by Teodora Zamudio

 

Table of contents of this file:

2.0        Overview – regional issues

2.1        Regional and national land use practices

2.2        Incentive measures  & Capacity-building measures

2.3        Repatriation of objects and associated information to communities of origin

2.4        Strategic planning for conservation and sustainable use of biological diversity

2.4.1 Ethnobotanical gardens (‘in situ’ experiences)

2.4.2 Botanical and ethnobotanical catalogues.

2.5        Legislative measures

2.7        Summary

 

 

 

2.0                    Overview – regional issues

Protecting and preserving the Traditional Knowledge of Indigenous people necessarily entails consolidating the fundamental axis of identity-territory-autonomy which allows the generation and perenniality of this knowledge. This trilogy is confronted with the dismemberment of indigenous territories through arbitrarily-defined administrative divisions, significant gaps in land tenure regulations with respect to ancestral forms of possession and management of natural resources. These are generally submitted to regulations that are incompatible with Indigenous peoples’ cultures, lifestyle and customary practices.

In addition, Indigenous people have to deal with other aspects such as legal measures related to intellectual property, and the equitable distribution of benefits derived from the access to such knowledge. These claims are intimately linked to other rights, such as: full participation; consultation and prior informed consent for any activity that takes place or affects their lands and territories; autonomy and self-determination in the exercise of their own decision-making; and their customary right of decision on the use of traditional knowledge among other goods.

At the end of the 20th century, Indigenous social and political movements achieved significant legislative goals regarding these issues.

