Indigenous and Local Knowledge in
International Law: A Preface to Sui Generis
Intellectual Property Protection
Michael Halewood
A number of parties are “squaring off’ over the
question of who should share the benefits derived from the
exploitation of genetic resources and biotechnology. One
of the fault lines that divides disputants is between devel-
oped and developing countries; another is between local
communities and the dominant socio-economic cultures of
the countries within which they are situated.
intellectual property
The globalization of
laws
through international trade agreements such as TRIPs and
NAFTA has contributed to developed countries’ reaping the
lion’s share of the benefits derived from the exploitation of
genetic resources. In this article, the author analyses the
development, in international law, of means by which local
communities and developing countries could increase their
own control over others’ use of their biological resource-
related innovations.
Exactly how these norms should be implemented in
domestic law, however, is far from clear. The author argues
that one plausible means of implementation would be
through policies to increase the participation of indigenous
communities in resource management decision-making.
Another possible means would be through the creation of
national sui generis intellectual property laws to protect in-
digenous and local knowledge. At least in theory, vesting
intellectual property rights in indigenous and local commu-
nities over their innovations would assist them to stop un-
desired use of their knowledge and/or compel compensa-
tion when it is used.
Une vari~t6 de parties est en cours de discussions au
sujet de qui devrait partager les benfices d6riv~s de
l’exploitation de ressources g~n~tiques et de la biotechno-
logie. Une des failles qui divise les parties dans ce domaine
se trouve entre les pays dmvelopp~s et ceux en voie de d6-
veloppement. Une autre faille se trouve entre les commu-
naut~s locales et les cultures socio-6conomiques dominan-
tes des pays dans lesquels ces communaut s se situent.
La globalisation des lois sur la propri~t
intellec-
tuelle, grfice a des accords d’6change international tels que
TRIPs et IALENA, a contribu6 aux 6normes bdndfices
qu’ont tirds les pays ddveloppds de I’exploitation de res-
sources gdn6tiques. Dans cet article, l’auteur analyse le d6-
veloppement en droit international des moyens par lesquels
les communautds locales et les pays en voie de d6veloppe-
ment pourraient augmenter
leur propre contr6le sur
l’utilisation par des tierces parties de leurs innovations dans
le champ de ressources biologiques.
La fagon exacte d’exercer ces normes en droit do-
mestique n’est pas du tout claire. L’auteur propose qu’un
moyen plausible d’exercer ces normes serait par le biais de
politiques dont le but serait d’augmenter la participation de
communautds indig~nes dans la gestion de ressources et
dans la prise de d6cisions. Une autre fagon serait de crder
des lois nationales sui generis sur la propridt6 intellectuelle
afin de protdger les connaissances indig nes et locales. En
thdorie, accorder des droits de propri6t . intellectuelle sur
les innovations des communautds indig~nes et locales pour-
rait aider ces communautds a cesser l’utilisation non-
desirde de leurs connaissances et ai imposer une compensa-
tion lorsque celles-ci sont utilises.
“Of the Bar of Ontario, D.Jur. candidate, Osgoode Hall Law School. The author is currently the re-
cipient of a Doctoral Fellowship from the Social Science and Humanities Research Council
(SSHRC). He would like to thank Professors David Vaver and Kent McNeil for their intellectual lead-
ership. He would also like to acknowledge his colleagues, mentors and friends at the International
Development Research Centre (IDRC) who have made working in this field so rewarding. Finally, he
would also like to express gratitude to Deane, Bill, Cindy, Lisa, Peter, Donna, Isaac and especially My
Yung for their patience, inspiration, and unconditional support.
McGill Law Journal 1999
Revue de droit de McGill 1999
To be cited as: (1999) 44 McGill L.J. 953
Mode de r6f6rence: (1999) 44 R.D. McGill 953
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 44
Introduction
I. Definitions
I1. Genetic Resource-Related
Technology
Intellectual Property Rights and
Ill. Growing Recognition of Informal Innovation in International Law
A. Disrespect for Indigenous Customs in ILO 107
B. Expressions of Folklore in the Model Provisions
C.
D. The Informal Innovation of Farmers
E.
Indigenous and Tribal Practices in ILO 169
Indigenous and Local Informal Innovations
1. The Convention on Biological Diversity
2. Agenda 21: Earth’s Action Plan
F Traditional and Local Knowledge and Innovations and the Convention
to Combat Desertification
G. Indigenous and Local Knowledge and Innovations in the New WIPO
Mandate
H. Indigenous Intellectual Property Rights in the Draft Declaration
I. Traditional Knowledge at the WTO
J, Conclusion Regarding the Current State of International Agreements
IV. Synthesis of Positions Taken by and on Behalf of Indigenous and
Local Peoples
Conclusion: Prescriptions for Action and Analysis
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
955
Introduction
Through the application of relatively rigid criteria for protection, intellectual
property law, as it pertains to genetic resources, tends to favour high-tech innovations
that require expensive, long-term institutional investment in research and develop-
ment. Consequently, a grossly disproportionate percentage of the genetic resource-
related innovations that attract intellectual property protection originate from large
corporate enterprises in industrialized countries. The globalization of intellectual
property law through trade agreements such as the World Trade Organization
(“WTO”) Agreement on Trade-Related Aspects of Intellectual Properly Rights’
threaten to exacerbate this distributional inequality.
There is, however, a nascent movement in international law toward the positive
evaluation and protection of more general forms of knowledge. Unlike “mainstream”
intellectual property law-which historically has been associated with the advance-
ment of commercial concerns-this new movement favouring recognition and pro-
tection of more general forms of knowledge has its roots in human rights, labour, and
environmental law. Unlike patent law-which is generic in its extension to any variety
of subject matters-this newly evolving law applies to a specific category of substan-
tive knowledge: the environmental and biological knowledge of people and commu-
nities that can be described as “indigenous” and/or “local”.
This movement has several important potential implications. On a “macro” level,
it has some limited potential to redress intellectual property law’s asymmetrical dis-
pensation of awards and incentives to “high-tech” innovators and, by extension, to de-
veloped countries. Developing countries that would not ordinarily benefit from legal
protection for high-tech innovations might derive benefits from the protection of the
(mostly low-tech) environmental knowledge of indigenous and local populations
within their borders. On a “micro” level, communities or individuals whose knowl-
edge is protected would have a measure of control over the use and dissemination of
their knowledge which they would not have had otherwise. Depending upon the
strength of the rights that are conferred with respect to the protected knowledge, par-
ties seeking to use it might have to obtain permission from the knowledge holders,
compensate them, or at least make formal recognition of them as the originators of
that knowledge.
In this article, four interrelated positions are advanced. First, it is argued that there
has been a gradual tendency in international law to both recognize the value of in-
digenous and local environmental and biological knowledge (with a particular empha-
sis on plants and plant use), and to create rights, privileges, and obligations attendant
to the legal recognition of that knowledge.
‘ Being Annex IC to the Final Act and Agreement Establishing the World Trade Organization, 15
December 1993, 33 I.L.M. 81 [hereinafter TRIPs]. See also The Results of the Uruguay Round of
Multilateral Trade Negotiations: The Legal Texts (Geneva: GATI Secretariat, 1994).
956
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Second, it is argued that despite this tendency in the law, the international fora
within which these issues have evolved so far are not likely to accommodate what
would otherwise be the next most predictable (and potentially desirable) development
in this area of law-Le., international legal obligations on states to provide specially
tailored (or sui generis) intellectual property protections for indigenous and local
knowledge. Consequently, further positive developments in this area of law will de-
pend upon both extra emphasis on national law-making, and effective interaction be-
tween national policy makers and the two newly created multilateral technical advi-
sory bodies: the Global Intellectual Property Issues Unit of the World Intellectual
Property Organization (“WIPO”) and the Open-Ended, Ad-hoc, Intercessional Work-
ing Group on Article 8(j), which is part of the United Nations Conference on Envi-
roninent and Development Convention on Biodiversity.2
Third, shortcomings in the evolution of the legal recognition and protection of in-
digenous and local knowledge and innovations in international agreements from the
perspective of indigenous and local communities will be identified. It will be argued
that preoccupation with developing legally-analogous protections for indigenous and
local knowledge, if not situated in the context of broader struggles for local and in-
digenous peoples’ empowerment, could distract critical energy and potential momen-
tum away from those goals.
Finally, frameworks for future analysis and action that would contribute to the
complimentary evolution of intellectual property-style protection for indigenous
knowledge and the broader political goals of indigenous and local communities will
be suggested. Actual models of sui generis indigenous and local knowledge protec-
tion will not be considered. The analysis in this article logically precedes studies of
substantive models of sui generis legislation.
This article is divided into five parts. Part I provides definitions for key terms that
are used throughout the article. Part II consists of a historical analysis of the develop-
ment of intellectual property law in the last forty years as it pertains to plant genetic
resources. Parts III through to the Conclusion follow more closely the three-part
breakdown of the thesis, as set out above. Part III will provide an analysis of the evo-
lution of the recognition of the value of indigenous and local knowledge in interna-
tional law. Part IV identifies the shortcomings in the way sui generis protection of in-
digenous and local knowledge is developing vis-z-vis the apparent position taken by a
number of indigenous and local peoples’ organizations. Finally, prescriptions will be
made about how to approach the reconciliation of the law’s development and indige-
nous and local concerns.
2 5 June 1992, 31 I.L.M. 818 [hereinafter Convention on Biological Diversity].
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M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
I. Definitions
Indigenous. The International Labour Organization Convention 169 Concerning
hIdigenous and Tribal Peoples in Independent Countries, 1989,’ is the only interna-
tional treaty in force that provides a definition of “indigenous”. ILO 169 defines “in-
digenous” peoples as those who have descended from populations that inhabited a
country or area within a country at the time of conquest, colonization, or the estab-
lishment of present state boundaries, and who, “irrespective of their legal status, retain
some or all of their own social, economic, cultural and political institutions” ILO 169
adds that “[s]elf-determination as indigenous or tribal shall be regarded as a funda-
mental criterion for determining the groups to which … this Convention applies.”‘
While this definition does not meet with universal approbrium-it is frequently criti-
cized for giving priority to the histories of the Americas, New Zealand, and Australia,
and ignoring the African and Asian historical realities-it will suffice for the purposes
of this article.
Local. Despite its frequent use in the Convention on Biological Diversity and the
United Nations Convention to Combat Desertification in those Countries Experienc-
ing Serious Drought and/or Desertification, Particularly in Africa,’ “local” is not de-
fined in any international convention. In this article, “local” is intended to embrace a
wider class of individuals and communities than “indigenous”, though it may include
indigenous peoples. Generally, this article uses “local” to refer to communities that
are not necessarily indigenous, but who nonetheless share several of the characteris-
tics of indigenous communities living “traditional lifestyles” (to invoke the vocabulary
of article 8(j) of the Convention on Biological Diversity) that are interesting from the
perspective of knowledge protection. These characteristics include the facts that they
occupy, or occupied, a particular territory for many generations; that their cultural and
economic traditions are integrally connected to their occupation and customary uses
of those territories; and that they are distinct on these grounds from the cultural and
economic activities of the majority of the population in the country in which they live.
Not all of the conventions and legal documents analyzed in this article refer to
“indigenous” and “local” peoples. For example, ILO 169 refers to “indigenous and
tribal’ people. The Convention to Combat Desertification’ refers to “local and tradi-
tional” people. The International Undertaking on Plant Genetic Resource.? refers to
“farmers”. For the purposes of this article, “tribal” and “traditional” peoples, as well
‘7 June 1989,28 I.L.M. 1382 [hereinafter ILO 169].
4 Ibid., art. 1(,).
‘Ibid., art. 1(2).
6 Supra note 2.
7 UN GAOR, 47th Sess., Supp. No. 49, UN Doc. A/47/49, vol. 1, 137 [hereinafter Convention to
Combat Desertification].
” Ibid.
‘ UN Food and Agriculture Organization, 22nd Sess., Conf. Res. 8/83 (1983) [hereinafter Interna-
tional Undertaking].
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as “farmers” are included within the umbrella of “local” peoples. Local communities
could also include “peasant” or “campesino” communities engaged in “low-tech” ag-
riculture. It is appreciated that the outer limits of the possible meaning of “local” have
not been defined. The groups of people included by specific reference at this point
are, however, probably fairly close to the core of what is meant by “local”.
Peoples. The use of the word “peoples”, and not “people” or “populations” is
critical because the Charter of the United Nations,” the hIternational Covenant on
Economic, Social and Cultural Rights,” and the International Covenant on Civil and
Political Rights’2 all affirm the right of self-determination of all “peoples”.” It is this
controversial aspect of the meaning of “peoples” that lead to the disclaimer in ILO
169 that use of the word “peoples” in that document was not meant to signify a posi-
tion with respect to the issue of indigenous and tribal self-determination.” Despite this
disclaimer, “peoples” remained the preferred term by indigenous and tribal peoples
who were consulted with respect to ILO 169 for the additional reason that it “recog-
nizes the existence of organized societies with an identity of their own, rather than
mere groupings sharing some racial and cultural characteristics.'”‘
Connunities. This term is used here as a way to refer to indigenous and local
“peoples” without the latter term’s political connotations regarding self-determination.
Indigenous and local knowledge. “Knowledge” is not defined in any of the inter-
national agreements examined in this article. It is clear, however, that these agree-
ments are not concerned with all of indigenous and local knowledge. Instead, they
generally restrict their consideration of indigenous and local knowledge to indigenous
and local environmental and biological knowledge. For example, article 8(j) of the
Convention on Biological Diversity refers to “knowledge, innovations and practices …
relevant for the conservation and sustainable use of biological diversity.”” This re-
striction in scope can be explained in two ways: first, agreements wherein indigenous
and local knowledge is most explicitly considered are environmentally oriented-e.g.
the Convention on Biological Diversity and the Convention to Conbat Desertification.
Second, indigenous (and to a lesser extent, local) knowledge is often described as be-
ing integrally related to environmental concerns. Indigenous knowledge is often de-
scribed as embedded in, and inextricably linked to, “the land”; it is described as an
“26 June 1945, Can. T.S. 1945 No. 7.
“16 December 1966,993 U.N.T.S. 3.
2 16 December 1966,993 U.N.T.S. 171.’
