Traditional knowledge and biodiversity
Introduction
The knowledge that indigenous peoples and traditional communities
possess of the environment is extremely important for the preservation
of biodiversity. This fact is well understood throughout the world,
but one must also become aware of the need to create a sui generis
system to protect the innovations and traditional practices of these
people. What is needed is a legal system which prohibits and punishes
those who expropriate this knowledge or use it unduly and inappropriately.
Among the most well-known examples of improper usage of indigenous knowledge
is the patent granted for "ayahuasca", a suit against which
has already been filed in the United States Patent Office. A second
flagrant example is the patent granted to "quinua", a plant
with a high nutrition value used by traditional communities of Andean
countries.
In Brazil, while civil society and Congress was discussing and proposing
legislative bills, the government went ahead and issued a provisional
measure,(known as Medida Provisória ou MP) which openly violates the
indigenous and traditional communities' rights, opening their lands
to bio-piracy and exposing them to the expropriation of their traditional
knowledge, which has been produced over countless generations.
To explain how this came to pass, Juliana Santilli (of the
Department of Prosecution of the Federal District of Brasilia and collaborator
of the Socioambiental
Law Program ISA) discusses the following items.
The discussion related to the creation of legal mechanisms to protect
the knowledge of indigenous and traditional communities in the field
of biodiversity, as well as the question of control by and compensation
to those communities who possess this knowledge, has become particularly
relevant in the light of Provisional Measure - MP 2.052, of June 30,
2000, issued and promulgated by the government, and bills related to
this topic that are currently being studied by Brazil's Congress.
The Provisional Measure (MP) was issued hastily by the federal government
to "legitimize" the agreement signed between the organization Bioamazônia
and the multinational Novartis Pharma, on May 29, 2000. The agreement
calls for the shipment of ten thousand bacteria and fungi of the Amazon
region to the aforementioned Swiss laboratory. In the light of the negative
repercussion of the agreement, the government decided to publish a provisional
measure _MP-which regulates, even more casuistically, access to genetic
research and to the knowledge of indigenous and traditional communities
related to biodiversity.
This provisional measure contains a series of clauses that are contrary
to the stipulations of the Federal Constitution, violating rights that
have been assured to the indigenous and traditional communities through
various different laws, rules and regulations. We will comment on some
of the more serious aspects.
The casuistic event which motivated the government to issue this provisional
measure is based largely on Article 10, which states; "aNY person in
good faith who, up to June 30, 2000 used or economically explored any
traditional knowledge in the country will be assured of the right to
continue to utilize or explore this knowledge, without any obligation
or cost, in the form and under prior conditions.” That is to say, for
the purpose of "legitimizing” the agreement of Bioamazonia with Novartis,
signed nearly one month prior to the publication of the provisional
measure), the government not only legalized all biopiracy, the exploration
of the traditional knowledge practiced in the country up to June 30,
2000, but also ensured biopiracy of the right to continue to pirate
our genetic resources and knowledge.
Article 14 of the provisional measure stipulates, that in cases of
relevant public interest, "thus characterized by the appropriate authority",
the entry into lands, public or private, to obtain access to genetic
resources, will not require prior agreement of the indigenous and local
communities and the owners. The National Confederation of Workers in
Agriculture --Confederação Nacional dos Trabalhadores na Agricultura
(Contag), jointly with the consulting services of the lawyers of Instituto
Socioambiental, filed a suit alleging unconstitutionality against the
aforementioned provisional measure, in the Supreme Court of Brazil.
Note that the aforementioned Article 14, on allowing access to genetic
research located in indigenous areas, without the prior agreement of
the respective communities, affronts their permanent rights of ownership
and their exclusive usufruct rights to their lands, assured by the Brazilian
Constitution.
Convention of Biological Diversity
Article 8 (j) of the Convention of Biological Diversity obliges countries
that signed the convention to "respect, preserve and maintain the knowledge,
innovations and practices of the local communities and indigenous populations
whose traditional life styles are related to the conservation and sustainable
use of biological diversity" as well as to "encourage the equitable
and just sharing of the benefits from the use of the knowledge, innovations
and practices".