Table 4. Indigenous people’s rights in the national jurisdictions

COUNTRY	Identity	Lands/Territory	Self Determination
ARGENTINA	It recognizes the ethnic and cultural preexistence of the Argentinian indigenous people National Constitución (1994)   Article 75, section 17	It recognizes the legal entity of their communities and the comunal property and possession of the lands they traditionally inhabited  National Constitucion (1994)   Article 75, section 17	It guarantees their participation in the decisions related to their interests National Constitucion (1994)    Article 75, section 17
BOLIVIA	A indigenous people (nation) is the human colectivity that descends from populations seated prior to the conquest or colonization, and that is within the present borders of the State; their members are identified by cultural history, organization, language or dialect and other characteristics, they maintain a territorial bond based on the administration of their habitat and their social, economic, political and cultural institutions and they recognize themselves like pertaining to the same sociocultural unit  Supreme Decree N° 23858  September, 9th 1994	It guaratees the rights of the indigenous and original communities on their communitarian territories of origin, incluiding their economic, social and cultural implications and the sustainable use of their renewable natural resources  National Agrarian Reform Service Act N° 1715. October, 18th 1996	The natural authorities of the communities will be able to exert functions of administration and application of the own norms, like alternative solution of conflicts according to their customs and procedures, whenever they are not opposite to the national constitution and the laws   National Constitution (1994), Article 171
BRAZIL	It recognizes the indigenous identity to those persons whom descend from the pre colombian inhabitants and identify themselves and are recognized as pertaining to an ethnic group with cultural characterization that distinguishes them from the rest of the national society. The indigenous communities are defined as the group of families of indigenous persons, living isolated from other national sectors or having social contacts with them, they are not integrated Indigenous People Status Act N° 2001 December, 19th 1973	It recognizes the rights on the lands that they traditionally occupy, which means inhabited with permanent character, fitting the exclusive fruition of the natural resources, the rivers and the existing lakes. Federal Constitution (1988). Article 231	It recognizes the social organization, the originary customs, languages, beliefs and traditions Federal Constitution (1988). Article 231
CHILE	It recognizes the Indigenous Community as ethnic group in one or more of the following situations: comes from a same familiar trunk; recognizes a traditional headquarter; habit or has inhabited indigenous lands in common, or come from a same old people. National Corporation for the Indigenous Dvelopment N° 19.253 (1993). Article 9	It recognizes the property on the historically occupied lands by the mapuche, aimara, rapa nui, atacama, quechua, colla,  kawárskhar and yamana communities, whenever their rights are registered in the Indigenous Lands Registry National Corporation for the Indigenous Dvelopment N° 19.253 (1993). Article 12	It creates the Commission for Development of the Pascua Island and its members were be elected by the indigenous inhabitants National Corporation for the Indigenous Dvelopment N° 19.253 (1993). Article 67
COLOMBIA	It recognizes as indigenous community or parcialities the group or set of groups of amerindian origin with identification with their native past, that maintain the characteristics, the uses and the own values of their traditional culture and own forms of government and social control which distinguish them of other rural communities Decree N° 2.655 (1988). Article 124	The indigenous reserves, the other indigenous communal lands and the lands where the indigenous communities were established or that constitute their habitat, will only be able to be adjudged to these communities and in quality of reserves (‘resguardo’ in the original) Political Constitution (1991). Article 63. Act N° 21 (1991.) Decree N° 2164 (1995). Article 3	In accordance with the Constitution and the laws, the indigenous territories will be governed by the indigenous councils conformed and regulated according to the uses and customs of their communities Political Constitution (1991) Article 330.
ECUADOR	It recognizes and guarantees to the indigenous people, the right to maintain, to develop and to fortify its identity and traditions in spiritual, cultural, linguistic, social, political and the economic thing. Political Constitution (1998). Article 84.	It recognizes and guarantees to the indigenous people, the right to conserve the imprescriptible property of their communitarian lands, that will be inalienable, unattachable and indivisible, except for the faculty of the State to declare them of public utility. These lands will be free of the payment of taxes. The indigenous communities could not be displaced of their lands and they will maintain the legal possession of the communitarian lands or they will obtain his gratuitous awarding, according to the law. Political Constitution (1998). Article 84.	It recognizes and guarantees to the indigenous people, the right to conserve and to develop to their traditional forms of coexistence and social organization, of generation and exercise of the authority; to be consulted on the nonrenewable resources that are in their lands and that can environmentally or culturally affect them and to participate in the benefits these resources provide. Political Constitution (1998). Article 84.
GUYANE	‘Amerindian’ means: (a) Any person who is an Amerindian, who is a citizen of Guyana and is from a tribe from Guyana or a neighbouring country (Suriname, Brazil or Venezuela);  (b) a descendant of a person defined as an Amerindian by the preceding paragraph and someone who the Chief Officer thinks should be an Amerindian according to the Act. ‘Amerindian Community’ means: a group of Amerindians living in an Amerindian Area, District or Village listed in the schedule to the Amerindian Act. Amerindian Act (1976) section 2	The government transfers all its rights and interests in the land within the boundaries of any Area, District or village as mentioned in the schedule to the Amerindian Act, to the village council of the village in question. This transfer shall be registered and government departments shall take notice of the transfer and act accordingly. Amerindian Act (1976) section 20A	(1) The Village council’s powers and duties include: (a) to hold the village land title for the benefit of the community as a whole; (b) to manage and take care of village titled land; (c) to implement and obey rules and regulations made under the Act. Amerindian Act (1976) section 19
PARAGUAY	It recognizes the existence of the indigenous people, defined them like groups of culture previous to the formation and organization of the Paraguayan State. It is recognized and guaranteed the right of the indigenous people to preserve and to develop their ethnic identity, in the own habitat. Political Constitution (1992). Article 62 and 63	The indigenous people have the property right on their communitarian lands, in sufficient extension and quality for the conservation and the development of their peculiar forms of life. The State will provide them gratuitously, and they will be unattachable, indivisible, intransferibles, imprescriptible, nonsusceptible to guarantee contractual obligations nor to be rented; also, they will be free of tribute. Political Constitution (1992). Article 64	They have the right to apply freely their systems of political, social, economic, cultural and religious organization, and the voluntary subjection to their customary norms for the regulation of the internal coexistence, whenever they do not attempt against the fundamental rights settled down in the Political Constitution. In the jurisdictional conflicts the indigenous customary right will consider. Political Constitution (1992). Article 63
PERU	All person has the right: To his ethnic and cultural identity. The State recognizes and protects the ethnic and cultural plurality of the Nation. Political Constitution (1993) Article 2, section 19	The property on their lands is imprescriptible Political Constitution (1993) Article 89	The Farmers and the Native Communities have legal existence. They are independent to organize their communal work and the use and the free disposition of their lands, as well as their economic and the administrative concerns within the frame that the law establishes. Political Constitution (1993) Article 89
SURINAME	Indigenous peoples’ rights are not recognized in anyway under Surinamese law.	It declares all land to which others have not proven ownership rights, belongs to the domain of the State and that the state owns all natural resources and has the inalienable to right to exploit or authorize others to exploit those resources. Political Constitution (1987) Article 41 1. In allocating domainland, the rights of the tribal Bushnegroes and Indians to their villages, settlements and forest plots will be respected, provided that this is not contrary to the general interest; 2. General interests includes the execution of any project within the framework of an approved development plan. Decree Principles of Land Policy (1982) Article 4 According to the Explanatory Note issued with the 1982 Decree, this principle [respecting the rights of hinterland dwellers] will have to be applied during a - possibly long -  transitional period in which the forest population will be gradually incorporated into the total socio-economic life	Indigenous peoples’ rights are not recognized in anyway under Surinamese law.
URUGUAY	No special rights are considered	No special rights are considered	No special rights are considered
VENEZUELA	It recognizes the existence of the indigenous people and communities, their social, political and economic organization, their cultures, uses and customs, languages and religions, Political Constitution (1999) Article 119. The indigenous people have the right to maintain and to develop their ethnic and cultural identity, sacred cosmovisions, values, espirituality and their places of cult. Political Constitution (1999) Article 121. The indigenous people, like cultures by ancestral roots, pertain to the unique, sovereign and indivisible Venezuelan nation. In accordance with this Constitution they must have to safeguard integrity and the national sovereignty. Political Constitution (1999) Article 125.	It will correspond to the National Executive, with the participation of the indigenous people, to demarcate and to guarantee the right to the collective property of their lands, which will be inalienable, imprescriptible, unattachable and intransferibles in agreement with established in the this Constitution and law. Political Constitution (1999) Article 119. It is guaranteed and protected the collective intellectual property of the knowledge, technologies and innovations of the indigenous people. Political Constitution (1999) Article 124.	The indigenous people have the right to political participation. The State will guarantee the indigenous representation in the National Assembly and the deliberative bodies of the federal and local organizations, according to the law. Political Constitution (1999) Article 125. The legitimate authorities of the indigenous people will be able to apply in their habitat instances of justice with base in their ancestral traditions and that only affects their members, according to their own norms and procedures, whenever they are not opposite to this Constitution, the law and the public order. The law will determine the form of coordination of this special jurisdiction with the national judicial system. Political Constitution (1999) Article 260. The  term people will not be able to be interpreted in this Constitution in the sense that it occurs in the international level. Political Constitution (1999) Article 126

