Community, Customary Law and Political Stability - New Study in East Africa; New Representation in Australia

Results of a study published this week highlight community-based systems of justice and governance in resolving conflicts between communities in East Africa.

International non-governmental organisation, Minority Rights Group International (MRG), has this week released a report which explains the need to utilise traditional systems for conflict resolution and governance. The study consulted with communities in Karamoja and Teso in Uganda. Simon Nangiro, Executive Director of Karamoja Agro-Pastoralist Development Programme, explains: "Both communities in Karamoja and Teso have their own systems of negotiation and compensation when resolving conflicts." As Nangiro explained to Reuters, "We are advocating to the government to give a place to customary institutions, for elders to play a role in the justice system, because they are the ones living with the people."

Significantly, greater emphasis on traditional systems strengthens trust and belief in negotiations, arguably the basis for the legitimacy of any legal framework. The research established that past abuses by the state had led to mistrust in local communities, eroding the legitimacy of stte intervention. In contrast, community-based mechanisms were established and resilient, despite the external pressures of imposed boundary disputes, competition for land and environmental damage: "interviewees were virtually unanimous in their opinion that these mechanisms are an essential part of conflict and justice regulation in these communities, because they are accessible where often the state is absent, and because, being based on traditional principles of spirituality and peaceful coexistence, the outcomes are respected by community members."

Indeed, the sustainability of communities supported by traditional governance systems resonates with traditional knowledge with respect to environmental and agricultural sustainability, as distinct from adversarial models of justice. The press release explains: "Communities in both Karamoja and Teso, traditionally pastoralists, strive for amicable relations and depend on each other for survival in harsh environmental conditions. Government imposed conditions on their traditional way of life, shortage of resources, problems involving cattle rustling and border disputes have led to increasing conflict between the groups in recent times."

The study follows earlier work by MRG in strengthening traditional community governance structures, including assisting with the establishment of the Regional Elders Council in East Africa. The Interim Council included 13 elders, and was chaired by Eunice Marima. The Council, now composed of 10 elders including 4 women, is chaired by Dr Abdullahi Haji Wako (pictured at right), a member of the Borana community in Kenya, implements traditional systems of conflict resolution for communities in Ethiopia, Uganda, Kenya and Tanzania.

In Australia, a National Representative Body for Aboriginal and Torres Strait Islander peoples has been proposed by the Australian Human Rights Commission in a new report, Our Future in Our Hands. The Steering Committee behind the proposal is led by Social Justice Commissioner Tom Calma (pictured at right), an Aboriginal elder from the Kungarakan tribal group and a member of the Iwaidja tribal group. In his speech at the launch of the report, Calma emphasised the importance of the establishment of a national representative body for Aboriginal and Torres Strait Islander peoples both as a true exercise of self-determination and in terms of national governance: "We have suffered from the absence of a strong national representative organisation over the past five years. And governments have also suffered from the absence of a national body."

Previously, Aboriginal and Torres Strait Islander peoples were represented by the Aboriginal and Torres Strait Islander Commission (ATSIC), which was abolished by the Howard government in 2005, which criticised the Commission for corruption and mis-handling of funds. Some have criticised the proposed replacement, saying that it may not offer appropriate representation for those in remote areas. And already, the independence of the new body is in doubt with Indigenous Affairs Minister, Jenny Macklin, refusing to commit funds to ensure its financial self-sufficiency.

This is amid criticisms this week from the UN Special Rapporteur on Indigenous People, Professor James Anaya, who has described entrenched racism in Australia after his 12 day visit. Anaya has condemned the ongoing intervention into remote indigenous communities, commenced by the Howard government but controversially continued by the new Rudd administration. Although Anaya was congratulatory of Prime Minister Rudd on the 2008 apology to indigenous Australians that was reported around the world, the intervention continues the historical discrimination.

