Monday, 30 April 2012

The Distance Yet to Be Covered

The United States Department of the Interior has made a recommendation to include the Oglala Sioux Tribe as partners in management of national parkland of the South Dakota Badlands, according to a story at the Native News Network. The land that is under consideration for this partnership is already contained within the boundaries of the Pine Ridge Indian Reservation. The article comments that:
In 2003, the Tribe formally requested government to government negotiations regarding management control of the South Unit, and the Park Service, the Bureau of Indian Affairs and the Tribe agreed to use the general management plan process to explore options for greater involvement in the South Unit.”

Certainly it would seem that tribal partnership in management of land that is already within the boundaries of the tribal nations is a step in the right direction. But there are peculiarities in this situation that bear considering in light of the international standards given in the UN Declaration on the Rights of Indigenous Peoples.

I cannot but help be struck by the paradox that this partnership of management is recommended for lands that are already within the boundaries of lands set aside to indigenous peoples. The land that remains for “reservations” is greatly shrunken from the boundaries that were originally granted under treaties between the United States government and indigenous groups. The government has found reason after reason to take possession of land that had been granted under treaties to indigenous groups. These reasons invariably have to do with the discovery of natural resources on land that had been hitherto thought to be worthless. So what land remains is a far cry from what had been originally agreed upon. That the US government exercises unilateral control over vast swathes of this shrunken land is a point often lost in discussions of sovereignty, self-government and autonomy of indigenous groups within the United States.

It is worth noting provisions of Article 32 of the UNDRIP
Article 32:
1. Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands or
territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions
in order to obtain their free and informed consent prior to the
approval of any project affecting their lands or territories and other
resources, particularly in connection with the development, utilization
or exploitation of mineral, water or other resources.

That partnership between indigenous groups and the US government for national parkland management within the boundaries of indigenous lands is only now being considered—and just a recommendation at this point in time-- speaks of the distance that has yet to be covered to make the standards in the UNDRIP a reality.

Friday, 27 April 2012

The Return of the Buffalo: A Triumphant Symbol of Survival and Renewal

An article in the New York Times describes the return of buffalo to the prairies of Montana. The buffalo are descended from a small herd that remained hidden in Yellowstone Park and escaped the ravages of buffalo hunters in the late 1800’s.

The article also tells of the uproar that the return of the buffalo has caused. But it is apparently just the herd that the indigenous peoples of the area will manage that is the focus of objection—not other buffalo herds who are not in indigenous hands. The article explains:

“...tribe members say they see an ugly double standard in the fact that there are more than 130 private bison ranches in the state, including one belonging to the mogul Ted Turner housing dozens of controversial Yellowstone bison, and yet only the Fort Peck herd has been visited by protesters.”

The article further explains the significance that this herd will have to the present day indigenous peoples. The buffalo represent a tie to ancestors and the past, as well as having spiritual functions and in a very pragmatic way will contribute to a healthy diet:
““I call them my brothers and sisters because they are a genetic link to the same ones my ancestors hunted,” said Tote Gray Hawk, 54, a Sioux who has brought the Fort Peck bison hay and water each day since their arrival. Their meat, lower in cholesterol than beef, will feed elderly tribe members and their skulls will be used in traditional sun dance ceremonies, he said.”

Buffalo once provided nearly all the necessities of life for the indigenous peoples of the North American prairies—hides for shelter and clothing, food, use in spiritual ceremonies.

The return of the buffalo also has symbolic importance. The return of the buffalo can be seen as a triumph for the indigenous people—a triumph of survival and renewal against the odds for both.

Thursday, 26 April 2012

Consultation and Consent

News reports about the Indian Child Welfare Act in the mainstream news press invariably seem hostile to the Act. They usually also manage to not quite get it right when describing how the Act works, or when and how states have tried to invoke the "Existing Indian Family Doctrine." To me this is a reflection of the resistance to and ignorance about ICWA that contribute to non-compliance with its provisions. ICWA after all, recognises self-identification for tribal membership-- in a rather convoluted way. If a tribe passes the hurdle of federal recognition, then the tribe can set its own membership criteria. There is no "one rule fits all" for determining who is a member of what tribe. This seems to be a troubling aspect of the Act for many--but the question of who is a tribal member or eligible for tribal membership can easily be solved by ASKING THE TRIBE in question!

