Introduction:
This chapter discusses issues associated with
the capacity of western law in understanding and protecting indigenous
knowledge related to the bioprospecting of indigenous medical knowledge in an
Australian context. More specifically the focus is upon indigenous spiritual
knowledge. It is suggested that central to this project is the right of
indigenous peoples in self-determination, self-identification and the right of
verifying the authenticity of representations about such knowledge.
The Julayinbul Statement on Indigenous
Intellectual Property Rights (1993), originating from an Australian
Indigenous conference in Jingarra states:
Indigenous Peoples and Nations share a
unique spiritual and cultural relationship with Mother Earth which recognises
the inter-dependence of the total environment and is governed by the natural
laws which determine our perceptions of intellectual property.
Inherent in these laws and integral to
that relationship is the right of Indigenous Peoples and Nations to continue to
live within and protect, care for, and control the use of that environment and
of their knowledge.
Within the context of this Statement
Indigenous Peoples and Nations reaffirm their right to define for themselves
their own intellectual property, acknowledging their own self-determination and
the uniqueness of their particular heritage.
Within the context of this Statement
Indigenous Peoples and Nations also declare that we are capable of managing our
intellectual property ourselves, but are willing to share it with all humanity
provided that our fundamental rights to define and control this property are
recognised by the international community.
These concerns require a genuine consultation
between cultures. This is not only reflected in the subject matter of this chapter,
but also in that the chapter is co-authored in a research relationship between
an indigenous author and an author of Western cultural background. The
indigenous author (Hunter) also created and presented a painting in the
conference co-presentation prior to the reading of this chapter. The
sophistication and multiple levels of knowledge represented in the painting
represent a comprehensive system of indigenous knowledge that would take a
number of years of education to appreciate. Although it will not be immediately
obvious to western viewers of the painting, it actually represents a more
comprehensive expression of knowledge than this chapter itself.
Such a context is also symbolic of discussions
in the chapter about the capacity of law in general and Intellectual Property
Rights (IP) specifically to understand and protect indigenous spiritual
knowledge.
It is valuable for persons from western contexts
of law to become concerned with the building of bridges between cultures that
is required in such a process. Enduring bridges appropriate to such a
relationship require the infusion of a number of spiritual virtues including
humility, integrity, patience, transparency, respect, and trustworthiness.
These spiritual principles must be applied in a framework honouring the sacred
obligations associated with becoming a custodian of particular forms of
knowledge.
On a material level, those concerned with
building economic bridges through which valuable transfers of knowledge can
occur should be ultimately concerned with ensuring such spiritual concerns of
indigenous people are considered and applied. The degree to which this is
authentically engaged will determine the degree to which indigenous communities
feel confident in sharing their valuable knowledge across that bridge.
Alternately, many indigenous peoples feel a sacred obligation to respect the
sources of that knowledge to the degree that they would prefer letting it ‘return to the earth and the spirit world’,
rather than be misused and denigrated. For indigenous people the apparent
physical loss of such knowledge does not mean it is gone forever. Such
knowledge will continue to exist in the invisible world, hidden from the eyes
of all, until people of respect and wisdom are found worthy enough to be given
its gift again.
The ultimate benefit of a genuine engagement
with indigenous peoples and their knowledge represents a great gift to
humanity. It is argued that this represents the greatest opportunity for the
creation of a legal and social culture that manifests a true ethic of
ecologically sustainable development, and is essential for the survival of the
human species.
History of Bioprospecting and the Genocide of
Indigenous Culture
“That [people] do not learn very much from the
lessons of history is the most important of all lessons that history has to
teach.”
-Aldus Huxley
In our attempts to formulate appropriate
intellectual property laws for the protection of indigenous knowledge it is
easy to be distracted by the apparent technological novelty of modern
biotechnology industries and “sudden” awareness of the enormous economic value
of bioprospecting in our modern context. Often one gets the impression in
current literature that bioprospecting is made possible by recent increased
capacities in the biotechnology industry and often the focus is upon the nearly
exponential growth rates in patenting activities (Reid 1994) and economic
growth.
The reminder that history repeats itself (and
that we often forget such repetition and thus fail to learn from it) is
valuable for our discussion in our focus upon the “new” industry of bioprospecting
and the appropriation of indigenous knowledge. The collective memories of
indigenous peoples are often long and tell a different story.
Bioprospecting is one of the oldest industries
in the history of civilisation. Every civilisation has been dependent upon the
extent to which they developed knowledge of their biological resources and to
what degree they sustainably used that knowledge in supporting their needs of
agriculture, medicines, and other industries. Equally so, unsustainable bioprospecting
practices and the manner in which those resources were unsustainably exploited
played no small part in the demise of a number of great civilisations and is a
watershed moment upon which our own civilisation now faces.
The appropriation of such resources from
indigenous peoples by the dominant cultures has also been an ancient part of
this industry. It has been said that Christopher Colombus was, among other
things, an archetypal bioprospector in search of the East Asian “Island of
Spices” who instead found a Caribbean island and began a familiar process of
transferring the countless genetic resources from indigenous peoples to the
developed nation states of Europe (Auer 1998). Accompanying this “transfer” of
intellectual property is something far more sinister than mere issues of
ownership and theft.
Within decades
after the ‘discovery’ of America, whole nations which had thrived there for
centuries had been reduced to nothing. Millions of men, women and children were
massacred. Those who survived suffered untold misery and deprivation. The
conquerors, while eliminating the indigenous people, also introduced African
slavery on the continent. History
can be re-written. It cannot be undone...five centuries after Colombus,
[indigenous peoples] cause [is] still not being taking seriously. (ICIHI 1987)
This is not an appeal to historical injustice to
garner moral appeal for more comprehensive intellectual property rights as a
manner of restitution for past injustices. The value of acknowledging this in
current IP discussions is for a number of reasons. First it is to remind us of
the accompanying contexts of indigenous genocide that inevitably become
associated with such “transfer” processes. While such appropriation may not in
itself cause the cultural genocide, it is symptomatic of the overall
objectification and devaluation of the subordinate indigenous cultures by the
dominant cultures which is the primary cause of such cultural genocide. Such
historical patterns of genocide are not footnotes in an elementary school-book
but are very real present-day realities. UNESCO reports that 4,000 to 5,000 of
the 6,000 languages in the world are spoken by indigenous peoples (UNESCO
2003). 2500 of those indigenous languages are under immediate threat of
extinction in the present generation, and it is also estimated that 90% those
indigenous languages that make up the majority of the worlds cultural diversity
will become extinct in the next 100 years (Skutnabb-Kangas 2000).
Acknowledgment of the interdependence of the
link between cultural appropriation and cultural genocide is important to IP
because ultimately it reminds us of the true gravity and importance of our
discussion in that the implications of a wise focus include not just the
protection of unique knowledge, but the very protection of human lives and
communities. This naturally leads to the second value for IP discussions in the
recognition of integrated indigenous needs. Such recognition supports the
movement towards integrated legal regimes of IP, Human Rights, and
Environmental Law, that don’t just protect the knowledge of indigenous peoples,
but protect the indigenous communities themselves and allow the capacity for
self-determination that ultimately facilitates the preservation of such
knowledge.
The undisclosed global value of Indigenous
medical knowledge
A commonly accepted estimate in the literature
indicates that a full 77% of all plant related pharmaceutical products
(Farnsworth et al., 1985), or roughly 25% of the entire pharmaceutical market
(Duke, 1993) contains significant elements of direct contribution from the
appropriation of indigenous knowledge. The figure of 77% becomes even more
significant when one considers that the World Bank recently estimated that
plant related medicinal products would reach a global value of US $5 Trillion
dollars by 2050 (Gupta 2004). Apart from modern pharmaceutical usage,
traditional systems of medicine and alternative and complementary medicine
represent up to 50% of use in many industrialised countries and up to 80% in
many developing nations (Bodeker G. and Kronenberg F, 2002). Combining the
indigenous contribution to pharmaceutical medicine with its traditional use
world wide indicates that indigenous knowledge may be responsible for over 60%
of medical treatment in developed nations and 85% in developing nations.
Bioprospecting in Australia: The unregulated
gold rush
Against this global context it is important to
note that Australia possesses greater potential for productive bioprospecting
than any other developed nation in the world. This is due to its high levels of
endemic biodiversity that place it 1st among developed nations and 6th globally
on the National Biodiversity Index, (UNEP, 2001) while this biodiversity is 90%
endemic. (Beattie 1995) Combine this with its equally high level of Indigenous
cultural diversity, and the potential for the exploitation of Traditional
Knowledge in facilitating the bioprospecting industry becomes apparent.
The appropriation of medical products and
knowledge of indigenous people in Australia has a long history that predates
British colonisation. One of the earliest examples that we have goes back to at
least the early 1600s, with the trade in trepang (also known as Sea Cucumber).
Macassan fishing boats from Indonesia brought fishermen to the northern
coastline of Australia searching for trepang.
This was traded and sometimes fought over with
Indonesian merchants who would then sell this delicacy to the Chinese market.
Among other uses, it was dried and used for its numerous medical properties,
including reduction of athralgia, atrophy of the kidneys, impotence, and many
other medical uses (Dharmananda S). Most recently Japan
has patented a compound from the Sea Cucumber, chondroitin sulfate for HIV
therapy (Kariya et al., 1990). Modern research is also focusing on its
anti-inflammatory and anti-cancer properties.
One
of the first examples of post-colonial bioprospecting activity is recorded from
the 1870s when
Dr Bancroft, a Brisbane surgeon, used the
knowledge of the Aboriginal peoples to substitute extracts from the Dubosia plant as a
substitute for atropine in opthalmic cases. The plant was also found to contain
hyoscine, used as a sedative, in the Second World War, a local Dubosia industry was
developed, as imports of these drugs were unavailable. By the 1970s there were
some 250 farmers growing Dubosia in northern New South
Wales and southeast Queensland, with an export industry worth more than Aus$1
million annually. Other than in employment, the traditional users of these
plants have received no tangible benefits. (Blakeney M, 1997)
More recently, in the 1980s the United States
National Cancer Institute was granted a license to collect plants for screening
purposes by the Western Australian Government. A healing plant traditionally
used by the Nyoongah people, the Smokebush (Genus Conosperum), was found to
contain the bioactive compound of Conocurovone, which is capable of destroying
the HIV virus in low concentrations.
The
NCI sought further samples and a licence to collect more samples in Western
Australia. The Department of Conservation and Land Management (CALM) attempted
unsuccessfully to negotiate a contract with the NCI (Janke & Quiggan 2005).
When
after four months or so had gone by and there was no contract agreed between
Western Australia and the NCI, the collector attempted to leave the country
with the samples. He was found at Tullamarine airport with two of his three
cases full of smokebush and other plants” ((N Marchant, C Bailey and J Cannon
reported these events in M Parke and C Kendall, ‘Bioprospecting of Traditional
Medical Knowledge’ (unpublished paper, Murdoch University School of Law, Perth,
1997, Cited in Janke and Quiggan (2005).