 However, it will take time for these statements to become operational in the sense of their effective implementation. This task is not only a law-making issue, it also entails a thorough and idiosyncratic  revision of administrative structures.

 

2.1                    Regional and national land use practices

Despite recent legislative efforts of recognition, agrarian reforms and protected areas policies implemented over the last hundred years have barely considered Indigenous people, and have also made attempts against traditional practices.

A first result of these policies was the fragmentation of lands, thus interrupting nomadic ways of life of indigenous peoples, and affecting animal migrations and reproduction cycles. Second, measures did not distinguish between Indigenous people and peasants, as they  prohibited and / or limited the uses of natural resources, therefore impeding the indigenous practices based on those resources.

The letter of many national laws recognizes Indigenous people’s rights on their territories. However, unless its application is judicially requested, it is not currently possible to allocate land titles to indigenous people within protected areas, in a way that would allow them to pursue their practices. Furthermore, once a territory is declared a protected area, the official jurisdiction overrules and allows other economic groups to obtain exploitation rights to its ‘untapped’ resources. These seemingly beneficial programmes not only alter and drain resources involved, but disrupts the related ones such as the cultural resources of local people.

In Bolivia the National Revolution of 1952 did not take into account the indigenous populations of the lowlands nor of the highlands, forcing on all the common label of ‘farmers’. The agrarian reform of 1953 considered much of the lands occupied by Indigenous peoples as uncultivated, and granted them in property to industrial entrepreneurs. In the 1960s, the will to extend agricultural borders through colonization policies resulted in the proliferation of new establishments within Indigenous areas, essentially in Alto Beni and Chapare. Aymaras and Quechuas migrants, impelled by the desire (and necessity) to find new options of development that their regions of origin could no longer offer, ran into very many obstacles: cultural, climatic, etc., their agricultural practices, for example, were not suitable to the zones where they settled, and often, these were not apt for agriculture. The 1990s mark a turning point in the history of Indigenous peoples in Bolivia, because for the first time, the government admitted their territorial claims, and created a platform for the development and the implementation of ethnic policies.