ICWA also recognises some level of indigenous views on family formation. Certain definitional provisions of ICWA give way to tribal determinations, if they exist. For instance, the definition of "extended family members" ( persons with this designation receive some preference for placement considerations for the child) "shall be as defined by the law or custom of the Indian child's tribe" (Sec 1903(2). It is only in the absence of this that the statutory definition comes into play.

Section 1915 also has provisions that incorporate tribal provisions ahead of statutory provisions when it comes to the order of placement preferences. Here, "if the Indian child's tribe shall establish a different order of preference by resolution, the agency or court effecting the placement shall follow such order
so long as the placement is the least restrictive setting appropriate to the particular needs of the child..."

And again, finding out what this might be means that the state court system must communicate with the tribe and then give effect to the tribal order of placement preference if one has been established.

The issue of communication with tribes also features in some arenas. Firstly of course is the on-going visit of Special Rapporteur James Anaya to the United States to investigate the situation of indigenous peoples in the United States.

Another is the US Department of Labor's proposed tribal consultation policy that is now open for comment.

But the point that consultation is not in some instances any more than mere window-dressing and requires no commitment to take on board any of the results of consultation with indigenous peoples is powerfully made by the Black Hills Treaty Council in submissions made to Mr Anaya ahead of his planned visit to the Lakota Homelands on May 2012. Their submission states:

" As the Special Rapporteur is well aware, consultations are often performed with a preconceived outcome by the greater negotiating power and do not realistically promote debate or participation with all interested parties. By contrast, the right to FPIC [free prior informed consent] promtes the full and effective participation of indigenous peoples.."

This makes the important point that listening and consulting is one thing-- but that giving effect to indigenous standards and decisions is quite another.

A federal tribal consultation policy does not provide for consultation with those indigenous groups that are not federally recognised. It also does nothing to promote free, prior and informed consent.

What steps, if any, the United States will take to promote free, prior and informed consent in place of consultations, and what comments the Special Rapporteur will have will be of interest.

And in the background remains the Indian Child Welfare Act, with its provisions for tribal involvement that go beyond a mere "consultation" on tribal standards. ICWA compliance remains an issue throughout the United States. Where there is resistance and hostility to ICWA, it seems likely there will be resistance and hostility to the larger notions of free, prior and informed consent. It remains to be seen if the gulf between consultation and consent will be bridged.

Wednesday, 25 April 2012

Call to Action: Violence Against Women Act

This blog had an earlier post on the pending reauthorization of the American federal legislation "The Violence Against Women Act" (VAWA) and the importance of several of its provisions, including one that would give limited jurisdiction for criminal prosecution of some crimes to tribal courts. That jurisdiction is especialy important in the environment that exists in the state and federal courts--where there is little prosecution of crimes that are overwhelmingly commited by non-indigenous men when the target of the crime is an indigenous woman.

The Native News Network highlights a "Call for Action". The Native News network story states:

"Yesterday, Senator Hutchison (R-TX) introduced an alternative Violence Against Women Reauthorization Act bill, S.2338, which would strip the key tribal jurisdiction provisions and replace them with a proposal that undermines current law and, arguably, would exacerbate the problem."

This is not ONLY a debate over tribal sovereignty, autonomy and self-determination. It is also about the well documented failings of the state and federal systems to respond appropriately to violence against indigenous women.

The Native News Network call for action includes important contact details on politicians.

Monday, 23 April 2012

Indigenous Identity and Gatekeepers to Rights

The issue of indigenous self-identification has been one that has caused much controversy in international law. The UN Declaration does not set out a definition or criteria for “who is indigenous.” Proponents of indigenous self-identification have pointed out the dangers in having the state determine this—where the state would then act as the gatekeeper to who had access to indigenous rights and who did not. (For an excellent discussion on this issue see an article by Jeff Corntassel and Tomas Hopkins Primeau, Indigenous “Sovereignty” and International Law: Revised Strategies for Pursuing “Self-determination” (1995) 17 Human Rights Quarterly 343).

The United States, one of the quartet of states that voted in opposition to the UN Declaration on the Rights of Indigenous Peoples, cited the lack of definition of “indigenous peoples” as one of its reasons for its “No” vote. An explanation of the vote states:
Even more fundamental and debilitating to the effective application and implementation of the declaration is its failure to define the phrase "indigenous peoples." This obvious shortcoming will subject application of the declaration to endless debate, especially if entities not properly entitled to such status seek to enjoy the special benefits and rights contained in the declaration.”