Terri Janke (pictured below left) has recently proposed a national approach in another context, that of indigenous and traditional knowledge. The conflict between conventional intellectual property rights and communal systems of traditional knowledge and cultural expression is well-documented, and calls for sui generis systems of protection have not led to substantial actions towards protection of traditional knowledge, in the Australian context or internationally. Ms Janke, an Indigenous arts lawyer, writer and consultant, has recently produced Beyond Guarding Ground: A Vision for a National Indigenous Cultural Authority. Her report calls for a national authority for indigenous culture, pursuant to Article 31 of the UN Declaration on the Rights of Indigenous Peoples (UN Dec):

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.

Emphasising the requirement of prior and informed consent, the report provides a model of the procedure for approval to use material, which includes applications to the national authority, the identification of rights-holders and a consideration of the propose use of the material, examination of the application by committee and then a procedures for the granting of consent and the monitoring of the use of the material according to the terms and conditions under which that consent is granted. The model both provides assistance to indigenous right-holders as well as establishes a system by which material can be revived culturally and socially in a secure and appropriate way.

Terri will be delivering a public lecture on the model as part of the 20th Anniversary Celebration of the Jabal Centre, Friday 2 October 2009, Australian National University (ANU).

Robynne Quiggan, indigenous lawyer and quoted in Janke's report, explains with respect to music: "Observing customary law means finding out who can speak for that music."

Giving respect to customary systems of governance within national frameworks ensures that those who can speak are able to speak.

Matawa First Nations Wisdom Left out of Legislative Process.

Matawa First Nations Chiefs have released a statement earlier this month, rejecting two proposed mining Bills from the province of Ontario.

Constance Lake Chief Arthur Moore, appearing before the Standing Committee on General Government this month, has raised concerns and disappointment with the process of the Bills. In particular, no public hearings were held in any First Nations Communities - Nibinamik; Constance Lake; Webequie, and Eabametoong. Chief Moore states, "To get a real sense of the North, you have to come to the communities and meet the people ... it is disrespectful to plan meetings that will affect people's lives - away from where they live." He calls for greater respect for communities and for the engagement of community wisdom in drafting such legislation: "The province must take the entire process more seriously, and draft stronger acts that include Matawa First Nations recommendations that were submitted by Chiefs, Counsellors, and Community Members."

The first, Bill 173: An Act to amend the Mining Act, makes several amendments, including the amendment of the purpose clause (Section 2) to include a statement that mining activities are encouraged in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights. The new Section 14 also includes a new sub-section (2) giving the Minister discretion to consider any other factors appropriate, including: "... whether the lands meet the prescribed criteria as a site of Aboriginal cultural significance." Nevertheless, the Bill does not guarantee such factors and leaders have expressed concern about its implementation.

The second, Bill 191: The Act with respect to land use planning and protection in the Far North", has been rejected by Matawa First Nations as dividing the Matawa First Nations Tribal Council through the introduction of an arbitrary boundary in order to designate the area to which the Act applies. The boundary actually divides traditional territory in some cases. As a result, Matawa First Nation Chiefs are requesting the withdrawal of Bill 191 and have also asked for changes to Bill 173.

Documenting Knowledge: Traditions and Technologies

The role of documentation in the protection of traditional knowledge is more complex and contentious that perhaps it first appears.

Certainly, documentation projects do suggest the building of relationships within communities and with primary knowledge-holders, and they have been lauded as important mechanisms for capacity-building and for creating commercial value through intellectual property (IP) products. However, the very notion of IP as the primary mechanism by which to protect traditional knowledge is itself troublesome. At the most recent 14th session of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), the International Institute for Environment and Development (IIED) emphasised the role of customary approaches as distinct from IP frameworks. Michel Pimbert, Director of IIED's Sustainable Agriculture, Biodiversity and Livelihoods Programme, says "Intellectual property standards are in conflict with flexibility and adaptability." Co-author of the IIED Report, "Protecting Traditional Knowledge from the Grassroots Up," Alejandro Argumedo, a plant scientist for the Quechua-Aymara Association for Nature and Sustainability Development (ANDES) in Peru, describes traditional management as somewhat contrary to the commercial principles of intellectual property, explaining "The communities developed their own agreement for sharing the benefits derived among themselves, based on traditional principles." Krystyna Swiderska, who coordinated the research for the IIED project and co-authored the report, will participate in a QMIPRI Herchel Smith Seminar on these issues in London, 5 October. If you would like more details and to reserve a place, please email QMIPRI.

