5.3 Shortcomings in existing access and benefit sharing models
Traditional knowledge and biocultural systems
Biocultural systems create, maintain and further develop traditional knowledge through a complex of elements
including languages, customary norms and practices, and traditional territories and resources. Current
intellectual property rights regimes understand traditional knowledge within the context of restricted, Western,
notions of property rights, which facilitate the commodification of Indigenous lands, traditional knowledge
and resources by separating them from the network of relations within which they are formed and operate.
Traditional knowledge is viewed as a discrete object, separate from the cultural and spiritual relationships and
the lands within which it is embedded. CBD derived access and benefit-sharing regimes generally follow this
line of thinking, even though the Convention itself allows for more sensitive and pluralist approaches.
The incorporation of traditional knowledge within alien and limited notions of property (e.g. public, private
or common property8) have, far from furthering the interests of indigenous and local communities, more
often than not succeeded in legalising acts of biopiracy. As a result, Indigenous Peoples’ cultural integrity
remains unprotected and adequate mechanisms for the equitable sharing of benefits derived from the use of
knowledge have yet to be developed. For Indigenous Peoples, experiences with ‘bioprospecting’ (as biopiracy
is often called by corporations and in free trade agreements) have proven that access and benefit sharing
is more a curse than a blessing. Thus far it has only provided them with limited ‘opportunities’ as rewards
for their knowledge, practices, innovation systems, and biodiversity stewardship, while these ‘goods’ are
subsequently used to generate colossal profits for third party actors (Sufian Jusoh, 2009).
Prior informed consent and mutually agreed terms
16
Perhaps reflecting its failure to accommodate the holistic nature of traditional knowledge and a preference for
working within externally determined parameters, the prevalent access and benefit sharing model has been
unable to deal justly with the issues of prior informed consent and mutually agreed terms. Arguably, this is
best illustrated by the fact that the Nagoya Protocol contains little more substantive detail or commitment than
was to be found in the CBD 20 years ago. Instead, the negotiation of benefit-sharing agreements continue to
be characterised by asymmetrical power relations that frequently lead to inter- and intra-community conflicts,
as well as creating uncertainty of governance, and in representation, amongst Indigenous Peoples.
The International Cooperative Biodiversity Group (ICBG)9 projects provide useful illustrations of this problem.
In Peru,10 an early project made use of a ‘know-how agreement’ with three federations representing Aguaruna
communities. Despite this interesting innovation, the project was criticised for its community-level approval
process; particularly the resulting conflict that emerged among the peoples of Aguaruna and Huambisa, which
resulted in the agreement only being signed by the Aguarunas. The relevance of a contract based approach
to a situation of clearly asymmetrically positioned parties, and more particularly the use of this approach in
the absence of any tailored national legal framework, was also questioned. Another ICBG project in Chiapas,
Mexico, faced strong criticism regarding its process for prior informed consent, the criteria for deciding who
would participate in the project, and the quality and quantity of benefits. The project was cancelled when
national institutions withdrew their support and Indigenous communities decided not to participate.11
Some of the arguments used to explain the failure of the above models are that they focused on the possible
types and amount of benefits while paying insufficient attention to the process and mechanisms for the
identification of and for the distribution of benefits among the involved communities.
A precondition for the minimally satisfactory operation of these schemes is that they be supported by
measures ameliorating the imbalance between the negotiating parties, and that the prior informed consent of
the communities be obtained from the beginning of the project (including in the planning phase).
8 For example in commons models or in intellectual property rights.
9 The International Cooperative Biodiversity Group is a program sponsored by the National Institute of Health (NIH), Biological Sciences
Directorate of the National Science Foundation and the Foreign Agriculture Service and Forest Service of the USDA created to commit
joint efforts to address issues of biodiversity conservation, pharmaceutical drug discovery, and sustainable economic development. For
more information about ICBG, see: http://www.fic.nih.gov/programs/research_grants/icbg/index.htm.
10 The Peru ICBG involved Searle, Washington University of St. Louis, Universidad Peruana Cayetano Heredia, The Natural History
Museum of Peru, Universidad de San Marcos de Peru and three local federations of Aguaruna People: FAD, FECONARIN and OCCAM.
11 For more discussion on ICBG in Chiapas, see “Bioprospecting. Can pharmaceutical research give back?” Cori Hayden. Harvard Review
on Latin American Studies. Flora and Fauna. Nature in Latin America. Winter 2005. In: http://drclas.fas.harvard.edu/revista/?issue_
id=27&article_id=813
Protecting Community Rights over Traditional Knowledge: Implications of customary laws and practices