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WIPOE

WIPO/GRTKF/IC/15/INF/5(b)

ORIGINAL: EnglishDATE: December 7, 2009

WORLD INTE LLECTUAL PROPERT Y O RGANI ZATIONGENEVA

INTERGOVERNMENTAL COMMITTEE ONINTELLECTUAL PROPERTY AND GENETIC RESOURCES,

TRADITIONAL KNOWLEDGE AND FOLKLORE

Fifteenth SessionGeneva, December 7 to 11, 2009

WIPO PANEL ON “INDIGENOUS AND LOCAL COMMUNITIES’CONCERNS AND EXPERIENCES IN PROMOTING, SUSTAINING

AND SAFEGUARDING THEIR TRADITIONAL KNOWLEDGE,TRADITIONAL CULTURAL EXPRESSIONS AND GENETIC

RESOURCES”

EXPERIENCES FROM THE UNITED STATES OF AMERICA

DECEMBER 7, 2009

Document prepared by Debra HARRY, Ph.D.Indigenous Peoples Council Biocolonialism, United States of America

WIPO/GRTKF/IC/15/INF/5(b)page 2

Exercising Tribal Sovereignty In theProtection of Traditional Knowledge,Traditional Cultural Expressions and

Genetic Resources: A NorthAmerican Perspective

Presented by:Debra Harry, Ph.D.

(Kooyooee dukaddo)

Executive Director

Indigenous Peoples Council [email protected]

Kooyooee Pah


Legal Context of IndigenousPeoples’ Rights

– Human Rights Law• Universal Declaration on Human Rights• Int’l Covenant on Civil & Political Rights• Int’l Covenant on Economic, Social & Cultural Rights• Convention for the Elimination of Racial Discrimination• UN Declaration on the Rights of Indigenous Peoples

– Indigenous peoples’ customary law & legalsystems

– Use of Indigenous Peoples and IndigenousKnowledge acknowledges this distinctrights


The Human Right ofSelf-Determination

“All peoples have the right of self-determination. By virtue of that right theyfreely determine their political status andfreely pursue their economic, social andcultural development.”

• Art. 1.1 International Covenant on Civil & Political Rights;Art. 1.1 of International Covenant on Economic, Social &Cultural Rights

• Art. 3 - UN Declaration on the Rights of IndigenousPeoples

Indigenous Cultural HeritageThe heritage of indigenous peoples includes all moveablecultural property …all kinds of literary and artistic works such as music, dance,song, ceremonies, symbols and designs, narratives and poetry;all kinds of scientific, agricultural, technical and ecologicalknowledge, including cultigens, medicines and the rational useof flora and fauna; human remains; immoveable culturalproperty such as sacred sites, sites of historical significance,and burials; and documentation of indigenous peoples, heritageon film, photographs, videotape, or audiotape.

Madame Erica Daes, Human Rights Special Rapporteur on the Study of CulturalHeritage


Permanent Sovereignty OverNatural Resources

• “the developments during the past decades ininternational law and human rights norms in particulardemonstrate that there now exists a developedlegal principle that indigenous peoples have acollective right to the lands and territories theytraditionally use and occupy and that this rightincludes the right to use, own, manage and controlthe natural resources found within their lands andterritories.”

• Extends to genetic resources(Human Rights Special Rapporteur Erica Daes, IndigenousPeoples’ Permanent Sovereignty Over Natural Resources,E/CN.4/Sub.2/2004/30)

UNDRIP - Article 311. Indigenous peoples have the right to maintain, control,

protect and develop their cultural heritage, traditionalknowledge and traditional cultural expressions, as well as themanifestations of their sciences, technologies andcultures, including human and genetic resources, seeds,medicines, knowledge of the properties of fauna and flora,oral traditions, literatures, designs, sports and traditionalgames and visual and performing arts. They also have theright to maintain, control, protect and develop their intellectualproperty over such cultural heritage, traditional knowledge,and traditional cultural expressions.

2. In conjunction with indigenous peoples, States shall takeeffective measures to recognize and protect the exercise oftheir rights.


