Transcript Preston Hardison Tulalip Tribes WIPO IGC 24 April 22, 2013 Taking UNDRIP Seriously INDIGENOUS PEOPLES HAVE THE RIGHT TO MAINTAIN, CONTROL AND DEVELOP THEIR CULTURAL HERITAGE.

Preston Hardison
Tulalip Tribes
WIPO IGC 24
April 22, 2013
Taking UNDRIP
Seriously
INDIGENOUS PEOPLES HAVE THE RIGHT TO MAINTAIN, CONTROL AND
DEVELOP THEIR CULTURAL HERITAGE
Indigenous Peoples are a subject of international law and aspirations
1. UNDRIP (purposely) does not define who is Indigenous
2. Purpose was to give States and Indigenous Peoples the flexibility to work
out their own constructive agreements in national contexts
3. Purpose was not to allow States the flexibility to circumvent the intentions of
UNDRIP to promote State recognition of Indigenous Peoples where they
occur and their rights
4. Martinez Cobo (1986) Study on the Problem of Discrimination against
Indigenous Populations (E/CN.4/Sub.2/1986/Add.4) provides a “hallmark
definition” that lists a number of criteria for identifying Indigenous Peoples
5. Being “autochtonous”, or “born from the earth of a place” is only one
criteria
Indigenous communities, peoples and nations are those which,
having a historical continuity with pre-invasion and pre-colonial societies that
developed on their territories,
consider themselves distinct from other sectors of the societies now prevailing
on those territories, or parts of them.
They form at present non-dominant sectors of society and are determined to
preserve, develop and transmit to future generations their ancestral
territories, and their ethnic identity, as the basis of their continued existence
as peoples,
in accordance with their own cultural patterns, social institutions and legal
system.
FAO Policy on Indigenous and Tribal Peoples (2010)
• Priority in time, with respect to occupation and use of a specific territory;
• The voluntary perpetuation of cultural distinctiveness, which may include
aspects of language, social organization, religion and spiritual values, modes
of production, laws and institutions;
• Self-identification, as well as recognition by other groups, or by State
authorities, as a distinct collectivity; and
• An experience of subjugation, marginalization, dispossession, exclusion or
discrimination, whether or not these conditions persist.
FAO Policy on Indigenous and Tribal Peoples (2010)
The following principles have been identified as the core rights and values to
which indigenous peoples are entitled; these underlie the present policy:
• Self-determination [rights to self-governance and to freely pursue their destiny]
• Development with identity [right to dignity/to have their identity recognized]
• Free, prior and informed consent
• Participation and inclusion [procedural rights/procedural justice]
• Rights over land and other natural resources
• Cultural rights
• Collective rights
• Gender equality
2003 Convention for the Safeguarding of the Intangible Cultural Heritage
Intangible Cultural Heritage means the practices, representations,
expressions, knowledge, skills – as well as the instruments, objects, artifacts
and cultural spaces associated therewith – that communities, groups and, in
some cases, individuals recognize as part of their cultural heritage. This
intangible cultural heritage, transmitted from generation to generation, is
constantly recreated by communities and groups in response to their
environment, their interaction with nature and their history, and provides
them with a sense of identity and continuity, thus promoting respect for
cultural diversity and human creativity. For the purposes of this Convention,
consideration will be given solely to such intangible cultural heritage as is
compatible with existing international human rights instruments, as well as
with the requirements of mutual respect among communities, groups and
individuals, and of sustainable development.
Self-Determination
1. Jus cogens / ius cogens / peremptory norm
2. United Nations Charter appears as a principle of comity between nations
3. Respect for the principle of equal rights and fair equality of opportunity
have the right to freely choose their sovereignty and international political
status with no external compulsion or interference
4. Declaration on the Granting of Independence to Colonial Countries and
Peoples (UN GAR 1514 (XV), 14 December 1960) extended to colonial
countries and peoples
5. UNDRIP Article 2 recognizes the status for Indigenous Peoples
UNDRIP Article 31
1. Indigenous peoples have the right to maintain, control, protect and
develop their cultural heritage, traditional knowledge and traditional cultural
expressions, as well as the manifestations of their sciences, technologies and
cultures, including human and genetic resources, seeds, medicines,
knowledge of the properties of fauna and flora, oral traditions, literatures,
designs, sports and traditional games and visual and performing arts. They
also have the right to maintain, control, protect and develop their intellectual
property over such cultural heritage, traditional knowledge, and traditional
cultural expressions.
