thrust of modern science, and is created by humans free of the influence of nature or God.39 Property is, according to Bentham’s philosophy, designed to tap individual energies and to make the individual more prosperous.40 To secure rights to property, the right to exclude others is paramount, and by excluding others, owners can enjoy the value of their property. Property owners recognise other property owners, and resources from that property can be exchanged for an agreed value, thereby promoting the most valuable use of resources. Absence of property rights is said to result in a ‘Tragedy of the Commons’, where property open to the public is ostensibly wasted, either by overuse or under investment. This position in law makes customary rights vested in groups or communities very difficult to recognise as customary usage is said to constitute such a ‘tragedy’.41

Bentham was a strong critic of common law largely based on natural law. Positivist legal philosophy makes no connection between law and morality, accepting ‘what is’, not ‘what ought to be’, as law is, according to this philosophy, scientific.42 The idea that law Property, Intellectual Property and ‘Ways of Owning’ 161

can be separated from morality, society, politics, history and economics is therefore the foundation of legal positivism, and is the largely unchallenged basis of modern legal systems. Even in legal education, legal positivism is seldom questioned.

Indeed, no mechanism within positivism exists for questioning the validity of law. As people who are dominant in society create law, it is inherently political, and from the outcomes of positivism over the past 200 years or more, it is quite clear that morality has been ignored in many ways through legal conduits. This is evident, for example, when looking at the impact of Western law on the Indigenous Other and their customary knowledge systems.

Accepted doctrines for the dispossession of non-European territory43 were based on the perception of backwardness amongst non-Europeans—the Other, justifying the acquisition of Indigenous land and resources. Such was the case in Australia where the land was deemed to be uninhabited, terra nullius. A new dualist distinction was thus formulated between settler and conquered.44 Eighteenth century English jurist William Blackstone noted the need for the application of different laws over the colonised by the colonisers, determined by the dualist distinction between lands that were ‘cultivated’ and those not. Those deemed cultivated were attained either through conquest or treaty, while those deemed “desert and uncultivated” could simply be appropriated for the ‘mother-country’.45 When Europeans arrived in Australia, it was to them a wilderness, untouched, visibly uncultivated and therefore able to be attained as terra nullius. Blackstone was influenced by Locke’s ideas on property, where property rights arise from the mixing of labour and land. This means land must be cultivated if one is to claim rights to it. Locke,

wrote in the Second Treatise of Government, ‘every man has a property in his own person. This nobody has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his...’ He said that whatever is removed out of the state of nature provided, and is mixed with someone’s labor, becomes that persons property.46

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Notably, the ‘labour’ Locke referred to in order to secure property might be minimal, for example, “picking up acorns in the woods”.47 Arguably, this could have also been interpreted to mean that food gathering by Indigenous peoples could be seen to secure property rights, yet this was ignored in the colonisation of Australia. The labour invested by Aboriginal peoples was not recognised or was not considered comparable to the labour invested by Europeans, where nature, when secured as property, was utilised by manipulating and altering it.

Utilitarians such as Jeremy Bentham and John Stuart Mill advocated exclusive property rights for whatever a person produced as an incentive to increase productivity to protect “property in land, in ideas (patents, copyright), in discoveries (mining rights), and so on”.48 Once rights were protected, utilitarians argued, property-owning individuals could compete in the market with minimal intervention from government. In the contemporary world, there are now numerous legal instruments for securing ownership of such resources and for protecting intellectual property pertaining to their use, including patents, copyright, trademarks,49 and design.

Of importance to this study, the following section ascertains how these instruments are applied, particularly copyright and patents, as well as their functional utility for facilitating capital accumulation. The suitability of IPR mechanisms for protecting the intellectual property of Indigenous peoples will then be assessed to explore possible avenues for Indigenous peoples to better control access to their resources and knowledge.

Intellectual Property Law as a Technique of Power and Ownership

According to Boyd, intellectual property is,

knowledge, information, knowhow, concepts, or other ‘maters of the mind’ which, in the absence of disclosure or access thereto, is neither known nor obvious to others. [Intellectual property] like any other owned property or physical possession… may be owned or possessed exclusively or jointly; may Property, Intellectual Property and ‘Ways of Owning’ 163

be useful or desired by others; may have tangible value to the owner and/or to others; and without adequate protection is subject to theft.50

As knowledge is ‘copiable’, to be made profitable, access to it must be controlled. The ideological foundations of statutory protection of intellectual property, though, are neither clear nor consistent. Vaver,51 and Brush,52 explain the two main arguments used to defend intellectual property rights (IPRs). The first is based on natural rights, referring to a right to own and control one’s ideas and the right to be compensated for its use. States are no longer willing to support natural rights, perceiving it as a monopoly and a barrier to innovation and growth as there is no time limit to the protection rights. The second argument to defend intellectual property rights is an economic right. Vehicles for protecting this right are found in Western intellectual property laws.53

The various ideological assumptions which underpin the statutory regime of intellectual property54 and, indeed, the proprietary concept of intellectual property itself, are so seldom questioned that they are now regarded as self-evident. The essential features of statutory intellectual property—“exclusivity, territorial restrictions and limited duration”55—should be recognised as a pragmatic compromise between traditional conceptions of property, economic considerations and technological change.56 While the nature and scope of ‘property’ deserving statutory protection is neither fixed nor certain, the obvious and general “result of the conferment of these rights is that the grantees (and their assignees or licensees) generally enjoy a monopoly position to the exclusion of all others”.57 This right of monopolisation, which can be seen to run contrary to notions of free trade and competition, and which undoubtedly increases economic cost in the short term, is often defended on the basis that,

ultimately the gains are transferred back to the consumer in the form of better goods and services. Further, it is believed that competitors get access to new inventions, work, designs, etc., and are able to commercially exploit them, albeit after a waiting period, whereas otherwise those inventions may remain secret forever or for a long time.58

Property, Intellectual Property and ‘Ways of Owning’ 164

The two main categories of intellectual property identified by the World Intellectual Property Organisation (WIPO) are industrial property (mainly products covered by patents) and copyright (covering literary and artistic work).59

Copyright as a Technique of Ownership A person exercising originality in creating a literary, dramatic, musical or artistic work automatically attains copyright without any formal steps being taken to claim it.60 Copyright establishes, by statutory enactment, the expression and publication of an individual’s ideas, thoughts and knowledge. It creates a property right in the form in which such literary, artistic, dramatic, or musical ideas are expressed.61 Copyright protects only the material form of ideas and information contained within literary and artistic work. It does not protect ideas contained in and expressed through that work.62 This means, as Golvan points out, copyright protects the expression of ideas rather than ideas themselves.63 Limiting protection to the expression rather than the idea consequently limits the degree of both exclusivity and monopolisation.64

In the context of the Industrial Revolution, developmental capitalism and liberalism, copyright has generally been regarded as a progressive reform for protecting the artist.65 Unfortunately, as McGrath asserted, this is far from reality, as copyright protects sellers (not artists) against other sellers.66 This makes copyright a tool for the consolidation of corporate wealth rather than a means of enriching the creator. While a minority of artists may have benefited from copyright, generally their gains pale into insignificance against the benefits gained by others under copyright⎯namely, publishers, corporations and lawyers.67

Further, copyright protection of original ideas and images overlooks the irony that most of the ideas and images protected by copyright are a synthesis of other people’s ideas and are therefore, rarely original.68 This highlights the irony of protecting products of the collective-consciousness as original, and ascribing individual, enforceable proprietary right. The question of originality is, notwithstanding its Property, Intellectual Property and ‘Ways of Owning’ 165

questionability, a central plank of copyright and a persuasive rationale for moral rights.

A novel example of this is now being planned in the USA. A biotechnology company is attempting to convert a DNA sequence into digitally encoded music so it would meet the requirements of copyright. The idea is designed to enable IP protection over DNA sequences that are not normally covered because they are discovered not invented. Copyright would give long-term protection, far longer than patents.69

With regard to issues of originality, the vast majority of conflict over the issue of illegal appropriation of intellectual property is in relation to manufactured goods subject to copyright, including books, computer software, videos and compact discs.70 According to Fowler, some countries remain hostile toward exclusive intellectual property rights.71 This has led to tolerance toward local pirating of intellectual property in the form of computer software and entertainment such as videos, CDs and DVDs in countries including China.72 Most of the copying is carried out in the Third World, thus making the prevention of so-called ‘piracy’ of the intellectual property of ‘inventors’ in the North, by pirates in the South, a main focus of many international IPR debates. Accordingly, IPRs have been aimed at restricting the transfer of intellectual property from the North to the South.

There is, therefore, considerable difficulty in applying copyright for the protection of Indigenous interests. For example, Indigenous peoples may look to copyright to protect documentation of their medicinal knowledge, as this mechanism covers books, audio, audiovisual material and databases. But the use of copyright does have limitations. First, copyright protects for a limited time only, normally up to 50 years following the death of the author. This is an inadequate provision as Indigenous knowledge is largely perpetual, passed down from generation to generation for thousands of years, and continues to grow for future generations.73 Second, ownership generally resides with the author, so who, in the case of documented medicinal knowledge, is the author? The ethnobotanist who documents the knowledge? The Property, Intellectual Property and ‘Ways of Owning’ 166

Shaman or healer? The community? It is difficult to say. Third, copyright protects the expression of ideas only, not the actual ideas, meaning bioprospectors can read (or listen, watch) and learn from the copyrighted material without breaching copyright, thereby possibly accessing knowledge for commodification without acknowledging the original knowledge holders.

Patents as a Technique of Ownership The origin of patents is acknowledged as the Royal Prerogative granting monopolies to those favoured by medieval English monarchs.74 Patents are legal rights granted by a government to protect the intellectual property of an inventor.75 To be patented, the product has to be deemed useful, novel and non-obvious to others ‘skilled in the art’.76 The requirement of ‘newness’ for patentable products was introduced in the seventeenth century English Common Law Courts, and in 1716, “a requirement for patentees to describe their invention was introduced.”77 ‘Usefulness’ refers to an invention’s capacity for industrial application, ‘non-obviousness’ includes the requirement for an inventive step, and ‘novelty’ is verified by demonstrating that the invention is not known in existing knowledge, which is generally referred to as ‘prior art’.

More specifically, a patent is a tool for inventor’s to safeguard technical knowhow, and to maximise and consolidate profits from technical development. This grant of statutory recognition is given to inventions, which are, in the opinion of the patents bureaucracy and the courts, “a ‘manner of new manufacture’ which is both novel, in the sense that its creation has not been anticipated by others, and inventive, in the sense that it is not merely an obvious advance in the light of existing knowledge”.78 A report tabled in the US Congress in 1993 by the Congressional Research Service stated that processes for synthesised compounds, and synthetic compounds from nature, could be patented, because they are not technically a product of nature.79

The right of monopolisation and exclusivity bestowed with a patent grant is far more extensive than with any other IP mechanism. Therefore, patenting is the most Property, Intellectual Property and ‘Ways of Owning’ 167

important instrument used for the protection of biological resources, except in the case of plant varieties altered through plant breeding.80 Both exclusivity and monopolisation are emphasised to a far greater degree in patent legislation than in copyright. Patents also offer far greater protection than copyright, in so far as “they cover not only the way a concept is expressed ... but also the concept itself”.81 While copyright’s protection of ‘expression’ is necessarily limited, patents protect the invention or manner of manufacture in its entirety, and thus provide exclusive rights to the patentee to exploit an invention for a limited period provided details of the invention are published.82

Patent law ostensibly inspires research and development (R&D) as the limited protection—while initially costly—is offset by the extensive scientific rewards eventually enjoyed by society through the protection of investment in original inventions. Patents are designed to encourage public disclosure, increasing society’s pool of ideas and knowledge, and without such protection, firms would be less inclined to finance research and creativity.83 Yet, the exclusivity and monopoly rights granted by patents, though beneficial in the generation of new knowledge, often run contrary to what may be called the ‘public good’. For example, patents also allow inventors to licence selectively and to withhold from production, inventions that may be beneficial to society such as cars that use less polluting fuels than petrochemical ones.

Also, convoluted and expensive procedural requirements limit whose interests are protected and who benefits. As Bertin and Wyatt84 note, the slow and complex procedures leading to publication, and additional detailed information required in patent applications in conjunction with cost, constitute an effective and inherent obstacle to the ‘small’ patent applicant. Often, the small applicant⎯if successful in gaining a patent—experiences difficulties securing the financial means to effectively exploit their proprietary rights.85 For this reason, small patent holders tend to convey their patent rights to corporate bodies who possess the finances to facilitate exploitation. With regard to patents in plant biotechnology, Wells observed, “three Property, Intellectual Property and ‘Ways of Owning’ 168

quarters of the applications were made by transnational corporations, or companies on contract to them.”86 So in effect, patents tend to consolidate corporate wealth and power, and “to enclose rather than disseminate knowledge”.87 The effect of intellectual property provisions may thus be to increase the concentration of wealth and profits, if only for a limited time, instead of encouraging innovation.88

Patents also have limitations, and are of questionable use for Indigenous peoples. First, patents establish protection for a limited period of around 20 years. Second, patents provide for, and encourage, exclusive rights while Indigenous knowledge and resources can be collective in nature. They are focused on cultural rights often qualified in terms of transmission.89 Furthermore, Indigenous interests in a resource often extend not only to a number of traditional owners but to a whole community, and sometimes, to numerous communities. Third, Indigenous interests often extend beyond the material form of the created product and include the cultural knowledge, innovations and practices associated with the resource or knowledge. These are intangible areas of Indigenous intellectual activity that do not translate well into written form, as is required for publication when applying for a patent.

Significantly, Mgbeoji pointed out that the terms ‘knowledge’ and ‘publication’ as used in intellectual property laws have no clear and global judicial meaning.90 Knowledge, for example, that is passed on orally but not written down or published may be well known within a community or a country, but would pass as novel in another country, therefore could be deemed patentable. This distinction between published (written) and oral knowledge transmission is indicative of the ways in which Western intellectual property regimes are inappropriate for the protection of Indigenous and peasant peoples knowledge, particularly communal knowledge. Moreover, the language used in legal discourse when discussing innovation is also discriminatory. Use of the term ‘traditional knowledge’ implies that it is historical knowledge, no longer alive and no longer innovative. Further, the requirement for commercial application of innovations as a condition of patentability reflects Property, Intellectual Property and ‘Ways of Owning’ 169

Enlightenment thought and the perceived universal liberalist objectives of individualism and private property rights.

Clearly, then, copyright and patents as instruments within current Western intellectual property laws have limited application in relation to control of bioprospecting and benefit sharing. These instruments can offer only limited protection for the knowledge and resources that Indigenous peoples seek to protect. While traditional Indigenous knowledge may have inspired corporate research, only the end product, and the process used to achieve it, can be considered novel and original, and therefore ‘patentable’.

Intellectual property rights are, in Claire Polster’s91 assessment, “transforming practices of knowledge production within and between knowledge-producing institutions”. Consistent with Michel Callon,92 Bruno Latour93 and others, Greg Myers94 explains how the process of translation of an ‘invention’ from the laboratory to the patent office and then on to the market as a commodity involves the enrolment of an array of actors within a network to support the process. These actors within a network of accumulation could include laboratories, research institutions, patent lawyers and transnational companies. According to Myers95 then, the perceived boundaries between the scientific, legal and commercial arenas are simply constituted by actors. Latour96 conceded that those not enrolled as part of the network are excluded, while those within the network, work to establish and normalise specific knowledge as fact and truth. Within this truth producing process, intellectual property mechanisms operate as techniques of power; privileging specific knowledge and ownership regimes within power/knowledge relations. The translation process also involves stabilising knowledge as artefact, and destabilising any suggestion by the patent examiners of prior claim to this specific knowledge.

International Techniques of Power and Ownership

To counter any challenges to their position, large corporations within networks lobby policy makers with intent to incline and actuate IP policy at the state and international Property, Intellectual Property and ‘Ways of Owning’ 170

level. Current policy objectives include greater liberalisation of trade while maintaining tighter control over corporate IP.97 These objectives bring into focus policy areas that are of international and state interest, in the areas of trade and IP. With no international patent system, patents that are granted within a particular country may not be recognised or respected by other countries. Yet, IP legislation maintained within states is based on and governed by international conventions administered by the WIPO,98 and increasingly the World Trade Organisation (WTO). Currently, institutions and instruments designed to protect IP are undergoing refinement in order to accommodate new forms of property created through biotechnological techniques, which, of course, has impacts on Indigenous peoples as well as on civil society.

GATT, TRIPS And The WTO as Agents of Power and Ownership Current trends in attitudes towards IP are reflected in world trade rules negotiated within the General Agreement on Tariffs and Trade (GATT),99 and now administered as the World Trade Organisation. At the end of World War Two, a trio of multilateral organisations—the International Monetary Fund (IMF), The World Bank, and the International Trade Organisation (ITO)—were proposed as measures to promote economic development and avoid the economic crises experienced throughout most of the world in the 1930s. Protectionist measures adopted during that crises were identified by the United States and United Kingdom governments as the reason international trade collapsed and the crises worsened. Trade liberalisation and tariff reduction organised through the ITO were suggested as the means of preventing its reoccurrence.100

Thus, the GATT was established in 1948 to facilitate negotiations toward the establishment of the ITO, though it was never “intended to be a fully independent legal body”.101 Tariff and trade negotiations continued through eight GATT Rounds. These set “rules and pressures for open economies and free trade”.102 In 1994, during the Uruguay Round of the GATT, Trade Related Intellectual Property Rights (TRIPS) were introduced with the aim of harmonising global intellectual property provisions. Property, Intellectual Property and ‘Ways of Owning’ 171

This required all member countries to adopt Western style Intellectual Property Rights regimes.

Effectively, the thrust of the Agreement is designed to thwart piracy of IP from industrialised countries by strengthening IPR mechanisms.103 TRIPS was deemed necessary by industry and Western governments in order to eliminate non-tariff barriers associated with the failure of some countries to implement patent protection.104 The WTO TRIPS is now the pre-eminent international agreement dealing with trade in intellectual property rights, and it establishes universal, minimum IPR standards for WTO members. The Agreement “requires Members to grant IPRs to the nationals of other Members on the same terms as they do their own nationals (‘national treatment’ – Article 3), and to extend the same favourable terms they grant to the national of any Member to the nationals of every other Member (‘most-favoured nation’ – Article 4).”105

Through the WTO, trade and investment liberalisation have been portrayed as desirable goals for all countries. Countries are encouraged to exploit their comparative advantage, be that financial, human, or natural. The WTO is said to based on the idea of free trade and the theory of comparative advantage, where “each country specialises in what it can produce most cheaply and has an advantage in” over other countries.106 The comparative advantage for developing countries is said to be an abundance of cheap labour and rich biodiversity. The comparative ‘advantage’ for these states is characterised by several other factors including their reliance on one or two export crops in each country, a lack of facilities for value-adding, limited access to advanced technology, and the view that most advanced technology and capital belong to multinational corporations.

Concerning biotechnology, TRIPS does not allow WTO members to exclude biotechnological inventions from their patent systems, although Article 27.3(b) does provide some flexibility.107 Article 27.3(b) enables WTO members to exclude from patentability: Property, Intellectual Property and ‘Ways of Owning’ 172

plants and animals other than micro-organisms, and essentially biological processes for the production of plants and animals other than non-biological and micro-biological processes. However, members shall provide for the protection of plant varieties either by patents or by an effective sui generis system.

The exact makeup of an ‘effective sui generis system’, which means a system unique to each individual country, is not specified and has been the subject of copious debate, but what is certain is that many states will need to assign IPRs to food and medicinal biological resources for the first time.108

Revision of Article 27.3(b) of the TRIPS agreement has been under way since 1999, but with very little progress, mainly due to the insistence by Third World countries for more negotiations. In February 2003 at the WTO TRIPS Council meeting,

Brazil and India and China continued to advocate for negotiations to amend the TRIPS agreement to require as a condition of patentability: disclosure of the origin of genetic resources, consent of the national authorities where the genetic resource was located, and any local knowledge associated with the use of the genetic resources, and evidence of benefit accruing to the original owners.109

The European Union (EU) claims to support stronger disclosure requirements, though, as noted by the Australian Department of Foreign Affairs and Trade (DFAT), the EU also “reiterated its view that disclosure requirements should not have an impact on patentability itself”.110 Advocate for the Third World, the NGO Genetic Resources Action International (GRAIN) attacked the EU on this position, as it was no different to that of other developed countries who were opposed to the idea of disclosure of country of origin of bioresources and knowledge, and the need for prior informed consent (PIC).111 The United States made it clear that it considered such requirements as “a legal and administrative nightmare”.112 In a February 2003 Open Letter to Pascal Lamy, the European Commissioner Directorate-General for Trade, GRAIN challenged the EU to verify its position and make public its real opposition to disclosure.113 While publicly purporting to support developing countries on this issue, the EU, according to charges by GRAIN, and supported by the DFAT brief, wanted only minimal Property, Intellectual Property and ‘Ways of Owning’ 173

disclosure and the requirement that this disclosure never be a condition for patentability.

Effectively then, inclusion of provisions in Article 27.3(b) for disclosure of country of origin of bioresources and knowledge would be ineffective as it would not insure against the resources and knowledge of that country being utilised in patentable inventions. Yet, as identified in a Communication from Brazil to the Council for TRIPS in November 2000, such amendments are necessary for legal consistency and compatibility between TRIPS and the Convention on Biological Diversity (CBD). This is because the CBD recognises the sovereign rights of states over resources within its territories.114 Due to pressure from Indigenous peoples and their allies, and from some Third World governments, the 2001 WTO Ministerial Conference held in Doha, Qatar, expanded the mandate of the review of Article 27.3(b) to include consideration of traditional knowledge and the relationship between TRIPS and the Convention on Biological Diversity.115 At the WTO TRIPS Council June 2002 session, 12 developed countries tabled a paper supporting at least partially, the position taken by Brazil in 2000, calling for “CBD-compliance as a condition of patentability”.116

Patents and sui generis systems of IPR provided for within TRIPS are important for consideration in the implementation of the CBD as they help define who has access to information about biological resources, benefit sharing arrangements (including with traditional communities), “and what technologies are developed and transferred with implications for conservation and sustainable use of biological diversity”.117 We now take a closer look at the CBD, particularly its (in)compatibility with TRIPS and more specifically at its implications for the rights of Fourth World peoples.

The CBD as an Agent of Power and Ownership The position of the state as sovereign over natural resources and the facilitator of access agreements was reinforced by Article 15 of the Convention on Biological Diversity (CBD), while Articles 3 and 4 of the Convention stress that states have “sovereign rights to biodiversity and patterns of utilisation”.118 The CBD was enacted Property, Intellectual Property and ‘Ways of Owning’ 174

at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro in July 1992. It came into force in December 1993 and has to date, 2003, been ratified by 187 countries.119 The three main objectives of the CBD as set out in Article One are 1) the conservation of biological diversity, 2) sustainable use of its components, and, 3) to achieve fair and equitable sharing of benefits derived from the utilisation of these resources.120

Importantly, for our discussion, the CDB refers not only to access to genetic resources, but access to technology and knowledge as well. Both Article 19(1) (concerning participation in biotechnological research on genetic resources) and Article 19(2) (concerning access to results and benefits from biotechnologies) refer to biotechnology. Article 16 (Access to and Transfer of Technology) of the CBD refers to a need to transfer technology, including biotechnology, to attain the Convention’s objectives. The countries (mainly developing ones) that supply genetic resources ‘shall’ be provided access to the technology required to exploit the resources. Article 16(5) recognises the possible conflict here between IPRs and the implementation of the CBD, urging Contracting Parties to “cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives”. 121

According to Nijar, the impetus for the Convention came from conservation groups in the North and the biotechnology industry, each with disparate objectives, one to protect against environmental degradation and the other to ensure access to biological capital for the generation of capital and markets.122 Perhaps this heritage of dual interests explains the dichotomic position adopted by the CBD in relation to Indigenous IPR. The presence and legitimacy of Indigenous and ‘local’ knowledge is recognised, as is the link between biological and cultural diversity and the need to engender “broad international support for indigenous self-determination”.123

Article 17(1) (Exchange of Information) states that, “Contracting Parties shall facilitate the exchange of information, from publicly available sources, relevant to the Property, Intellectual Property and ‘Ways of Owning’ 175

conservation and sustainable use of biological diversity, taking into account the special needs of developing countries”. Article 17(2) explains that the information for exchange includes technical, scientific, specialised and Indigenous and traditional knowledge. A Clearing-House Mechanism (CHM) was established to facilitate the exchange of information required in this Article. Ostensibly, the CHM is independent, favouring no party and mutually beneficial, but as no details of its transactions are made public,124 accountability is non-existent. To date, the main task of the CHM has been to promote and facilitate technical and scientific cooperation.125

Yet the position of the CBD on IPRs (article 16.2 and 16.5) is confusing, and has led industry representatives to claim that it legitimises industrial intellectual property even more effectively than TRIPS.126 Egziabher thus claims the CBD endorses the illegal appropriation of bioresources by industry;127 and thus encourages biopiracy as it advocates bilateral bioprospecting agreements between states and collecting agents. It does not necessitate the involvement of Indigenous peoples, and does not set out a code of conduct. While the CBD does call for the equitable sharing of benefits with Indigenous peoples, it advocates the wider use and application of Indigenous knowledge without proposing a mechanism for the protection of such knowledge.128 Enforcement depends on corporate ‘good will’, and,

the supposed good will is to be expressed through the Global Environment Facility, in which the World Bank is a partner. But the Bank, together with the International Monetary Fund, is responsible for modernising the old South- North flow of resources.129

Developing countries are keen participants in the ongoing CBD process as the sovereignty assigned to states in the Convention enables them to determine access to resources once considered ‘common heritage’. The CBD addresses the issue of access to genetic resources and the sharing of benefits arising from their use in Article 15 (Access to Genetic Resources). Article 15(1), as noted earlier, recognises the State’s authority to determine access rights to its genetic resources, while Article 15(4) determines that such access should be on mutually agreed terms. In turn, Article 15(5) states that the prior informed consent (PIC) of the Contracting Party must be obtained, where PIC means Property, Intellectual Property and ‘Ways of Owning’ 176

that the provider of genetic resources must be fully informed by the party seeking access. Still open to negotiation are issues such as whom exactly the perspective recipients of genetic resources should have to obtain PIC from, and whether the rules will be voluntary or legally binding. Furthermore, it is unclear which genetic resources are affected by PIC and in what form. This uncertainty is due to the existence of a number of overlapping and sometimes conflicting rules at the state, regional and international levels.130

Article 15(7) calls on the Contracting Party to take legislative, administrative or policy measures to ensure the fair and equitable sharing of benefits from the commercial and other use of genetic resources. Access to genetic resources and benefit sharing has become a priority area for the CBD. The Fourth Conference of the Parties to the Convention on Biological Diversity (COP-4) (decision IV/8) decided to establish a Panel of Experts on Access and Benefit Sharing (ABS) to examine existing legislative, policy and administrative measures as well as other options for ABS. Panel members are representatives from the private and public sectors and are appointed by governments.131 The Fifth Conference of the Parties (COP-5) held in Nairobi in May 2000 established an Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing in October 2001. The Working Group compiled the Draft Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, which is now forming the basis for policy making in this area in many countries, including Australia.132

At the Open-Ended Inter-Sessional Meeting on the Multi-Year Programme of Work for the COP to the CBD, held in Montreal in March 2003, the Like Minded Group of Mega- Diverse Countries, together with other developing countries, “called for a legally binding regime based on the Bonn Guidelines, arguing that a voluntary regime would not guarantee fair and equitable benefit-sharing”.133 This was reflective of the position taken at the World Summit on Sustainable Development (WSSD), or the Earth Summit, held in Johannesburg Sept 2002, which called for an international regime for fair and equitable benefit sharing. No consensus was attained and the Meeting ended with Property, Intellectual Property and ‘Ways of Owning’ 177

instructions to the Ad Hoc Working Group to consider possibilities for an international benefit-sharing regime, and to report to the COP-7 in Malaysia in April 2004. Delays in progress on such a regime at this meeting though were inevitable as several developed countries including Australia and Canada warned of a possible overlap or conflict with other fora such as the WTO and WIPO. 134

Earlier at COP-6, held in The Hague in April 2002, the Working Group put forward recommendations on the need for a closer relationship between the CBD and TRIPS. Those recommendations aligned well with the proposal put forward by Brazil and other developing countries to the TRIPS Council (as discussed earlier). The Working Group urged the COP to require the disclosure of the origin of resources, and the CBD provision for PIC and traditional knowledge (an issue looked at in more detail below).135

The intangible nature of such knowledge, though, particularly orally transmitted Indigenous and traditional knowledge, presents a keen challenge for policy makers. Implementation of the CBD Articles 8(j) and 10(c) has also become a key area for further research within the CBD in the development of policy and legislative guidelines. Article 10(c) refers to the protection and encouragement of customary use of biological resources. In turn, Article 8(j) mandates that Contracting Parties will:

subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for 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 the benefits arising from the utilization of such knowledge, innovations and practices.136

Implementation of Article 8(j) is particularly problematic. Use of the essentialising phrase ‘traditional lifestyles’ can be interpreted by policy-makers within states as permission to exclude those members of the Indigenous population who are no longer living as they ‘traditionally’ would have within pre-colonial territories, speaking traditional languages, or wearing traditional clothing, and so on. Most Fourth World peoples do not, according to this perspective, live traditional lifestyles due to colonial Property, Intellectual Property and ‘Ways of Owning’ 178

legacies and the pervasive influence of Westernisation. Many Fourth World peoples would, then, be justifiably sceptical about the implementation of Article 8(j) when it is subject to state legislation, especially if those existing laws take precedence.137

The CBD Conference of the Parties to the Convention (COP) has made several principle decisions relating to Article 8(j) and related provisions. The Third Conference of the Parties to the Convention (COP-3) (decision III/14) decided that an intersessional process was needed to advance the implementation of Article 8(j) and related provisions including Article 10(c). A report from a Workshop on Traditional Knowledge and Biological Diversity, held in Madrid in November 1997, was presented to COP-4 in Bratislava, Slovakia, in April 1998, where it was decided to establish an Ad Hoc Open- ended Intersessional Working Group on Article 8(j) and Related Provisions (decision IV/9). This 8(j) Working Group held its first meeting in Seville, Spain, in March 2000, and discussed, among other things, possible legal or alternative forms of protection for traditional knowledge.138

A further programme of Work on the Implementation of Article 8(j) and Related Provisions of the CBD was established at COP-5 (decision V/16). At the Conference, it was “decided to extend rights over genetic resources to the holders of Indigenous and community knowledge in so far as applications for access concern the knowledge, innovations and practices they safeguard or generate”.139 This decision does recognise the right of Indigenous peoples to be asked, and then fully informed, regarding access. It is state governments, however, that will need to recognise who should be asked, which is an issue complicated by the ‘traditional lifestyle’ requirement and by existing state policies and legislation, especially legislation that does not recognise Indigenous (prior) ownership of land and resources.

