Opportunities for protecting biocultural heritage in national policies
Peru: Amaranth in the Potato Park
Although national legislation in Peru does not formally recognize the concept of indigenous biocultural heritage, or of indigenous conservation territories/areas based on this concept, it recognises some rights that can help communities move forward with establishing indigenous biocultural heritage territories.
The law recognises indigenous communal land rights, and the Constitution of Peru permits a certain level of autonomy within communal lands, including the right to govern in accordance with customary law. The Constitution recognises and protects the Andean indigenous legal system, while some national laws (eg on exchange of goods, native and campesino communities and biodiversity conservation) recognise Quechua customary laws.
Peru’s ‘Regime for Protecting the Collective Knowledge of Indigenous Peoples related to Biological Resources’ (Law 27811) recognises collective rights over traditional knowledge. It requires the pior informed consent from communities before accessing traditional knowledge, and benefits from using it are to be shared fairly and equitably. However, it only protects traditional knowledge through commercial contracts, rather than protecting it for local livelihoods and wellbeing, and does not recognise communities’ rights over associated biological resources.
The Law of Biodiversity (Law 26839) recognizes that the knowledge, practices and innovations of communities are part of their cultural heritage, and such innovations can include traditional crop varieties.
In addition, Peru has ratified ILO Convention 169, which provides a general legal framework for indigenous rights. Peru has also endorsed the UN Declaration on Indigenous Peoples’ Rights.
Policy threats: The US-Peru free trade agreement and agricultural subsidies
The US-Peru Free Trade Agreement (2006) allows traditional knowledge and genetic resources to be patented, and commits Peru to make ‘all reasonable efforts’ to begin patenting plants and plant material. This goes against Decision 486 of the Andean Community, which prohibits patents on plants. Furthermore, the free trade agreement does not require patent applicants to disclose the origin of plants or obtain authorisation before using traditional knowledge, which contradicts Andean Community patent regulations.
The free trade agreement also led to approval for a new ‘Law to Promote the use of Modern Biotechnology in Peru’, which allows GMOs to enter Peruvian territory. This law replaces existing legislation which stressed the risks of GMOs.
Agricultural subsidies in Peru have flooded markets with subsidised farm goods, and reduced market access for indigenous communities and their diverse traditional varieties.
Legal protection at local level
In response to this national policy context, the Cusco government has introduced two Regional Ordinances. The first, passed in 2007, declares the department of Cusco a GMO-free zone in order to safeguard its rich native crop diversity from transgenic contamination (010-2007-CR/GRC.CUSCO). The second (2008) aims to combat bio-piracy in the Cusco region (048-2008-CR/GRC.CUSCO).
These laws were promoted by a campaign led by the NGO ANDES, the Potato Park and other indigenous communities, who argued that threats to biological and cultural diversity would also affect tourism. They were assisted by an indigenous MP, and participation of ANDES in an advisory committee of the Cusco government.
Indigenous territories, congresses and MPs
Comunidad Embera, Panama
Indigenous people in Panama have gained significant recognition for their rights in national law. In 1920, the Kuna won their war against the state and were able to insert some provisions into the Constitution and Peace Treaty that followed. They then gained professional education (with support from the left wing military government of the time).
In 1972, the Constitution of Panama established many new rights for indigenous communities. The institution of the ‘Comarca’ or indigenous territory is one of the fundamental rights of the Constitution, which establishes that the “Law will be able to create other political divisions whether to subject them to special regimes or for reasons of administrative convenience or public service.”
The Third Chamber of the Supreme Court of Justice of Panama recognises that the ‘comarcas’ are independent political organizations, with their own political structures called General Indigenous Congresses. These constitute independent indigenous governments, represented by traditional authorities. A ‘comarca’ is a special political division of the Panamanian territory, governed according to the law that creates it and the norms, customs and cosmovision of its indigenous people.
There are 6 indigenous MPs in Panama — approximately proportional to the indigenous population (10 per cent). There is also a Commission on Indigenous Issues, which gives indigenous people more power in Parliament. The power of indigenous people in Panama is partly due to their relatively high population in a small country.
The territories and congress of the Kuna and Embera-Wounaan
The comarca of Kuna Yala is one of five indigenous comarcas in Panama. The Kuna have had their comarca since 1938, and their own Kuna General Congress, which has been strengthened over the years, predates the Spanish conquest of 1492.
During the 1990s, the Kuna Congress developed the Fundamental Law of Kuna Yala to regulate activities in the Kuna territory and its 49 communities. This Law also established the Congress of Kuna Culture, responsible for protecting, conserving and promoting cultural heritage.
Although the Kuna Law is not fully recognised by the government, the Kuna have managed to get bits of it inserted into national laws. The Congress provides an interface with the government and has enabled the Kunas to leverage power (it has a permanent office in Panama City).