2. In conjunction with indigenous peoples, States shall take effective
measures to recognize and protect the exercise of these rights.
UNDRIP Article 19
States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain
their free, prior and informed consent before adopting and implementing
legislative or administrative measures that may affect them.
[FPIC, procedural rights, principle of procedural justice]
The Declaration must not, however, be viewed in isolation. In doing so, one
risks being distracted by discussions on the formal legal status of the
Declaration. It is critical to recognize that the Declaration is not only
important in itself, but is also significant because it reflects – in broad terms – a
general global consensus on indigenous peoples' rights that is in significant
part incorporated into contemporary international law.
[Although State sovereignty and Indigenous self-determination are distinct
sets of rights, they are] “rooted in the same rationale: that peoples should be
allowed to be in control of their own affairs under conditions of equality.”
[right to non-discrimination]
Statement by Professor James Anaya, Special Rapporteur on the rights of
indigenous peoples to the 23rd Session of the IGC, 4 February 2013
The proposed international instrument or instruments
1. Encompasses multiple peoples, some governed fully by States, and others
possessing inherent human rights of self-determination under their own selfgovernance structures
2. Contains elements that are potentially in conflict
Intangible cultural heritage as a human right
Inherent rights, not granted by States
Intangible cultural heritage as an intellectual property right
Civil right / public right
Public domain
Balance between private and public interest
“Protection” of Traditional Knowledge
1. Extinction / Common Heritage of Mankind
2. Exclusion when granting of property rights to others
3. Any disclosure to outsiders
4. Erroneous granting of patents through prior art/public domain
5. Any use without FPIC
6. Any commercial use without FPIC
7. Any commercial use
8. Any use against customary law - Stewardship obligations
“Public domain”
1. IP Concept, primarily copyright
2. Assumes IP law holds supremacy over the regulation of TK – risk of
preemption as a granted right vs. respect for an inherent right and prejudicial
against sui generis rights
3. Assumes Indigenous Peoples lack control or self-determination over TK that
has been classified as being in the public domain
4. Some States have the ability to “claw back” materials from the public
domain: e.g. USA: Golan et al. v. Holder (2012) the Court upheld Congress’s
authority to withdraw works from the public domain and put them back
under copyright protection, in pursuance of obligations of the Uruguay
Round Agreements Act (URAA)(1994)
“National Treatment”
1. Comity through nearest equivalent
2. Few nearest equivalents in existing national laws
3. Extraterritorial recognition by states without Indigenous Peoples
4. No nearest equivalents in previous international IP laws that did not
consider traditional knowledge as either an IP or human right
5. States should not use lack of equivalent national treatment that recognizes
and respects rights to TK to circumvent the intentions of the instrument or
instruments
Databases
1. Should not be based on any notion of traditional knowledge in the public
domain when it applies to identifiable Indigenous Peoples
2. FPIC of Indigenous Peoples must be required for the design, governance
and implementation of any proposed database
3. Indigenous Peoples may prefer to manage and maintain their own
databases
4. The proposal to make the databases only available to patent offices is a
step in the right direction, but provides no security from corruption, theft,
hacking, leakage or changes in policy and law (flip-of-the-switch problem)
5. Customary law prevents much TK from entering databases
The traditional knowledge of Indigenous Peoples must be negotiated in it full
context, not just to solve IP problems
1. Risks of disclosure of unprotected traditional knowledge associated with
unprotected cultural resources/heritage
2. Patents are a rare, 20 year problem of unjust enrichment
3. Petty, non-monopolistic and unsustainable uses are a common and
potentially millennial problem that can dispossess Indigenous peoples of their
identity, fiduciary resources, cultural heritage and human dignity.