Chapter in The Catch: Perspectives on Benefit Sharing
edited by Beth Burrows, published by the Edmonds Institute, 2005.
Copyright © Debra Harry and Le`a Malia Kanehe
The BS in Access and Benefit Sharing (ABS): Critical Questions
for Indigenous Peoples
Debra Harry and Le`a Malia Kanehe
There is a lot of discussion about access to and benefit sharing
(ABS) these days. Countries that historically have been robbed
of their genetic resources by more powerful states are determined
to establish level rules of engagement that allow them a fair
share of the benefits arising from use of their resources. Countries
relatively poor in biodiversity, a poverty sometimes exacerbated
by destructive development practices, do not want to lose access
to the genetic resources of those countries rich with biodiversity.
The tension between the two sides, between states of the South
and the North, has led to the articulation of “fair and
equitable sharing of the benefits arising out of the utilization
of genetic resources” as a primary objective of the 1992
Convention on Biological Diversity (CBD). Now, more than ten years
later, the discussion at the CBD has arrived at the elaboration
and negotiation of an international regime on access and benefit
Unfortunately, the CBD fails to recognize Indigenous peoples
as owners of a vast amount of the world’s genetic resources.
In fact, the CBD only recognizes states as sovereigns over genetic
resources and ignores the proprietary rights of Indigenous peoples
in the same territories. In the international debates, discussions
about Indigenous peoples’ rights are recast in watered down
or bracketed language. For example, the CBD refers to "indigenous
and local communities" instead of "Indigenous peoples."
(1) Thus, it ignores Indigenous peoples' status as rights holders
and instead demotes Indigenous peoples to the status of "stakeholders,"
a category that includes corporations, academic institutions,
non-governmental organizations, and just about any other non-state
That said, what does benefit sharing mean for Indigenous peoples?
What incentive do we have to participate in these agreements,
particularly if our ownership rights are sidelined or marginalized?
What are the implications of participating in benefit sharing
arrangements for genetic resources? How do Indigenous peoples
move beyond the narrow market-oriented models being presented
to them? These are some of the questions to be discussed in this
I. Conflicting Sovereignties over Natural Resources
Indigenous peoples’ struggle for self-determination is
occurring on many fronts, globally, nationally and locally. The
corporate hunt for genetic resources within our territories raises
new difficulties for those maintaining permanent sovereignty over
natural resources that have long been sought after by colonial
governments. Intellectual property rights are being used to turn
nature and life processes into private property. Once deemed private
property, genetic material becomes alienable; that is, it can
be bought and sold as a commodity. This, in the eyes of many Indigenous
peoples, is an attempt to legalize thievery, a thievery that we
recognize as “biocolonialism” -- the extension of
colonization to the biological resources and knowledge of Indigenous
peoples. (3) Below, we discuss Indigenous people’s right
to permanent sovereignty over genetic resources and the conflict
raised by the CBD’s proposal for an international regime
on access to our resources and the sharing of benefits that may
A. Indigenous Peoples Permanent Sovereignty over Genetic
The International Covenant on Civil and Political Rights, Article
1(1), and the International Covenant on Economic, Social and Cultural
Rights, Article 1 (1), both state, "All peoples have the
right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic,
social and cultural development." (4) United Nations Human
Rights Special Rapporteur Miguel Alfonso Martinez states in his
study on treaties that, “Indigenous peoples, like all peoples
on Earth, are entitled to that inalienable right.”(5) He
further explains that the United Nations Charter itself "recognizes
the importance of respect for 'the principle of equal rights and
self-determination of peoples' (Art. 1.2), a simple, direct and
unqualified way of saying all peoples, bar none." (6)
Despite the existence of these international human rights standards,
it is widely recognized that States often deny or diminish the
ability of Indigenous peoples to exercise the right of self-determination.
Nevertheless, the right of self-determination is the fundamental
premise upon which Indigenous peoples have asserted our proprietary,
inherent, and inalienable rights over our traditional knowledge
and biological resources.
Although several international human rights instruments recognize
the collective nature of Indigenous peoples’ rights of self-determination,
(7) the U.N. Draft Declaration on the Rights of Indigenous Peoples
is the international instrument that is the most representative
of Indigenous thought and participation,(8) and its standards
constitutes the minimum standards for the survival, dignity and
well-being of the Indigenous peoples of the world. (9) The U.N.