Cop-5 thus urged government and other parties, international organisations, and those organisations representing Indigenous and traditional peoples:

to provide case studies on methods and approaches that contribute to the preservation of traditional knowledge, innovations and practices, including Property, Intellectual Property and ‘Ways of Owning’ 179

through their recording where appropriate, and that support, control and decision-making by indigenous and local communities over the sharing of such knowledge, innovations and practices.140

Specifically, this decision suggests the development of registers of traditional knowledge. The issue of knowledge documentation, and registers and databases of traditional knowledge is, however, a highly contentious one.

WIPO has launched a pilot ‘Prior Art’ Databases Project, specifically focused at providing access to details of traditional knowledge for patent examiners.141 WIPO conducted Fact-Finding Missions on Traditional Knowledge, Innovations and Culture (FFMs) in 1998-99. The FFMs aimed to “identify and explore the intellectual property needs and expectations of new beneficiaries, including the holders of indigenous knowledge and innovations, in order to promote the contribution of the intellectual property system to their social, cultural and economic development”.142 WIPO concluded from the study that many Indigenous peoples supported the documentation of their knowledge (explored more in Chapter 6).

Predictably, industry supported the creation of inventories of traditional knowledge, ostensibly to protect and preserve such knowledge, and to enable patent offices to establish ‘prior art’.143 Developed country governments too are keen to see the establishment of databases for traditional knowledge and model clauses for negotiating contracts, instruments that they say will help alleviate concerns on biopiracy. At the Third Session of the WIPO Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (June 2000) contractual practices, prior art databases, patent disclosure requirements, and traditional knowledge protection, were identified as key policy and legal issues. The Committee established the Database of Contractual Practices and Clauses Relating to Intellectual Property, Access to Genetic Resources and Benefit-Sharing, following a proposal put forward by Australia at a previous meeting.144 The database is intended as an aid in contract negotiations covering protection and commercialisation of IP related to genetic resources.145

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According to the Biodiversity Convention, the country of origin can claim royalties, yet according to the WTO Rules of Origin, many problems exist in defining the origin or ‘nationality’ of a product.146 The WTO stipulates that “as a general rule and for non- preferential trade purposes a product originates in the country where the last substantial processing or manufacturing took place”.147 Furthermore, opponents of the CBD have argued that assigning royalties to countries of origin would cause a “bureaucratic nightmare”, as some of the germplasm held in gene banks originates from many different countries.148 They maintain that disagreement concerning the true country of origin and how to share royalties may decelerate the distribution of resources, particularly crop varieties. Unfortunately, for Third World countries and peasant and Indigenous peoples, this problem has been eliminated due to an interpretative statement inserted by the US government prior to signing the Convention. In part, the statement stipulates that all resources acquired before the Convention and those in gene banks cannot be included in royalty claims.149 This will undoubtedly disadvantage Third World countries and Fourth World Nations, as gene banks throughout the world are overflowing with resources that have been appropriated. The original owners will have no rights to future profits gained from these resources. Furthermore, it is unlikely that a country of origin will be able to prove that a specific resource was acquired after the signing of the Convention.150

Despite these discrepancies, there is now widespread recognition amongst developing countries and NGOs of the connection between the CBD and TRIPS; also of the possibility for co-operation and for conflict between them, based mainly on the fear that the WTO will overpower the CBD. The USA and the EU have argued there is no connection between the two agreements as they address completely different issues. Stillwell counters this argument by reference to the numerous Articles in the CBD that relate to IPRs, specifically to Article 27.3(b) of TRIPS which deals with IPRs over some genetic resources.151 Another argument put forward by the US against the CBD draws on the ‘later in time’ rule in international law, where the more recent treaty prevails. Stillwell again counters the US position, arguing that another rule in international law “provides that the more specific treaty prevails” where there is a conflict between Property, Intellectual Property and ‘Ways of Owning’ 181

treaties on the same subject.152 In relation to IPRs on life forms, the CBD is the most specialised, therefore would be considered the more ‘specific treaty’.

Of significance to Indigenous peoples and their supporters, the Doha WTO Ministerial Conference expanded the mandate of the review of Article 27.3(b) to include not only the relationship between TRIPS and the CBD, but also traditional knowledge. While the Doha Conference dealt for the first time with environment and sustainable development issues, trade is increasingly important in multilateral environmental negotiations, especially in relation to biotechnology, access and benefit sharing, and Indigenous and traditional knowledge. As a result, linkages between biodiversity and trade policies are being drawn and the need for integration assumed in order to address the gaps at all policy levels. For this reason, the 18th Session of the Global Biodiversity Forum (GBF) was held in Cancun Mexico from 5-7 September 2003, preceding the Fifth WTO Ministerial Conference in Cancun from the 10-14 September 2003. The main objective of the GBF in Cancun was to emphasise the positive and negative impacts of trade on biodiversity and to “explore key issues that could lead to mutual supportiveness between international processes related to trade, biodiversity and sustainable development”.153

Negotiations at the international policy level have been initiated mainly through activism by Fourth World Nations and their allies, but also by Third World states. Some of these states have been enacting domestic responses to their concerns over access to biological resources and the rights of peasant and Indigenous peoples, providing possible models for policy makers in First World states.

Ownership and State Legislative Responses

The Philippines became the first state to attempt to regulate access to biological resources and benefit sharing in 1995. It issued Presidential Executive Order 247, a legal framework for regulating bioprospecting. Guidelines for implementation of the Executive Order were issued by the Philippines Department of Environment and Natural Property, Intellectual Property and ‘Ways of Owning’ 182

Resources through Department Administration Order No. 20.154 Also established was the Inter-Agency Committee on Biological and Genetic Resources, whose members included representatives from government agencies, NGOs, a ‘people’s organisation’ and Indigenous communities, to review access applications distinguished either as academic (non-commercial) or commercial. Accordance with the Executive Order for both commercial and non-commercial agreements requires compliance with the National Integrated Protected Areas System Act of 1992 and the Indigenous Peoples’ Rights Act of 1997 (RAA 8371).155 WIPO has applauded this initiative, extolling it as a useful guide for other states.156 Other significant legislation in the Philippines are the Traditional and Alternative Medicines Act (TAMA RA 8423) and the Draft Community Intellectual Property Rights Act (SB 1841) which specifically protect community rights not protected by the intellectual property rights regime.157 The Philippines government has been widely praised for attempting to achieve CBD objectives but more recently has faced criticism at home and abroad for enacting the Plant Variety Protection Act of 2002, which threatens farmers’ resource and knowledge rights.158

Brazil, one of the most prominent players on this issue of access and benefit sharing at international fora, has a federal system of government. This means it faces legislative complexity similar to Australia in relation to access to biological resources. Brazil’s central state government began addressing the issue after ratifying the CBD in 1994. Its 1998 bill though, is rather ambiguous as it leaves regulatory issues to individual local states within the federation. To date, only two states have passed access legislation, while a third is currently working on a bill. The problem appears to be in identifying the best scope and specification for access, and marrying the needs of each individual state with the interests of the central state and those of Indigenous and peasant peoples.159 The lack of solid regulations has not discouraged those pursuing access, however, including the US National Cancer Institute (NCI), which has signed a Memorandum of Understanding (MOU) with the Brazilian government while awaiting a formal agreement. The Universidade Paulista, a private university in Sao Paulo is collecting and screening plants for biological activity in exchange for technology transfer. According to the MOU, material cannot be patented or commercialised until federal legislation is Property, Intellectual Property and ‘Ways of Owning’ 183

passed.160 The ability of Brazil’s federal and state governments to effectively control access is, however, questionable, as the violence and intimidation towards Indigenous peoples in Brazil by those plundering resources is rife according to the UN Sub- Commission on Prevention of Discrimination and protection of Minorities.161

India, like Brazil, is one of the ‘Like-Minded Mega-Diverse Countries’ seeking stronger provisions at the international level on access, benefit sharing and country of origin. Recently, the Indian government drafted legislation in line with the CBD and TRIPs to address the issues of access to, and the utilisation of biological resources and knowledge, and benefit sharing. The Biodiversity Bill 2000 provides for the protection of resources and knowledge, and requires anyone seeking access to obtain prior informed consent (PIC) from the National Biodiversity Authority.162 The Indian Government has acknowledged, however, that it cannot prevent persons that have failed to obtain that PIC from securing patents in other countries.163

Costa Rica also has a recently enacted Biodiversity Law regulating access to biological resources. In addition, the National Commission for the Management of Biodiversity (CONAGEBIO) has developed “norms of access” which have been approved by the state and are soon to be enforced.164 The Norms include provision for non-IPR community rights.165 CONAGEBIO deals with access to biological resources in Costa Rica and no bioprospecting is carried out without its permission. The Red de Coordinacion en Biodiversidad (Coordinating Network on Biodiversity) issued a statement in May 2003 pleading with the Swiss Federal Institute of Technology (ETHZ) and the National Institute on Biodiversity (INBio), a private Costa Rican organisation with close government ties, to postpone signing a bioprospecting agreement until the ‘norms of access’ are in place.

Since its initial contract with Merck, INBio has facilitated access to Costa Rica’s biodiversity in contracts with other organisations, and has been touted as a model for the privatisation and commodification of public biological resources.166 Under the Merck INBio agreement, locals are being trained as parataxonomists and researchers are Property, Intellectual Property and ‘Ways of Owning’ 184

developing the capacity for fractionation of active chemical compounds,167 though the development of such skills is unlikely to benefit anyone other than the pharmaceutical corporation.168 Indigenous peoples are not the recipients of this training, and have been marginalised from participation in the Merck INBio project. Reid et al, employees of Merck, expressed their view of Costa Rica’s “relatively small indigenous population as a plus”,169 presumably in recognition that fewer Indigenous peoples should mean less resistance to the exploitation of nature. While promises that any royalties from the Merck/INBio project would go toward the quest to set up and maintain national parks within Costa Rica are admirable, Indigenous peoples have not been included in negotiations and will not receive any royalties. Indeed, direct benefits have not been apparent for any Costa Ricans. Local NGO, Red de Coordinacion en Biodiversidad, is outraged by INBio’s secrecy as, despite the Law on Biodiversity, civil society in Costa Rica has never seen the results of its bioprospecting projects, nor any tangible benefits, particularly for Indigenous peoples.170

More emphasis is obviously needed then, on the specific needs of Indigenous peoples when effecting access legislation, such as shown by the efforts of the Peruvian government. It is currently drafting a law to prevent biopiracy and protect Indigenous knowledge rights by assigning Indigenous communities intellectual ownership of medicinal plant resources. Indigenous peoples have participated in the drafting of the Bill, which, when enacted, will require bioprospectors to pay Indigenous Peruvians for access rights.171 While this is a very positive approach, the assumption underlying this, however, and perhaps all other state based legislative approaches, is that all Indigenous Peoples wish to commodify their resources and knowledge through bioprospecting agreements.

Examination here of Third World legislation makes it clear that with political will and some creative thinking, accommodation of peasant and Indigenous peoples knowledge and resource rights is possible. First World states with encapsulated Indigenous Nations, however, have been more reluctant to enact legislative responses to Property, Intellectual Property and ‘Ways of Owning’ 185

bioprospecting and access to Indigenous knowledge and resources. In Chapter 7, I will examine Australia’s, and more specifically, Queensland’s legislative response.

Conclusion

This Chapter examined dominant ‘ways of owning’ as a technique of power in the debate on access to biological resources. In this Chapter and the preceding Chapter, I adopted a genealogical approach to promote a rethink of our dominant knowledge and ownership systems. I situated these constructed systems within the history of colonialism and industrialisation. I undertook this study to demonstrate that the dominance of these ownership systems is not a result of their natural superiority, but a product of historical circumstances, or constructed historical memory. By examining historical context we gain a better understanding of contemporary outcomes. One outcome examined in this Chapter is the current state and international IP policy processes which demonstrate the privileging of dominant ‘ownership’ regimes and its implications for Indigenous peoples.

The main finding from this examination of dominant ‘ways of owning’, was that dominant ownership regimes have effectively marginalised Other ownership systems, and there is minimal political will to accommodate the IP interests of Fourth World peoples. Failure to adequately address ownership issues with considerable urgency will lead to a further loss for Third World states and Indigenous Nations of resources, knowledge and power to the dominant forces within the global economy. Legal initiatives by some Third World states for facilitating and controlling access to biological resources and knowledge are largely inappropriate to Fourth World Nations, whose capacity for granting access are generally more limited.

Yet, the prospects for Fourth World peoples encapsulated within the First World to lead the push for acknowledgement and recognition of the legitimacy of their right to grant or deny access, may be comparatively advanced compared to Third World states. Although the encapsulating state may not be receptive to the rights claims of Nations Property, Intellectual Property and ‘Ways of Owning’ 186

encapsulated within their borders, these Nations may have greater access to resources (education, money, public funding) than people in the Third World. Such resources can enable Fourth World peoples to more easily take their grievances onto the international stage where, ostensibly, organisations are governed more by idealist principles. We now move onto Chapter 6 which looks at Fourth World resistance tactics.

Property, Intellectual Property and ‘Ways of Owning’ 187

ENDNOTES

1 Winona LaDuke cited in Brady, Wendy., “Indigenous Australian Education and Globalisation”, International Review of Education, 43(5-6): 1997, p. 418.

2 Shiva, Vandana., “Biotechnological Development and the Conservation of Biodiversity”, Biopolitics: A Feminist and Ecological Reader on Biotechnology, Vandana Shiva and Ingunn Moser (eds), London: Zed Books, 1995, p. 193.

3 Davies, Margaret., Asking the Law Question, 2nd edition., Sydney: Law Book Company, 2001, p. 9.

4 As defined in Article 2 (Use of Terms) of the Convention on Biological Diversity, “’Biological resources’ includes genetic resources, organisms or parts thereof, populations or any other biotic component of ecosystems with actual or potential use or value for humanity.” “‘Genetic resources’ means genetic material of actual or potential value.”

5 Wickham, G., “Foucault and Law”, An Introduction to Law and Social Theory, Reza Banakar and Max Travers (eds), Oxford: Hart Publications, 2002, p. 251.

6 Ibid., p. 265.

7 Griffiths, A., “Legal Pluralism”, An Introduction to Law and Social Theory, Reza Benakar and Max Travers (eds), Oxford: Hart Publications, 2002, pp. 292-3.

8 For example, in Australia from the late nineteenth century through to the early 1970’s, Aboriginal children considered to be only part-Aboriginal were taken from their mothers, families and communities and placed in homes or foster care. Although the Human Rights and Equal Opportunity Commission report Bringing them Home admitted the wrong doing, the incumbent Howard Liberal Government refused to apologise as the taking of these children was a legal act. Laster. K., Law as Culture, Sydney: Federation Press, 2001.

9 Clarke, J., “Law and Race: the Position of Indigenous peoples”, Law in Context, Stephen Bottomley and Stephen Parker (eds), 2nd edition Leichhardt, NSW: Federation Press, 1997, p. 246.

10 Ibid.

11 Matthews, R.T and DeWitt Platt, F., The Western Humanities: Volume I: Beginnings Through the Renaissance, 2nd edition, Mountain View, California: Mayfield Publishing Company, 1995, p. 67.

12 Davies, M, Asking the Law Question, op. cit., p.15.

Property, Intellectual Property and ‘Ways of Owning’ 188

13 Ibid.

14 “When man is perfected he is, indeed ‘the best of animals’, but if removed from the ambit of law and justice ‘he is the worst of all’. Curzon, L.B., Jurisprudence, London, Cavendish Publishing, 1993, p. 16.

15 Davies, M., Asking the Law Question, op. cit., p. 77.

16 Harris, J.W., Legal Philosophies, London: Butterworths, 1980, p. 7.

17 Davies, M., Asking the Law Question, op. cit., p. 75.

18 Curzon., Jurisprudence, op. cit., p. 41

19 Harris., Legal Philosophies, op. cit., p. 8.

20 Ibid.

21 Ibid., p. 9.

22 Ibid.

23 Davies, M., Asking the Law Question, op. cit., p. 79.

24 Harris., Legal Philosophies, op. cit., p. 9.

25 Ibid., p. 10.

26 McVeigh, S., “Postmodernism and Common Law”, An Introduction to Law and Social Theory, Reza Benakar and Max Travers (eds), Oxford:Hart Publications, 2002, p. 273.

27 Ibid.

28 Griffiths, A., “Legal Pluralism”, op. cit., p. 291.

29 Ibid. p. 291.

30 Davies, M., Asking the Law Question, op. cit., p. 216.

31 Laster, Law as Culture, op. cit., p. 31.

32 Ibid., p. 299.

33 Curzon., Jurisprudence, op. cit., p. 25.

34 Ibid. Property, Intellectual Property and ‘Ways of Owning’ 189

35 Harris., Legal Philosophies, op. cit., p. 10.

36 Curzon., Jurisprudence, op. cit., p. 27.

37 Laster., Law as Culture, op. cit., . p. 203.

38 Stephens, G.M., “John Locke: His American and Carolinian Legacy”, John Locke Foundation, 1998, www.johnlocke.org/whowasjl.html

39 Kilcullen, R.J., “Free Enterprise and Its Critics”, Macquarie University Open Learning Australia POL167, www.humanities.mq.edu.au/politics/y67s26.html 1998, p.5.

40 Rose, Carol. M., Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership, Boulder, Coloredo: Westview Press, 1994, p. 3.

41 Ibid., p. 105-6.

42 This was a reaction to natural law, criticised by Hume for it’s normative approach based on what one morally ‘ought’ to do – the is/ought distinction. Davies., Asking the Law Question, op. cit., p. 91.

43 Force (conquest), treaty, discovery, occupation, religious conversion.

44 Clarke, “Law and Race: the Position of Indigenous peoples”, op. cit., p. 247.

45 Ibid., p. 247.

46 Stephens., “John Locke”, op. cit., p. 2.

47 Kilcullen., “Free Enterprise and Its Critics”, op. cit., p. 4.

48 Ibid., p. 5.

49 Trademark – perpetual if fee paid. Does not protect biological knowledge. Rural Advancement Foundation International (RAFI)., Conserving Indigenous Knowledge: Intergrating Two Systems of Innovation Commissioned by the United Nations Development Programme, nd, p. 40.

50 Boyd, Michael R., “The Position of Intellectual Property Rights in Drug Discovery and Development From Natural Products”, Journal of Ethnopharmacology, No. 51, 1996.

51 Vaver, D., “Some Agnostic Observations on Intellectual Property”, 6 IPJ, 126, 1991, p. 7. As Vaver observed, in regard to the ideological basis of intellectual property “theorists have identified both moral and economic motivations. Morally, a person is said to have a natural right to the product of her [sic] brain; society is obliged to Property, Intellectual Property and ‘Ways of Owning’ 190

reward persons to the extent that they have produced something useful for it: as one sows, so should one reap.”

52 Brush, Stephen., “A Non-Market Approach to Protecting Biological Resources”, Intellectual Property Rights for Indigenous Peoples: A Sourcebook, Tom Greaves (eds), Oklahoma City, Oklahoma: Society for Applied Anthropology, 1994, pp. 134-5.

53 Ibid., p. 135.; Greaves, Tom., “IPR: A Current Survey”, Intellectual Property Rights for Indigenous Peoples: A Sourcebook, Oklahoma City, Oklahoma: Society for Applied Anthropology, 1994(b) p. 5.

54 Assumptions that Vaver describes as the Myth of Copyrights. Vaver., “Some Agnostic Observations”, op. cit., p. 7.

55 Puri, K., “IP Rights and Trade Practices Act – A Potential Conflict?”, The Queensland Lawyer, Vol. 12, No. 4, p. 96. Trademarks however, have an unlimited duration if re- registered every fourteen years.

56 Feather, J., “Authors, Publishers and Politicians: The History of Copyright”, 12 EIPR 377; Rose, Mark., “The Author as Proprietor: Donaldson v Beckett and the Genalogy of Modern Authorship”, Representations, No. 23, Summer 1988, p. 51-65.

57 Puri, “IP Rights”, op. cit., p. 92.

58 Ibid., p. 93. Notably, however, few proponents of intellectual property provisions highlight the utility of the various statutes of censorship.

59 World Intellectual Property Organisation (WIPO) “Introduction to Intellectual Property”, Draft Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) July 3, 2000, p. 1.

60 McKeough and Stewart, op. cit., p. 3.

61 Golvan, C., An Introduction to Intellectual Property Law, Federation Express, 1992, p. 73.

62 RAFI, “Conserving Indigenous Knowledge”, op. cit., p. 40.

63 Golvan., An Introduction to Intellectual Property Law, op. cit.

64 English, S., “An Overview of the Investment and Intellectual Property Laws of Australia”, The Queensland Lawyer, Vol. 12, No. 2, p. 44. “As copyright deals with the form of expression by an author in which she [sic] conveys her ideas or information to the world, no monopolistic rights can therefore exist in relation to the subject matter of that expression.”

Property, Intellectual Property and ‘Ways of Owning’ 191

65 McGrath, D., “Anti-Copyright and Cassette Culture”, Sound By Artists, Lander and Lexier (eds) Art Metropole, 1990, p. 152.

66 Ibid., p. 152.

67 Feather, “Authors, Publishers and Politicians“, op. cit., p. 37. All have “an interest in the orderly maintenance of copyright law.”

68 McGrath, “Anti-Copyright and Cassette Culture”, op. cit., p. 154.

69 Connor, S., “DNA Codes May Be Proetected as ‘Music’”, Independent, 8th May 2002, www.independent.co.uk/story.jsp?story=277097

70 Adamantopoulos, Konstantinos., An Anatomy of the World Trade Organisation, London: Kluwer Law International, 1997, p. 22.

71 Fowler, Cary., “Biotechnology, Patents and the Third World”, Biopolitics: A Feminist and Ecological Reader on Biotechnology, Vandana Shiva and Ingunn Moser (eds), London: Zed Books, 1995, p. 218. In theory, indigenous and peasant innovators could be restricted from practising traditional medicinal or farming techniques due to patents. Yet in practice this would be very hard to police.

72 Massachusetts Institute of Technology., “The Terminator Tackles Seed Pirates”, M.I.T. Technology Review Magazine article on TPS, July/August 1999, Gene Protection Technologies: Background Materials – Monsanto, p. 1, http://www.monsanto.com/monsanto/gurt/background/MIT.html ; Flagrant disregard for Western intellectual property has been used as justification for the creation of unique biotechniques. Farmers using bioengineered crops are required by agribusiness companies to agree not to save seeds, instead buying a new batch each season. “But even in the United States, where intellectual property rules are strong, such arrangements are widely ignored, despite companies’ use of ‘seed police’”. Massachusetts Institute of Technology., op. cit., p. 1. ; Knowing that farmers flout seed saving agreements, Biotech companies have developed techniques to prevent seed piracy such as the ‘terminator technology’, involving crops that kill their own seed. Nixon, Lance., “New Technology Would Help Seed Companies Protect Research Investments”, Night Ridder News Service, www.kri.com ,August 8, 1999, Gene Protection Technologies: Background Materials – Monsanto, p. 1, http://www.monsanto.com/monsanto/gurt/background/patent.html

73 Janke, Terri., “Don’t Give Away Your Valuable Cultural Assets: Advice for Indigenous Peoples”, Indigenous Law Bulletin, Vol. 4, Issue 11, April/May 1998b, p. 9.

74 Blattman, A., Irani, S., McCann, J., and Bookin, C., Biotechnology Intellectual Property Manual, Commissioned by Biotechnology Australia, 2001, p. 9.

Property, Intellectual Property and ‘Ways of Owning’ 192

75 Boyd, Michael R., “The Position of Intellectual Property Rights in Drug Discovery and Development from Natural Products” Journal of Ethnopharmacology 51, 1996, p.20.

76 RAFI, “Utility Plant Patents: A Review of the U.S. Experience (1985-July 1995)”, RAFI Communique, July/August, 1995, p. 2.

77 Blattman et al., Biotechnology Intellectual Property Manual, op. cit., p. 9.

78 Ibid.

79 Shiva, V., and Holla-Bhar, R., “Intellectual Piracy and the Neem Tree”, The Ecologist, Vol. 23, No. 6, Nov/Dec 1993, p. 224-5.

80 Blattman et al., Biotechnology Intellectual Property Manual, op. cit., p. 12-13. Plants appropriated from the Indigenous peoples and then bred through genetic alterations, can be protected using Plant Breeders Rights (PBR). Plant Breeders Rights offers protection for up to 25 years for trees and vines and 20 years for other plant varieties. The time restriction is only one reason this mechanism is inappropriate for Indigenous knowledge holders. The main implication is of course that some scientific application must occur to alter the plant, to differentiate it from the natural resource used by Indigenous peoples, effectively separating the outcomes of Western science from nature and privileging its practitioners. See also: Hindmarsh, R. 1999. Consolidating Control: Plant Variety Rights, Genes and Seeds, Australian Journal of Political Economy, 44: 58-78.

81 Kleiner, K., “Stop: Software Speed Trap Ahead”, New Scientist, 23 April, 1994, p. 314.

82 McKeough and Stewart, op. cit., p. 3.

83 Vaver, “Some Agnostic Observations”, op. cit., p. 7.

84 Bertin, G., and Wyatt, S., “The Challenge to Multinationals Industrial Property Strategies”, Multinationals and Industrial Property, Harvester-Wheatsheaf, 1988, p. 253.

85 Ibid. Therefore it is often said that the system is “biased toward the largest enterprises with the strongest legal departments”, and the greatest access to funds and knowledge.

86 Wells, A., “Patenting New Life Forms: An Ecological Perspective”, EIPR, No. 3, 1994, p. 311.

87 Ibid., p. 12.

88 Cited in Vaver, “Some Agnostic Observations”, op. cit., p. 13; see also Hindmarsh, Consolidating Control, op. cit.

Property, Intellectual Property and ‘Ways of Owning’ 193

89 Vaver, “Some Agnostic Observations”, op. cit., p. 13.

90 Mgbeoji, I., “Patents and Traditional Knowledge of the Uses of Plants: Is a Communal Patent Regime Part of the Solution to the Scourge of Bio Piracy”, Indiana Journal of Global Legal Studies, 2001, http://ijgls.indiana.edu/archive/09/01/mgbeoji.shtml p. 6.

91 Polster, Claire., “How the Law Works: Exploring the Implications of Emerging Intellectual Property Regimes for Knowledge, Economy and Society”, Current Sociology, July 2001, Vol. 2(4), p. 86.

92 Callon, M., “Some Elements of a Sociology of Translation: Domestication of the Scallops and Fishermen of St Brieuc Bay”, Power, Action and Belief: A new Sociology of Knowledge?, J. Law (ed) Sociological Review Monograph 32, London: Routledge and Kegan Paul, 1986.

93 Latour, B., Science in Action, Cambridge: Harvard University Press, 1987.

94 Myers, Greg., “From Discovery to Invention: The Writing and Rewriting of Two Patents”, Social Studies of Science, Vol. 25, No. 1, Feb 1995, pp. 57-105.

95 Ibid, p. 100.

96 Latour, Science in Action, op. cit., p. 180-184.

97 Adamantopoulos., An Anatomy of the World Trade Organisation, op. cit., pp. 22-3.

98 RAFI., “Conserving Indigenous Knowledge”, op. cit., p. 40.

99 Kuipers, L., “Seeds of Contention”, Third World Resurgence, No. 45, May, 1995, p. 43.

100 Adamantopoulos., An Anatomy of the World Trade Organisation, op. cit., p. 1.

101 Ibid., p. 2.

102 Swift, Richard., “Squeezing the South”, Economics as a Social Science: Readings in Political Economy, George Argyrous and Frank Stilwell (eds), Annandale, NSW: Pluto Press, 1996, p. 9. Rules established for the global economy within the GATT were to be enforced by the International Financial Institutions (IFIs) – the World Bank and the IMF – in conjunction with Regional Development Banks. Ibid., p. 12

103 Adamantopoulos., An Anatomy of the World Trade Organisation, op. cit., p. 23.

104 Rural Advancement Foundation International, “Utility Plant Patents: A Review of the U.S. Experience (1985 -–July, 1995)”, RAFI Communique, July / August, 1995.

Property, Intellectual Property and ‘Ways of Owning’ 194

105 Monagle, C., Biodiversity and Intellectual Property Rights: Reviewing Intellectual Property Rights in Light of the Objectives of the Convention on Biological Diversity, World Wide Fund for Nature (WWF) and Centre for International Environmental Law (CIEL) Joint Discussion Paper, March 2001, p. 8.

95 Lang, T., and Hines, C., The New Protectionism, London: Earthscan, 1993, p.21. Formatted: Bullets and Numbering 107 Dutfield, G., “Biotechnology and Patents: What Can Developing Countries Do About Article 27.3(b), BRIDGES Between Trade and Sustainable Development, International Centre for Trade and Sustainable Development (ICTSD), Nov/Dec 2001, p. 17.