The license to develop the patent on this
"discovery" was awarded by the US National Cancer Institute to Amrad
who paid $1.5 million to the Western Australian Government in order to obtain
access to the Smokebush and related species. It has been estimated successfully
commercial exploitation of this plant may represent over $100 million per year
in royalties to the WA Government (Blakeney 1997). "Indigenous people are
concerned that they have not received any acknowledgement, financial or
otherwise, for their role in having first discovered the healing properties of
Smokebush." (Janke 1998)
It is interesting to note that while subsequent
information in 2005 appears to indicate that this particular medicine was
‘shelved’ under the claim that clinical trials found it to be neurologically
toxic in the oral method of treatment developed by AMRAD.
Dr Gregg
Smith, an
Australian biotech scientist at AMRAD, who after expensive phase one testing
and scientific dead-ends, was forced to shelve research with Smokebush’s
synthetic compound concoverone. Known as a clunky compound, Smokebush’s
concoverone is apparently too robust and cannot be broken down or ingested
safely by humans infected with HIV (Williams).
It is reported that an executive in AMRAD has
admitted that at no time did they consult with the original community to
discuss Nyoongah preparation methods or drug application and did not want to
listen to any information related to demonstrating the indigenous source of the
medicine when offered a description by the interviewer (Williams). In this case
one could surmise it may have not only assisted in appropriate benefit sharing
protocols, but possibly made a significant difference to the success of the HIV
medicine as the Nyoongah people utilized the plant through different
preparation processes and a final inhaling application rather than ingesting it
orally which AMRAD developed separately. This highlights the lack of
consultation processes between the bioprospectors, government institutions,
pharmaceutical representatives and the indigenous community members and the
possible loss to society this may have caused. It seems from initial interviews
that the local community members are completely unaware there were even major
research and development projects involving their original plant knowledge
(Williams).
Another case is the Muntries plant which is like
a miniature apple:
Muntries is a native
plant that’s well-known to local Aboriginal people; they ate the fruits and
dried them to trade with other tribes. In 1996 provisional plant breeders’
rights for muntries were granted to a company called Australian Native Produce
Industries. By taking this native plant and breeding it, the company obtained
the exclusive right to use this cultivated species of the plant in commercial
products. Muntries chutney is now sold at Coles supermarkets, part of the range
of indigenous food products that has generated over half a million dollars in
sales in its first year on the market (Watson I, 2002).
Some suggest the company never actually
undertook genuine plant breeding but simply submitted an ‘original’ version of
the plant (HSCA 1998). It is interesting to note that according to IP
Australia’s database the application for Plant Breeders Right of the Muntries
was withdrawn in September 2004.
In
Australia there are a number of books which have been compiled to record the
ethnobotanical medical knowledge of Aboriginal peoples. The sample table below
lists a range of plant material collected for analysis and the traditional
Aboriginal medicinal uses associated with the plants.
Table
1.2 (Li 2003)
click for larger image
There are many other examples of Australian
Indigenous medical knowledge reflected in scientific research that cannot be
necessarily linked as specific examples of bioprospecting. Sometimes there is a
genuine parallel and separate research 'discovery' that coincidentally was
already known to Indigenous people. For example there are patents pending on
powerful anti-biotic compounds secreted by the metapleural gland of the
Australian Bull Ant. This was a recent discovery by Australian scientists.
However, Aboriginal Australians have known about the anti-biotic property of
this Bull Ant secretion for generations (Beattie 2001). Professor Andrew
Beattie related to the author how an Aboriginal woman in Central Australia
heard an interview of his on the radio about the anti-biotic properties of the
Bull-Ant and phoned him with excitement to confirm her mother used to treat her
and her siblings. She described a process where they would stir up a Bull Ant
nest, wrap a cloth around a stick, push the cloth into the nest until it was
covered with ants, pull it out and shake off the ants, and then bind a wound so
that it would not become infected in the hot desert sun. She was excited
because the radio interview confirmed the knowledge of her mother and ancestors
about the antibiotic properties of the ant secretions used for generations by
her community.
The background of regulation related to bioprospecting
in Australia
Indigenous medical knowledge (IMK) requires
protection within a number of legal regimes for such protection to be
effective. These include environmental law, intellectual property law, human
rights law and an increased capacity for self-determination through a more
comprehensive recognition of native title and accompanying land rights.
Nationally uniform legislation that positively
and directly protects IMK in Australia does not exist. There are a number of
inhibiting factors to overcome for this to change, while equally there are
positive signs that such a capacity is developing.
In
1996 a policy document was released, the National Strategy for
the Conservation of Australia's Biological Diversity (DEH 1996). Of significant
note is that section 7.1.1.b of the document outlines the goals for the
implementation of the strategy and indicates a commitment within four years to
developing ethnobiological programs that not only ensure cultural continuity
but results in benefits of social and economic development to Aboriginal and
Torres Strait Islander peoples:
Actions
7.1.1 Priorities and time frames
By the year 2000 Australia will have:
- completed the identification of its biogeographical
regions;
- implemented cooperative ethnobiological programs, where
Aboriginal and Torres Strait Islander peoples see them to be appropriate,
to record and ensure the continuity of ethnobiological knowledge and to
ensure that the use of such knowledge within Australia’s jurisdiction
results in social and economic benefits to Aboriginal and Torres Strait
Islander peoples;
In
May 1994 Australia established a Commonwealth State Working Group on Access to
Biological Resources to investigate options for a national approach to access
to biological resources in Australia. The goal of the Working Group was to
identify the benefits of a national approach for the Australian community, to
develop principles to be applied in the assessment of mechanisms and in
negotiations concerning the grant of access, and to develop mechanisms that may
be employed to govern the access to and the collection, processing, development
and export of Australia’s biological resources. The Working Group then produced
a draft discussion paper which considers arrangements for managing access to
Australia’s biological resources, and proposes a nationally consistent approach
(Hassemer 2004).
In 2002 the Federal government’s released
its most recent policy paper in the area, ‘Nationally Consistent Approach For
Access to and the Utilisation of Australia's Native Genetic and Biochemical
Resources’ (DEH 2002). It indicates its commitment to fulfil its obligations to
the CBD and includes reference to principles of particular relevance to Australian
Indigenous peoples:
-
enable the fair and equitable sharing of benefits derived from the use of
Australia's genetic and biochemical resources;
- recognise the need to ensure the use of
traditional knowledge is undertaken with the cooperation and approval of the
holders of that knowledge and on mutually agreed terms;
- be developed in consultation with
stakeholders, indigenous peoples and local communities;
This national policy is the clearest commitment in Australia
to principles of the CBD, including equitable access and benefit sharing,
mutually agreed to terms and prerequisite consultation processes with
indigenous communities. However such positive
policy shifts have yet to demonstrate effectiveness in influencing relevant
legislation or related Native Title issues.
Commenting on the Nationally Consistent Approaches in
general, a government officer working for 25 years in the areas of indigenous
affairs and the environment advised in personal correspondence in early 2006:
An NCA that is "positive" means everything to
everyone, like motherhood and apple pie.
I regret to say that some aspects of the current NCA discussions are actually
retrograde rather than positive. Anything that forces a Western cultural norm
on indigenous people against their will, requires careful examination. Forcing
a "One-size-fits-all" Western cultural norm is now the policy norm,
supported by a societal mood that is less tolerant of differences than 20 years
ago. Policy directions also favour immediate individual benefits rather than
stored/reserved communal benefits.
Even lumping all indigenous people across this continent together is a
potentially false premise. It is like saying the requirements of the Saami of
Finland are the same as for the Turks in Edirne (a comparable range of cultures
in a comparable sized continent).
Another classic fallacy is to equate the situation of tribal indigenous people
with those that have suffered "de-tribalisation" (similar to
confusing Afro-americans with other black Africans, leading to the current
situation in Liberia). The former tend to prefer collective benefits while the
latter are now calling for personal returns on royalties, with the associated
arguments about distribution between individuals, families and tribal groups.
I am also wary of highly educated, vocal individuals representing the silent
and even confused majority. The former are all influenced by their personal,
often regional, experience and quite often biased (either for or against
certain issues) by their Western education.
To me the degree of "lumpability" (aggregation of indigenous
concerns) is proportional to the level of abstraction up the hierarchy of
issues - the higher the abstraction the more relevant an NCA is, e.g.
principles of equity and access to resource benefits can be agreed as an NCA
but how it is applied in Central NSW and Arhemland may be entirely different.
The only sure principles [are] where every individual
matters (with their own specific requirements), ever community matters (with
its own local, environmental requirements) and people matters (with their
culturally-specific requirements).
The Convention on Biological Diversity has established a
national reporting process to monitor nation states implementation of the CBD
principles. In late 2005, the Australian Government released its third report
to the Convention on Biological Diversity (DEH 2005). While in that report
there is a series of mandatory questions.
What is of particular note here is that the NCA is offered
in this report of compliance to the CBD as an example of policy that has
created an environment where
Individual Australian jurisdictions are progressively
rolling out legislative and administrative measures to implement this
Agreement. For example, the Australian State of Queensland introduced the Biodiscovery
Act 2004 (QLD)
As is more fully explored below, the Biodiscovery Act 2004
(QLD) is perhaps the most notoriously cited example of ignoring indigenous
rights or obligations to international agreements such as the CBD, particularly
regarding such issues as equitable benefit sharing. The drafters of the bill
originally included reference to a questionable level of benefit sharing with
Australian Indigenous peoples, but withdrew any reference at all prior to it
being accepted as legislation. In that context, for it to be offered as an
example of Australia fulfilling its CBD obligations, particularly in the
context of ‘prior informed consent’ and ‘mutually agreed to terms’ with
indigenous peoples brings into question the actual effectiveness of the NCA in
effecting positive change in actual legislation.
The two primary IP regimes
associated with the protection of IMK are Patents and Plant Breeders Rights. In
2002 in Australia the Plant Breeders Rights Act (PBRA) was amended partly in
response to international obligations arising from the 1991 revised International Convention for
the Protection of the New Varieties of Plants (UPOV) which is related to TRIPS
issues of regulation. There was significant debate in the parliament about
including amendments that would acknowledge indigenous rights and reflect
obligations arising from the CBD, in particular article 8j. There were detailed
proposed amendments drafted by Senator Cherry which were discussed, for
instance issues of Prior Informed Consent, but most of which were not adopted. s64 (1)(f) was the only
significant amendment adopted, other than a definition of ‘indigenous’ inserted
in s3. s64 (1)(f) allows for a member on the National PBRA Committee who represents
indigenous interests. They may or may not be indigenous. The current member,
Professor Roger Leakey is not indigenous, nor have any indigenous people been
consulted in his appointment. The committee can only advise the Minister upon
his request. Originally Professor Leakey writes that
[I] applied to join PBRAC as an individual interested in
helping indigenous communities to domesticate Bush Tucker and to protect their
cultivars. I was then appointed as the member representing indigenous interests.