UNDRIP Article 19

1. States shall consult and cooperate ingood faith with the indigenous peoplesconcerned through their ownrepresentative institutions in order toobtain their free, prior and informedconsent before adopting andimplementing legislative oradministrative measures that mayaffect them.

FPIC, beyond ethics

• CERD issued Recommendation XXIII, whichcalls for all parties to the Convention to obtaininformed consent of indigenous peoples in alldecisions that may concern their rights orinterests.

• And, have found that in the context ofresource exploitation on traditional lands,mere consultation was insufficient.


Conflicting SovereigntiesRe: “Protection”

IPRs• Monopoly Rights• Short Term, Time

Specific

• Alienability• Post-Protection

Public Domain

Indigenous Systems• Collectively heldresources, knowledge &rights•Benefit for futuregenerations•Inherent•Inalienable

Real Dangers of IPRs• Compartmentalizes

& alienates IK

• Recasts IK in IPregime

• IP can only protectproperty in acommercial &western legalcontext

oral traditions

visual arts

performingarts

human geneticmaterial

human remains

sacred sites

seeds

medicines

sciences

technologies

documentation


WIPO Director GeneralFrancis Gurry, stated:

• Perpetual Protection of TraditionalKnowledge “Not on Table” at WIPO

• Intellectual Property Watch, 22 October 2009

Real Protections• We do not need an international

instrument that facilitates thecommercialization of IK/GR

• We need protection that insures ourinalienable cultural heritage is protectedin perpetuity.

• The framework for the protection of theIK of Indigenous Peoples already existsin human rights law, not IP regimes.


Asserting Tribal Sovereignty

A North American TribalGovernment Context

Native AmericanTribal Sovereignty

• “The Tribe/Nation reservesits right, through its inherentsovereign authority and itspolice power, to excludeindividuals from tribaljurisdiction and to denypermission and access forany research activitieswhatsoever.”

• 550+ federally-recognizedTribes & Alaska Villages


Exercising Sovereignty:Little Traverse Band of

Odawa Indians• In 2004, the Tribe ratified an act

prohibiting the patenting of livingorganisms

• Under this law, "no person may patentor claim any exclusive property interestin the makeup of any organism" withinareas under tribal jurisdiction.

Little Traverse Band ofOdawa Indians p.2

• In the preamble of the act, the Tribe foundthat "the patenting of organisms threatensthe Tribe's health, welfare and economicsecurity" because it "threatens the loss ofbiodiversity by limiting access to geneticvariants through enforcement ofproprietary rights and encouraging thespread of a single variant of an organism inplace of other natural variations."


IRPA - Asserting SovereigntyThrough Codified Law

• The Indigenous Research ProtectionAct - a Model Tribal Code– Prohibit certain activities– Establish regulations for research

– Establish community-based researchreview committee

– Puts Tribes in control of research process

IRPA- Principle ofInherent and Prior Rights

• “recognizes that the Tribe/Nation hasinherent and prior proprietary rightsand interests over all forms of theircultural and natural resources withintheir territories together with all culturalproperty and cultural property rightsassociated with such properties andtheir use”


IRPA - Principle of Self-Determination

• “recognizes that the Tribe/Nation havea right of self-determination andexercise tribal sovereignty over theiraffairs, and that researchers andpersons will acknowledge and respectsuch rights”

IRPA- Principle ofInalienability

• “recognizes the inalienable rights ofTribes/Nation in relation to theirtraditional territories, culturalproperty and natural resources, andassociated knowledge”


IRPA - Principle ofFree Prior Informed Consent

• This principle recognizes that individuals have aright to give their free prior and informed writtenconsent before participating in any research.

• Informed consent is a process in which informationis provided to enable individuals to make fullyinformed choices about their participation in a specificresearch.

• The principle of free, prior informed consent alsoapplies to groups, such as Tribes, when theresearch or other proposed activity potentiallyimpacts the collective group.

IRPA – Defines CulturalProperty

• ….means the traditional Indigenous knowledge,cultural information, uses, and practices unique to theTribe/Nation's ways of life …..

