CONSEJO INTERNACIONAL DE TRATADOS INDIOS

International Indian Treaty Council

2390 Mission Street, Suite # 301

San Francisco, California 94110

email: www.treatycouncil.org

iitc@igc.apc.org

Food Agriculture Organization (FAO)

Commission on Genetic Resources

  for Food and Agriculture

Ninth Regular Session

Rome, 14-18 October 2002

Agenda item # Reports from international organizations on their policies, programs and activities on agricultural biological diversity

Thank you Mr. Chairman,

I wish to thank members of FAO and the distinguished members of the Commission on Genetic Resources for Food and Agriculture for extending an invitation to my organization to participate in these critical discussions regarding our relatives who are sacred to us, the plant and animal world. 

With the coming of western development, and in these contemporary times, traditional Indigenous Peoples from the four directions find themselves compelled to stand up and speak for the natural world; the plant people, the corn people, the rice people, or those that crawl, or the fish people, or winged people, and the four-legged people.  We the human people are considered the pitiful two-legged, and this is for obvious reasons.  Each of these peoples maintains their own sovereignty and place of existence and their right to live. 

Mr. Chairman, if this august body were to call every living 'thing' a people, such as the tree or the standing people, or the ant people, or the dog people, then we may be able to begin to see who our relatives are, and that we care for them and that we intend to protect them.  This is the way to understanding the web of life and why we should not break from this link that holds us in the universal balance.

The International Indian Treaty Council (IITC), is a United Nations non-governmental organization with consultative status in the Economic and Social Council since 1977.  The topics under discussion in the Commission's  proceedings specific to plant genetic resources are considered delicate and sensitive issues of grave concern to the continued way of life and survival of Indigenous Peoples. 

Much of the progress being made by the Convention on Bio-Diversity (CBD) for example, is looked at with suspicion and quiet reserve as they speak of protecting the biodiversity and those who helped bring it along, when actually it is promoting the access to these genetic resources.  To Indigenous Peoples all life forms are considered as sacred, with spiritual beliefs and includes ceremonies to celebrate the Creator's gift of life and in this case plants healing and sustenance elements.  Suffice to say it is not a matter taken lightly by Indigenous Peoples particularly when governments, and corporations, are talking about Traditional Knowledge, the comodifying of life forms, and the exploitation of natural resources. It is especially alarming while non-Indigenous peoples are strategizing a Global Plan of Action and assessing the State of the World's Plant Genetic Resources in order to thoroughly plunder and destroy knowledge accumulated over the millennia.

It is commonly known today that the majority of the resources of biological diversity in existence are to be found in the southern regions, or tropical countries.  Indigenous Peoples live in these areas but governments insist on denying this or fail to recognize Indigenous Peoples territories and rights to control their natural resources.  Terms such as "strategic raw materials" or “grown in the wild" (where Indigenous Peoples might have lived but had to retreat) reflect a quest for acquisition of genes of plants, animals and micro-organisms which would be used to develop new commercial food resources.  Mr. Chairman, it is a fallacy to refer to the materials sought by "bio-prospectors" as raw, or in a primitive stage of development since local farmers and Indigenous Peoples have improved and cared for them for thousands of years. For Indigenous Peoples' Traditional knowledge is the continuation of human development. 

The accumulation of traditional knowledge of plants is not attributed to any one person but rather these innovations have been made by communities in a collective manner over time.  This is why no one person can sell or benefit, or say that he is the owner of  'life'  because it belongs to the entire community.  Indigenous ceremonial plants and plant medicines from many regions of the world have been patented for commercial use

without the expressed consent or permission of the communities entrusted with their care. 

The theft and patenting of Indigenous Peoples' bio-genetic resources is facilitated by the Trade Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO).  Some of these plants which Indigenous Peoples have discovered, cultivated, and used for food, medicine, and for sacred ceremonies since time immemorial are already patented in the United States, Japan, and Europe.  A few examples of these are ayahuasca, quinoa, and sangre de drago in South America; Kava in the Pacific; turmeric and bitter melon in Asia.  Incredibly, even Indigenous Peoples' cell lines and genomes, harvested without prior informed consent, have been patented and are being marketed by international biotechnology companies in one of the fastest growing areas of the biotechnology industry. 

The IITC will be submitting documents to FAO pertaining to the patenting of wild rice in the USA where in the state of Minnesota at University of Minnesota, where the patenting and genetic engineering of traditional rice of the Ojibwe Indigenous nation is also in violation of treaty rights where gathering rights reserved by treaty are threatened by the genetic research conducted with wild rice. 

Indigenous Peoples access to and control over their biological diversity, traditional knowledge and intellectual heritage are threatened by the TRIPS Agreement.  IITC recommends to the Commission as a starting point for understanding these issues from a human rights based approach of the TRIPS Agreement can be found in UN document by the Sub-Commission on Promotion and Protection of Human Rights entitled “The impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on human rights, (E/CN.4/Sub.2/2001/13). 