As I did not have the support of indigenous communities or any official mandate
to do this, I was somewhat concerned about this and insisted on an amendment of
the minutes of the first committee meeting that I attended, to clarify my
position. (Personal communication between Roger Leakey and Natalia D'Morias,
October 2005, cited with his permission and on file with author).
As of 27 March, 2006, IP Australia’s website still lists
Professor Leakey as the ‘Member Representing Indigenous Interests’.
Intellectual Property Law as it stands now
within Australia has generally not developed out of consultative frameworks of
policy or principles that rely upon the positive resources of international
conventions. (Such as the CBD, ILO 169, Human Rights Conventions, the UNESCO
Convention of Cultural Property, Ramsar Convention on Wetlands, CITES and the
Convention to Combat Desertification.) The standard of policy development has
been an ad hoc basis that has resulted in a less than satisfactory context,
particularly in regards to the protection of Indigenous Knowledge and the
potential implementation of appropriate national standards.
While Australia is a signatory to both
conventions [Berne & Paris], our intellectual property laws do not accord
protection to all the subject-matter referred to in these definitions. Nor do
they extend protection on the basis of some wider general principle that may be
readily and immediately applied to new kinds of subject-matter as they come
into existence. Our approach has been piecemeal, giving protection on an ad hoc
basis as new claimants have been successful in pressing their cases before the
courts or legislature. (Ricketson 1994)
There is a clear danger of developing IP for the
protection of indigenous knowledge upon such an ad hoc basis, rather than upon
a consultation process that results in commonly agreed principals that should
form the basis and guide the goals of such IP development. The danger is that
such a context correspondingly results in an uncoordinated application of
protocols of access to indigenous knowledge that will vary in their level of
ethical standards. More specific limitations of IP in protection IMK will be
discussed later in the chapter.
Lastly it has been argued that the most
comprehensive remedy for the protection of IMK are the positive development for
Indigenous land rights. The first recognition of native title in common law was
established in 1832 in the United States case Johnson v McIntosh. The
foundation of this recognition of native title was based on a 1537 Papal Bull:
[T]he said Indians and all other people who may later be
discovered by Christians, are by
no means to be deprived of their liberty or the possession of their property.
The 1832 decision of Johnson formed the
foundation of jurisprudence in New Zealand and Canada, while the Privy Council
has long acknowledged its authority.
Only since the 1992 High Court decision of Mabo (Mabo v
Queensland (No 2) (1992) 175 CLR 1) has the Common law principle
of Native Title been recognised. Yet the form that Native Title has taken thus
far is very limited in its scope in comparison with other common law countries.
Since 1996, further exacerbating such minimal recognition of indigenous land
rights, is the abandonment of Federal commitment to self-determination of
indigenous peoples. This former official policy of self-determination has been
replaced by a policy of 'self-management' in consultation with government
agencies. Equally the policy of reconciliation that had gained such momentum
until 1996 was abandoned and replaced with a policy of 'practical
reconciliation'. This effectively focuses on equality and unity (which some
have criticised as guises for assimilationism) but effectively ignores or
minimilizes historical contexts of unique discrimination. Thus the creation of
positive discrimination instruments for indigenous peoples through the creation
of any special rights is no longer an option in such a policy.
Due to this, the current political culture is
not conducive to using current capacities within Australian law to create any
special recognition of IMK.
It is this context in which Australia “won” the
highly uncoveted “Captain Hook” award from the NGO RAFI in 2000, for the
country engaged in the greatest levels of biopiracy in the world. This was
awarded "for over 118 dubious claims and possible piracies and for
refusing to address its intellectual 'meltdown'" (RAFI 2000). An
independent investigation into these claims by the President of the Heritage
Seed Curators Australia, confirmed that
In fact I quickly found that the
situation was far worse. Over the course of 5 months investigation we
discovered over 100 illegitimate PBR grants. In addition to plant varieties
from poorer overseas countries, there are many Aboriginal plant varieties that
have been appropriated via the PBR grant process. (Hankin 2002)
Generally, this context of ‘biopiracy’ is not
symptomatic of an institutionally organised attempt at such appropriation nor
any particularly conscious malicious intent. Rather it is primarily
representative of a largely unregulated industry that has resulted in a number
of parties seeking genetic resources from indigenous communities, whether
directly or through accessing public knowledge, without reference to a much
needed set of nationally standardised ethical guidelines that ensure
appropriate IP protocol.
While one is hopeful about the potential for the
CBD and other positive international forms of soft law to offset the conditions
that led to the endemic condition of biopiracy recognised in 2000, one can
anticipate a time lag in the implementation of the development of such national
policies on the local practical level where such appropriation continues to
occur. This positive potential is also mitigated by the commercial interests of
the nation in developing the bioprospecting industry, as seen in the recent
parliamentary inquiry: Bioprospecting: Discoveries Changing the Future,
(Inquiry into development of high technology industries in regional Australia
based on bioprospecting), August 2001. This document offsets CBD concerns by
emphasising the need to attract investment by reducing any appearance of
restrictive protocol or benefit sharing ‘barriers’. Section 3.49 acknowledges
that no provisions exist for benefit sharing arising from use of resources.
Current government interest is primarily upon
the facilitation of the biotechnology sector in order to potentially achieve
rapid economic growth. This is accompanied by both a national campaign to
develop biotechnology infrastructure, as well as aggressive international
marketing campaigns designed to attract multi-national interest in investment.
Protection of the environment is seen as necessary to the degree that it
facilitates this commercial activity. Ensuring correct protocol with indigenous
communities is seen as necessary to the degree that it facilitates the flow of
commercially valuable knowledge from indigenous communities to the
bioprospecting sector. Yet even this minimalist economic instrumental approach
is undervalued when legislation such as the Biodiscovery Act 2004 (QLD) is brought to
the table with no mention of appropriate indigenous protocols or benefit
sharing.
However, even from a
purely economic instrumental approach, there are good regulatory arguments for
reform that have not seen much discussion in Australia. For example on the
purely economic side of intellectual property and incentive theory, there are
at least two incentives to having special (sui generis) protection
for Indigenous intellectual property.
1) The incentive effect
to reveal the knowledge, (Because the Indigenous communities feel assured by
the special protection afforded their knowledge) thereby reducing the cost of
acquiring it, and
2) the incentive effect
to keep the knowledge pool in its entirety (Sempath 2005).
A full and frank consultation about these
regulatory principles would possibly be fruitful, however anything less than a
wide ranging and public consultation process can prove to not only be
ineffective but possibly harmful. For example, John Henry Vogel examines the Queensland
Biodiscovery Policy Discussion Paper (Queensland Government
2002), [where] the word “biopropsecting” has been replaced with the seemingly
less odious term “biodiscovery.” (Vogel 2005) Among various criticisms of this
discussion paper Vogel examines is the effective benefit sharing equation 0.003
or 0.3% on offer. While this is considered unreasonably inequitable in light of
the CBD, it also only applies to landowners upon whose land a 'biodiscovery' is
made, which removes indigenous people from such considerations of benefit
sharing even further. Of great significance is that the disclosure by Vogel of
this ‘backfired’ and the Queensland Government ended up removing altogether any
reference to benefit sharing with indigenous peoples rather than reform the
policy to meet the growing international standards (Vogel 2006).
There has been an explosion of biotech companies
formed in Australia in the past five years. In 2002 there were only about 180
biotech companies while by 2004 there were over 400. An increasing share of
them are dedicated to human therapeutics, the biotech field that includes the
bioprospecting industry, with a growth from 43% of the biotech sector to 46% in
February 2005 (DITR 2005). Nearly all of them are small to medium sized
companies. Those companies specialised in bioprospecting are focused on the
screening of flora and fauna for bioactive compounds. However they generally do
not continue to the final commercial stages of product development, marketing
and sales to the public. Once the isolation of the bioactive compounds has been
completed, the rights are sold to multi-national pharmaceutical companies,
usually based in the U.S.. Thus, although there is a national intention to
facilitate the biotechnology sector for its development as a significant
economic resource base of the country, in reality the current state of affairs
is enhancing the flow of genetic resources from the “South to the North”,
making fulfilment of the nations concern for truly long-term sustainable
development practices on a national level very problematic. Due to the current
awareness of economic loss associated with benefit sharing and the potential
undesired complexities associated with indigenous protocol issues,
bioprospecting companies in general prefer to develop and rely upon existing ex
situ
databases that do not impose such requirements. As indigenous knowledge that
has already been appropriated by such pre CBD ex situ collections
is not protected, this also makes it expedient as a valuable resource.
80% of all companies that use
ethnobotanical knowledge...rely solely on literature and databases as their
primary source for this information. This fact has significant implications for
benefit-sharing, and suggests that academic publication and transmission of
knowledge into databases - rather than filed collections on behalf of companies
- are the most common route by which traditional knowledge travels from a
community to the commercial laboratory. Companies therefore have access to
knowledge in ways that do not trigger benefit-sharing (ten Kate 1999).
It is also suggested that a significant amount
of undisclosed direct in situ appropriation of indigenous knowledge is
occurring in Australia. This assumption is justified for a number of reasons.
The first reason has already been mentioned, that of the year 2000 RAFI
“Captain Hook” award for the greatest level of biopiracy of any country. This
assumption is also due to the awareness of the cost savings associated with
bypassing much of the pre-screening processes associated with more random
methods. Currently there is little recourse for indigenous communities and
without well-designed pre-screening contracts, no penalties for unethical appropriation
are imposed upon corporate appropriation. The assumption of continued ‘black
market’ bioprospecting is further reinforced by the examination of the
statements of randomly selected bioprospecting company policies, quarterly
shareholder reports and annual reports which usually fail to mention any
indigenous participation whatsoever. Given that previous analyses has shown
that 77% of the bioprospecting of plant-related pharmaceuticals finds its
origin in indigenous communities, it is contrary to common sense to assume that
such a pattern has altogether ceased.
There is a growing consensus among indigenous
communities that IP as it currently exists in Australia does not sufficiently
provide effective protection for indigenous knowledge. As such one can anticipate
that in situ bioprospecting activities involving indigenous communities
will slow in coming years until indigenous confidence in the effective capacity
of IP is restored.
The next section of the chapter addresses some
of the background concerns of indigenous people, the nature of indigenous
knowledge, and suggests ways forward in the long term process of determining
how it can be protected in order for relationships of trust to be justifiably
developed.
2. Indigenous concerns related to the protection
of Indigenous Knowledge
It should be first stated that this by no means
represents a comprehensive overview of indigenous concerns. Rather it is an
attempt to take a step back, allow a wider vision of context, and then discuss
select concerns that are considered under-represented in the IP debate. This is
offered as resource for addressing more fundamental long-term issues of IP, but
are considered no less important than many of the necessary and immediate
attempts of remedy involving more specific technical discussions.