” These conventions are all cited in support of indigenous peoples’ right to self-determination in
para. 14 of the Preamble to the Draft Declaration On the Rights of Indigenous Peoples, 28 October
1994, 34 l.L.M. 541 [hereinafter Draft Declaration].
” M. Tomei & L. Swepston, Indigenous and Tribal Peoples: A Guide to ILO Convention No. 169,
International Labour Organization
“Ibid.
“Supra note 2 [emphasis added].
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
amalgam of interrelated spiritual, practical, and innovative practices, all of which re-
volve around reverence for the land and the land’s sustainable use.”
In addition, indigenous knowledge is frequently described as being collectively
derived and held, holistic in nature, stressing the interconnectedness of all things (as
opposed to the archetype of Western reductionist scientific thinking and knowledge),
incrementally developed, and closely tied to the geographical environment of the
culture in which that knowledge adheres. This knowledge can be generally known
within a community, or known only to specific people, or groups of people within the
community.’8
The question remains, however, how much, or what quality of local and indige-
nous ecological and biological knowledge should be protected by a new sui generis
system of knowledge protection? Where does one draw the line between what is and
what is not protectable? Is such a line necessary? In the most extreme scenario-
where all possible forms of knowledge are protected-neither the substance nor the
form of a single indigenous or local person’s utterance on matters related to the
environment could be repeated or relied upon without permission. Of course, the
position taken by critics of the current system is that the opposite extreme is now the
norm; that all knowledge of indigenous and local peoples is currently unprotected,
and no one ever has to seek permission to repeat or rely upon anything said or known
by indigenous and local people.'”
‘7 See World Conservation Union, IUCN Inter-Conunission Task Force on Indigenous Peoples, In-
digenous Peoples and Sustainability: Cases and Action (Utrecht: International Books, 1997) at 46;
and World Conference of Indigenous Peoples on Territory, Environment and Development (25-30
May 1992), “Kari-Oca Declaration and the Indigenous Peoples’ Earth Charter” in D. Posey & G. Dut-
field, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and
Local Communities (Ottawa: International Development Research Centre (“IDRC”), 1996) 189 at
196 [hereinafter “Kari-Oca”]: “We feel the Earth as if we are within our mother. When the Earth is
sick and polluted, human health is impossible. To heal ourselves, we must heal the Planet, and to heal
the Planet, we must heal ourselves” See also “Final Document of the Second International Indige-
nous Forum on Biological Diversity” in Report of the Workshop on Traditional Knowledge and Bio-
logical Diversity, UNEP CBD, 1997, UN Doc. TKBD/I/3 at 25 [hereinafter Report of the Workshop]:
Indigenous Peoples come from the land and have been given our life through the land.
We do not relate to the land that we came from as property, we relate to the land as our
mother. … Our role and responsibility is to protect our Mother Earth from destruction
and abusive treatment, just as we would defend our human mother. In carrying out this
responsibility since time immemorial, we have become a central component of the
biological diversity of Earth.
See generally, ibid
One fairly obvious temptation would be to superimpose the criterion and categories of intellectual
property law onto indigenous and local knowledge in order break indigenous and local knowledge
into recognizable, familiar fragments. However, to do so would be to subvert the evident intention of
the law. At the very least, indigenous and local knowledge is mentioned in these agreements because
it should be subject to some form of special treatment (whether it be intellectual property protection,
or something entirely different). To interpret Convention on Biological Diversity, supra note 2, art.
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This article does not purport to resolve these problems. In fact, for the purposes of
this article, it is sufficient (though by no means necessary) to embrace the idea that in-
digenous and local knowledge refers to all indigenous and local environmental
knowledge. This article does not attempt to prescribe, or even analyze, actual possible
forms of sui generis protection that might be used to protect indigenous and local
knowledge. Instead, this study is limited to issues that must be answered before such
practical questions can be asked. The present analysis is limited to the primary ques-
tion of whether or not (according to international law) there can and/or should be in-
tellectual property-style protection for indigenous and local knowledge. An ancillary
issue is also investigated: if the evolving legal discourse regarding indigenous and lo-
cal knowledge does not promote sui generis legal protection, what is it leading to? It
is in this context that the article examines prescriptions regarding the need for gov-
ernments to create space for indigenous and local peoples to make policy decisions
regarding their own uses of biological resources, and to be included in national pol-
icy-making processes generally. Secondary issues such as what parts of indigenous
and local knowledge should be protected and what form that protection should take
are not examined here. For this reason, this article shall continue to refer to “indige-
nous and local knowledge” bearing in mind the necessity of eventually addressing
whether or not useful qualitative distinctions can and should be drawn between the
different forms of that knowledge.
The term “indigenous and local knowledge” is used throughout the body of this
article. Some of the other international agreements analyzed within this article, how-
ever, use alternative terms. For example, ILO 169 refers to “practices” and “technolo-
gies”. Both ILO 169 and the hIternational Undertaking”‘ refer to “contributions”. The
Convention on Biological Diversity refers to “innovations”. I contend that all these
terms are included within the meaning of “knowledge”.2′
8(), for example, as simply reaffirming the fact that the holders of indigenous and local knowledge
might consider applying for patent protection would not constitute any form of special treatment. Of
course, rejecting the importation of intellectual property criteria does not in itself solve the problem of
how much, or what quality of intellectual property should be protected. Having rejected the criterion
of patent law, one is presented immediately with the problem that the potential scope of indigenous
and local knowledge is extraordinarily large. The first thing to occur upon rejecting the criterion em-
braced by intellectual property law is that the previously separate worlds of inventions and public do-
main collapse into one another. In the absence of the fiction of the individual genius inventor who ne-
gotiates the separation between general knowledge and inventions/innovations, the two become inde-
cipherable. What is more, in the dissembling mass of gray, incrementally derived innovations and
general knowledge begin to look the same.
o Supra note 9.
21 The delegates who advocated most strongly for the inclusion of the terms in the Intergovernmen-
tal Negotiating Committee rounds for the Convention on Biological Diversity (“INC-CBD”) did not
have any clearly formed ideas about the different potential legal significance of the terms “knowl-
edge” and “innovations” (interview with Arthur Campeau, Head of the Canadian Delegation to the
INC-CBD, then Special Advisor on International Affairs to the Minister of Environment (I I March, 8
& 15 April 1999), and interview with Ulf Svenson, Swedish delegate to the INC-CBD (6 May 1998)).
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
Sui generis intellectual property protection. “Intellectual property-style protec-
tion” and “sui generis intellectual property protection” are treated as synonyms here.
The phrase is occasionally shortened to “sui generis protection”, or “sui generis law”.
In each instance, the term is meant to denote a legal system of protection for knowl-
edge that shares some characteristics with intellectual property law but which is dif-
ferent in unique ways in order to be able to protect the new subject-matter of indige-
nous and local peoples’ ecological and biological knowledge.
II. Genetic Resource-Related
Intellectual Property Rights and
Technology
A very brief account of the development of mainstream intellectual property law
as it relates to genetic resources will be outlined in this section. This summary will
provide a useful context within which to appraise the potential significance of the
protection of indigenous knowledge. It will also serve as an introduction to a few
anomalous aspects of intellectual property law that might provide openings for, or
complement, efforts to create new systems for the protection of indigenous and local
knowledge.
In the case of genetic resource management, three factors-technological capac-
ity, market demand, and intellectual property protection-have developed in close as-
sociation over the course of the last sixty years. During that period, it is possible to
concurrently trace the evolution of these three factors through three fundamental
shifts in focus: (i) asexual flower breeding; (ii) improved cross-breeding of sexually
producing crop plants; and (iii) biotechnical manipulation of plant parts and microbes.
International and domestic intellectual property laws have shifted to accommo-
date and protect these evolving technologies and markets. For example, the United
States Plant Patent Ace2 extended protection only to asexually reproducing plants.
Similarly, the first international agreement to countenance the subject of plant-related
intellectual property law-an amendment to the Paris Convention for the Protection
of Industrial Property at the London Conference in 1934 2 –extended recognition to
breeding efforts concerning asexually reproducing flowers. Subsequent domestic leg-
islation and international conventions extended protection to improved varieties of
sexually producing plants. The legal protection in these cases had to be sui generis
protections because plant varieties could not qualify for generic plant protection since
industrial plant breeding activities could not meet the standard patent law criterion of
novelty and non-obviousness, and because it was impossible to disclose in writing the
nature of plant breeding innovations.’ New and somewhat more lax criteria for the
22 Pub. L. No. 245, 4015 (1930) (codified as amended at 35 U.S.C. 161-164 (1988)).
2 20 March 1883, 828 U.N.T.S. 107 [hereinafter Paris Union].
24 Rural Advancement Foundation International (RAFI), Enclosures of the Mind: Intellectual Mo-
nopolies (Ottawa: International Development Research Centre, 1997) at 57.
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protection of plant varieties had to be created to protect the plant-breeding industry,
market, and technologies. The new requirements were that the new varieties had to be
distinct, uniform, and stable.”6
More recently, advances in biotechnology have made it possible to engineer new
plant varieties (and other biologically based “inventions”) which can satisfy the novel
and non-obvious criterion.” Once this technology was firmly established, the Union
for the Protection of Plant Varieties (“UPOV”) convention was revised in 1991 to al-
low national governments to provide patent protection for plant varieties. 8 Even if
countries should choose not to implement patent laws in favour of new plant varieties,
UPOV 1991 adds the criterion of novelty to the previous three criteria of distinctive-
ness, uniformity, and stability. One possible future development is that mandatory
patent protection of plant varieties will be included in an amendment to article
27(2)(b) of the TRIPs? agreement, which was scheduled for review in 1999. Finally,
with respect to biotechnologies, in response to new-found capacities to create and/or
use microorganisms in novel ways, many countries have broadened their intellectual
property laws to the effect that they can protect life-forms.
The recent TRIPs agreement has dramatically expanded the number of countries
that must create legal protection for advanced technologies and their associated mar-
kets. Pursuant to TRIPs, all countries that are members of the WTO must provide pat-
ent protection for pharmaceuticals and microbiological products and processes. They
will also have to institute some form of legal protection for plant varieties. While
TRIPs does not actually require signatories to implement the UPOV conventions to
satisfy the “effective sui generis” standard of protection for plant varieties, it certainly
leads them in that direction. As of mid-1997, the Food and Agriculture Organization
(“FAO”) Legal Department’s practice was to recommend to developing countries (that
sought the FAO’s advice on technical compliance with TRIPs) that they should sign
and implement UPOV 1978″ in order to satisfy their obligations pursuant to article
27(3)(b) of TRIPs.” The author hopes that the legal department’s advice to developing
2 B. Bai, “Protecting Plant Varieties Under TRIPs and NAFTA: Should Utility Patents be Available
for Plants?” (1997) 32 Tex. Int’l L.J. 139 at 143.
2 International Convention for the Protection of New Varieties of Plants, 2 December 1961, revised
by (1978) U.S.T. 2703 reprinted in M.A. Leaffer, ed., International Treaties on Intellectual Property
(Washington: Bureau of National Affairs, 1990) 53 [hereinafter UPOV 1978].
27 In recent years, the requirement to describe the innovation in writing has been modified to allow
“deposits” of the new material.
28 See UPOV, “New Plant Varieties and the Protection of the Rights of Their Breeders: Why an In-
ternational System of Protection?” online: UPOV
1991, UPOV Doe. No. DC/91/138 [hereinafter UPOV 1991]; and Bai, supra note 25 at 143.
2′ UPOV 1991, ibid, art. 6.
0 Supra note 1.
31 Supra note 26.
“Interview with Dr. Michael Flitner, University of Freiburg (15 December 1997).
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
countries now includes a broader range of legal mechanisms and standards that they
could use to implement their article 27(3)(b) obligations.”
The European Patent Directive creates more or less the same obligations as the
TRIPs agreement does with respect to the protection of biotechnology.’ While this
document excludes plant varieties per se from patentability,” it extends patent protec-
tion to inventions consisting of, or containing, “material containing genetic informa-
tion and capable of reproducing itself or being reproduced in a biological system” if
that invention is new, involves an inventive step, and can be applied industrially.” It
also allows for patents on essentially non-biological processes” for the production of
plants and animals, and inventions concerning “plants or animals as long as the tech-
nical feasibility of the invention is not confined to a particular plant or animal
variety”‘
There do remain however, a number of instances where intellectual property law
lags behind, or refuses to be driven by, advanced technology. For example, the re-
quirement introduced in the UPOV 1991 revision that new plant varieties must not be
“essentially derived” from previous varieties arguably acts counter to the interests of
biotechnology-based industries. Traditional industrial plant breeding-as opposed to
those industries that use biotechnological techniques-has always involved crossing
the entire genetic structure of the ancestor plants to create new varieties. Biotechnol-
ogy has developed to the point where a single gene from some other variety (or spe-
cies, even) can be introduced into the otherwise unaltered genetic composition of a
plant. Arguably, it is in the interests of the biotechnology industry to have the law rec-
ognize each product of such processes as a new plant variety.
The “essential derivation” provision, however, precludes the extension of intel-
lectual property protection to a plant that is created by these techniques if “it conforms
to the initial variety in the expression of the essential characteristics that result from
the genotype or combination of genotypes of the initial variety.'”” Consequently, a
” For an excellent study regarding possible legal mechanisms which fall below UPOV 1978 and
UPOV 1991 standards, but which might nonetheless satisfy TRIPs, supra note 1, s. 27(3)(b), see D.
Leskien & M. Flitner, Intellectual Property Rights and Plant Genetic Resources (Issues in Genetic
Resources No. 6, June 1997) (Rome: International Plant Genetic Resources Institute, 1997).
“‘ General Secretariat of the Council of the European Union, “Amended Proposal for a Directive of
the European Parliament and of the Council on the legal protection of biotechnological inventions:
Consolidated text with a view to the common position of the Council” (November 1997) Interinstitu-
tional File Number 95/0350 (COD), Brussels. The “Patent Directive” was finally approved by the
European Council of Ministers on May 15, 1998. The European Parliament had previously voted in
approval of the document in December 1997.
“Ibid., art. 4.
3l Ibid, arts. 2, 3.