The issue of identification of indigenous status plays out at a variety of levels in the United States, and this is highlighted in the issue of the Winnemem Wintu peoples endeavour to obtain closure of part of a river during religious coming-of-age ceremonies for young women, in stories reported in the Native News Network.

The Winnemen Wintu peoples had United States federal recognition as an “Indian tribe” until 1985. Federal recognition as an “Indian tribe” carries a status that gives the indigenous group access to federal laws , such as the Indian Child Welfare Act, that apply to federally recognized tribes. But there are many indigenous groups, such as the Winnemen Wintu that lack federal recognition as an “Indian tribe” and thus lose protections and processes that might otherwise have been available to them.

For instance, the Christian Science Monitor reports that the Chief of the Winnemem Wintu peoples cannot legally possess eagle feathers since the group does not have federal status as an “Indian tribe.”

Yet here is a group of peoples who practice traditional ceremonies on traditional lands. The entire process by which the United States federal government makes its decisions on who is or is not an “Indian tribe” interferes with exercising rights of autonomy, self-determination and preserving cultural heritage that are available under the UN Declaration on the Rights of Indigenous Peoples. Accessing those rights does not require—due to the self-identification of indigenous peoples and lack of defining criteria in the instrument itself—any recognition by the US government. Surely this sets up a paradox of a group that would meet anyone’s criteria for being indigenous –no argument there—being unable to avail itself of domestic protections and having access only to international rights, due to the failure of the state to recognise the group as being indigenous in a way that determines important access to provisions and protections of federal law.

As reported in the Guardian James Anaya, the UN Special Rapporteur on indigenous rights begins an investigation into indigenous peoples in the United States today. It is hoped that his investigation will include the effects of the secondary status that the US government imposes upon those indigenous groups that it has not recognised as “Indian tribes.”

Sunday, 22 April 2012

The "Existing Indian Family Doctrine" Again: South Carolina Supreme Court case

The largely discredited “Existing Indian Family Doctrine” features in an adoption case that is being heard by the South Carolina (USA) Supreme Court.
according to ABC News.

The child’s father is a member of the Cherokee Nation, and argues that the adoption was not done in accordance with the requirements of the Indian Child Welfare Act.

The Indian Child Welfare Act was passed to stop decades of governmental forced removal of indigenous children in the belief that to separate them from their families and communities to assimilate into white society was somehow beneficial to the child. (For more information on these practices, see the Child Welfare League of America apology for its participation).

Oourts were and remain resistant to the ideas of self-determination and autonomy in the Indian Child Welfare Act.(See this blog post for more information about the Existing Indian Family Doctrine.) The “Existing Indian Family Doctrine” is a judicially created doctrine that tries to end-run the provisions of the Act. Under this doctrine, which is in conflict with the plain language of the Act, a judge can decide a child is not “Indian enough” for the Act to apply; notwithstanding the jurisdictional provisions of the Act. The doctrine was created by the state of Kansas and was notably disavowed in 2009 in the Kansas Supreme Court decision, In the Matter of AJS.
Few states continue to use this doctrine. But it remains in usage, as the South Carolina case demonstrates.

This news story indicates that a decision from the South Carolina Supreme Court is expected “within 30 days” of hearings that were held on April 17, 2012.

This case has generated a lot of discussion, as can be seen on this adoption blog page. The Indian Child Welfare Act and the basis for it being used in this case receives a lot of comment, but it would be fair to say that neither the Act, its purpose and application, or the way in which the Existing Indian Family Doctrine comes into direct conflict with the plain language of the Act are well understood. Ironically, the Act is seen as somehow robbing parents of a child-- the very thing the Act was enacted to prevent. The question of course, is which parents--the indigenous parents or the prospective and non-indigenous adoptive parents ---excite the most sympathy.

CNN has also run an article about the case, from which it appears that the purpose of ICWA is as little understood as ever.

Non-compliance with the Act, whether through willfullness or ignorance, remains a large problem in realising the protections provided in the Act to indigenous children, families and peoples.

Whether South Carolina will join the states that have denounced the Existing Indian Family doctrine, or remain one of a handful of states that clings onto this doctrine is something that bears close watching.