Avoiding objectification
First it is important to recognise something
that seems like common sense but that occurs remarkably frequently in our
history. It is that we should avoid objectifying the thousands of unique
indigenous communities or their knowledge systems as monolithic singularities
whose nature can be simply categorised into neat definitions. Due to the great
diversity of contexts that indigenous peoples experience, the qualities that
comprise their community identity will vary widely. As well, their knowledge
systems are equally diverse and are highly complex metaphysical networks of
concepts that manifest themselves in a great variety of methodological
applications suitable to the particular ecological contexts in which they
dwell. In order to avoid such errors of simplification, misrepresentation and
distortion of diverse identities and knowledge systems, it is suggested that
development of appropriate IP laws is entirely dependent upon wide ranging
consultation with such communities. This also implies the need for recognising
the importance of indigenous self-determination in that it is they who are the
experts in advising what is indigenous knowledge. All to often our laws have
sought to inappropriately define what is indigenous identity and devalue and
objectify their knowledge as superstitious and subjective tokens of a Neolithic
age that merely represent “in situ” museums of a past age of human evolution.
The centrality of
considering self-determination in the formulation of appropriate IP to protect
indigenous knowledge.
If one is truly concerned with protecting
Indigenous Knowledge, a successful resolution of intellectual property rights
for Indigenous Peoples requires a shift of vision in the standard patterns of
legal principals used in interpreting the relationships between Indigenous
Knowledge and Bioprospecting. For the vast majority of Indigenous Peoples
involved in this emerging discussion of TK and IP such a vision begins and ends
with the rights of self-determination manifested in specific political contexts
of struggle. An essential reason for recognising the basic right of self
determination has already been discussed. Focusing on self-determination helps
avoid the objectification process that often impairs the characteristics of
legal regimes designed to ‘help’ them. The history in all countries in this
regard is similar and no less so in Australia. At each historical step in the
‘evolution’ of legal regimes designed to help indigenous peoples, they have inevitably
appeared barbarous and antithetical to ‘modern’ people. Even the legislation
that forcibly removed indigenous children from their families for assimilation
purposes was designed by those who thought they had the best interests of those
children in mind. We should not sit back and confidently judge such epochs as
representative of contexts we have moved beyond. We may have apparently moved
beyond them due to certain types of maturation in community consciousness.
However the methodology of objectification that is still employed will ensure
that future generations will judge current legal regimes designed to help
indigenous people, no matter how laudable the present generation believes them
to be, as equally inappropriate in nature as previous ‘barbaric’ regimes.
Focusing on self-determination and genuine consultation processes discourages
the repetition of such a history.
There are a growing number of western legal
scholars who do acknowledge the centrality of self-determination in such a
discussion. However the inclusion, much less the centrality of such a concept
in standard IP papers focusing on TK is less than common. It is safe to say
that if it is acknowledged it is because of ethical considerations that compel
a considered response to indigenous concerns, rather than representing a
natural emanation of apriori inner orientation among western legal scholars.
The key to transforming the currently relegated status of self-determination in
IP is to convey its importance in standard legal education programs which
facilitates a more natural and sincere consideration by future legal scholars.
One of the hallmarks of ignoring
self-determination is that the typical focus in protecting TK is really upon
protecting the valuable commercial products that result from such knowledge,
rather than upon the unique value of the process of TK itself and the
indigenous communities that represent the foundation of such knowledge. The
first focus is upon economic commodities, the second is upon the relationships
that result in such economic value. On an environmental parallel, it is as if
the discussion is upon protecting the rights of individuals to the resources of
the earth as opposed to protecting the ecological relationships that produce
such resources in the first place. A serious commitment to ecologically
sustainable development requires a shift of vision to the latter, which in the
context of TK and IP requires acknowledging the centrality of
self-determination.
Dealing with the limitations of IP law in
protecting indigenous knowledge: Is a paradigm shift in IP law impending?
Some have commented that it may be impossible to
make a genuine distinction between real and intellectual property in indigenous
customary law (Githaiga 1998, Puri 1995). They are so intimately related that ‘as
the anthropological discussion demonstrates, Aboriginal art is clearly a
'nature or incident' of land ownership: the two in fact are quite inseparable
if not actually the same’ (Gray 1993), they are ‘two sides of the same coin’
(Morphy 1991:49); “knowledge is indistinguishable from land and culture”
(Barsh 1999:40). The interwoven nature of the spiritual, physical and artistic
has also been acknowledged in legal scholarship reflecting on IP and
ethnobiology:
[Spiritual knowledge] is probably the
least protected and explored by the Western legal regimes, although its
significance and interrelatedness with the other two categories [physical and
artistic] is striking.
...the development towards a satisfying protection of
indigenous interests in ethnobiological knowledge heavily builds upon the
outcome of the evaluation of the nature and intrinsic value of ethnobiological
knowledge.
...extensive research on ethnobiological
knowledge will have an important task in the preparatory phase for the adoption
of sui generis legislative protection (Koning 1999).
This interdependence is a reflection of a
spiritual understanding of property in indigenous customary law. Real
‘property’ is a spiritual geography, a ‘sentient landscape’ (Bradley 2001) a
kinship of ancestors, land and creatures that is founded in the ‘Dreaming’
which is
that timeless epoch of creativity that
gave form to the diversity of life, set in motion nature’s cycles, and left its
enduring imprint on the earth’s crust – all species including kindred
humans, were subtly entwined within a transcendent web of meaning that renders
eternally sacred, the process, places, and personages of the natural world.
(Knudtson & Suzuki 1992:39)
Additionally, although there may be indigenous
appreciations of proprietary interests in property, it is fundamentally seen as
a spiritual bequest from the ancestors (Langton 2005). Intellectual property is
therefore primarily a spiritual gift from the spiritual realm and carries with
it obligations of respecting and recognising the ancestors who gave it to us.
On the level of the system of global IP
regulation there are also significant structural limitations. Adam Smith is
credited with contributing the influential ‘invisible hand mechanism’ theory
associated with enlightened self-interest which provides important reasons for
relying on property rights and markets. Basically he suggests that pursuit of
the individual good in markets will benefit the public good. Drahos, however,
suggests that once ‘property rights take the form of privileges in abstract
objects the invisible hand mechanism may cease to be a reliable guide to the
collective good’ (Drahos 1996:139)’ This is partly because of the increasing
ability of powerful factions to manipulate the regulation of IP out of
opportunistic self-interests. So the very system itself is altered to serve
their individual interests. This power increases as the scope and strength of
IP laws increase. Because of the more abstract nature of this property the full
dimensions of this manipulation and cost to society is not yet fully realized.
It is important to again emphasize that property
law is primarily about the rights between people. This is because an important
implication arising is that as there are strengthening of the rights of
exclusion and control, one is arguably allowing one person/company a type of
increased domination and sovereignty over others. This is compellingly argued
by Morris Cohen by illustrating that the dominant feature of property is the
right to exclude others. “But we must not overlook the actual fact that
dominion over things is also imperium over our fellow human beings (Cohen
1927:13).”
In the contemporary Western culture of IP usage
there is arguably a dominance of proprietarianism in which property rights are
given a fundamental and entrenched status over other kinds of rights and
interests (such as various human rights), an assumption of the ‘first
connection thesis’, and a belief in a ‘negative commons’. The first connection
thesis is basically the assumption that the individual who is first able to
economically benefit from a form of property has the right of ownership. The
negative commons idea is the assumption that no one owns the commons of
knowledge and therefore it is open to appropriation by individuals. This is in
alternative to the concept of ‘positive commons’, the idea of knowledge being
owned by everyone. There are other models of the relationship between knowledge
and communities. ‘There are as many kinds of community as there are moral
traditions, shared understandings and ways of life’ (Drahos 1997:185). For
example, it is interesting to note that Imperial China, arguably one of the
most innovative and creative civilizations on earth, arguably did not possess
an intellectual property rights system of any similarity to contemporary
western IP law (Alford 1995). Additionally, similar to types of indigenous
customary law, the imperial Chinese linked their intellectual knowledge and
innovations to an ancient and active relationship with their ancestors. ‘The
Master [Confucius] said: I transmit rather than create; I believe in and love the
Ancients’. (The Analects of Confucius Book VII, Chapter 1). Alford
writes:
Lying at the core of traditional Chinese
society's treatment of intellectual property was the dominant Confucian vision
of the nature of civilization and of the constitutive role played therein by a
shared and still vital past. (Alford 1993:20-21)
While speaking on contemporary China Alford
writes:
The experience of China in recent years
suggests that massive growth is possible without a deep commitment to IP
protection. (Personal correspondence with author June 2006)
Returning to the contemporary western model of
IP law, the proprietary model of rights based focus arguably present a number
of weaknesses. These include but are not limited to various forms of
individualism, anthropocentrism and an instrumentally materialistic rather than
intrinsic or spiritually relational approach of ownership. The capacity for
greed to influence legal development of IP is an extremely significant
deficiency. Drahos commenting on Hegel indicates, “Civil society, once it comes
to realize the pecuniary advantages of intellectual property rights, presses
the state to build ever more elaborate intellectual property systems, systems
which ultimately become a global system” (Drahos 1996:91). This described
process is clearly present in the relationship between the strengthening and
extension of IP through Free Trade Agreements which has been heavily influenced
by the lobbying of political representatives with personal interests and
powerful transnational companies in Washington (Drahos & Braithwaite 2000,
2002). The international instrument which has the greatest influence on
regulating IP relationships is TRIPS, yet an incredibly small group of
influential people devised its creation.
Fewer than 50 individuals had managed to
globalize a set of regulatory norms for the conduct of all those doing business
or aspiring to do business in the information age. (Drahos & Braithewaite
2002: 73)
When combined with increasingly comprehensive
sets of intellectual property rights in regards to abstract objects in a global
system this produces relations of separation, fragmentation of community,
restricts freedom and locks up knowledge previously held as the commons
(Akerlof 2002). In the current framework, the diversity of indigenous customary
legal frameworks are increasingly being rendered powerless to apply the legal
principles they consider important in protecting their own traditional medical
knowledge.
The capacity of all communities to
determine a regulatory structure for the intellectual commons is in the process
of being taken away from them. It is being taken away because the regulation of
abstract objects is progressively shifting from the territorial and the
international to the global. (Drahos 1997: 180)
Additionally, in such a global regulatory
context the current climate of increasing the strength of intellectual property
and the range of subject matter that can be considered property (e.g. recently
expanded to include human genetic information and living organisms) encourages
opportunism in the appropriation of the commons by individuals and corporations
as well as diminishing the remaining sense of the sacredness of life as we
begin the path of even commercializing ourselves.