, Ibid, art. 2(2) defines “essential biological process concerning plants or animals” as those which
consist entirely of natural phenomena such as crossing or selection.
“Ibid., arts. 4(l)(b), 4(2).
i” UPOV 1991, supra note 28, art. 14(5).
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biotechnology company that seeks to introduce a simple genetic sequence for pest re-
sistance in another variety protected by plant breeders’ rights will have to seek the
permission of the rights holders of the original variety into which they seek to intro-
duce the resistant gene. They cannot simply avoid the issue by claiming to have cre-
ated an entirely new variety, and thereby avoid liability by claiming the plant breed-
ers’ exemption. While this provision has been interpreted by many as raising the bar
even further to prevent farmers’ varieties from ever obtaining plant breeders’ rights, it
was actually intended to protect less technologically advanced (but institutional and
commercial) plant breeders from the potentially predatory technological capabilities
of the biotechnology industry.”0
Another example of intellectual property law lagging behind the current state of
technology was the failure of the United States, Switzerland, and Japan to achieve
“maximum” legal protection for plant varieties (i.e., patents) in the negotiation of arti-
cle 27(3)(b) of the TRIPs agreement. They wanted article 27(3)(b) to require all WTO
members to offer patent protection for plant and animal varieties, but were forced to
compromise with countries that clearly had nothing to gain from the extension of such
protection” and that therefore refused to condone stronger protection. The require-
ment that article 27(3)(b) must be reviewed in 1999 was included at the behest of the
United States, Japan, and Switzerland. Until recently, it was assumed that these coun-
tries would be very aggressive in attempting to get stronger protection in the course of
that review.” It appears now, however, that very predictable political fall-out from the
adoption of such a position has convinced them to relent, at least temporarily. The
United States, for example, is taking the position that it would prefer to postpone the
review of article 27(3)(b) until after the year 2001 review of the implementation of
TRIPs.”
The most striking departure from the tendency of legal protection to follow
(rather than precede) advanced technology is the recognition of “Geographical Indi-
cations” in article 3 of the TRIPs agreement. Protection by way of geographical indi-
cators is not designed to reward innovation; instead, it rewards producers who follow
standardized production techniques associated with a region and product that bears
the name of the region. Geographic indicators protect tradition.” Not surprisingly, the
Interview with Barry Greengrass, Vice Secretary-General, UPOV (4 February 1998).
“T. Stewart, The GATT Uruguay Round: A Negotiating History (1986-1992) (Deventer: Kluwer
Law & Taxation Publishers, 1993) at 2294.
42 Interview with Nuno Pires de Carvalho, Councillor, Intellectual Property and Investment Divi-
sion, TRIPs Council (I February 1998).
” Interview with Nuno Pires de Carvahlo, Senior Legal Officer, World Intellectual Property Organi-
zation (3 November 1999).
“It is worth noting that trade-marks share this advantage with geographic indicators. I have chosen
not to engage in an already well-rehearsed discussion of the utility of trade-marks as a means to pro-
tect indigenous knowledge at this point. For a thorough review of the subject, see D. Downes, “Using
Intellectual Property as a Tool to Protect Traditional Knowledge: Recommendations for Next Steps”
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
support of the United States for these provisions could only be secured in return for
Europe’s making concessions with respect to agricultural subsidies in other, simulta-
neous General Agreement on Tariffs and Trade5 negotiations. These provisions have
been subject to a very controversial review in the TRIPs Council for the last three
years,’7 and subject to considerable pressure from parties that are hostile to the notion
of intellectual property rights based on geography and tradition as opposed to more
universal, technologically-oriented criteria. That said, a number of countries are lob-
bying to have the highest level of protection associated with geographical indicators-
which are currently only available for wine and spirits-extended to a much wider
range of goods such as yogurt, rice, fruits, tea and so on.’
These exceptions do constitute examples of intellectual property law “refraining”
from embracing the most advanced technological options. On the other hand, they are
relatively minor in comparison to the main thrust of intellectual property law’s posi-
tive relationship with advanced technology. These exceptions will be considered again
in the Conclusion, below, in the context of how they might be combined with some of
the more positive international legal developments concerning indigenous and local
knowledge and innovation.
III. Growing Recognition of Informal Innovation in International
Law
While legal rights in plant genetic resources were being strengthened through the
UPOV conventions, TRIPs, and the European Patent Directive, various issues with re-
spect to the know-how and practices of farmers and traditional indigenous and local
communities were being developed in international labour, human rights, and envi-
ronmental agreements. While these two strands of international law were being devel-
oped in relative isolation from one another for quite some time, they were finally
forced together, in a relatively unpredictable manner, in the negotiations that led up to
the signing of the Convention on Biological Diversity in 1992.”
(Convention on Biological Diversity Workshop on Traditional Knowledge, Center for International
Environmental Law, Washington, D.C., 1997) [unpublished).
5 30 October 1947,55 U.N.T.S. 187, Can. T.S. 1947 No. 27 [hereinafter GA71].
4 Carvalho, supra note 42.
17 Ibid. See also TRIPs, supra note 1, art. 24(2).
See “Extension of the Additional Protection for Geographical Indications to Other Products” (13
July 1999) Communication from Turkey, WT/GC/W/249; and “Proposals in IPR Issues” (18 Febru-
ary 1999) Communication from India, WT/GC/W/147.
49 Supra note 2. In 1990, the Ad Hoc Working Group of Experts on Biological Diversity (the same
group that would later metamorphose into the Intergovernmental Negotiating Committee for a Con-
vention on Biological Diversity) determined that some form of recognition of a right for indigenous
peoples to benefit from the use of their biological and environmental knowledge was essential to the
overall goal of biological diversity conservation: see J. Furtado, Biological Diverstiy: Global Conser-
vation Needs and Costs, 12 June 1990, UNEP/Bio.Div.3/Inf.1. Prior to this explicit linking of indige-
nous knowledge and global environmental benefits, intellectual property issues and environmental is-
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In the sections that follow, the evolution of the treatment of “indigenous”, “tribal”,
“local”, and “farmer” innovations in international law will be analyzed. The year 1957
is perhaps the most appropriate date from which to start this analysis because that is
the year in which the Convention Concerning the Protection and hztegration of In-
digenous and Other Tribal and Semi-Tribal Populations in Independent Countries,”
also known as ILO 107, was adopted by the International Labour Organization. As
shall be seen in the analysis below, ILO 107 explicitly denigrates indigenous culture,
education, and practices. Although the agreement does not include the term “indige-
nous knowledge or innovations,” it is clearly hostile to the possibility of their positive
evaluation.” Thirty-seven years later, the Convention to Combat Desertification” has
the strongest set of provisions to date concerning local innovations (though the word
“indigenous” is not included).
In between, the most significant developments in international law regarding the
treatment of indigenous and local knowledge include the United Nations Educational,
Scientific and Cultural Organization (“UNESCO”)-WIPO Model Provisions for Na-
tional Laws on the Protection of Expressions of Folklore Against Illicit Exploitation
and Other Prejudicial Actions,”3 ILO 169,’
the five documents (including the Con-
vention on Biolgical Diversity) approved at the 1992 UNCED,S and ongoing negotia-
sues were not treated together in the same international legal agreement. Variations on what language
should be included in the Convention on Biological Diversity vis-a-vis indigenous knowledge was the
subject of protracted debate throughout the subsequent negotiating sessions, with many countries-
Brazil being perhaps the most vociferous-resisting the inclusion of the “indigenous and local knowl-
edge” altogether: Campeau, supra note 21.
0 26 June 1957, 328 U.N.T.S. 247 [hereinafter ILO 1071.
” An alternative and much more recent point of departure is 1972: the year of the United Nations
Conference on the Human Environment (“UNCHE”). The UNCHE is significant because it was the
historical precursor to the 1992 United Nations Conference on Environment and Development
(“UNCED”) (at which time the immensely significant Convention on Biological Diversity was
opened for signature) and because neither of the two documents approved by the 113 countries that
participated in the 1972 UNCHE-the Stockholm Declaration on the Human Environment, online:
International Treaties from Cornell
(date accessed: 4 October 1999) and the Action Plan for the Human Environment, online: Interna-
tional Treaties from Cornell
cessed: 4 October 1999)-include particularly serious treatment of indigenous, farmer, local, and/or
traditional innovations.
” Supra note 7.
” Reproduced in D. Posey, Traditional Resource Rights: International hIstinnents for Protection
and Compensation for hidigenous Peoples and Local Communities (Gland, Switz.: International Un-
ion for the Conservation of Nature and Natural Resources, 1996) at 204 [hereinafter Model Provi-
sions]. The relevant document was published (without a document number) in 1985 after the Model
Provisions were adopted at the meeting of the Committee of Governmental Experts on the Intellectual
Property Aspects of the Protection of Expressions of Folklore (Geneva, 28 June to 2 July 1982) con-
vened by UNESCO and WIPO.
‘ Supra note 3.
” Supra note 5 1.
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
967
tions regarding farmers’ rights in the Commission on Genetic Resources for Food and
Agriculture. These agreements shall be analyzed in chronological order.
A. Disrespect for Indigenous Customs in ILO 107
ILO 107 ‘ sought to raise the standard of living of indigenous and tribal people it
“protected” by encouraging their assimilation into the dominant national cultures in
which they were geographicaly located. In the context of vocational training, em-
ployment, and education, the agreement speaks of the need to raise indigenous and
tribal peoples’ “stage of cultural development, 7 “improve their artistic values and
particular modes of cultural expression,'”” and reach a higher “stage” of “social, eco-
nomic, and cultural integration in the national community.”” In one provision, the
agreement considers the possibility of replacing the “values and institutions of the
said populations” with “appropriate substitutes.””
Obviously, the entire thrust of this agreement militates against the possibility of
respecting, valuing, protecting, and promoting indigenous and tribal peoples’ knowl-
edge and innovations.” ILO 107 is based on the implicit idea that indigenous and
tribal cultures, practices, and education are backward and primitive. The agreement
aims to “protect” indigenous and local people through replacing their collective sys-
tems of knowledge production and cultural survival with individualist orientations. ‘2
Widespread recognition of the prejudicial nature of this document eventually led to its
revision. The revision, which culminated in 1989 in ILO 169, shall be analyzed below.
B. Expressions of Folklore in the Model Provisions
Agreements regarding the protection of “folklore” were forged between African
states in the mid 1960s.’ Similar efforts to create international, binding agreements on
the protection of folklore have been made by the United Nations since 1972, when the
Bolivian government, furious over Simon and Garfunkel’s release of “El Condor
Pas”, a copy of a traditional Andean folk song, insisted in a letter to the Director Gen-
56Supra note 50.
57Ibid., art. 17.
Ibid., art. 18.
59 Ibid., art. 22.
60 Ibid., art. 4(b).
6′ The document is not entirely contrary to current conceptions of indigenous peoples’ rights. In ILO
107, ibid., art. 11, for example, the agreement states that the “right of ownership, collective or indi-
vidual, [oft the members of the populations concerned over the lands which these populations tradi-
tionally occupy shall be recognized.” Subsequent provisions offer protection against forced displace-
ment and expropriation without appropriate compensation.
62The primary objective of the assimilation-oriented prescriptions in the agreement are to foster in-
dividual dignity and advance individual usefulness and initiative.
63 Tunis Model Law on Copyrightfor Developing Countries (1976), reproduced in (1976) 12 Copy-
right: Monthly Rev. World Intell. Prop. Org. 165.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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eral of UNESCO that action must be taken at the international level to redress similar
situations in the future.’ In 1983, UNESCO and WIPO together issued model provi-
sions for the protection of folklore’ which were to serve as a model upon which
countries could base their domestic legislation. Subsequent attempts to have the
Model Provisions elevated to the status of an international convention failed,’ though
they officially continue to exist as recommendations for member states.6′ Despite
failing to create an international instrument regulating folklore protection, UNESCO
remains, at least rhetorically, dedicated to the advancement of indigenous communi-
ties’ intellectual property rights.”
Modeled as they are upon copyright law analogues, the Model Provisions address
control of “expressions” of folklore (as opposed to ideas, which cannot be protected
by copyright). It has been suggested, however, that indigenous, local, and farmers’ in-
formal innovations involving plants could be construed as expressions of folklore.’
While this may be true, pursuing such an argument based on the 1984 text of the
model laws is entirely academic. The Model Provisions do not constitute a legally
binding instrument. In fact, efforts to make them into an international legally binding
document failed.
What is most interesting about the Model Provisions for the purposes of this
study is: (i) they represent an early attempt to promote the idea of communal, inter-
generationally-derived intellectual contributions attracting some form of intellectual
property protection; and (ii) they failed to gain the support of national governments
for this objective. While the Model Provisions were essentially abandoned for the last
twelve years, they may be reinvigorated by the Global Issues in Intellectual Property
Unit of WIPO. The Model Provisions will be revisited below.
C. Indigenous and Tribal Practices in ILO 169
As stated above, ILO 107’s assimilationist and patronizing approach eventually
became an embarrassment to ILO members, and members voted to revise the docu-
ment. Thirty-two years later, the organization adopted ILO 169.0 ILO 169 represents
” Interview with Marc Denhez, Barrister and Solicitor, UNESCO Consultant (7 April 1998).
6 Supra note 53.
M. Denhez, “Appendix A: International Efforts to Regulate Fakelore” in M. Denhez & A.
Noonan, Native Arts, Crafts and Fakelore: Report for the Royal Commission on Aboriginal People,
March 1994 [unpublished].
67 Ibid.
6 See Report of the Workshop, supra note 17 at para. 67 where the Secretariat reports that at the
Convention on Biological Diversity Workshop of Traditional Knowledge and Biological Diversity at
Madrid (November 1997), the representative from UNESCO reported to the plenary session that the
protection of the intellectual property rights of indigenous people and local communities was at the
heart of UNESCO’s mandate and field of competence.
69 “Kari-Oca”, supra note 17.
‘0Supra note 3.
