James Anaya's Presentation in 18th Sessions of IGC

In the eighteenth session of IGC on May 9 2011, James Anaya, a UN Special Rapporteur on the rights of indigenous peoples did presentation relating to collective rights of indigenous peoples.

In this presentation, he said that international treaties, such as The United Nations Declaration on the Rights of Indigenous Peoples and Nagoya Protocol on access to genetic resources and benefit sharing (CBD), recognizes indigenous people’s collective rights. Some regional bodies, such as Inter-American institutions (Commission and Court) and the African Commission on Human and Peoples’ Rights, also recognize indigenous people’s collective rights.

He also mentioned that ‘the concept of collective rights generally: those rights that are enjoyed by particular groups of people in association with each other. Business corporations and research institutions are associations that acquire and control rights that are protected by law, including intellectual property rights’. Meanwhile, he pointed out that ‘the intergenerational and human rights foundations of indigenous collective rights distinguish them from the collective rights of business or other associations’.

Furthermore, he said that ‘there is acknowledgment of the relationship between human rights and collective rights of indigenous peoples, as manifested in the Declaration on the Rights of Indigenous Peoples’ although traditional view believes that human rights are individual.

Moreover, he mentioned there are issues of definition and representation of beneficiaries of collective rights in practical situation, such as ‘the granting of free, prior and informed consent for access or transferring of the rights, fair and equitable benefit sharing and invoking legal remedies’. He believed that the decisions about TK and TCEs shall 'defer to customary law, both as a practical matter and as a matter of principle', and he also thought that 'there needs to be active stakeholder cooperation toward pragmatic and creative solutions'.

Bolivia Proposes Law giving rights to 'Nature'

Bolivia has recently made 'TK headlines' due to the proposal of a new law, which apparently enshrines equal rights between humans and 'nature'. A summary of the recent law and its raison d'etre can be found in the Guardian here

The proposal of this law is said to be due in part to the prominence of members of the indigenous Aymara Indian community in Bolivia's democratically elected government. For instance, both the current President, Evo Morales, and the Foreign Minister, David Choquehuanca, are Aymara Indians. However, the details of the law have yet to be fully fleshed out and it is uncertain at this stage how 'nature' could be represented under the law. Nonethelss, it is possible that the law could provide a new, and highly original, way of discussing TK and indigenous rights, but until the details are fully published the proposal can perhaps be best seen as 'aspirational'.

Some further recent comments on 'indigenous thinking' made by Bolivian Foreign Minister David Choquehuanca are reported in the Guardian here

India approves free access to important portions of the Traditional Knowledge Digital Library

The EPO has noted that the Indian Traditional Knowledge Digital Library (TKDL) is a resource of immense importance with regard to patent claims and 'bio-piracy' in the India sub-continent. WIPO has also given much praise to the TKDL.

In a recent welcome development, the Science and Development Network reports that India has provisionally agreed to allow free access to a small portion of its traditional knowledge in order to support the battle to combat malaria, cholera and other diseases which threaten the lives of people in the developing world.

The Science and Development Network reports:

"So far, access to the TKDL has been restricted to agreed users — mainly patent offices worldwide — for fear of it being misused for commercial purposes, according to V. K. Gupta, the library's director. Now, there are plans to release a small part of the information, which focuses on diseases of the poor, into the public domain, said Samir Brahmachari, director-general of the Council for Scientific and Industrial Research (CSIR), where the project is hosted."

This development could give weight to the argument that the taking of measures to safeguard and protect TK should not necessarily prevent giving access to the TK for non-profit purposes.

More information on this important development can be found here

Landmark in China: Law on Intangible Cultural Heritages

On 25 February, 2011, China announced a law on intangible cultural heritages for the first time: Law of the People’s Republic of China on Intangible Cultural Heritages, which was regarded as a landmark in protection of intangible cultural heritages. This new law will come into force on 1 June, 2011. A word 'protection' was mentioned for dozens of times in this law. And it embraced a message of 'protection' from general rules to a concrete single article. This new law had several highlights.