108 GAIA/GRAIN, ‘TRIPS versus CBD: Conflicts Between the WTO regime of Intellectual Property Rights and Sustainable Biodiversity Management”, Global Trade and Biodiversity in Conflict, Issue No. 1., April 1998, www.grain.org/publications/issue1-en-p.htm

109 Department of Foreign Affairs and Trade (DFAT) Office of Trade Negotiations, “A Briefing on the WTO TRIPS Agreement and International Intellectual Property Issues”, TRIPS Update, Edition 8, March 2003.

110 Ibid.

111 Genetic Resources Action International (GRAIN), “Open Letter to Pascal Lamy on the EU Concept Paper Submitted to the WTO TRIPS Council Regarding Patents on Seeds and Traditional Knowledge”, 26 February 2003, www.grain.org

112 Permanent Mission of Brazil, Geneva, “Review of Article 27.3(b) – Communication From Brazil”, World Trade Organisation Document IP/C/W/228, 24 November 2000, http://docsonline.wto.org

113 GRAIN, “Open Letter to Pascal Lamy”, op. cit., p.3.

114 Permanent Mission of Brazil., “Review of Article 27.3(b)”, op. cit.

115 GRAIN, “Open Letter to Pascal Lamy”, op. cit.

116 DFAT, “A Briefing on the WTO TRIPS Agreement and Related International Intellectual Property Issues”, op. cit., p. 4.

117 Monagle, Biodiversity and Intellectual Property Rights, op. cit., p.8.

118 Shiva, V., “Farmers Rights, Biodiversity and International treaties”, Economic and Political Weekly, Vol. Xxviii, No. 14, April 3 1993, p. 557.

Property, Intellectual Property and ‘Ways of Owning’ 195

119 Davalos, L.M., et al “Regulating Access to Genetic Resources Under the Convention on Biological Diversity: An Analysis of Selected Case Studies”, Biodiversity and Conservation, No. 12, 2003, p. 1512.

120 All references to the CBD in this chapter are from the Convention on Biological Diversity: Texts and Annexes, which contains the text of the Convention and was produced by the Secretariat of the Convention on Biological Diversity, Montreal, Canada.

121 BRIDGES., “Biodiversity Convention Integrates WSSD Outcomes Into Work Programme”, BRIDGES Trade BioRes, Vol. 3, No. 6, 3 April, 2003, p. 3. Technology transfer will be one of the priority issues dealt with at COP-7 in Malaysia 19-30 April 2004.

122 Nijar, G. S. and Ling, C. Y. The Implications of the Intellectual Property Rights Regime of the Biodiversity Convention and the GATT on Biodiversity Conservation: A Third World Perspective, Penang, Malaysia: Third World Network, 1993, p. 6.

123 CBD Secretariat report to Intergovernmnetal Panel on Forests and the Commission on Sustainable Development. Posey, Darrell A., “Jakarta Jitters”, Bulletin of the Working Group on Traditional Resource Rights, Spring 1996, No. 2, p. 2.

124 Lorch, Antje., “Information Exchange in the CBD”, Biotechnology and Development Monitor, No. 49, p. 9.

125 Ibid., p. 10.

126 Rural Advancement Foundation International., “Bioprospecting/Biopiracy and Indigenous Peoples”, RAFI Communique, November 1994, p. 3.

127 Egziabher, Tewolde Berhan G., “Where’s The Good Will?”, Internet, February 5, 1995.

128 Reid, W. V., “Gene Co-Ops and the Biotrade: Translating Genetic Resource Rights into Sustainable Development”, Journal of Ethnopharmacology, 51, 1996, p. 76.

129 Egziabher., “Where’s The Good Will?”, op. cit., p. 1.

130 Seiler, A., and Dutfield, G., “Regulating Access and Benefit Sharing”, Biotechnology and Development Monitor, No. 49, 2002, p. 4.

131 International Institute for Sustainable Development Earth Negotiations Bulletin: A Reporting Service for Environment and Development Negotiations, Vol. 9, No 131, Oct 1999, p. 2.

132 BRIDGES., “Intellectual Property Rights: Traditional Knowledge and Biodiversity”, Bridges Trade BioRes Vol 2, No. 6, April 2002. Property, Intellectual Property and ‘Ways of Owning’ 196

133 BRIDGES., “Biodiversity Convention Integrates WSSD Outcomes Into Work Programme”, op. cit., p. 3.

134 Ibid.

135 BRIDGES., “Traditional Knowledge and Biodiversity Under Discussion At WTO and CBD”, op. cit., p. 2.

136 CBD Article 8(j) emphasis mine.

137 Davis., M., “Indigenous Peoples and Intellectual Property Rights”, op. cit., p. 15.

138 Executive Secretary Secretariat of the Convention on Biological Diversity, “Traditional Knowledge, Innovations and Practices,” UNCTAD Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices, Geneva, 30 October – 1 November 2000, p. 4.

139 Seiler and Dutfield, “Regulating Access and Benefit Sharing”, op. cit., p. 3.

140 Executive Secretary Secretariat of the Convention on Biological Diversity, “Traditional Knowledge, Innovations and Practices,” op.cit., p. 5.

141 Australian Department of Foreign Affairs and Trade (DEFAT), TRIPS Update Edition 6, August 2002, op. cit., p. 6.

142 WIPO., “Methodology”, Draft Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), July 3, 2000, p. 1.

143 European Chemical Industry Council (CEFIC), Brussels, “The Chemical Industry Comments on the Legal Protection of Traditional Knowledge and Access to Genetic Resources – Patenting,” CEFIC Position Paper, 23 November 2000, p. 5, www.cefic.be/position/Sec/pp_sec28.htm

144 DFAT, TRIPS Update Edition 6, op. cit., p. 5. “[t]he Delegation of Australia presented the Committee with a document entitled ‘Proposal for the Complilation of Contractual Terms for Access to Genetic Resources and Benefit-Sharing.’ (WIPO/GRTKF/IC/2/12). This document proposed a ‘Summary Checklist of Key Contractual Intellectual Property Terms on Access to Genetic Resources and Benefit Sharing’ that would provide a searchable format for an electronic database, which would be published on the WIPO web site and hyper-linked to the web site of the Clearing House Mechanism (‘CHM’) of the 1992 Convention on Biological Diversity(‘CBD’).” World Intellectual Property Organisation., “Structure of Proposed Database of Contractural Practices and Clauses Relating to Intellectual Property, Access to Genetic Resources and Benefit Sharing”, Paper Prepared by the Property, Intellectual Property and ‘Ways of Owning’ 197

Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore,third session Geneva, June 13 to 21, 2002, p. 2.

145 Ibid.

146 Adamantopoulos., An Anatomy of the World Trade Organisation, op. cit., p. 16.

147 Ibid.

148 Anonymous, “Biodiversity: The Convention and Plant Samples”, International Agricultural Development, July/August, 1992, p. 10.

149 Nijar and Ling, The Implications of the Intellectual Property Rights Regime, op. cit., p. 10.

150 The US interpretative statement also stipulates that “obligations are restricted to States and not private sector corporations” and that any access to technology must be in accordance with the TRIPs agreement. Ibid. Genetic Resources Action International has some good material on this topic. See: www.grain.org

151 Stilwell, M., “Review of Article 27.3(b)”, Center for International Environmental Law (CIEL), June, 2001, p. 5.

152 Ibid., p. 7.

153 Global Biodiversity Forum, “Biodiversity, Trade and Sustainable Development”, 18th Session of the Global Biodiversity Forum in conjunction with the 5th Ministerial Conference of the WTO, 5-7 Sept 2003, Cancun, Mexico, GBF18-Cancun/WTO5 www.gbf.ch

154 Davalos, et al “Regulating Access”, op. cit., p. 1517.

155 Ibid.

156 WIPO., “WIPO-UNESCO Regional Consultation on the Protection of Expressions of Folklore for Countries of Asia and the Pacific,” organised by WIPO in cooperation with UNESCO with the assistance of the Government of Viet Nam, Hanoi, 21-23 April, 1999.

157 Mga Magsasaka at Siyentipiko para sa Ikauunlad ng Agham Pang-agrikultura (MASIPAG) Inc., “Phillipines Gov”t Urged to Review Bio-patenting at WTO”, MASIPAG News Release, 8th October 1999, accessed from [email protected] archive/latest/165 www.grain.org 10th October 1999.

158 NGOs, scientists, farmers and Indigenous groups, some from the extreme left wing, have condemned the Philippines government for signing the PVP Act of 2002 as they say it violates farmers rights to their resources and knowledge. The US has been Property, Intellectual Property and ‘Ways of Owning’ 198

blamed for pressuring the Philippines government and meddling in the policy process through threats to aid. Kilusang Magbubukid sa Pilipinas (KMP) et al, Joint Signatories to this Statement., “Farmers, Indigenous Peoples, Scientists, and NGOs Criticise PVP Law that Strengthens TNC Monopoly Over Seeds: US Meddling Exposed”, News Release, 12 June 2002, GRAIN BIO-IPR , [email protected] www.grain.com

159 Davalos, “Regulating Access”, op. cit., p. 1515.

160 Ibid, p. 1516.

161 Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, “Human Rights of Indigenous Peoples”, Second Progress Report on the working paper prepared Mrs. Erica-Irene A. Daes, Special Rapporteur, E/CN.4/Sub.2/1999/18, 3rd June 1998, p. 17.

162 Department of Commerce, Government of India., “Protecting Traditional Knowledge – The International Dimension”, International Seminar on Systems of Protection of Traditional Knowledge, Organised by the Department of Commerce, Government of India in Cooperation with UNCTAD, 3-5 April 2002, New Delhi, p. 5.

163 Ibid., p. 6.

164 Red de Coordinacion en Biodiversidad (Coordinating Network on Biodiversity)., “Swiss - Costa Rican Bioprospecting: No Contract Between ETHZ or INBio until Norms of Access are Concluded, and Until a Public Debate is Held Among the Social Stakeholders, Recommends the Red de Coordinacion en Biodiversidad,” 13 May 2003, www.biodiversidadia.org/article/articleview/2695/1/15/

165 GRAIN., “Overview of the BRL”, May 2002, www.grain.org/brl. “Biodiversity Rights Legislation (BRL) is a collection of emerging laws that directly affect people’s control over agricultural biodiversity in developing countries.”

166 INBio signed a contract with Merck and Co, a US based pharmaceutical corporation and has been paid US$1.135 million for open access to Costa Rica’s genetic resources, and promised royalties from any successful product.

167 Rubin, S.M., & S.C. Fish., “Biodiversity Prospecting: Using Innovative Contractual Provisions to Foster Ethnobotanical Knowledge, Technology, and Conservation”, Endangered Peoples: Indigenous Rights and the Environment, Colorado Journal of International Environmental Law and Policy, Niwot, Co: University Press of Colorado, 1994, p. 30.

168 Costa Rica, like most Third World countries does not have the infrastructure to utilise people with advanced technical skills

Property, Intellectual Property and ‘Ways of Owning’ 199

169 Reid, Walter V., Laird, Sarah A., Gamaz, Rodrigo., Sittenfeld, Ann., Janzen, Daniel H., Gollin, Michael A., and Juma, Calestous., “A New Lease on Life”, Biodiversity Prospecting: Using Genetic Resources for Sustainable Development, Walter V. Reid et al (eds), World Resource Institute Book, 1993, p.5.

170 Red de Coordinacion en Biodiversidad., “Swiss - Costa Rican Bioprospecting”, op. cit.

171 Lama, A., “”Law to Protect Native Intellectual Property”, IPS News Bulletin, 12 Jan 2000, www.ips.org accessed from GRAIN BIO-IPR [email protected] archive/latest/183

Chapter 6

Bioprospecting And Indigenous ‘Ways Of Resisting’

The problem is that constant efforts by governments, states, societies and institutions to deny the historical formations of such conditions have simultaneously denied our claims to humanity, to having a history, and to all sense of hope. To acquiesce is to lose ourselves entirely and implicitly agree with all that has been said about us. To resist is to retrench in the margins, retrieve what we were and remake ourselves. The past, our stories local and global, the present, our communities, cultures, languages and social practices—all may be spaces of marginalization, but they have also become spaces of resistance and hope.1

Introduction

The theoretical framework of this thesis turns on three core analytical concepts. Chapters 4 and 5 discussed two of those concepts: ‘ways of knowing’ and ‘ways of owning’ respectively as techniques of dominant power. This Chapter discusses the third core analytical concept, which is the Fourth World as a site of resistance, or as a ‘way of resisting’ dominant power. As a site of resistance, Fourth World challenges the totalising forces of dominant knowledge and ownership regimes.

My main aim, here, is to explore the historical marginalisation of Indigenous knowledge and ownership systems, and to examine the resistance tactics employed by Fourth World peoples in relation to bioprospecting and the appropriation of their resources and knowledge. For Foucault, resistance is a struggle against the privileges of knowledge, and questions the way in which knowledge circulates and functions. 2 In other words, resistance questions the relations of knowledge to power.

Foucault’s idea of ‘interrogating the present’ in order to write a critical history is again employed in this Chapter.3 Indigenous discourse and postcolonial science studies provide material that facilitate the writing of a ‘history of the present’, and help explain Bioprospecting and Indigenous ‘Ways of Resisting’ 201

the uncertainty in contemporary knowledge and ownership systems for Indigenous peoples. I critically engage with the present effects of centuries of colonial expansion by examining the ‘grand narratives’ which have underwritten the dominant ideology, and the strategies employed to construct and marginalise the colonised Other.4 As I stated in Chapter 1, the relatively powerless position of Indigenous Nations within their encapsulating states is perpetuated by persistent colonial legacies, the negative construction of ‘Indigenousness’, and the delegitimisation of Indigenous peoples’ knowledge and relationships with their land and resources. This chapter will expand on a definition of Fourth World peoples and the relations between Fourth World Nations and the states within which they exist. I am interested in the politicisation of Fourth World Nations, and explore the practices, or tactics, used by these political actors for resistance to dominant power.

I continue by examining domestic and international attempts to deal with Indigenous concerns with respect to their biological resources, such as the creation of database and processes for documentation. Fourth World peoples are responding to their experiences and to structures of domination by employing tactics of resistance. Some of their tactics revealed through my analysis include the expression of an Indigenous identity, formation of networks of solidarity, education, international activism, use of the media, and the use of essentialist identities and images of ‘authenticity’ as political tools. Since the 1980s, it has been recognised by anthropologists that culture and traditions are often “invented” and ‘custom’ can be “a political resource for burgeoning national elite who are sometimes far removed from indigenous practices.”5

Forming alliances with environmental groups is another Indigenous tactic of resistance. This chapter will examine the complexities and ambiguities in these alliances. In particular, this chapter is interested to explore the sometimes uneasy alliance between environmentalists and Indigenous peoples as they each seek beneficial policy outcomes. I use CBD discussions as an example. I attempt to understand the subtleties of these alliances, and the conflicts which sometimes emerge between environmentalists and Indigenous Peoples in policy debates related to biological resources. I demonstrate that Bioprospecting and Indigenous ‘Ways of Resisting’ 202

different ways in which Indigenous groups construct their relations with land, may help explain some of the conflict with environmental interests.

I also look at what some Indigenous peoples, including Aboriginal author Marcia Langton, have to say about these alliances with environmentalists. Langton6 believes many conservation groups privilege the commercialisation of nature over Indigenous interests, a situation she terms somewhat disparagingly as “environmental racism”. Environmentalists often allude to Indigenous imagery and relations to land when promoting conservation strategies.7 Essentialist, paternalistic environmental literature emphasising innate Indigenous wisdom and links with nature, or ‘Mother Earth’, have been popular in recent years.8 Indigenous peoples also have sought often to stress links to their land through use of the term ‘Mother Earth’, and the term regularly appears in Indigenous literature and Indigenous political declarations. Other Indigenous peoples such as Maori academic Linda Tuhiwai Smith9 voice scepticism about such “mystical, misty-eyed discourse”, instead, asserting that “our survival as peoples has come from our knowledge of our contexts, our environment, not from some active beneficence of our Earth Mother”. I conclude that, regardless of how Fourth World peoples construct their political identities, too little has been done in substantive policy work to address their ongoing concerns over access and control of biological resources, which they maintain they have a birth right interest in.

Before going on to discuss the issues I have outlined here, it is appropriate to first contextualise the concept of ‘Fourth World’, and the relations between these Nations and their encapsulating states.

The Concepts of ‘Fourth World’ and ‘Indigenous’

Indigenous author Franke Wilmer observed that many theorists, especially those in international relations, while focusing on one conventional Western model of international power and sovereignty, have failed to understand the complexity of the relationship between ‘undecolonised’ Fourth World Nations and the states within which Bioprospecting and Indigenous ‘Ways of Resisting’ 203

they exist.10 More recently, ‘undecolonised peoples’ have been challenging the normative assertion that sovereignty is a right assigned only to states adhering to the European model.11 Within this context, I demonstrate that colonial and settler state administrative strategies, however destructive, have not managed to completely disempower Indigenous peoples and their claims of connate (birth) rights to resources and knowledge they identify as their own.

The very political areas of Indigenous rights to self-determination and political participation are central to debates on bioprospecting, which address the issues of access to biological resources, benefit sharing and Indigenous intellectual property rights. These are issues that have not adequately been addressed by the states that encapsulate Fourth World peoples. To clarify, Fourth World Nations are those Indigenous Nations encapsulated within dominant settler states due to the legacies of colonialism. The term ‘Indigenous peoples’ is used in this thesis, as it is by many Indigenous peoples themselves, to symbolise an ‘internationalised’ experience and struggle by colonised peoples, and is identified here as an important tool for resistance, particularly in the international arena.

Indigenous peoples within the Fourth World have been constructing a self- understanding that is empowering for their Nations, as they assert their ‘Indigenity’. This understanding also serves notice to their encapsulating states, and the international community, that they are active participants in the policy arena. The terms ‘Fourth World’ and ‘Indigenous’ are central to this empowerment process. Historically, the concept of ‘Indigenous’ has been posited in a very different way to the way Indigenous peoples use it. It is not unusual however, for a group to internalise a negative naming device, and then manipulate its use to symbolise empowerment. I will look now at the colonial history of the term ‘Indigenous’.

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Construction of the Indigenous Other

Although knowledge of the non-European was well established in Europe since 1492, the eighteenth century ‘discovery’ of new lands and peoples in the Pacific brought a new wave of excitement through Europe. Taken in context, this interest can be attributed to Enlightenment interpretations of authentic ‘ways of knowing’ and ‘ways of owning’. The authoritative ideas of the Enlightenment were of reason, rationality and objectivity; of private property; and of a mechanical nature that must be exploited as a resource to meet commercial and industrial needs.12 European ‘Western’ science was considered a valid yardstick for measuring civilisation, and Bacon’s imagery of slavery, control, and the mastery of nature extended to colonial relations between Europeans and non- Europeans.13

Colonisation, the ‘exotic’ Other, and the exploitation of nature were therefore linked during the Enlightenment. However, Enlightenment thinking in Europe also challenged the ideology of domination, prompting some leading thinkers to write provocative, though sometimes contradictory, commentaries. The existence of the ‘exotic’ non- European Other raised the question amongst these intellectuals of what it meant to be European. Eighteenth century French philosopher Raynal (1713-1796) argued that, as ‘natives’ are closer to nature, they are morally superior to Europeans.14 Yet Raynal also preached the positive moral value of colonial trade, industry and the exploitation of nature. He clarified his position by explaining that colonialism could not be justified and legitimised except when land is uninhabited, inefficiently exploited, or where the spread of ‘civilisation’ would be beneficial.15 His was a pragmatic response to the realisation of how important colonial trade was to European prosperity, and he therefore recognised a need to portray commerce as a positive ethical value.

Rousseau (1717-1778), another French Enlightenment philosopher, was more critical. He portrayed the non-European as the ‘noble savage’, living a better and happier ‘natural’ life than the European.16 Colonialism, for Rousseau, was a mechanism for perpetuating inequality. Yet another French philosopher, Diderot (1713-1784), painted an image of the Bioprospecting and Indigenous ‘Ways of Resisting’ 205

land of ‘native’ people as a utopia.17 With colonisation, the ‘authentic’ morality of the ‘noble savage’ became a product of Romantic intellectuals, searching for a pre-modern purity in Indigenous peoples, especially Amerindians.18 According to these commentators, slavery and colonisation were an affront to the Enlightenment idea of universal rights for human beings.

In response, the problem of how ‘legitimately’ to justify colonialism was dealt with by grounding rights in the possession of humanity.19 This involved defining who could be considered ‘human’, and was achieved through reference to ‘race’ and the idea of human progression through stages, from hunting to pastoralism, agriculture and then commerce.20 As the European was better able to exploit natural resources than the non- European, colonialism was justified.

The enduring image of the non-European was one constructed through a European lens. Colonisers exaggerated the difference between ‘races’, portraying themselves as reasoned and civilised, and the colonised as ‘stone age’ and ‘primitive’.21 The brightness of an Enlightenment progressive future was compared to the darkness of the past.22 Hence, in the traditional corners of the world, there was perceived to be a lack of reason; a darkness. The ‘Cartesian contribution’ to the image was the construction of a gulf between humans (Europeans) and nature.23 For Europeans, their separation from nature was confirmed and reinforced by colonialism, as was the continuity between non- Europeans and nature. Informed by what Plumwood24 calls a “rationalistic dualism”, civilised Europeans had a duty to bring rationality to ‘uncivilised’ peoples and nature, by subjecting them to conquest and control by Empire. Colonialism was, in Powers’25 assessment, an integral part of the Enlightenment project. An understanding of the non- Western world was constructed through this interpretative grid, in much the same way that development is today.

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The Colonial Disempowerment of Fourth World Nations

The first vanguard of colonial power generally comprised a small number of explorers, traders and soldiers.26 Due to their numerical vulnerability, and uncertainty concerning their authority to claim the land, colonisers often signed treaties with Indigenous peoples. Those documents ranged from the hastily crafted to the more complex, such as the bilingual Treaty of Waitangi (1840) between the British crown and the Maori of Aotearoa New Zealand.27 Treaties also were signed extensively with Nations throughout Canada and the United States. While the treaties were primarily aimed at demonstrating the legitimacy of colonial territorial claims before the world community, they were also recognition that Indigenous peoples had legitimate claims to their traditional territories.

According to Canada’s Indigenous Nations, the Numbered Treaties have had the effect of confirming the political integrity and therefore sovereign status of Indigenous peoples.28 Their position has strong legal backing. As outlined by McHugh, many of the First Nations of Canada signed Treaties that are legally recognised within Section 35 of the Constitution Act 1982 as affirming Aboriginal Treaty rights.29 Treaties signed in the United States also had the effect of confirming the sovereign status of Native American tribes.30 The Treaty of Waitangi, according to Maori activists, does not give Maori peoples specific rights. Instead, it gives Pakeha (descendants of European colonisers) certain rights. “If we take away the Treaty, the legal right of non-Maori people to live in this country is removed with it”.31 Yet the treaties have been routinely ignored by the colonisers, who went about exploiting accessible land without regard to Indigenous interests. The image of the non-European as backward and uncivilised justified the breaking of treaty agreements.32

When colonisers encountered small Indigenous groups with no obvious political or legal systems, the assumed superiority of European civilisation justified the occupation of their lands.33 These peoples were considered the least civilised; as representatives of the very first stage of human progression. As these people, including the Northern First Bioprospecting and Indigenous ‘Ways of Resisting’ 207

Nations of Canada and Aboriginal Nations in Australia, were deemed by the colonisers to have no substantive claim to their land, treaty negotiations were never a consideration.34 Hence no treaty was ever signed in Australia.

With the arrival of the first penal fleet in 1788, Australia was said to be ‘settled’ rather than ‘conquered’. Official British policy was that British sovereignty over potential new colonies could be enacted only with the consent of any natives that occupied the land. If the land was found to be unoccupied it could, however, be ‘taken’ for the Sovereign. Captain Cook, though, ignored official policy when he claimed possession of Australia for the British Crown in 1770 without even landing on the mainland and, therefore, without proper consent.35 The land was declared terra nullius as it was deemed by Cook to be uninhabited. According to the notion accepted at that time in Europe and articulated by Blackstone (as discussed earlier in Chapter Four), a land that had not been ‘cultivated’ could not be considered owned ‘property’ and, therefore, was open to settlement.

This doctrine adopted in Australia—terra nullius—was possibly the most unjust instrument of dispossession. It created the legal fiction that this was an uninhabited land when ‘invaded’ in 1788. The colonisers determined “that Aboriginal people had the legal status essentially equivalent to fauna—roaming over the landscape and having no concept of ownership of the land”.36 This is a topic that will be covered in the next Chapter.

As direct colonial control ended, settler states assumed administrative control of the Indigenous Nations; a transition had occurred for the internal colonies from the ‘age of colonisation’ to the ‘age of administration’.37 As part of this administrative process, many Indigenous peoples were removed from their lands and placed in ‘reservations’ and ‘missions’. The United States government subdivided Indian reservations into small allotments for individual use, with the intention that native Americans should assimilate more quickly and “pursue civilised agricultural pursuits as opposed to traditional means of existing by hunting, fishing and gathering”.38 The United States Government Bioprospecting and Indigenous ‘Ways of Resisting’ 208

ultimately held title to the allotments, as the Indigenous occupants were deemed incapable of competently owning and managing land, and residual land from the allocation process was deemed ‘surplus’ and designated to the state.

In the Australian colonies, it was widely accepted by the settlers that extinction was the inevitable fate for ‘primitive’ peoples; therefore, protectionist policies were implemented to manage the process of Aboriginal extinction. In settled areas, particularly around Sydney, Aboriginal peoples had already been reduced to a marginal status.39 In remote areas, reserves were established that were run mainly by missionaries. Aboriginal peoples were removed from their traditional lands and detained and institutionalised in these reserves. Many disparate groups were placed together on land that was not their traditional country. Under the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 in Queensland, reserves served almost as prisons, controlling movement in and out and preventing Aboriginal peoples from maintaining traditional relationships with their country.40 Not coincidentally, these reserves provided free labour for the cattle industry, as the men were routinely sent out to work as stockmen, and the women were used as domestic maids.41 To be institutionalised so, Aboriginality needed to be defined and its members classified, mainly according to skin tone. Children of mixed descent were removed and, again, institutionalised separate from their family and country.42 Under protectionist policies, Aboriginal peoples were dispossessed of their land, culture, language and traditions, but still they persisted as a people.

Some Aboriginal groups remained in their country relatively undisturbed, as their very remoteness, for example, in semi-arid country, precluded European occupation. More white settlers and prospectors, however, inched their way out further away from the coastal zones, bringing them into greater contact, and often conflict, with the native inhabitants.43 As the vast continent, initially described by the colonisers as barren and inhospitable, began to reveal some of its mineral riches, it became more attractive to European interests. Access to this hitherto ‘useless’ land became imperative for economic development. By the 1920s, policy makers were also beginning to realise that Aborigines were not dying out. Instead, their numbers were increasing!44 Secure access Bioprospecting and Indigenous ‘Ways of Resisting’ 209

to land and resources required a cooperative or complacent native population. To achieve this, the Australian government introduced, in the early 1950s, its official policy of assimilation. The goal was to Europeanise the Aborigines,45 to instil the values of individualism, private property, and ‘progress’. Aboriginality was further problematised by the settler governments, and new programs and institutions were introduced to deal with the ‘Aboriginal problem’.

Fourth World peoples in settled areas and occupied areas were managed tightly by governments. Assimilationist policies undermined their languages, traditions and customs.46 Those in more remote areas were geographically protected from tight administrative control. The current legacy of these differing experiences for remote and settled area peoples, is that settler state governments find it easier to deal with the demands of Indigenous groups in remote areas than those groups who have had a long history of highly competitive demands on their land and resources.

Remote Indigenous peoples were viewed by the settler state governments as peoples determined to live outside the modern world, while their lands were deemed “too remote, too unattractive, too impenetrable, and too poor to attract much interest”.47 Included were the Northern First Nations of Canada and some Aboriginal Nations in Australia. They remained largely unaffected by the settler state until after World War Two (WWII).48 Post-war advances in transport and telecommunication technology made remote areas less remote, and the world wide drive for development made these resource rich areas more attractive. So emerged the ‘age of the multinational corporation’49 and policies aimed at integrating remote area peoples. Coates50 argued that these policies were driven not only by the desire to tap into the resources of remote areas, but by ‘liberal guilt’ and the realisation that Indigenous people were being left behind.

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Indigenous Practices of Resistance

Governments within the encapsulating states assumed that all Indigenous peoples would soon succumb to the ‘civilizing power’ of property rights; abandoning communal approaches to land. To the dismay of the encapsulating states, these integrationist policies have not resulted in the surrender of ‘Indigenity’.51 Fourth World Nations, as internal colonies within modern states such as Australia, have continued to exist as persistent cultural systems, withstanding integrationist and assimilationist policies.52 They have survived the loss of land, language, dance, music and art associated with these policies.53 Spicer believes the persistence of these peoples to be a product of state oppression, which either destroys National identity or reinforces it.54 Indeed, oppressive assimilation efforts have generated in Fourth World Nations a persistent sense of injustice that emerged from the 1950s with claims for land rights, self determination and a recognition of their plight. Coates55 reminds us though, that Indigenous peoples did not just suddenly find their voice in the 1950s: “Rather, select groups of non-indigenous peoples and countries discovered how to hear the words and pleas that had so often been spoken”.