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
969
a significant step forward, or at least away, from ILO 107. The two most obvious im-
provements forged by the agreement are: (i) the recognition that indigenous and tribal
customs should survive; and (ii) that indigenous and tribal peoples should be able to
participate in planning projects that affect them.7′
Article 23 of ILO 169 states that “rural and community based industries … and
traditional activities … shall be recognized as important factors in [indigenous and
tribal peoples’] economic self-reliance and development,” and adds that “Govern-
ments shall … whenever appropriate, ensure that these activities are strengthened and
promoted.” Articles 23 and 27 both refer to “traditional technologies”, but do so in a
relatively passive context which only implicitly recognizes the value of that technol-
ogy. Article 13 sets out that governments shall respect the “collective aspect” of in-
digenous and tribal peoples’ relationship to their lands. Finally, the Preamble calls at-
tention to the “distinctive contributions of indigenous and tribal peoples to … ecologi-
cal harmony.”
Considered together, these provisions exhibit a nascent appreciation for the value
of indigenous and local knowledge. Of course, ILO 169 does not refer to knowledge
per se; its references are restricted to what is argued here to be sub-species of indige-
nous knowledge, that is, indigenous and tribal “practices” and “technologies”, and are
restricted in the Preamble (where it carries the least legal authority) to “contribu-
tions”.” With the exception of the Preamble, ILO 169 treats the benefits associated
with indigenous and tribal practices and technologies as being of significance only to
the indigenous and tribal communities themselves, and not to outside communities.
This treatment of “indigenous and tribal practices” is very different from the treatment
of “indigenous and local knowledge, innovations and practices” in the Convention on
Biological Diversity, wherein the latter are recognized as relevant to the conservation
and sustainable use of biological diversity, which in itself is recognized as having “in-
trinsic value”
Although ILO 169 is frequently referred to in the preambles of United Nations
statements and resolutions, it does not appear to have much active significance in on-
going negotiations regarding indigenous knowledge. For example, there were no In-
ternational Labour Organization representatives at the Convention on Biological Di-
versity Workshop of Traditional Knowledge and Biological Diversity at Madrid in
November 1997″‘ or at the Fourth Conference of the Parties to the Convention on
Biological Diversity at Bratislava in May 1998. This may be due in part to the relative
7′ Tomei & Swepston, supra note 14 at 6.
72 See definition of “indigenous and local knowledge” in Part I, above.
7′ Supra note 2. The Convention on Biological Diversity is the subject of extensive review in Part
]I.E. 1, below.
74Report of the Workshop, supra note 17 at para. 18.
970
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lack of international support for the document in the first place; as of September 1996,
only ten countries had ratified it.”
There is also a lack of enthusiasm for the agreement on the part of indigenous
peoples. Indigenous peoples are critical of the agreement for two reasons: (i) the dis-
claimer in article 1(3) that the use of the word “peoples” in the document should not
be construed as supporting movements for self-determination in international law;’
and (ii) a general lack of support for substantive territorial rights. While there is
nothing explicit in the agreement regarding conventional intellectual property-style
treatment of indigenous and tribal knowledge and innovations, ILO 169 eradicates the
previous international law embodied in ILO 107 that otherwise militated against such
future developments.
Da The Informal Innovation of Farmers
The Commission on Genetic Resources for Food and Agriculture (“CGRFA”)
was created by and within the FAO in 1983. It adopted the Intenzational Undertaking
in the same year.” Originally, the International Undertaking (which is not binding on
its signatories) adopted a free exchange formula concerning plant genetic resources
for food and agriculture, guided by the rationale that such resources were the common
heritage of mankind.’ Nothing in the original International Undertaking document
explicitly recognizes the contributions of traditional farmers qua breeders.”
In the first meeting of the CGRFA in 1985, however, developed countries insisted
upon exempting plant breeders’ rights-protected plant varieties from the application of
the common-heritage principle, thereby harmonizing the International Undertaking
with UPOV 1978.’ In reaction to this development, developing countries-spumed
into action by non-governmental organizations in the corridors of the Roman FAO
building during the 1985 CGRFA meetings-angrily demanded the recognition of
farmers’ rights as a balance against the recognition of plant-breeders’ rights.”
When the notion of “farmers’ rights” was originally introduced-by Mexico,
supported by Libya, and vehemently objected to by the Netherlands-in the CGRFA
” Knowledge, hInovations and Practices of hIdigenous and Local Communities: Implementation of
Article 8U), 18 September 1996, UNEPICBDICOP3119 at para. 19 [hereinafter Knowledge, hnova-
tions and Practices].
16 International Indian Treaty Council, hzternational Indian Treaty Council Position on the Draft of
the hiterainerican Declaration on the Rights of hIdigenous Peoples, online: International Indian
Treaty Council
“Supra note 9, art. 1.
” FAO, The State of the World’s Plant Genetic Resources for Food and Agriculture (Rome: FAO,
1998) at 2.
” Interview with Pat Mooney, Executive Director, Rural Advancement Foundation International (5
April 1998).
‘ Supra note 26.
,1 Mooney, supra note 79.
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
meetings, no one had a clear idea of what the term actually meant. After a three-year
period and protracted negotiations, a very general definition of “farmers’ rights” was
recommended by the CGRFA to the FAO Assembly in 1989. Accompanying that
resolution was another resolution which adopted the exclusion of plant-breeders’
rights-protected plant varieties from the common heritage principle.”2 In the text
adopted by the FAO, farmers’ rights were defined as
rights arising from the past, present and future contributions of farmers in con-
serving, improving and making available plant genetic resources, particularly
those in the centers of origin/diversity. These rights are vested in the Interna-
tional Community, as trustee for present and future generations of farmers, for
the purpose of ensuring full benefits to farmers, and supporting the continua-
tion of their contribution, as well as the attainment of the overall purpose of the
International Undertaking.
A subsequent resolution, passed in 1991, stated: “Farmers’ [flights will be imple-
mented through an international fund on plant genetic resource which will support
plant genetic conservation and utilization programmes, particularly, but not exclu-
sively, in the developing countries.””
In 1989, all parties to the International Undertaking decided to embark upon a
revision of the convention in order to address the rapidly changing policy environment
concerning the international exchange of germ plasm and, after 1992, to bring the
convention in conformity with the Convention on Biological Diversity. It was also de-
cided that the revised International Undertaking should be a legally binding docu-
ment, either as a protocol adopted pursuant to the Convention on Biological Diversity
or as a “stand alone” treaty administered by the FAO.” In the context of these nego-
tiations; the issue of farmers’ rights was reopened.
12 Res. 4/89, extracted from the 25th Sess. of the FAO Conference, Rome, 11-29 November 1989,
Annex 1, art. 1.
” Res. 5/89, extracted from the 25th Sess. of the FAO Conference, Rome, 11-29 November 1989,
Annex 2. The text also states that the Conference endorses the concept of “farmers’ rights” in order to:
(a)
(b)
(c)
ensure that the need for conservation is globally recognized and that sufficient
funds for these purposes will be available;
assist farmers and farming communities, in all regions of the world, but espe-
cially in the areas of origin/diversity of plant genetic resources, in the protection
and conservation of their plant genetic resources, and of the natural biosphere;
allow farmers, their communities, and countries in all regions, to participate fully
in the benefits derived, at present and in the future, from the improved use of
plant genetic resources, through plant breeding and other scientific methods.
Res. 3/91, extracted from the 26th Sess. of the FAO Conference, Rome, 9-12 November 1991,
Annex 3 [emphasis added].
These options continue to be discussed: see e.g. CGRFA, Revision of the International Under-
taking on Plant Genetic Resources: Legal and Policy Options, CGRFA-8/99/9, 8th Reg. Sess. of the
FAO Conference, Rome, 19-23 April 1999 [hereinafter Legal and Policy Options].
972
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These negotiations have been characterized by developing countries attempting to
give the term substantive content (and increased significance), and developed coun-
tries trying to minimize the content of the term, or eradicate it entirely. G-77 countries
have argued that the revised International Undertaking should include the following
obligations on signatories:
Protect, promote and compensate the use of knowledge, innovation and prac-
tices of farmers relevant for the conservation and sustainable use of plant ge-
netic resources for food and agriculture and promote their wider application
with the consent and involvement of holders of such knowledge and innova-
tions, and promote the equitable sharing of benefits from the utilization of plant
genetic resources, knowledge, innovations and practices….
Protect and promote the collective rights of farmers with respect to their inno-
vations, knowledge and culturally diverse systems …
Establish national and international sui generis systems pertaining to the fair
and equitable sharing of benefits arising out of the utilization of plant genetic
resources….
Establish an international fund to support sustainable use of genetic resources,
traditional farmers’ knowledge and equitable benefit sharing….
Ensure that the prior informed consent of farmers and local communities is
obtained before the collection of plant genetic resources is undertaken and re-
quire the disclosure of the origin of genetic resources used in the development
of commercial varieties …
Modify intellectual property rights systems, land tenure and seed laws to en-
sure harmony with the provisions stated above.”
It is extremely unlikely that all of these provisions will eventually be included in
the revised International Undertaking; they are not realistic in the context of the on-
going negotiations. Instead, these provisions represent a “stonewalling” technique
through which the G-77 can express its frustration with what it feels is intransigence
on the part of developed countries. For their part, the developed countries also engage
in exaggerated posturing; one often hears rumours in the FAO’s corridors that devel-
oped countries are considering forming their own closed club for the purposes of
germ plasm exchange, and leaving the developing countries out of the deal altogether.
This position is based on the idea that the APEC countries can now satisfy their cur-
rent and future needs for agricultural germ plasm out of the stock they are already
using, and from the ex situ gene banks that are situated within their borders. In fact,
industrialized countries are no more likely to follow this course of action than the
G-77 is to insist on the entire list of provisions set out above.
In April 1999, the CGRFA revisited the revisions of the International Undertak-
ing. Leading up to the meeting, one theory that had been gaining acceptance was that
Southern governments were gradually moving toward dropping their push for sub-
Ibid.
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
stantively meaningful provisions to be included in the International Undertaking un-
der the rubric of farmers’ rights in return for a general commitment to the creation of
an international fund in support of in situ conservation in the South. The Chairman’s
negotiating text (the base document upon which the week’s negotiations started),
however, included fairly strong language regarding farmers’ rights. Not surprisingly,
the strongest language was quickly taken out of the text.87 However, the negotiations
regarding farmers’ rights still did not lose all of its momentum. At 10:30 p.m. of the
third day of the meeting, the “contact group” that had been assigned the task of con-
sidering farmers’ rights agreed to the following formulation:
The Parties recognize the enormous contribution that the local and indigenous
communities and farmers of all regions of the world, particularly those in the
centers of origin and crop diversity, have made and will continue to make for
the conservation and development of plant genetic resources which constitute
the basis of food and agriculture production throughout the world. The parties
agree that the responsibility for realizing farmers’ rights, as they relate to Plant
Genetic Resources for Food and Agriculture, rests with national governments.
In accordance with their needs an priorities, each Party should, as appropriate
and subject to its national legislation, take measures to protect and promote
Farmers’ Rights, including:
(a) protection of traditional knowledge relevant to plant genetic resources for
food and agriculture;
(b) the right to equitably participate in benefit-sharing arising from the
utilization of plant genetic resources for food and agriculture;
(c) their right to participate in making decisions, at the national level, on
matters related to the conservation and sustainable use of plant genetic
resources for food and agriculture.
Nothing in this Article shall be interpreted to limit any rights that farmers have
to save, use, exchange and sell farm-saved seed-propagating material, subject
to national law and as appropriate.’
The overall effect is that farmers’ rights have been demoted from being an interna-
tional legal principle (with admittedly undecided normative value) to a principle that
exists solely at the discretion of national governments.
In spite of this demotion, it is interesting to note that the language in paragraphs
(a), (b), and (c) is relatively strong in terms of possible implementation. The text urges
state parties to consider “protecting” traditional knowledge, and farmers should share
in the benefits of the use of their genetic resources (which are the embodiment of their
traditional knowledge). This language is very similar to that which is included in arti-
cle 8(j) of the Convention on Biological Diversity and its introduction at this stage of
87 CGRFA, Composite Draft Text on the International Undertaking on Plant Genetic Resources In-
corporating the Chariman’s Elements, CGRFA-8/99/13 Annex, 8th Reg. Sess. of the FAO Confer-
ence, Rome, 19-23 April 1999.
Ibid.
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the CGRFA meetings can no doubt be attributed to growing prominence of the Con-
vention on Biological Diversity. While the new text is definitely a step back from a
global system to advance farmers’ rights, it includes stronger language than ever that
farmers’ innovations deserve compensation. It also includes language that is unprece-
dented in the history of the hIternational Undertaking regarding farmers rights to po-
litical participation as a function of farmers rights. Overall, while undermining any
international content regarding farmers’ rights, the text advances (rhetorically at least;
there is no real legal force to agreed language) national schemes to implement these
rights.
While periodic meetings of the CGRFA to revise the International Undertaking
continued, the issue of farmers’ contributions to plant breeding was addressed by an
assembly of approximately one hundred and fifty countries at the Fourth International
Technical Conference on Plant Genetic Resources at Leipzig, Germany in 1996.”9 The
conference responded to a felt need-both by parties engaged in the revised Interna-
tional Undertaking negotiations and by the Conference of the Parties to the Conven-
tion on Biological Diversity-for extended analysis of technical issues related to the
conservation and sustainable use of plant genetic resources for food and agriculture.’
By the time it was completed, however, the Conference had addressed-more than
anyone had anticipated it would-a number of related policy issues, including the eq-
uitable sharing of benefits derived from the use of “traditional knowledge, innovations
and practices relevant to the conservation of [plant genetic resources for food and ag-
riculture] and their sustainable use “‘9′ The Conference parties unanimously adopted a
document prepared by the Secretariat, and revised and negotiated by the parties enti-
tled the Global Plan of Action. 2
The Global Plan of Action is explicit in its recognition of the value of farmers’ in-
formal innovations and its reaffirmation of the principle of farmers’ rights. It states
that many food crops have “been consciously selected and improved by farmers since
the origins of agriculture” and have “continued to be developed and improved by
farmers without interruption [since ancient times].””‘ Furthermore, one of the stated
primary objectives of the Global Plan of Action is to support and enhance “tradi-
tional” on-farm systems of plant genetic resources for food and agriculture conserva-
89 FAO, Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic
Resources for Food and Agriculture and the Leipzig Declaration, Adopted by the International Tech-
nical Conference on Plant Genetic Resources (Rome: FAO, 1996) [hereinafter Global Plan of Ac-
tion].