In Ecuador the amazonian people’s slash-and-burn system of culture (‘roza y quema’) is still preserved. It is used for the culture of the orchards that commonly provide domestic food products: yucca and other tubers, maize, banana, citruses, red pepper, among others. Terrain preparation such as the cutting of trees when necessary, and initial cleaning, is done by men. Women take part in burns along with their husbands, and take part in the seeding, weeding and harvest. This system has enormous advantages in the preservation of biodiversity since the space used as orchard is maintained for two or three years, after which the terrain is left to regenerate naturally into a secondary forest. Several plants regenerate or appear again, such as a new type of wild yucca, from which new varieties can be created. An Achuar orchard includes at least a hundred species. The traditional knowledge for the reproduction of plants and selection of seeds is passed on from mothers to daughters.

In Peru 42 of the different ethnic groups who have high diversity of cultures (there are over 44 of them) are settled in the Amazon. Within the 7 400 000 hectares held  in communal property, these groups conserve important knowledge on uses and properties of species, and handling techniques of a great diversity of genetic resources (4 400 plants of well-known uses and thousands of varieties) (National Strategy on Biodiversity)

Box 2. Indigenous lands in Peru. SIP/Geographic Data Base

The SIP/Data Base is formed by a set of fields and registries of information. At national level it is composed by 925 registries of information, corresponding to 836 communities and 89 extensions. This registry is a Geographic Data Base what means that it has a graphical component that is the map of degree and/or extension of a native community, stored with the greater possible precision and has associate a series of attributes (information fields), that form its tabular component, like: name, ethnic group and linguistic family of its members, political location: province and district, sectorial resolution of degree, number of title and year of granting, title that legally endorses its territorial rights, titled area, area yielded in use and total area (sum of the previous ones). This tabular component or attributes of the element can be increased with other important data like: number of inhabitants, availability of services of health, education, among others. An important characteristic of the registries of this Geographic Data Base is that they are geo-refered with respect to the system of coordinates Universal Transversal Mercator (UTM), widely used in Peru and that in this case it comes from the Digital Map of Peru, generated by the National Program of Informatic Science and Comunications (PNIC).

Source: Amazonian Cooperation Treaty. http://amazonas.rds.org.co/tca/menuE.htm

Forestry and forest genetic resources are important to many Latin American countries, as reflected in the wide range of organizations and institutes involved in conservation programs. However, a clear picture of who is involved and how they are linked is often lacking.

The International Plant Genetic Resources Institute is identifying national and international organizations involved in the conservation or use of forest genetic resources in this region to promote regional networking as well as providing information on forestry issues. It is also conducting a three-year research project on the impact of human activities on forest genetic resources conservation, in collaboration with International Centre for Research in Agroforesty and partners in Brazil, Argentina and Germany (Institute International Plant Genetic Resources Institute. 2001)

The I.P.G.R. Institute is also planning activities that will be implemented in Peru’s Ucayali region, a humid tropical area dominated by the annually flooding Ucayali River. Study sites will be chosen from villages within the Shipibo communities, one of the twelve native Amerindian ethnic groups of Ucayali. Particular attention will be paid to how current cultural and economic pressures are changing the Shipibo indigenous farming system with respect to landrace genetic diversity and germplasm management practices (Institute International Plant Genetic Resources Institute. 2001)

Colombia is going through the first stage of the implementations of the programs and policy for  the indigenous reserves of Laguna de Guatavita and the Laguna de Suesca. (Thematic Report: Mountains Ecosystems. October, 2002). According to the Plan of Action of the Colombian National Strategy, the inclusion of the traditional knowledge and practices (rescue, implementations and difussion) and its consideration in the research programs is a priority (National Strategy on Biodiversity ).