Draft Declaration states, “Indigenous peoples have the right
to own, develop, control and use the lands and territories…which
they have traditionally owned or otherwise occupied or used.”
A fundamental part of the right of self-determination is a people’s
exercise of permanent sovereignty over the natural resources within
its territories. The right of permanent sovereignty over natural
resources embodies the principle that "peoples and nations
must have the authority to manage and control their natural resources
and in doing so to enjoy the benefits of their development and
conservation."(11) Furthermore, "the principle was and
continues to be an essential precondition to a people’s
realization of its right of self-determination and its right to
In the final report of the UN Human Rights Special Rapporteur
on Permanent Sovereignty of Indigenous Peoples over their Natural
Resources, Erica-Irene Daes, finds 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. (13)
Special Rapporteur Daes further finds that genetic resources
are among the natural resources belonging to Indigenous peoples.
(14) In relation to the right of permanent sovereignty over natural
resources of Indigenous peoples, Special Rapporteur Daes concludes,
“[I]t 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.”(15)
B. CBD and an International Regime on Access and Benefit Sharing
Indigenous peoples' rights to the natural resources within their
territories have been marginalized by the CBD. It was not the
right of nation states to make agreements that undermined the
rights of Indigenous peoples, agreements such as were made in
the CBD. (16) Under the CBD, states are the only recognized entities
with sovereignty over natural resources. The right of Indigenous
peoples to permanent sovereignty over natural resources is particularly
threatened by Article 15.1 of the CBD, which states, "Recognizing
the sovereign rights of States over their natural resources, the
authority to determine access to genetic resources rests with
the national governments and is subject to national legislation."
Furthermore, Article 15.5 requires that "access to genetic
resources shall be subject to prior informed consent of the Contracting
Party providing such resources, unless otherwise determined by
that Party." Thus, according to the CBD, sovereign rights
to control access to genetic resources are only recognized for
the contracting Parties, i.e, the states.
Thus far, the only link between Indigenous peoples and genetic
resources that the Parties to the CBD have been willing to make
is the recognition that Indigenous peoples may possess traditional
knowledge about such resources. The Parties have yet to recognize
Indigenous peoples as sovereign or proprietary owners of genetic
resources within their territories. Article 8(j) of the CBD contains
a provision to encourage the equitable sharing of the benefits
arising from the utilization of knowledge, innovations and practices
of indigenous and local communities embodying traditional lifestyles
relevant for conservation and sustainable use of biological diversity.
(17) Article 8(j), however, is subject to national legislation.
Although 8(j) requires that wider application of traditional knowledge,
innovations and practices of indigenous and local communities
should be "with the approval and involvement of the holders
of such knowledge, innovations and practices," it does not
couch the standard for approval in terms of prior informed consent,
as it does IN the case of states and access to genetic resources.
A major step towards the development of an international regime
on access and benefit sharing was taken at the sixth Conference
of the Parties (COP VI) held in The Hague, in April 2002. At that
meeting, 180 Parties adopted the voluntary Bonn Guidelines on
Access to Genetic Resources and Fair and Equitable Sharing of
the Benefits Arising out of their Utilization. The Guidelines
were "expected to assist Parties, Governments and other stakeholders
in developing overall access and benefit-sharing strategies, and
in identifying the steps involved in the process of obtaining
access to genetic resources and benefit-sharing. More specifically,
the guidelines [were] intended to help them when establishing
legislative, administrative or policy measures on access and benefit-sharing.”(18)
It is important to note that the vast majority of Indigenous
peoples represented at COP VI, viewing their participation in
the development of the Guidelines as facilitating biopiracy of
their own resources and knowledge, made a conscious decision not
to actively participate in the discussions on the Guidelines,
and therefore later rejected implementation of the Guidelines.
Consistent with Article 15 of the CBD, which recognizes
the "sovereign right of States over their natural resources",
the Bonn Guidelines suggest that access to genetic resources should
be controlled by competent national authorities. Paragraph 26
The basic principles of a prior informed consent
system should include: . . .
Consent of the relevant competent national authority(ies) in
country. The consent of relevant stakeholders, such as indigenous
and local communities, as appropriate to the circumstances and
subject to domestic law, should also be obtained.
