Abstract
Benefit sharing is a relatively new area in international law, given that the Convention on Biological Diversity (CBD) was only adopted in 1992. However, the history of formal benefit-sharing agreements between the users and the providers of traditional knowledge goes back beyond the adoption of the CBD. This chapter outlines indigenous peoples’ rights in the context of access to plants, animals, micro-organisms and associated traditional knowledge, and discusses four paradigm cases: The Kani people (India); Niprisan (Nigeria); the International Cooperative Biodiversity Group project (Mexico), and the San/Hoodia case (southern Africa). These cases straddle the historical boundary between unregulated and regulated access to non-human biological resources, and are thus highly instructive in terms of lessons learned, best practice and emerging policy challenges for the access and benefit sharing regime of the CBD.
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Notes
- 1.
According to Berlin and Berlin (2004: 482), ‘The Barbados Conference of 1971 was crucial to the increased concerns of the international community on the nature of indigenous peoples’ problems.’
- 2.
Before the long-awaited UN Declaration on the Rights of Indigenous Peoples was adopted on 13 September 2007, the only substantive international law on the distinctive rights of indigenous peoples was the International Labour Organization Convention 169 of 1989, Article 15 of which requires signatory states to safeguard indigenous peoples’ rights to natural resources, while Article 13(1) requires states to respect the ‘collective’ aspects of indigenous peoples’ relationship to their lands. As discussed in Chap. 3, the Nagoya Protocol to the CBD makes specific reference to the UN Declaration on the Rights of Indigenous Peoples.
- 3.
Other early important agreements are the 1976 International Convention on Economic, Social and Cultural Rights, which provides that state parties to the covenant ‘recognize the right of everyone to enjoy the benefits of scientific progress and its applications’, the International Undertaking on Plant Genetic Resources for Food and Agriculture (1983), later superseded by the International Treaty on Plant Genetic Resources for Food and Agriculture (2001), and the UPOV convention (International Convention for the Protection of New Varieties of Plants 1991).
- 4.
The TRIPS agreement is administered by the World Trade Organization (WTO).
- 5.
As discussed in Chap. 3, the 2010 Nagoya Protocol includes a new provision (see Art 6.2) that requires parties to take appropriate measures to ensure the consent of indigenous and local communities to access genetic resources, where their rights over the genetic resources are established in domestic law. This provision cannot however have any impact on access and benefit sharing arrangements in circumstances where the indigenous and local peoples do not have such established legal rights.
- 6.
See also Tauli-Corpuz (2002).
- 7.
First description of CBD aims on running banner on CBD official website, http://www.cbd.int/.
- 8.
The AICRPE was launched by the Department of Science and Technology in 1982. It soon joined the Ministry of Environment and Forests, with a mandate to develop several interdisciplinary teams across the country to document the multidimensional perspectives of tribal lives: their culture, beliefs and knowledge systems that promote sustainable resource management.
- 9.
The project coordinator, Dr S. Rajasekharan, met the Mottu Kani from the Chonampara tribal settlement, Kootur Thiruvananthapuram district, in April 1987 (personal communication from Dr S. Rajsekharan).
- 10.
During the intensive research stage from 1992 until 1998, the TBGRI kept the two guides in the research loop as ethno-medical experts with a standard payment on a monthly basis for their two visits a week to the TBGRI. The fee was Rs. 3000 (approximately US$80) per month between 1993 and 1998 (personal communication from Dr S. Rajsekharan).
- 11.
The National Biodiversity Act received presidential assent in 2003 and was followed by the formulation of the Biological Diversity Rules in 2004 to provide the necessary statutory and administrative mechanisms at national level to realize the Act’s objectives. The relevant documents are available at the website of India’s National Biodiversity Authority: http://www.nbaindia.org/publications.htm.
- 12.
Samudaya means ‘community’ and kshema means ‘welfare’.
- 13.
Personal communication from Dr Rajsekharan.
- 14.
Xechem Nigeria, producers of Nicosan, list the medicine’s benefits as follows:
-
1.
It is used for prophylactic management of sickle cell disease (SCD).
-
2.
It has potent anti sickling effect on sickled erythrocytes, obtained from patients with SCD and on transgenic mice that produced human sickle hemoglobin, thus useful in preventing painful crisis experienced by SCD patients.