Indigenous peoples world wide, have been reasserting their Indigenousness. They are reviving language, music, art, dance, and other forms of traditional knowledge.56 While they may appear to have been assimilated into, and even enjoy participating in, the dominant cultures, apparently foregoing their own, theirs are living cultures, dynamic and adaptable.57 This contests the notion of non-Indigenous observers that an Indigenous culture is no longer valid because its members are not considered ‘traditional’. To be Indigenous, or in Churchill’s words “indigenist”, is to identify oneself with “the traditions—the bodies of knowledge and corresponding codes of values—evolved over thousands of years by native peoples the world over”.58 An Indigenous person may also be of mixed race and thus not appear as an obvious member of an Indigenous Nation, but have a strong Indigenous identity, and an equally strong impulse for resistance. Bioprospecting and Indigenous ‘Ways of Resisting’ 211

Fourth World Nations are resisting the political, social and economic legacies of colonialism. They continue to negotiate land claims and resource rights with state governments. Many Maori, for example, perceive their rights and sovereignty to be under threat from ‘introduced’ proprietary rights granted under the Patents Act. Maori rights, or “authority”, over natural resources including “land, forests, fisheries and other properties” are acknowledged in the Treaty of Waitangi, but have largely been ignored in practice, making the treaty process in Aotearoa New Zealand far from complete.59 From this position, Maori peoples have consistently scrutinised state and international agreements and legislation that they perceive to be a threat to their “rights as tangata whenua—the people of the land New Zealand”.60 Currently, there is a claim by Maori before the Waitangi Tribunal (WAI 262) challenging the Crown on precisely this issue.61

Against this background, Indigenous peoples are now being encouraged by industry and government to participate in bioprospecting of their knowledge and resources. It is often portrayed to be a means of propelling them into the capitalist economy.62 Contrary to some popular beliefs, Indigenous peoples are not all opposed to development or participation in the capitalist system, a point that disturbs some environmentalists and sympathisers of Indigenous peoples.63 On this note, there is well meaning but perhaps some paternalistic opposition to Indigenous peoples’ participation in bioprospecting and patenting of their resources and knowledge by those who believe that capitalism will have a negative impact on traditional lifestyles. Past colonialist practices are referred to in arguments that urge Indigenous peoples to exercise caution when considering contractual agreements, which generally outline conditions, payments, royalties and so on. Such practices, it is argued, have been shown, in the past, to present potential problems for Indigenous peoples. 64

Complexities Inherent in Engagement with Bioprospecting

A key assumption underlying arguments in favour of Indigenous involvement in bioprospecting is that such prospecting will increase employment and economic Bioprospecting and Indigenous ‘Ways of Resisting’ 212

independence. The possibility of reducing dependence on state welfare by Indigenous peoples is undoubtedly an attractive prospect for policy makers. The transformation from a largely subsistence lifestyle to that of a wage earner, however, does not ensure enhanced economic independence and self-reliance. As noted by Holden, the introduction of wage labour into Australian Aboriginal communities has proven unsuccessful for numerous, mostly cultural, reasons. It has not, therefore, reduced pressure on the Federal purse.65

Bioprospecting may, however, compare favourably with other forms of economic development. Indigenous peoples’ involvement in the capitalist economy through bioprospecting will not necessarily replace traditional economies. It may actually aid in the perpetuation of peasant and hunter-gather lifestyles, if income is in the form of royalties. Such income negates the necessity of participating in the wage system, and allows time for subsistence activities such as hunting and gathering, and the pursuit of other cultural activities. Royalties could fulfil a role similar to the provision of state welfare, which has, according to Holden, facilitated the perpetuation of traditional activities among many Aboriginal communities in Australia.66 Nevertheless, Indigenous peoples may not wish to commodify their knowledge and resources. If a particular community decide that they do wish to do so, a problem arises as to who among them makes that decision, and importantly, who controls any economic benefits arising from bioprospecting projects. In Third World countries, an ‘elite’ often creams off royalties from resource sales, and this leaves little benefit for the masses.67

A second assumption underlying arguments in favour of Indigenous involvement in bioprospecting, as articulated by Hunn, is that the disclosure of knowledge and resources by Indigenous peoples is empowering—for both non-Indigenous and Indigenous people.68 Hunn believed that retaining secrecy around Indigenous knowledge negates the power of that knowledge, while sharing knowledge increased the prospect for cultural survival and, accordingly, choices for the future.69 By association, a third assumption is that existing control instruments are adequate for protecting knowledge and resources, as intellectual property is an increasingly valuable Bioprospecting and Indigenous ‘Ways of Resisting’ 213

asset in the current transition to a global knowledge-based economy. Of equal importance is, then, the ability to maintain control over the use and distribution of knowledge. These are issues for Indigenous peoples to contemplate carefully when considering bioprospecting agreements or when they discover their resources and knowledge have been pirated.

To address the legal and policy gaps created by the incompatibility of Western IPR regimes and customary law, sui generis systems for protection of Indigenous knowledge have been proposed in the form of registration of innovations and innovators, inventories, and the documentation of knowledge. It is important then, to assess the credentials of such proposals, particularly documentation, for the effective protection of Indigenous knowledge. Documentation of knowledge systems has commenced recently in Third World countries, and these processes many serve to inform Fourth World peoples of the merits, or otherwise, of knowledge documentation.

Documentation, Intellectual Property and Biological Resources

Computerisation of biological resource specimens and related knowledge is an objective of the Global Biodiversity Information Facility (GBIF)70 and the All Species Project.71 In Africa, computerised inventories of herbarium specimens and information concerning their use, including medicinal and food uses, are being conducted in the form of the Southern African Botanical Diversity Network (SABONET) and the Pretoria National Herbarium Computerised Information System (PRECIS) database.72 In 2002, Brazil’s environmental agency (IBAMA) established a research centre to document Brazil’s medicinal plant species and place the information on a database. There is a perceived need to prevent biopiracy, and the potential income from commercialisation of the resources and knowledge which IBMA estimated to be worth “billions of dollars annually”.73 To date the project has documented around 300 plants, which is believed to amount to less than 10 per cent of the total medicinal plants in Brazil.74

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Meanwhile in India, a Traditional Knowledge Digital Library (TKDL) is being established. It will contain more than one million pages of information on Ayurveda and other traditional medicines.75 In several states in India, large scale Community Biodiversity Registers (CBRs) and People’s Biodiversity Registers (PBRs) are being prepared. An Indian NGO, the Society for Research and Initiatives for Sustainable Technologies and Institutions (SRISTI) has developed traditional knowledge and innovation databases.76 It is considering making one of those databases, the Honey Bee, first established more than 10 years ago,77 publicly available on the internet.78

For communities and Nations concerned about the preservation of knowledge for future generations, documentation has obvious appeal. During 1998-99 the World Intellectual Property Organisation (WIPO) conducted a study into mechanisms for protecting Indigenous peoples intellectual property rights (IIPRs) by asking peasant and Indigenous peoples what their needs in this area were.79 The Organisation noted that the fear of loss of knowledge, particularly through the ‘death’ of language, and the need to protect knowledge and innovations were issues that arose continuously in discussions with Indigenous peoples.80 Documentation was considered a viable answer to these concerns, leading WIPO to offer training in documentation procedures through the internet.

Momentum is also building within other multilateral organisations, governments, industry and NGOs for documentation, advocated in a language suggesting empowerment for the original knowledge holders. WIPO is also working closely with the UN Conference on Trade and Development (UNCTAD) on the utilisation of peasant and Indigenous knowledge.81 Some insight is given with regard to WIPO’s provision of advice to states. It advises on ways to “legally exploit their traditional knowledge and expressions of culture,” to assist those countries yet to establish laws on access, benefit sharing, exploitation and intellectual property protection.82

According to Bhatti, the primary idea behind the rush to document and place peasant and Indigenous knowledge and innovation in accessible databases is ostensibly the need Bioprospecting and Indigenous ‘Ways of Resisting’ 215

to establish ‘prior art’.83 Patent applicants are obliged to acknowledge and disclose prior art to the patent office.84 When assessing patent applications, patent offices worldwide should check existing databases to establish if specific information on a patent application is a part of the established knowledge systems of peasant and Indigenous peoples. If prior art is established by this means, even if the applicant has not disclosed it, then a patent cannot be taken out. Patent applications such as those for tumeric and the ayahausca vine have already been rejected as flawed because published descriptions of the use of these plants were “known and available” before the patent applications were filed.85 The patents were rejected then, not because the peasant and Indigenous knowledge and innovations were recognised per se, but because they constituted ‘prior art’. Indigenous knowledge can only be assessed through the lens of dominant knowledge and ownership systems.

The burden is placed on knowledge holders to protect their knowledge,86 and as most peasant and Indigenous knowledge is not written down or published, it is vulnerable. Its practitioners are unable to appeal to a system where only written and published knowledge and innovations are recognised; where text-based knowledge is privileged over orally transmitted knowledge. Another very real concern is that knowledge held in databases can also be appropriated, altered and transformed into a new form ‘coded’ in scientific language and protected by legal jargon that is not easily deciphered.87 The effectiveness of documentation of knowledge and innovations as a protective mechanism is therefore doubtful, even for defensive purposes, as the main purpose of inventories is to provide access.

Further, in the language of the European Chemical Industry Council (CEFIC), inventories will “fixate” knowledge. This reflects a perception that knowledge is stagnant and unchanging, condemns it to the past, and denies it a living history.88 Advocate for Maori peoples’ rights, Robert McGowan, is also concerned that knowledge, once documented, does not retain spiritual elements, rarely includes ritual, and generally reflects the values and culture of those carrying out the documentation process.89 This is most often not the Indigenous owners of the knowledge. As the Bioprospecting and Indigenous ‘Ways of Resisting’ 216

knowledge is placed in a language foreign to the original owner(s), the institutionalisation of knowledge can indeed be disempowering for Indigenous peoples, and can also be an affront to customary law, which determines access rights to resources, knowledge and innovations. Those within communities choosing to utilise WIPO’s online documentation procedures are inevitably the educated representatives of a community who have the appropriate language and computer skills, but, however, may be acting more in alignment with the wider economic community than their own community.

Vogel is an advocate of documentation as a mechanism for the defence of IIPR. He believes ‘trade secrets’ are effective for protecting knowledge and innovations documented within databases.90 A trade secret can protect confidential information, though not inventions. They are deemed to have business value,91 and can last forever, or as long as the individual or company controlling the information can prevent others from accessing it.92 Knowledge held as a trade secret is not open to access as patented knowledge is. With a trade secret, the prerogative to trade is held by the possessor of that knowledge. The contrasting requirements for trade secrets (non-disclosure) and patents (full disclosure) indicate why trade secrets are inappropriate for protection of pharmaceuticals, and suggest it would also be an inappropriate mechanism for protecting knowledge and innovations contained on a database that can be accessed. Yet Vogel’s proposal for the use of trade secrets for databases is based on the idea that access could be restricted, with each community having their own file within the database.93 To prevent the bidding down of prices evident in most price wars, a cartel of participating countries could set an acceptable price for the resources and knowledge. Access to individual trade secrets could then be negotiated through a Material Transfer Agreement (MTA) and benefits shared between the respective government and other cartel members.

This is a mechanism likely to be supported by the Cancun Group, a group of 14 of the world’s 17 mega-biodiverse countries formed at a meeting in Cancun, Mexico in 2002, and by the ‘Like-Minded Mega-Biodiverse Countries’ of the Third World. The Cancun Bioprospecting and Indigenous ‘Ways of Resisting’ 217

Group comprises Bolivia, Brazil, China, Costa Rica, Colombia, Ecuador, India, Indonesia, Kenya, Malaysia, Mexico, Peru, South Africa and Venezuela.94 Sharing similar views and interests on the issue of bioprospecting, these Third World states are using their collective strength to influence the international community. Yet their focus is on securing the rights of mega-biodiverse developing states, making them as willing as developed states to utilise the resources and knowledge of peasant and Indigenous peoples. First and Third World states do not have the political will to represent the interests of Fourth World peoples encapsulated in developed states or of peasant and Indigenous peoples in the Third World. Fourth World peoples have taken up the challenge to represent their own unique interests, hitherto largely ignored in academic and development discourse.

In sum, Databases of documented knowledge and registers of practitioners are ‘solutions’ based on knowledge as a commodity. The ‘benefits’ of sharing these commodities are discussed either in monetary terms or in non-monetary terms that imply a universal desire for ‘development’ in line with a Western model; one, however, that may not always be appropriate.95 The assumption underlying documentation is that peasant and Indigenous peoples always wish to commercialise their resources, knowledge and innovations. This assumption brings into question the effectiveness and validity of Indigenous representation.

Education and Representation

In representing themselves on the state and international political stage, Indigenous peoples present their spiritual, social, cultural, economic and political connections to their lands, territories and resources, often with reference to ‘Mother Earth’. In turn, the international community has responded by gradually integrating Indigenous perspectives and needs. The norms defining international law and standards are accommodating, at least to some degree, of the values of Indigenous peoples. This enables Indigenous peoples to represent the views of their respective Nations. However, in Semali and Kincheloe’s assessment, non-Indigenous people representing the non- Bioprospecting and Indigenous ‘Ways of Resisting’ 218

literate ‘natives’ at international and State fora “tend towards generalisations, simplifications, or half-truths”.96 Literacy is an important tool for Indigenous participation as the literate ‘native’ is privileged. But education can also be a mechanism for control of what Indigenous peoples learn, ensuring that the needs of the industrialised settler states are paramount.97

In accordance with Foucault’s power/knowledge thesis,98 it is clear that colonial schooling systems indoctrinated Indigenous peoples with the ‘superior’ knowledge of modernity.99 There, literacy represented progress and development. It disrupted cultural mores by disconnecting peoples from ‘tradition’.100 School also meant a break from nature, particularly with administrative programs forcing the resettlement of communities and individuals, where peoples were forced to live under alien arrangements, in concentrated communities. This led to the breakdown in customary relations with nature and with culture. Western education, under these conditions, precipitated a separation of learning from nature and from one’s territory.

Western education also fragments holistic systems of knowledge. It separates Indigenous children from the learning environment within their community, and leads to years of formal Western education.101 There is little education about their own language and traditions. Maurial referred to this ‘education’ process as “disindigenization or denial of Indigenous knowledge”, but acknowledged that this negative process has been countered somewhat by increased resistance by those Indigenous ‘elite’ educated in the Western system.102 To some extent, they have been able to utilise the knowledge they acquired through non-Indigenous schools, using the language of the colonisers to claim their ‘rights’.

While education and assimilation strategies have deprived Indigenous peoples of their lands, cultures, knowledge and language, those same strategies have, nevertheless, provided Indigenous peoples with the tools to participate and challenge the dominant sections of society.103 Therefore, despite the marginal political and economic position occupied by Fourth World peoples, they are able to challenge the normative assertion Bioprospecting and Indigenous ‘Ways of Resisting’ 219

accepted within global political and economic system that states, not Indigenous peoples, are the competent authority to determine the best use of natural resources. State bureaucrats and politicians can nevertheless manipulate the representative environment in order to contain and control action by Indigenous representatives through such means as funding. Organisations representing Indigenous Nations within developed countries do enjoy state funding, even though that funding can affect the independence of the organisation and create financial dependency. Even those who are not funded, or funded very little, are regulated by governments who effectively determine who can represent a community, by giving chosen Indigenous representatives the authority to speak on behalf of “a unified and essentially undifferentiated constituency”.104 This is rarely a legitimate form of Indigenous representation. Weaver refers to this as “representativity” which can be attributed or denied.105

Emergence of Indigenous Peoples as International Actors

In 1987, the World Council of Indigenous Peoples, (formed in 1975), became the first of 11 NGOs representing Indigenous peoples to receive consultative status at the United Nations,106 though their influence on the international policy process was effected long before this date. The legal ‘inferiority’ of Indigenous peoples at the international level was evident in Article 22 of the 1919 League of Nations Covenant and Article 73 and 76 of the United Nations Charter. Each appointed advanced States as ‘guardians’ over Indigenous peoples so that these peoples may develop:

Writers on international law and colonial experts often called on the wardship principle in an effort to justify harsh government programs of cultural change directed against tribal peoples. This so-called legal principle reflects the grossest ethnocentrism in that it considers tribal peoples to be incompetent or even retarded children. It defines the relationship between tribal peoples and the state to be that of a benevolent parent-guardians to a ward ... the state is under a strong obligation to make all tribal peoples share in the benefits of civilisation – that is, in health, happiness, and prosperity as defined primarily in terms of consumption.107

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Such authority also awarded advanced countries the legitimacy to exploit the land and resources of Indigenous peoples. The latter though, view them as injustices, which have only recently been acknowledged as such. Incremental recognition of Indigenous peoples’ rights have slowly emerged at the international level over the past 30 years or more, particularly within the United Nations. This is manifested in the recent activities of a number of UN instruments and agencies.

In that light, the United Nations Charter has become a focus of Indigenous activism, as the Charter affirms the right of all peoples to self-determination.108 But, in international law, the right to self-determination only refers to the rights of states to sovereignty and independent statehood.109 Yet Indigenous peoples have successfully challenged the premise that the state is the highest form of human association, so that now self- determination in international law upholds Fourth World Nations’ rights to autonomy and participation in the political process of the encapsulating state.110

Inclusion in International Discourse The international response began formally in 1970. The UN Commission on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities ordered a study into the problems of Indigenous peoples, which was completed in 1981.111 In the following year, the UN Economic and Social Council established a Working Group on Indigenous Populations to establish standards on the cultural and IP rights of Indigenous peoples. The Working Group produced the United Nations Draft Declaration of the Rights of the World’s Indigenous Peoples. Article 24 of the Draft Declaration states that: “Indigenous peoples have the right to their traditional medicines and health practices, including the right to the protection of vital medicinal plants, animals and minerals.” Article 26 establishes the right of Indigenous peoples to “own, develop and control traditionally owned or used resources”.112 Article 29 states that Indigenous peoples are:

entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural Bioprospecting and Indigenous ‘Ways of Resisting’ 221

manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of flora and fauna, oral traditions, literatures, designs and visual and performing arts.113

In 1991, the Economic and Social Council Working Group, which meets annually, began work drafting a set of principles to achieve Indigenous peoples’ rights as part of a proposed international convention.114

The International Labor Organisation (ILO) is another UN agency that has considered Indigenous rights. The 1957 Indigenous and Tribal Populations Convention (ILO 107) was revised in June 1989 due to pressure from Indigenous Organisations. The revised version ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169) rejected, “the paternalistic tone of earlier ILO references to indigenous peoples, and redirects national policies away from integration and toward recognition of indigenous self-determination”.115 As the product of an organisation focused on labour, ILO 169 gives only minimal attention to IPRs, in providing for the safeguarding of Indigenous peoples institutions, property and environment (Article 4), social, cultural, religious and spiritual values (Article 5), and customs and customary law (Article 8).116 The main strength of ILO 169 is its affirmation of Indigenous peoples’ collective rights, as opposed to the rights of individual Indigenous people.117 Although it has been criticised by Indigenous peoples and others for its generalist provisions, unlike the Draft Declaration on the Rights of the World’s Indigenous Peoples, which incidentally also recognises collective rights, ILO 169 is legally binding on ratifying countries. Many remain sceptical though of the political will of those ratifying countries to rigorously enforce the provisions to develop frameworks, partnerships or other ‘special measures’ to protect Indigenous culture.118

Agenda 21 is another document that refers numerous times to Indigenous peoples and their knowledge systems. It emerged as one of the principle mechanisms for inducing a transformation to sustainable development from the 1992 UN Convention on Environment and Development (UNCED), also known as the Rio Earth Summit. The most relevant statement of Agenda 21 is Chapter 26, Recognising and Strengthening the Role of Indigenous Peoples and their Communities. It encourages states to empower Bioprospecting and Indigenous ‘Ways of Resisting’ 222

Indigenous peoples and recognise their values, knowledge and environmental management skills. Section 26.6(a) of Agenda 21 calls on states to: Develop or strengthen national arrangements to consult with indigenous people and their communities with a view to reflecting their needs and incorporating their values and traditional and other knowledge and practices in national policies and programs in the field of natural resource management and conservation and other development programmes affecting them.

The Convention on Biological Diversity (CBD), another product of the Earth Summit, also has important provisions relating to Indigenous peoples as was discussed in detail in Chapter 5 of this study. The United Nations Conference on Trade and Development (UNCTAD) launched the BIOTRADE Initiative at the Third CBD Conference of the Parties (COP3) in November 1996.119 The UNCTAD BIOTRADE Partnership/Initiative is aimed at assisting developing countries to produce value-added products and services through the exploitation of biodiversity.120 The UNCTAD Plan of Action, initiated in 2000, includes reference to the protection of traditional knowledge. According to the Plan, UNCTAD in co-operation with WIPO and the WTO, and in accordance with the objective and provisions of the CBD and TRIPS, are working on mechanisms for the protection of traditional knowledge, innovations and practices of local and Indigenous peoples.121

Prior to this, in 1993, Indigenous rights were also addressed in Human Rights Discourse. Mrs Erica-Irene Daes, the Special Rapporteur of the Commission on Human Rights Sub- Commission on Prevention of Discrimination and Protection of Minorities prepared a report titled Study of the Protection of the Cultural and Intellectual Property of Indigenous Peoples, and, in 1995, The Final Report on the Protection of the Heritage of Indigenous People.122 The Principles within the Final Report recognised the connection between Indigenous peoples knowledge, land and territories and the need to obtain free and informed consent from the traditional owners as a precondition for access, and before patents and other legal protection is sought. The Final Report Guidelines for academic institutions and industry called for a moratorium on contracts made with Indigenous peoples “until Indigenous peoples and communities themselves are capable of supervising and collaborating in the research process”.123 Bioprospecting and Indigenous ‘Ways of Resisting’ 223

Much of the work on Indigenous issues is still in progress at the international level. The Draft Declaration on the Rights of the World’s Indigenous Peoples has not yet been endorsed by the Commission on Human Rights and the UN General Assembly, yet undoubtedly it has had a positive impact on the workings of the UN policy organs, as international moral awareness on Indigenous issues has been growing.124

The International Decade of the World’s Indigenous Peoples began in December 1994 and, since then, numerous UN Human Rights Bodies have addressed Indigenous peoples’ concerns on the control of knowledge, resources and land. The Universal Declaration of Human Rights states in Article 17 that: “Everyone has the right to own property alone as well as in association with others”, and that: “No one shall be arbitrarily deprived of his property”.125 Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) also declares the right of all people to “own property alone as well as in association with others”. In 1997, the Committee on the Elimination of Racial Discrimination (CERD) called upon States:

to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their land and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.126

Yet the international community and its representative bodies have also received criticism. In response to a November 2000 UNCTAD meeting in Geneva, Silvia Rodriguez Cervantes lamented the lack of imagination and “poverty of spirit and thinking about other types of action and tools that communities and indigenous groups could use to adequately control their resources and knowledge”.127 The only tool for protecting traditional knowledge under consideration were conventional IPRs, sui generis IPRs, or non-IPR sui generis rights, which are all legal tools.

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There has been growing support for the implementation of a new international agreement for the protection of traditional knowledge. However, it is clear that WIPO, the CBD, UNESCO, the WTO or UNCTAD are inappropriate bodies to facilitate such an agreement, as each would treat it as a trade issue. The values expressed by Indigenous peoples do not conform to the values expressed within these organisations. A new and fresh approach is necessary. Indigenous participants at the UNCTAD Expert Consultation meeting proposed a sub-working group on traditional knowledge be established under the UN Working Group on Indigenous Peoples, providing peasant, fisherfolk and other local communities were able to participate.128

There is scepticism amongst some Indigenous commentators. The emerging international norms, in Hurtado’s129 assessment, promote access to natural biological resources, leaving Indigenous peoples ‘entangled’, forced to negotiate and eventually permit access. From this perspective, Indigenous peoples have been given a seat at the negotiating tables, but, again in Hurtado’s assessment, it is more the case that this is occurring to talk them into submission.130 Adoption of the anthropocentric language of ‘sustainable use’ best exemplified by the Convention on Biological Diversity (CBD), as discussed in earlier chapters, is a tool to secure access. By referring to Indigenous peoples as ‘custodians’ or ‘stewards of nature’, their interests are seen to be recognised and their participation in negotiations assumed. However, it also raises the prospect of Indigenous peoples becoming entangled in a process dominated by exploitation.

Moreover, the support for Indigenous peoples in international fora such as the CBD is often qualified, and the rights to lands, territories and resources is primarily only recognised for those Indigenous peoples who are living a ‘traditional lifestyle’. The vast majority of Fourth World Peoples, however, are no longer living in this manner, largely as a result of various doctrines of dispossession. This raises the question; do all Indigenous peoples have rights to land and resources? Some Fourth World peoples are continuing to live in a largely colonial relationship with the state, while others are living in urban areas distant from their traditional land and devoid of knowledge of language, culture or country. From this position, urban Indigenous peoples find it very difficult to Bioprospecting and Indigenous ‘Ways of Resisting’ 225

sustain any claim to ownership rights over lands, territories, resources and knowledge. Granted, their present position within their encapsulating state is not of their choosing, but it is their reality.

The key point is, unified under the banner of Fourth World, Indigenous peoples have, since the 1970s, efficaciously gained a voice in international politics. As we shall see below, they have embraced the ‘language’ required to make them effective at international fora. This is most evident in their adoption of environmental terminology. To strengthen their position, they have been articulating their concerns in numerous Indigenous declarations in recent years, outlining their concerns and their interests within the general context of an Indigenous worldview.131 Through these statements they hope to influence international and state policy.

Indigenous Discourses of Resistance and Empowerment

The First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples (12-18 June 1993) was hosted by the Nine Tribes of Mataatua, in the Bay of Plenty Region of Aotearoa New Zealand. It produced the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples. The Declaration, submitted to the 1993 Session of the UN Working Group on Indigenous Populations,132 declared that Indigenous Peoples have a commonality of experience relating to the exploitation of their cultural and intellectual property, but are willing to share the same with all humanity providing their rights to control this knowledge are protected. An international conference on Indigenous intellectual and cultural property was subsequently held on November 27 1993 at Jingarrba, North Queensland. It produced the Jalayinbul Statement on Indigenous Intellectual Property Rights, which states Indigenous objectives similar to the New Zealand document.133 While making reference to ‘Mother Earth’, this statement also declares a willingness to share IIP with all humanity providing adequate and appropriate protection is afforded, and calls on states to implement legislation to protect IIPRs.

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The momentum for Indigenous participation thus increased. The declarations prompted, during 1994 and 1995, a series of regional consultations and meetings with peasant and Indigenous peoples to discuss IIPRs. These consultations were conducted by the United Nations Development Programme (UNDP) in Bolivia, Malaysia and Fiji.134 The Final Statement from the UNDP Consultation on Indigenous Peoples’ Knowledge and Intellectual Property Rights, Suva, Fiji (April 1995), referred to as the Suva Declaration, used stronger language than the preceding ‘Indigenous documents’. It reaffirmed that “imperialism is perpetuated through intellectual property rights systems, science and modern technology to control and exploit lands, territories and resources of indigenous peoples”.135 The Declaration supported the sentiments within the Commission on Human Rights Final Report on the Protection of the Heritage of Indigenous Peoples, which called for a moratorium on bioprospecting until appropriate protection mechanisms were in place. It also encouraged Indigenous peoples to record their knowledge in accordance with customary access procedures.136

In July 1999, a federation of 87 Indigenous peoples groups and NGOs produced another document. In part, it stated:

[W]e, INDIGENOUS PEOPLES from around the world, believe that nobody can own what exists in nature except nature herself. A human being cannot own its own mother. Humankind is part of Mother Nature, we have created nothing and so we can in no way claim to be owners of what does not belong to us. But time and again, western legal property regimes have been imposed on us, contradicting our own cosmologies and values.137

This statement also questioned the desires of those Indigenous Nations who want to commodify their ownership rights in nature by participating in bioprospecting for monetary or non-monetary benefits. Further, in emphasising the incompatibility of Western IPRs for protecting IIPRs, the statement also made some essentialist ‘generalisations’. For example, it stated that all “Indigenous knowledge and cultural heritage are collectively and accretionally evolved through generations. Thus, no single person can claim invention or discovery of medicinal plants, seeds or other living things”. Further, it stated that according to Indigenous spirituality, “all creation is Bioprospecting and Indigenous ‘Ways of Resisting’ 227

sacred”, on the assumption that there is ‘an’ Indigenous spirituality and worldview common to all Indigenous peoples.

While this image can be empowering for Indigenous peoples, particularly on the international stage, it can also be hazardous. Hurtado138 has little faith in the Indigenous representatives and non-Indigenous advisors who portray these images as representations of Indigenous interests in the protection of resources and knowledge. This is because “there never fail to exist leaders too influenced by the non-Indigenous world, advisors of sorts that lead our people into the road of total loss, or integration, into the world of trade”.139 They are, in his assessment, too willing to submit to governments and corporations, as they determine that the non-Indigenous position is dominant, and some profit through self-exploitation is better than no profit.

An Indigenous Environmental Ethic? In recent times, many Indigenous Nations have adapted their worldview in a political sense, to portray a vision of Indigenousness that is understood favourably in the international community. On the occasion of the Third Ministerial Meeting of the WTO on November 30 - December 3 1999, Indigenous peoples developed the Indigenous Peoples’ Seattle Declaration. Again the term Mother Earth emerged in reference to ‘her destruction’ by the WTO: Our sustainable lifestyles and cultures, traditional knowledge, cosmologies, spirituality, values of collectivity, reciprocity, respectful reverence for Mother Earth, are crucial in the search for a transformed society where justice, equality and sustainability will prevail.140

Their pleas for prohibition of bioprospecting and respect for Indigenous peoples “values, spirituality and worldview” were couched in the language of sustainability. The use of this language by Indigenous peoples indicates their ability to articulate their concerns through dominant discourse. It also suggests a close relationship with environmental interests and their ecological concerns. Indeed, environmentalists, feminists, some scientists and members of civil society are among those supporting Indigenous peoples concerns about biopiracy, uncontrolled and unregulated bioprospecting, and bioprospecting regulated in favour of commercial interests. Bioprospecting and Indigenous ‘Ways of Resisting’ 228

There is, however, a sometimes-uneasy relationship between environmentalists and Indigenous peoples. In environmental discourse it is often asserted that all Indigenous peoples have an ‘environmental ethic’, where ‘restraint’ is exercised in the exploitation of natural resources, an assertion that Wade claims “smacks of ‘puritanical ethnocentrism’”.141 Since the 1950s and 1960s, many ‘New Age’ and spiritual philosophies have claimed inspiration from Indigenous ‘wisdom’. For example, Goddess worshipping and glorification of tribal cultures by some feminists has renewed reverence for ‘Mother Earth’.142 The relationship between Indigenous peoples and these alternative movements has its difficulties. New Age spiritual voyeurism, where ‘exotic’ beliefs are romanticised, appropriated and often commodified can in some cases be little different to biopiracy, all of which can be disempowering for Indigenous peoples.143

Development discourse that espouses development strategies based on Indigenous knowledge also uses essentialising images of a homogenous, universal Indigenous environmental ethic, which can tend to ignore the political economy within which Indigenous peoples are situated.144 At the same time, some Indigenous peoples have recognised potentialities for empowerment through the self-exploitation of their ‘exoticness’. Many Nations have thus become more articulate in adopting the ‘language of environmentalism’ (for example, deep ecology discourse), to aid their cause, especially the language of ecological consciousness, where Indigenous peoples live as a part of nature, not apart from nature.145

In this respect, Brosius laments that environmental rhetoric is more reflective of its Western origins, which can be traced back to the Romantic tradition, and rarely reflects the reality of specific communities.146 Contemporary images of the ‘noble savage’ are also articulated in environmental discourse. At times, these tend to help make Indigenous peoples ‘narratable’, by identifying and reflecting considerable value in their knowledge. The ‘sacred ecology’ of ‘mother earth’ is said to be a universal reality in the ‘wisdom’ of Indigenous cosmologies.147

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To achieve environmental objectives, such as saving rainforests and their peoples, sympathetic support has been mobilised through powerful images such as rainforest peoples in traditional dress. This images seek to make the issue important to everyone.148 Brosius argued that environmentalists have successfully attained support by linking Indigenous peoples to conservation in two ways: by transforming Indigenous knowledge into ‘wisdom’ and by identifying the potential use value of the forest through the discovery of new medicines from Indigenous resources and knowledge.149 Thus environmental documentaries and literature that draws upon ethnographic material, can portray images of a specific Indigenous Nation as representative of the many.

