Marcus Colchester In a world where free trade has become the official development buzzword, indigenous peoples are faced with enormous pressures to commercialise their traditional resources and knowledge, now that genetic resources have become the new building blocks of biotechnology. How can they gain control over the conservation and use of those resources in an legal environment essentially hostile to their cosmovision? Marcus Colchester, Director of the Forest Peoples Programme of the World Rainforest Movement, addresses some of these issues in the following article, prepared as a background paper for a brainstorming meeting on Community Rights and Biodiversity, hosted by GRAIN in Montezillon, Switzerland, 17-18 October 1994. Indigenous peoples now face an intensifying challenge to the integrity of their societies. There is increasing pressure from outsiders to document, utilise and commercialise biodiveristy and related indigenous knowledge. Some of this exploitation is being justified in the name of conservation and the validation of indigenous culture. It is also being justified in the wider interests of humankind. At the same time many indigenous individuals, communities and peoples are seeking increasing access to markets and greater cash incomes. Traditional indigenous cosmologies, social systems, systems for sharing and transmitting knowledge and for regulating access to natural resources are extremely varied. Most differ very greatly from industrial societies. In particular, Western legal concepts of “intellectual property rights” are profoundly different from those of most indigenous peoples ' concepts of knowledge “ownership”. Indigenous peoples are now seeking new means of asserting their rights over their traditional knowledge and biotechnologies with a variety of different objectives: inter alia to protect the sacred nature of much of their traditional knowledge, to defend the integrity and identity of indigenous societies, to maintain the independence of their agricultural systems, to be financially remunerated for the commercialisation of their knowledge. It is important to understand that not all these objectives are easily reconciled with each other. Nevertheless a common ingredient in all indigenous demands is their retention of control over their own heritage. Assertion of indigenous rights over traditional knowledge and biotechnologies is part and parcel of indigenous demands for the right to self-determination. It is worth stepping back and identifying what are the main threats that indigenous societies face from this new wave of commercialisation: 1. Expropriation of knowledge and biotechnologies through loss of control, loss of sources of livelihood, wealth, income, and increased pressure to expropriate land and resources. 2. Debasement of knowledge through violation of sacredness and loss of identity. 3. Commoditisation of knowledge, biotechnologies and natural resources through loss of integrity and relatedness of knowledge, exploitative relations within indigenous societies and with outsiders, exploitative relations, destructive use of natural resources, and loss of biological diversity Traditional vs. “Western” rights paradigms For indigenous peoples the threats posed to them by the commercialisation of their heritage is neither new nor confined to the control of “intellectual property”. Indeed, the main struggle that indigenous peoples have faced for millennia is to retain control of their territories from neighbouring predatory societies — both indigenous and non-indigenous — a process that intensified with devastating results with the expansion of colonial enterprises. This process has continued to worsen with the emergence of Nation- States in the North and the South, both committed to a similar path of development and predicated on common concepts of legal ownership and rights. Behind all these changes has been the all-pervading influence of modern market economies and the conversion of wealth into capital. The long indigenous experience with the assertion of indigenous land rights has much to teach us about the risks inherent in assertions of “indigenous intellectual property rights”. What was immediately apparent to indigenous peoples confronting invading societies were the completely different concepts regarding their relations to land. Yet, encroaching Western concepts of land ownership were hard to resist and with a mixture of motives — some benign, others malign, but all misconceived — many indigenous people were accorded Western style titles to land by a great variety of means. In very many cases, the results have been devastating. Many indigenous peoples discovered that the recognition of indigenous ownership rights to land was little more than a licence to parcel up, commoditise and sell their lands and resources. The result was the fragmentation of indigenous territories and societies, and the wholesale alienation of land to outsiders. Outside forces were primarily responsible for this catastrophe but internal divisions within indigenous societies were readily exploited in this dismemberment of indigenous commons systems. Indigenous individuals ' short-sightedness, cash interest and personal gain have all played a part in the break up of indigenous territories. Many indigenous peoples concluded that indigenous and Western concepts of land ownership were irreconcilable. A common statement among indigenous people during the 1960s and early 1970s was “We do not own the land, the land owns us”. However, in the ensuing years there was a more pragmatic acceptance that some kind of legal validation of indigenous land rights was necessary to secure indigenous societies against the force of the market. A