The Embera Wounaan have had part of their ancestral territories legally recognised, but parts were left out until recently. In December 2008, a new law was approved—Law 72—“Which establishes the special process for the legislation of the collective territories of indigenous peoples which are not inside the comarcas.” This enabled the Embera-Wounaan to gain legal title for all their territories and formally establish their own indigenous authority and laws.
Traditional knowledge protection
The Political Constitution of Panama establishes that the State recognises and respects the ethnic identity of national indigenous communities, including their cultural elements and scientific, artistic and spiritual knowledge, and their knowledge about biodiversity use.
In 2000, Law 20 introduced a Special Regime on the Protection of Indigenous Collective Intellectual Rights over Culture and Traditional Knowledge. This law protects traditional knowledge through a system of registration. However it does not explicitly cover traditional knowledge related to biodiversity. This gap is a concern for indigenous people, given the increase in bioprospecting and unauthorised use of traditional medicine. The Kuna and Embera-Wounaan have developed a community protocol for research on biodiversity and traditional knowledge in indigenous territories, and are seeking its recognition in Law 20.
Executive Decree No 257 of October of 2006, which regulates article 7 of the General law of the Environment (1998), establishes that contracts for access to genetic or biological resources located in indigenous communities (whether in or outside indigenous ‘comarcas’) will have to include free prior and informed consent and must indicate the regime of intellectual property that will be used. The contracts must also include the economic benefits that derive from the investigation. This means that research on genetic resources or biodiversity on indigenous territories and on related indigenous knowledge cannot be conducted without permission of indigenous congresses or other appropriate organisations.
Encroachment on indigenous territories
The main threats to indigenous biocultural heritage in Panama are invasions of indigenous territories by loggers, hunters, farmers and tourism companies, particularly where communities have lacked legal title. Panama’s law on agrarian reform has encouraged migrants searching for new land to encroach on indigenous territories. They deforest the land for cattle and agriculture, because land can only get property title if it serves a social function, ie. if it is being cultivated or grazed by cattle. In several cases, disputes with non-indigenous peasant farmers has handed over indigenous land to non-indigenous farmers.
Legal land titles have reduced encroachment on indigenous territories and loss of traditional knowledge. For the Kuna, the main threat has been from development plans for education, health and tourism that are not in tune with customary values and norms.
Traditional knowledge-related policies provide some protection
Kenya: Maasai dryland forest
A policy framework on traditional medicine and medicinal plants has been developed by an Inter-Ministerial Committee under the Ministry of Planning and National Development. However, this policy has not really dealt with related cultural issues.
A new policy on ‘Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions’ has been developed by a taskforce under the Attorney General’s Office, which places more emphasis on customary institutions. The taskforce has now come to an end and it is unclear how its report will be implemented.
The Environment Management and Coordination (Conservation of Biological Diversity, Access to Genetic Resources and Benefit Sharing Regulations (2006)) deal with access to genetic resources and benefit-sharing, but do not specify how to obtain prior informed consent for access to traditional knowledge.
These policies can help communities to protect their rights over traditional knowledge, but they do not explicitly recognise customary rights over biological resources. There is also a lack of coordination between the different government initiatives on traditional medicine, and some duplication of effort.
Furthermore, there has been an attempt to make the traditional healthcare system subservient to the modern healthcare system, and subject traditional health practitioners to the mainstream medical regulatory system, rather than developing a parallel traditional healers’ system. If certification of traditional medicines is introduced according to scientific standards, many herbalists will not be able to meet them.
Customary laws and collective rights are partially recognised
National law in Kenya recognises the application of customary law, but sets out conditions for its application by Kenyan courts. “The High Court and all subordinate courts shall be guided by African Customary Law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay” (the Judicature Act).
The new Kenya Constitution, promulgated on 27th August 2010, presents opportunities to explicitly address the recognition of collective rights and the protection of traditional knowledge. For example, the Constitution defines community land; introduces the terms indigenous knowledge, genetic resources and biological diversity, and intellectual property in the utilization and management of the environment; and expressly provides for communal property rights.
Conservation policies have weakened biocultural heritage
Since the start of colonial rule in the 1890s, most natural forests in Kenya have been gazetted by the state thus diminishing the roles for traditional institutions, indigenous people and adjacent communities in their management. Four sacred Kaya forests of the Mijikenda have been gazetted as Forest Reserves and put under the control of the Kenya Forest Service. In 1992, 37 kaya forests were gazetted as National Monuments by the National Museums of Kenya (NMK) under the Antiquities and Monuments Act, in response to exploitation by non-Mijikenda. This created a partnership management scheme.