Symbolics in Indigenous Representation Conklin describes the symbolism, or ‘symbolics’, that have emerged among Indigenous peoples since the rise of environmentalism in the 1980s.150 As they have been invited to travel the world and address international audiences, peasant and Indigenous peoples have recognised new opportunities to articulate their concerns. Language barriers at International fora have been overcome by the adoption of head-dresses, paint and feathers, even those not traditionally their own, as these cultural symbols portray a sense of ‘authenticity’ that does not need articulating. Yet language is also an important tool, as Indigenous peoples have learned to “reframe their cosmological and ecological systems in terms of Western concepts like ‘respect for Mother Earth’, ‘being close to nature’ and protection of biological diversity.151

Indigenous peoples claim it is their ‘nature’ to be in harmony with nature, but Fisher says that this can be “the essentialism of strategic engagement with the state, not ‘environmental consciousness’ as such”.152 Despite their seemingly powerless position, Indigenous peoples have been able to manipulate government and corporate decision processes through the exploitation of their ‘environmental ethic’ as a means to ensure the continuity of their own society rather that the environment per se. They are happy to have their pragmatism read as ecological consciousness, and to feed back images of ‘greenness’ to environmentalists as they have benefited from this image.153 Hence, Bioprospecting and Indigenous ‘Ways of Resisting’ 230

cultural survival has been reframed as a global environmental issue, strategically used to facilitate political mobilisation, externally and internally.154 For example, Indigenous peoples opposed to logging have used the support of environmentalists in their fight against others within their own community who have enriched themselves selling off timber concessions.

Indigenous peoples are themselves perpetuating an essentialist view of Indigenousness, declaring that they share similar beliefs, values and relationships with nature and the land. Portraying themselves as custodians of nature though, is not inherently misrepresentational. Many Indigenous people adhere to a worldview that assigns them responsibilities in relation to nature. Often these are responsibilities that can only be met when the Indigenous peoples have rights to their land and resources. Yet just as essentialist notions of a close relationship between women and nature are problematic, there are possible pitfalls in Indigenous peoples portraying self-images as ‘custodians of nature’.155 They can be seen to reaffirm the worldview of the core European thinkers of the Scientific Revolution and many of the Enlightenment thinkers, which in dualist language placed Indigenous peoples, together with nature, in an inferior position to the European.

So by conforming to exotic body images and establishing linkages to environmentalism, Indigenous peoples portray an authenticity that empowers them politically. The adoption of authenticating images that are not their own may mean that the culture that survives is not actually their own. Yet the new cultural forms created are not corruptions, as the criterion of authenticity is a value judgement based on a quasibiological analogy. Romantic essentialist images of Indigenous peoples and knowledge as prehistoric, unchanging and culturally pure result in disillusionment when it is realised that Indigenous peoples, “like any other, adapt their cultural repertoires to embrace contemporary circumstances”.156

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Conclusion

Dominant ‘ways of knowing’ and ‘ways of owning’ as techniques of power are perpetuating persistent colonial legacies, the negative construction of Indigenousness, and the delegitimisation of Indigenous peoples knowledge and relationships with their land and resources. In this Chapter I have discussed Fourth World as a ‘way of resisting’ these dominant techniques of power. I have examined resistance tactics employed by Fourth World peoples to assert their knowledge and resource rights in the debate on bioprospecting.

Diversity in tactics of resistance illustrate that there is no universal Indigenous perspective, but alliances and networks of activism which indicate that a strong ‘Indigenous voice’ is present. As a result of these tactics, Fourth World peoples are asserting their own normative arguments, challenging internationally accepted values, language and concepts. International fora, particularly those concerning human rights and environmental issues, such as the Convention on Biological Diversity, have provided a platform for Fourth World action to challenge dominant knowledge and ownership systems as techniques of power. On the international stage, Fourth World peoples are able to pressure the governments of their encapsulating states for rights to their resources and knowledge.

By participating in supranational action, Fourth World representatives are able to use the politics of embarrassment to bring into question the behaviour of so-called liberal democracies, placing what are generally considered to be domestic concerns onto the international agenda. Indigenous peoples have successfully adopted the language and methods of participation in international politics to achieve their political objectives. Human rights principles, in particular, have enabled Indigenous peoples to articulate an image of themselves which is different from that previously advanced and acted upon by dominant sectors within society. The shift from oppression and assimilation to Bioprospecting and Indigenous ‘Ways of Resisting’ 232

respect for Indigenous cultures and rights is substantial, although only the beginning of normative standards in international fora.

In the domestic arena, some Fourth World Nations are currently engaged in treaty negotiations with their encapsulating states, while others without treaties have made substantial gains on their land claims. A continuing problem for settler states and Fourth World peoples, however, is how to reconcile the claims of peoples in more densely populated areas that have experienced a long contact history, and competing demands on land and resources. This is an issue in Australia.

The next Chapter is a case study on bioprospecting in Australia, and more specifically, Queensland. In particular, the case study will explore how Indigenous Australians as Fourth World peoples are situated in policy debates on access to biological resources. These debates originated in international discussions such as those in the CBD, and are now playing themselves out at the domestic and international level.

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ENDNOTES

1 Smith, Linda Tuhiwai., Decolonising Methodologies: Research and Indigenous Peoples, London: Zed Books, 1999, p. 4.

2 Foucault, M., “Afterword: The Subject and Power”, Michel Foucault: Beyond Structuralism and Hermeneutics, H. Greyfus and P. Rabinow (eds), Brighton, Sussex, UK: Harvester Press, 1982, p. 212.

3 Deacon, R. A., Fabricating Foucault: Rationalising the Management of Individuals, Milwaukee: Marquette University Press, 2003, p. 9.

4 Seth, Sanjay., Gandhi, Leela., and Dutton, Michael., “Postcolonial Studies: A Beginning...”, Postcolonial Studies, Vol. 1, 1998, p. 8.

5 Keesing and Tonkinson 1982, and Philibert 1990, as referenced in Scott, Colin. H., “Custom, Tradition and the Politics of Culture: Aboriginal Self-Government in Canada”, Anthropology, Public Policy and Native Peoples in Canada, N. Dyck and J Waldram (eds), Montreal: McGill and Queens Uni Press, 1993, pp. 322.

6 Langton, Marcia., “The ‘Wild’, the Market and the Native: Indigenous People Face New Forms of Global Colonialism”, Decolonising Nature: Strategies for Conservation in a Post- Colonial Era, William M. Adams and Martin Mulligan (eds), London: Earthscan Publications, 2005, p. 80.

7 Coates, Ken. S., A Global History of Indigenous Peoples: Struggle and Survival, Hempshire, UK: Palgrave Macmillon, 2004, p. 225.

8 For example see: Knudtson, Peter., and Suzuki, David., Wisdom of the Elders, North Sydney : Allen & Unwin, 1992.

9 Smith., Decolonising Methodologies, op. cit., p. 12-13.

10 Wilmer, Franke., The Indigenous Voice in World Politics, Newbury Park: Sage Publications, 1993.

11 Ibid., p. 2

12 These are ideas that have been discussed in some detail in Chapter 4 (‘Ways of Knowing’) and Chapter 5 (‘Ways of Owning’).

13 Hess, David., Science and Technology in a Multicultural World: The Cultural Politics of Facts and Artifacts, New York: Columbia University Press, 1995, p. 85.

14 Hyland, Paul., The Enlightenment: A Sourcebook and Readers, London: Routledge, 2003, p. 304.

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15 Outram, Dorinda., The Enlightenment: New Approaches to European History, Cambridge, UK: Cambridge University Press, 1995, p. 72.

16 Rousseau, Jean-Jacques., “Discourse on Inequality (1755)”, Paul Hyland (ed), The Enlightenment: A Sourcebook and Readers, London: Routledge, 2003, p. 19.

17 Outram., The Enlightenment, op, cit., p.66.

18 Daffern, Thomas Clough., “Native American Cultures”, Encyclopedia of Applied Ethics, Volume 3, 1998, p. 311. Following Rousseau and his colleagues, Romanticism emerged in the eighteenth century as a reaction against the negatives of modernity, evident in advances in science, technology, and industrialisation, and the tangible threat they posed to the environment. Wade, Peter., “The Guardians of Power: Biodiversity and Multiculturality in Colombia,” The Anthropology of Power: Empowerment and Disempowerment in Changing Structures, Angela Cheater (ed), London: Routledge, 1999, p. 75.

19 Wade, “The Guardians of Power”, Ibid., p. 74.

20 Ibid.

21 Plumwood, Val., “Decolonizing Relationships With Nature”, Decolonising Nature:Stategies for Conservation in a Post-Colonial Era, William M. Adams and Martin Mulligan (eds), London: Earthscan Publications, 2005, p. 54.

22 Gay, Peter., The Enlightenment: An Interpretation: 2 The Science of Freedom, London: Wildwood House, 1970, p. 92.

23 Plumwood, Val., Feminism and the Mastery of Nature, New York: Routledge, 1993, p. 107.

24 Plumwood., “Decolonizing Relationships With Nature”, op. cit., p. 53-55.

25 Powers, Marcus., Rethinking Development Geographies, London: Routledge, 2003, p. 75.

26 Coates., A Global History of Indigenous Peoples, op. cit., p. 174.

27Indeed, Maori sovereignty had been established five years prior to the signing of the Treaty, when an agreement between the British Crown and many of the Maori chiefs saw the signing of the 1835 Declaration of Maori Independence, a document that officially recognised Maori sovereignty. Arena., “The Treaty of Waitangi: A Basic Introduction”, www.arena.org.nz/The%20Treaty%20of%20Waitangi.htm p. 2.

28 McHugh., P., “The Legal and Constitutional Position of the Crown in Resource Management”, Resources, Nations and Indigenous Peoples: Case Studies from Australasia, Melanesia and Southeast Asia, Oxford: Oxford Uni Press, 1996, p. 302.

Bioprospecting and Indigenous ‘Ways of Resisting’ 235

29 Although a lot of questions have arisen as to whether this recognition splits Crown sovereignty, it certainly has impacted on legislative procedures. Aboriginal rights to fishing, hunting and other cultural practices have been recognised and any legislative threats to those rights have to be justified. McHugh., “The Legal”, op. cit., p. 305.

30 Nash, Doug., “Indian Lands: Treaties”, FindLaw Summaries by Legal Professionals, http://profs.findlaw.com/ilands/_3.html p. 1.

31 Arena., “The Treaty of Waitangi”, op. cit., p. 3.

32 Coates., A Global History of Indigenous Peoples, op. cit., p. 181.

33 Ibid., p. 179.

34 Miller, Matthew. C., “An Australian Nunavut? A Comparison of Inuit and Aboriginal Rights Movements in Canada and Australia”, www.law.emory.edu/EILR/volumes/spg98/miller.html p. 2.

35 Clarke, J., “Law and Race: the Position of Indigenous peoples”, Law in Context, Stephen Bottomley and Stephen Parker (eds), 2nd edition Leichhardt, NSM: Federation Press, 1997.

36 Pearson, Noel., “Aboriginal Land Rights: The Next Stage”, Wiser, Vol. 5, No. 1, July 1998, p. 24.

37 Adams, William. M., and Mulligan, Martin., “Introduction”, Decolonising Nature: Stategies for Conservation in a Post-Colonial Era, London: Earthscan Publications, 2005, p. 6.

38 Nash, Doug., “Indian Lands: General Allotment Act”, FindLaw Summaries by Legal Professionals, http://profs.findlaw.com/ilands/_4.html p. 1.

39 Evans, R., “The Hidden Colonists”, Social Policy in Australia, Roe, J., (ed), Australia: Cassell, 1976.

40 Kidd, R., Regulating Bodies: Administrations and Aborigines in Queensland 1840 – 1988, unpublished Doctor of Philosophy Thesis, Griffith University,1994.

41 Huggins, J., Saunders, K., and Tarrago, I., “Reconciling Our Mothers Lives”, J. Docker and G. Fischer., (eds) Race, Colour and Identity in Australia and New Zealand, Sydney: UNSW Press, 2000, p. 43.

42 Aborigines were not included on the census, and in most jurisdictions were unable to vote until 1967. Clarke., “Law and Race”, op. cit., p. 253.

Bioprospecting and Indigenous ‘Ways of Resisting’ 236

43 Reynolds, Henry., Aboriginal Sovereignty: Three Nations, One Australia?, St Leonards, New South Wales: Allen and Unwin, 1996, p. 1.

44 Anderson, C., “Queensland”. N. Peterson., (ed) Aboriginal Land Rights: A Handbook, Australian Institute of Aboriginal Studies, Canberra, p. 64.

45 Morris, G., Cook, C., Creyke, R., Geddes, R., and Holloway, I., Laying Down The Law: The Foundations of Legal Reasoning, Research and Writing in Australia, Sydney: Butterworths, p. 39.

46 Coates., A Global History of Indigenous Peoples, op. cit., p. 200.

47 Ibid., p. 206.

48 Ibid.

49 Ibid., p. 200.

50 Ibid., p. 219.

51 Ibid., p. 201.

52 Behrendt, Larissa., Achieving Social Justice: Indigenous Rights and Australia’s Future, Sydney: The Federation Press, 2003.

53 Wilmer., The Indigenous Voice in World Politics, op. cit., p. 13.

54 Spicer, Edward, H., “Persistent Cultural Systems”, Science, Vol. 174, 19 November 1971, p. 797.

55 Coates., A Global History of Indigenous Peoples, op. cit., p. 231.

56 Wilmer., The Indigenous Voice in World Politics, op. cit., p.21.

57 Ibid.

58 Churchill, W., “I am Indigenist”, Struggle for the Land, Monroe, Mayne: Common Courage Press, 1993, p. 403.

59 Ministry of Economic Development (MED) New Zealand, “Maori and the Patenting of Biotechnology Inventions”, Review of the Patents Act 1953, www.med.govt.nz/buslt/int_prop/patentsreview/patentsreview-06.html p. 3.

60 McGowan, Robert., “Preservation of Traditional Knowledge and Intellectual Property”, Medicinal Plants For the Future: Sustainability and Ethical Issues, Proceedings of the National Herbalists Association of Australia Conference, Byron Bay, NSW, Bioprospecting and Indigenous ‘Ways of Resisting’ 237

August 13-14 1999, Annandale, NSW: National Herbalists Association of Australia Inc, 2000, p. 56.

61 Hutchings, Jessica., “Tradition and Test Tubes: Maori and GM”, Recoding Nature: Critical Perspectives on Genetic Engineering, Richard Hindmarsh and Geoffery Lawrence (eds), Sydney: University of New South Wales Press, 2004, pp. 182-183. ; Ministry of Economic Development (MED) New Zealand., op. cit., p.3.

62 Reid, Walter V., Sarah A Laird, Rodrigo Gamez, Ana Sitterfeld, Daniel H. Janzen, Michael A Gollin, and Calestous Juma., “A New Lease on Life”, Biodiversity Prospecting: Using Genetic Resources for Sustainable Development, Walter V. Reid et al (eds), World Resource Institute Book, 1993, p. 35.

63 Posey, D.A., “Intellectual Property Rights: What is the Position of Ethnobiology?”, Journal of Ethnobiology. 10(1), p. 97.

64 Dove, M.R., “Center, Periphery, and Biodiversity: A Paradox of Governance and a Developmental Challenge”, Valuing Local Knowledge: Indigenous People and Intellectual Property Rights, S.B. Brush and D. Stabinsky (eds), Washington D.C.: Island Press, p. 58-9; Brush, S.B., “Is Common Heritage Outmoded?”, op. cit., p. 158.

65 Holden, Annette., Fourth World Economic Development: The Establishment of Capitalism in Three Aboriginal Communities in Cape York Peninsula, Queensland?, unpublished PhD thesis, Division of Commerce and Administration, Griffith University, Brisbane, Australia.

66 Ibid.

67 Bennett, Jon., The Hunger Machine: The Politics of Food, Cambridge, UK: Polity Press, 1987, p. 2; George, op. cit.

68 Hunn, Eugene., “What is traditional Ecological Knowledge?” Traditional Ecological Knowledge, Nancy M. Williams and Graham Baines (eds), Canberra: Centre for Resource and Environmental Studies, ANU, 1993, p. 14.

69 Ibid., pp. 14-15.

70 www.gbif.org

71 www.allspecies.org

72 Smith, Gideon F. et al., “The Price of Collecting Life: Overcoming the Challenges Involved in Computerizing Herbarium Species”, Nature, Vol. 422, 27 March 2003, p. 375.

Bioprospecting and Indigenous ‘Ways of Resisting’ 238

73 BRIDGES., Brazil to Map Potential Medicinal Plants”, BRIDGES Trade BioRes, Vol. 2, No. 4, 2002.

74 Ibid.

75 Shama, Devinder., “Digital Library: Another Tool for Biopiracy”, p.1.www.infochangeindia.org/fetaures34print.jsp

76 Bodeker, G., “Indigenous Medicinal Knowledge: The Law and Politics of Protection” WP 03/00, Oxford Electronic Journal of Intellectual Property Rights, www.oiprc.ox.ac.uk/ejwp0300.pdf

77 Singh, Someshwar., “US Not Sure What’s Biopiracy”, South/North Development Monitor, #4712, 20 July 2000, accessed from the Third World Network www.twnside.org.sg/ 24 July 2000.

78 CIEL., “Comments on Improving Identification of Prior Art: Recommendations on Traditional Knowledge Relating to Biological Diversity Submitted to the United States Patent and Trademark Office”, August 2, 1999, p. 10; www.sristi.org/honeybee.html

79 The study was a Fact-Finding Mission on Intellectual Property and Traditional Knowledge , making WIPO the only multilateral organisation seriously considering mechanisms for protecting IIPRs. WIPO., “Draft Report on Traditional Knowledge Open for Comments”, Press Release PR/2000/236, Geneva, August 11, 2000, www.wipo.int/eng/pressrel/2000/p236.htm

80 Ibid.

81 Bhatti, Shakeel., Intellectual Property and Traditional Knowledge: The Work and Role of the World Intellectual Property Organisation, UNCTAD Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices, Geneva, 30 October – 1 November 2000, p. 3.

82 Ibid.

83 Ibid., p. 7.

84 CIEL., “Comments on Improving Identification of Prior Art”, op. cit., p. 7.

85 Center for International Environmental Law (CIEL)., “US Patent Office Cancels Patent on Sacred ‘Ayahuasca’ Plant”, CIEL Press Release, 4 November 1999, bio- [email protected] archive/latest/171, p. 2.

86 Ibid., p. 5.

87 Shama., “Digital Library”, op. cit., p. 1.

Bioprospecting and Indigenous ‘Ways of Resisting’ 239

88 European Chemical Industry Council (CEFIC), Brussels, “The Chemical Industry Comments on the Legal Protection of Traditional Knowledge and Access to Genetic Resources – Patenting,” CEFIC Position Paper, www.cefic.be/position/Sec/pp_sec28.htm November 23 2000, p. 5.

89 McGowan, “Preservation of Traditional Knowledge”, op. cit.

90 Vogel, J., (ed.) The Biodiversity Cartel: Transforming Traditional Knowledge into Trade Secrets, Quito, Edquador: CARE, Proyecto SUBIR, 2000.

91 Daizadeh, I., et al., “A General Approach for Determining When to Patent, Publish, or Protect Information as A Trade Secret”, Vol. 20, No. 10, October 2002, p. 1.

92 Cola-Cola has never patented its formula but has managed to successfully protect it as a trade secret. WIPO “Introduction to Intellectual Property”, op. cit., 2000, p. 11.

93 Vogel., The Biodiversity Cartel, op. cit.

94 Burton, Geoff., “Biotechnology Patents – International Policy Developments: Australian Stakeholder Involvement”, unpublished paper by Burton, Director, Access to Genetic Resources, Australian Department of Foreign Affairs and Trade (DEFAT), distributed after his speech as part of the Queensland Government Department of Innovation and Information Economy information session on the Queensland Biodiscovery Policy, June 3 2002.

95 Carvanter, S. R., “Report on the UNCTAD Expert Consultation on National Experiences and Systems for the Protection of Traditional Knowledge”, prepared for GRAIN BIO-IPR, November 2000, p. 10.

96 Semali, Ladislaus. M., and Kincheloe, Joe. L., “Introduction: What is Indigenous Knowledge and Why Should We Study It?”, What is Indigenous Knowledge? Voices from the Academy, New York: Falmer Press, 1999, p. 11.

97 Ibid.,p, 12.

98 Foucault, M., Power/Knowledge, translated by Colin Gordon, New York: Pantheon Books, 1980a. ; Foucault, M., “Two lectures”, Power and Knowledge: Selected Interviews and Other Writings 1972-77: Michel Foucault, C. Gordon (ed), Brighten: Harvester Press, 1980b.

99 Macedo, Donaldo., “Decolonizing Indigenous Knowledge”, What is Indigenous Knowledge?: Voices From the Academy, L. M. Semali and J. L. Kincheloe (eds), New York: Falmer Press, 1999, pp. xi-xvi.

100 Thiongo, Wa Ngugi., Moving the Centre, London: James Currey, 1993.

Bioprospecting and Indigenous ‘Ways of Resisting’ 240

101 Maurial, Mahia., “Indigenous Knowledge and Schooling: A Continuum Between Conflict and Dialogue”, What is Indigenous Knowledge?: Voices From the Academy, L. M. Semali and J. L. Kincheloe (eds), New York: Falmer Press, 1999, p. 70.

102 Ibid., p. 68. Italics authors own.

103 Dyck, Noel., “Aboriginal Peoples and Nation-States: An Introduction to the Analytical Issues”, Indigenous Peoples and the Nation-State, St Johns Institute of Social and Economic Research, Memorial University of Newfoundland, 1985, p. 16.

104 Ibid., p. 17.

105 Cited in Dyck., Ibid., p. 12.

106 Wilmer, Franke., The Indigenous Voice in World Politics, op. cit., 1993.

107 Bodley, John H., Victims of Progress, 2nd edition, Palo Alto Ca: Mayfield, 1982, p. 11.

108 Anaya, S. James., “The Influence of indigenous Peoples on the Development of International Law”, Indigenous Human Rights, Sam Garkawe, Loretta Kelly and Warwick Fisher (eds), Sydney: Sydney Institute of Criminology, 2001, p. 112.

109 Ibid.

110 Ibid.

111 Bodley, John H., Victims of Progress, op. cit., p. 3. ; Wilmer., op. cit., p. 3.

112 AIATSIS., “Draft Declaration of the Rights of the Worlds Indigenous Peoples”, Our Culture, Our Future: Information Sheet 3, AIATSIS, Canberra, ND.

113 Cited in Davis., M., “Indigenous Peoples and Intellectual Property Rights”, Department of the Parliamentary Library Information and Research Services Research Paper No. 20, Commonwealth of Australia, 1997.

114 Griggs, R., and Hocknell, P., “Fourth World Faultlines and the Remaking of International Boundaries,” Stiftelsen Skansk Framtid Documentation Project, Sweden, www.scania.org/ssf/docu/1214grgs.htm accessed 29.4.03.

115 Wilmer., op. cit. p. 4, 215.

116 Davis., “Indigenous Peoples and Intellectual Property Rights”, op. cit., p. 13.

117 Anaya., “The Influence of indigenous Peoples on the Development of International Law”, op. cit., p. 110.

118 Davis., “Indigenous Peoples and Intellectual Property Rights”, op. cit.,. p. 14. Bioprospecting and Indigenous ‘Ways of Resisting’ 241

119 World Intellectual Property Organisation (WIPO)., “Other Relevant Multilateral Institutions and Initiatives”, Draft Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) – July 3, 2000, p. 6.

120 International Trade Centre (ITC)., “Partnerships/Initiatives to Strengthen the Implementation of Agenda 21”, ITC, 2003, p. 2, www.biotrade.org

121 WIPO., “Other Relevant Multilateral Institutions and Initiatives”, op. cit., p. 6.

122 UN Doc E/CN.4/Sub2/1995/26.

123 cited in Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS)., “Principles and Guidelines for the Protection of the Heritage of Indigenous people,” Our Culture Our Future: Information Sheet 4, AIATSIS, Canberra, ND.

124 van Boven, Theo., “Discrimination and Human Rights Law”, Discrimination and Human Rights, Sandra Fredman (ed), Oxford UK: Oxford University Press, 2001, pp. 111-134, p. 119.

125 cited in Nettheim, G., “The International Implications of the Native Title Act Amendments,” Indigenous Law Bulletin, Vol 4, Issue 9, Feb 1998, p. 12.

126 cited in Ibid.

127 Carvanter, “Report on the UNCTAD”, op. cit., p. 10.

128 Ibid, p. 9.

129 Hurtado, Lorenzo Muelas., “Access to the Resources of Biodiversity and Indigenous Peoples”, Occasional Papers, Edmonds Institute Occasional Paper, translated by Martha Urdaneta F., www.edmonds-institute.org/muelaseng.html accessed on 9 June 2000, first published in 1998 Bogota, Colombia, reprinted by the Edmonds Institute in 1999, p. 5.

130 Ibid.

131 They are producing Draft Declarations which are a well recognised format within the UN process as a document that is non-binding. Davis., “Indigenous Peoples and Intellectual Property Rights”, op. cit., p. 17.

132 Ibid., p. 17.

133 Julayinbul Conference Outcomes., “Declaration Reaffirms the Self Determination and Intellectual Property Rights of the Indiegnous Nations and Peoples of the Wet Tropics Rainforest Area,” Julayinbul Conference on Intellectual and Cultural Property, Jingarrba, North Queensland, Australia, 27 November 1993. Bioprospecting and Indigenous ‘Ways of Resisting’ 242

134 AIATSIS., “International Indigenous Peoples Discourses,” Our Culture Our Future Information Sheet 6, AIATSIS, Canberra, ND, p. 6.

135 Ibid.

136 Ibid., p. 7. ; This meeting in Fiji also saw the development of a treaty for a Lifeforms Patent-Free Pacific. Davis., “Indigenous Peoples and Intellectual Property Rights”, op. cit., p. 18.

137 (My emphasis). Indigenous Peoples’ Organisations, NGOs and Networks (87 signatories)., No to Patenting on Life: Indigenous Peoples’ Statement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the WTO, adopted in Geneva on 25 July 1999, access from GRAIN BIO-IPR 14 September 1999, www.grain.org bio- [email protected] archive/latest/160

138 Hurtado., “Access to the Resources”, op. cit., p. 8.

139 Ibid.

140 Indigenous and Tribal Peoples Centre., “Legal Frameworks and Indigenous Rights,” a copy of the Indigenous Peoples Seattle Declaration on the Occasion of the Third Ministerial Meeting of the World Trade Organisation, Nov 30-Dec 3, 1999.

141 Wade., “The Guardians of Power”, op. cit., p. 73.

142 Merchant, Carolyn., Radical Ecology: The Search for a livable World, New York: Routledge, 1992, p. 113. In the United States there is blossoming interest, especially amongst ecofeminists, in attending weekend workshops on how to be a shaman, with training given by individuals who themselves claim to be trained in the profession. Ruth-Inge Hinze., cited in Orenstein, G., excerpt from The Reflowering of the Goddess, New York: Pergaman Press, www.dhushara.com/book/renewal/voices2/oren.htm 1990, p. 4. ; Shamanism is spoken of in a reductionist essentialist manner as if it is one universal generic practice, ignoring the often enormous variations from culture to culture. The glamourisation of the ‘exotic’ shaman by those pursuing “their own personal fantasies”, ignores the realities, sometimes harsh, of living cultures, and may “de-authenticate the actual lives and lore of the people”. Orenstein bluntly asserts that many of the ecofeminists and others pursuing native spiritualism are actually racist, acting out of “white Westerner guilt”, as she found herself doing while studying the sharmanic practices of Sami women. Ibid., p. 5.; Many New Agers have been attempting to reinvigorate within Westerners ancient worldviews and relationships with nature through pagan rituals (for example shamanism and wicca) and ancient religious ideas. Amerindian influences are especially evident in channeling and spiritual guides which are very much “in vogue”. While watching artists sketching spirit guides at a Mind-Body-Spirit expo in Melbourne, self-confessed sceptic Rosaleen Love marveled at the number of local Australian people who apparently have Native Bioprospecting and Indigenous ‘Ways of Resisting’ 243

Americans as their spirit guides. Love, R., “Culture and the Paranormal”, review of book by David J. Hess, Metascience, issue 5, 1994, p. 32.