-
3.
It reduces hypoxic stress experienced by SCD patients (due to trapping of sickle cell in lungs), drastically.
-
4.
It removes the incidence of blood transfusion in SCD patients.
-
5.
It prevents clinical sequel (i.e. painful crisis).
-
6.
It prevents ocular damage (http://xechemnigeria.com/products.htm).
In Phase IIa clinical trials, between 73% and 80% of patients did not experience any crisis during the study period, and a majority gained weight to the extent that, for example, school attendance improved (Wambebe 2006).
-
1.
- 15.
A royalty of 7.5% falls within the global practice range (Ten Kate and Laird 1999: 68).
- 16.
The term ‘prior informed consent’ is implied in Article 8(j) of the CBD, which requires contracting parties to obtain ‘the approval and involvement of the holders of such knowledge’ (emphasis added), but it was not until 2002 that the Bonn Guidelines expressly set out this requirement and provided detailed guidance on how to meet it.
- 17.
RAFI, an international NGO with a history of advocating against biopiracy and opposing bioprospecting, has since changed its name to Action Group on Erosion, Technology and Concentration (ETC Group). (See http://www.etcgroup.org/.)
- 18.
San NGOs estimate the populations as follows: Botswana, 55,000; Namibia, 35,000; South Africa, 8,500; Angola, 3,000; Zimbabwe and Zambia, unknown (KFO 2006).
- 19.
The approximately 4,000 !Kung of the N=a Jaqna conservancy (formerly West Bushmanland) in Namibia, 5,000 Jun/uasi of the Nyae Nyae (formerly East Bushmanland) in Namibia and 800 = Khomani San of the Northern Cape, South Africa, have secured rights to live on their traditional land.
- 20.
The Nagoya Protocol now recognizes in general (Annex 1) that innovative solutions are required to address benefit sharing in circumstances where traditional knowledge occurs in transboundary situations, as well as requiring parties to cooperate, with the involvement of indigenous and local communities, in circumstances where the same genetic resources are found within the territory of more than one party (Art 11.1).
- 21.
Rachel Wynberg (2004: 854–858) provides a detailed discussion of the ecology and use of Hoodia, and of the species’ commercial development, the details of which are beyond the scope of this discussion.
- 22.
UK patent GB 2338235 and World Patent WO 98/46243 covering ‘pharmaceutical compositions having an appetite suppressant activity’, including ‘raw materials, active substances and mode of action’.
- 23.
A utility patent, as opposed to a plant or a design patent, is any new or useful process… or any useful improvement thereof. The patent must comply with the three requisites of non-obviousness, novelty and usefulness.
- 24.
The P57 patent is a complex and broad patent, which includes the method of extracting the active principle, being the ‘appetite suppressant agent’.
- 25.
This listing established a standardized international trading framework and monitoring regime for Hoodia. See Wynberg (2004: 854).
- 26.
This paragraph and the next draw on Wynberg, Schroeder, Williams and Vermeylen (2009).
- 27.
The Nagoya Protocol addresses these issues in Article 21, on awareness raising around traditional knowledge associated with genetic resources, and more extensively in Article 22, (Capacity), specifying the involvement of indigenous and local communities in capacity building and development as well as support for identifying their capacity needs and priorities, with a view to enhancement.
- 28.
WIMSA, the South African San Institute (SASI) and the Kuru Family of Organizations.
- 29.
Interestingly the Nagoya Protocol attempts to capture this idea via for example Article 21.
- 30.
See note 22 regarding ways the Nagoya Protocol addresses these transboundary issues.
- 31.
Roger Chennells.
- 32.
Roger Chennells.
- 33.
For a more in-depth discussion of the challenges in benefit sharing with traditional knowledge holders, see Wynberg, Schroeder and Chennells (2009).
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Lucas, J.C., Schroeder, D., Chennells, R., Chaturvedi, S., Feinholz, D. (2013). Sharing Traditional Knowledge: Who benefits? Cases from India, Nigeria, Mexico and South Africa. In: Schroeder, D., Cook Lucas, J. (eds) Benefit Sharing. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6205-3_4
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