My own work in this area certainly confirms similar hesitations and criticisms of intellectual property systems. What is of interest, however, is the potential to appropriate IP-related schemes in relevant and sustainable ways (including sustainability with respect to the knowledge itself). WIPO's documentation projects are indeed relevant to these questions and, although coming from an IP context, are not necessarily driven by IP agenda as such. For instance, at the 12th Session of the IGC presentations on various community documentation projects detailed some of these issues. Representatives spoke of the need to create programmes where the younger members of communities were engaging with elders as "stars" and as knowledge-holders, thus "replenishing the cup of knowledge" in ways that become more relevant and more contemporary for younger members (in terms of the technology) and are at the same time traditional. In other words, traditional mechanisms drive the application of the technology, not the other way around. One presenter noted that many government initiatives focus on the youth, without concentrating on elders. Documentation becomes a project where the elders are the focus, giving the younger members something to emulate rather than abandon.

In this respect, the WIPO assistance for documentation is of great interest. The filming of knowledge is a significant medium, dynamic and interactive and described as some as closest to the traditional transfer of knowledge (as distinct from recording through text). It is also a contemporary and relevant technology for younger generations.

Earlier this month, WIPO launched, as part of the Creative Heritage Project, a further documentation project with the Maasai of Kenya, working with the Indigenous Movement for Peace Advancement and Conflict Transformation (IMPACT) and Kenya's National Museums. In addition to assistance with technology and equipment, the project includes IP training so that communities understand the materials being created in an IP-context, as well as the knowledge being sustained through traditional mechanisms supported by technology. Whether or not IP might be relevant or even effective as protection for TK, nevertheless it is essential for communities to understand what might be created in a wider legal context when materials are documented and circulated. Knowledge about IP therefore becomes a form of protection in itself, ensuring that the design of projects is achieved in such a way so as to avoid rendering knowledge vulnerable to expropriation through the very mechanism of IP itself. Training is undertaken by WIPO together with the American Folklife Library of Congress and the Center for Documentary Studies at Duke University (CDS).

Maasai Cultural Heritage project co-ordinator, Kolol Ole Tingoi, describes some of the same issues for documentation in his comments on the project, explaining: "This is a milestone to the community. As we preserve our own cultural traditions, we will also manage our intellectual property interests." Tingoi, together with Anne Tomme and Kiprop Lagrat of the National Museums of Kenya, has undertaken a 3-month training programme with WIPO in partnership with American Folklife Library of Congress and CDS. Wend Wendland of WIPO told Reuters, "It gives them some control. Very often it is the recording which is misappropriated."

The value of the project is not in terms of creating IP as such, but in terms of managing IP as an inevitability of any documentation initiative. Importantly, the documentation is managed within the community and is not undertaken by an external reesearcher with no connection to the community. The very action of the documentation may itself be undertaken in such a way that it is itself traditional, sustaining the mechanism of tradition as a means by which to transmit knowledge, and realising and indeed demonstrating that knowledge immediately within the community and to the benefit of the community. Documentation, thus becomes a technology of the traditional.

Agricultural Displacement and Community Response - Paraguay

Paraguay is one of the world's largest producer's of soy, with soy amounting to 38% of the country's total agricultural output. But with the expansion of soy farming in Paraguay has come the displacement of indigenous and campesino families from their land, mostly migrating into Greater Asuncion. Claudio Rolon, of the National Secretariat on Children and Adolescents (SNNA), explains, "indigenous and campesino (peasant) families are abandoning their land, suffocated by the encroachment of soy crops and the use of toxic agrochemicals."

When President Fernando Lugo assumed office in August last year, the SNNA launched a programme to assist such indigenous squatter settlements, and Cerro Poty is one such settlement that has come within the programme. Established in the late 1990s, Cerro Poty is a community of Guarani families from Canendiyu.