143 Daffern, “Native American Cultures”, Encyclopedia of Applied Ethics, op. cit., 1998.

144 Bebbington cited in Wade., “The Guardians of Power”, op. cit., p. 74.

145 Ellen cited in Wade., “The Guardians of Power”, op. cit., p. 74.

146 Brosius, J.P., “Endangered Forest, Endangered People: Environmentalist Representations of Indigenous Knowledge”, Human Ecology, Vol. 25, No. 1, 1997.

147 Ibid.

148 Brosius, “Endangered Forest”, op. cit., p. 54.

149 Ibid.

150 Conklin, Beth. A., “Body Paint, Feathers and VCRs: Aesthetics and Authenticity in Amazonian Activism” American Ethnologist, 24 (4), 1997, p. 711.

151 Ibid., p. 712.

152 Fisher cited in Wade., “The Guardians of Power”, op. cit., p. 75.

153 Wade., “The Guardians of Power”, op. cit. ,p., 75.

154 Conklin., “Body Paint, Feathers and VCRs” op. cit., p. 721.

155 Wade., “The Guardians of Power”, op. cit., p. 85.

156 Scott, “Custom, Tradition and the Politics of Culture”, op. cit., p. 322..

Chapter 7

Australia: Trends in the Global Policy Terrain

The strange, as it were, invisible beauty of Australia, which is undeniably there, but which seems to lurk just beyond the range of our white vision. You feel you can’t see—as if your eyes hadn’t the vision in them to correspond with the outside landscape. For the landscape is so unimpressive, like a face with little or no features, a dark face. It is so aboriginal, out of our ken, and it hangs about so aloof.1

Introduction

This Chapter brings together the key theoretical and analytical tools and ideas from previous Chapters to explore policy development on bioprospecting in Australia. Access to Australia’s rich biodiversity is an important policy issue played out within the dominant knowledge and ownership context. At issue for Aboriginal Australians is the struggle against this increasingly complicated policy domain for recognition of their ‘connate’ rights as First Nations. My main aim in this Chapter is to demonstrate that the current debate on bioprospecting is not simply an issue of access to biological resources, but is one also of justice and equality, as set up in the international debate, especially through the Convention on Biological Diversity (CBD). I argue that these policy elements have yet to be adequately resolved.

The analysis is structured around two themes: 1) techniques of dominant power and 2) Fourth World resistance. The first theme relates to how ‘ways of knowing’ and ‘ways of owning’ as techniques of power play themselves out in the policy debate on access to biological resources and Indigenous knowledge in Australia, and more specifically, Queensland. Following Foucault’s genealogical approach,2 I examine the networks of power employing these governmental techniques to privilege, normalise and exclude through the promotion of biotechnology and bioprospecting, which are both objects of Australia: Trends in the Global Policy Terrain 245

governmentality. The state has employed these tactics within networks of power to assert its competence as the entity best able to deal with access to biological resources.

The second analytical theme relates to how Indigenous Australians as Fourth World peoples have reacted by constructing themselves as political actors in the hegemonic discourse of the access debate. Aboriginal people have been competing in the struggle to secure specific understandings of their own history and connate rights to resources and knowledge. Their struggle indicates, consistent with Foucault’s3 genealogical approach, that dominant power is indeed being asserted, and resisted.

Initially in this analysis, I situate Australia in the policy debate on access to biological resources. As a mega-biodiverse country, Australia has a keen interest in exploiting its biological resources and building its biotechnology capacity. History reveals how Australia has been constructed as a First World state, and how Aborigines as Fourth World Nations relate to this encapsulating state. As actors within the state, Aboriginal peoples have had influence on, and have been manipulated by, the debate on access to biological resources.

Through the case study material, I demonstrate that in Australia, Aboriginal knowledge has been appropriated and transformed into dominant ‘ways of knowing’. The knowledge is then secured in the dominant ownership regimes of the encapsulating state. This completes the process of appropriation and marginalisation of Aboriginal knowledge and ownership systems, bringing into question the effectiveness of Aboriginal Fourth World resistance tactics.

Australia as the Only Mega-Biodiverse ‘Developed’ Economy

Australia has 10 per cent of the world’s biological diversity, making it one of 17 mega- biodiverse countries, and the only one with a developed economy and an emerging capacity scientifically to exploit these resources through its promotion of biotechnology.4 Queensland alone has four per cent of the world’s biological diversity, Australia: Trends in the Global Policy Terrain 246

located in a diversity of climes from the tropical rainforests of the Daintree, to the Great Barrier Reef, and out to the arid regions of Western Queensland.5 This unique biological diversity stems from many millennia of continental separation, and exists now only in remnant form due to more than 200 years of unsustainable practices exploitative of the continent’s native flora and fauna by European settlers.6

Australian Commonwealth and state governments are excited by the opportunities biotechnology offers for the further exploitation of natural resources. Biotechnology has emerged as the dominant ‘way of knowing’ in Australia, privileged by central state and local state governments anxious to facilitate the exploitation of Australia’s natural resources, especially the biodiverse state of Queensland. In July 2000, the Commonwealth government released a National Biotechnology Strategy, with one key aim to establish access for the biotechnology industry to biological resources in Commonwealth areas. Subsequently, the Commonwealth government put together a draft legal framework under Section 301 of the Environment Protection and Biodiversity Conservation (EPBC) 2000 Act for access to biological resources and benefit sharing, which applies to Commonwealth lands and waters. The main aims of the framework are to encourage investment by creating certainty for industry by minimising costs and removing obstacles to access.7

Complicating policy development on access to biological resources is Australia’s federal system of governance, which assigns the two main tiers of government differing responsibilities in relation to access (excluding local government).8 The Commonwealth government is responsible for controlling the export of biological resources and the protection of intellectual property rights, while the states are responsible for conservation and land management issues. A further consequence of federalism is the competitive environment in which the individual states vie for greater economic advantage, which makes a national approach to regulating access to biological resources extremely problematic.9

Australia: Trends in the Global Policy Terrain 247

Following numerous Commonwealth enquiries, working groups and committees conducted to study the issue,10 the Commonwealth, State and Territory governments agreed, in December 2001, to nationally ‘consistent’ legislation on access to biological resources. This means the Commonwealth is willing to let the states deal with the issue of access individually, as long as the outcomes are basically consistent Australia wide and comply with the new Bonn Guidelines on access and benefit sharing.11 The Bonn Guidelines were developed for the Convention on Biological Diversity (CBD) Conference of the Parties (COPs) and are considered by the CBD to be ‘world’s best practice’, covering issues arising from the CBD, mainly the provision of access for sustainable use of biological resources. This loose regulatory environment enables individual states to shape policy to enhance their competitive advantage and attract investment.

Yet, access to biological resources is a policy issue made more complex by the connate right Aboriginal Nations claim to resources and knowledge that they identify as their own. Social and political issues such as land rights and rights to knowledge and resources have therefore emerged as important parameters within which access issues are being considered. Policy-makers are faced with innumerable intricacies including differing levels of knowledge and land ownership rights among Aboriginal Australians. Competing interests—political, economic and social—further complicate the process through vying for influence in policy outcomes in a complex, fragmented federal-state political system. Indigenous Australians, who are largely peripheral to the political processes of the encapsulating state of Australia, are increasingly considering all possible means of influencing policy processes at local state, central state and international levels.

Aboriginal Political Activism

On the issue of access to biological resources, the UN Convention on Environment and Development (UNCED) Convention on Biological Diversity (CBD) urges governments with encapsulated Indigenous Nations to respect, preserve and maintain the resources Australia: Trends in the Global Policy Terrain 248

and knowledge of Indigenous peoples leading a ‘traditional lifestyle’. This essentialist provision effectively excludes the majority of Aboriginal peoples in Australia, and enables the central state and local states to marginalise them from policy processes. At the same time, the CBD has reinforced the ownership rights of states to the resources within their territories. Given this position taken by the CBD, it is ironic that Aboriginal peoples have found the UN system to be the forum most useful for their empowerment.

Aboriginal Australians are a small percentage of the entire population in Australia and are disadvantaged economically and socially. Therefore, they have a reduced capacity to participate politically.12 The Aboriginal and Torres Strait Islander Commission (ATSIC) has described the UN system as the ‘best vehicle’ for the protection and promotion of Aboriginal peoples’ rights.13 ATSIC enjoyed status as a Category II non-government organisation, known as a nationally representative NGO at the UN. “This means that ATSIC may independently attend, speak at, and submit papers to the UN forums and meetings” conducted by the UN Economic and Social Council.14 This representative status gave ATSIC more secure and influential access to the UN than environmental and other NGO groups. The Commission was established in November 1989 to put into effect the principles of Aboriginal self-determination. It was not an Aboriginal organisation, but was unique as the peak Aboriginal representative body with elected representatives, and at the same time functioned virtually as a government department.15 ATSIC representatives regularly articulated what they believed to be the interests of Aboriginal Australia.

The ‘elite’ within Aboriginal Nations, like those running ATSIC and Aboriginal Councils, enjoy considerable power to determine Aboriginal political priorities, primarily due to their ability to operate within the mainstream system. The same actors are continuously involved in all Aboriginal organisations negotiating Aboriginal issues. As noted in a statement by ATSIC Commissioners, it: is generally acknowledged, there is only a limited number of our people who have the necessary skills required in governing organisations. Consequently, it is common that a fulltime ATSIC office holder will also be asked or elected by their communities to be on community government councils, land councils and other Australia: Trends in the Global Policy Terrain 249

organisations. There can also be traditional obligations meaning only a certain number of people are considered to be appropriate to fill leadership positions.16

Similar experiences are found in Aotearoa / New Zealand, where Maori activist Jessica Hutchings has observed within her own community that those representing Maori Nations do not always articulate the interests of the entire Maori population, and may even appear to be more representative of the mainstream view.17

Struggles to assert an authoritative, representative ‘truth’ about specific Fourth World Nations are often played out when representatives integrate local power relations into the global field of resistance. According to Foucault’s analytics of power, for power to be retained it needs to move from the local level into the global power arena.18 At the global level, resistance to dominant discursive practices that marginalise Fourth World knowledge and resource rights are possible. Hence, the United Nations offers possibilities for Fourth World resistance.

UN official and expert on Human Rights and Indigenous Peoples, Professor Erica-Irene Daes has recently advocated Indigenous peoples’ permanent sovereignty over the natural resources of their lands and sea. “Permanent sovereignty over natural resources has been endorsed by the UN as a principle of international law in 80 resolutions since World War II”, mainly due to Indigenous activism.19 As discussed in Chapter Six, Fourth World Nations from Australia, North America, and Aotearoa / New Zealand have a long history of successfully pursuing international recognition of their unique predicament, encapsulated within First World States. Due to Aboriginal participation at the UN, there is international recognition of the “continuing political, economic and social marginalisation of the Indigenous community of Australia”.20

As a result, Australia’s federal government has come under renewed international pressure, particularly from the Permanent Forum on Indigenous Issues. The Forum has heard from Aboriginal representatives that Australia has failed to rescind the 1998 Native Title Act amendments as advised by the UN Committee on the Elimination of Australia: Trends in the Global Policy Terrain 250

Racial Discrimination (CERD). The Committee found that the amendments were discriminatory and should be renegotiated.21

Criticism of Australian government policy and legal frameworks by CERD for not protecting Indigenous Australians against racism, have been met with counter-criticism of CERD by the Australian government.22 Other treaty bodies have also come into conflict with the Australian government on Indigenous issues. The right to self- determination and to ‘dispose’ of natural resources is stated in both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).23 Australia has been criticised by the committee monitoring compliance with ICCPR for violation of Indigenous Australians’ rights by failing to facilitate self-determination and political participation and protection of land rights among other things. The ICESCR monitoring committee was also critical of Australia’s failure to alleviate the disadvantage and discrimination experienced by Aboriginal and Torres Strait Islander peoples.24

The social, economic and political positions of Aboriginal peoples in Australia are a legacy of colonialism. Australian governments, central and local, have, since settlement, constructed an understanding of Aboriginal Australians by normalising their subjugation and by problematising Aboriginality. Subject to this bio-power, Aboriginal peoples have in many ways, internalised the misrepresentations of Aboriginality as constructed by governments and other institutions.25 To further set up analysis of bioprospecting in Australia in this chapter, I will now look at how colonial legacies underpin the ‘settler’ worldview of Australia, underpin understandings of Aboriginal peoples and ‘Aboriginality’, and underpin accepted dominant systems of ‘knowing’ and ‘owning’.

The Construction of Australia and Its Indigenous Peoples

Historical documentation shows that there was recognition within the settler community soon after arrival in 1788 that distinct Aboriginal groups existed, with their own languages, territories and law.26 Having established that natives did indeed live in Australia: Trends in the Global Policy Terrain 251

the new colony, King George III had instructed Captain Phillip, the Captain General of the First Fleet and ‘founder’ of New South Wales, to negotiate with Indigenous Australians and protect them under the law. Yet the overall treatment of Aboriginal Nations was based on the assumption of European superiority over the ‘uncivilised’ Other.

On arrival, European colonisers were confronted by a land very different to their lands of origin, a portrayed land ‘of living fossils’ both non-human and human.27 The human ‘fossils’ of Australia had, in the eyes of the colonisers, ‘been stranded in time’ as they had not made any apparent changes to the land.28 Change was equated with ‘progress’, and with the making of history, while the historical portrayal of Australia as uninhabited denied Aboriginal peoples a history. So the history of Australia, according to this argument, commenced only with the arrival of Europeans.29

What the Europeans failed to recognise though was that the ‘wilderness’ before them was a people-managed environment; that it was not unoccupied. Far from rejoicing in the uniqueness of the Australian landscape, the Europeans treated the land as ‘hostile’, ‘alien’, ‘ugly and primitive’, in need of ‘taming’ as well as improving.30 Measures were immediately taken to modify, destroy and subvert the ancient landscape; clear felling much vegetation and replacing the natural flora and fauna with familiar imported species.31 As a consequence, natural resource policy making in Australia since colonisation has always been informed by a separation between humans and nature (which, of course, endorses the Cartesian worldview), and by the need to ‘progress’ through the control, management and utilisation of nature.

The closeness of Aboriginal peoples to their environment meant that they, like nature, could be “governed, controlled, mastered and enslaved”.32 Dualisms asserting the superiority of the colonisers over the colonised Other formed the identity of both entities. Dualism also justified the appropriation and incorporation of Aboriginal land and resources into the dominant settler knowledge and ownership systems.

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With settlement, English common law was established in the new colony.33 The Crown, in accordance with English property law, assumed ownership of all the land, and extinguished any existing Aboriginal law or systems of land ownership.34 Concern was expressed from Britain though that the granting of pastoral leases within the new colony should not deny Aboriginal peoples access to the land for subsistence purposes.35 Yet Britain benefited financially from the sale of land, a point that generated dissatisfaction within the colonial administrations, and eventually resulted in self-determination—a form of decolonisation—for the Australian colonies in the 1850s. For Aboriginal peoples, there was, however, no decolonisation.

In Holden’s opinion, colonialism is a political and economic reality in Australia today. She strongly disputes the widely held view in academic discourse that all Aboriginal peoples have been colonised, totally dispossessed, and that the colonisation process is now complete.36 Those regions of the state where the colonisation process is said to be complete are considered to be ‘settled’ regions.37 Holden asserted that, according to the definition of colony adapted for her study—“any people or territory separated from but subject to a ruling power”,—‘colonial’ regions still exist within Australia.38 Variations in the contact history in Australia mean that the colonisation and dispossession process has not been uniform. Hence, different Aboriginal Nations within Australia have varying ‘rights’ to claim land and resources, and knowledge of the use of those resources.

Given this background I now turn to look at how Aboriginal resources and knowledge have been accessed and used in pharmaceutical development through historical and contemporary bioprospecting projects.

Historical and Contemporary Bioprospecting Ventures

From a historical perspective, numerous examples of success exist in drug development from research stimulated by the observation and documentation of Aboriginal knowledge. Duboisis is an example of success in drug development from research stimulated by the observation and documentation of Aboriginal knowledge. Burke and Australia: Trends in the Global Policy Terrain 253

Wills noted the use of Duboisis hopwoodii as an intoxicant in 1861, while Doctor Joseph Bancroft, a pioneer of pharmacological research in Australia, claimed to have ‘discovered’ Duboisis in the latter part of the 19th century.39 Yet, without the observation and documentation of Aboriginal use of Duboisia, its medicinal uses may never have been recognised and confirmed by non-Indigenous researchers, as the plant produces a narcotic effect only when mixed with certain wood ash and chewed.

Other narcotic drugs used by Aboriginal Australians were developed commercially for the worldwide market after World War Two, including Hyoscine and Hyoscyamine from D. Myoporides and D. Leichhardtii.40 These discoveries resulted from ethnobotanical and ethnomedical research, where plant samples and Indigenous knowledge were systematically collected in bioprospecting projects funded by the federal government. These studies included CSIRO and University surveys of Australian flora, compiled as the Australian Phytochemical Survey, conducted between 1947 and 1965. This research was prompted by necessity, to deal with an acute shortage of available drugs, and was guided by Indigenous people’s pharmacopoeia.

The proven physiological effectiveness of Aboriginal medicines prompted Webb to conclude in 1960 that “native plant remedies deserve systematic compilation and pharmacological screening”.41 To collect this chemical and pharmacological information, researchers have utilised the early literature, such as early publications by Maiden,42 and collected ethnobotanical and ethnomedical information directly from Aborigines.43 In 1965, Webb was commissioned by the Australian Institute of Aboriginal Studies to make a further collection of “authentic information” on plant medicines and poisons used by the Aborigines and Torres Strait Islanders.44 Webb expressed difficulties gathering such information due to “secrecy and superstition” surrounding the use of the medicines, the possibility of misinterpretation of Indigenous information, and the “speed with which the information becomes corrupt”.45 Webb seemed to imply that changes to knowledge negated its authenticity, rather than questioning his own methodology and data collection processes.46

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Offshore interests have also made collections with little or no recognition of Aboriginal rights to resources and knowledge they identify as their own. In the 1980s, the US National Cancer Institute (NCI) sent a collector to Australia to search for possible cures for cancer using ethnobotanical and ethnomedical information. The collector, Richard Spjut, was employed by the United States Department of Agriculture (USDA) and made the collection as part of an interagency agreement between the USDA and the NCI.47 The Western Australian Herbarium assisted Spjut in the collection process.48 A plant that attracted the collector’s interest was smokebush (Genus Conospermum). This is a plant that grows on the WA coast between Geraldton and Esperance and is a medicinal plant used by Aborigines.49 Samples of the plant were sent by Spjut back to the US but proved unsuccessful in the treatment of cancer. In the late 1980s, the samples were brought out of storage and tested against the AIDS virus with promising results.50 Smokebush was found to contain conocurvone, which laboratory trials showed destroyed the HIV virus in low concentrations. Prompted by these initial findings, the NCI Laboratory of Drug Discovery and Research Development proposed a new study to carry out “isolation, structure elucidation and synthetic work”, but insufficient supplies of the smokebush plant prevented this more rigorous research.51

The Western Australian (WA) Government, however, refused further access until an agreement was signed to give royalties to WA from any successful drug. The original collector then returned to Australia and collected more of the plant without a permit. By chance he was stopped at the airport and prevented from removing the plant material from Australia.52 At that point, the NCI, under immense pressure from Australian scientists and the Australian government, agreed to give the Australian Medical Research Consortium (AMRAD) the license to develop a drug from the smokebush plant. The WA government has since been paid $1.5 million by AMRAD to secure access to the resource. If a commercial drug is developed from the plant, the WA government stands to gain $100 million per annum in royalties.53

Significantly, the original Indigenous ‘custodians’ of the knowledge concerning the medicinal value of smokebush have never been mentioned. Indeed, Dr James Australia: Trends in the Global Policy Terrain 255

Armstrong, the Director of Science and Information at the Western Australian Department of Conservation and Land Management (CALM), denies any prior Aboriginal use of the plant.54 Its use for treating ‘old peoples diseases’ does raise the oft- used argument that the plant is being used for a different purpose — Aboriginal people were not using it to treat AIDS. This begs the questions: Should they still have intellectual property rights in this case? Further, should Indigenous peoples automatically have property rights to all resources within traditional land, regardless of whether they themselves recognise its medicinal or food value?

In submissions made to a House of Representatives inquiry into bioprospecting in Australia, many of the institutions, organisations and corporations involved in the collection and use of biological resources in Australia denied the importance of Indigenous knowledge to the collection processes. The reasons given to the Inquiry for this reluctance to utilise or acknowledge the importance of Indigenous knowledge to bioprospecting were issues with benefit sharing and intellectual property.55 I now turn to look at some examples of current bioprospecting projects within the biopharmaceutical industry and assess the extent to which they involve Indigenous peoples.

Current Bioprospecting Ventures Griffith University (GU) has a co-operative agreement with European pharmaceutical corporation AstraZeneca. It was formerly known as the Queensland Pharmaceutical Research Institute (QPRI), then AstraZeneca Griffith University (AZGU), and now Natural Products Australia (NPA). NPA has initiated R&D investment in bioprospecting and biotechnology in Queensland valued at more than $100 million.56 Using high- throughput screening techniques, NPA screens biological samples accessed from the rainforests and reefs of Queensland, Papua New Guinea, India and China.57 This bioprospecting project has identified 200 new species of marine sponges and 60 new plant species that may hold the key to new medicines for treating cancers and cardiovascular disease.58 The NPA collaborative research project claims not to use Indigenous knowledge while conducting the largest bioprospecting project currently Australia: Trends in the Global Policy Terrain 256

underway in Queensland.59 Yet a pain-killer said to be as potent as morphine being developed by NPA comes from a plant used by Aboriginal Australians for pain control.60

In another example, the Australian Medical Research and Development Corporation (AMRAD) has signed agreements with the Aboriginal Tiwi Land Council and Northern Land Council for exclusive access to plants on the Tiwi Islands and in Arnhem Land respectively, for pharmaceutical screening. In return for granting access to these plants on Aboriginal land, AMRAD agreed to pay the Aboriginal peoples through the Land Councils a percentage of any profits from the sale of any pharmaceutical product developed from the plants. The agreements were necessitated by the existence of Aboriginal native title rights in these areas under the Aboriginal Land Rights (Northern Territory) Act 1976. The bioprospecting agreements are for access to plants only, and not to Aboriginal medicinal knowledge, as set down in section 4(h) of the AMRAD Agreement with the Northern Land Council and the Arnhem Land Aboriginal Land Trust. Collectors are obliged not to “seek to obtain any traditional knowledge of the medicinal properties of plants from the Traditional Aboriginal Owners which is not publicly available”.61 The expectation of effectively policing collectors in this respect seems unrealistic, as will be discussed below.

AMRAD has agreements with Rhone-Poulenc Rorer Australia Limited, a subsidiary of one of the world’s largest pharmaceutical companies, and Canadian Biopharmaceutical Company BioChem Therapeutic Inc. Under these agreements, AMRAD will test compounds sourced in Australia against screens developed by their larger corporate partners. AMRAD stands to gain payment for research as well as milestone payments and royalties.62 AMRAD’s extensive library of natural products and associated knowledge are an obvious attraction to other potential research partners. This raises the question of whether Aboriginal interests are, or may in future be, compromised in any such transactions.

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Perth-based bioprospecting company BioProspect has recently moved its headquarters to Brisbane and is planning to build a sample collection, extraction and processing plant in North Queensland.63 EcoBiotics, a bioprospecting company based in Yungaburra, North Queensland, is identifying lead compounds from rainforest plants in Queensland in its search for new pharmaceuticals.64 Other companies and organisations such as the Commonwealth Scientific and Industrial Research Organisation (CSIRO), Australian Phytochemicals Ltd, Flinders University, the University of Melbourne, James Cook University (JCU), and the Australian Institute of Marine Sciences (AIMS) are also currently carrying out bioprospecting in Australia.65 In June 2003, AIMS signed a Memorandum of Understanding with the US National Cancer Institute (NCI) in Washington D.C., agreeing to provide marine samples including coral, sponges and star fish from the Great Barrier Reef for screening by the NCI. It is hoped this research will lead to a cure for cancer. AIMS immediately handed over 400 samples as its first consignment. It expects to provide between 1000 and 5000 samples per year during the five years of the agreement.66

The Queensland Government is encouraging the Palm Island Indigenous community to establish an open-ocean aquaculture sea sponge farming enterprise.67 The government is prepared to commit $70 000 to the project. The sponges could be supplied for pharmaceutical research where there is potential for the production of anti-cancer and other drugs. Alternatively, the government has identified high demand internationally for cosmetic and industrial sponges.

Queensland’s biodiversity is also currently being used to develop new products such as pain killers from the venom of cone shell snails, and sunscreens from coral.68 The mega- diversity of Queensland is known to be so great that there are more tree species in one hectare of the Daintree Rainforest than in the whole of North America.69 Queensland has 19 terrestrial and 17 marine bioregions as well as five World Heritage regions covering 40 million hectares.70 Up to 80 per cent of Queensland’s marine and terrestrial species are found nowhere else on earth.71

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Queensland’s Smart State Approach to Bioprospecting

In 1999, the Queensland Government established a $15 million Biodiscovery Fund. With regard to this fund, in May 2002, the government released a Queensland Biodiscovery Policy Discussion Paper where the term ‘biodiscovery’ was preferred over bioprospecting due to possible negative connotations with extractive practices and ecological damage. Most bioprospecting currently occurs illegally in Queensland, a fact acknowledged by the government.72 The vast and sparsely populated State makes it hard to ‘police’. Further encouraging unregulated flows of biological resources out of Queensland is the current complicated process of licensing, whereby biosprospectors are required to attain multiple licenses from numerous legislative regimes. This has been found to discourage responsible access, as evasive actions are often taken which amount to biopiracy.73 The proposed solution is for bioprospecting organisations to apply for a single collection permit, a ‘Biodiversity Collection Authority’, which will be granted only after a benefit sharing agreement has been signed with the State. To date, the Queensland Government has signed only four benefit sharing agreements with: 1) AstraZeneca R&D Griffith University (AZGU) (now NPA); 2) the Australian Institute of Marine Science (AIMS) (July 2000); 3) BioProspect Australia Limited (November 2001); and, 4) EcoBiotics (September 2003).74

The primary principle of the Biodiscovery Policy is to facilitate secure and certain access for industry to biological resources on State land, while secondary principles are to gain benefits from that access and to ensure bioprospecting is carried out in an ecologically sustainable manner. Free access to biological resources is a key part of the government’s pursuit of individual biotechnology companies, and attempts to entice them to Queensland from interstate and overseas. Other incentives include financial assistance in the form of grants, infrastructure, land, and tax concessions.75 The Queensland government has extensively promoted its unique and abundant biological diversity.

Operating within networks of power, the Queensland government has used knowledge to produce a regime of ‘truth’ in respect to biotechnology and bioprospecting, Australia: Trends in the Global Policy Terrain 259

articulated through legislation and authoritative statements. By promoting and normalising biotechnology as the dominant ‘way of knowing’ the natural world, the Queensland government seeks to legitimise bioprospecting as consistent with the economic goals of the state and its people. This also has the effect of marginalising Other knowledge systems as abnormal.

Normalising Biotechnology as a Dominant ‘Way of Knowing’ The stated aim of the Queensland Government is to use its biological diversity to promote “new-age” industries, particularly biotechnology, to turn Australia’s “brain drain” into a “brain gain”.76 Queensland Premier Beattie enthused:

this is going to be the century of biotechnology. Through biotechnology we can create thousands of long-term, new-age jobs. But if Australia does not become one of the world’s biotechnology leaders, we will be a Third World country in biotechnology terms.77

As part of its ‘Smart State’ strategy, Queensland’s incumbent Labor government has vigorously pursued the promotion of biotechnology with full confidence in its capacity to deliver ‘Smart’ economic solutions. In June 2001, the state government announced a suite of strategies to help establish biotechnology in Queensland, including a $270 million Queensland Bioindustries Strategy and a $100 million Smart State Research Facility Fund.78 In 2003, a further $100 million boosted funding to the Smart State Bioindustries Strategy while an extra $50 million was added to the Research Facility Fund.79 The government has also committed $100 million to a venture capital fund — the Biocapital Fund — to invest in biotechnology research. The fund is managed by the government’s Queensland Investment Corporation, and is modelled on US biotechnology venture capital programs.80 It is a “closed end”, 10-year fund established to invest in start-up ventures arising out of Australian universities and research organisations.81 Established within the Department of State Development is another funding mechanism for the biotechnology industry. The Venture Capital Unit (VCU) is assisting companies to raise funds while also assisting entrepreneurs to become investment ready through the VCU’s Capital Raising Pipeline and Business Angel Groups such as the Founders Forum, which provides mentoring to emerging Australia: Trends in the Global Policy Terrain 260

biotechnology companies.82 The Queensland Government has also established the Innovation Start-Up Scheme for pre-seed funding, the technology Innovators Forum, and a $6 million BioStart Program supporting new start-up companies.83

Table 2. Queensland State Government Funding for Biotechnology (2001-2003)

Queensland Government Funding for Biotechnology and the Bioindustry $million Biodiscovery Fund 15 Bioindustries Strategy (2001) 270 Bioindustries Strategy (bonus 2003) 100 Smart State Research Facility Fund 100 Smart State Research Facility Fund (bonus 2003) 50 Examples of Start-up Funding: Centre for Biomolecular Science and Drug Discovery 18 Australian Institute of Bio-engineering and Nanotechnology 50 Institute for Molecular Bioscience (funding over 10 years) 77.5 Examples of Infrastructure Funding: Queensland Bioscience Precinct 15 Bio-Accelerator Facility 4.2 Total 699.7

Source: Queensland Government documents.84

In addition, the state government is investing directly with monetary support for start- up costs to new and existing institutions. The Centre for Biomolecular Science and Drug Discovery at Griffith University’s Gold Coast Campus received $13 million start-up funding in 2001, and twelve months later, the Centre received a further $5 million for expansion.85 Together, the Queensland and federal governments provided $50 million to establish the Australian Institute of Bio-Engineering and Nano-Technology at the University of Queensland.86 In North Queensland, James Cook University has received financial assistance to establish itself as the home to many biodiscovery institutions including the Centre for Coral Reef Biodiversity, the Australian Institute of Marine Australia: Trends in the Global Policy Terrain 261

Science, the proposed Australian Tropical Forest Institute, the Cooperative Research Centre Reef, and the Cooperative Research Centre for Tropical Forest Ecology and Management (CRCs).87

In an academic-industrial-government complex, the CRCs are designed to foster collaboration between universities, the state and industry, as universities are now required to be entrepreneurial.88 The Premier has embraced this concept and stated that academia, industry and government all have a role to play in mapping out the best path for R&D in the Smart State.89 “Academia provides the brains, government provides the support, and private enterprise takes discoveries to the market place.”90 The AstraZeneca Griffith University Centre for Natural Product Research (NPA) in Queensland, discussed earlier in relation to its bioprospecting projects, is a good example of infrastructure established through such three-way collaboration in the biotechnology area. The state government provided the space within Brisbane’s Mount Gravatt Research Park, adjacent to Griffith University. The Queensland Museum and Queensland Herbarium provide samples of flora and fauna. Griffith University’s Centre screens the samples and isolates compounds. AstraZeneca provides research funds, and commercialises and markets end products.91

The state government has thus enthusiastically embraced public private partnerships (PPP) in biotech funding. Some of Queensland’s research infrastructure, according to the government’s own assessment, are “reaching the end of their effective lives”.92 So the government is considering the British model, where PPPs are the preferred way of developing and managing research infrastructure, and are increasingly entering into agreements with the private sector. An example is the Memorandum of Understanding the government signed with Graystone, a private construction company, for the construction of a Bio-Accelerator in Brisbane. The $4.2 million Bio-Accelerator facility will be established within Brisbane’s Technology Park at Eight Mile Plains, in Brisbane’s southern suburbs. At the ‘early stage’ of development, biotechnology companies often emerge through incubator programs within universities. When they outgrow the university facilities, new biotechnology companies are faced with the expensive prospect Australia: Trends in the Global Policy Terrain 262

of moving to their own premises outside the university. The idea of the Bio-Accelerator is to provide ‘middle-stage’ biotechnology companies with infrastructure such as laboratories and office space to facilitate their growth, enabling the companies to concentrate their funds in R&D.93 In this example of the academic-industrial- government complex, the academic biotechnology start-ups will be housed in infrastructure built on government land by a private company.