Ibid. at para. 4 states that “[tjhe Conference of the Parties to the [Convention on Biological Diver-
sity] at its second session in 1995 declared its support for the development of a Plan ‘for Food and
Agriculture’ through the preparatory process of the Fourth International Technical Conference on
Plant Genetic Resources
“‘ Ibid. at para. 9; and Mooney, supra note 79.
9 Supra note 89.
” Ibid. at pam. 57.
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M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
975
tion and development, and to forge complimentary links between on-farm and institu-
tional plant-breeding efforts.
The Global Plan of Action is less clear, however, about what policy options indi-
vidual countries and international organizations should pursue in furtherance of these
objectives. The Global Plan of Action does offer a few sui generis forms of protection
for states to consider by way of national legislation, for example, legislative measures
to allow distribution and commercialization of land races/fanners’ varieties such as a
“niche variety registration system” for traditional varietiesY The thrust of most of the
recommendations, however, is more administrative in nature; encouraging national
governments and multilateral institutions to designate resources to support and inves-
tigate the efficacy of on-farm conservation and improvement efforts, and to forge
links between formal-sector breeders and farmers. The Global Plan of Action contin-
ues to command considerable attention at the CGRFA meetings, and in the overall
administrative activities of the FAO.
On the international level, many still feel that the most likely result of the ongoing
negotiations regarding farmers’ rights in the International Undertaking will be the re-
alization of an international fund of money (contributed mostly by Northern govern-
ments and industries) for in situ conservation efforts for Southern farmers. The Global
Plan of Action would be a source of direction regarding the kinds of activities the
fund should support. While this version of farmers’ rights would result in additional
financial support for on-farm methods of plant genetic resources for food and agri-
culture preservation and improvement, it would not provide individual farmers and/or
farming communities with property-style control over their knowledge and/or inno-
vations. Such a result would therefore be disappointing to anyone who seriously
hoped to see farmers’ rights expressed (at least in part) in the form of internationally
defined intellectual property rights designed to protect farmers’ varieties.
On the other hand, the new language negotiated at the last CGRFA meeting does
advance the idea that sui generis intellectual property rights for farmers could be re-
alized at the domestic level. Of course, the new text on farmers’ rights is not final; it
could still be radically changed, or eradicated altogether, by the time all of the state
parties finally agree upon the text of the revised International Undertaking.
E.
Indigenous and Local Informal Innovations
1. The Convention on Biological Diversity
Article 8(j) of the Convention on Biological Diversity requires that each party
promote the wider application of “knowledge, innovations and practices of indigenous
and local communities embodying traditional lifestyles relevant for the conservation
and sustainable use of biological diversity.” In addition, article 8(j) states that govern-
94 Ibid. at paras. 203, 212.
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[Vol. 44
ments will “encourage the equitable sharing of the benefits arising from the utilization
of such knowledge, innovations and practices.”‘ Of course, the force of both of these
obligations is undermined by the conditions, “as far as possible and as appropriate,”
and “subject to … national legislation.”” Article 10(c), subject to the same qualifiers,
requires contracting parties to “[p]rotect and encourage customary use of biological
resources in accordance with traditional cultural practices that are compatible with the
conservation or sustainable use requirements.”‘ The first preambular paragraph rec-
ognizes the “intrinsic value of biological diversity.”
The meaning of these articles-and, more specifically, what governments are re-
quired to implement by way of national legislation in furtherance of these provi-
sions-is subject to considerable ongoing controversy. The negotiators who eventu-
ally pushed hardest for the inclusion of text relating to indigenous knowledge and in-
novations in the Convention on Biological Diversity were not certain at the time what
the long-term significance of its inclusion would be.98 Now, seven years after the Con-
vention was signed, the Secretariat of the Convention recognizes that “best practices
with regard to all aspects of the implementation of article 8(j)” are still far from clear.”
Based on a simple, plain meaning interpretation of the text, one thing is certain:
the Preamble and articles 8(j) and 10(c) of the Convention on Biological Diversity
represent a significant step forward from ILO 169 in the treatment of informal inno-
vations. First, the Convention refers to indigenous and local “knowledge” and “inno-
vations”; terms which connote a much higher level of intellectual contribution and so-
phistication than what is implied in ILO 169’s “traditional activities” and “technolo-
95 Art. 8 of the Convention on Biological Diversity, supra note 2, is entitled “In-Situ Conservation”.
The full text of article 8(j) is as follows:
8. Each Contracting party shall, as far as possible and as appropriate:
(j) Subject to its national legislation, respect, preserve, and maintain knowl-
edge, innovations and practices of indigenous and local communities em-
bodying traditional lifestyles relevant for the conservation and sustainable
use of biological diversity and promote their wider application with the ap-
proval and involvement of the holders of such knowledge, innovations and
practices and encourage the equitable sharing of the benefits arising from the
utilization of such knowledge, innovations and practices.
Ibid.
9 Two other articles of the Convention on Biological Diversity also mention “indigenous and local
knowledge”: art. 17(2) under the rubric of “Exchange of Information”, and art. 18(4) under the rubric
of “Technical and Scientific Cooperation.” The twelfth paragraph of the Preamble recognizes the
close dependence of indigenous and local people living traditional lifestyles on biological resources
and the desirability of sharing the benefits arising from the use of traditional knowledge, innovations,
and practices relevant to the conservation of biological diversity.
“Campeau, supra note 21.
,Executive Secretary, Secretariat of the Convention on Biological Diversity, hnplementation of Ar-
ticle 8(j) and Related Provisions, 2 February 1998, UNEP/CBD/COP/4/0 at para. 35.
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
977
gies”. Second, the Convention recognizes that indigenous and local knowledge and
innovations are valuable outside the indigenous and local communities from which
they originate, and that such knowledge is therefore open to be exploited by actors
outside these communities. Third, the Convention links the notion of outside exploi-
tation of indigenous and local technologies to the necessity of returning some of the
benefits that arise from that exploitation to the indigenous and local communities
from which the knowledge and innovations originated.
Equally certain (from a plain reading of the text), however, is the fact that the
Convention on Biological Diversity does not explicitly create a right of control over
their knowledge and innovations that vests directly in indigenous or local innovators.
Beyond recognizing the value of indigenous and local knowledge, and making very
general prescriptions about the need to “promote” them, the Convention is unclear
about how to promote them. Consequently, exactly what policies and laws govern-
ments must implement to give national effect to these obligations is unclear. The vari-
ous implementation schemes that are most commonly discussed and drafted can be
subdivided into three basic camps, which shall be referred to as: (i) enhanced policy
participation; (ii) intellectual property style protections; and (iii) territorial rights.
As the name suggests, the policy participation camp posits that the Convention on
Biological Diversity creates a general obligation to ensure the participation of indige-
nous peoples in those aspects of policy-making and resource management which (i)
affect indigenous peoples, and/or (ii) where indigenous knowledge and innovations
might be relevant to the “conservation and sustainable use of biological diversity”
outside their own communities. Governments would similarly be under an obligation
to share the benefits that are derived from the use of this knowledge, though it is pos-
sible that there would not be any identifiable benefits that flow from participating in
policy-making per se.
The intellectual property-style protection camp purports that indigenous and local
communities are entitled to benefits from, and have rights of control over, the use of
their knowledge and innovations. Suggestions regarding exactly what form these
rights and controls should take vary.
The third camp propounding territorial rights of indigenous and local communi-
ties argues that maintenance and wider application of indigenous and local knowledge
is impossible without attendant land rights and rights to self-determination. This posi-
tion finds some logical (if not strictly legal) support in ILO 169, which recognizes the
“collective aspects” of the relationship between indigenous and tribal peoples’ “cul-
tural and spiritual values” and their “lands and territories”.”
Most of the pressure for the territorial rights position originates from indigenous
and local people themselves. There is very little evidence that governments engaged
in the negotiation or interpretation of the Convention on Biological Diversity have
” ILO 169, supra note 3, art. 13.
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[Vol. 44
ever intended for the recognition of indigenous and local knowledge to reinforce in-
digenous and local claims for restoration of their ancestral territories. References are
made in some of the United Nations Conference on Environment and Development
(“UNCED”) preparatory conference materials to the possibility of local and indige-
nous communities having a right to “utilization and protection of their habitats on a
sustainable basis.””‘ However, it is not reasonable to interpret such generic statements
as support for something as controversial as a right to land. The territorial rights posi-
tion is almost entirely driven by indigenous and local peoples, not by parties to the
agreement. Further analysis of the territorial rights position is reserved to Part IV, below.
Most of the tension that existed both in the Intergovernmental Negotiating Com-
mittee rounds for the Convention on Biological Diversity and in subsequent efforts by
the parties to interpret their implementation obligations and options has been between
the policy participation and intellectual property-style protection camps. There is evi-
dence of this tension from the moment the terms “indigenous and local knowledge
and innovations” were first introduced into the negotiation of both the Ad Hoc Work-
ing Group of Experts on Biological Diversity, and later the Intergovernmental Negoti-
ating Committee rounds for the Convention on Biological Diversity and the Prepara-
tory Conferences for the UNCED.
For example, the two motives on the part of the Canadian and Swedish delegates
who eventually took the lead advocating the inclusion of indigenous and local knowl-
edge and innovations into the Intergovernmental Negotiating Committee rounds are
characterized by this tension between the two camps. One of the motives was to push
national governments into including indigenous and local representatives in domestic
policy discussions regarding their own development and the environment. The second
motive, however, was to “send a warning shot over the bow” of the Uruguay round
GATT negotiations concerning intellectual property which were taking place at the
same time. ‘2 While the delegates to the Intergovernmental Negotiating Committee
rounds for the Convention on Biological Diversity did not have the expertise in intel-
lectual property law that the more recent delegations enjoy,”3 they definitely appreci-
ated at the time that the inclusion of indigenous knowledge and innovations would
have implications with respect to intellectual property law, even though they were not
sure exactly what these would be.”
“0, See e.g. UNCED Preparatory Committee, Preparations for the United Nations Conference on
Environment and Development on the Basis of General Assembly Resolution 44/228 and Taking into
Account Other Relevant General Assembly Resolutions, 17 December 1991, A/CONF.151/PC/1000/
Add.21 at para. 93(h) [hereinafter Preparations 1], and 19 December 1991, A/CONF.151/PC/104 at
para. 59 [hereinafter Preparations 2].
102 Campeau, supra note 21.
101 For example, the Canadian delegation- to the Madrid Workshop in 1997 and to the Bratislava
Fourth Conference of the Parties in 1998 included an intellectual property lawyer from Industry Can-
ada.
‘”N According to Arthur Campeau, supra note 21, neither he nor his fellow delegates (both the other
Canadians and the Swedish delegates with whom he worked most closely) who pushed for the inclu-
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M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
979
Just as in the case of the Intergovernmental Negotiating Committee rounds for the
Convention on Biological Diversity, the reports of the Secretary General of the Pre-
paratory Conferences to UNCED'” reflect an inability of the government delegates to
agree upon the ambit of the potential significance of the meaning of “indigenous and
sion of “indigenous and local knowledge” in the Convention on Biological Diversity had clear ideas
about the kinds of national laws that would eventually be required to realize the objectives of includ-
ing the term in the agreement in the first place. Their primary objective was to ensure that indigenous
and local peoples would be included in future national and international processes wherein such
mechanisms would be defined. Campeau was motivated by the combination of a sense of debt to in-
digenous and local peoples-based on the value of their contributions to agricultural, medical, and
environmental knowledge-a sense of urgency-based on the global depletion of biological and cul-
tural diversity-and the potential remedial benefits of raising the profile of indigenous and local re-
source management approaches.
It is interesting to note that much more strongly formulated obligations with respect to both partici-
patory and intellectual property-style approaches to indigenous and local knowledge were at one time
included in the text, but ultimately abandoned. For example, one “element” which the Ad Hoc Work-
ing Group considered including in the text of the Convention on Biological Diversity was the “right of
indigenous populations to participate in the use, management and conservation of natural resources
pertaining to their lands:’ and the “maintenance and use of local knowledge about biological diversity
through necessary support and funding” (United Nations Environment Programme (“UNEP”), Re-
port of the Ad Hoc Working Group on the Work of its Third Session in Preparation for a Legal In-
strument on Biological Diversity on the Planet, 13 August 1990, 3rd Sess., UNEP/Bio.Div.3/12 at 18
[emphasis added]).
A provision that was dropped which would have had a significant impact regarding the necessity of
creating domestic intellectual property protections was as follows: “Practices and innovations devel-
oped in the course of traditional life and by [indigenous people, communities, and populations] which
contribute to the wise and sustainable use of biological resources and conservation of biological di-
versity should be recognised and rewarded’ (UNEP, Ad Hoc Working Group of Legal and Technical
Experts on Biological Diversity: Draft Convention on Biological Diversity, 2nd Sess.,
UNEP/Bio.Div/WG.2/2/2/2 at 20 [emphasis added]). The same text also includes the principle of
“recognition and reward of informal innovation by local/indigenous people (‘farmers’ rights’)” (ibid.
at 14 [emphasis added]).
“o Reliance on the negotiating history of the Preparatory Conferences to the UNCED for interpreta-
tion of “indigenous and local knowledge” is legitimate in as much as there was considerable overlap
between both the subject matter and negotiating personnel in the Preparatory Conferences and the
Intergovernmental Negotiating Committee rounds for the Convention on Biological Diversity: see e.g.
Chairman’s Summary and Proposal for Action, 30 August 1991, A/CONF.151/WG.I/
L.28/REV. 1 at para. 5:
The obvious links with the negotiating process for a convention on biological diversity
were underlined, with special emphasis on the care needed to avoid duplication or pre-
empting the outcome of the negotiations. The Chairman of the Intergovernmental Ne-
gotiating Committee for a Convention on Biological Diversity drew attention to the
close links already established between the secretariat of the INC for a Convention on
Biological Diversity and the UNCED secretariat and indicated his view that the pro-
posals in AICONF. 151/PC/42/Add.4 supported and were complementary to the nego-
tiating process.