Friday, 20 April 2012

A Matter of Trust?

The relationship between the United States government and the indigenous peoples within its borders is a complex one. Questions over jurisdiction on lands, control over lands, and even the boundaries and borders of lands themselves have been persistent questions, and this does not look to change any time soon. In a denial of the sovereign status that the United States once recognised in indigenous peoples, it now maintains that it holds a plenary power over indigenous peoples who are its “domestic dependents.” Lands that were that of indigenous groups and not the United States by mutual agreement of both parties have been diminished by a resource and land-hungry US government. Ignoring and denial of indigenous sovereignty became an easy way to justify the taking of treaty lands without compensation. This pattern has repeated itself over and over, from the taking of the land of the “Five Civilized Tribes” in the southeast of the United States, to the present day issues over what rights are held by what parties over what parcels of land.

The latest chapter on this involves a one-billion dollar settlement between the United States government and forty one indigenous “tribes”, according to the Native News Network. At issue was the way in which the United States had dealt with “trust lands” belonging to the indigenous groups. According to the Washington Post, “The agreement resolves claims brought by 41 tribes from across the country to reclaim money lost in mismanaged accounts and from royalties for oil, gas, grazing and timber rights on tribal lands.”

That is to say, that the United States puts itself in charge of leases to extract natural resources from lands that belong to indigenous groups and for the grazing of animals belonging to non-indigenous peoples.

Accessing natural gas resources on tribal trust lands is part of a dispute detailed in a story at According to this news story, indigenous groups “were left out of federal efforts to pass rules on hydraulic fracturing.” One of the problems identified by indigenous leaders is that the United States “Bureau of Land Management...considers American-Indian tribal lands to be public lands.” Given the standards in the UN Declaration on the Rights of Indigenous Peoples, it is somewhat surprising that provisions on not only consultation but free, prior and informed consent are seemingly swept to the side. But then again, perhaps it is not so surprising.

The concept of trust can take on many meanings. In its ordinary usage, it infers a relationship of mutual respect and bonding. It could hardly be said that this describes the relationship between the United States and indigenous groups, and in the manner that the US government has dealt with indigenous lands. (See for example, the case of Mary and Carrie Dann at the Inter-American Court of Human Rights ) Of course the term “trust” in law takes on a different meaning, but also implies the idea of fiduciary duties and responsibilities that in some sense are not so far apart from the idea of “trust” in its everyday usage. Whichever meaning is used, it would seem that the United States government consistently fails to live up to it.

This video provides some information about trust lands.

Keystone pipeline proponents at it again in the US Congress

The issue of the Keystone XL pipeline is something like waiting for a bus. Without fail, it will re-appear. The only question is when. Despite several developments that have prevented the pipeline proponents from moving forward, the pipeline proponents are at it again. Like some sort of cartoon villain, they can be counted upon to be hatching their next scheme even as one has failed. Only, unlike cartoon villains and their plans, the consequences of the Keystone XL pipeline moving forward are not mere fiction and fantasy.

Nevertheless, proponents of the pipeline have made another move. The US House of Representatives voted to approve construction of the contested portion of the pipeline, according to the Native News Network. The story at the Native News Network says that the pipeline approval was part of another bill on highway funding that will now be considered by the US Senate.

In other recent pipeline developments, there are plans for an altered route through Nebraska that would avoid the sandhills area which would have faced environmental damage risk under the original route, according to this story in Bloomberg Businessweek.

Monday, 16 April 2012

Stop that Damn Dam! Indigenous Participation, Culture and Development in Central Brazil

Last month, a Judge at the Brazilian Federal Court of the State of Mato Grosso declared a license for the construction of a hydroelectric power plant to be null and void, because of the lack of consultation with affected indigenous populations. The Teles Pires Hydroelectric Plant, on the river with the same name (which makes the border between the Sates of Mato Grosso and Pará) is meant to produce 1820 MW (by comparison, the Three Gorges Dam in China produces 21000 MW), and its reservoir would cover an area of about 152 km2.

Foz do Rio Verde no Rio Teles Pires - MT. Foto: Margi Moss
Teles Pires river

According to Judge Célia Regina Ody Bernardes, the sacred meanings they attribute to the area, and the uses of the area for indigenous livelihood, should have been taken into account by the governmental authorities who green-lighted the project, especially in light of provisions of ILO Convention No. 169 which require indigenous consultation, and provisions of the Brazilian Federal Constitution.