Paragraph 31 further elaborates on this issue by stating:
Respecting established legal rights of indigenous and local
communities associated with the genetic resources being accessed
or where traditional knowledge associated with these genetic
resources is being accessed, the prior informed consent of indigenous
and local communities and the approval and involvement of the
holders of traditional knowledge, innovations and practices
should be obtained, in accordance with their traditional practices,
national access policies and subject to domestic laws.
This language makes evident that the Bonn Guidelines promote
national sovereignty over natural resources and subject Indigenous
peoples’ rights to domestic policies and laws. Although
the Guidelines are not binding, the Parties do consider them "a
useful first step of an evolutionary process" and see them
as serving as some basis for a future regime. (19)
A few months after COP VI adopted the Bonn Guidelines, the World
Summit on Sustainable Development (WSSD) called for action to
"negotiate, within the framework of the [CBD], bearing in
mind the Bonn Guidelines, an international regime to promote and
safeguard the fair and equitable sharing of benefits arising out
of the utilization of genetic resources.” (20) Further,
UN General Assembly resolution 57/260 , adopted at is fifty-seventh
session, invited COP VII to take appropriate steps with regard
to the commitment made at the WSSD. (21) Then, at the CBD’s
Inter-sessional meeting on the Multi-Year Programme of Work of
the Conference of the Parties up to 2010, held in March 2003,
a recommendation was made that the Ad Hoc Open-ended Working Group
on access and benefit-sharing (ABS Working Group) consider the
process, nature, scope, elements and modalities of such an international
regime on access and benefit-sharing at its second meeting in
December 2003. Subsequently, at its December meeting, the ABS
Working Group prepared recommendations on the terms of reference
for the negotiation of an international regime and submitted those
recommendations to the Seventh Conference of the Parties (COP
VII), scheduled to be held in February 2004, in Kuala Lumpur,
At COP VII, the Parties engaged in extensive discussions about
the mandate and the terms of reference of the ABS Working Group
and decided that the Working Group would "elaborate and negotiate
an international regime on access to genetic resources and benefit
sharing with the aim of adopting an instrument/instruments to
effectively implement the provisions of Article 15 and Article
8(j)." The Working Group is expected to meet twice before
the next COP in 2006 and is mandated to work “with the collaboration
of the Ad-Hoc Open-ended Working Group on Article 8(j) and related
For Indigenous peoples, the preambular language of the COP VII
decision relating to an international regime, wherein the COP
reaffirmed “the sovereign rights of States over their natural
resources and that the authority to determine access to genetic
resources rests with the national Governments and is subject to
national legislation, in accordance with Article 3 and Article
15, paragraph 1," (24) sets a dangerous stage for future
negotiation of the ABS regime. The International Indigenous Forum
on Biodiversity (IIFB), which was the full caucus of the Indigenous
peoples present at the COP, made an intervention in Kuala Lumpur
in opposition to this language stating that international human
rights law recognizes that states do not have absolute sovereignty
over natural resources. The parties, however, of course, refused
to be moved.
Although Indigenous peoples are only considered observers at
the COP, we vehemently insisted that the parties must recognize
our rights throughout the elaboration of the international regime.
In the end, Canada and Australia blocked language that had gained
the agreement of the other states and was proposed by the EU.
That language had stated that the international regime shall recognize
the rights of Indigenous peoples. In the end, the preambular language
of the decision that was adopted merely stated that “the
international regime should recognize and shall respect the rights
of indigenous and local communities.”(25)
At the COP VII meeting, Indigenous peoples did successfully
lobby for international human rights law, as set forth in the
Universal Declaration of Human Rights, the International Covenant
on Civil and Political Rights, and the International Covenant
on Economic, Social and Cultural Rights, to be included in a long
list of other instruments and processes to be considered as possible
elements in an international regime. Although such inclusion gives
some foothold for lobbying at future meetings, there is no guarantee
that the regime that emerges from negotiations will be consistent
with international human rights law. At past CBD meetings, Indigenous
peoples have pointed out that Article 22.1 of the Convention requires
that the decisions of the COP must be consistent with other international
conventions, including international human rights law. (26) Unfortunately,
some parties (Canada, Australia, New Zealand) and some observer
governments not party to the Convention (i.e, the United States)
do not agree and have requested an opinion from the CBD legal
counsel to support their position.