980
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local knowledge'” The Secretary General raises for discussion time and again differ-
ent possible rights and privileges or practices that could possibly attend the recogni-
tion of the value of indigenous and local knowledge. For example, the Secretary Gen-
eral suggests encouraging indigenous participation in national agricultural and con-
servationist research, collecting and recovering information on indigenous conserva-
tionist practices, and scientific training for indigenous peoples.”7 He also suggests, in
the alternative, that recognition of indigenous knowledge and innovations might imply
that indigenous people have an attendant “right to utilization and protection of their
habitats on a sustainable basis,”” that “international and national legal instruments …
will protect indigenous intellectual property rights as well as customary and tradi-
tional legal and administrative systems,”‘ ” and that “indigenous peoples should be re-
warded in some ways for innovation'”‘” Similarly, certain governments made submis-
sions to the Conference wherein they expressed their preference for the “protection” of
indigenous knowledge’ and for intellectual property rights for indigenous knowledge.”‘
This tension regarding the implementational obligations and possibilities pursuant
to the Convention on Biological Diversity with respect to indigenous and local knowl-
edge has not been resolved in the seven years since the Rio Conference.'” Discus-
sions, submissions, interventions, and secretariat papers across the entire ambit of
Convention on Biological Diversity Committees, Working Groups, and Conferences
of the Parties are all marked by an inability to define the limit of rights and entitle-
ments that should flow to indigenous and local communities as a result of the recog-
nition of the value of indigenous and local knowledge.
Two decisions adopted by the third Conference of the Parties to the Convention
on Biological Diversity illustrate the state of indecision about how to implement arti-
cle 8(j) and related provisions, and their relationship to sui generis protection of in-
“” It is interesting to note that Canada was the first country to raise the issue of recognizing indige-
nous and local knowledge in the context of the Intergovernmental Preparatory Conferences to
UNCED, wherein the Rio Declaration, Agenda 21, and the Statement on Forest Principles were being
negotiated: see “Statement by John Bell, Head of Delegation: Canadian Statement on Environment
and Indigenous People” (2nd UNCED Preparatory Conference, Plenary, Geneva, 3 April 1991) [un-
published] [archived with the author]; and “Indigenous People” (2nd Preparatory Conference, Brief-
ing Notes of the Canadian Delegation to the INC-CBD) [unpublished] [archived with the author].
’10 UNEP, Report of the Secretary General of the Conference: Promoting Sustainable Agriculture
and Rural Development, 18 December 1991, A/CONF.1 15/PC/I 00/Add.19 at paras. 27,56,60.
‘Preparations 1, supra note 101 at para. 93(h); and Preparations 2, supra note 101 at para. 59.
UNEP Preparatory Committee, Report of the Secretary General of the Conference: Strengthen-
ing the Role of Major Groups, 17 December 1991, A/CONF. 151/PC/! O/Add.13 at para. 40.
“0 UNEP Preparatory Committee, Progress Report of the Secretary General of the Conference:
Conservation of Biological Diversity, 5 February 1991, AICONF 15 I/PC/28 at para. 11.
. Letter from the representatives of Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Surinam,
and Venezuela to the Secretary General of the United Nations (19 February 1992) (UNEP Preparatory
Committee, 24 February 1992, A/CON. 15 I/PCII23 at para. 8).
1’ Statement of the delegate from Vanuatu [unpublished] [archived with the author].
“‘5 June 1992, UN Doc. UNED/Bio.Div/N7-INC.5/4 (1992).
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M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
digenous and local knowledge. In Decision 111/14, “Implementation of Article 80)”,
the Conference of the Parties invites member states to submit case studies regarding
the relationship of intellectual property to the protection of biological diversity, and to
the protection of indigenous knowledge and innovations; “[r]equests those parties that
have not done so to develop national legislation and corresponding strategies for the
implementation of Article 8(j) in consultation particularly with representatives of their
indigenous and local communities;” and “[i]nvites governments … to submit case
studies including … interaction between traditional and other forms of knowledge re-
lating to … biological diversity [and] the influence of current laws and policies on
knowledge, innovations and practices of indigenous and local communities.””‘ The
Conference of the Parties further requests the Executive Secretary to produce a back-
ground paper considering the linkages between article 8(j), access to genetic re-
sources, ownership of intellectual property rights, and alternative systems of protec-
tion of knowledge, innovations, and incentives.”‘
Similarly, in Decision 111/17, “Intellectual Property Rights”, the Conference of the
Parties requests member countries to submit case studies regarding, among other
things, the relationship of existing intellectual property law and the knowledge, prac-
tices, and innovations of indigenous and local communities. Neither of these decisions
represent an advance out of the then four-year-old uncertainty about how to imple-
ment article 80).”‘
Two years later, in 1998, the parties had made little progress. A background
document prepared by the Convention on Biological Diversity Secretariat in prepara-
tion for the Fourth Conference of the Parties reflects a an ongoing indecision on the
part of the members. The Secretariat states that
because the conservation for biological diversity affects so many different sec-
tors, it is necessary to take into account the requirements of [article] 80) within
a wide range of relevant laws and policies (those effecting natural resource
sectors, land tenure, protected area, cultural heritage protection and language
maintenance, intellectual property, appellations of origin, appropriate labeling
and other such measures, and planning and development, for example) at the
national and sub-national levels.”‘
The Secretariat proceeds to list “measures which respect, preserve and maintain
traditional knowledge, innovations and practices””‘ The list includes compiling in-
1
4 UNEP, The Biodiversity Agenda: Decisions from the Third Meeting of the Conference of the Par-
ties of the Convention on Biological Diversity, 2d ed. (New York: UNEP, 1997) at 47-49 [hereinafter
The Biodiversity Agenda].
” This is also the decision wherein the Conference of the Parties requests that the Executive Secre-
tary host a five day intercessional workshop to consider the implementation of article 80) and related
articles. This Workshop was held at Madrid in November 1998.
6 The Biodiversity Agenda, supra note 114 at 55-58.
1
,’ Note by the Executive Secretary: Implementation of Article 8(j) and Related Provisions, 2 Febru-
ary 1998, UNEPICBDICOP4110 at para. 8.
118 Ibid.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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ventories of traditionally used species, extensive indigenous and local community
consultations, promotion by indigenous and local communities of their world view,
legislation to protect cultural heritage, involvement of indigenous participation in en-
dangered species management, facilitating indigenous and local communities’ access
to public lands for ceremonial and subsistence purposes, and establishment of lan-
guage centers and support for educational manuals. There is no mention of intellec-
tual property. Shortly thereafter, however, the Secretariat dedicates a chapter entitled
“Intellectual Property Rights”, which describes the efforts of some countries to protect
the intellectual property right of traditional knowledge holders. Similar ambivalence
pervades other Secretariat documents leading up to the Second, Third, and Fourth
Conference of the Parties.”‘
Finally, in Decision IV/9, “Implementation of Article 8(j) and Related Provi-
sions:’ which was adopted at the Fourth Conference of the Parties in Bratislava,
slightly more explicit language was adopted regarding the relationship of intellectual
property-style protection and indigenous and local knowledge.”‘ First, the Conference
of the Parties recognized “that traditional knowledge should be given the same respect
as any other form of knowledge in the implementation of the Convention.” 2’ Second,
the Conference recognized “the importance of making intellectual property-related
provisions of Article 8(j) and related provisions of the Convention on Biological Di-
versity and provisions of international agreements relating to intellectual property
mutually supportive.””‘2 The fact that the Conference now unanimously adopts a deci-
sion that refers to “intellectual property-related provisions of Article 8(j)” suggests
that there has been a gradual evolution in the Conference’s collective mind or culture,
and that the national implementation of article 8(j) regarding indigenous and local
knowledge and innovations involves some form of intellectual property-style protec-
tion. The notion that indigenous knowledge should be treated on an equal footing
with other forms of knowledge further supports the idea that the Conference is gradu-
ally adopting the notion that similar forms of protection-in this case intellectual
property-style protection-should be available for the protection of both forms of
knowledge.
It is important however, not to attribute undue significance to these statements.
The fact is that the Conference of the Parties had the opportunity to explicitly endorse
any form of implementation of article 8(j) (or the Convention on Biological Diversity
in general). Neither of the above two statements explicitly state that indigenous
19 See Knowledge, Innovations and Practices, supra note 75; and Note by the Executive Secretary:
Workshop on Traditional Knowledge and Biological Diversity, 18 October 1997, UNEP/CBD/
TKBD/I/2.
‘0 “Implementation of Article 80) and related provisions: Decision IV/9 of the Fourth Conference
of the Parties to the Convention on Biological Diversity” in Report of the Fourth Meeting of the Con-
1998,
ference of the Parties to
UNEP/CBDICOP4/27.
the Convention on Biological Diversity, 15
June
. Ibid. at I l1.
“‘ Ibid. [emphasis added].
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
knowledge should be protected by intellectual property-style provisions on a national
level by way of implementing article 8(j). The potential significance of these state-
ments is also somewhat undermined by the wording of Decision IV15, “The Rela-
tionship of the Convention with the Commission on Sustainable Development and
Biodiversity-Related Conventions, Other International Agreements, Institutions and
Processes of Relevance.” In that decision, the Conference reverts to much more am-
biguous language, emphasizing
that further work is required to help develop a common appreciation of the re-
lationship between intellectual property rights and the relevant provisions of the
Agreement on Trade-related Intellectual Property Rights and the [Convention
on Biological Diversity] in particular on issues relating to … the fair and equita-
ble sharing of benefits arising out of the use of genetic resources, including the
protection of knowledge, innovations and practices of indigenous and local
communities embodying traditional lifestyles relevant for the conservation and
sustainable use of biological diversity.’
In this decision, we see a reversion to the Conference’s previous agnosticism regarding
the need to provide intellectual property protection for the informal innovations of local
and indigenous peoples in order to implement the Convention on Biological Diversity.
Of course, it has to be borne in mind that no country will be bound by subsequent
unanimous interpretations or decisions by the Conference of the Parties regarding
domestic implementation. Such decisions act as recommendations only. Although
country members may be subjected to domestic and international pressures to imple-
ment such recommendations, they would not be under any formal legal compulsion to
do so.
Finally, the Bratislava Convention of the Parties did decide to create an Open-
Ended, Ad Hoc, Intercessional Working Group with a mandate to
provide advice as a priority on the application and development of legal and
other forms of protection for the knowledge, innovations and practices of in-
digenous and local communities embodying traditional lifestyles relevant to the
conservation and sustainable use of biological diversity.’24
This body will meet for the first time in December 1999. The fifth meeting of the
Conference of the Parties to the Convention on Biological Diversity will be held in
May 2000. Until that time, related events concerning informal innovations and knowl-
edge of indigenous and local peoples will be concentrated in this newly established
forum.
‘2- Ibid. at 129.
’24Ibid.
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2. Agenda 21: Earth’s Action Plan
Upon comparing the Convention on Biological Diversity with Agenda 21: Earth’s
Action Plan,”‘ one senses immediately that the parties were much more at ease when
drafting the latter, knowing they were not negotiating a legally binding agreement.
Chapter 26 of Agenda 21, entitled “Recognizing and Strengthening the Role of In-
digenous People and Their Communities’
includes much more explicit language re-
garding possible governmental activities regarding indigenous knowledge than one
finds in the Convention on Biological Diversity. Furthermore, Chapter 21 states:
“Governments could … adopt legal instruments that will protect indigenous intellec-
tual and cultural property.”‘ Similarly, with respect to policy participation, paragraph
26.3.b prescribes that governments should “strengthen the active participation of in-
digenous people and their communities in national formulation policies, laws and
programs relating to resource management.”
One obvious temptation in light of the stronger language of Agenda 21 is to in-
voke it as a means of interpreting vague sections of the Convention on Biological Di-
versity. The utility of such an action is lessened, however, by the fact that Agenda 21
is not a legally binding agreement, and its authority as an interpretive instrument is
therefore much weaker than it would be otherwise. On the other hand, at least for the
purposes of mounting political pressure, governments that are agnostic about their
commitments pursuant to the Convention on Biological Diversity might be reminded
of the “big picture” they endorsed in Agenda 21. ‘7
F Traditional and Local Knowledge and Innovations and the
Convention to Combat Desertification
In the context of the transfer and development of technologies that “are relevant to
combating desertification and/or mitigating the effects of drought,’ the Convention to
Combat Desertification states that parties shall
protect, promote and use … relevant traditional and local technology, knowl-
edge, know-how and practices, and … ensure that such technology, knowledge,
know-how and practices are adequately protected and that local populations
N. Robinson, ed., Agenda 21: Earth’s Action Plan (New York: Oceana, 1993) [hereinafter
Agenda 21].
226 Ibid. at 509.
2 See e.g. “Statement from the Conference of the Parties to the Convention on Biological Diversity
to the Special Session of the United Nations General Assembly;’ Annex to Decision 111/19: Special
Session of the General Assembly to Review Implementation of Agenda 21 in The Biodiversity
Agenda, supra note 114 at 61-62, wherein it is stated:
The Conference of the Parties emphasizes the significance of the Convention, and ac-
tivities carried out in implementation of the Convention, to the achievement of goals set
out in many of the chapters of Agenda 21. … The Convention provides a set of legally
binding commitments and is an important tool for translating the principles of the Rio
Declaration on Environment and Development and Agenda 21 into concrete actions.
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M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
benefit directly, and on an equitable basis and as mutually agreed, from any
commercial utilization of them and from any technological development de-
rived therefrom.’28
The language of the Convention to Combat Desertification clearly borrows from, and
builds upon, the language of the Convention on Biological Diversity. The former is
somewhat stronger than the latter with the inclusion of words and phrases like “en-
sure” and “benefit directly” (instead of “encourage” and “equitable sharing”) and
“protect” (in addition to “respect, preserve and maintain”). Ultimately, however, the
document fails to also require states to establish sui generis local and traditional
knowledge protection laws and, like the Convention on Biological Diversity, subjects
its prescriptive force to national legislation.
One rarely sees references to the Convention to Combat Desertification in the on-
going debate concerning sui generis protection for indigenous and local knowledge.
One reason is that the types of knowledge that this Convention encounters-i.e.,
trends in soil erosion, grazing, soil growth capacity, agricultural practices, local water
table levels, etc.-is less amenable to treatment by way of intellectual property-style
protection than is the knowledge which is the subject of the Convention on Biological
Diversity, which would include medicinal uses of plants and improved crop varieties.
