Traditional Knowledge at the International Level

Debra Harry

Executive Director

Indigenous Peoples Council on Biocolonialism

dharry@ipcb.org

www.ipcb.org

Indigenous Cultural Heritage Broadly Defined

The heritage of indigenous peoples includes all moveable cultural 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 ecological knowledge, including cultigens, medicines and the rational use of flora and fauna; human remains; immoveable cultural property such as sacred sites, sites of historical significance, and burials; and documentation of indigenous peoples, heritage on film, photographs, videotape, or audiotape.

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

Traditional Knowledge Indigenous Knowledge

• While IK is inappropriately subsumed under the broad category of TK but in reality, IK is separate and distinct

• Any discussion of Indigenous People’s knowledge necessarily requires the recognition and protection of the international human rights of Indigenous peoples.

Indigenous Knowledge in the Market Economy

• Indigenous peoples …. are considered potential market players because they offer unique commodities such as traditional knowledge. But they are not quite market-ready because their unique commodities have not been made market ready, that is they have not yet been ‘discovered’ in the research sense nor have they been commercialized in terms of intellectual property.– Dr. Linda Tuhiwai Smith, Decolonizing Methodologies

“Protection” vs. Protection

IPR based protection of IK• Defensive Measures (databases, certificate of

origin)• Positive Measures (registers)

Indigenous Peoples’ Protection of IK & GR• Safeguarding the continued existence and

development of the knowledge protecting the whole social, economic, cultural and spiritual context of that knowledge

IPRs or Modified IPRs for Protection are Not AppropriateIPRs• Monopoly Rights• Short Term, Time

Specific• Alienability• Post-Protection

Public Domain

Indigenous Systems• Collectively held

resources• Benefit for future

gsenerations• Inherent and

Inalienable

Real Dangers of IPRs over IK

• IPR protections are a threat to IK by placing IK in the domain of the market, and public domain.

• IPRs transform the nature of Indigenous Knowledge from collectively held cultural heritage to an alienable commodity.

“Protection” vs. Protection

Do States have a right to protect Indigenous knowledge?

“Western law has no right to protect my knowledge because it has no right to my knowledge. No more than,say, would any other Indigenous peoples have such a right.”

Mike Myers, Seneca Nation

The Rights of Indigenous Peoples

Protection of Indigenous Knowledge

• Indigenous Peoples’ positions:• It is our knowledge and we have rights to it. • We have a right to protect that knowledge

according to our cultural values, principles and customary law.

• States must recognize that right, and it is not for them to try to define the forms, levels or degrees of protection.

UN Declaration on IPs Rights - Article 261. Indigenous peoples have the right to the lands,territories

and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. 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.

3. 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.

UN Declaration on IPs Rights - Article 31

1. 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.

2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Permanent Sovereignty Over Natural Resources

Special Rapporteur Erica-Irene Daes Report (2004)“…. international law and human rights norms …

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.”Natural resources includes genetic resources(Indigenous Peoples’ Permanent Sovereignty Over Natural Resources, E/CN.4/Sub.2/2004/30)

Requirements for States for True Protection of IK

1. States must recognize the right Indigenous Peoples as owners of their knowledge, including the right to control access to, and use of, that knowledge.

2. States must recognize our own customary and codified systems of protection for our own knowledge.

• Our heritage cannot be separated into component parts.… We do not award different values to aspects of our heritage and we do not classify them into different categories such as ‘scientific’, ‘spiritual’, ‘cultural’, ‘artistic’, or ‘intellectual’, nor separate elements such as songs, stories, and science.

• We do not see the protection of our rights to our cultures as separate from our territorial rights and right to self-determination.– Victoria Tauli-Corpuz, Workshop Report-Biodiversity, Traditional

Knowledge, and Rights of Indigenous Peoples, 2003.

Two Row Wampum

• Two Row Wampum- Haudenosaunee (Iroquois) and Dutch Treaty (1514)

• Reflects the existence of parallel societies as equals going down the river of life

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

• These mechanisms need to be respected as from a principle of equity.

Asserting Self-Determination

• [m]y government’s right to protect it’s people, knowledge, creations, ways, and territories, is inherent as a government. What mechanisms we use within our context is equal to whatever ways they use to protect theirs. They need to be seen as equal, and be treated as equal in forums where issues and challenges about the balance of that equality are raised.