The programme is notable for its efforts to identify traditional organisational structures, including leaders, and to introduce efforts to assist communities that build upon cultural and social activities as well as economic. In particular, the programme has supported local industry in crafts and skills specific to the Guarani. Adriana Closs, SNNA communications director, says "The community is recovering its craft-making skills, and now we are taking the next step: helping them sell their products." Significantly, the programme facilitates traditional crafts and productivity as a source of community cohesion and sustainability: "The aim is to support the work of craftspeople, building on the woodcarving talent and skills of the Guarani."

Indigenous Agricultural Knowledge in Managing Climate Change

Indigenous and traditional knowledge is being recognised for its critical role in managing climate change, and more recently mainstream attention to traditional agricultural knowledge sees increased respect for sustainable and ancient methods.

In a project supported by the Kenneth Lee Foundation and Oxfam, farmers in Bolivia's Amazon are turning to traditional irrigation systems in more sustainable agriculture. The system relies on building "camellones" (pictured at left and below right) which are platforms of raised seedbed, constructed above flood level and surrounded by canals. The result is a sustainble use of flood waters without the loss of seeds and crops. The canals capture the water during floods and provide for irrigation during dry seasons.

The system dates back to 1000BC to AD1400 when it was used by pre-Columbian cultures in Beni. The Director of the Kenneth Lee Foundation, Oscar Saavedra, says "The floods were the basis for development and the flourishing of a great civilisation." The region has experienced some of the worst floods in 50 years, largely attributed to climate change. According to the BBC, about 400 families have now enlisted in the camellones project, mostly growing maize, cassava and rice. Although the uptake of the method is still described as experimental, confidence in the traditional methods is growing. Dunia Rivero Mayaco, a mother of 3 from Puerto Almacen near Trinidad, is reported, "I had planted rice, maize, bananas and onions on my plot of land. But the water left nothing ... So that's why I am working here on the camellones." (At right: Such traditional irrigation systems may also lead to less need for clearing for farmland)

In India, traditional indigenous engineering is being implemented in order to establish sustainable systems of water management in modern agriculture.

Although much of the knowledge was transmitted through oral means and practical application, some documentation of the legal and administrative aspects of the knowledge is in fact held in the Treatise of administration, by Kautilya, adviser and minister of Indian emperor Chandragupta Maurya, 321-297 BC. Rajendra Singh (pictured below left) explains, "In Indian tradition, the knowledge was transmitted through practical work under the direction of respected elders and gurus. Thus the people engaged in practical work were really the pupils of the indigenous knowledge system ... The prosperous pupils provided help to the poorest who were working for water conservation, and the state provided only the land. It was a pupil-driven decentralised water management, which is another name for indigenous water management."

Singh attributes conservation of forest, water and other natural resources to "eco-friendly cultural traditions", dharma/parampara, and explains the conflict between this approach and the colonial notion of nature as a resource to be exploited. Singh calls for a revival of indigenous and traditional systems to restore the balance betwen nature and industry in Indian society.

One such tradition to be revived is that of Johad. Johads are concave mud barriers built across slopes to catch rainwater run-off. On all but one side there is a high embankment, the 4th side being open in order for water to enter. Water collected during monsoons penetrates the sub-soil and restores groundwater levels, available later through the use of wells and other means for irrigation of crops and water for animals. Singh explains, "When I went to Bheekampura in 1985, this unique traditional water management system was still alive in the collective memory of the people but remained alienated from the global environment."

Non-governmental organisation Tarun Bharat Sangh (TBS) began to revive the tradition of Johad. Johads started to be built in and by the communities themselves: "No engineer was called for consultation; we were guided entirely by the traditional wisdom of the people who have mantained the ecological balance for generations." As Singh says, the wisdom has been "perfected by tradition."

Logging in Peruvian Reserve

Recent reports suggest there is proof of illegal logging for mahogany being undertaken in the Murunahua Reserve for uncontacted indigenous group, the Murunahua Indians.

