Drug discovery and Biopiracy

On May 9th, the University of Buckingham UK, received a privileged visit. Prof Graham Dutfield from the University of Leeds gave as a talk regarding a paper that he published last year in the topic of 'Traditional Knowledge, drug discovery and patent-based Biopiracy’ (European Intellectual Property Review 33(4)).

The (TK) King and I

Room F06 was packed and hot -- I am not sure if the topic was a boiling one or it was a warm date BUT at the end of the date, we did have some sizzling questions. The mixture of the audience was from different areas such as: Medical Law and Ethics, Intellectual Property Law; Environmental Law, Human Rights and Tort.

Prof Graham started by explaining the term biopiracy – but very carefully challenging on whether the word should be coined. Anyways, he continued to say that it could be regarded as misappropriation [most people called stealing] of biological resources or traditional knowledge (TK) through the patent system; and/or it is the unauthorised collection [once again most people called stealing] for commercial ends of genetic resources of TK. I mentioned the word ‘stealing’ because it is the people’s common word – not the lawyery one.

The talk proceeded deeper into the issue: is TK important in the pharmaceutical industry? and if it is so, what part or role, if any, TK takes into the invention per se? To patent an invention there are some requirements that need to be fulfilled: novelty (new) and inventive step (non-obvious) – and industrial application, but focus being today in the first one. Is it new or novel the use of specific plants (containing some chemical properties) for the purpose of the cure/ treatment of ‘x’ disease? As Prof Graham mentioned, it may be new to us BUT not new perhaps to an indigenous healer – the query is: does this destroy novelty? Novelty is destroyed by use and/or publication. Yet, the problem with this issue is: how will a Patent Officer, let’s say in the UK, become aware of the use of this invention in a small village community of indigenous people in the Amazon? It is not common for healers or the said community to document this and what is more, sometimes they do not even share this knowledge with their own community but passes that info to a worthy Indian– it is a ritual (we called a trade secret). This is indeed a very difficult issue because in our world we need evidence.

How can we help? To document or not to document

I am afraid I do not have an answer. In one side of the coin, to document will give protection not only in situations of Patent and other intellectual Property Rights (IPRs), and moreover, will be helpful in cases of entitlement of land and preserving their culture. There is indeed the traditional knowledge digital library in place; but, on the other side of the coin, indigenous peoples want to keep their identity, heritage, autonomy, so why do they need to disclose their way of living? We need to remember that their purpose of life is not material to them. Their spirituality (not religion as such) is based on what they called ‘cosmovision’. It means people do not have hierarchy! Everything is part of the ‘one’ i.e. animals, land, people, plants; they all are part of the one cosmos. That is the reason why I cannot make my mind – I cannot recommend with a blind eye the documentation of this rituals. It is asking for transformation –perhaps an involuntary transformation and this may have negative effects.

The lecture of course covered many more issues, but this is the one that I felt needed some addressing today, perhaps tomorrow or another day I will cover other issues. Many thanks to Prof Graham for given us not only the time and his valuable knowledge BUT given us the chance to open our minds in a very interesting topic.

Indigenous Peoples are consumers too

The Peruvian Institute for the Defense of Competition and Intellectual Property (INDECOPI) launches the opening of its new headquarters in the region of Cusco. Yet, since 1995, INDECOPI Cusco has provided to its citizens various consumers services.

This time and celebrating ‘consumer’s week’ it has published and made available the 'consumer Decalogue in Quechua', designed to promote and defend the rights of these indigenous peoples.

It is claimed that this step aims to promote and disseminate the top ten consumer rights, among people who speak Quechua, thus creating a healthy culture of respect for this people. INDECOPI informs that through this Decalogue it will guide and educate about a million Quechua-speakers of different communities living in the Cusco region, so that in addition to know and defend their rights, they will have access to satisfactory products and services.

Peru ratified ILO Convention 169 back in 1994 and while I can see this Decalogue as a way to integrate more the communities, I indeed believe that it is a good application of Article 4 – guaranteeing enjoyment of the general rights of citizenship without discrimination.