Another
important criticism of both real and intellectual property is the abstraction,
externalization and alienation of people divorced from the various forms of
property including land and the mental and spiritual creativity of the
individual and community. One aspect of this divorce is seen in the false
dichotomy of the protection of the expression of ideas rather than the ideas
themselves. Only when they are reproduced in a material form in a particular
manner are ideas protected in copyright for example. The individualistic and
dichotomous aspects of intellectual property also diminish the recognition of
creativity as a form of relationship between the individual, community and
inherited common traditions, a concept sometimes referred to as holistic
individualism (Pettit 1996). Marx offers a strong criticism that the ism
of commodities in a framework of capitalistic economics separates intellectual
property from the reality of social relations upon which it is actually based
(Marx 1992). This allows for the peril of ignoring the negative effects of an
overly materialistic/capitalistic system of intellectual property in the social
fragmentation of humanity. This fragmentation largely occurs through the
fostering of extremes of wealth and poverty through the increasing appropriation
of the commons by those in power. This is reflected in a significant pattern of
economic disparities mirrored in the standard feminist and indigenous critiques
of socially unjust objectification of a hierarchy of relationships. These
increasing extremes of wealth and poverty find their greatest contrasts between
developed and developing countries, sometimes generalized as the ‘north-south’
divide enhanced by the location of multinationals in the ‘North’.
Even more telling, for the purposes of this chapter, these extremes of wealth
and poverty can be seen between white and black, male and female or more
specifically the dominant Western culture and Indigenous cultures. This does
not necessarily prove that intellectual property law is sexist or racist itself,
although there are those who argue that it is (Warren M. 1992, Mgbeoji 2006).
One can see statements by indigenous peoples that IP represents “a new form of colonization" and "a tactic by the
industrialized countries of the North to confuse and to divert the struggle of
indigenous peoples from their rights to land and resources on, above, and under
it.” (Cited in Posey & Dutfield 1996:211-212) At the very least however
this context of the disparities of wealth and poverty, and the manner in which
IP regulation contributes to this, indicates that the current legal cultural
framework allows for an instrumental use of intellectual property that permits
its use as a tool that can support racist, sexist and nationalist ideologies to
reinforce these disparities of economic injustice from the local to the global
level.
A way forward?
Drahos and others suggest that we must ask what
is the moral theory and set of values associated with intellectual property
usage. IP law should be linked with a strongly articulated conception of public
purpose and role of IP. ‘Legislative experiments with these rights would be
driven by information about their real-world costs and abuses’ (Drahos
1996:224). This reinforces the need for a framework which enables the diversity
of cultural and spiritual traditions a voice in consulting about the set of
values considered appropriate for their local contexts as well enriching the
global framework. This should be combined with empirical economic, social and
scientific measurement mechanisms that confirm projected and actual social
effects of the implementation of such moral theories in IP.
Returning to the paradigm shift:
The majority of social and physical sciences
have to greater or lesser degrees experienced significant paradigm shifts (Kuhn
1965) in previous decades. Although this is a highly complex evolutionary
process, one might make generalizations of the nature of these shifts as moving
from reductionism to holistic diversity. These are conceptual movements towards
recognizing the importance of emergent value in the interface between systems
diversity and interdependent unity. In a recent major scientific work the
summaries of the paradigm shifts in a particular field of science are listed:
Since
the sixties a scientific paradigm shift has been underway towards a Theory of
Evolutionary Systems. During the last two decades an increasing body of
scientific literature on topics of self-organisation has emerged that taken
together represents a huge shift of focus in science:
•
from structures and states to processes and functions
•
from self-correcting to self-organising systems
•
from hierarchical steering to participation
•
from conditions of equilibrium to dynamic balances of non equilibrium
•
from single trajectories to bundles of trajectories
•
from linear causality to circular causality
•
from predictability to relative chance
•
from order and stability to instability, chaos and dynamics
•
from certainty and determination to a larger degree of risk, ambiguity and
uncertainty
•
from reductionism to emergentism
•
from being to becoming
(Arshinov & Fuchs 2003)
Additionally they have commented on how these
shifts also reflect inherently spiritual or increasingly relational ways of
knowing (Polkinghorne 1986). The
ability to perceive a universe that has an integrated spiritual and physical
nature is being enhanced through the process of this paradigm shift. (Laszlo
1989, 2004, 2006)
This chapter suggests there are clear signs of
an impending paradigm shift in intellectual property law as well. The
incredible growth of discussions on the (in)capacity of intellectual property
law to protect indigenous knowledge has resulted in thousands of books and
articles in recent decades being written discussing this context. Many of those
works suggest a need for a ‘sui generis’ or alternate legal
regime to be developed to adequately protect such knowledge. The international
discourse in this area has served to
expose the shortcomings and inadequacies
of existing regimes of intellectual property, contributing to a crisis of
legitimacy in the world intellectual property system. (Coombe 2001)
Rosemary Coombe suggests some of the qualities
of this paradigm shift in accommodating cultural diversity in a united world:
Our challenge, therefore, is to pursue a more
inclusive and culturally pluralist public domain when considering the
privileges to be accorded to intellectual property. Doing so recognizes that
the objectives of sustainable development, the promotion of social cohesion,
and the support for democracy all require respect for the full range
of cultural rights provided by international law. (Coombe 2005)
Some of the corresponding
limitations in IP are reflected in its inability to accommodate the true
sophistication of the dynamics of the interface and synergy between biocultural[6]
diversity and globalization. This represents the greatest challenge to a
largely homogenous IP system that plays a significant destructive role for both
cultural and biological diversity (Mgbeoji 2006). This chapter suggests that
beginning a more conscious engagement with the spiritual dimensions of
indigenous customary law offers powerful catalysts for empowering the paradigm
shift required. Thus IP regulation that involves a focus on consultation
processes with local communities (not just the international representative
level) is considered essential.
Requirement to acknowledge three levels of
value in the protection of indigenous knowledge
Reference is made again to the considerations
related to avoiding the simplification, caricature or objectification of the
nature of indigenous knowledge. The imperative for recognising diversity and
sophistication in indigenous knowledge systems imposes the already mentioned
responsibilities of establishing the primacy of consultative frameworks with
indigenous peoples and the essential recognition of self-determination.
Additionally such consideration imposes the responsibility to adopt flexible
measures of protection capable of responding to the varying values such diverse
and sophisticated knowledge systems represent.
It is suggested that there are three levels of
value that need to be addressed if a long-term solution to IP that adequately
addresses the needs and concerns of indigenous people is to occur. The first
level of value is the instrumental economic value of indigenous “products” that
are appropriated in the bioprospecting process. That is the level at which most
IP discussions take place. The next level is the value of the unique indigenous
knowledge methodologies, metaphysical frameworks and epistemic foundations that
are responsible for the ‘production’ of these commercially valuable products in
the first place. The third level of value is the intrinsic value of the
indigenous people themselves and the web of spiritual, social and ecological
relationships which their identity is intimately associated with.
Due to these differing levels of required
protection, a variety of short, medium and long-term strategies for
transforming IP are necessary to adequately protect TK. Some that have been
suggested are
1. Short term to medium term- e.g. adoption of
Prior Informed Consent frameworks such as WIPO’s formulation of “The
Requirement” (Carvalho 2000), access-restricted indigenous owned databases
(Dutfield 1999), ‘multi-first-nation’ indigenous owned pharmaceutical companies
(Jones 2006).
2. Medium term- e.g. sui generis integration
of human rights (Posey & Dutfield 1996), linguistic human rights
(Skutnabb-Kangas 2000, Maffi 2001), international environmental law and
intellectual property.
3. Long term - ongoing consultation process on
reviving capacity of law to value variety of spiritual consideration of
indigenous peoples based on the development of tools of historical and
metaphysical empowerment. This ultimately translates into a capacity of law to
facilitate indigenous self-determination through being able to involve and
acknowledge the validity of the diversity of intellectual property found in
indigenous customary legal systems.
It is suggested that this last issue of understanding
and protecting spiritual knowledge is the key integrative principle for
understanding many of the problematic IP issues mentioned earlier. It is also
unfortunately, the least discussed and understood issue in the IP debate.
The next section explores the issues associated
with developing the fundamental resource for IP of understanding indigenous
spiritual knowledge in western legal traditions.
Understanding Indigenous Spiritual Knowledge
Traditional knowledge is
diversely represented, but from an Australian Aboriginal perspective there are
some common themes:
1) Spiritual and religious relationships
From a traditional
Aboriginal perspective, traditional knowledge was and is given to the people
from the Dreamtime or spiritual world. Knowledge connects humans and all other
living things through its source. The source of all traditional knowledge is
derived from our spiritual interaction with each other, the Great Creator,
creator beings and the spirits known as the ‘Dreamtime’ (Willis, 1950).
2) Roles and responsibilities
The establishment of
human roles and responsibilities is derived from kinship. Kinship is a
term that relates to the way Aboriginal people traditionally interact with one
another. From a traditional perspective, all living things are related through
the Dreaming and the totem system. People were classed through a totem system
that connected community into extended family relationships. Even people that
were not necessarily related by blood ties could be related through the
traditional kinship system. The expectations and obligations instilled by the
Aboriginal kinship systems still influence contemporary Aboriginal
relationships. It is these relationships that bring together extended families
in communities (Sim, 2003). Traditional kinship
systems were believed to be given to the people through the Dreamtime and
enforced by traditional law. Reciprocal obligations and expectations are
connected to spiritual and religious relationship to spirits, the spirit world,
humans and other living things. Today, roles and reciprocal responsibilities
are being continuously eroded by the imposition of western society,
assimilation and integration. However, those people who are custodians of
traditional knowledge predominately follow the ‘rules’ set out by religious
tradition to pass on and retain traditional knowledge. Breaches of those
‘rules’ degrade and erode the framework in which traditional knowledge is
passed on, resulting in a loss of knowledge to those in the physical world.
Elders are expected to pass on knowledge in the same manner as it was taught,
the role of an ‘elder’ or ‘teacher’ is governed by religious expectations or
‘rules’(Willis 1950).
3) Belonging to knowledge
The establishment and affirmation of a sense of
community is established through kinship and country. Different tribes are
geographically related to different parts of Australia. The understanding of a
specific community will dictate who is included within any specific tribal
group. Knowledge is connected to ‘country’ in a spiritual way. A person’s
connection to ‘country’ and ‘community’, as well as their kinship relationships
through totems, gives them the ability to access, use and pass on traditional
knowledge. Country is understood to be someone’s homeland. A homeland is a place
or area in which a person or group of people have a spiritual connection and a
genealogical history (Bird Rose, 1984). When the people of a community use
traditional knowledge in a culturally accepted manner, they do it for the
benefit of the community and the country. If the community is ‘sick’
(physically or spiritually), the country becomes ‘sick’ (ecologically). If the
country becomes ‘sick’ the people become ‘sick’ (physically or spiritually).