The recognition of the need to protect the socio-diversity, intrinsically
associated with biodiversity, is also legally consolidated in Brazilian
legislation. The need to create a sui generiss legal structure
for the protection of the collective intellectual rights has been highlighted
in various international forms discussing
Two of the most important international specialists, Vandana Shiva
(of the NGO- Research Foundation for Science, Technology and Natural
Resource Policy, of New Delhi India) and Gurdial Singh Nijar (of the
NGO network- Third World Network) call attention to the prejudices that
prevail in the definition itself of the knowledge, in which occidental
knowledge is considered "scientific" and the non-occidental traditions
are considered "non-scientific", affirming that the traditional systems
of knowledge have their own scientific and epistemological bases, which
differ from the systems of occidental reductionism and Cartesian knowledge.
For this reason, Shiva and Nijar alert the world to the urgent need
to create legal systems, which protect traditional knowledge, systems
which take into consideration their specific cultural aspects.
Protecting collective intellectual rights
In Brazil, although bills currently circulating in the federal Congress
contain some clauses for recognizing and protecting the rights of traditional
communities associated with biodiversity, bills which seem quite positive
(see below - Ownership of genetic knowledge-legislative
projects), these initiatives are insufficient and imprecise in terms
of their implementation of the mechanisms of compensation to traditional
communities.
A sui generis legal structure, which protects the collective
intellectual rights of traditional communities, should begin with the
following premises:
Clauses which expressly nullify the full rights, and which do not
produce juridical effects, of the patents or any other ownership of
intellectual property rights (trademarks, etc) granted to processes
or products directly or indirectly resulting from the utilization of
knowledge of indigenous or traditional communities, as a means to impede
the exclusive monopoly over the rights to this knowledge;
Clauses stipulating that the burden of proof must no longer lie upon
the traditional communities in court suits which seek to annul patents
granted to processes or products that result from that knowledge, so
that, henceforth, the individual or company against which the suit is
filed must bear the burden of proof, tat is must prove the contrary;
The clause that expressly states that the non-patentability of traditional
knowledge would enable the free interchange of information among various
communities, which are essential to the generation and dissemination
of this knowledge;
The legal obligation of prior consent granted by the traditional communities
for others to obtain access to any genetic resources located on their
lands, with the express power to deny or reject the utilization or dissemination
of their traditional knowledge for any purpose or objective, and in
cases of commercial objectives, stipulation of the forms of participation
in the profits generated by the processes or products which result from
this knowledge, by means of contracts signed directly with the indigenous
communities. These communities can count on the consulting services
(optional) of the indigenous entity, of non-governmental organizations
and the federal prosecutors office, and the concession of exclusive
rights to a specific person or company should be prohibited;
The registration of a national system of recording and registering
traditional knowledge associated with biodiversity, as a form of guaranteeing
the rights related to the knowledge of the aforementioned biodiversity.
This registration should be conducted free of charge, and should be
optional, merely declaratory. It does not constitute in itself a condition
for the exercise of any rights, but serves merely as a means of proof;
This national system of registration should be governed by an administration
supervised by a council with equal representation of governmental entities,
non-governmental organizations, and representative indigenous associations,
and should also have a staff of consultants ad hoc, who can issue
technical opinions wherever deemed necessary.
In Brazil at the present time there are three legislative bills, which
are currently being studied by the Federal Congress on this topic, as
well as the aforementioned provisional measure published by the executive
branch of the government. The Chamber of Deputies has set up a special
commission to analyze the three bills, referred to below.
One should note that the Statute of Indigenous Societies- Estatuto
das Sociedades Indígenas, also being discussed in the Federal Congress,
stipulates the following: The access to and the utilization by third
parties of biogenetical resources existing on indigenous lands will
respect the exclusive usufruct rights of the indigenous communities,
and this access and utilization by third parties will depend on the
prior authorization of these communities and will also depend on prior
communication to the federal organ which deals with these indigenous
communities."
1) Constitutional Amendment
The executive branch of the government filed this bill in Congress.
It plans to include genetic resources as the assets or patrimony of
the federal government, making their ownership public, regardless of
who the title holder is of the property rights to the soil and the natural
resources contained in or on the soil. This constitutional amendment
establishes, therefore, that for genetic resources, the same juridical
structure should prevail as the juridical system for mineral resources.
The genetic resources also constitute a different ownership structure
than that of ownership of the lands which also belong to the federal
government.
Mention has already been made of the negative consequences of this
legal structure for the traditional and indigenous communities, specially.
As a matter of fact, the indigenous communities have exclusive rights
to the usufruct of the natural resources on their traditional lands,
whether these resources are or are not associated with traditional knowledge,
in the terms of Article 231, §3º, of the Constitution.