In both cases, however, the Mijikenda perceived ownership to have transferred to the government, which encouraged over-exploitation of resources. Some sections of the sea were also designated as marine parks excluding or minimising traditional management. The Maasai are also experiencing a steady take over of communal land for private use, mainly tourism.
Alienation of communities from their heritage has had significant impacts on traditional livelihoods and knowledge. At the same time, traditional authorities have been invalidated and replaced by state appointed leaders, thus weakening traditional governance systems.
Recognition of scheduled tribes and village institutions
India: Yanadis on the way to forest
There are provisions in the Constitution of India to safeguard the special tribal situation. Article 244 of the Constitution provides for the administration of “Scheduled Areas” in accordance with the fifth and sixth schedules. Article 46 declares that the state shall promote with special care the educational and economic interest of the scheduled tribes and protect them from social injustice and all forms of exploitation. The Tribal Welfare Department was instituted for the protection and advancement of Scheduled Tribes.
The Panchayat Raj (Extension to Scheduled areas) Act 1996 – PESA - offers more control of resources to local communities. It provides that the gram sabha (village authority) is empowered to safeguard the traditions and customs of the people, their cultural identity, community resources and customary mode of dispute resolution.
Under this legislation, the gram sabha has the power to approve plans, programmes and projects for social and economic development. It has gained ownership over minor forest produce; and is empowered to prevent alienation of land. The constitution and consent of the Gram Sabha is mandatory before making acquisition of land in scheduled areas. In practice however, these provisions are often overlooked, and there has been little official effort to raise community awareness about them.
Recognition of customary laws
The Darjeeling Gorkha Hill Council, an autonomous council under the West Bengal state (eastern Himalayas), is likely to attain Sixth Schedule status soon, which will authorise it to enact its own laws on certain matters. Experience in northeast India, where other autonomous councils function, shows that most often laws enacted by such councils are closer to the customs, values and customary laws of the place.
The Constitution of India accords a special status to the state of Sikkim where the customary laws of the state are already recognized and upheld by the court of justice. Sikkim State Government has recently declared itself a completely organic state and hence the entire state and political machinery is gearing in this direction with a lot of field level meetings being organised. The Agriculture Minister of the state is very keen on conserving and promoting seeds from different traditional crops.
However, despite several constitutional and statutory provisions recognising customary laws and practices (including traditional knowledge), sectoral laws, policies and schemes do not adequately recognise customary rights and laws, and precedents show that the higher judicial bodies in India do not recognise them either.
Rights over traditional knowledge and biodiversity
India’s National Biodiversity Act (2002) recognises the rights over traditional knowledge. It also provides for local Biodiversity Management Committees to be established, in addition to state and national biodiversity institutions. However, its implementing Rules only give communities the authority to develop community registers of traditional knowledge, and there is hardly any participation by community representatives in the biodiversity institutions set up to implement the Act and decide about access and benefit-sharing, including Biodiversity Management Committees, decisions. Most Indian states do not yet have functioning Biodiversity Management Committees, even though they may be constituted on paper.
The Protection of Plant Varieties and Farmers Rights Act 2001, was widely hailed as providing protection for farmers’ traditional varieties. The Act recognises the farmer as a cultivator, conserver of the agricultural gene pool and breeder of successful varieties. However, protection of farmers’ varieties is only possible through registration, and the Act does not specify the system or criteria for registration.
So it is very difficult for farmers to apply for registration and no farmers’ variety has yet been registered. The criteria of distinctiveness, uniformity and stability used for modern varieties are not suitable for farmers’ varieties. The Act has only vague provisions on benefit-sharing and farmers are not represented on the Plant Variety Protection authority. Given that the Act protects plant breeders’ rights, but not farmers, it effectively undermines farmers’ rights.
India’s Seed Bill, proposed in 2004, is likely to further curtail the rights granted to farmers in the Protection of Plant Varieties and Farmers Rights Act. This is because it makes it compulsory to register all farmers’ varieties. The bill also proposes to prohibit exchange of unregistered seeds, a traditional practice still being followed in large parts of the country.
The Tribal Forest Rights Act
This Act recognises the rights of tribal people and other forest dwellers who have resided in forests for generations but whose rights were not be recorded when state forests were consolidated. It aims to ensure that such communities have the legal right to own, collect, use and dispose of minor forest products including medicinal plants. It authorises the gram sabha to start determining the nature and extent of individual and community forest rights. However, in practice, implementation has been hampered by failure of the forest department and forest rights committees to allow the gram sabhas to play this role.
In Andhra Pradesh, the forest department has granted rights to committees it controls, instead of to gram sabhas. And recognition of tribal people’s land rights is conditional on proving forest land has been cultivated for the last 10 years. This makes it difficult for tribal people such as the Yanadi, who were evicted from their forest land decades ago and who are gatherers and forest dwellers rather than farmers. Furthermore, it is difficult to prove the customary rights of communities as the government has no record of these rights. There is also concern that the government is only recognising individual, not collective tribal rights.