So, there is a special relationship or balance that is kept in check by the
‘good’ use of traditional knowledge and the interaction of spiritual and the
physical forces.
4) Men’s and Women’s Business
The use and understanding of traditional
knowledge is influenced by gender. Knowledge is passed on and used in gender
specific ways that relate equally to the roles of men and women. The division
of knowledge into gender related categories is influenced by religious rules
from the Dreamtime. These formal ‘rules’ or customary laws specifically relate
to how men and woman have the right to access and carry certain knowledge,
visit certain places and participate in ceremonies (Berndt and Berndt,1992).
5) The passage of
knowledge
There are protocols that are derived from the Dreamtime that
influence people in all facets of their lives. The maintenance and passage of
knowledge throughout the community and the forthcoming generations is
influenced by these protocols. The loss and erosion of these protocols hinder
the maintenance of knowledge. These protocols are underpinned by respect for
the natural world, the spiritual world and for human kind as a part of the
‘living’ world (spiritual and physical).
6) Knowledge is animate
From a traditional
Aboriginal worldview there is a notion that knowledge has an animate nature,
due to the characteristic way it is carried and passed on from the spirit world
into the physical realm and back again. ‘What comes from the earth can return
to the earth, what is given can be taken back, what is lost can be found’ (Skuthorpe,
1995).
This last point emphasizes the nature of traditional knowledge being something
that is carried not owned, being a gift given for the benefit of the ‘whole’
community (human and non human) to be used in a very specific way dictated by
the definition of respect forged by the framework established by Aboriginal
religious knowledge (Dreamtime) and spirituality passed on via the spirit
world. If traditional knowledge is not respected it will be returned to the
spirit world until it can be received by those who will carry it in the
appropriate way (Willis, 1950).
Therefore, knowledge
will be lost if it is not respected, it is respected by understanding
(learning/observing) the appropriate cultural protocols (actions/impacts).
These protocols are not strictly confined to the observance of respect within
the human community but also to the Aboriginal world as seen through Aboriginal
eyes (The spirit world, the physical world, all other living things) as they
are inextricably connected via creation.
Acknowledging impaired vision in western
culture
I am an invisible man...I am invisible,
understand, simply because people refuse to see me...It is as though I have
been surrounded by mirrors of hard, distorting glass. When they approach me
they see only my surroundings, themselves, or figments of their
imagination--indeed everything and anything except me....That invisibility to
which I refer occurs because of a peculiar disposition of the eyes of those
with whom I come in contact. A matter of the construction of their inner eyes.
(Ellison in Dodson 1994)
A number of factors greatly impair the capacity
of Western IP law to understand and protect indigenous spiritual knowledge.
Understanding these factors is essential in the development of a long-term
comprehensive discourse about the nature of indigenous spiritual knowledge and
how it is best protected. The following introduction to the subject
intentionally simplifies and generalizes the nature of western culture in order
to make clear a particular observation about a common perceptual incapacity,
due significantly to such an objectification in varying degrees.
Effective vision sometimes requires new glasses,
the removal of cataracts from the eyes, or even a retraining of the mental
capacity to process vision. Sometimes blindness s up on us so
imperceptibly, that our impairment is not recognized until we are specifically
tested or diagnosed. On a cultural level, if the incremental nature of such
impairment is extended over generations, then the chance of recognizing the
impairment is further reduced.
In some ways, in attempting to define and
protect indigenous spiritual knowledge Western observers are squinting at a
multi-dimensional object trying to make a judgment call that is made impossible
by an impairment, or rather a lack of perceptual skills and training that we do
not even anticipate needing to acquire.
One might suggest that our western culture
suffers from two types of myopia in relation to spiritual knowledge: loss of
clarity and loss of depth. In addition, we have, through much practice, trained
our inner visual processing capacity to see the world as comprised primarily of
objects rather than relationships. Reinforcing this, our metaphysical vision is
intimately related to language, and since IP legal regimes must be constructed
in a language, and English is the dominant language used, this has relevance
for the ability of the developed system to relate to other cultures spiritual
appreciations of IP. It is of great significance that a comparative linguistic
analysis between English and Indigenous languages confirms this differing
primacy of object vs. relationship foci that is a manifestation of inner
cultural visual orientation. (Christie 1990,1992; Christie & Perrett,1996;
Howitt 2001)
Social scientists have provided useful models
that explore how there are types of social training involved in developing the
visual skills to perceive different types of multi-dimensional objects which
may be comprised of complex relationships. A useful and simple way of appreciating
this is the popular stereogram ‘magic eye’ composite images which ‘activate’ if
we hold the image at a close range and very slightly cross our eyes, a 3-D
image ‘pops out’ of the original two dimensional picture. But without the
knowledge to anticipate that the ‘pop out’ exists or the visual training that is
required, it is unlikely we would ever know of the extra dimension of the
image. (For a related use of this analogy, see Pettit, Forthcoming 2007). The
same is true for a sheet of musical notes. A trained musician will look at the
piece of paper, and ‘hear’ sophisticated music in her mind and be able to
reproduce that with an instrument. However, a person not so culturally trained
in music would not have any way of naturally anticipating that the marks on the
paper actually represent music. A conversation might ensue where a musician may
show someone a sheet with Mozart’s greatest music upon it, yet the person
unfamiliar with what music is and not aware of the training required may very
well say, “This person is mad. Music does not exist. I cannot hear it when I
look at that paper.” It is suggested these are reasonable analogies for our
cultural capacity to perceive metaphysical categories, such as particular
spiritual relationships. It is as if a person of Western background sees an
Aboriginal painting and is willing to concede the aesthetic qualities of the
art, but will claim that the spiritual ‘song’ of relationships the painting
describes are a superstition. He possesses neither the training, nor the
knowledge to anticipate the ‘pop out’ of a third dimension which such training
would enable. This touches upon a level of practical relevance for IP
discussions. Aboriginal artwork, including paintings, are not just aesthetic
expressions of spiritual or ecological relationships and they are not just
ritual expressions honouring the ancestors and the dreamtime. On another level,
besides honouring the spiritual source of the intellectual property received
from the ancestors they also often contain scientific statements about their
medicinal knowledge, commonly containing stories related to the epidemiology of
the diseases associated with the medicines. The painting presented at this
conference, the Bumble Tree, is a clear example of a detailed recording of
differing types of medicinal knowledge associated with the tree.
The Western perceptual challenge to perceive the
extra dimensions of the ‘objects’ of indigenous knowledge is thus affected
through lack of anticipation, or faith in the expected ‘pop-out’, inadequate
visual training enhanced by linguistic categories that naturally filter
relationships into categories of objects which render the multi-dimensional
nature of such knowledge effectively into two-dimensional categories. While
those challenges are significant enough, they are not insurmountable as
appropriate processes of education can create the anticipation; provide the
training and shift the focus from object to relational categories necessary to
more fully appreciate the multi-dimensional aspects of indigenous knowledge
systems.
However there is another challenge of
metaphysical perceptive capacity for Western viewers perhaps even more
difficult to overcome. Western legal and scientific systems of knowledge
analysis and filtering processes of relevance also reverse engineer indigenous
knowledge into two dimensional categories no longer capable of offering the
‘pop-out’ effect even if anticipation and training were present. Arun Agrawal
calls this process ‘scientisation’ to ‘refer to three processes of
particularisation, validation and generalisation (Agrawal 2002).’ The processes
for selecting only those elements of knowledge ‘relevant’ for consideration for
IP protection as well as the processes of filtering the indigenous knowledge as
it is partitioned into databases reflect similar processes of rendering the
knowledge and wisdom into information that is two dimensional so that:
the practical effect of databases of
indigenous knowledge must be to flatten precisely that diversity of knowledge
supposed to be characteristic of indigenous forms.
It is suggested that both the instrumental
nature of IP and such database collections similarly represent inappropriate
mechanisms of knowledge filtration that seriously distort the representation of
indigenous knowledge itself. The IP academic debates have reduced
a sophisticated network of indigenous spiritual kinship relations that intimately
link land, community and ancestors, known as ‘traditional knowledge’ or “TK”,
into a round peg and then try to fit that peg into a square hole of ‘scientific
and economic reality’. Being astute observers the legal experts declare the
round peg does not fit their standard square hole. It is now announced that they
need a new sui generis ‘round hole’ to fix the problem. They
then convene hundreds of international conferences of experts and form
international institutions to manage the endless debate on the dimensions of
the round hole required. They then focus on whether an international system can
be developed to systematically produce round holes that are flexible enough so
they can be applied universally to every indigenous community. They write
thousands of papers and books to address this problem, making a good living
from it and are promoted within their departments as they manage to publish
their findings. It is believed that inevitably, the manufacture of such round
holed definitions of indigenous subject matter will be successfully developed
and mass produced for export to the world’s legal systems (where it will at
last become recognized as one universal system); whereupon the western legal
community can relieve itself of this distraction and the capitalist community
can get back to the business of business as usual. Meanwhile, one asks, “who is
sitting down with the local communities affected and listening to their
yearnings and aspirations to preserve the lives and social integrity of the
very communities which develop and carry the sacred knowledge in the first
place”? There
is more to this IP challenge than technically determining how flexible a two
dimensional hole has to be to encompass a third and fourth dimension.
In order to address this need for this deep
level of ‘training’ and corresponding instrumental creativity in our own
western cultures, we have to start with humility. This is an acceptance of “I
don’t know”, rather than beginning with the more common feeling of ‘informed
scepticism’. We can’t start with “I am willing to believe you if you prove me
wrong first.” Such humility precipitates and catalyses paradigm shifts. Historically
scientists acknowledged the limitations of their vision. “We know there must be
invisible things in the world we cannot see due to spectrums of light,
frequencies of sound and the size of objects”. Through such humility they were
enabled to develop tools of investigation such as the microscope, telescope,
radioscope and many other instruments that revealed new previously unimagined
layers of reality. In this new discourse, by embracing such humility about
spiritual issues as well, we are offered the chance to develop new tools for
seeing the spiritual truths of many cultures and a hidden dimension of our own
as well.
Such impairment in western culture has occurred
first by the willful devaluation and closing of one eye and the subsequent
general deterioration of vision that has occurred through neglect. To clarify:
many indigenous peoples consider that spiritual and material reality forms a
unity. To deny one to the other is to completely lose a dimension in our vision.
The balanced, coordinated use of both eyes is required to enable the shift from
two dimensional perception to three dimensional vision. Such two dimensional
vision impairs our capacity to recognize the depth of relationship and
perspective between objects which is fundamental to the relational quality of
indigenous spiritual knowledge.
Western culture has experienced such an
unnoticed gradual impairment of ‘metaphysical vision’, most significantly in
the period since the Enlightenment, that particularly relates to the incapacity
of IP to adequately relate to indigenous spiritual knowledge.