Another reason is that, compared to the Convention on Biological Diversity for exam-
ple-which conceivably has application to all indigenous local peoples around the
world-the Convention to Combat Desertification applies only to indigenous peoples
in areas affected by drought and threatened by desertification. Finally, there are a lot
fewer signatories to.the latter than to the former.
G. Indigenous and Local Knowledge and Innovations in the New
WIPO Mandate
In March 1998, the WIPO General Assembly, which is comprised of representa-
tives from all member countries, approved an expanded mandate for the Global Intel-
lectual Property Issues Division (“GIPID”).'” GIPID was given the mandate to ad-
dress four separate issues over a two-year period: (i) intellectual property rights for
new beneficiaries; (ii) biological diversity and biotechnology; (iii) protection of ex-
pressions of folklore; and (iv) intellectual property rights beyond territoriality. The is-
sue of intellectual property rights for new beneficiaries is the most relevant to the
treatment of informal innovations of indigenous and local peoples (although there is
significant overlap with the biological diversity and folklore issues).
‘ Supra note 7.
‘2 WIPO, Main Program 11: Global Intellectual Property Issues, A/32/2/WO/BC/18/2 at 105
[hereinafter Global Intellectual Property Issues]. This document is part of the larger WIPO Program
and Budget for the 1998-1999 Biennium, 9 February 1998, presented by the Director General at the.
Assembly of Member States of WIPO, 32d Series of Meetings, Geneva, 25-27 March 1998.
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Interestingly, under the rubric of “new beneficiaries”, one of the earliest drafts of
the new mandate included recognition that intellectual property should not be seen
strictly as a utilitarian construct for commercial purposes, but also as a component of
human rights regimes. A number of Western countries resisted this expansion of in-
tellectual property’s underlying rationale, however, and insisted that the paragraph
should include weaker language vis-ai-vis human rights. The final version of the
document simply states, by way of introduction, that the Universal Declaration of
Hunan Rights'” identifies certain intellectual property rights as human rights.'” De-
spite this evidence of Western recalcitrance to embrace potentially more profound
theoretical conceptualizations of the function, role, and rationale for intellectual prop-
erty, the new mandate appears to represent a significant opening to consider progres-
sive options. For example, one of the stated objectives of the “new beneficiaries” sub-
programme is to “explore the intellectual property needs and expectations of … the
holders of indigenous knowledge and innovations, in order to promote the contribution
of the intellectual property system to their social, cultural and economic development” ‘2
GIPID’s mandate is limited. American support for the new mandate was secured
in return for the concession that GIPID was not “on a norm-setting track”; that is to
say, that its work is not intended to feed into a process which would end with the
creation of a treaty or recommendations.'” Nonetheless, WIPO enjoys potential influ-
ence through its relationship to other conventions and their administrations. For ex-
ample, the WTO and WIPO have signed a Memorandum of Understanding whereby
WIPO will provide technical support to the TRIPs Council.'” Similarly, the Confer-
ence of the Parties has called upon cooperation between WIPO and the Convention on
Biological Diversity Secretariat regarding, among other things, indigenous and local
knowledge protection.” Certainly, a number of countries requested similar coopera-
tion between WIPO and the Commission on Genetic Resources for Food and Agri-
culture in the last Commission meetings in June 1998. One would hope that there
would be a high degree of overlap between the WIPO-GIPID “new beneficiaries” ac-
tivities and the newly established Open-Ended, Ad Hoc, Intercessional Working
Group on Article 8(j) over the next two years.”
The GIPID’s sub-programme on “protection of expressions of folklore” responds
to renewed calls by WIPO member states for work to be undertaken by WIPO with
respect to the protection of folklore.'” Again, the immediate mandate does not set
“0 GA Res. 217(111), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A1810 (1948) 71.
“‘ Interview with Richard Owens, Director, Global Intellectual Property Issues, WIPO (4, 6, 8 May
1998).
1 Global htellectual Property Issues, supra note 129 at 105.
“Owens, supra note 131.
“3 Currently there are only four full-time professional staff in the TRIPs Council; WIPO has twenty.
“‘zThe Biodiversity Agenda, supra note 114 at 114.
136 WIPO held its first Roundtable on Intellectual Property and Indigenous Peoples on July 23-24,
1998.
‘.. Global htellectual Property Issues, supra note 129.
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
GIPID’s efforts on a “norm-setting track”. The sub-programme’s official objectives
therefore are relatively modest ones, limited to conducting studies concerning the re-
lationship of intellectual property to folklore.
GIPID’s mandate with respect to folklore and traditional knowledge has been re-
newed for another two years. ‘ While the orientation of the program remains officially
unchanged, the Unit’s Director maintains that with respect to traditional knowledge,
GIPID is shifting from exploratory, fact-finding work to technical examination of the
existing intellectual property system, testing practical solutions and addressing con-
ceptual issues.'”‘ It is important to note that WIPO is not limiting the scope of its en-
quiries to traditional knowledge regarding biological resources and the environment.
To the extent that WIPO is successful over the next two years in making a case for the
need for new international standards regarding knowledge protection, one can see
how traditional knowledge protection norms could eventually expand to cover a wider
array of indigenous and local knowledge. It is equally important to note, however, that
the mechanisms for protection that WIPO considers must be based on intellectual
property. Imaginative sui generis intellectual property laws might prove to deliver de-
sirable benefits and controls to indigenous and local communities. But as the
WIPO/GIPID initiative gains momentum over the next few years, it is important to
remember that there may be other ways to protect indigenous and local knowledge
that have nothing to do with intellectual property.
H. Indigenous Intellectual Property Rights in the Draft Declaration
Article 29 of the Draft Declaration'” states that indigenous peoples are “entitled
to the full recognition of the ownership, control and protection for their cultural and
intellectual property.” In addition, they
have the right to special measures to control, develop and protect their sciences,
technologies and cultural manifestations, including human and other genetic
resources, seeds, medicines, knowledge of the properties of fauna and flora,
oral traditions, literatures, designs and visual and performing arts.’4’
If the Draft Declaration were to come into force in its present form, it would be the
strongest statement to date regarding the obligation to provide legal protection for in-
digenous knowledge and innovations. It is expected, however, that various provisions
of the draft will have to be altered to gain the approval of the United Nations Com-
mission on Human Rights, the United Nations Economic and Social Council, and fi-
’31WIPO, Draft Program and Budget 2000-2001, A/34/2/WO/PBC/I/2 at 96.
Interview with Richard Owens, Director, Global Intellectual Property Issues, WIPO (3 Novem-
ber 1999).
’40 Supra note 13.
‘1’ Ibid., art. 29.
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nally, the General Assembly.”‘- The Draft Declaration also has the strongest language
of all the instruments considered in this article regarding participatory rights and
rights of self-governance.”‘ It is impossible to predict at this time what form the intel-
lectual property provisions will eventually take, if they are included at all in the final
document.
I. Traditional Knowledge at the WTO
Very recently, a number of developing countries have proposed to the WTO Gen-
eral Council that protections for traditional knowledge should be included in the mil-
lenium round of trade negotiations under the aegis of the WTO.'” Kenya, in particular,
has proposed that a footnote should be added to article 27(3)(b) of TRIPs-a provi-
sion which requires that all WTO members, at the very least, provide “effective sui
generis” intellectual property protection for plant varieties-stating that national plant
variety protection laws could include provisions for the protection of traditional
knowledge.”‘
It is unlikely that traditional knowledge protection will be included in the next
round of trade negotiations. It is more likely that the council will opt to sponsor a
study of the subject.”6 It is still far too early to predict how such a study would feed
into the further elaboration of the international norm regarding indigenous and local
knowledge.
J. Conclusion Regarding
Agreements
the Current State of International
In the series of international legal instruments analyzed above, there is a very
definite trend toward the protection of indigenous and local knowledge through the
implementation of national intellectual property-style laws. The first stage in this
trend was the recognition that indigenous and local knowledge are valuable both in-
side and outside indigenous and local communities. That much was accomplished in
ILO 169, the Convention on Biological Diversity, and the International Undertaking.
“‘ International Indian Treaty Council, Indigenous Peoples’Draft Declaration Update, October 14,
Indian Treaty Council
International
” Draft Declaration, supra note 13, art. 3 states: “Indigenous and local peoples have the right to
self-determination. By virtue of that right they freely determine their political status and freely pursue
their economic, social and cultural development” Arts. 19-23 include strong assertions of the rights of
indigenous peoples to participate in policy development and decision-making.
‘” “Proposal on Protection of Intellectual Property Rights Relating to the Traditional Knowledge of
Local and Indigenous Communities, Communication” from Bolivia, Colombia, Ecuador, Nicaragua,
and Peru, WT/GC/W/362 (12 October 1999).
“‘ “The TRIPs Agreement” (6 August 1999) Communication from Kenya on Behalf of the African
Group, WT/GC/W/302.
“6 Carvalho, supra note 43.
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M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
The second necessary stage is that some rights of control over that knowledge
should flow from the recognition of its value. The Convention on Biological Diversity
makes significant advances in the direction of vesting rights directly in communities,
but ultimately, it does not fully achieve this goal. The requirements that (i) indigenous
knowledge and innovations should only be promoted with the approval and involve-
ment of the holders of such knowledge, innovations, and practices, and that (ii) parties
should encourage the sharing of benefits that arise through the use of such knowledge,
practices, and innovations suggest that rights of control and compensation should vest
in communities. On the other hand, article 15 of the Convention on Biological Diver-
sity ultimately vests control over genetic resources in states, and does not mention
communities or individuals in this context.’ 7 Furthermore, despite including strong
language regarding the protection of traditional and local knowledge, the Convention
to Combat Desertification does not oblige states to create laws whereby rights of
control over local and indigenous knowledge would vest directly in the traditional and
local communities.
The current version of the Draft Declaration does vest ownership and control
over indigenous intellectual property in indigenous communities. Unfortunately, it is
not clear whether this provision will remain in the agreement by the time it is adopted,
if in fact it is ever adopted.
At this point, it is important to make a statement about the relationship between
the analysis of the treatment of indigenous and local knowledge in this article, and the
property-related guarantees set out in the Universal Declaration of Human Rights,”‘
the International Covenant on Civil and Political Rights,”‘ and the International
Covenant on Economic, Social and Cultural Rights,” referred to collectively as the
“International Bill of Rights.” As Rosemary Coombe points out, the case can be made
that intellectual property rights, including indigenous and local communities’ property
interests in their own knowledge, are already recognized as international human rights
both in these documents, and in international customary law.'”‘ Consequently, it might
have made sense to start an analysis of the chronology of the evolution of an interna-
tional norm regarding the treatment of indigenous and local knowledge with the Uni-
versal Declaration of Human Rights instead of with ILO 107, as was done in this arti-
cle. However, indigenous and local knowledge is not explicitly mentioned in any
these documents, and there has been a marked absence of discussion, until very re-
’41 It is also important to note in this context that the prescriptive force of article 80) was potentially
weakened by the addition of the phrase “as far as possible and as appropriate” This phrase was added
into article 8(j) after other substantive revisions were introduced. Countries anxious to minimize the
obligations in this way included Brazil and Malaysia (Campeau, supra note 21).
‘ Supra note 130.
41 Supra note 12.
“o Supra note 11.
,’ R. Coombe, “Intellectual Property, Human Rights & Sovereignty: New Dilemmas in Interna-
tional Law Posed by the Recognition of Indigenous Knowledge and the Conversation of Biodiversity”
(1998) 6 Ind. J. Global Legal Stud. 59 at 59.
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cently, of indigenous and local knowledge in the context of the rights set out in
them.'” The notion that indigenous and local community intellectual property rights
are inscribed in the International Bill of Rights is definitely gaining currency.'” It ap-
pears however, that this position would not be enjoying growing support without the
last thirty years’ evolution of the treatment of indigenous and local knowledge that is
explored in this article.
The international agreements that have contributed thus far to the evolution of in-
tellectual property-style protections for indigenous and local knowledge do not “finish
the job”. Therefore, for the immediate future (pending the progress of the Draft Dec-
laration), the focus regarding the creation of intellectual property protections for in-
digenous and local knowledge will have to shift to the level of domestic policy-
making. Efforts on national fronts will be complemented by the work of GIPID’s sub-
programmes in intellectual property rights for “new beneficiaries” and the “protection
of expressions of folklore,” and the Convention on Biological Diversity’s newly
formed Open-Ended, Ad-Hoc, Intercessional Working Group on the Implementation
of Article 8(j) and Related Articles. Both of these bodies have explicit mandates to in-
vestigate issues surrounding intellectual property-related protection of indigenous and
local knowledge, including national implementation of such protections. Both proc-
esses are member-state driven; there should therefore be a high degree of cooperation
between states who are engaged in national processes of creating sui generis protec-
tion and these technical bodies.
IV. Synthesis of Positions Taken by and on Behalf of Indigenous
and Local Peoples
As stated above, indigenous and local peoples want to forge a connection between
the protection of indigenous and local knowledge, and territorial rights and the right
to self-determination. This position is reiterated in various international indigenous
and local peoples’ declarations, and statements in international multilateral fora. For
example, the first three “concerns” regarding states’ strategies for the implementation
of article 80) cited in the “Final Document of the Second International Indigenous
Coombe points out that countries have failed to include consideration of difficulties associated
with providing intellectual property protection for indigenous and local communities in their country
reports pursuant to the hIteniational Covenant on Economic, Social and Cultural Rights (ibid. at 71).
See also Posey, supra note 53; D. Posey & G. Dutfield, Beyond Intellectual Property: Toward Tradi-
tional Resource Rights for hIdigenous Pe6ples and Local Communities (Ottawa: IDRC, 1996); P
Drahos, “The Universality of Intellectual Property Rights: Origins and Developments” in Intellectual
Property Rights: a Panel Discussion to commemorate the 50th Anniversary of the Universal Declara-
tion of Human Rights (Geneva: WIPO, 1998) (WIPO Doc. Publication No. 762(E)) [hereinafter 50th
Anniversary].
‘” See e.g. the proceedings of a panel discussion regarding international human rights and intellec-
tual property-including intellectual property protections for traditional knowledge–organized by
WIPO and the United National High Commissioner for Human Rights on November 9, 1998: 50th
Anniversary, ibid.