Chris Fagan, Conservation Scientist with Round River Conservation Studies (Round River), has published photographs that appear to show logging camps within the Murunahua Reserve, in the Peruvian Amazon. Fagan is reported, "All four camps looked to be active. Illegal logging in protected areas is a serious threat to the indigenous people who live in the region. Not only are these ‘uncontacted’ people extremely vulnerable to diseases brought by outsiders, but there is a history of violent conflict between them and loggers."

As well as the threat to the land and the communities of indigenous peoples in the area, the entry of loggers into the region brings with it the risk of disease with even physical extinction. An outbreak of Swine Flu has been reported in the remote Matsigenka tribe, living beside the Urubamba river in the Peruvian Amazon. The virus is thought to have been carried by boat passengers. Dr Stafford Lightman, professor of medicine at Bristol, is reported as explaining "This could be devastating, infecting whole communities simultaneously, leaving no-one to care for the sick or bring in and prepare food."

Peru's institution for Andean, Amazonian and Afro-Peruvian Peoples, INDEPA, has announced it will investigate the claims of illegal logging.

WIPO IGC 14th Session making progress

The WIPO IGC 14th Session is heating up! For the first time in the 9 years of its existence the Committee is seeming to make some tangible progress. This as a result of the current mandate coming to an end soon and the desire by all member states (those that have made representations here) that they wish the mandate to be renewed by the WIPO General Assembly when it meets in September 2009.

As a result of the winding down of the IGC's current mandate, there being only one more session planned for December 2009, the member states have temporarily set aside their geopolitical differences and are at least working together to hammer out the text to submit to the WIPO General Assembly. Whereas a simple request to the General Assembly for a renewal of the mandate would be possible, the concern is two-fold: (1) that the General Assembly may not be inclined to renew due to the lack of progress in the IGC over the last 9 years; and (2) that the lack of progress will continue in the IGC, even if renewed, because of a lack of focus.

As a result, the African Group has prepared and proposed a programme of action and a draft document titled "Elements For the New Mandate" which outlines a focus for the new mandate. This proposal was put up in the plenary on the big screen for discussion by member states and included:
(1) a clearly defined work program and timeframe, including the holding of intersessional work sessions to be adopted at the 15th Session
(2) future work based on text based negotiations.
The African Group's original proposal from the 13th Session had already called for a legally-binding international instrument. The vast majority of member states supported this objective in the 14th Session. However, a few member states, namely those that did not support the United Nations Declaration of the Rights of Indigenous Peoples - Canada, Australia, USA, New Zealand - have declined to support any text seeking a legally-binding agreement, instead preferring language asking for the mandate to include wording "without prejudice to any outcomes" indicating a seeming preference for non-binding soft law outcomes, such as national and contractual arrangements, guidelines and policies, or high level political resolutions, declarations or decisions.

A rather strange and interesting thing happened yesterday at the plenary surrounding this point. Several indigenous community representatives came out in support of the African Group proposal, as did the vast majority of member states. However, a group of five indigenous communities read a statement in which they said that they did not agree with working towards a legally binding instrument and that they wanted more time to assess that aspect of the Africa proposal. This was a surprise to many, leading the Zambian delegation to comment that they thought a legally binding agreement was precisely what indigenous peoples wanted. However, what the five indigenous communities seem to desire is to ensure that no legally binding agreement is negotiated without the full and effective participation of indigenous peoples, which would likely lead to an agreement which does not to justice to indigenous peoples' rights.

Because of that lingusitic disagreement, there was much deliberation by a minority of developed nations about the inclusion of the phrase "text based negotiations" in the proposed new mandate. The same few states wanted to amend that, with the USA proposing that the text read "outcome oriented deliberations". New Zealand proposed the wording "with no outcome excluded". But as Senegal on behalf of the African Group repeatedly explained, text based negotiations was used in its ordinary UN usage, to mean negotiations based on already identified WIPO IGC texts, rather than vague, arbitrary deliberations in a vacuum.

There was also much discussion as to costs of this new mandate and the intersessionals, but it was agreed that it was best not to deliberate on that as there was no way to quantify the budget now for future work. What was therefore agreed was to request of the General Assembly to continue to fund the IGC as well as to support the Voluntary Fund.