 

2.2                    Incentive measures  & Capacity-building measures

Capacity building concerning use and retention of traditional biodiversity-related knowledge and practices points toward, on the one hand, empowering indigenous and local communities on related issues and activities: (a) rescue and protection their traditional lands and resources; (b) opportunities for promoting the use of traditional technologies arising from the use of their knowledge, innovations and practices and benefiting from their transfer. On the other hand, supporting the appropriated design and implementation of data bases and registered evidence of the existing traditional biodiversity-related knowledge; strengthening –if feasible–he intellectual property rights systems, in order to mitigate any negative side-effects (UNEP/CBD/COP/7/5). The value of germoplasm that is being used by the pharmaceutical industry has been estimated to be over 47 billion dollars every year. Information with respect to the use and knowledge of plants that local communities possess, especially shamans and other traditional healers, has been given freely without benefit-sharing or at a very insignificant rate (Friends of the Earth International. 2002).

According to national reports and private and public agencies, the information about those instances would be implemented, but their achievements and follow up are scarcely traceable and measurable.

The GEF Small Grants Programme [SGP] is an important source to identify initiatives in the region aiming to protect, promote and facilitate the use of traditional knowledge. Established in 1992, the year of the Rio Earth Summit, the GEF Small Grants Programme gives priority to activities such as those that recognize the roles and importance of indigenous knowledge and resource management systems, and of local institutions and patterns of social organization, therefore the implementation of those kind of projects can be used as a reliable indicator of the activities that address to the empowerment of traditional knowledge holders and the capacity  building in the retention of traditional biodiversity-related knowledge of Indigenous communities.

Table 5. UNDP/GEF Small Grant Programme (South America Region)

COUNTRY	Total Grant Amount		Significant Participation of Indigenous Peoples		Involving TBRK
	US$	Projects	US$	Projects	US$	Projects
BOLIVIA	1.780.550	76	1.356.411	55	164.708	7
BRAZIL	1.795.217	82	216.147	10	201.131	12
CHILE	2.573.600	99	344.615	12	126.489	4
ECUADOR	1.868.011	97	149.090	3	149.090	3
PERU	1.173.251	35	110.332	4	3.000	1
TOTAL	9.190.629	389	2.176.595	84	644.418	27

Source: http://www.undp.org/sgp/index.htm

Although other international agencies and organizations work on this issue, the information is not coordinated and an inclusive and consistent scope of the situation is not feasible. The figures do not allow to be optimist so far, and according to estimations that can be made a focussed development has not been addressed yet.

Graphic 2. Incidence of the projects on traditional biodiversity-related knowledge in the capacity-building actions through UNDP/GEF Small Grant Programme (South America Region)

 

Table 6.  UNDP/GEF S. G. P. Projects associated to TBRK (South America Region)

Field of development	Country – Project (Note: Titles are in the language they were registred in the UNEP/GEF database)	Amount US$
General	Brazil  - Recovery of common knowledge on preservation and recuperation of the Cerrado - Phase 2
	Chile - Comunidad Rafa Burgos protege su biodiversidad, IX Región.
	Ecuador  - Conservation and Management of the Ethnobotanic and Endemic Species of the Tsáchila Tribe
	Ecuador  - Indigenous Nationalities and Biodiversity
	Chile - Fortalecimiento de la presencia de los kimche para la restauración simbólica y ecológica del territorio Nagche
	Peru - Planificación Participativa para la Conservación de la Diversidad Biológica de la Reserva Comunal Yanesha del valle del Palcazú, Oxapamapa, Pasco, Selva Central
		191.924
Food	Bolivia - Control Ecológico de plagas para el manejo sostenible de la agrobiodiversidad de papa.
	Bolivia - Estudio fenológico de especies que proporcionan frutos silvestres al pueblo indígena Weenhayek.
	Bolivia - Revalorización de variedades de papa nativa con enfoque de género para zonas de alto riesgo climático en el Ayllu Chullpas
	Chile - Curadoras de semillas contribución del conocimiento tradicional al manejo descentralizado de la biodiversidad
		97.539
Medicine & Cosmetics	Bolivia - Estudio etnobotánico de plantas medicinales en la Amazonia.
	Bolivia - Mujeres de PRONASA, manejando sosteniblemente, transformando y comercializando plantas medicinales
	Brazil  - Community Center of Medicinal Plants - Cedro Community
	Brazil  - Exchange and coordination of experiences with Cerrado medicinal plants - Phase 2
	Brazil  - Living pharmacy and food guidance
	Brazil  - Medicinal yards
	Brazil  - Use of herbs and medicinal plants; Replication  and Replication and systematisation of Pilot Phase experience - Use of herbs and medicinal plants - Phase 2
	Brazil  - Research on Cerrado medicinal plants and community medicinal plants nursery
	Brazil  - Workshop on Medicinal Plants of the Cerrado
	Brazil  - Reproduction of rheas in captivity and replenishment in indigenous lands of the Paresi and Nambikwara peoples
		199.118
Dryland and steppes ecosystems	Bolivia - Manejo y aprovechamiento de la vida silvestre en la Tierra Comunitaria de Origen (TCO) del pueblo indígena Tapiete.
	Bolivia - Manejo y aprovechamiento de la vida silvestre en la Tierra Comunitaria TCO del Pueblo Indígena Tapiete.
		47.952
Forest	Chile - Conocimiento Pewenche y manejo sustentable del Bosque de Araucarias en el territorio Mapuche Pewenche de Ikalma. Cordillera de la Araucanía	32.364
Inland waters	Brazil  - Ecological Gardens and Fish Culture at the Serra Dourada Agrarian Reform Settlement	25.521
Mountain and valley ecosystems	Ecuador  - Agro-ecological Management of The Quitoloma High Plateau	50.000