The discipline of law is generally not well
designed to conduct such an examination. However, it is only by adequately
diagnosing the mechanisms of such impairment in the history of the formulation
of our legal system that we are enabled to formulate potentially appropriate
remedies. In order to engage such a diagnosis of mechanisms other disciplines
must be called upon in order to provide law with the resources necessary to
construct such adequate remedies. Among the necessary disciplines are included
legal anthropology, ethnobiology, historical criticism, sociology, comparative
religion, and scientific philosophy among others. This chapter hopes to
demonstrate the need and value of such collaboration in the long-term process,
so those members of the discipline of law are encouraged to invite these other
disciplines into a specific collaborative projects of consultation and
diagnosis. Indigenous people must be included in this consultation process and
the diversity of customary IP norms respected and empowered to participate in
the global flow of legal development.
The
multiplicity of existing customary law regimes would make it impossible to
identify a specific body of rules, which could apply to all cases. The Four
directions Council, a North American indigenous organization, states:
Indigenous
peoples possess their own locally-specific system of jurisprudence with respect
to the classification of different types of knowledge, proper procedures for
acquiring and sharing knowledge, and the rights and responsibilities which
attach to possessing knowledge, all of which are embedded uniquely in each
culture and its language. Rather than trying to establish a one size fits all IP
regime to protect traditional knowledge the Four Directions Council proposes
that governments agree that traditional knowledge must be acquired and used in
conformity with the customary laws of the people concerned. (Cited in Tobin
2004)
The incapacity to understand indigenous
spiritual knowledge due to western law being characterised by a ‘deep-seated
secularism’ and positivism:
According to Marrion Maddox:
there are at least four ways in which a deeply secularised
culture, with little to sensitise it to the needs of religious minorities, is
likely to react to Indigenous communities' religiously-based claims. It may:
* ignore the religious elements of a
tradition, subsuming them under a category such as 'culture' or 'custom'
* cherish unfamiliar religious forms for
their perceived strangeness
* decry unfamiliar religious forms for
their perceived irrationality
* interpret unfamiliar religious forms
through the framework of possibly inappropriate familiar forms.
Regardless of the response, a further feature of a highly
secularised society is likely to be unease and imprecision in the use of terms
which refer to the religious elements of a tradition. The tendency in both
legislation and commentary referring to Indigenous heritage has been to use the
terms 'the spiritual' (or, occasionally, 'spirituality'), 'the sacred',
'custom', 'culture' and 'tradition' somewhat interchangeably. Such imprecision
goes hand in hand with a reluctance to define 'spiritual' or 'sacred'. Yet the
meanings which are implicitly ascribed to these concepts may have substantial
consequences for the ways in which claims are resolved. In particular, the
common usage of 'spiritual' inappropriately implies, for Anglo-Australian
readers, a realm opposed to, and superior to, the 'material'.
Moreover, Maddox enumerates the consequences of
not appropriately understanding indigenous spiritual knowledge:
* ignoring the specifically religious elements of a
tradition may mean the tradition is seriously misrepresented
* emphasising the apparent strangeness of
an unfamiliar tradition may foster an attitude of ism on the part of the
dominant culture
* criticising the apparent irrationality
of an unfamiliar tradition judges religious content on criteria alien to the
nature of religion
* interpreting the unfamiliar by means of
the familiar may disadvantage members of a religious community because of their
tradition's failure to match an assumed frame of reference. (Maddox 1999-2000)
It is suggested that IP law is particularly
afflicted with this ‘deep seated secularism’ that tends to objectify, devalue,
distort and ignore particular elements of indigenous spiritual knowledge that
are unfamiliar both in form and orientation. In order to repair such vision the
following discussion of the origins of such a process is offered.
A historical perspective on the process of
spiritual visual impairment
From our own point of view, a central feature of
culture is that it is the social manifestation of unique sets of spiritual
virtues formed in the long-term relationship between a specific community and
the ecological context in which they exist. In other words, our relationship
with the land in which we dwell forms our culture.
Many Indigenous communities see the biodiversity
of their ecological contexts as representing forms of spiritual diversity. Each
creature reflects an attribute of the ultimate sacred reality, sometimes
referred to as the Creator. These infinite sets of attributes, such as
patience, nobility or courage are manifested by each individual plant and
animal in an entirely unique way. The spiritual realities of these creatures
exist in a completely interdependent web of relationships that form our
environments. From such a web of spiritual interdependence our own being is
formed, and evolves. In that sense, we are the land. This is why you hear many
Indigenous voices say that we do not own the land, the land owns us. (Clarke
2003)
This is a relational understanding of culture
that has been largely lost in the west. In western theories, often culture is
seen as the subjective experience of collections of individuals, and therefore
the value of such culture is objectified as the domain of personal opinion. The
value of culture is therefore degraded to having no real value in itself other
than it’s aesthetic value, as if it were a piece of artwork that can be bought,
sold, or destroyed if its value is not recognised.
Under the combined influence of what
might loosely be described as post-modern philosophy and an anthropology
informed by both principles of modernity and post-modernity, an epistemology of
culture has become something of a vain hope. The result is that making credible
knowledge claims about the culture of others or even about one’s own culture is
close to impossible. Universal structural truths about culture are out.
Particularities, perspective, localism and contingency are in. So in an era
where we have more information about culture than ever before, currently
fashionable metaphysical theories tell us that we know and understand less than
ever before. (Drahos 1997:180-181)
The imbalanced and fractured perspective of
culture and civilisation, spirit and matter in western consciousness can be
traced historically back to the enlightenment period in which European
philosophers, politicians and scientists developed what has often been called a
dualistic metaphysics or world-view (Bordo 1987). This period has often been
caricatured as a war between science and religion, with science the ultimate
victor. However this fracturing of metaphysics is due to a somewhat more
complex history (Nebelsick 1981). Such a fractured worldview was the product of
over-reactions to the tyranny of knowledge enforced by both political and
religious leaders at the time. Such tyrannical assertions of absolute truth
resulted in such great injustices as the thirty-year war and the grand
inquisition. The philosophies and political reactions to this injustice that
were largely perpetuated by religious institutions, resulted in the removal of
the “tyrant God” from the centre of modern thought. This process of the removal
of the Divine was gradual but effective.
Ironically most of the central figures
considered responsible for this process all believed in God, and some of them
quite strongly. For example Descartes who has been often vilified for having
contributed many of the more dualistic and materialistic elements of western
culture believed he was justifying God. Newton had more books on theology than
science in his library and considered his treatise on a book in the Bible as
his greatest work (Forbes 1949). Yet the fashion in which many of these great
thinkers were interpreted by radical secularists is largely to be blamed for
the fracturing effect (Mcgrath 1999). The ‘Galileo Affair’ was one such story
popularly interpreted as closed minded religion vs. open minded science, yet
Galileo himself was a strongly religious person (Gingerich 1982, Polkinghorne
1986).
Here is a representative summary of some of the
forces at work in Western history:
Newton’s success in
explaining the operations of the universe through mechanistic principles was
often equated with seeing the physical order as a machine. Newton actually
encouraged this metaphor in that it alluded to Divine intelligence behind the
design. (Forbes 1949) Later science would adopt the concept of universal
principles and law explaining all physical relationships, but lose the idea of
design and God. This was enabled as the “machine” gained the principle of
independent internal momentum, through Descartes and others; and finally when
the machine acquired a random, purposeless evolutionary force of its own,
through Darwin. The machine had once been a marvel of genius in its
sophistication, elegance and universal intelligibility that alluded to an
infinitely virtuous Creator. However through a distorted interpretation of both
the processes themselves, and the intentions of their authors, it became a
self-winding, self-operating, and self-designing machine, as it were. (Ward
1996) The
result is our currently predominantly materialistic and positivistic
world-view. Associated with these developments grew the assertion that truth is
completely relative to the individual. Such an idea was developed so that
tyrannical forms of injustice could not assert their hold on the minds of entire
populations. While such a goal is a noble one, the over-reactive nature of the
philosophies that developed out of such a context created a kind of spiritual
neurosis in the west in which it is impossible to assert that their are
universal truths that are relational to us all. Such a process resulted in the
splitting of reality that has formed unnecessary dualities that usually
incorporate a hierarchical objectification of matter and spirit, male and
female, objective and subjective, humanity and nature, civilisation and culture
among many other categories. (Plumwood 1993, Warren &
Erkal 1997, Warren
2004, Jones 2001)
Such a summary does not properly represent the
complexity of the historical and philosophical elements that contributed to
such a process. But it may provide an adequately brief example of one of many
valuable approaches towards examining the causes of our lack of capacity to
recognise a unity of spiritual and material reality that is at the heart of
many indigenous peoples concerns.
Through the fracturing of metaphysics has the
objectification of culture and nature become possible in western thought (Plumwood
1993, 2002). It is only possible to assert such theories as the patenting of
life-forms or individual ownership of the land when one divorces human
existence from nature, so that one may possess it as if it were a dividable
commodity and not an interdependent web of relationships. This is why many
Indigenous people feel so uncomfortable being forced to answer the question
imposed by the west “Which person can sell this land?” It is not an appropriate
question to address their understanding of their unique communal relationship
to the land and can only be asked by someone who has been afflicted by the
spiritual neurosis inherited from the European enlightenment. It is like asking
someone: “Do you own your mother? If you answer no, then I will own her.” In
the Aboriginal Yolngu language, the term ‘Yothu-Yindi’ affectionately
identifies the human relationship with the land as the same as the love between
child and mother (Christie 1990:58).
Law itself was subject to these processes of a splitting and
fracturing of the spiritual and material in metaphysics and jurisprudence.
Justifiably so, the dogma of religion and the associated trappings of power
that can be abused were removed from the domain of law, however the benefits of
spirituality and ethics, were impaired by this process. This has negatively
impacted on our ability to appreciate the diverse forms of indigenous customary
law where law and religion are not separate, and where spiritual and material
issues of legal relationships are still integrated in varying degrees.
Anthropologists have made strong advances in demonstrating
that law and politics are not isolatable, and we are now reaching the
understanding that religion and law are not separable. The morality of
disputing processes is now everywhere heavily influenced by ideologies of a
religious nature. Law and religion may have been officially separated in
Western legal systems, but in former colonies of the Western world they are
not. It follows that from these observations that a new range of questions will
centre on contemporary disputing as an epiphenomenon of controlling processes
that will continue to cycle into the next century (Nader 1990:322).
Increased consultation processes with indigenous cultures
where the spiritual and material has not experienced this separation to the
same degree will partly contribute to the (re)training of metaphysical vision
mentioned earlier.
Lastly it is important to briefly explore further
a “coincidence” that has been recently “discovered” in the west related to
cultural knowledge. There is an increasingly acknowledged inextricable link
between biodiversity and cultural diversity.