Ecuador, Chile, Colombia and Argentina have also ratified the Convention and have Quechua-speakers communities, but will they follow this initiative?

Another question that I might query is that INDECOPI Cusco claims that in 2011, attended 1,157 claims, having been solved 95% of them through the process of conciliation – very good indeed. But, will this initiative of bringing the Decalogue in Quechua also be extended to filing claims in Quechua? That would be the cherry on top of the cake.

Chilean Indigenous Peoples have a say – will they be listening to?

A few weeks back there was a ‘celebration day’ that was launched by UNESCO since 2000: February 21st “International Mother Language Day.” The purpose is to promote native languages around the globe and Chile took this day to promote not only their own indigenous languages but also their cultures. Accordingly, Chile celebrated the day by marches and public statements.

In Santiago, Chile, there is an organization dedicated to Indigenous languages: Red por los Derechos Educativos y Lingüísticos de los Pueblos Indígenas de Chile (Red EIB). On the date, they released a public statement “summarizing the current state of Indigenous languages in the country and calling on the government to take concrete steps to preserve those same languages. Red EIB indicated that Chile originally had eight spoken Indigenous languages, but now numbers have dropped to four, and none of those four languages are spoken by more than one-third of their respective populations.”

RED suggests the following:

· the national curriculum should reinstate the Indigenous education units that used to be found in history, geography and social science classes;

· strengthening Indigenous language rights under Chilean law, which might include the creation of a “National Institute on Indigenous Languages”; and

· intercultural education throughout the country.

Another event took place in the Araucanía Region of Chile, where the community requested the government to make Mapuzungun (the language of the Mapuche people, and the most-spoken language in Chile outside of Spanish) to be along with Spanish an official language. In other Chilean Regions there were also requests made to local government leaders to add the names of certain landmarks in Mapuzungun.

Source Indigenous News.

On tokenism and white people writing about indigenous peoples

Two weeks ago, the Australian Parliament held an event to show its official institutional support for the recognition of Aboriginal and Torres Strait Islander Peoples in the Constitution. A link to a short video of the event is here, and contains brief glimpses of indigenous individuals speaking about their hopes and aspirations for the recognition process. Is this tokenism? Well, to a certain extent, it is. Most of the people that appear on this video are both indigenous and part of a “white-person-relatable” middle class. Which begs the question: why should their views matter, if they are to a certain extent assimilated (and, therefore, no longer “truly” indigenous)?

For one, there is no such thing as “truly” indigenous. Just like there is no such thing as “authentic” culture or cultural heritage. To think of indigeneity, or culture more broadly, in terms of authenticity implies a degree of essentialization that, to be quite honest, is counterproductive at its best, and plain evil at its worst. Allow me to explain that a bit further: by allowing people to be divided along lines of “authentic” and “non-authentic”, one necessarily creates the other, thereby playing into the hands of the racist policies one should be countering. Identity is not, by any standard, a watertight category, it is fluid, constantly evolving, multi-faceted. The fact that, back in the 1980s, Sandra Lovelace, and indigenous woman from Canada, got married to a white man, meant she lost her indigeneity, for legal purposes. Is that the way things should go? The UN Human Rights Committee said “no” back then, and it is surprising that things have not changed that much in the past 30 years, despite that forceful statement about identity not depending on one single factor, and one facet of identity not meaning the exclusion of others. But I digress.

Back to tokenism in the Australian process, the second reason why those peoples’ opinions should matter is precisely because, as Aboriginal peoples who got, for one reason or another, to be part of both worlds (the Aboriginal and the settler society), they are in a better place to mediate tensions, to understand both languages, to be themselves the catalysts for this important change. Without their presence, the whole process might be jeopardized simply by the inability to find a common language, or by finding a shadow of a common language that is plain condescending and paternalistic (reminiscent of early indigenous recognition processes in many Latin American constitutions).