Though nothing substantively has been achieved in regard to the protection of TK, TCEs and GR, what has been achieved in substance in arriving at a text to focus the mandate which we hope to be renewed to guide the future work, is an achievement in and of itself. The African Group, in contrast to the last session, should feel proud of what they have been able to achieve and facilitate, albeit limited.

Funding for Dominica's Kalinagos

A capacity building project of over 8 million Caribbean Dollars has been launched in the Carib Territory of Dominica. The project was first considered in 2005, when submitted to the Caribbean Development Bank, but economic conditions necessitated its deferral until mid 2007.

(Pictured at left: Salybia Church)

Caribbean Net News reports "a high level of flexibility" in the project's structure, which is directed at both individual and institutional capacity-building in the territory, and includes provisions for the Caribbean indigenous community (Kalinago people) making up around 4% of the population. The Kalinago people are governed by the Carib Chief and Council, both elected by the people. Prensa Latina reports, "A total of 3,000 Kalinagos (Caribbean) indigenous people are living in 5.8 square miles in the northeast of the island of Dominica, where they maintain the traditions of their ancestors, despite the colonization processes to which they were submitted, and they resisted." The article suggests that the extreme moutainous landscape supported the survival of the indigenous community during the invasion of colonizers.

The Project Steering Committee, chaired by Dr Charles Corbette, will coordinate and supervise the projects in collaboration with the Carib Council. Dr Corbette explains: "The capacity building project will see the construction of a new road from the Salybia Catholic Church to the Kalinago Barana Aute as well as a link road from the Horseback Ridge Road to the hamlet of Concord. In addition, resource centers will be built in St Cyr and Bataca and the project will also include the rehabilitation of the existing road from the Carib Council Office to the end of the Horseback Ridge Road."

The work of past Carib Chief, Garnette Joseph, was acknowledged by the Ministry of Carib Affairs (the portfolio of which includes the Carib Council). Parliamentary Representative, Kelly Graneau (the first ever Carib Head of Carib Affairs), believes the resource centres should be named after Joseph in respect for his work and support in the early development of the project, saying: “If I had my way, I would do Mr Joseph the honor and name the resource centers after him; he has done a great job and this gesture should not go unnoticed." Graneau contested the Carib Chief elections in 1999, losing to Joseph.

Prime Minister Roosevelt Skerrit has spoken in support of the Kalinago people and notes various capacity-building projects, including the construction of Salybia School, housing projects, free transportation and education scholarships, declaring: “This government has made every effort to meet the needs of the Carib people ... The Carib Chief himself announced and confirmed recently on national television that all the projects which are mentioned here are being undertaken in your community.”

Special Roundtable Event - London - 30 January 2009

The Queen Mary Intellectual Property Research Institute (QMIPRI), Queen Mary University of London, will host a special lunchtime event at 67-69 Lincoln's Inn Fields (map) London, this Friday, 30th January, 12-2pm. The event is free but places are strictly limited so registration by email is essential (please provide name, institution/firm and email).

Antony Taubman, Acting Director and Head of the Global Intellectual Property Issues Division (including Traditional Knowledge and Life Sciences) with the World Intellectual Property Organization (WIPO) will lead a roundtable on The Recognition and Protection of Traditional Knowledge: What's next on the international agenda?

Antony will be joined in discussion by Tim Roberts, Head of the International Chamber of Commerce (ICC) delegation to the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

Johanna Gibson, QMIPRI, will chair.

The Roundtable will commence at 12pm with a sandwich lunch and will conclude at 2pm. The event is accredited for 2 CPD points.

The event is free and open to the public but places are strictly limited and registration is essential. To register, please email with the following information:
(1) Full Name
(2) Firm/Institutional Affiliation or University and course and
(3) Email contact details.

If you would like to subscribe to the QMIPRI mailing list or unsubscribe, please email QMIPRI with your request.

Traditional Medicine - The Threat of Biodiversity Loss

New Scientist magazine has recently reported on the threat to traditional medicines and global health posed by loss of biodiversity and extinction of species of medicinal plants.