The judgment highlighted that the Brazilian Environmental Agency (IBAMA, for its name in Portuguese) authorized the construction of the dam, but did not follow up with the Brazilian Indigenous Foundation (FUNAI, for its name in Portuguese), to see whether any of the affected indigenous populations had anything to say on the matter. This case is a classic example of the panoply of regulatory agencies that affect any one indigenous community, and how anyone trying to understand the workings of indigenous law (or any area of law, for that matter) must be able to navigate an incredible maze of regulation in a series of cognate areas. Background rules are just as important as foreground rules, and, by failing to observe them, it is easy for important things to fall through the cracks. This judgment, incidentally, is still subject to appeal. So, let’s see how this story unravels...

And then there’s another thing I’m not quite sure what to make out of: the focus on the religious / sacred uses of the area that would be flooded. While I understand that this focus simply derives out of factual matters (that is, that the affected communities indeed have a religious attachment to that site, and this connection should be preserved), I also worry about how this can be spun by those who still want to push for the project (I am guessing there are plenty of unhappy shareholders of the electric company out there), and about the long-term impacts of this narrative. While it seems for the most part laudable that cultural considerations are paramount in this case, at the same time non-cultural factors are nowhere to be found, which in a way orientalises the affected communities, and presupposes that it is only because of their spiritual connection that the land must go untouched. That necessarily leads to the conclusion that, should this connection cease to exist, the dam could go ahead. So, in a certain way, the idea of translating indigenous participation claims into cultural ones limits the debate, and obscures what should really be at stake: indigenous sovereignty over the area. Adopting a somewhat radical standpoint, I do not think indigenous sovereignty over the area should be conditioned to a religious connection, it should be granted in a full, no-strings-attached manner. But, perhaps that’s just naiveté, and the compromise found by this judgment is the best one can hope for (at least for now). I guess the call still stands, though: however important this victory is, one should know that it is not enough, and that it is only one step towards full sovereign recognition to indigenous peoples.

Source FUNAI.

Written by Lucas Lixinski.

Tuesday, 10 April 2012

Hunger Strike by Lakota Nation: "Protect Our Sacred Water Rally" calls attention to rally and protest held from April 1-3 On April 1, 2012, a rally was held by members of the Lakota Nation to bring attention to the importance of water, and the damage that would be done to water supplies if plans for the Keystone XL Pipeline construction went through. A 48 hour hunger strike was held, with protest and rally ending on April 3.

According to "Switchboard", a blog of the Natural Resources Defense Council staff blog, the event was coordinated to be timed with another protest against the Keystone XL pipeline and the water and environmental damage it would cause-- this protest of indigenous peoples in Canada. The "Switchboard" account of the Lakota Nation rally comments that
" Lakota supporters built a sweat lodge and elders sang songs and prayers in support of hunger strikers in Canada over a thousand miles away. They were there to support and protect Mother Earth, a powerful Lakota tradition passed down through the generations, long before oil and mining companies came and polluted their land."

Sustaining Sustainability: Getting the Message Out? Senate Bill 2109 and Haskell Conference on the Rights of the Mother Earth

What is the matter with Kansas? Such was the title of a book that pointed out the paradox of support for large agri-business by a state whose farmers were being put out of business by the large agri-business concerns. The title itself, “What is the Matter with Kansas” itself refers to an 1896 essay by William Allen White, that parodied events of the day and shot Mr White to national prominence.

Sustainable agricultural practices are a concern of many in the state, such as author Wes Jackson, who wrote the book, “Becoming Native to this Place.”

A previous post to TK Totem noted the on-going litigation over the “Haskell Wetlands” which are a sacred space linked to the Haskell Indian Nations University in Lawrence, Kansas. These wetlands are under threat due to desired construction of a new road that would skirt the south end of Lawrence, with proponents of the road claiming it would save commuting time.