So, these participants in the process are at least every bit as important as the “real” Aboriginals and Torres Strait Islanders, if not more so. This in turn relates to one of Sarah’s recent posts, about her place as a white person writing about indigenous issues. While I am in the same position (a non-indigenous person wildly interested in indigenous issues), and I am very careful not to essentialize, not to be paternalistic, and not to assume that I can any way fully comprehend the depth of the indigenous experience (just as I don’t think indigenous individuals can fully grasp the non-indigenous experience), I think my attempts at it are valid, precisely because of this “bridge” capacity of my interventions (however modest). Plus, it is by trying to step into one’s shoes that we develop empathy, something that is clearly in short supply in so many areas of human activity.

Written by Lucas Lixinski.

Time to play: is this a proper match?

A long-running case involving NBA player Manu Ginobili and the Argentinean Mapuche community named ‘Paichil Antriao’ is again a hot debate.

Background:In 2004, Ginobili bought a piece of land (more than a piece though, it is 27 acres) for US$10 million in the region of Villa La Angostura, Argentina. It seemed that the intention of the NBA celebrity was to build a house and a five star hotel but nothing has been constructed as yet. However, the land has been in a legal battle shortly after its purchase. The reason: the Mapuche community of Paichil Antriao lives and has been present on that land since 1902. Accordingly, it is said that it is recognized by the Argentine state's own documents. Nonetheless, the Paichil Antriao community explains that over the years such title has been disrespected and they have been forced to move further and further to the border of the land.

In 2007, Ginobili filed a lawsuit seeking a declaration that his title was legitimate and no one else had any claims to the land. The suit however brought an outrage to the indigenous peoples because Ginobili’s lawyers used the argument that the Mapuche people never existed in Argentina (only in Chile) and, thus they did not have status as Indigenous Peoples at all. Therefore the lawyers argued that the Paichil Antriao Community could not claim the lands to be their own because they did not exist in Argentina; in other words they did not have any legal standing.

In 2011, an appellate court in actual fact ordered that the Mapuche community of Paichil Antriao to be added to the lawsuit, This was followed by a statement given by the Inter-American Commission on Human Rights of the Organization of American States granting precautionary measures to the community and instructing Argentina to “take steps to allow the Mapuche people to reach sacred sites on the land and to protect the lives of those in the community who had been displaced due to the conflict.”

It is good to note that ILO Convention 169, Indigenous and Tribal Peoples Convention, 1989 was ratified by Argentina on 2000. Having a look at Article 16 it clearly prohibits the eviction of indigenous peoples:

Article 16
1. Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy.

Also it is also noticeable

Article 17
1. Procedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected.

wish you were here (me too!)

In 2012, the human rights organization, Observatorio de Derechos Humanos de Pueblos Indígenas (ODHPI), announced that it will assist in the defense of the Mapuche community against the lawsuit filed by Ginobili. In fact, last week, ODHPI’s lawyer, Emma Cabeza, said that a presentation was made ​​in court answering the position of the community that claims to have possession of the land.

This story continues…hopefully there will be a happy ending for all parts involved.I said so because Mr Ginobili also appears to be a victim. He asserts that when he bought the land he did not know about any community leaving in the land. Moreover, ODHPI’s director, Juan Manuel Salgado, mentions that Mr Ginóbili bought the land from Joseph Salamida, a local official appointed by the dictatorship, who in the past had seized various lots of land. Thus, we could say that in a way Mr Ginobili is suffering from legally buying an illegally obtained land by a third party.

Sources here, here and here.

The more things change...

There is another new blog on indigenous peoples that started at the end of December 2011, just like TK Totem. Now as TK Totem is trying to get the word out about itself, and let people know it’s here, some people might think it is a bit mad to highlight another indigenous rights blog. I myself do not see blogs in competition—and at any rate, I would be remiss not to shout out about the blog at www.LastRealIndians.com.

It is filled with dynamic posts, fresh points of view, and well-written perspectives. One post in particular caught my eye, and that was the one about “Vine and the Divine.” The blogger, Denny Gayton, discusses the worth of the work of the late Vine Deloria, Jr. There is very little I can add to what has been written; only to say that if you are not familiar with Vine Deloria, Jr and his work, and if you have an interest in indigenous rights, you cannot afford to overlook his work.