If the indigenous communities' exclusive usufruct rights are not respected
on the natural resources of their land, whether or not they have title
to the ownership of said rights, the indigenous communities will suffer
yet another restriction to their territorial and cultural rights which
are so fundamental to their own survival as a different and distinct
cultural group.
It is our understanding that the genetic resources,just as all environmental
assets in general, whether or not they pertain to the public weal or
to private entities (in accordance with the nature of the dominion of
the natural resources they contain), should have their access and utilization
limited to and conditioned by regulations that are in the public interest.
This does not mean, however, that they should be integrated as part
of the property of the public in general--or the government. They are
assets of public interest, whether they are public property or private
property.
In this regard, it is very appropriate to analyze the comments of Vandana
Shiva, who considers that the sovereignty assured to the countries who
signed the Convention of Biological Diversity over the genetic resources
existing in their territory should not be understood as state sovereignty,
and as popular sovereignty, that is to say, sovereignty to be exercised
by civil society. The proposal of the constitutional amendment presented
by the government seems to dwell exactly on this error: it confuses
the right of sovereignty over our genetic resources as a public or state
dominion. State protection does not signify public property necessarily.
For a more detailed analysis of this Constitutional Amendment, access
the text: "Ownership of Genetic rights:
of whom, for whom?"
2) Bill of Senator Marina Silva
Bill nº 306/95, of the Senator of the Labor Party of Acre PT-AC,
has already been approved by the Federal Senate in the form of a substitute
bill presented by the rapporteur of the Bill in the Commission of Social
Affairs, Senator (PSDB-PR). It is currently being analyzed in the Chamber
of Deputies.
The bill stipulates the condition to authorize access to national genetic
resources to be granted by the executive branch of the government, and
also calls for the creation of a Commission of Genetic Resources composed
of representatives of the government, the scientific community, local
and indigenous communities and non-governmental organizations and private
enterprise for the purpose of providing a referendum for the decisions
of the executive branch the government related to national policies
for genetic resources. According to the bill, access depends on a contract
between the appropriate entity designated by the executive branch of
the government and the interested party and contains stipulations regarding
the parties and the conditions for the signing of the contractor.
The bill contains one chapter (Articles 44, 45 and 46 and related
paragraphs on "the protection of the traditional knowledge associated
with genetic resources". The chapter stipulates that the "governmental
powers recognize and protect the rights of the local communities and
indigenous populations so that they can benefit collectively from their
traditional knowledge and can receive compensation for the conservation
of genetic resources, by means of monetary remuneration or remuneration
through assets, services, rights of intellectual property or other mechanisms".
It also stipulates that a national register or list be implemented where
the knowledge associated with genetic resources by local and indigenous
communities is listed and registered. The chapter of the bill also stipulates
that the local and indigenous communities are the owners of the exclusive
rights over their traditional knowledge, and only they can transfer
or cede these rights by means of contracts.
The chapter of the bill also stipulates that the proposal to contract
access to genetic assets (when located in indigenous territories) "can
only be accepted if there were previous consent of the local community
or indigenous population, this consent obtained in accordance with clear
and precise norms that will be defined for this procedure by the appropriate
governmental entity (Articles 44 and 45).
In accordance with Article 46 of the bill, "the local and indigenous
communities are assured of the rights to the benefits from the access
to genetic resources conducted in their areas, defined in the form of
a contract stipulated in this law and after prior consent has been established.”
In accordance with the sole paragraph of this article, "the local communities
and indigenous peoples, may request from the appropriate authorities
to prohibit access to genetic resources in their areas when they consider
that these activities threaten the integrity of their natural or cultural
heritage and patrimony".
3) Bill of Deputy Jacques Wagner
This bill presented by the deputy of the Workers Party PT-Bahia,
is still being discussed in the Chamber of Deputies. It contain few
positive differences in relation to the substitute of the bill of Senator
Marina Silva which has already been approved by the Senate, such as
the changes in the definitions of communities and indigenous societies,
to standardize the definitions in this bill with the definitions found
in the Statute of the Indigenous Societies.
Also worth praising is the addition of the sole paragraph of Article
46 of the Substitute Bill approved in the Senate, with the following
text: "The local communities and indigenous populations may deny access
to genetic resources existing in the areas they occupied, or the access
to traditional knowledge associated with them, when they understand
that these activities threaten the integrity of their natural or cultural
heritage." The text of the substitute bill called only for the possibility
of the communities to "request that the appropriate authorities” prohibit
access to genetic resources located on their traditional lands. (Juliana
Santilli - abril/ 2000).