Traditional medicinal plants are threatened by the global alternative medicines boom, and are being over-harvested resulting in loss of diversity. Traditional medicine is the main source of medicine for many regions of the world, with the World Health Organization (WHO) recording that in some Asian and African countries, as much as 80% of the population relies on traditional medicine in their primary health care.

Plantlife's Medicinal Plants Conservation Initiative (MPCI) published a report this month suggesting that almost a third of medicinal plants could become extinct if the use is not regulated. The report recommends, among other things, cooperation with local communities having knowledge and interest in medicinal plants in order to link development to conservation and use. The report describes the relationship between the supply of medicinal plants to community benefits in health care, income and cultural traditions.

Sara Oldfield, the Secretary General of the Botanic Gardens Conservation International (BGCI), which published a report in 2007 on the conservation of medicinal plants and the role of botanical gardens, describes the problem as a "quiet disaster."

Cusco Law on Indigenous Knowledge and Biopiracy

The regional government of Cusco, the former capital of the Inca Empire, has enacted laws (O.R. Nº048-2008-CR/GRC) to regulate against biopiracy and protect indigenous knowledge at the regional level.

Alejandro Argumedo, Director of Cusco-based indigenous organisation, Asociacion ANDES, describes the law as "a good example of how local governments can create the appropriate legal and institutional framework, as well as the mechanisms to implement it, to ensure that biopiracy does not prey on the creativity of indigenous peoples and local communities." He explains further, "Worldwide, national governments and international bodies such as the World Trade Organization and the World Intellectual Property Organization have failed to protect indigenous people's traditional knowledge and associated genetic resources from biopirates."

The laws include provisions for prior informed consent from indigenous and local communities, benefit-sharing with communities, and limiations upon the creation of patent rights over genetic resources. The laws are based on the understanding that such communities have sustained and protected the species for centuries through their traditions and practices, and acknowledge this guardianship in the duties to those communities, as recognised in the law, as well as providing for communities to rely on customary laws to develop and implement registers for genetic resources and protocols and procedures for the access to those resources.

The International Institute for Environment and Development (IIED), long-time partner of Asociacion ANDES, praises the passage of the law. Dr Michel Pimbert of IIED (pictured at left) notes the relationship between protecting biodiversity and conserving cultural knowledge: "Biopiracy of traditional knowledge and associated native crops, medicinal plants and microorganisms has been common, depriving poor indigenous people and farming communities of their ancestral rights to natural resources."

Although the law provides for a local infrastructure to challenge national procedures on bioprospecting, the law may conflict with national laws on the recording of indigenous knowledge. The provision for locally produced and controlled registers for traditional knowledge may conflict with the National Register of Indigenous Knowledge, created by the National Institute for the Protection of the Consumer and Intellectual Property. This capacity of local and indigenous communities not only to create but also to control their knowledge registers according to customary rules is of critical importance. To reconcile the two systems, Maria Scurrah, a Peruvian scientist specialising in farmers' rights, suggests to SciDev.net that a cooperation between local communities and the national register is necessary: "I believe that ancient knowledge should be kept by the community and be brought to a national registry to ensure payment to each community for each variety and species registered. That is the only way to pay for each community to be the guardian of biodiversity."

Coffee IS good for us - Traditional Farming and Biodiversity

An article in last month's Current Biology establishes the significance of traditional coffee farming practices for biodiversity.

Traditional small-scale farmers in southeast Mexico utilise tree canopies to protect their crop and protect against soil erosion. Miconia sp. have been grown in these farms since they were clear-cut and burned in the 1930s. Shade-grown coffee has been known to facilitate colonies of animals through this farming method, but the article in Current Biology details research findings concerning the genetic diversity of the trees themselves. Compared to the same trees in neighbouring forests, the trees forming the canopies for shade-grown coffee demonstrate greater genetic diversity, suggesting the importance of the traditional farming practices in protecting biodiversity.