I have a well-worn copy of “Behind the Trail of Broken Treaties: An Indian Declaration of Independence” ( at this link here) on my desk. The concluding chapter discusses the importance of reinstating a treaty process between the indigenous peoples in the United States and the United States government. His arguments for the need for this resonate with the arguments being made by the Corroboree for Sovereignty group in Australia ( the subject of this blog post).

“Behind the Trail of Broken Treaties” was written in 1974. A great deal has changed since then—but a number of issues still persist as well—as shown by the parallels that can be drawn from Vine Deloria’s arguments and the current position of the Corroboree for Sovereignty.

Written by Sarah Sargent.

The Aboriginal Embassy, Protests, Rights and the Constitutional Referendum

Sarah’s post about the protests in Australia around Australia Day – a day which several Aboriginal leaders refer to as “Invasion Day” – brings forth the issue of the relationship between indigenous peoples and settler societies. If, on the one hand, countries like New Zealand, Canada and the US have treaties whereby the indigenous peoples “ceded” their lands (the validity of that consent is the subject of much controversy), most countries in Latin America and Australia (as well as, to the best of my knowledge, Scandinavian countries) do not have such formal arrangements, and have attempted to establish their rapport with indigenous peoples in a more organic way as of late. Sure, followed by centuries of invasion, decimation and oppression, but now seemingly willing to genuinely achieve positive balance in indigenous peoples – settler societies relations in a non-assimilationist fashion.

But not all is this clear-cut, of course. Perhaps because Australia is the one English-speaking country where there are no Treaties, Aboriginal peoples have – and rightly so, I believe – chosen to treat the settler society as a guest in their country, or to see themselves as not Australians (to the extent “Australians” are the descendants of European colonizers). Hence the embassy, which has been around for 40 years. But a lot of this might change, should the referendum to amend the Constitution pass. Sure, Tony Abbott’s – the opposition leader in Australia – remarks were unfortunate, to say the very least, but there might be something to them. If the Australian Constitution aptly recognizes Aboriginal and Torres Strait Islander peoples, then what role is there for an embassy, at least bearing the name of “Embassy”? Of course, the Aboriginal cause will not have achieved every single one of its goals with the mere passage of a constitutional amendment, but the core objective of its cause will need to be fundamentally reshaped, and it might be time to start considering that, while at the same time keeping putting on pressure for referendum.

Patrick Dodson’s (one of the members of the Expert Panel that produced the report released last week) op-ed piece published today (here) is a reminder of what is really at stake, and how one should not be detracted by the single violent incident of an otherwise remarkably peaceful and lasting protest – the Aboriginal Embassy.

Written by Lucas Lixinski

The Corroboree for Sovereignty, the Treaty of Waitangi and Unresolved Questions in International Law

There has been a great deal in the news about Australia Day—26 January—and the protests by the Aboriginal Peoples. In the swirl of these events, other long-standing protests have been overlooked. These other groups of protestors raise claims about sovereignty, the need for treaties, and for re-examining the relationship between the Aboriginals and the government. It is true as well that there is a proposed change to the Australian Constitution, which has been discussed in the blog post by Lucas, but it does not address the deep-seated and persistent issues that are raised by these other protests.

This article here from the Canberra Times notes two other protests, the Corroboree for Sovereignty and a 40 year long tent embassy:

“The three-day Corroboree for Sovereignty, which will run until tomorrow, is being timed to coincide with the 40th anniversary of the Aboriginal tent embassy's establishment in Canberra.”

More information on the Tent Embassy and the Corroboree for Sovereignty can be found at this link. One of the issues put forward is the demand for a treaty between the Australian government and the Aboriginal Peoples. Australia stands in contrast to its near-ish neighbour, New Zealand, in respect of how the relationship between the indigenous peoples and European colonisers was shaped. Australia saw the development of the doctrine of terra nullius, translating literally to “empty land.” In other words, the land was treated as if no one was there—at least no one that the colonisers wanted to or felt obliged to acknowledge. New Zealand, on the other hand, has the Treaty of Waitangi (here is a link to information on the treaty) that governs the relationships between the indigenous peoples of New Zealand and the government. The Treaty is recognised and in effect today. In 1975, an Act was passed that established the Waitangi Tribunal ( link to legislation here).