• … includes both tangible and intangible, historicand/or contemporary, which derives from uniquehistoric or collective experience of the Tribe, or isotherwise held collectively by the Tribe.


IRPA - Cultural Property Right• and is a communal right held by the

Tribe/Nation,

• the traditional right of the Tribe andindividual members as consistent with tribalcustoms, laws and practice to determineaccess to, and use of cultural property.

• Use of cultural property requires priorinformed consent of the Tribe

IRPA’sSpecial Regulations for

Biological Samples


IRPA - Patents &commercialization prohibited

• 11.7 No entity may seek to patent orcommercialize any biological materialsobtained from the Tribe/Nation, from theTribe/Nation's jurisdiction, or under theauthority of the Tribe/Nation. This includesgenetic samples, any copies of the originalgenetic samples, any cell lines containingcopies of the original genetic samples, anddata derived from these samples.

• Commercialization only with FPIC of the Tribe& a second written agreement

Section 11 - RegulatingBiological Samples

11.2 The Tribe/Nation may, at any time, decide towithdraw from the research project or any portionthereof, and request the return of all biologicalsamples. The researcher, and any other parties, mustcomply.11.3 Upon completion of the research project, ortermination or cancellation of the project at any timeprior to completion, the biological samples must becompletely and fully returned to the possession of theTribe/Nation. A Tribe/Nation designate must be presentand sign/witness any chain of custody, destruction orrelease of biological samples.


IRPA – Ex Situ Storage ofBiological Samples

11.5 If the Tribe/Nation permits any biological samples to bestored in any other locations, the researcher shall maintain at alltimes a complete list thereof. The list shall include a description ofthe sample or data, source, specific use or purpose of each item,responsible person(s) at the location, and where the item is housed(e.g., in a "gene bank" or on a specific computer), and any relevanttime lines with regard to use of, disposition, return, or destruction ofthe samples or data. The researcher shall provide an updated copyof the list to the Tribe/Nation whenever changes are made. Theupdated list shall include identification of changes made since thelast copy of the list was provided to the Tribe/Nation. Theresearcher will provide proof that the storage facility is physicallyguarded against unauthorized or inappropriate access.

Two Row Wampum

• Two Row Wampum- Haudenosaunee (Iroquois)and Dutch Treaty (1514), subsequently also withthe English and Americans.

• Reflects the existence of parallel societies asequals going down the river of life

• The right and responsibility to protect IK restswith the Indigenous system of governance.

• These mechanisms need to be respected from aprinciple of equity.


Rights vs Doing the Right Thing

• .….. a right should always ..benefit life, andshould always further that which is the Creator –given way that people were given to live. There isno right to sell out your own culture. There is nosuch right. That’s just dysfunctional behavior.

• Onaubinosay, Jim Dumont, Anishinabe Spiritual Leader

• The IGC needs to conduct more broad-basedconsultation with Tribal Leaders.

• Indigenous Peoples need the opportunity toanalyze these issue from their own culturalframeworks, and participate in the IGC.

Summary - Protection of Indigenous Peoples’IK, TCEs and GR

• Any regime must recognize Indigenous peoples prior andinherent rights to their IK/TCEs/GR

• Must uphold and implement the UNDRIP & other HR lawsthat recognize and protect the rights of Indigenouspeoples

• Efforts should focus on prohibiting the grant of IPRs overIK/TCEs/GR and promote strict enforcement of suchprohibition.

• National legislation and policy should recognized the rightof Indigenous peoples to assert the use of customary andcodified laws to protect IK/TCEs/GR on their own termsand in accordance with Int’l human rights law.


Future Work

• The IGC must ensure and facilitate thefull and effective participation ofIndigenous Peoples in every aspect ofits mandate, as equals, including in theupcoming intersessional meetings in asopen and transparent manner aspossible. Indigenous peoples must beable to represent their own interests.

For More Information ContactDebra Harry, Ph.D.

Indigenous Peoples Council onBiocolonialism

[email protected]

www.ipcb.org

[End of document]

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