In the face of these events, it is all the more heartening to see reports of the recent conference that was hosted at Haskell: “The Rights of the Mother Earth Conference: Restoring Indigenous Life Ways of Responsibility and Respect.” The conference was held April 4-6, 2012. The conference was not only about experts presenting information, but on community participation in solving and resolving issues as reported by the Native News Network: “During the morning sessions panelists spoke of the issues affecting their homelands. From the drilling in Alaska, to the Keystone XL pipeline issues in Canada and to how the Wakarusa wetlands in Kansas are being endangered. In the afternoon, all the conference participants broke up into groups to define the rights of Mother Earth and how it could be used in their own communities. Each group then presented their ideas to all the other participants.”

Perhaps ironically, at the same time, a meeting was being held over water rights of the Hopi and Navajo nations on April 5, 2012. The subject of the meeting was Senate Bill 2109 which is intended to settle “water rights claims of the Navajo Nation, the Hopi Tribe, and the allottees of the Navajo Nation and Hopi Tribe in the State of Arizona” The full text of the bill is available at this link.
Native News Network commentary by Ed Becenti sums up the concerns about this bill and its the devastating consequences it would have:

“2109 and the "Settlement Agreement" deny the Navajo and Hopi people the resources and means to assess comprehensive long-term water needs of every community, village, and watershed; and deny the resources and means to plan for, and develop sufficient domestic, municipal, industrial and agricultural "wet water" projects essential to the permanent well-being, prosperity and health of their homelands and children's children.”

Additional internet resources on the bill and an online petition to oppose the bill can be found here .

One wonders how much of the message of conferences such as the one held at Haskell and the need to restore practices of the sustainable use of resources has reached the ears of those who stand to profit from the extraction and exploitation of these resources, when increasing scarcity means increased prices and the chance of increased profit.

Changing Taiga: Challenges for Mongolia’s Reindeer herders

The Dukrh are Pastoralist Nomads and are an ancient people of Turk descent. Their homeland is in the northern part of Mongolia, the ‘Taiga’. The Dukrh peoples follow a seasonal migratory pattern and are essentially self-sufficient. They are dependent both on reindeer and the forests where they hunt and in which their ancestors live. The families rely on the animals for their livelihood and also use them for transportation.

The Taiga is rich in biodiversity and natural resources and has been highlighted as an area which could negatively suffer from climate change. The wealth of biodiversity in the environment is a consequence of the unique relationship the Dukrh have had with the land. However this relationship and sustainable lifestyle is threatened. A recent United Nations Environmental Programme Report (UNEP) raises a number of concerns and recommendations. The Report (here) is part of the nomadic herders’ initiative.

Some concerns:
  • Introduction of 8 million livestock onto traditional Dukrh grazing since 1990
  • The unregulated mining of gold, white and green jade which in turn pollutes water sources
  • Unregulated logging
  • National parks which have curtailed the traditional grazing areas of the Dukrh.
  • Hunting laws which prevent the Dukrh carrying out their traditional sustainable way of life and impact on their food security
  • Erratic weather patterns which have caused many livestock deaths and impact on biodiversity
Main recommendations include:
  • Recording reindeer herder’s traditional knowledge of land use and natural resources, as well as traditional food and culture, to promote the conservation of biodiversity in the region
  • Closer monitoring of reindeer numbers, changes in migration routes, land use changes, industrial development, local climate variability and variables affecting the reindeer herding community and Taiga ecosystem
  • Formation of community partnerships to support biodiversity and traditional livelihoods of the Dukha reindeer herders
  • Evaluate current hunting regulations to identify how the laws affect reindeer herders’ access to food and income
  • Establish a programme to increase herd size and prevent and treat reindeer diseases, using both Western science and traditional knowledge
  • Provide assistance to develop local herders’ institutions, such as the reindeer herders’ information and knowledge centre in Tsagaannuur
  • Organise community round table discussions and field visits to promote mutual understanding and dialogue between herders, tourism operators, local government, and other stake holders on land and resources in reindeer herding areas.
  • Conduct an impact assessment of climate, environmental, and social and economic changes in the region, including tourism.
The Dukrh story is not atypical and there is evidence to suggest that particularly nomadic pastoralists are increasingly becoming marginalised. However pastoralists are a resource and pastoralsism produces meat and milk sustainably. One element in their survival is to disseminate information and an understanding of their valuable way of life and the above report seeks to do this.

Written by Fiona Batt.

The Protection of Traditional Knowledge in South Africa

South Africa has been examining the legal protection of Traditional Knowledge. The South African Intellectual Property Amendment Laws Bill (2008) is an attempt to protect Traditional Knowledge (TK), an area particularly abundant on the African continent and one which has been vulnerable to misappropriation.  The Bill has been widely criticised for following a traditional intellectual property framework. 