Another example is the $100 million Queensland Bioscience Precinct. It is considered to be the centrepiece of the Smart State Strategy. The state government provided $15 million in 2003 towards the construction of the Precinct and has further committed $77.5 million over 10 years in operational funding for the Institute for Molecular Bioscience, which will be housed within the Precinct. The University of Queensland, the federal government, and the private sector will contribute the rest of the required funding.94 The state government boasts that the $100 million dollar Bioindustries Strategy unveiled in 1999 is, in 2003, worth $540 million due to the combined investments of the state, the federal government, philanthropists, and the private sector.95

Biotechnology has indeed been privileged as a dominant ‘way of knowing’ within the research community by the Queensland Government’s extensive commitment to the creation of the state as a ‘biotechnology hub’. There are currently more than 250 biotechnology R&D projects underway in Queensland within more than 60 research institutions, universities and CRCs.96 In its media statements and promotional material, the government repeatedly attempts to lure biopharmaceutical companies to the state by emphasising the attractive investment climate including: Queensland’s status as the lowest taxing state; a pro-business, pro-science government; world class scientists and research facilities; and a low Australian dollar in a politically safe country.97 The investment climate is complemented by the possibility of developing products from Queensland’s extensive biological diversity.

Access to biological resources, the associated issues of the ownership of resources as property, and the ownership of knowledge as intellectual property, have, therefore, Australia: Trends in the Global Policy Terrain 263

made bioprospecting an important policy issue in Queensland. Providing access to biological resources for commodification and incorporation into ownership regimes, privileges and normalises dominant ‘way of owning’ while excluding and marginalising Other ownership systems.

Normalising Dominant ‘Ways of Owning’ Control of the intellectual property emanating from research on biological resources accessed legally or illegally in Australia generally has not featured prominently in policy deliberations. The Queensland Government has only recently begun grappling with the issue of ownership of land and of biological resources. Due to proposed stronger regulatory controls on access, the government acknowledges that bioprospecting organisations have been demanding legal certainty with regard to ownership of material collected.98

Formulation of the Biodiscovery Policy by Queensland’s Department of Innovation and Information Economy (DIIE) provided an opportunity to establish the state’s ownership rights over IP emanating from biological resources accessed by bioprospectors within the state, and to address the IPR’s of Indigenous Australians. It also provided the opportunity to establish legislative requirements for monetary benefits from bioprospecting for Indigenous peoples and for the state, perhaps by way of payments per sample, royalties or milestone payments, but the opportunity was missed. Instead, the state opted to placate the biotechnology industry. It declared that monetary benefits were not a priority, and opted instead for non-monetary benefits from bioprospecting in the form of investment opportunity in the Queensland biotechnology industry, employment creation, and improved knowledge of the environment and biodiversity.99 No doubt the latter will emerge, due to the role the Queensland Museum and the Queensland Herbarium have assumed as the preferred collection specialists used to supply biological resources to the biotech industry.

State institutions are thus used to collect biological resources relinquished free of charge by the state in the hope or expectation that biotechnology companies will choose to Australia: Trends in the Global Policy Terrain 264

become part of Queensland industry.100 Further enticement is offered insofar as the state has made clear that it will not make demands on individual companies for long term commitment to the state. Consequently, once the biological resources have been accessed, any resulting commodities need not be produced in Queensland, as the development and production processes are not site specific. Therefore, biotechnology companies are not tied, and need not display commitment, to Queensland.101 Furthermore, Queensland will not ‘over-regulate’ as it is believed that this would discourage biosprospectors from entering into agreements. As mentioned above, few operating outside the permit system are caught.

This, however, raises the obvious question: If biopirates are unlikely to be caught and the penalties are unlikely to be greater than the cost of drawing up a benefit sharing agreement, why would any company comply with a permit system? The government response is that it will rely on industry ‘good faith’, and on industry willingness to follow the Code of Ethical Practice for Biotechnology in Queensland. The Code is cited in the Queensland Biodiscovery Policy in relation to traditional knowledge, requiring those that subscribe to the Code to comply with the Commonwealth Native Title Act 1993 and seek consent from appropriate Aboriginal groups to collect samples on land held under Native Title. Section 2(b) of the Code states, however, that only those private sector companies and research centres receiving financial assistance from the Queensland Government to carry out biotechnology activities are obliged to comply. Others may choose to do so voluntarily, and must comply if they sign a benefit sharing agreement.

The Queensland Government has recently released an Exposure Draft Biodiscovery Bill 2003 in which the policy objective is to regulate access to biological resources in line with the Convention on Biological Diversity (CBD) objectives. Those objectives are the conservation and sustainable use of biological diversity, and the fair and equitable sharing of benefits arising from the use of nature as a resource. But, the Bill deals only with biological resources on ‘state land’:

‘State land’ means all land in Queensland that is not freehold land or land contracted to be granted in fee-simple by the State. The use of the word ‘freehold’ Australia: Trends in the Global Policy Terrain 265

should be taken to include land where a native title determination has been made and that determination recognises the right of exclusive possession (basically a legal power to restrict access by others) of the native title holders.102

This draws into focus the difference between Aboriginal peoples who have land rights and those that have been fully dispossessed. The majority of Aboriginal peoples in Queensland, who make up 3.5 per cent of Queensland’s population and 27.4 per cent of the entire Aboriginal population in Australia,103 are unable to control access to their land, resources and knowledge. Those who have secured Native Title to their land are able to enact an Indigenous Land Use Agreement (ILUA) which bioprospectors can present to the Environment Protection Agency (EPA) before being granted a Biodiversity Collection Authority (BCA).104 A BCA is a permit to bioprospect. Similarly those Aboriginal peoples who reside in Deed of Grant in Trust (DOGIT) areas can negotiate bioprospecting agreements as these areas have recently been converted to freehold status and handed over to the respective Aboriginal Councils.105 These areas amount to 10,800 square kilometres, which is, however, a small amount of land compared to, for instance, the 524,100 square kilometres held as conservation reserves in Queensland.106

Aboriginal Nations who wish to exploit their resources and knowledge are caught in a dilemma. Exploitation generally means participating in the dominant knowledge system by providing samples of biological material for analysis. This process itself represents a risk to Indigenous intellectual property rights (IIPR). For example, an Aboriginal community in Western Australia is keen to have one of its medicinal plants analysed. The community allegedly approached two different research institutions and was told by both that these studies could only be conducted if the IP associated with the plant was first forfeited to the research institution.107 This example brings sharply into focus the inappropriateness of Western intellectual property systems for protecting Indigenous intellectual property rights.

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Intellectual property law in Australia is embodied in a number of Acts passed by the Commonwealth Government and in a substantial body of British and Australian case law. Essentially, Australian statutes and case law reiterate an ideological-economic assertion of propriety rights in information.108 In Australia, section 13 of the Patents Act (1990) grants an exclusive right to the patentee to exploit, or to authorise another to exploit the invention during the term of the patent. A patent is valid in Australia for 20 years under the Patents Act 1990, though an extension of up to five years is possible for pharmaceuticals due to an amendment to the Act in January 1999.109 During this in- patent period, patents give the possessor the “right to occupy an area of activity with a degree of exclusiveness”.110

Patent legislation in Australia does place some (limited) restrictions on the scope of patentable material. Theories and ideas are outside the scope of the Patents Act, as stated in section 155(1)(b). Section 51(b) of the Patents Act establishes that “the Commissioner does have the discretion to refuse a patent to a substance capable of being used as food or medicine where the substance is a ‘mere mixture of known ingredients’”.111 While the rationale behind this legislative restraint is unclear, it can be argued that, in the interests of the public, food and medicine, in particular, should not be capable of being monopolised. This means, however, that a traditional Aboriginal medicine may be excluded from patentability as it is deemed a mere mixture of known ingredients. But when a compound is isolated using that traditional knowledge, then modified and transformed into a medicine that is different from the original substance, it is patentable.

Caution is necessary for those Aboriginal peoples who may consider that an agreement with a biotechnology company may provide a solution to their dilemma. Entering into bioprospecting agreements does not necessarily ensure intellectual property rights are retained over Indigenous resources and knowledge. Indeed, such agreements generally require the forfeiture of Indigenous intellectual property rights (IIPR). A good example is the bioprospecting agreement AMRAD signed with the Northern Land Council and Australia: Trends in the Global Policy Terrain 267

Arnhem Land Aboriginal Land Trust, as discussed earlier. All intellectual property rights to the samples collected as part of that bioprospecting agreement, and any products, discoveries and inventions from the samples collected, passes to AMRAD, as agreed in section 6.1 and 6.2 of the agreement. Notably, an ethnobotanist involved in the negotiations between AMRAD and the Aboriginal communities withdrew in the early stages. He was not happy with the negotiation process and advised the Land Councils to also withdraw. He believes his fears have been confirmed as the Land Councils have since expressed disappointment with the outcomes of the agreements.112

As an extension of the existing agreement between AMRAD and the Tiwi Land Council, the Menzies School of Health signed a further agreement with AMRAD for access to Tiwi Islander resources and knowledge. Post-graduate students undertook research to identify the biological activity of plants from the islands using ethnobotanical knowledge. The samples collected in the mid 1990s are apparently still stored at the Menzies School of Health.113 One of the researchers claims to have been criticised as a ‘biopirate’ by one of the ethnobotanists in the Traditional Medicines Project undertaken in the late 1980s.114 Yet samples from that Project, it is claimed, are also within the Northern Territory University (now Charles Darwin University).115 The intellectual property to these samples has been lost to the Indigenous peoples who relinquished control.

The Traditional Medicines Project was initiated by the Northern Territory Department of Health and funded by the Bicentennial Foundation Fund. Recognising concern in Aboriginal communities about the loss of knowledge, the Department asked communities if they wanted to be involved in the Project, an offer apparently accepted by most but refused by some.116 The Traditional Medicines Project culminated in the publication of numerous books and booklets by the Conservation Commission of the Northern Territory, detailing Aboriginal medicinal plant use in the Northern Territory. The aim of the Project was:

to record for posterity the use by Aboriginal people of native plants and other materials for therapeutic purposes, knowledge still existing in oral tradition. A Australia: Trends in the Global Policy Terrain 268

secondary objective was to confirm, through chemical analysis, the therapeutic value of the materials used as traditional medicines by Aboriginal communities in the Northern Territory.117

The project involved consultation with Aboriginal people, and the stated authors of the books published as part of the Project—Traditional Bush Medicines: an Indigenous Pharmacopoeia (1988) and Traditional Aboriginal Medicines in the Northern Territory of Australia (1993)—are the Aboriginal Communities of the Northern Territory.

In his comments, the ethnobotanist responsible for the collection of Aboriginal knowledge for the Project believed the knowledge would be protected because elders in the communities who provided the information hold the copyrights to these publications.118 Music, song lyrics and works of art are automatically copyright protected upon creation.119 While copyright is useful, it is valid for a limited period only (50 years after the author has died or 50 years after the date of recording for written and recorded work respectively), and is awarded to individuals not communities. This limited protection, which, in this case, is held in the name of a few elderly members of the community, may provide some financial reward from the sale of books, which according to copyright law cannot be reproduced without the permission of the copyright holders. However, it does not prevent other people (Indigenous or non- Indigenous), institutions, corporation or other entities from using the information held within the book. Furthermore, it is not clear if or how communities could successfully defend their communal ownership rights to this information when the copyright expires, assuming copyright need necessarily be respected when held in the name of the numerous ‘Aboriginal Communities of the Northern Territory’. Importantly, it is also highly unlikely the communities involved were aware that samples collected during that project were stored in the research institutions.

In Australia, limited progress has occurred under common law towards protection of Indigenous interests. A number of actions have been brought by Indigenous people in order to protect their intellectual property, particularly in relation to the appropriation and reproduction of cultural resources such as art, music and songs.120 Legal battles by Australia: Trends in the Global Policy Terrain 269

Aboriginal Australians for rights to their land and resources began in the 1970s. In the 1972 Milirrpum v Nabalco Northern Territory Supreme Court case, Aboriginal peoples in Arnhem Land were refused rights to their traditional ancestral land.121 Mr Justice Blackburn affirmed that Aboriginal people did not legally own the land.122 Despite this decision, it is not readily apparent, even to the legal fraternity, how or when Aboriginal entitlement to use their own land was legally extinguished.123 Justice Blackburn applied Locke’s legal principle that ‘land must be mixed with labour’ for property rights to exist. He concluded that, “it seems easier on the evidence to say that the clan belongs to the land than the land belongs to the clan”.124

In the 1992 Mabo v Queensland case, the High Court of Australia finally accepted a claim to native title by the Murray Islanders of the Torres Strait. Also recognised was Indigenous Australians’ relationship to the land. Some Indigenous peoples and their supporters rejoiced that the legal fiction of terra nullius had been overturned, though many are far less sanguine, as the claims of the majority of Aboriginal people are not covered by the resulting Native Title Act 1993.125

There is, however, no precedent for the rights of Aboriginal Australians to their medicinal resources and knowledge, especially when it has previously been placed in the public domain. The incorporation of Aboriginal medicine into the Northern Territory health care system since 1973 has also resulted in a diffusion of Indigenous knowledge into the public domain.126 Aboriginal health care workers and tribal elders have been utilised as informants since the Northern Territory Department of Health began collating Aboriginal plant use information.127 One ex-senior official of the department now holds grave reservations, particularly concerning the ethnobotanical studies undertaken in the afore mentioned Traditional Medicines Project. The official claimed that he, along with another colleague, withdrew from the project for ethical reasons.128 This was because no Aboriginal people were on the board overseeing the project; the intellectual property rights of the Aboriginal participants were not properly considered; and, the Aboriginal people were not fully informed of the consequences of Australia: Trends in the Global Policy Terrain 270

disclosing this information, nor of the possibility or probability of the appropriation of this disclosed knowledge.129

The cases documented here demonstrate that dominant knowledge and ownership regimes have been normalised in Australia, while Aboriginal knowledge and ownership systems have been marginalised. Currently no appropriate mechanisms exist to protect IIPR, yet, internal and external pressure to document Aboriginal knowledge is growing.

Documentation: A Vulnerable Practice of Resistance

According to Jacobs, the women of Port Augusta are experiencing pressure to record the traditional knowledge they hold before this information is lost.130 During research at Port Augusta and the Flinders Ranges in South Australia, Jacobs uncovered vibrant but often incomplete remnants of Aboriginal knowledge remaining among the women in the Aboriginal communities, despite inferences that these people are ‘non-traditional’. The women, from several different communities, have diverse knowledge of religious and secular issues, including ceremonies and rituals, songs, art, social relations, history and bush foods and medicines. Some of the women periodically travel to the north of the state where they unite with their people who continue to live more ‘traditional’ lifestyles, participate in ceremonies and share knowledge. There are many problems associated with transmitting and documenting such knowledge. One such problem identified by Jacobs is reluctance on the part of women at Port Augusta to pass on this knowledge because it is either incomplete or they are uncertain if the knowledge they possess is entirely correct.131 Furthermore, most of the knowledge was passed on to them in confidence by family members but outside the customary ceremonial realm. This has left the women uncertain if they are able to transmit the knowledge to others or to document it.

A further concern is the attitude of the men within the community, which in Jacobs’ opinion, has been shaped by non-Indigenous discourse.132 Many of the men are vehemently opposed to the women practising or talking about traditional knowledge, or Australia: Trends in the Global Policy Terrain 271

even claiming to possess such knowledge, which they believe is the domain solely of men. However, Jacobs argued that this assertion that knowledge of ceremonies and traditions belongs only to men is a creation of academic discourse. Male researchers, Jocobs argues, have had access to, and have therefore recorded, only men’s knowledge, leading to a misguided assumption that women possess no such knowledge. This discourse has, in turn, influenced Indigenous men to believe they are the sole authority. The imbalance has gradually been disclosed with more researchers taking an interest in the role of Aboriginal women in the production and reproduction of knowledge.

Disagreement within Indigenous communities, due largely to problems of self-identity created by the internalising of colonial discourse, can indeed be an impediment to control of Indigenous resources and knowledge. This is particularly important considering the current interest in pre-contact and contemporary Aboriginal resources and knowledge. Another equally important impediment can be the lack of viable options for safeguarding Indigenous knowledge once it is documented due to the incompatibility between Aboriginal customary knowledge control and transmission systems with Western law. This can undoubtedly be disempowering for Indigenous peoples.

The documentation of Aboriginal knowledge makes it vulnerable to appropriation, yet the failure to document it may make the transmission of large portions of that knowledge to future generations vulnerable. Some communities have weighed up the issue and opted to document ethnobotanical and ethnomedical information. Aboriginal communities have collected it for local use, for educational purposes,133 and for language renewal programs.134 Jenna Zed, Project Coordinator with Sowing the Seeds, the Intellectual Property and Genetic Copyright Newsletter, in Western Australia, put together a traditional genetic copyright documentation kit to enable Aboriginal communities to document and use their resources and knowledge without loss of control of this material.135

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Kalotas advocated employing and training Aboriginal people to further document traditional plant knowledge and collect herbarium samples.136 Such initiatives have been incorporated into government training programs in Western Australia,137 and in the Northern Territory.138 Numerous other recent government initiated and funded projects are underway, particularly in Western Australia. The West Australian Department of Conservation and Land Management (CALM), in utilising the Australian National Parks and Wildlife Services Contract Employment Program for Aboriginals in Natural and Cultural Resource Management (CEPANCRM), is drawing on Aboriginal knowledge ostensibly for environmental management purposes.139 In 1986, CALM announced the development of an ethnobotanical garden in the Pilbara, where specimen seeds and indigenous knowledge would be stored. In 1991, CALM published the results of research conducted on the food, medicinal and artefact knowledge of Nyungar people using Crown land.140 It is evident then that the incorporation of Indigenous knowledge into Western systems through training programs and other government initiatives results in the further loss of control and power by Aboriginal people over their own knowledge and resources.

In September 2003, the Desert Knowledge Cooperative Research Centre was officially launched in Alice Springs. The Aboriginal and Torres Strait Islander Commission (ATSIC) has committed $3.5 million over seven years toward the development of the Centre.141 The CRC had nine core partners: 1) ATSIC (now defunct); 2) the Central Land Council; 3) CSIRO; 4) Curtin University of Technology; 5) Desert Peoples Centre; 6) the Northern Territory Government; 7) Northern Territory University (now Charles Darwin University); 8) the Western Australian Government; and, 9) the Australian National University. There are also numerous supporting partners from industry, government and academic institutions.142 What has emerged is a four-way indigenous-academic- industry-government complex. The main objective of this CRC is to document the traditional knowledge of Indigenous peoples, which will then be combined with Western scientific knowledge with the aim of improving the “health, wellbeing and livelihoods of all desert communities”.143 The problem remains that there are inadequate provisions within Australian law to protect the IIPR of the participants, making it Australia: Trends in the Global Policy Terrain 273

difficult for Aboriginal Nations to secure control of the knowledge provided in such projects. This is important because the CSIRO has numerous collaborations with international and national biotechnology companies both through CRCs and through bilateral arrangements, including some of the largest seed companies in the world like French TNC Groupe Limagrain.144

Many books documenting Aboriginal medicinal knowledge have recently been produced by Indigenous145 and non-indigenous authors146 adding to the voluminous collection of material documented since colonisation. Anthropologists and other researchers hold further unpublished volumes of field notes documenting Indigenous medicinal and plant knowledge.147 Much of the material collected since the 1970s by researchers as part of ethnobotanical studies within universities was documented for posterity at the request of Indigenous peoples themselves. They feared an imminent breakdown of cultural reproduction. But, the material was never meant for publication. As the people whose knowledge fill those pages decease, the researchers are left with a dilemma. They have to decide who now owns that information and what should become of it. The communities from which the information originated may no longer have any members left who hold this knowledge. Yet, if the researchers were to return the information to the community it may assist them to establish more convincing claims to land, as it may be evidence of a continued connection with country, though the reality of physical disconnection may legally negate that claim. The documented knowledge could assist them to benefit financially, perhaps by establishing Indigenous enterprises or by seeking payment for access to that knowledge. Kalotas believed that all information collected by researchers should be “more accessible” to the communities from which the knowledge originated.148 Aboriginal activist and community leader Henrietta Fourmile asserted that to withhold such information is to “deny us our right to reconstruct our cultures and traditions, to strengthen and develop our Aboriginal identity”.149

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Moves to Self-Determination and Positive Outcomes

Projects promoting the involvement of Aboriginal people in the commercialisation of their knowledge and resources, particularly medicines and ‘bush tucker’, are part of an attempt to provide some degree of self-determination or independence. Reliance on welfare provided to Fourth World Nations by states has facilitated the maintenance of traditional cultural practices, albeit in a modified form.150 Ironically, Aboriginal peoples in Australia may now be able to gain independence from welfare through the exploitation of traditional practices and knowledge.

Some Aboriginal peoples and their supporters firmly believed that Aboriginal peoples have the potential to initiate ‘innovative’ projects, including the gathering of seeds and medicinal plants.151 According to this assessment, Aboriginal peoples could develop these enterprises as a mini-economy co-existing parallel with the mainstream economy. The economic independence achieved through these enterprises would provide at least a degree of autonomy and independence from the welfare and bureaucracies of the encapsulating state. A former ethnobotanist with CSIRO, is attempting to develop a strategy so Aboriginal people in Central Australia can commercialise their knowledge and resources.152 Aboriginal people own the land and have knowledge of its resources. The problem, according to this ethnobotanist, is that they have no access to value adding or vertical integration with industry. The only options they have are to keep it a secret or to build the capacity to use it.

A project has been initiated at Fitzroy Crossing, in a region known as the Kimberley in Western Australia, to explore new markets for bush foods and to improve local diets by reincorporating traditional foods and break down reliance on store foods. Project coordinator Victor Cherikoff envisions eventually supplying stores with traditional food produced in market gardens.153 Another ‘Bush Tucker’ Initiative emerged in 2002. Aboriginal communities in Central Australia and North Queensland have arranged to provide ‘Bush Tucker’ to Robins Australian Foods and the Coles Indigenous Food Fund. Australia: Trends in the Global Policy Terrain 275

This particular initiative has the potential to provide economic self-reliance to the participating communities, which is a “prerequisite for self-determination”.154 While praising the opportunities the Initiative brings, ATSIC Commissioner Terry O’Shane stated that:

There are, however, some real concerns about the proposed relationship between these entrepreneurs and the Aboriginal communities. Our aspirations are not to become seed or fruit collectors for whitefellas but to be real partners with the economic, employment and training outcomes that real partnership entails.155

This would indicate that are some community reservations about entering into such agreements within the mainstream economy, based mainly on Aboriginal consciousness of the colonial legacy that has shaped the power relationship between Indigenous and non-indigenous Australians.

Conclusion

I have demonstrated in this Chapter that the current debate on bioprospecting in Australia is not simply an issue of access to biological resources, as the concerns of Aboriginal peoples also transform it into an issue of justice and equity. The appropriation and incorporation of Aboriginal knowledge and resources into the knowledge and ownership regimes of the settler state has been occurring since colonisation. Dominant ‘ways of knowing’ and ’ways of owning’ have been normalised as superior within the discursive practices of networks of power, particularly those privileging biotechnology within academic-industrial-government complexes.

Concomitantly, Aboriginal knowledge and ownership systems have been marginalised. This was evidenced through examination of the Biodiscovery Policy adopted in Queensland, which does not adequately deal with Aboriginal interests. With a small population and limited R&D funds, the Queensland Government has addressed the public policy issue of access to biological resources by articulating a willingness to exploit these resources in the pursuit of economic development. In a policy environment characterised by internal pressure from government departments and public research Australia: Trends in the Global Policy Terrain 276

institutions, and external pressures from the biotechnology and pharmaceutical industry, biotechnology has emerged as a privileged industry enjoying generous government support. Queensland’s rich biological diversity has been a key catalyst in this privileging process. But, Aboriginal claims of connate rights to knowledge and resources they identify as their own have not been adequately addressed by the Queensland or central state governments. This issue is complicated further in Australia by the different colonial experiences of Aboriginal Nations in remote and heavily settled areas.

As Fourth World peoples, Aboriginal Australians have, however, developed tactics or strategies of resistance to the dominant power of their encapsulating state. The strategies of the elite involved in Aboriginal politics are based on the needs of the groups to both oppose and influence mainstream institutions of governance.156 The involvement of a few elite entangled within political processes gives the impression of participation. But Aboriginal issues are generally only addressed within dominant settler state policy processes as ‘problems’, and no real empowerment has emerged at the central state or local state level. Hence, Aboriginal peoples have increasingly taken their concerns to the international arena, although involvement or ‘entanglement’ in the process at this level while empowering, can also be disempowering.

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ENDNOTES

1 D.H. Lawrence from his novel Kangaroo (1923), cited in Griffiths., Tom., Hunters and Gatherers: An Antiquarian Imagination in Australia, Cambridge: Cambridge University Press, 1996.

2 Foucault, M., “Governmentality”, The Foucault Effect: Studies in Governmentality, Graham Burchelle, Colin Gordon and Peter Miller (eds), London: Harvester Wheatsheaf, 1991, p. 102-103.

3 Foucault, M., “Two lectures”, Power and Knowledge: Selected Interviews and Other Writings 1972-77: Michel Foucault, C. Gordon (ed), Brighten: Harvester Press, 1980b, p. 92.

4 According to figures given by Geoff Burton, Director of Access to Genetic Resources, Department of Foreign Affairs and Trade, Canberra, and Dermot Tiernan, Director, Biotechnology Policy and Regulation Team, Department of Innovation and Information Economy, Queensland, at an Information Session Program on The Queensland Biodiscovery Policy Discussion Paper in Brisbane, June 3rd 2002.

5 Queensland Department of Premier and Trade., “$7.8m Boost for Tropical North QLD Biotech Research”, Media Statement, 11/06/02. ; Queensland Department of Innovation and Information Economy., “Biodiscovery Bonuses in Smart State”, Media Statement, 15/05/02. ;

6 Hindmarsh, R., ‘Diminishing Biodiversity: A World Under Siege’. In R. Haynes (ed.), High Tech High Co$t?: Technology, Society and the Environment, Pan Macmillan, Melbourne, 1991. This does not, however, deny that Aboriginal peoples are capable of altering or ordering their environment to meet their needs. Indeed, the Australian landscape has for thousands of years been impacted upon by humans, where Indigenous peoples have practised landscape management, especially through the use of fire. Verran, Helen., “A Postcolonial Moment in Science Studies: Alternative Firing Regimes of Environmental Scientists and Aboriginal Land Owners”, Social Studies of Science, Vol. 32, No 5/6, Oct/Dec 2002, pp. 729-762.

7 Queensland Department of Innovation and Information Economy., Queensland Biodiscovery Policy Discussion Paper, Queensland Government, May 2002, p. 5.

8 Woodward, D., Parkin, A., Summers, J., Government, Politics, Power and Policy, 6th edition, South Melbourne: Longman, 1997, pp, 8-12. ; Federal systems of government, which are characterised by strong states fiercely protecting their autonomy within the federation, are particularly complex. Hague observes that in the United States federal system, power is dispersed between “fifty states and eighty thousand local government jurisdictions”. Policy-making in the US, according to Hague, is akin to “organised anarchy where no-one, not even the President, is in overall charge”. Australia has a hybrid federal and Westminster system of responsible government, Australia: Trends in the Global Policy Terrain 278

which requires a dispersal of power between the two tiers of government, Commonwealth and State, albeit on a much smaller scale than experienced in the US. Hence, co-operation and co-ordination of policy is often unachievable, and minority interests wanting to participate in the policy process, such as Indigenous peoples, can be presented with a greater challenge. These systems, by virtue of their fragmented and competitive structure, are particularly vulnerable to corporate pressure within a globalising economy. The involvement of major economic interests in government has survived the move by many Western States away from State intervention toward the free market. Policy continues to be developed through negotiation between government and powerful corporate interests, those considered as ‘insiders’, while ‘outsiders’ such as Indigenous and environmental interests are, effectively excluded. This sustained relationship sees governments promoting the interests of multinational corporations (MNCs) with the expectation of advancing domestic economic prosperity. Hague, R., “The United States”, Power and Policy in Liberal Democracies, Martin Harrop (ed), Cambridge: Cambridge University Press, 1992, p. 108.