conscious strategy was adopted to secure indigenous rights within the arena of the State. Three concepts have been crucial to indigenous people in defining their relationship to land in Western legal terms. The first is “collective” or “communal” ownership as opposed to the individual titles favoured in Western economies. The second is the assertion of rights to “territories” and not “land”, by which indigenous people assert their right to the whole ecosystem in which they live, including surface and sub-surface resources, and not just the “dirt” on which they dwell and plant crops. The third crucial concept is “inalienability” by which indigenous people mean not just that the land cannot be taken over by outsiders but that indigenous peoples cannot alienate themselves from their own territories. With these crucial modifications to Western notions of land ownership, indigenous people feel better able to defend themselves against the pressures of the market in which they are increasingly involved. However, even when these legal safeguards are recognised and respected, indigenous peoples find that they are not automatically proof against exploitation. “Inalienability” can be got around by a number of means. Imprecisions in the law about which collectivity owns land and resources, and may thus negotiate contracts to allow the commercialisation of resources by outsiders, may favour the interests of a few at the expense of the wider group. For example, “lease lease back” arrangements allow indigenous societies to lease their lands to the State and then have them leased back to an indigenous elite intent on commercialising resources at the expense of the wider group. There are two main lessons in all this. The first is that the overhasty application of Western legal concepts of ownership to indigenous commons systems can do more harm than good, hastening rather than slowing down the process of commoditisation of resources and the break up of indigenous society. The second is that resistance to outside pressures depends ultimately on the unity and coherence of the people themselves and is not something that can be provided through outside laws. Where indigenous societies are internally divided, through outside pressures and personal interest, "ownership" titles may hasten the process of alienation. Strategies for securing indigenous control Indigenous people have made a number of statements demanding control of their knowledge and biotechnologies. For example, the Charter of the Indigenous-Tribal Peoples of the Tropical Forests, promulgated in Malaysia in 1992, argues that “Since we highly value our traditional technologies and believe that our biotechnologies can make important contributions to humanity, including 'developed ' countries, we demand guaranteed rights to our intellectual property, and control over the development and manipulation of this knowledge.” Likewise the Maatatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, articulated in 1993, also demands the recognition of indigenous peoples as the exclusive owners of their traditional knowledge emphasising the collective nature of such ownership. International law is in the process of responding to such demands. The 1993 draft of the proposed UN Declaration on the Rights of Indigenous Peoples states that indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. It also reaffirms that they have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literature, designs and visual and performing arts. However, in South and South East Asia many indigenous people have been much more cautious about asserting their demands in such terms. Echoing indigenous anxieties about the impositions of inappropriate forms of land ownership and as a result of their long experience with the loss of control of their seedstocks to multinational companies spurred by the Green Revolution, they have expressed concern that the assertion of legal ownership of traditional knowledge may hasten rather than delay the commoditisation of their knowledge and natural resources. Such groups “view the whole notion of intellectual property rights as a sophisticated form of theft of their resources and knowledge.” Divergent though these two strategies appear, they both aim to protect indigenous peoples from exploitation by commercial interests. Some kind of legal protection of indigenous traditional knowledge seems warranted, but until the equivalent concepts to “collective ownership”, “territory” and “inalienability” have been devised, the fear is that overhasty prescriptions may backfire on indigenous peoples in the same way that individual land titling has. By ascribing rights to inappropriate or ill-defined indigenous individuals or institutions, laws defining indigenous intellectual property rights could facilitate rather than prevent the commoditisation of indigenous knowledge in ways at odds with the broad interests of the peoples concerned. Legal measures, beyond those of standard Western property rights regimes, that exist or have been suggested for securing indigenous control of their traditional knowledge and related biotechnologies and resources, include the following: * Existing controls over indigenous knowledge: confidentiality, secrecy. * Direct control of natural resources: territorial and land rights; exclusive rights to resources. * Political control over access and use: rights of control, management, and self-government; “discovery rights”. * New rights over indigenous knowledge: Model Provisions on Folklore (UNESCO/WIPO); recognised and/or registered community ownership. * Suggested options to limit power of commercial enterprises: prohibition on the patenting of life forms; assertion and/or expansion of