Rather than grappling with TK as something very unique and not akin to intellectual property it follows the ‘square peg in a round hole’ model drawing on traditional principles of intellectual property and trying to force TK to fit within them.  The World Intellectual Property Organisation TK developing instrument has with the influence of the African Group too some degree avoided this (see WIPO/GRTKF/IC/6/12 submission by the African Group).

A preferred model would have followed the enlightened Swakopmund  Protocol adopted by the African Regional Intellectual Property Organisation (ARIPO) which does not use the term’ indigenous’ but refers to the TK of local and traditional communities and includes principles of custodianship, guardianship and collective cultural ownership.

One key area which the South African Bill does not address is medicinal knowledge an area where misappropriation and bio-piracy has occurred. One example of misappropriation from an indigenous group in South Africa is the well documented Hoodia plant patent (P57), a patent utilising the appetite suppressant nature of the plant. The San people, an indigenous African peoples of the Kalahari used the Hoodia plant to suppress hunger on long journeys.  The TK in relation to the plant was invested in the group. The San people were not asked for their consent and initially they did not benefit from the commodification of their plant however eventually a benefit-sharing agreement was set up although not totally without criticism (for more info here).  

The Convention on Biodiversity (CBD) invests sovereignty over biological resources to the State, Article 8(j) require States to ‘respect, preserve and maintain the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.’  The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity 2012 also provides for the fair and equitable sharing of benefits of TK associated with genetic resources.

Free Prior Informed Consent (FPIC) and access and benefit sharing (ABS) in relation to indigenous peoples are important principles. FPIC permeates the 2007 United Nations Declaration on Indigenous Peoples Rights and is evident in articles 11.2, 19, 28, 32.2 and effective redress for breach of the right is contained in 11.2, 28.1 and 32.1.

As far as the writer is aware the Bill has not progressed to the Statute stage. 

Written by Fiona Batt.

Monday, 9 April 2012

And another one...

No 1 drill we hate!

March appears to be ‘the’ month for Chile’s indigenous peoples. The issue surrounds indigenous peoples’ right to consultation when development projects are taking place on their lands – as stated in the International Labor Organization’s Convention 169 (ILO 169). That said, on the 30th of March the Chilean Supreme Court ordered - its second time in a month, consultation with Indigenous peoples (see previous blog here).

The case was brought by Aymara communities against Compañía Paguanta S.A. and in regards of drilling occurring on their territories. The Supreme Court unanimously held to stop the drilling until an environmental impact study is performed and the Aymara people are consulted. It stated that “the project started before proper consultation had taken place and ordered that the rights outlined in Convention 169 must be respected before the project can move forward.”

The ILC News published an interesting report regarding the issue of consultation. The article is written by two US attorneys who are working in International and Indigenous Rights law and whose residence is in Santiago de Chile for the moment. They noted that these cases of ‘development projects’ and the matter of consultation have been truly been “... in the context of applying environmental protection laws, which require citizen participation for certain types of invasive projects that present negative impacts.” For this reason, they observed that the Court ordered such consultation when it finds those impacts that involve environmental laws and then it combines environmental law with ILO 169 consultation rights.

The note continues to explain that they are two different things and emphasise that “the circumstances that trigger consultation are broader than the environmental legislation” since regardless of whether the prject can have a positive or negative impact, the aim of consultation “is to give indigenous peoples a voice in all decisions that affect them.”

Finally, they stated that putting together ‘citizen participation’ (as required by environmental law) and ‘indigenous consultation’ (required by ILO 169) is problematic since the latter has “very specific requirements, most of which are not present in the established citizen participation laws that exist on Chile’s books.”

Sunday, 8 April 2012

Indigenous Peoples’ Approval of the UN Declaration on the Rights of Indigenous Peoples

A lot of ink is spilled in discussing the states that have approved, abstained or opposed the UN Declaration on the Rights of Indigenous Peoples. Some states—notably the four states that originally opposed the Declaration: Australia, Canada, New Zealand and the United States—have all changed their position. But very little is heard about whether or not indigenous peoples themselves have approved or opposed the Declaration.