Article 27.3 (b) of the TRIPS Agreement allows patenting of life-forms and makes an artificial distinctions between plants, animals, and micro-organisms, as well as between "essentially biological" and "non-biological" processes.  Indigenous Peoples maintain that these life-forms and life-creating processes are sacred and indivisable, and should not become the subject of private property ownership. 

The IITC and its affiliate organizations reiterate to this Commission that Article 27.3(b) of the WTO should be amended to categorically disallow the patenting of life-forms.  It should clearly prohibit the patenting of micro-organisms, plants, animals, including all their parts, including genes, gene sequences, cells, cell lines, proteins, and seeds.  It should also prohibit the patenting of natural processes, whether these are biological or micro-biological, involving the use of plants, animals and micro-organisms and their parts in producing variations of plants, animals and micro-organisms.  The TRIPS should ensure the exploration and development of alternative forms of protection outside the dominant western intellectual property rights regime. 

Mr. Chairman, such alternatives must protect Indigenous Peoples' knowledge, innovations and practices in agriculture, health care, and conservation of bio-diversity, and should build upon their methods, traditions and customary laws for protecting knowledge, cultural and intellectual heritage and biological resources.  A case in point, is just recently it was discovered that corn has been contaminated in Guatemala, and in Mexico by genetic modified corn pollen sweeping the countrysides.  IITC will continue to monitor the situation and report to members of this Commission on further new developments.  

Furthermore, Article 27.3(b) must be changed to insure that the protection offered to Indigenous and traditional knowledge, innovations and practices is consistent with the Convention on Biological Diversity (CBD) specifically in Articles 8(j), 10(c), 17.2, and 18.4, and the International Treaty on Plant Genetic Resources.  It should allow for the right of Indigenous Peoples and farmers to continue their traditional practices of saving, sharing and exchanging seeds, and cultivating, harvesting and using medicinal plants.  In addition, it should also prohibit scientific researchers and corporations from appropriating and patenting Indigenous seeds, medicinal plants, and related knowledge about these life-forms.  The principles of prior informed consent and right of veto by Indigenous Peoples should be respected.   

Currently, international intellectual property regimes are incompatible with the needs of Indigenous Peoples and developing countries, perpetuating inequalities.  As we see it intellectual property is an affront to traditional knowledge.  Indigenous organizations have brought attention to the fact that patent requirements for life-forms reduce Indigenous People's right to Self-Determination by reducing their ability to control their genetic and natural resources.  Some have suggested that national intellectual property legislation could be fashioned to recognize the collective rights of peoples also to "own" intellectual property, allowing Indigenous Peoples to collectively patent or make use of other intellectual property "protections".  But such an approach poses what, in most cases would be insurmountable cultural, practical and economic problems for Indigenous Peoples.  In addition, such "protections" would be useful only  for the duration of the patent, after which the genes, seeds or plants would become the "common heritage of mankind", available for economic exploitation by any and all, thereby extinguishing the ability of Indigenous Peoples to exercise their sacred responsibility to protect these natural resources.

From the perspective of Indigenous Peoples, sustainability and cultural integrity are integrally related.  As discussions on intellectual property and the meaning and impacts of  "benefit sharing" continue, Indigenous Peoples are unified about the need to implement international standards, which would recognize their inherent right to self-determination as a basis for the protection of their lands, resources and ways of life.  Central to this effort is the international initiative which seeks full adoption of the draft UN Declaration on the Rights of Indigenous Peoples.  The Draft Declaration is presently under discussion in the Commission on Human Rights.  It includes the recognition, without qualification, of the right of Indigenous Peoples to self-determination as the fundamental underpinning of all other rights and freedoms essential to their survival. 

Article 29 of the Declaration states that "Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property.  They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, and visual and performing arts".

Accordingly, the IITC recommends that members of this Commission receive an important document from the UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, and consider it in their deliberations.  The document, a working paper is titled "Indigenous Peoples' permanent sovereignty over natural resources" can be found in E/CN.4/Sub.2/2002/23. The study makes reference to the possibility of applicability to Indigenous Peoples and recommends that the principle of international law of permanent sovereignty over natural resources should be revisited as it affects Indigenous Peoples and in the countries they are living.

And finally, Mr. Chairman the IITC calls on members of the Commission to:

1.  Observe the principle of prior informed consent in all TK research;

2.  To facilitate the meaningful participation of the Indigenous Peoples in all levels of the

     development and implementation of mechanisms to legally register and protect TK;

3.  to recognize the protection of TK as the protection of Indigenous Peoples’ intellectual and cultural heritage, and that it cannot be discussed in isolation from Indigenous Peoples’ rights to their lands, territories and resources.        Thank you, All My Relations.