Farmer 's Rights; codes of conduct and licensing of prospectors; model agreements between prospectors and peoples; licence of right to prohibit monopolisation. Outstanding dilemmas Some of the dilemmas confronting indigenous peoples in the assertion of their rights to maintain control over their traditional knowledge inhere in the nature of knowledge itself. The first is that the knowledge is, commonly, very widely shared. Traditional systems of sharing knowledge are often not exclusive with the result that knowledge may be common to numerous polities. In effect, therefore, the assertion of exclusive communal ownership and rights to control may not effectively limit access to either the knowledge or the resources to which it pertains as both may be shared between communities, peoples, nations and even continents. Divide and rule is an easy option to commercial operators in these circumstances, especially when dealing with relatively uncentralised indigenous polities. Even where it may be possible to identify the ethnic group or community which can assert exclusive ownership, the definition of which indigenous institution should rightfully be accorded the legal personality to hold and negotiate use of the knowledge is very hard. The painful lessons of indigenous peoples in retaining control of their lands and resources must be learned from. It may be argued that in such circumstances indigenous people are better defended by the existing uncertainty than by the creation of new ambiguous legal mechanisms which would allow outsiders to sign contracts with false indigenous representatives. In the author 's view, none of the proposals that have so far been put forward, by non-indigenous and indigenous people alike, offer convincing means of overcoming these problems, and even taken together, the proposed solutions do not add up to much extra protection. Some of the proposals may even create serious new problems. In particular, there is an uncomfortable feeling about proposals to compensate indigenous peoples for the use of their knowledge through trustee arrangements not under full indigenous control. This is the main concern with the notion of Farmers ' Rights which, as presently conceived, would in practice rely on the United Nations ' Food and Agriculture Organisation (FAO) to provide compensation packages to “farmers” for the use of their knowledge by commercial enterprises or third party nations. The likelihood of such compensation equitably reaching the peoples concerned in the appropriate forms seems vanishingly small, given the institutional realities of intergovernmental bodies in general, and the FAO 's in particular. Likewise, given the history of relations between States and indigenous peoples, trustee arrangements which rely on the good offices of State institutions to mediate transactions and pass back compensation should be discounted. Vesting rights of ownership and control with indigenous peoples and communities is obviously more in line with what most indigenous peoples themselves are demanding. As noted above, the main concern is that the provision of inappropriate rights to negotiate contracts or sell knowledge may accelerate the process of commoditisation. It seems that there is a trade off here which needs to be made clear. Proposals which have been made to introduce sui generis legislation to provide means for the recognition and registration of community rights to traditional knowledge, have the principal intention of protecting indigenous knowledge and biotechnology from being monopolised by commercial interests. A cost may be that they facilitate the commoditisation of indigenous knowledge albeit in a less exploitative manner. The social implications could nevertheless be serious and need to be confronted. One of the problems highlighted by indigenous peoples is the risk of uniform legal solutions being imposed on what are very diverse local social and political realities. The needs of peasant communities struggling to retain control of their seedstock may differ in important ways from indigenous communities trying to prevent the commercialisation of sacred herblore, and will differ again from other indigenous communities trying to assert some kind of copyright over traditional designs produced for the tourist market. Uniform national legislation and, worse still, intergovernmentally imposed international laws (for example under GATT) may thus both pose serious problems to indigenous communities. It is of course the nature of knowledge, and indeed the whole purpose of culture, that it can be shared and transmitted between individuals and generations. It is thus replicable in a way that land and territory are not. A legal equivalent to “inalienability” applied to knowledge may thus be a contradiction in terms. If this is so the break up and commoditisation of indigenous knowledge may be an unavoidable consequence of indigenous peoples entering the global market and legal defense may be able to achieve little more than mitigate some of the worst abuses. It seems obvious that no single legal option will deal with the huge range of problems thrown up by this meeting of worlds. The aim should be to ensure that proposed solutions are mutually reinforcing and not contradictory. The author would like to thank Joji Carino, Chee Yoke Ling and Nicholas Hildyard for comments on an earlier draft, and at the same time state that the views expressed here are his own and not necessarily those of the World Rainforest Movement. Marcus Colchester can be contacted at: Forest Peoples Programme, World Rainforest Movement, 8 Chapel Road, Chadilington, Oxfordshire OX7 3NA, UK. Tel: (44-608) 67 66 91. Fax: (44-608) 67 67 43. Email: [email protected]