Prior to the end of the COP VII deliberations, several Indigenous
organizations in attendance sent an alert to Indigenous peoples
around the world, warning them about the impending international
For the Indigenous peoples anxiously following the discussions
in Kuala Lumpur, the agenda of the parties is clear. The parties
are developing a regime that will facilitate a biopiracy free-for-all….“Sadly,
all we can do is call upon Indigenous peoples to prepare themselves.
The biopiracy regime is coming. They must do whatever is necessary
to protect their resources and knowledge at the local level. Their
most basic rights to self-determination are not going to be recognized
at this level.” (27)
II. Case Study: An Indigenous Critique of a Benefit Sharing
Because the CBD is remiss in recognizing Indigenous peoples
as sovereigns over, owners of, or rights holders in the genetic
resources within their territories, an ideal framework for nurturing
biopiracy has been created. Therein, Indigenous peoples are seen
only as traditional knowledge holders and not as territorial rights
holders whose consent must be sought before accessing resources
within their territories. The much-touted arrangement involving
the San peoples of the Kalahari desert in southern Africa evidences
the problems in such a framework for benefit sharing.
The traditional knowledge of the San peoples about the stem
of a cactus called Hoodia led the UK-based pharmaceutical company
Phytopharm to a potential anti-obesity drug. The San had traditionally
used Hoodia to stave off hunger while hunting. Phytopharm claimed
to have discovered a potential cure for obesity derived from the
Hoodia plant. South Africa’s Council for Scientific and
Industrial Research (CSIR) sold the development rights for Hoodia
to Phytopharm, which later patented P57, the appetite-suppressing
ingredient in the Hoodia. Phytopharm later sold the rights to
license the drug for $21 million to Pfizer, the U.S. pharmaceutical
giant, without even notifying the San, let alone getting their
consent to such transaction. Phytopharm representatives later
claimed they believed the San peoples who used Hoodia were extinct.
In fact, the San number 100,000 across South Africa, Botswana,
Namibia and Angola. (28)
Only after CSIR and Phytopharm were widely criticized for failing
to get the consent of the San or recognize the role that San knowledge
had played in identifying the Hoodia’s ethnobotanical properties
were the San offered a benefit sharing arrangement. The San’s
share in the arrangement amounted to less than 0.003% of net sales
and that percentage was only to come out of CSIR’s share
in the deal; Phytopharm and Pfizer’s earnings were to go
untouched. (29) In fact, Phytopharm and Pfizer were exempted from
sharing any benefits directly with the San and were specifically
released from any further financial demands by the San. (30) In
the benefit sharing contract, the San were rewarded on a one-time-only
basis for their knowledge of Hoodia and, further, were explicitly
prevented from using that knowledge in any other commercial application.
(31) Effectively, Phytopharm and Pfizer purchased a perpetual
monopoly on the San’s traditional knowledge of the Hoodia.
It is important to note that the San were compensated for their
traditional knowledge and not for any right they might have in
the genetic resource itself. It was the CSIR, and not the San
who consented to access to the genetic resource.
Article 28 of the Bonn Guidelines promote “competent national
authorities” as the appropriate gatekeepers to in situ genetic
resources. In matters of access relating to genetic resources
within Indigenous territories or Indigenous knowledge associated
with such resources, Article 31 of the Guidelines only refers
to “established legal rights” and prior informed consent
regarding such access as being subject to domestic laws. Therefore,
what transpired with the Hoodia was totally consistent with the
CBD and the Bonn Guidelines; That is, the CSIR acted as the South
African national authority granting access to the Hoodia. The
indigenous San peoples had no established legal right vis-à-vis
Hoodia under South African law and so their consent was not required.
The San-CSIR deal has been hailed by many as a success story
for the San who are among the most marginalized peoples in southern
Africa. The story has been used to promote benefit sharing as
a means of poverty alleviation. The monies derived from the agreement,
we have been told, are to be held in the San Hoodia Benefit Trust,
to be used for health care, infrastructure and social security.
(32) Additionally, a report by the German Development Institute
has asserted, because the arrangement includes various San communities
across southern Africa, it “strengthens the cross-border
identification of the San as an indigenous people of southern
Africa and may do a great deal to improve the position of the
San communities in some of the other countries.” (33)
What such an analysis neglects to notice is that quality health
care, education, and other essential services are among the basic
human rights for all peoples. Access to these fundamental needs
should not be tied to a requirement for an exchange of traditional
knowledge or biological resources. Furthermore, it is outrageous
to promote selling a monopoly on traditional knowledge to a Western
corporation so that marginalized communities can earn recognition
as Indigenous peoples. The San do not even possess complete decision-making
power over their minute share of the royalties, royalties to be
deposited in “their” Trust. It is instructive to note
that although "their" Trust includes representatives
of various San communities, the CSIR and the Department of Science
and Technology also sit there, apparently as paternalistic trustees.