Competing trends in legislation on plant genetic resources and traditional knowledge
China: Farmers analysing local maize varieties
China ratified the CBD in 1992, and has since worked on conserving plant genetic resources , and traditional knowledge, and on access and benefit-sharing. There is no specific legislation on protecting traditional knowledge, farmers’ rights or access and benefit-sharing yet, but these issues are included in China’s National Biodiversity Strategy and Action Plan and are increasingly being discussed, with a view to developing concrete elements.
In 1999, pushed by economic interests and trade pressures, China signed up to the International Convention for Protection of New Varieties of Plants (the UPOV Convention, 1978 version), and in 2001 became a WTO member. Under these competing international regimes, the domestic legislative framework has to balance the interests of diverse sectors and groups, in order to support sustainable development.
There are two competing trends in legislation on plant genetic resources and traditional knowledge in China. On the one hand, people working on access and benefit-sharing arrangements prefer to protect farmers’ and communities’ collective right through mechanisms like prior informed consent and mutually agreed terms. On the other hand, IPR supporters work for an industry-oriented and individualized intellectual property regime. And so far this approach has dominated, pushing collective rights to the sidelines. There is a risk that all plant genetic resources and traditional knowledge in China will be patented, and that control over access, use, and benefit sharing will be individualized.
To date, agricultural development policies and laws have done little if anything to recognise farmers’ own seed systems, let alone support them. However, participatory plant breeding, facilitated by the Centre for Chinese Agricultural Policy (CCAP), has involved experimenting with how to protect traditional knowledge and ensure fair access and benefit sharing. This has gradually generated a certain common understanding for policy influence in support of local level practices.
Without legislation to protect farmers’ rights, current legislation on Plant Variety Protection (1997) and the Seed Law (2000) favour the rights of plant breeders. Indeed, under China’s Regulation on Plant Variety Protection, new varieties developed jointly by breeders and farmers can only be registered in the name of a plant breeder or breeding institute.
Opportunities for participatory plant breeding, benefit-sharing and agrobiodiversity conservation
The following laws and policies offer some opportunities and space to support participatory plant breeding and agrobiodiversity conservation efforts at local level. The CCAP team has studied these regulations and strategically combined their objectives with participatory plant breeding practices for further in-depth experiments in access and benefit-sharing and policy discussions with field and policy partners:
Rules for Management of Genetic Resources of Agricultural Crops (2003). The emphasis in these rules on identifying, registering and conserving genetic resources for food crops is closely linked to participatory plant breeding practices.
Outline of National Biological Species Resources Conservation and Utilization Plan (2007). The national database on biological resources and traditional knowledge can provide useful instruction for proposed registration of plant genetic resources. For regions rich in such resources and associated traditional knowledge, such as the South West, there is some space to make use of this plan.
Outline of the National IP Strategy (2008). Some access and benefit-sharing considerations have been included in the national intellectual property strategy.
National Bio-diversity Protection Strategy and Action Plan (2009): This emphasises prior informed consent mechanisms and protection of traditional knowledge, so valuing farmers’ rights over their genetic resources.
The revised Patent Law (2009): The requirement on the disclosure of origin has opened a window for change, in terms of access and benefit-sharing.
A law on farmer cooperatives was approved in October 2006 and began to be implemented in 2007. This is helping to increase support for collective economic activities amongst for small-scale farmers and farmers’ organisations.
Constraints to participatory plant breeding, benefit-sharing and agrobiodiversity conservation
Regulation on Plant New Variety Protection (RPNVP) (1997). This protects plant breeders’ rights through an exclusive intellectual property regime that conflicts with the concept collective ownership for genetic resources. The regulation prevents[yes?] farmers from freely using germplasm from protected varieties[or spell out what PVP is].
Seed Law (2001): The law restricts farmer in producing seed based on hybrids, yet leaves space for public breeders to commercialise farmer varieties (often produced with varieties ‘borrowed’ from local farmers). This conflicts directly with breeders’ public roles, for example in advancing food security and rural development.
Science and Technology Progress Law (2008). This law fosters commercialisation activities by[yes?] public institutes/breeders by recognising intellectual property ownership by public sector agencies. This has led to public good (common pool) resources becoming privatised by the public sector.
In general, these three legal frameworks have constrained the process to mainstream participatory plant breeding and related access and benefit-sharing. They have caused conflicts in public institutes between public and market roles as the privitisation they favour puts public breeders’ interests before farmers’ interests. This removes public breeders’ incentives for serving the public interests of farmers and sustainable natural resource management. This legislation and policy has, at the same time, made the private sector less competitive.