The research was conducted by Shalene Jha and Christopher Dick of the University of Michigan, United States. Samples were collected from Miconia affinis trees growing in various coffee farms and in forests. The research suggests that seed dispersal may be the reason for greater diversity. While in forests seed dispersal may be limited to forest-dwelling birds, in farms there is potential for dispersal by wider-ranging birds in that a greater diversity of animals may be found there.

The research is important during a time when there is greater pressure to expand farms and eradicate the shade-grown coffee practice in favour of mechanised, sun-intensive farming, where canopies are cut down to facilitate access for machinery. While shade-grown coffee farms actually connect otherwise isolated forest fragments, sun-intensive farming would cut off such potential gene flow and lead to potential loss of diversity through in-breeding within those isolated fragments.

Jha explains, "If seeds are not dispersed, they will remain clumped together under the mother tree, and this will make them easy targets for predators." As a result, seed dispersal is compromised and "gene flow will be limited, and this can result in future plant inbreeding."

Nicole Kidman, the Didgeridoo, TCEs and the WIPO IGC.

During the run up to the festive season there was an interesting news story which might have gone largely unnoticed owing to the usual frenzy that accompanies the Christmas celebrations. The story concerned actress Nicole Kidman’s appearance on the German television program Wetten, dass....? to promote her latest role in the feature film, ‘’Australia’’. While televised promotional appearances by Hollywood celebrities out to hawk their latest movie projects are commonplace, this particular appearance resulted in immediate media attention for all the wrong reasons.
The interest resulted from Ms. Kidman’s attempt to play the didgeridoo, a traditional instrument of the Aborigines of northern Australia, on the aforementioned programme. Although the reports appearing in the press indicated that Ms. Kidman’s performance was far from that of a virtuoso she nevertheless blew into the instrument during the televised appearance. “Why is this newsworthy?” you might ask. The answer is that while this might have seemed to be nothing more than harmless hi-jinks on a talk show it created quite a backlash from Aboriginal leaders in Kidman’s native Australia. The furore centered on the fact that Aboriginal custom forbids the playing of the ancient instrument by women, claiming that it will result in infertility. Richard Green, Aboriginal actor and screenwriter, in reacting to Ms. Kidman’s televised didgeridoo performance stated, "It bastardises our culture. I will guarantee she has no more children. It's not meant to be played by women as it will make them barren." Mr. Green was not alone in his criticism of Ms. Kidman’s action and other Aboriginal leaders characterised her actions as ill-advised.
This incident appears to be the latest example of the tension between traditional cultural expressions and mainstream media and culture. In September 2008, the BBC News website reported on another incident involving the didgeridoo arising from the publication of a book teaching girls how to play the didgeridoo. The BBC reported that Harper Collins, the publishers of the book, Daring Book for Girls, apologised for causing offense but asserted that there was a ‘’divergence of opinions’’ within the Aboriginal cultures on whether girls could play the instrument.
Clearly the didgeridoo is an integral part of the religious and cultural expression of Aborigines of northern Australia with strict guidelines as to its use which includes the widely held belief that the instrument is strictly prohibited for women. Unlike Harper Collins there has been no official response or apology to the aboriginal communities from Nicole Kidman but it seems quite likely that Kidman was unaware of the beliefs and cultural significance to the Aborigines of the instrument and as one Aboriginal leader puts it, “I presume she doesn't know, otherwise she wouldn't be playing it.”
Was there an obligation on Ms. Kidman to educate herself as to the belief system of the Aborigines as it relates to the didgeridoo before deciding to play it? In fact, is there a general more wider obligation on persons who are not a part of an indigenous community to educate and inform themselves about the beliefs and practices of an indigenous community before engaging in or utilizing any aspect of that culture? Is there any way that the Aborigines or other indigenous communities faced with similar incursions on their traditions by the mainstream media and culture prevent acts which they view as inappropriate? Would the current discussions at the WIPO IGC be useful in aiding indigenous communities in preventing incidences such as these? One wonders if its not these sorts of mainstreaming of indigenous culture without regard to the traditional beliefs and customs of those cultures which has led to the sense amongst indigenous communities that their culture is under attack and requires the type of protection which is being discussed at the WIPO IGC.