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
Forum on Biodiversity”-submitted in 1997 to the Convention on Biological Diver-
sity Workshop on Traditional Knowledge and Biological Diversity-were: (i) “the
lack of recognition of Indigenous Peoples … as parties to the Convention” (i.e., self-
determination); (ii) “the lack of recognition of the relationship that exists between the
lands and territories of Indigenous Peoples and their knowledge and biological diver-
sity” (i.e., territorial rights); and (iii) “the lack of control over indigenous land and ter-
ritories and their natural resources and the environment” (i.e., self-determination and
territorial rights).’4
Similarly, the Coordinadora de las Organizaciones Indigenes de la Cuenca Ama-
zonica/United Nations Development Programme (“COICAIUNDP”) Regional Meet-
ing on Intellectual Property Rights and Biodiversity states that “all aspects of the issue
of intellectual property … are aspects of self determination…. For indigenous peoples,
accordingly, the ultimate decision on the issue is dependent on self-determination””‘
Regarding territorial rights, the declaration states: “Integral indigenous territoriality,
its recognition (or restoration) and its reconstitution are prerequisites for enabling the
creative and inventive genius of each indigenous people to flourish and for it to be
meaningful to speak of protecting such peoples”” Similar sentiments are expressed
in other indigenous peoples’ statements.”‘ Local community and farmers’ statements
also stress territorial rights’8 and the right to self-determination,”‘ though they are
perhaps less likely than indigenous peoples to demand the latter.
Many indigenous and local peoples are skeptical about the ultimate usefulness of
having intellectual property protections which are not somehow integrated into their
struggle for land and self-government rights. The incentive system that is embedded
in intellectual property law threatens to undermine, and replace, customary practices
and values. Many are simply not willing to entertain embracing a legal regime that has
such culturally corrosive potential in return for the possibility of financial remunera-
tion. Many people, both inside and outside indigenous and local communities, are
skeptical about the potential market value of indigenous and local knowledge in the
first place. For example, Geoffrey Hawtin, Director General of the International Plant
Genetic Resources Institute (“IPGRI”), holds that many of the claims regarding the
potential market value for traditional farmers’ plant varieties may be grossly exagger-
ated. While farmers’ varieties always have been, and always will be, crucial compo-
‘ Report of the Workshop, supra note 17 at 25.
COICA & UNDP, “COICA/UNDP Regional Meeting on Intellectual Property Rights and Biodi-
versity” in Posey & Dutfield, supra note 17,205 at 205.
156 IbidL
,’ The fact that indigenous groups have forged a connection between knowledge protection and ter-
ritorial rights, on the one hand, and self-determination, on the other, is not entirely unpredictable. A
1996 study carried out by the Working Group on Traditional Resource Rights found that out of sixty-
three Indigenous peoples’ statements, the two most frequent demands were for (i) self-determination,
and (ii) territorial rights: see Posey, supra note 53 at 16.
’58Posey, ibid. at 209.
1 Ibid at 207.
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nents of global food security, they are not in high demand for use in the lucrative
breeding efforts of commercial plant breeders.”
Similar skepticism exists with respect to the ability of indigenous communities to
command a respectable price for their knowledge of the medical uses of plants. Al-
though there are a number of celebrated international deals wherein indigenous peo-
ple have contributed their knowledge regarding the identity and use of medical plants,
details concerning rates of remuneration are not publicly available. Some non-
governmental organizations allege that these deals offer so little to the indigenous
communities involved that they really amount to nothing more than a way of im-
proving the appearance of continued exploitation.’ Given the uncertainty of these
deals-and the widely held conviction that it will be impossible for indigenous and
local communities to capture significant benefits from such deals in the absense of
national laws governing access-many indigenous peoples’ declarations call for a
moratorium on bioprospecting-i.e., foreign researchers and commercial institutions
seeking access to local biological diversity and/or related indigenous knowledge-
until suitable forms of protection are created.’
Quite apart from the question of the market value for indigenous knowledge,
many indigenous people do not believe that intellectual property law is a necessary or
desirable means of encouraging innovation within their communities (which is the
standard utilitarian justification for intellectual property laws). The possibility of fu-
ture commercialization is not necessarily amenable to the kinds of innovations that
indigenous and local peoples, as communities, are interested in encouraging. Again,
embracing an intellectual property legal regime as a system of incentives for innova-
tion involves embracing connection to the very “outside” forces which many indige-
nous and local peoples feel threaten their cultural survival.’63 In short, they do not need
the possibility of commercializing their knowledge as an incentive to innovate; they
need land. They know the kinds of innovative activities they want to engage in, but
they need land upon which to do it.
It must be noted, however, that the control which intellectual property law pro-
vides intellectual property owners can be used for purposes other than commerciali-
zation. A common criticism of copyright law, for example, is that it has often been
used as a vehicle for censorship.’ 4 Intellectual property law can also be used defen-
“60 G. Hawtin, IPGRI Lunch Time Seminar (4th Conference of the Parties to the Convention on
Biological Diversity, 14 May 1998) [unpublished].
161 Rural Advancement Foundation International (“RAFI’), “Biopiracy Update: The Inequitable
Sharing of Benefits” RAFI Communique (September-October 1997) 1.
62 Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples in Po-
sey & Dutfield, supra note 17, 207 at s. 2.8 [hereinafter Mataatua Declaration]; and Report of the
Workshop, supra note 17.
163 Interview with Alejandro Argumedo, Executive Director, Indigenous Peoples’ Biodiversity Net-
work (I I June 1998).
‘ M. Halewood, “Re/conceving Author(ity): A Plain Language Investigation of Structuralist and
Post-Structuralist Insights into Patent and Copyright Law” (March 1997) [unpublished].
1999]
M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
sively, as a means of protecting others from gaining control of innovations for their
own profit. The Consultative Group on International Agricultural Research centres
(“CGIAR”) have recently endorsed a system-wide scheme whereby individual centres
may engage in defensive patenting of their own innovations simply to prevent profit-
driven companies from appropriating their work and commercializing it. Simultane-
ously, the centres adopted the policy that they will not seek to commercialize these
intellectual property-protected innovations.’5
As an alternative to mainstream intellectual property-style protections, many in-
digenous and local peoples’ statements call for a reinvigoration (and legitimization) of
their own customary systems of knowledge exchange and distribution.'” Some of
these systems may in fact involve systems of control that resemble aspects of intel-
lectual property law,” and it is possible, therefore, that certain elements of current in-
tellectual property law could be modified to fit within indigenous systems. Some
declarations clearly state, however, that they want to create a system that is their own,
and not a modification of “mainstream” intellectual property law.”
Not all indigenous and local peoples are unanimously opposed to the use of in-
tellectual property-style entitlements as a means to commercialize their knowledge.
There are currently numerous instances of contractual agreements between foreign re-
searchers and commercial institutions, as well as between national governments and
indigenous peoples, which involve indigenous and/or local people supplying knowl-
edge regarding the selection and use of plants. These communities appear to welcome
the opportunity to be paid for their contribution. Presumably, these communities are
not in favour of a moratorium on bioprospecting. On the other hand, their willingness
to participate in bioprospecting deals for relatively short-term gains should not be in-
terpreted as a rejection of the broader goals of self-determination and territorial rights.
Conclusion: Prescriptions for Action and Analysis
As stated in the conclusion to Part III, above, international law has evolved in the
direction of, but not arrived at, the creation of obligations for states to implement sui
generis intellectual property protection for indigenous and local knowledge. Any fur-
ther developments with respect to sui generis indigenous and local knowledge protec-
tion (pending implementation of the Draft Declaration) will therefore have to take
place at the domestic, governmental level. Efforts on the domestic front should be in-
‘6
‘”Annex No. 6: Guiding Principles for the Consultative Group on International Agricultural Re-
search Centers on Intellectual Property and Genetic Resources” in CGIAR, Centers Position Statement
on Genetic Resources, Biotechnology and Intellectual Property Rights (19 May 1998) [unpublished].
‘6 See Draft Declaration, supra note 13, arts. 21, 26, 31; and Mataatua Declaration, supra note
167 D. Cleveland & S. Murray, “The World’s Crop Genetic Resources and the Rights of Indigenous
Farmers” Current Anthropology 38:4 (August 1997) 482.
162, arts. 2.1, 2.6.
1’8 Ibid.
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tertwined as much as possible with the efforts of the GIPID Unit and the Open-Ended,
Ad-Hoc, Intercessional Working Group on Article 8(j).
All parties engaged in these efforts, however, must be careful not to ignore the
deeply-rooted interests of indigenous and local peoples in self-determination and ter-
ritorial rights. Too narrow a focus on intellectual property protection with commer-
cialization in mind, while well-intentioned, could ultimately disempower the commu-
nities. Such efforts were intended to assist by pulling them deeper into the assimila-
tionist stream. At the very least, a sui generis system which is designed primarily to
facilitate the commercialization of indigenous and local knowledge would be open to
the charge of squandering an opportunity for those communities to make progress
with respect to goals which are more significant to their long-term survival. One need
only re-read the text of ILO 107 to see how easy it is for the international community
to subvert the interests of indigenous and local people in the pursuit of their
“protection”.
It is not very helpful to simply issue a general recommendation that states making
new laws for indigenous knowledge protection should incorporate indigenous de-
mands for territorial and political autonomy. Ultimately, just how far states are willing
to go to accommodate such demands will depend on the history of their relations with
the indigenous and local peoples within their borders. The legal treatment of indige-
nous territorial rights and self-determination is changing rapidly is many countries.
For example, in 1997, the Supreme Court of Canada issued a decision regarding abo-
riginal non-treaty territorial rights that gave priority to aboriginal customary land use
in the arbitration of current land claims.’69 The Supreme Court of Australia made a
similar ruling seven years ago.”0 Efforts to create national sui generis legislation that
gives some expression to indigenous communities’ territorial and self-determination
concerns will clearly have to work within the context of such rulings, and in the con-
text of ongoing struggles by indigenous and local peoples for the realization of their
rights in other national and sub-national fora.
Despite the need to take national peculiarities into consideration in the formula-
tion of domestic sui generis laws for the protection of indigenous and local commu-
nity knowledge, it is possible to make a few generic recommendations about how to
proceed (in such a way as to mitigate as much as possible the underlying tension be-
tween the potential willingness of national governments to protect indigenous knowl-
edge and their recalcitrance to consider territorial and self-determination in this con-
text). The benefit of the following recommendations is that they rely heavily on in-
digenous and local community participation, and they do not require substantive con-
cessions (at least not initially) by national governments concerning indigenous and lo-
cal communities’ territorial and self-determination rights. Their weakness is that they
are procedural in nature, without explicit substantive content.
169 Delgamnuuktv v. British Columbia, [1997] 3 S.C.R 1010, 153 D.L.R. (4th) 193.
170 K. Puri, “Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Ac-
tion” (1995) 9 I.P.J. 293.
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M. HALEWOOD – INDIGENOUS & LOCAL KNOWLEDGE
First, national policy-makers should consult with the indigenous populations
within their borders to determine what those groups ultimately want to achieve by
way of protection for their knowledge. As the analysis in Part IV, above, made clear,
indigenous and local communities’ primary interest is not the commercialization of
their knowledge. Alternative (potentially complementary) goals include the power to
prohibit researchers who would use knowledge they gleaned from communities in
ways that the communities find disagreeable, embarrassing, or destructive to their
own customs; the legal (perhaps constitutional) right to be consulted in matters
wherein their knowledge is relevant, or where their interests as a community are en-
gaged; and the guarantee of governmental support for programmes designed to pro-
mote indigenous languages and culture. As the analysis in Part III on the potential
means of implementing article 80) demonstrated, there are many ways of promoting
and protecting indigenous knowledge. Before adopting national schemes of sud gene-
ris intellectual property protection for indigenous and local knowledge, communities
that will be affected should be consulted as to whether that is something they actually
want.
Second, if in fact it is determined that the primary goal of sui generis knowledge
protection is for the purpose of guarding that knowledge’s commercial value, then
market feasibility studies should be conducted. All parties should have as much infor-
mation as possible regarding the potential benefits to be derived from such commerciali-
zation. As noted above, there is considerable controversy as to the market value of in-
digenous and local knowledge. There is considerable evidence that expectations have
been unrealistically raised with respect to indigenous knowledge’s marketability.
Third, national governments should consult with indigenous and local popula-
tions regarding their own customary systems of knowledge sharing and control. Both
parties could then work together to create a system of protection that is based, as
much as possible, upon those communities’ systems. Such efforts may entail having
to negotiate a number of difficult issues such as (i) a number of distinct indigenous
customary legal systems within the State that would need to be taken into considera-
tion, (ii) possible conflicts between the new sui generis system and the existing intel-
lectual property systems, and (iii) possible conflicts between those aspects of the in-
digenous customary law that embrace territorial rights and existing land laws.
Fourth, all parties should keep the “loopholes” or potentially complementary as-
pects of existing intellectual property law in mind when negotiating their sui generis
protection systems. As the discussion in Part II, above, pointed out, not all of intel-
lectual property law is hostile to the possibility of the protection of knowledge that
does not conform to the standards of patent or plant breeders’ rights law. For example,
geographic indications respect and protect traditional knowledge and production
techniques. While article 27(3)(b) of TRIPs does require some form of sui generis law
to protect plant varieties, it does not require compliance with UPOV conventions.
Consequently, countries are free to create sui generis systems of plant variety protec-
tion which conform more closely to laws concerning geographical indicators than to
patent or plant breeders’ rights law. Similarly, the rule against protecting “essentially
derived” plant varieties can be used to protect traditional indigenous and local plant
varieties (presuming they are protected in some form of sui generis legislation)
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against being used without permission in the same way that the rule currently protects
industrial plant breeders varieties against the predatory possibilities of biotechnology.
Finally, all parties engaged in creating and/or advocating domestic sui generis
laws to protect indigenous and local knowledge should participate as much as possi-
ble in the work scheduled to be undertaken by GIPID and the Open-Ended, Ad-Hoc,
Intercessional Working Group on Article 8(j). The active participation of all
stakeholders at domestic, national, and international levels is crucial to ensuring that
the norm to protect indigenous and local knowledge continues to evolve in a useful,
positive direction.
