Geneva, 30 November – 8 December 2006
Agenda Item 10: Genetic Resources
Re document: WIPO/GRTKF/IC/9/9 (Genetic Resources)
of the Indigenous Peoples Council on Biocolonialism (IPCB),
Call of the Earth/Llamado de la Tierra (COE), &
International Indian Treaty Council (IITC)
(6 December 2006)
Thank you Mr. Chairman. This collective statement is submitted on behalf of the IPCB, Call of the Earth, and the International Indian Treaty Council. First, we wish to say the intervention of Papua New Guinea is refreshing and much supported by our organizations. We also support Panama’s intervention emphasizing recognition of the right of FPIC for Indigenous peoples when access to genetic resources is sought in Indigenous peoples’ lands and territories, in particular, protecting sacred and spiritual areas or lands otherwise designated for protection from access by Indigenous peoples themselves.
Despite the destructive forces of colonization, Indigenous peoples continue to maintain our collective resources for our collective good. Our territories are biologically diverse ecosystems that have nurtured our survival in the past and are essential to our survival in the future. We are greatly concerned that the global hunger for genetic resources poses a disproportionate threat to the food security, health, and well-being of Indigenous peoples.
Examples of bioprospecting and biopiracy in Indigenous territories abound where genetic resources have been taken without the knowledge and consent of the resource owners. There is a crucial need to develop mechanisms that recognize and respect Indigenous peoples’ rights to make decisions regarding any access to and use of the genetic resources and IK within their territories.
Unlike the previous discussions on TCE’s and TK, we note the discussion on genetic resources focuses on state interests rather than that of Indigenous and local communities. We respectfully remind the parties that State sovereignty does not amount to absolute political or legal freedom. Sovereignty of states is limited by the Charter of the United Nations and by other principles of international law, such as human rights treaties. States certainly must recognize that any international agreements must be interpreted and applied consistently with human rights obligations. Similarly, we would expect the work of the IGC to comply with international human rights law and norms. We are hopeful that innovative work could emerge from the Committee that recognizes the unique legal status of Indigenous peoples lands and mandates the FPIC for any access proposed on Indigenous territories.
Our interests in these discussions go far beyond benefit-sharing. Any proposed mechanisms for disclosure of origin/source should reflect a mandate to recognize Indigenous peoples rights to territories and resources, including the right of FPIC. Indigenous peoples have urged the Parties to the CBD to affirm that their existing human rights obligations are clearly reflected in the nature, scope, and elements of any proposed international regime without success. We urge the same of the IGC. We are not just rights holders in relation to TK, but also rights holders in the genetic resources originating in the lands, territories and waters traditionally used and occupied by Indigenous peoples.
With regard to the establishment of databases of genetic resources and traditional knowledge, for purposes of determining prior art, we have a number of concerns, many previously mentioned here. We believe databases will not protect the knowledge per se, but instead will facilitate the further commercialization and misappropriation of TK and genetic resources. It has been proposed that Indigenous peoples should document their knowledge in registries or databases in order to establish proof of prior art for patent applications. In Indigenous territories, the primary means of protection and transmission of biodiversity-related traditional knowledge continues to be through their own legal systems, traditional practices, and oral histories. Indigenous knowledge is dynamic, not static and cannot simply be documented and “fixed in a tangible form” to suit intellectual property law purposes. We cannot agree to such mechanisms that would jeopardize the collective heritage of Indigenous peoples.
Rather than further jeopardize our knowledge, we encourage the Committee to develop mechanisms for the repatriation of Indigenous knowledge and genetic resources that have been illegally appropriated. Indigenous knowledge and genetic resources should be classified as inalienable cultural heritage, which is not subject to the laws relevant to public domain.
We are aware that members of the IGC are experts in intellectual property and particularly its technical and legal aspects. Considering that your discussions here center on traditional knowledge and genetic resources, including a specific focus on Indigenous peoples, the Committee members should also be familiar with international human rights law and human rights norms that are relevant to Indigenous peoples. To this end, we would like to inform the Committee members of some relevant recent developments in the human rights arena pertinent to access to genetic resources.
First, in 2004, the final report of the Special Rapporteur, Madame Erica Irene A. Daes, on Permanent Sovereignty of Indigenous Peoples over their Natural Resources, found that,
“the developments during the past decades in international law and human rights norms in particular demonstrate that there now exists a developed legal principle that indigenous peoples have a collective right to the lands and territories they traditionally use and occupy and that this right includes the right to use, own, manage and control the natural resources found within their lands and territories.”
Special Rapporteur Daes further finds that genetic resources are among the natural resources belonging to Indigenous peoples. In relation to the right of permanent sovereignty over natural resources of Indigenous peoples, the Special Rapporteur concludes “it is a collective right by virtue of which States are obligated to respect, protect, and promote the governmental and property interests of indigenous peoples (as collectivities) in their natural resources.”
Furthermore, the Human Rights Council’s UN Declaration on the Rights of Indigenous Peoples, passed on 29 June 2006, has several relevant articles of particular relevance to Indigenous peoples’ rights to their traditional cultural expressions, traditional knowledge, and genetic resources. This Declaration is regarded as a minimum standard for the rights of Indigenous peoples. Article 26 states that,
- Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied, or otherwise used or acquired.
- Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
- States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
Article 31 of the Declaration, further states,
- Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
- In conjunction with Indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.
Given the status of this Declaration as representing the minimum standards for the rights of Indigenous peoples, it is incumbent upon States here, within WIPO, to meet these standards in any outcomes of the Committee related to Indigenous peoples.
The pervasive discussion on biopiracy centers on two issues, 1) erroneously granted patents and 2) PIC and benefit sharing, in terms of provider or countries of origin. We note that the Committee’s past work on genetic resources has focused on the first area to address erroneously granted patents. Meanwhile the CBD’s discussions largely focus on the second area of compliance with PIC and benefit sharing, in the context of states. Unfortunately, both forums fail to address Indigenous peoples’ rights in relation to genetic resources originating in the lands, territories and waters traditionally used and occupied by Indigenous peoples. To fill that gap, we recommend the following constructive steps:
- Request the Executive Secretary to prepare a report that includes the expert advice within the UN human rights system, which thoroughly evaluates the linkages between human rights law and access to genetic resources and associated traditional knowledge;
- Request the Executive Secretary to seek submissions from Indigenous peoples about their practical experiences in the protection of their genetic resources and recommendations for how the work of the IGC can meet the needs and aspirations of Indigenous peoples;
- Request the Executive Secretary to coordinate a panel at the 11th session of the IGC on Indigenous peoples and genetic resources.
Efforts to establish regimes for ABS of GR should in no way diminish the fundamental right of Indigenous peoples of self-determination, nor deny our right to permanent sovereignty over our natural resources. If sovereignty over natural resources is to mean anything at all, it must mean that Indigenous peoples are the only competent authorities to control access to and use of the genetic resources or associated Indigenous knowledge within our territories.