Granted, the UN does not give them the same voice to vote on the matter as states. The UN is and looks to remain a very state-centric organisation. The on-going UN consultation on the status of indigenous peoples’ participation looks geared to make indigenous peoples more like non-governmental organisations (NGOs) and less like states—at least in relation to participation and activity in the UN.

Perhaps this will soothe any on-going state angst over the exercise of indigenous sovereignty through the United Nations. The consultation states that its aim : “to prepare a detailed document on the ways and means of promoting participation at the United Nations of recognized indigenous peoples’ representatives on issues affecting them, given that they are not always organized as non-governmental organizations”.

Indeed, no, indigenous peoples are “not always organized as non-governmental organizations”. Perhaps because they are NOT NGOs. Whether or not they should become more NGO-like in their international law participation is at best a debatable question.

Nevertheless, the Native News Network carries a story of an indigenous nation giving approval to the UN Declaration on the Rights of Indigenous Peoples. The article indicates that the "Pit River Tribe are the third tribe in the United States to officially affirm the declaration after Gila River of Arizona in 2008 and Seminole Nation of Oklahoma in 2010”.

This seems more state-like than NGO like. It is significant as well to understand what positions indigenous groups themselves have on the Declaration. Is its content satisfactory and acceptable? Are there reasons they might stand in opposition or neutrally abstain from an approval? It might be hoped that more publicity and visibility would be given to the actions that indigenous peoples themselves take with regard to the Declaration. Outside of the United States, for instance, have any indigenous groups taken formal measures to approve the Declaration?

Saturday, 7 April 2012

Work In Progress: Traditional Knowledge Protection at the World Intellectual Property Organisation (WIPO)

There has been increasing concern about the exploitation and unlawful misappropriation of Indigenous Peoples’ Traditional Knowledge. The protection of Indigenous peoples’ Traditional Knowledge and genetic resources has been the focus of The World Intellectual Property Organization (WIPO). In particular the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge (TK) and Folklore (IGC) has spent some time exploring the interplay between intellectual property, (TK) and genetic resources with the purpose of either developing a new international instrument or accommodating control and protection in the present intellectual property system.

In 2008, ‘The Protection of Traditional Knowledge Gap Analyses’, WIPO/GRTKF/IC/13/5(B) Rev. prepared by the Secretariat for comment by the IGC examined gaps in the present system for the protection of TK and options for filling those gaps. Gaps in the protection of TK in the existing legal framework were:
(1) subject matter not covered under existing IP law;
(2) right holders not recognized as such, and other beneficiaries excluded from the benefits of protection;
(3) forms of use and other actions that cannot be prevented;
(4) absence of entitlement to obtain remuneration or other benefits.

The document also looked at ‘working definitions’ of TK and determined that there was no internationally recognised definition but included examples from Art 8(j), Convention on Biological Diversity Art 9.2(a), International Treaty on Plant Genetic Resources for Food and Agriculture, Art 31, United Nations Declaration on the Rights of Indigenous Peoples and para. 12, Interlaken Declaration on Animal Genetic Resources.

The options which have emerged as potential definitions in a new instrument and put to the WIPO General Assembly in September 2011 WO/GA/40/7 are included in WIPO/GRTKF/IC/21/4, ‘The Protection of Traditional Knowledge: Draft Articles. Article 1 Definition of TK:

  • Option 1: For the purposes of this instrument, the term “traditional knowledge” refers to the know-how, skills, innovations, practices, teachings and learning, resulting from intellectual activity and developed within a traditional context.
  • Option 2: Traditional knowledge is knowledge that is dynamic and evolving, resulting from intellectual activities which is passed on from generation to generation and includes but is not limited to know-how, skills, innovations, practices, processes and learning and teaching, that subsist in codified, oral or other forms of knowledge systems. Traditional knowledge also includes knowledge that is associated with biodiversity, traditional lifestyles and natural resources.

The next important dates in the debate concerning TK are April 16 -20 2012 where the following documents are on the agenda: WIPO/GRTKF/IC/21/4 (TK Draft Articles), WIPO/GRTKF/IC/21/5 (a response to WIPO/GRTKF/IC/21/4 by like-minded countries), WIPO/GRTKF/IC/20/INF/4 (document on key issues) and WIPO/GRTKF/IC/20/INF/8 (Glossary of key terms).

All documents for this meeting can be found at

Written by Fiona Batt