The intent here is not to criticize the San for their participation
in the benefit sharing agreement. In hindsight, it is clear that
the only option presented to the San was to accept a share in
the deal, or get nothing at all. And had CSIR and Phytopharm not
been “caught red-handed” with the appropriation of
San knowledge, the San may have simply remained unknown victims
of theft. We see the case as a recent, very instructive example
of the power dynamics typical when Indigenous peoples are forced
to contend with the actions of colonial states and multinational
corporations. The San case also illustrates how the profit potential
of genetic material tends to evoke unscrupulous practices.
Indigenous knowledge systems reflect the totality of the intellectual
traditions of Indigenous peoples from whom they are derived. While
Western knowledge systems tend to be compartmentalized and specialized,
and are often times reductionist in nature, Indigenous knowledge
systems are intricately interconnected with our rich cultural
heritage and the territories from which they came. And in that
sense, Indigenous knowledge cannot belong to a single individual
or a single generation. Thus, how could anyone possibly claim
a right to sell Indigenous intellectual traditions when those
traditions are a gift from previous generations and the birthright
of future generations? For many Indigenous peoples, traditional
knowledge is not something their community can sell because it
is priceless and its value cannot be calculated in terms of or
in service to economic exploitation. Indigenous knowledge passed
from generation to generation is an inherent and inalienable part
of a peoples’ collective heritage and patrimony. When such
knowledge is subjected to a benefit sharing agreement, as illuminated
by the San’s experience, the knowledge becomes a commodity
to be bought and sold on the market.
III. Some Considerations for Indigenous Peoples Before Entering
into Benefit Sharing Agreements
For Indigenous peoples, who are often the most marginalized
and economically poor peoples of the world, the promises of benefit
sharing agreements may be alluring. By virtue of their right of
self-determination, it is of course, the prerogative of Indigenous
peoples to make their own decisions about benefit sharing agreements.
Inevitably, some will decide to enter into such arrangements.
Those who make such decisions, whether or not they recognize it,
will be accepting western legal frameworks and concepts that do
not respect Indigenous laws and customs, and which, in essence,
may compromise their right of self-determination. In this next
section, we discuss some of these conflicts and the potential
difficulties that may arise in the context of such deal-making.
Before entering into a benefit sharing agreement, Indigenous peoples
must understand that by entering such an agreement, they are submitting
to a legal jurisdiction entirely foreign to their own systems
of management and protection of natural resources and knowledge.
Primarily, the difference involves patents. Those who agree to
benefit sharing must accept that patent laws will govern the ownership
of the products derived from their genetic resources. A patent
is a necessary step in securing commercial control over a product
derived from a genetic resource.
Patents are a Western intellectual property right originally
meant to apply to inventions. The basic tenets of patents are
quite foreign to Indigenous concepts. A patent covers a novel
invention, not age-old traditions; a patent is issued to an individual,
not to a collective peoples; and a patent lasts for a determinate
amount of time (often 20 years), after which the information in
the patent becomes part of the public domain – free and
open for all the world to use without penalty.
Genetic researchers and the pharmaceutical, agricultural, and
chemical corporations, and academic institutions for which they
work claim that "engineered organisms or molecules are separated
from nature through the concepts of 'isolation' and 'purification.'"
(35) Thus, in response to numerous comments asserting that genes
were nonpatentable products of nature, the United States Patent
and Trademark Office asserted that "the inventor's discovery
of a gene can be the basis for a patent of the genetic composition
isolated from its natural state and processed through purifying
steps that separate the gene from other molecules naturally associated
with it." (36)
Many Indigenous peoples have strongly advocated against the
patenting of life. For example, in 1999, Indigenous peoples steadfastly
opposed the World Trade Organization (WTO) Trade-Related Aspects
of Intellectual Property Agreement (TRIPs) in a statement entitled,
"No to Patenting of Life." The statement, in part, proclaimed,
"Nobody can own what exists in nature, except nature, itself.