9 See for example: Davis, G., Wanna, J., Warhurst, J., and Weller, P., Public Policy in Australia, Sydney: Allen and Unwin, 1993; Woodward, D., Parkin, A., Summers, J., Government, Politics, Power and Policy, 6th edition, South Melbourne: Longman, 1997.

10 The Commonwealth State Working Group on Access to Biological Resources., Managing Access to Australia’s Biological Resources—Developing a Nationally Consistent Approach, 1998 www.ea.gov.au/biodiversity/science/access/cswg ; Commonwealth Public Inquiry--Access to Biological Resources in Commonwealth Areas., Access to Biological Resources in Commonwealth Areas, www.ea.gov.au/biodiversity/science/access/inquiry/index.html ; House of Representatives Standing Committee on Primary Industries and Regional Services Inquiry., Bioprospecting: Discoveries Changing the Future, www.aph.gov.au/house/committee/primind/bioinq/report/report.pdf ; The Genetic and Biochemical Resources Working Group (GBRWG) established in 2001 to pursue the objective of a nationally consistent approach to the use of biological resources.

11 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilisation.

12 Ibid.

13 Clark, G., “ATSIC Chairman to Attend UN Permanent Forum on Indigenous Issues”, ATSIC Media Statement, 09 / 04 / 03.

14 ATSIC., “Indigenous Rights”, ATSIC Policy / Advocacy, www.atsic.gov.au/issues/Indigenous_Rights/international/Default.asp

15 “ATSIC represents a classic confrontation between two vastly different systems that are answerable to two masters. How can an organisation function as a representative Indigenous peak body and an administrative department at the same time?” Ivanitz, Australia: Trends in the Global Policy Terrain 279

M., “Challenges to Indigenous Service Delivery”, Glyn Davis and Patrick Weller (eds), Are You Being Served? State, Citizens and Governance, Crows Nest NSW: Allen and Unwin, 2001, p. 137.

16 Aboriginal and Torres Strait Islander Commission (ATSIC)., “Statement From the NT Northern Zone”, Media Release”, 29 / 11 / 02.

17 Maori Resistance Site., “GMO in Our Part of the World – an Interview With Jessica Hutchings”, www.aotearoa.wellington.net.nz/he/gmo.htm accessed on 08 / 10 / 03.

18 Foucault., “Two lectures”, op. cit., p.94.

19 Clark, G., “ATSIC’s Contribution Acknowledged — New United Nations Pressure for Changes to native Title laws”, ATSIC Media Release, 26 / 05 / 03, p. 1-2.

20 Quote from UNCERD in speech by Clarke, Geoff., “Speech on Permanent Forum on Indigenous Issues”, Speech Presented at the UN Permanent Forum on Indigenous Issues, accessed as ATSIC Media Statement, 23 / 05 / 03.

21 Clark., “Speech on Permanent Forum on Indigenous Issues”, op. cit.

22 Evatt, Elizabeth., “Realising Human Rights Utilising UN Mechanisms”, Indigenous Human Rights, Sam Garkawe, Loretta Kelly, Warwick Fisher, (eds), Sydney: Sydney Institute of Criminology, 2001, p. 184.

23 Ibid.

24 Evatt., “Realising Human Rights Utilising UN Mechanisms”, op. cit., p. 183.

25 Jordon cited in Noble, F., Who Do We Think We Are? op. cit., p. 46.

26 Reynolds, H., “After Mabo, What About Aboriginal Sovereignty?” Australian Humanities Review, www.lib.latrobe.edu.au/AHR/archive/Issue-April- 1996/Reynolds.html

27 Griffiths., Hunters and Collectors:, op cit., p. 9.

28 Aborigines were thus considered primitive people characterised by indolent small groups wandering aimlessly in the unforgiving wilderness. It was also widely assumed that Aboriginal peoples were recent immigrants to Australia, but since arrival had failed to change the environment. Ibid., p. 12.

29 Attwood, Bain., “Introduction”, B. Attwood and J. Arnold (eds), Power Knowledge and Aborigines, Victoria: La Trobe University Press, 1992, p. x. Yet, at the same time, Aboriginality has been equated with the ‘past’ and therefore ‘condemned to history’, chiefly as exhibits in museums. They were said to have ‘myths’, which did not equate Australia: Trends in the Global Policy Terrain 280

to history, instead indicating their primitiveness and backwardness. Griffiths., Tom., Hunters and Gatherers: An Antiquarian Imagination in Australia, Cambridge: Cambridge University Press, 1996, p. 26. ; Ironically, ‘traditional’ dances and songs are presented at contemporary mainstream ‘cultural’ events as a ‘symbol’ of Australian identity. Noble, Fiona., Who Do We Think We Are? People Who Are Learning About Their Aboriginality, unpublished Masters Thesis, Griffith University, 1996, p. 54.

30 Griffiths., Tom., Hunters and Gatherers: An Antiquarian Imagination in Australia, Cambridge: Cambridge University Press, 1996, pp. 14, 26.

31 Historian Stephen Dovers has described this as ‘Eurocentrism’. Dovers, S. (ed).. Australian Environmental History: Essays and Cases. Melbourne: Oxford University Press, 1994.

32 Ibid.,. p. 273

33 Davies, Margaret., Asking the Law Question, 2nd edition., Sydney : Law Book Company, 2001.

34 Morris, G., Cook, C., Creyke, R., Geddes, R., and Holloway, I., Laying Down the Law: The Foundations of Legal Reasoning, Research and Writing in Australia, Sydney: Butterworths, 1996, p. 39.

35 Wik Peoples v Queensland, cited in Clarke., “Speech on Permanent Forum on Indigenous Issues”, op. cit., p. 251.

36 Holden, Annette., Fourth World Economic Development: The Establishment of Capitalism in Three Aboriginal Communities in Cape York Peninsula, Queensland?, unpublished PhD thesis, Division of Commerce and Administration, Griffith University, 1994, p. 69.

37 Rowley, cited in Holden, Fourth World Economic Development., op. cit., p. 70.

38 Cape York Peninsula, the area Holden focused on in her case study, is subject to, but also separate from Australian rule. The majority of the people residing in Cape York Peninsular identify themselves as Indigenous, practice their culture, traditions and languages, and enjoy considerable autonomy concerning, for example, control of access to land and the creation and enforcement of laws other than traditional law. Ibid., pp. 71-73. According to this assessment, other parts of Australia, especially in Western Australia and the Northern territory can also be considered colonial.

39 Devanesen, Dayalan., “Traditional Aboriginal Medicine and Biocultural Approach to Healthcare in Australia’s Northern Territory”, Proceedings of Second National Drug Institute Alcohol and Drug Foundation, Canberra, 1985, p. 37.

40 Webb, L.J., Australian Plants and Chemical Research Brisbane: Jacaranda Press, 1969(a), p.83. Australia: Trends in the Global Policy Terrain 281

41 Webb, L.J., Some New Records of Medicinal Plants Used by the Aborinines of Tropical Queensland and New Guinea Proceedings of the Royal Society of Queensland, Vol. LXXI, No. 6. 1960, p. 103.

42 Maiden, J. H., The Useful Native plants of Australia, Melbourne: Compendium, republished 1975.

43 Webb, L.J., “The Use of Plant Medicines and Poisons by Australian Aborigines” Mankind 7 1969 (b) p. 137.

44 The Australian Institute of Aboriginal Studies was established in 1963 to research Australian Aborigines. Ibid., p.137.

45 Ibid.

46 Ibid. Part of the problem Webb encountered can readily be attributed to the method he used to collect the plant knowledge. He sent out 117 questionnaires to Aboriginal communities located on government reserves and missions on the presumption that those who conducted the questionnaires would have had “substantial research experience of the Aborigines”. Presumably the majority of these people were non- Indigenous, which can in itself create a bias reflecting the interviewers culture. An inexperienced interviewer may misinterpret information due to misunderstanding in the data collection process. Numerous other factors can contributed to problems with data, including the possibility the interviewees told the researchers only what they wanted or misinformation on purpose because they wanted to get rid of them, or possibly if they thought it would please the interviewer.

47 Washington Insight, “Compound Alert: Natural Product Agents in Development by the U.S. National Cancer Institute”, Washington Insight: Newsletter for Natural Products Scientists, No. 3, May 1993, p. 2.

48 Christie, J., “Enclosing the Biodiversity Commons: Bioprospecting or Biopiracy?”, Altered Genes:Reconstructing Nature: The Debate, R. Hindmarsh et al (eds), St Leonards, NSW: Allen and Unwin, 1998, p. 60.

49 Blakeney, M., “Bioprospecting and the Protection of Traditional Medicinal Knowledge of the Indigenous Peoples: An Australian Perspective”, EIPR, No 6, 1997, p. 298; Fourmile,1995:7.

50 Graham, D., “’Useless’ Bush May Have Cure the World Waits For”, The Age, Tuesday, December 28, 1993, p. 3.

51 Washington Insight, “Compound Alert”, op cit., p. 2.

Australia: Trends in the Global Policy Terrain 282

52 Spjut, the bioprospector, was not officially acting in the capacity of a NCI collector. The arrest of Spjut was perhaps unusual due to Australia’s lax legislative tools. While quarantine measure to prevent plant material entering Australia are strong, with checks routinely made at entry points into Australia, measures preventing the removal of plant material from Australia are minimal. These are observations made by Michelle McLaughlin from the Office of Complementary medicines within the Therapeutic Goods Association (TGA) during a presentation at the National Herbal Association of Australia Conference in 1999. Her paper can be found at : McLaughlin, Michelle., “Regulation of Herbal medicines — How Government Regulation Affects the Supply of Plant Material for Medicinal Use”, Proceedings of the National Herbalists Association of Australia Conference, Medicinal Plants for the Future: Sustainability and Ethical Issues, Byron Bay, NSW, 13-14 August 1999, Annandale, NSW: National Herbalists Association of Australia, 2000, pp. 33-42.

53 Armstrong, James A., and Ian Abbott., “Sustainable Conservation – A Practical Approach to Conserving Biodiversity in Western Australia”, Paper Presented at the Conservation Through Sustainable Use of Wildlife Conference, Brisbane, Queensland, February 1994a, p. 6. ; Armstrong, James A., and Ian Abbott., “Marketing the Biota and Landscapes of Western Australia’s Rangelands”, Paper Presented at the 8th Biennial Conference of the Australian Rangeland Society, June 1994b, Katherine, Northern Territory. 1994b, p. 10. And at this stage development of a drug is still considered an ‘if’.

54 Graham, “’Useless’ Bush”, op. cit., p. 3.

55 House of Representatives Standing Committee on primary Industries and Regional Services., Bioprospecting: Discoveries Changing the Future: Inquiry into Development of High Technology Industries in Regional Australia based on Bioprospecting, The Parliament of the Commonwealth of Australia, Canberra, August 2001, p. 11.

56 Queensland Department of Premier and Trade., “Biotech in Queensland – A Smart Business Move”, Media Statement, 21 / 06 / 03.

57 Queensland Department of Innovation and Information Economy., Queensland Biodiscovery Policy Discussion Paper, Queensland Government, May 2002, p. 5.

58 Queensland Department of Premier and Trade., “Biotechnology in Queensland” op. cit., 21 / 6/ 03, p.1.

59 Personal communication with senior official, AstraZeneca R&D Griffith University (QPRI at the time of the interview) 20 June 1997.

60 Merson, J., “Gene Prospecting: Part 1”, The Science Show, Australian Broadcasting Commission, January 14th 1995.

Australia: Trends in the Global Policy Terrain 283

61 Section 4(h) AMRAD Natural Products Pty Lty and Northern Land Council and The Arnhem land Aboriginal Trust Flora Collection Agreement, dated July 18, 1995, p. 6.

62“Access to Australia’s extensive biota is through collection agreements with government authorities, research institutions, State herbaria and Aboriginal Land Councils and Land Trusts. An agreement with the State Government of Sarawak in Malaysia provides similar access to another major source of biodiversity.” AMRAD Corporation Limited., “AMRAD Announces Natural Product Screening Collaboration”, News Release, Melbourne, 9 January 1997. ; AMRAD Corporation Limited, “AMRAD Enters Multi-Million Dollar Natural Products Screening Collaboration With Rhone-Poulenc Rorer”, News Release, Melbourne, 12 May 1997.

63 Queensland Department of Premier and Trade., “$7.8m Boost for Tropical North QLD Biotech Research”, Media Statement, 11/ 06 / 02.

64 Queensland Department of Innovation and Information Economy., “Smart State Innovator Get $2.2M Budget Boost”, Media Statement, 20 / 06 / 02.

65 House of Representatives Standing Committee on Primary Industries and Regional Services., Bioprospecting: op. cit. p. 11.

66 Queensland Department of Premier and Trade., “Allies Sign Agreement On Using Australian Marine Life in Search for Cancer Cure”, Queensland Media Statement, 22 / 06/ 03. Queensland Department of Premier and Trade., “Allies Sign Agreement on Using Australian Marine Life to Search for Cancer Cure”, 22 / 6 / 03.

67 Queensland Department of Aboriginal and Torres Strait Islander Policy (DATSIP)., “Spence Backs International Palm Island Enterprise”, Queensland Media Statement, 05 / 09 / 03.

68 Queensland Department of Innovation and Information Economy., “Smart State Participates in Australia’s Biggest Biotech Event”, Queensland Media Statement, 16 / 08 / 02.

69 Queensland Department of Premier and Trade., “$7.8m Boost for Tropical North QLD Biotech Research”, Media Statement, 11/ 06 / 02.

70Queensland Department of Innovation and Information Economy., “Biotechnology”, www.biotech.qld.gov.au/biotechnology/ accessed 30th May 2002.

71 Professor Peter Andrews, the Chairman of the Queensland government’s recently- appointed Biodiversity Advisory Council, cited in Queensland Department of Premier and Cabinet., “Biodiscovery to Deliver Smart State Dividends to Taxpayers”, Media Statement, 23 / 06 / 03.

Australia: Trends in the Global Policy Terrain 284

72 Tiernan, D., Director, Biotechnology Policy and Regulation Team, Department of Innovation and Information Economy, Queensland, presentation as part of the consultation process on The Queensland Biodiversity Policy Discussion Paper, Brisbane, June 3 2002.

73 Queensland Department of Innovation and Information Economy., Queensland Biodiscovery Policy Discussion Paper, op. cit. ; Queensland Department of Innovation and Information Economy., “QLD’s Biodiversity ‘Discovered’”, Media Statement, 13 / 09 / 03.

74 Ibid.

75 Department of Innovation and Information Economy 2000. Code of Ethical Practice for Biotechnology in Queensland, Queensland Government, September, p. 2.

76 Queensland Department of Premier and Trade., “Premier Launches Fund to Expand Drug Discovery Centre”, Media Statement, 25 / 10 / 02.

77 Peter Beattie quoted in media statement from Queensland Department of Premier and Trade., “Beattie Suggests QLD, NSW and Victoria Biotech Alliance,” Media Statement, 21 / 01 / 03.

78 Department of Innovation and Information Economy 2002. Queensland Biodiscovery Policy Discussion Paper, Queensland Government, May, p. 4.

79 Queensland Department of Innovation and Information Economy., “$100 Million Boost for Smart State”, Media Statement, 03 / 06 / 03. ; Queensland Department of Premier and Trade., “Queensland Research and Development Funding Bonanza”, Media Statement, 24 / 06 / 03.

80 Queensland Department of Premier and Trade., “Budget funds for Future of Smart State”, Media Statement, 18 / 06 / 02.

81 Queensland Department of Premier and Trade., “Premier Launches $100 Million BioCapital Fund”, Media Statement, 09 / 05 / 02, pp. 1-2.

82 Department of State Development., “Smart State Venture Capital Unit Encourages Business Growth and Investment”, Media Statement, 01 / 04 / 03.

83 The Start-Up Scheme provides up to $80,000 for innovators in the early stages of commercialisation so they can develop their ideas and attract venture capital, the technology Innovators Forum provides networking opportunities for those seeking Venture Capital Funding, and the BioStart Program supports new start-up companies. Queensland Department of Innovation and Information Economy., “Help for Queensland Investors”, Media Statement, 21 / 07 / 02.

Australia: Trends in the Global Policy Terrain 285

84 Queensland Department of Premier and Trade., “Budget funds for Future”, op. cit. ; Queensland Department of Premier and Trade., “Premier Launches $100 Million BioCapital Fund”, op. cit. ; Queensland Department of Innovation and Information Economy., “Help for Queensland Investors”, op, cit. ; Queensland Department of Innovation and Information Economy., “$100 Million Boost for Smart State”, op. cit. ; Queensland Department of Premier and Trade., “Premier Launches Funding To Expand Drug Discovery Centre”, op. cit. ; Queensland Department of Innovation and Information Economy., Queensland Biodiscovery Policy Discussion Paper, op. cit. ; Queensland Department of Innovation and Information Economy., “QLD’s Biodiversity ‘Discovered’”, op. cit.

85 There has been lots of interest in the Centre for Research within Australia and Overseas. The Centre has future plans to become a Research Institute. Queensland Department of Premier and Trade., “Premier Launches Funding To Expand Drug Discovery Centre”, op. cit.

86 Queensland Department of Premier and Trade., “Smart State Centrepiece Aims to Reverse Brain Drain: Beattie”, Media Statement, 21 / 05 / 03.

87 The latter two have since been de-funded. Ten of the 30 CRCs receiving grants for the federal government are located in QLD and JCU has the highest per capita income from CRCs in any Australian University. Queensland Department of Innovation and Information Economy., “Labor’s Research and Development gets Smart”, Media Statement, 29 / 10 / 02.

88 Queensland Department of Premier and Trade., “QLD Proves Its a Smart State”, Media Statement, 11 / 12 / 02.

89 Queensland Department of Innovation and Information Economy., “Smart State Asks For More R&D Commitment From Clth”, Media Statement, 17 / 07 / 02.

90 Queensland Premier Peter Beattie quoted in a Media statement from the Queensland Department of Premier and Trade., “Premier Firm QLD Partnerships With Pharmaceutical Giant”, Media Statement, 12 / 10 / 02.

91 Quinn R., and Clement, G., “Commercializing Pharmaceutical Research by Joint Venture”, Wanna, J., Forster, J., and Graham, P., (eds), Entrepreneurial Management in the Public Sector, South Melbourne: MacMillan, 1996.

92 Queensland Department of Premier and Trade., “Are PPPs the Smart Way to Build Smart State Infrastructure”, Media Statement, 11 / 10 / 02.

93 It is envisaged by the government that by the time they reach the ‘end-stage’ of commercialisation a larger purpose built facility will be established within the Park to accommodate their needs. The Australian Institute of Commercialisation, also located within the Park, is designed to assist at that ‘end-stage’. Queensland Department of Australia: Trends in the Global Policy Terrain 286

Premier and Trade., “QLD Biotech Firms Hit the Accelerator”, Media Statement, 08 / 06 / 02.

94 The federal government, through the CSIRO, has committed $50 million and a further $15 million will come from the Federation Fund. UQ has committed $15 million. $10 million will be provided by Atlantic Philanthropies “an organisation which contributes to educational institutions worldwide. Queensland Department of Premier and Trade., “Smart State Centrepiece”, op. cit., 21 / 05 / 03.

95 Queensland Department of Innovation and Information Economy., “Queensland’s Strategic Approach to Biotechnology”, Media Statement, 08 / 04 / 03.

96 Queensland Department of Innovation and Information Economy., “QLD’s Biodiversity ‘Discovered’”, Media Statement, 13 / 09 / 03.

97 For example see Queensland Department of Innovation and Information Economy., “Minister Invites Biotech Mission to Queensland”, Media Statement, 12 / 06 / 02.

98 Queensland Government., Biodiscovery Discussion Paper., op. cit., p. 28.

99 Ibid.

100 Seini, M., “Commodification and Access: Biotechnology and Australia’s Indigenous Flora”, in R. Hindmarsh and G. Lawrence (eds), Recoding Nature: Critical Perspectives on Genetic Engineering, Sydney: UNSW Press, 2004, in press.

101 Ibid.

102 Queensland Government., Biodiscovery Bill 2003: Exposure Draft, 2003, available from the Department of Innovation and Information Economy, [email protected] www.iie.qld.gov.au

103 Australian Bureau of Statistics (ABS) and Australian Institute of Health and Welfare (AIHW)., Summary Booklet: The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples, produced and published every two years, 2003.

104 section 8(c) of the Biodiscovery Bill 2003 Exposure Draft.

105 Queensland Department of Aboriginal and Torris Strait Islander Policy (DATSIP)., “Spence Releases Green Paper on Indigenous Community Governance”, Queensland Medic Statement, 26 /03 / 03.

106 1993 figures which are the latest held by the Australian Bureau of Statistics. www.abs.gov.au

Australia: Trends in the Global Policy Terrain 287

107 Personal communication with consultant and advocate for Indigenous issues, 14/10/03.

108 Puri, K., “IP Rights and Trade Practices Act – A Potential Conflict?”, The Queensland Lawyer, Vol. 12, No. 4, p. 96.

109 Blattman et al., Biotechnology Intellectual Property Manual, op. cit., p. 25.

110 Puri, “IP Rights and Trade Practices Act”, op. cit., p. 108

111 McKeough and Stewart, op. cit., p. 302.

112 Personal communication with ethnobotanist with the Parks and Wildlife Commission of the Northern Territory and ethnobotanist on the Traditional Medicines Project, October 9 1998.

113 Personal communication with former post-graduate student, Menzies School of Health, October 21 1998.

114 Ibid.

115 Ibid.

116 Personal correspondence with former post-graduate student, Menzies School of Health, October 9 1998.

117 Barr, Andy., “Introduction”, in Aboriginal Communities of the Northern Territory., Traditional Aboriginal Medicines in the Northern Territory of Australia, Darwin: Conservation Commission of the Northern Territory of Australia, 1993, p. ix.

118 Personal correspondence with ethnobotamist – see footnote 112, October 9 1998.

119 Oral works are not protected by copyright. Janke, Terri., “Don’t Give Away Your Valuable Cultural Assets: Advice for Indigenous Peoples”, Indigenous Law Bulletin, Vol. 4, Issue 11, April/May 1998b, p. 9.

120 Janke, Terri., “Don’t Give Away Your Valuable Cultural Assets: Advice for Indigenous Peoples”, Indigenous Law Bulletin, Vol. 4, Issue 11, April/May, 1998, p. 9. ; For example, Bulun Bulun v Nejlam Investment and Others (1989) stopped the illegal reproduction of paintings on T-shirts. In Milpurrurru v Indofurn Pty Ltd (1995), known as the ‘Aboriginal carpet case’, the Aboriginal plaintiffs won the copyright case. Significantly, this case was the first to recognise ‘cultural harm’ and the first to imply recognition of communal ownership of knowledge. Davis. M., “Indigenous Peoples and Intellectual Property Rights”, Department of the Parliamentary Library Information and Research Services Research Paper No. 20, Commonwealth of Australia, 1997.

Australia: Trends in the Global Policy Terrain 288

121 Milirrpum and others versus Nabalco Pty Ltd and the Commonwealth of Australia (17 F. L. R. 141).

122 Jones, Rhys., “Ordering the Landscape”, I. Donaldson and T. Donaldson., Seeing The First Australians, Sydney: Allen and Unwin, 1985, p. 184.

123 Bird, Greta., “Cultural Heritage Laws Still an Issue” Land Rights Queensland Oct-Nov 1995, p.7.

124 Rhys Jones “Ordering the Landscape”, op. cit., p. 184.

125 Davies., Margaret., Asking the Law Question 2nd edition., Sydney: Law Book Company, 2001, p. 275-276. Davies argues the decision was qualified by the fact that native title was recognisable within Australian (that is colonial) law. The decision does not ‘recognise’ Indigenous law, beyond the recognition that it exists. It merely constructed a new fiction—‘native title’—within the framework of Western law. Indigenous law is assimilated in a form palatable to the dominant law within Australia. None of the judges were willing to question the legitimacy of the invasion of Australia, and nor, as Brennan CJ said, would they take any action which would rupture the inviolable ‘skeleton of principle which gives the body of our law its internal shape and consistency’. On the contrary, the acts of violence which led to the foundation of Australia’s legal system are merely repeated in this decision by the very refusal to question sovereignty, and by the creation of a Westernised version of Indigenous law.

126 Devanesen, “Traditional Aboriginal Medicine”, op. cit., p. 37.

127 Ibid.

128 Personal correspondence with ex-senior official with Northern Territory Health, October 9 1998.

129 Ibid.

130 Jacobs, Jane M., “‘Women Talking Up Big’: Aboriginal Women As Cultural Custodians, A South Australian Example”, in P. Brak (ed) Women: Rites and Sites, Sydney: Allen and Unwin, 1989, p. 86-87.

131 Ibid., p. 97.

132 Ibid., p. 89-90.

133 The Walungurru community in the Northern Territory hold collections made by Kalotas in 1989. Kalotas, “Some Examples of Recording and Applying Aboriginal Botanical Knowledge in Western Australia”, 1993b, op. cit., p. 179.

Australia: Trends in the Global Policy Terrain 289

134 The traditional Gooniyandi Plant Names project at the Kimberley Language Resource Centre, Halls Creek.

135 Zed, Jenna., Sowing the Seeds: Your Documentation Kit, produced in Perth within the electoral office of Jim Scott MLC.

136 Kalotas, “Some Examples of Recording and Applying Aboriginal Botanical Knowledge in Western Australia”, 1993b, op. cit., p. 89.

137 Szabo, S., Aboriginal Ranger Training Program: Millstream Chichester National Park, W.A, Australian National Parks and Wildlife Service and the Western Australian Department of Conservation and Land Management.

138 Taylor cited in Kalotas., “Recording and Applying Aboriginal Botanical Knowledge”, op. cit., 1993a.

139 Taylor cited in Kalotas,, “Some Examples of Recording and Applying Aboriginal Botanical Knowledge in Western Australia”, 1993b, op. cit., p. 179.

140 Ibid.

141 ATSIC., “Desert Knowledge Cooperative Research Centre Officially Launched in Alice Springs”, Media Release, 24 / 09 / 03.

142 Australian Broadcasting Corporation., “Aboriginal Desert Knowledge Must Be Recognised”, Messagestick: Aboriginal and Torres Strait Islander Online, www.abc.net.au/message/news/stories/s663205.htm ; ATSIC., “ATSIC Board Supports Desert Knowledge Initiative”, ATSIC Media Release, 28 / 06 / 02.

143 ATSIC., “Desert Knowledge Cooperative Research Centre Officially Launched in Alice Springs”, op. cit., p. 1.

144 For example, see: Hindmarsh, R., “Consolidating Control: Plant Variety Rights, Genes and Seeds”, Australian Journal of Political Economy, 44: 58-78, 1999.

145 Lands, M., Mayi: Some Bush Fruits of Dampierland, Broome: Magabala Books, 1987. This was the first book published by the Aboriginal publishing house Magabala Books, established at the Kimberley Aboriginal Law and Culture Centre in Broome. Other projects have been initiated by the Kimberley Language Resource Centre, Halls Creek, to record Aboriginal botanical and medicinal knowledge.

146 Bush food and/or Medicine publications include Isaacs, J., Bush Food: Aboriginal Food and Herbal Medicine, McMahons Point, NSW: Weldons, 1987; Lassak, E.V. and McCarthy, T., Australian Medicinal Plants, Port Melbourne: Mandarin Australia, 1983; Low, T., Bush Medicine, North Rhyde, NSW: Angus and Robertson, 1988a; and Low, T., Australia: Trends in the Global Policy Terrain 290

Bush Tucker: Australia’s Wild Food Harvest, North Ryde, NSW: Angus and Robertson, 1988b.

147 To return the documented information, the researcher would need to determine the most appropriate body to entrust with information of such importance and value, culturally, fiscally and historically. Community or clan elders? The respective Land Councils? Or perhaps a central body like ATSIC? Would these representative bodies have access to the resources to take adequate precautions to protect the knowledge? Does the researcher have any right to even ask that question?

148 Kalotas., “Recording and Applying Aboriginal Botanical Knowledge”, op. cit., 1993a, p. 95.

149 Fourmile, H., “Museums and Aborigines: A Case Study in Contemporary Scientific Colonialism”, Praxis, Vol 17, pp 7-11.

150 Healey, Chris., and Eugene Hunn., “The Current Status of TEK: Papua New Guinea and North America”, Traditional Ecological Knowledge: Wisdom for Sustainable Development, Canberra: Centre for Resource and Environmental Studies, Australian National University, 1993, p. 27.

151 Coombs, H.C., “Aboriginal Work and Economy”, in George Argyrous and Frank Stillwell (eds), Economics as a Social Science, Annandale, NSW: Pluto Press Australia, 1996, p. 214.

152 Personal correspondence with ethnobotanist formally with the CSIRO October 8 1998.

153 Kalotal, “Some Examples of Recording and Applying Aboriginal Botanical Knowledge in Western Australia”, 1993b, op. cit., p. 177.

154 O’Shane, T., “Bush Tucker Opportunities”, ATSIC Media Release, 23 / 04 / 04.

155 ATSIC., “ATSIC Welcomes Opportunities in Bush Food Initiative”, ATSIC Media Release, 23 / 04 / 02.

156 Ivanitz, M., “Challenges to Indigenous Service Delivery”, Glyn Davis and Patrick Weller (eds), Are You Being Served? State, Citizens and Governance, Crows Nest NSW: Allen and Unwin, 2001, p. 149.

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