First of all, this new law gave more specific scope of intangible cultural heritages in definition. Compared with that in previous regulations, this law specifically added some categories into the scope such as traditional medicine, traditional calendar, traditional sports and traditional carnivals, which were close with Chinese people’s lives but was ignored to protect in the past.

Secondly, this law requested to strictly manage investigations on intangible cultural heritages from oversea organizations and oversea individuals in China. Article 15 ruled:

'oversea organizations or oversea individuals shall be approved by cultural department of people’s government of provincial level or municipal level or autonomous level whenever investigation on intangible cultural heritages in China; if investigation in two or above provinces or autonomous regions or municipality cities, shall be approved by cultural department of the State Council; after investigation finished, shall submit investigation report and copies on materials and pictures of objects obtained in investigation to cultural department which approves investigation.'

And it also regulated that ‘oversea organizations shall cooperate with academic and research institutions of Chinese intangible cultural heritages when investigating in China’.

Thirdly, it can be found that all the social members are encouraged to participate in protection of intangible cultural heritages in this law. Not only the law regulated that governments shall play a main role in protection of intangible cultural heritages, but also encouraged citizens, legal persons and other organizations to attend protecting undertakings. Besides, this law requested to spread the protection department being from cultural department of governments and academic institutions to other public cultural departments and educational institutions such as schools.

Fourthly, this new law advocated reasonable utilization of representative project of intangible cultural heritages and exploitation of cultural products and cultural services with regional features, nationality features and potential market, under the effective protection. The highlight was ‘effective protection’. This law clearly demonstrated that the attitude of the state was that only if the intangible cultural heritages were effectively protected, the state could encourage the exploitation and industrialization. Besides, this law regulated that anyone ‘who exploits and utilizes representative projects of intangible cultural heritages shall support representative inheritors to hold succession activities and protect objects and places being component of the project’. If saying effective protection is a premise of exploitation representative projects of intangible cultural heritages, this regulation can be regarded as a continue condition in the process of exploitation. It means that the subject of exploitation shall have responsibility to support succession activities and avoid intangible cultural heritages destroyed after exploitation and utilization. Additionally, it regulated that the local government shall support units which reasonably utilize representative project of intangible cultural heritages. Meanwhile, these units shall enjoy tax preference.

At last, this law regulated to include protection expenses into financial budget, which achieved that there is a stable financial supports for protection of intangible cultural heritages. Additionally, this law had new cohesion rule referring to intellectual property, traditional medicine and traditional handicraft arts.

All in all, although this law still has some contents without specific rules, which may result some further issues in operation, this law has its milestone meaning in protection of intangible cultural heritages in China.

Climate Change and Food Security - Can TK play a part in preventing malnutrition?

A recent report by the United Nations Standing Committe on Nutrition notes the positives of encouraging the maintenance of communities' traditional food knowledge as a measure to aid communities in the struggle against malnutrition in the developing world, particular in the light of climate change and rising global food prices. The authors, Timothy Johns and Pablo Eyzaguirre, note:

"Researchers have documented ways in which populations with traditional life-styles (often populations identified as indigenous) satisfy their nutritional needsthrough unique human-environment relationships.For example, rice, pulses, and milk products provide a balance of amino acids for subsistence farmers in India. In situations where animal protein and fat are the primary energy sources, such as among Arctic hunters and dryland pastoralists, populations have adapted specialized preparation techniques and used wild plants to ensure that essential vitamins and minerals are consumed. Nutritional sciences can help determine whether these traditional systems can be adapted for use elsewhere. Coupled with knowledge about the role of nutrition in contemporary health problems, traditional knowledge and resources can guide environmental efforts to identify sustainable solutions."

The report makes the following useful and timely point - for TK communities, dealing with the challenges of the 21st century, such as climate change, do not necessarily require the abandonment of TK practices. Rather, the use of such practices can potentially aid TK communities in this regard.

A short summary of the report is available here

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.