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." (37)
Further, the report of the “Workshop on Biodiversity,
Traditional Knowledge and Rights of Indigenous Peoples, "
in summarizing the conclusions of the Indigenous rights experts
at the workshop, noted that, “Patenting and commodification
of life is against our fundamental values and beliefs regarding
the sacredness of life and life processes and the reciprocal relationship
which we maintain with all creation.” (38)
Those words remembered, it becomes important for Indigenous
peoples to evaluate whether the patenting of life, which will
necessarily occur in a benefit sharing arrangement concerning
genetic resources, is consistent with their fundamental values.
B. Some pitfalls in benefit sharing agreements
Indigenous peoples may be asked to establish contractual arrangements
with intermediaries such as academic institutions or governments,
who in turn have direct contractual arrangements with the commercializing
companies. For example, the San’s contractual agreement
was with the CSIR; the San have no legally enforceable agreement
with Phytopharm in the commercialization of the Hoodia plant.
A similar arrangement was established by the University of the
South Pacific (USP). The USP first entered into a bioprospecting
agreement for coral reef biological resources with the Strathclyde
Institute of Drug Research (SIDR) of Glascow, Scotland. (39) Then
the University established a separate agreement with the villages
that were regarded as the traditional owners of the reef areas.
Thus, USP became the effective dispenser of the coral reef resources.
Such arrangements are obviously paternalistic, and violate the
basic tenets of self-determination. These kinds of agreements
treat Indigenous peoples as interested third parties and not as
principals in benefit sharing agreements. In these types of arrangements,
Indigenous peoples can be left with no legal means of enforcement,
and their rights as owners of the knowledge and resources can
be subverted. Indigenous peoples thus can be perceived as "worthy"
participants in the benefit sharing discussions not because the
other parties recognize their rights, but because the other parties
consider Indigenous peoples a part of the trickledown system of
beneficiaries that they themselves, as "principal" parties,
Another pitfall of benefit sharing agreements is that they often
simply compensate Indigenous peoples for use of their associated
traditional knowledge, and not for use of the actual biological
resources. The only remedy for this is for Indigenous peoples
themselves to be proactive in asserting their propriety rights
over both their knowledge and their resources.
The interests of the Indigenous peoples involved must be reflected
in any legal agreements about their traditional knowledge and
resources. Otherwise, the hoped-for outcomes will never happen
and never be enforceable. On the part of Indigenous peoples, this
requires strong skills in negotiation as well as a comprehensive
understanding of what rights and interests must be protected in
the agreement. Further, Indigenous peoples must remember that
even the most brilliant agreement will be a challenge to monitor
and enforce on a global scale. Resources for litigation costs
will be greatly outmatched by corporate/institutional opponents
in the courtroom and the patent office.
It is difficult to see how benefit sharing agreements that allow
for the monopolization and alienation of traditional knowledge
and genetic resources under the veil of intellectual property
protection can be of any meaningful benefit to Indigenous peoples.
Certainly, there will be a promise of some potential income, an
income that could make a difference in the lives of those terribly
lacking in resources. But, at what cost? In the end, the benefits
that come to Indigenous peoples are likely to be quite insignificant
compared to those reaped by the pharmaceutical, agricultural or
chemical companies and academic institutions with which they are
C. Culturally-based Decision-making
The potential income or other benefits derived from benefit sharing
agreements may entice Indigenous peoples to commercialize their
knowledge and resources, often in violation of their own cultural
principles and values. The profit potential may loom large while
other critical factors may remain hidden or even undisclosed.
Indigenous peoples would be wise to utilize their own frameworks
for evaluating the usefulness, potential, and appropriateness
of ventures that affect their knowledge, resources, and culture.
One such framework, a five point test utilizing a tikanga Maori
framework, has been articulated by Hirini Moko Mead (Ngati Awa,
Ngati Tuwharetoa, Tuourangi) of Aotearoa (New Zealand). The tikanga
framework facilitates decision-making on contemporary issues based
upon the ethics inherent in Maori principles and philosophies.
Mead takes "the position that tikanga is the set of beliefs
associated with practices and procedures to be followed in conducting
the affairs of a group or an individual. These procedures are
established by precedents through time, are held to be ritually
correct, are validated by usually more than one generation and
are always subject to what a group or an individual is able to
do."(40) He further explains that, "They help us to
differentiate between right and wrong, in everything we do and
in all of the activities that we engage in. There is a right and
proper way to conduct one’s self." (41)
Thus, critical questions are filtered through a five-point test.