The areas of the planet which are considered “megadiverse” in the levels of
biodiversity are correspondingly megadiverse in Indigenous cultures. The
majority of the worlds cultural biodiversity is representative of Indigenous
populations. As previously mentioned, of the 6000 or so languages spoken on the
planet, up to 5000 are Indigenous. Of these 5000 languages, nearly 2500 are
under threat of immediate extinction with the current generation.
Is this correlation between Indigenous diversity
and biodiversity merely a “geographic” coincidence? This link is considered an
‘inextricable one’, which would lead one to think that the relationship is more
substantial than coincidence. But Why?
There are three main hypotheses in this area:
1)
Indigenous cultures conserve or enhance biological diversity.
2)
Biological diversity directly enhances cultural diversity.
3)
Large-scale social systems reduce both cultural and biological diversity.
(Smith 2001)
It is suggested that biodiversity and cultural
diversity are mutually reinforcing contexts. Returning to the proposed theory
of culture – biodiverse ecological contexts provide rich spiritual
contexts which evoke equally diverse human responses. Such is the role of
biodiversity in facilitating cultural diversity. Alternately, indigenous
culture recognises and respects their origins in the land and this facilitates
a form of custodianship where a sense of responsibility for caring for and
preserving their local ecosystem is created. ‘Country, in
Indigenous thought, is not self-managing and animals rely on human ritual
activity for survival and fecundity and, therefore, lack of human ritual participation
leads to the deterioration of the environmental status quo.’ (Bennett 1983: 21)
We might ask then, “Is biodiversity sustained by the cultures it
creates?”
We must also return to the western metaphysics
developed since the enlightenment that suffers from spiritual neurosis. Such is
the western world view that nature is separated, objectified and denigrated as
a commodity to be processed for consumption. To put it in a nutshell, western
metaphysics treats the earth as a business in liquidation (Daly 1991). As this
metaphysics of liquidation is by far the major power in the world, it has the
most influence on human and environmental relations. Thus it is no coincidence
that the planet is seeing the greatest rate of extinction since the dinosaurs
(CBD/UNEP 2006), in terms of biodiversity, with similar rates of extinction
occurring in indigenous culture (Skutnabb 2000 & Wurm 2001).
Tragically, those cultures who have solutions to
the environmental crisis
embedded in their community life are being wiped out. Indigenous peoples
thoroughly embody the principles of spiritual interdependence with their
ecosystems, to the point where their self-identity IS their ecosystem. The
significance of such self-identification is heightened when one reflects on the
coincidence between the extinction of great numbers of ecosystems and the
Indigenous cultures that are interwoven with them.
It would be divisive though to suggest that this
appreciation of ecological interdependence and intimate connection is only
available to indigenous peoples; it is a human experience often crucial to the
social identities of people everywhere. (Hann, 1998:5)
Aboriginal
people are not the only people to engage emotionally with their environment.
What people become in their lifetime is a product of their engagement with the
environment, constantly negotiating what they learn about themselves and the
world.
(Seton
& Bradley, 2004:212)
Conclusion:
Practical and theoretical
implications for IP regulation:
On a structural level of IP regulation there are
two primary implications of spirituality: recognising the intrinsic value of
interdependence and the unique intrinsic value of every individual component in
that web of relationships. The relationships between the parts (local
communities) and the whole (global community) result in an infinitely complex
system that generates value in a unique way between every component part. A
mistake is to assume the current IP regime is a universal system of value
rather than a particular tool developed in a cultural context, albeit of the
dominant culture. Attempting to overlay a ‘one size fits all’ IP norm,
particularly one that is moving towards global regulatory models of stronger
levels of exclusion and control, will increasingly face tensions as it fails to
match the reality of diversity in human and ecological relationships and the
many ways in which knowledge is generated and shared between communities.
The structural implication is that we must
consciously develop consultative mechanisms between cultures, in this case
Western and indigenous customary legal communities on local as well as
international levels. If such consultation processes are engaged in the right
spirit, for example, beginning with humility and empowering the agency of each
actor, this will enhance the synergetic flow of information and value between
the local and global in IP regulation in order for knowledge generation,
respect and protection to occur. Linked to enabling this spirit of consultation
and purpose, as Drahos has suggested, we must also consciously attend to the
other element of spirituality, the moral value system in which the IP
instruments are used.
This consultation process between cultures,
religions and differing epistemic communities will also enhance the maturation
of a conscious and effectively empowering set of moral principles. This has
been generally left to a representational level at the international level of
discourse. The more fundamental paradigm shifts of appreciation of beliefs in
the ancestors and a spiritual dimension of existence will also be enhanced by
such consultation processes. The culturally based visual training mentioned earlier
for enabling the perception of 3 dimensional objects is an analogy of the
capacity development that may occur through such heightened intercultural
consultation processes.
The scope of this paper has not allowed the
exploration of practical solutions, yet it is hoped that it has provided
resources of thought to empower unique processes of engagement between cultural
understandings of IP that will result naturally in more effective solutions for
each local community. To conclude however, some brief remarks are offered on
unique models that arise upon taking seriously some of the spiritual concepts
discussed. It is suggested that promoting the effective agency of indigenous
communities is perhaps the best way of protecting the spiritual aspects of
their IP.
Upon attending the conference in Washington
three years ago, we asked a number of people, “What about regionally based
indigenous owned pharmaceutical/herbal remedy companies? What’s happening on
that level?” The typical response was a moment of silence and exclamations of
various kinds. Apparently the idea of facilitating actual full ownership by
indigenous communities had not entered the normal legal discourse. It is
suggested that metaphysically over the past decade or so, we have been stuck in
an ‘us/them’ model of how to facilitate ‘benefit sharing’ in the international
discourse. It is suggested that the idea of facilitating full indigenous
ownership of their own medical knowledge arises when one takes the spiritual
principles of interdependence seriously. If we are one family, it is a simple
question of what do we want most for our brothers and sisters? It is beyond the
reach of this paper to even begin to discuss this particular model, but there
is a model of this occurring in Australia and another successful implementation
of this has occurred in Bhutan. This model of genuine control and ownership is
explored elsewhere (Jones 2006) but it is briefly mentioned here as an example
of possible trends in paradigm shifts.
Again, another unique question that hasn’t been
adequately explored in the IP discourse: “What about the repatriation of
indigenous medical knowledge?” The following is spoken from within the context
of archaeology:
[Repatriation] Issues
related to intellectual property have been less prominent, although trends in
other fields suggest that this will soon change. (Nicholas & Bannister
2004:329)
The nature of what this ‘repatriation’ might
look like and how it might practically be applied has not even begun to be
discussed. Strong objections are anticipated, starting with people thinking it
is primarily an economic rather than an ethical or spiritual issue. For example
one study briefly mentions the issue of ethnobiological IP repatriation but
suggests that with regards to knowledge already in the public domain, it is
‘doubtful’ that it ‘can be realistically ‘repatriated’ (Koning 1999:279). It is
suggested that we start with merely reconnecting communities to the knowledge
of healing that has been appropriated. Sometimes that knowledge has passed on
with an Elder, or even if it hasn’t been lost it provides at least a moral and
educational resource for their children and youth as a mechanism of improved
self-esteem countering the discourse ‘you never invented the wheel’. In
archaeology the repatriation of indigenous human remains evolved from a moral
appreciation to a legal principle but it also initially met with strong
objections yet evolved into a meaningful mechanism of reconciliation.
The implementation of this legislation,
which imposed substantial administrative burdens and was in some quarters
regarded as disastrous for the future of American museums, has now become a
routine part of museum practice. In fact, many curators hail it as the first
step in a historic reconciliation between native peoples and museums, a process
that may lead to new and rewarding partnerships. (Brown 1998:194)
Similar to experiences of enhanced
reconciliation between archaeological and indigenous communities, it is
suggested that developing a routine process of repatriation would strongly
enhance this reconciliation process in IP relationships as well. A preliminary
case study of the repatriation of the knowledge of a common cancer medicine
(worth many millions of dollars) to an indigenous community is explored
elsewhere (Jones 2006). The details are not described here as the community
affected has not had a chance to fully consult on its response. However it is
relevant to note that the cancer medicine had its name changed and the
community was never aware it had been appropriated in the first place.
One last question: “Are universities the
gatekeepers of the IMK IP flow between indigenous communities and
transnationals?” (Jones 2006) If this is true, then what legal and ethical
obligations arise upon that ‘self-awareness’? This question arose upon
contemplating two statements. The first is a statement of spiritual principle
expressed by Ghandi “Be the change that you want to see in the world.” Then,
combining that with examining the work of ‘Global Business Regulation’ where
Braithwaite and Drahos offer “five strategies for NGO’s to intervene in webs of
regulation to ratchet-up standards in the world system.” One of those
strategies is
-targeting gatekeepers' within a web of
controls (actors with limited self-interest in rule-breaking, but on whom
rule-breakers depend); (Braithwaite & Drahos 2000:35)
While Global does not discuss
universities specifically in these terms, it is suggested that the answer to
the question is a clear “Yes. Universities are IP gatekeepers, perhaps
the most significant IP gatekeepers of all between indigenous communities and
transnational companies.” Why has this model that seems common sense not
emerged in normative IP discussions?
There are a range of reasons, but perhaps again it has something to do with a
lack of consciousness of our human interdependence as well as an academic
culture of developing the policy of other institutions, but not oneself. In
Australia, this has an added dimension of importance when one considers that
while Aboriginal communities are among the most colonised and socially affected
peoples in the world, they are not eligible for the international funding and
development programs made available to indigenous communities in developing
countries. This places an added moral obligation on Australian universities to
consciously explore what it means to be a development institution since their
research has development consequences whether they are aware of it or not.
Finally, this last question becomes linked as
possibly the best context where the solution to the prior two questions can be
answered. Universities are in the best position to engage in both repatriation
of knowledge to their local communities, as well as beginning more active
processes of capacity building towards long term projects possibly including
indigenous owned pharmaceutical and herbal remedy companies.
In closing we offer one last suggestion that is
a response to the spiritual awareness of our interdependence as a human family
and the unique intrinsic value and agency of indigenous communities.
Universities should each establish research and policy centres in these areas, directed by
indigenous peoples, strongly involving the participation of local
indigenous community members, to engage the issues of ethically regulating
‘gatekeeping’, finding ways to engage the local customary law meaningfully,
facilitate capacity building and meet whatever needs arise from their local
context. This is effective in ensuring the above processes can enhance the self-determination
capacity and social capital of the communities affected
by the research of the universities working with them. Finally, this model of
universities as gatekeepers with indigenous directed IP centres embedded within
them is also perhaps the best context for the realization of the first point in
our conclusion. This will enable local consultation processes with indigenous
customary legal systems to interact with the legal ‘circulatory system’ of the
world and allow for a flow of knowledge, development of cultural perceptual
skills and integration of material and spiritual vision (in the university
system as well), and empower diverse legal appreciations of IP to embrace
globally in a more meaningful manner.
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