As explained on the Tribunal’s website, http://www.waitangi-tribunal.govt.nz/, “The Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Maori relating to acts or omissions of the Crown that breach the promises made in the Treaty of Waitangi.” In respect of claims made to the Tribunal, it “ has to decide whether, on the balance of probabilities, that claim is well founded. Where the Tribunal finds that such is the case, it may recommend to the Crown means by which the Crown can compensate the claimants, remove the prejudice, or prevent similar prejudice happening to others in the future.”

This is an important mechanism for the recognition and enforcement of Treaty rights—something that is unique in the landscape of treaty rights, sovereignty claims and relationships between indigenous peoples and governments. The UN Declaration on the Rights of Indigenous Peoples provides for the recognition of treaties in Article 37,

“Article 37
1. Indigenous peoples have the right to the recognition, observance
and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other constructive
arrangements.
2. Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.”

But the article and the Declaration are silent on how and where these treaties are to be enforced. Are these a matter of international or domestic jurisdiction? And where are indigenous peoples to go with claims of sovereignty—such as those raised by the Corroboree for Sovereignty—and demands for treaties where none currently exist? If the state is unwilling or its responses deemed inadequate, are there grounds for some sort of international claim? And if so, on what basis and where? These and many other questions rise to the fore when considering the claims of the Corroboree for Sovereignty, and the contrasts with treaty arrangements in New Zealand. Whilst many gains have been made in international law for the recognition of the rights of indigenous peoples, many other questions remain unresolved and unanswered.

Written by Sarah Sargent.

Save the date!

A goody bag comes in your way! It is full of different topics that cover indigenous peoples. From language to land and from human rights to traditional knowledge we will be able to see all these topics under one roof.

Here is what Dr Alexandra Xanthaki says:

Brunel Law School in collaboration with the UN Expert Mechanism on Indigenous Issues is organising an Expert Workshop on Indigenous Languages and Cultures at Brunel University on the 8th-9th March 2012. The Workshop aims to contribute to the Annual Report of the Expert Mechanism, which will be on this same topic.

The themes that will be discussed in the conference include:

* An overview of indigenous peoples’ right to culture under international human rights law
* Indigenous peoples’ rights to language
* Indigenous peoples’ cultural self-determination and autonomy
* Indigenous peoples’ right to culture and lands, territories and resources, including reparations
* Custom, human rights and justified limitations
* Indigenous peoples’ traditional knowledge and traditional cultural expressions
* Indigenous intellectual property rights
* indigenous identities and spirituality

Speakers include:

Elsa Stamatopoulou (Former Chief of the Secretariat of Permanent Forum on Indigenous Issues)
Prof. Julian Burger (Former Chief of UN Minority and Indigenous Unit, currently Essex University)
Prof. Siegfried Wiessner (St Thomas Law School, US)
Prof. Rene Kuppe (University of Wien)
Dr Federico Lenzerini (Sienna University)
Prof. Samson (Essex University)
Prof. Paul Havenmann (Institute of Commonwealth Studies, University of London)
Dr. Robert Dunbar (University of Aberdeen)
Dr. Damien Short (Institute of Commonwealth Studies, University of London)
Prof. Joshua Castellino (Head of Department, Middlesex University)
Dr. Marilena Alivizatou (UCL)
Prof. Sonia Harris-Short (University of Birmingham)
Dr. Susan Aikmann (University of East Anglia)
Prof. Graham Dutfield (University of Leeds)
Dr Ghanea-Hercock (Oxford)
Prof. Marie-Benedicte Denbour (University of Sussex)
Dr. Kristin Hausler (British Institute of International and Comparative Law)

Definitely, the team that was put together is of some notoriety in the area of Indigenous Peoples and hopefully you can be there –it’s a date!

not this type of date!

Anyone interested to attend can email Dr Alexandra Xanthaki at alexandra.xanthaki@brunel.ac.uk.