If an issue fails to withstand this kind of evaluation, then it
is determined that the question at hand violates the tikanga or
the cultural, ethical standards of Maori.
All Indigenous peoples have their own cultural frameworks and
worldviews to draw upon in making such judgments. For example,
Lopeti Senituli, former director of the Tongan Human Rights and
Democracy Movement, articulated the Tongan concept of "NGEIA,"
which means "awe inspiring, inspiring fear or wonder by its
size or magnificence" and "dignity." NGEIA was
central to the Tongan people’s opposition to an Australian
company’s proposal to collect tissue samples and health
data from individual consenting Tongans in the hope of identifying
genes that cause diseases such as diabetes. (42) In exchange for
the samples, the company, Autogen Ltd., had offered a benefit
sharing arrangement that would have provided annual research funding
to Tonga’s Ministry of Health, paid royalties on revenues
generated from any discoveries that might later be commercialized,
and given whatever new therapies might be developed from the research
to the Tongans free of charge. (43) As a result of the Tongan
community’s opposition to Autogen's proposal - an opposition
based on the community's understanding of NGEIA and corresponding
belief that "the human person should not be treated as a
commodity" - the project did not proceed. (44)
Mead says, "A culture that sets aside its pool of tikanga
is depriving itself of a valuable segment of knowledge and is
limiting its cultural options."(45)
Nearly every aspect of what we value as Indigenous peoples –
our technologies, our knowledge, the seeds that produce our foods,
and our medicines – is at risk of appropriation. Indigenous
peoples, and particularly our leadership, must be active in the
discussions related to Indigenous knowledge and genetic resources.
There is no shortage of non-Indigenous peoples engaging in these
debates in various international fora, allegedly on our behalf.
Indigenous peoples must remain vigilant in order to protect their
peoples and territories from acts of biocolonialism. Most importantly,
Indigenous peoples must be proactive in asserting their rights,
particularly those based on long-established international human
rights standards. We are referring to the right to free prior
informed consent concerning any access to or disposition of our
knowledge and resources, the right to deny access to our knowledge
and resources, and the right to manage our knowledge and resources
based on our own customary laws, to mention a few examples. Legal
historian, Steve Newcomb (Shawnee/Lenape) reminds us that, "We
have to make the case that they have to respect our systems of
law. There isn’t 'the law' - there’s our law and their
law. We have to articulate what our law is as far as the protection
of our genetic materials, and make that case, and resist their
system and their law with every fiber of our being." (46)
1. See Convention on Biological Diversity, Article 8(j). Online
2. See Decision VI/24: Access and benefit-sharing as related to
genetic resources, UNEP/CBD/COP/6/6, para. 56 (“The involvement
of relevant stakeholders, in particular, indigenous and local
communities, in the various stages of development and implementation
of access and benefit-sharing arrangements can play an important
role in facilitating the monitoring of compliance.”).
3. For more discussion on “biocolonialism,” see Harry,
D. et al, Indigenous Peoples, Genes and Genetics: What Indigenous
People Should Know About Biocolonialism., 2000. Online at <http://www.ipcb.org>.
4. International Covenant on Civil and Political Rights, adopted
Dec. 19, 1966, entered into force Mar. 23, 1976, 999 U.N.T.S.
171; International Covenant on Economic, Social and Cultural Rights,
adopted Dec. 19, 1966, entered into force Jan. 3, 1976, 999 U.N.T.S.
5. Martinez, M.A., Study on treaties, agreements and other constructive
arrangements between States and indigenous populations, Final
Report of the Special Rapporteur, E/CN.4/Sub.2/1999/20, para.
6. Ibid., para. 210.
7. See Convention 169 Indigenous and Tribal Peoples Convention,
1989, of the International Labor Organization available at: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169,
and The Draft of the American Declaration on the Rights of Indigenous
Peoples of the Organization of American States, draft approved
by the IACHR at the 1278 session held on 18 September 1995. For
latest revisions, see online at: http://www.oas.org/consejo/CAJP/Indigenous%20documents.asp.
8. Venne, S.H., Our Elders Understand Our Rights: Evolving International
Law Regarding Indigenous Rights, Theytus Books Ltd: Canada,1998,
10. United Nations Draft Declaration on the Rights of Indigenous
Peoples, E/CN.4/Sub.2/1994/2/Add.1 of 20 April 1994 (Article 26).
11. Daes, E.-I. A., Indigenous Peoples’ Permanent Sovereignty
Over Natural Resources, Final Report of the Special Rapporteur,
E/CN.4/Sub.2/2004/30, para. 6, July 13, 2004.
13. Ibid., para. 39
14. Ibid., para. 42
15. Ibid., para. 40
16. For a compilation of relevant legal standards concerning Indigenous
lands and resources, see Daes, E.-I. A.,Indigenous Peoples and
Their Relationship to Land, Final Working Paper Prepared by the
Special Rapporteur, E/CN.4/Sub.2/2001/21, Annex. For a summary
about the recognition of Indigenous peoples’ sovereignty,
see Daes,E.-I.A., work cited in note (11), para. 20-30.
17. The text of Article 8(j) states that, “Each Contracting
Party shall, as far as possible and as appropriate: . . . 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”.
18. Secretariat of the Convention on Biological Diversity, Access
to Genetic Resources and Benefit-sharing: Bonn Guidelines. Webpage
available at <http://www.biodiv.org/programmes/socio-eco/benefit/bonn.asp>.
Viewed December, 2004.
20. United Nations, Plan of Implementation of the World Summit
on Sustainable Development, para. 44(o). In United Nations, Report
of the World Summit on Sustainable Development, A/CONF.199/20*,
35. Âvailable online at <http://www.johannesburgsummit.org>.
21. United Nations General Assembly Resolution 57/260, 20 Dec.
2002, para. 8 , Available online at <http://www.un.org/Depts/dhl/resguide/r57.htm>.
22. Report of the Ad Hoc Open-ended Working Group on Access and
Benefit Sharing on the Work its second Meeting, 10 December 2003,
23. International Regime on Access to Genetic Resources and Benefit-Sharing,
UNEP/CBD/COP/7/21, Decision VII/19 D., p. 300.
24. Ibid., p. 299.
25. Ibid., p. 300.
26. Article 22.1 states: “The provisions of this Convention
shall not affect the rights and obligations of any Contracting
Party deriving from any existing international agreements, except
where the exercise of those rights and obligations would cause
serious damage or threat to biological diversity.”
27. Press Release. CBD’s International Regime: Indigenous
Activist Organizations Call for No Access Zones to Genetic Resources
and Indigenous Knowledge, February 19, 2004 . Available online
28. Barnett, A. , In Africa The HoodiaCactus Keeps Men Alive.
Now Its Secret Is 'Stolen' To Make Us Thin, The Observer, Jun
29. Wynberg, R., Sharing the Crumbs with the San. Available on
the Biowatch South Africa website at <www.biowatch.org.za/csir-san.htm>.
30. German Development Institute, Access and Benefit Sharing (ABS):
An Instrument for Poverty Alleviation, November 2003, p. 19. Available
online at <http://www.die-gdi.de/die_homepage.nsf>.
32. Ibid., p. 20.
34. In Wynberg, op.cit., Biowatch South Africa reports that the
trust will include representatives of the CSIR, the =Khomani,
!Xun and Khwe, other San stakeholders in southern Africa, the
Working Group of Indigenous Minorities in Southern Africa, and
the Department of Science and Technology.
35. Kahn, J., 2003, What’s the Use? Law and Authority in
Patenting Human Genetic Material, Stanford Law & Policy Review
14 (417): 426.
37. Tauli-Corpuz, V., Biodiversity, Traditional Knowledge and
Rights of Indigenous Peoples, Third World Network: Penang, 2003,
39. Aalbersberg, W.G. et. al., The Role of a Fijian Community
in a Bioprospecting Project. Available on the CBD website at <http://www.biodiv.org/doc/case-studies/default.aspx>.
40. Mead, H.M., Tikanga Maori: Living by Maori Values, Huia Publishers:
New Zealand, 2003, p. 12.
42 Senituli, L., Biopolicy and Biopolitics in the Pacific Islands,
Edmonds Institute: Edmonds, Washington, 2003, pp.1-3.
43. Ibid., p. 1.
44. Ibid., p. 3
45. Mead, op.cit.,p. 13.
46. Personal interview with Steve Newcomb in San Francisco in