Source: http://www.undp.org/sgp/search/latin.htm

 

However these records may not providing a complete picture of of existing initiatives on traditional biodiversity-related knowledge in this region, for the reason that project descriptions do not refer to the traditional knowledge that is being employed and/or recovered, nor is there mention of indigenous people’s involvement. In the absence of effective participation, valuable indicators are overlooked. An example is shown in Box 3.

Box 3. Development/Rescue of TBRK (Chile)

Responsible organisations: GEF/SGP UNDP
Country	CHILE
Project Name	Rescue, production and commercilization of products of the forest
Description	Release the local traditions and handcraft  through the uses of the products of the forest. At the same time promote the medicinal plant trade.
Focal Area	(Bio) Biodiversity
Operational Programs	(3) OP3 - Forest Ecosystems
Type of Project	(Dem) Demonstration (CB) Capacity-Building
Project State	(Exe) Currently Under Execution.
Start Date	Nov/2001
End Date	Dec/2002
Grant Amount $	$6,897.00
Grant Recipient	(AG Tierra ) Agrupación de Mujeres Tierra Linda
Grant Recipient Type	(CBO) Community-based Organization
Source: http://www.undp.org/sgp/cty/LATIN_AMERICA_CARIBBEAN/CHILE/pfs5273.htm

On other hand, over the past 20 years, numerous groups ranging from nongovernmental organizations to healthcare workers, have tried to preserve knowledge of medicinal plants. An IDRC-supported project was implemented to coordinate efforts made in Argentina, Brazil, Chile, Paraguay, and Uruguay, through email and traditional means; and also to standardize ways of assessing the safety and effectiveness of medicinal plants. The network would have strong links to the Central American Network on Medicinal Plants (TRAMIL). (Project duration: 1998-2000; IDRC allocation: $333,000; IDRC contact: Helen Raij; Project # 050308).

In the 1980s, the government of Colombia legally returned 18 million hectares of the Amazonian rain forest and of the Pacific Coast to the communal ownership of 70.000 Indigenous and Afro-Colombian inhabitants. They also received the right to form autonomous governments and determine their own development and natural resource management plans. Recently, Fundación Herencia Verde (FHV), a nonprofit environmental organization in Cali, and the International Development Resource Cooperation from Canada promoted an enthnomedicine program to enable the local people of the west coastline -especially women and women’s groups- to conserve and manage local genetic resources and associated traditional knowledge. (Project duration: 1999-2000; IDRC allocation: $131,100; IDRC contact: Pierre Zaya; Project # 003462.)

Back in 1994, the Kraho –an Indigenous people of central Brazil – egan collecting native seed stocks, including maize, in a bid to resume planting and end dependence on costly outside purchases. In 2001, the Brazilian Company for Agricultural and Fisheries Research aimed to back up Kraho efforts to bring back indigenous agricultural techniques while boosting their effort to regain self-sufficiency. This was following EMBRAPA (Corporation of Agricultural Investigation of Brazil) recommendations on agricultural management, alternatives such as bee-keeping and animal husbandry. EMBRAPA (Corporation of Agricultural Investigation of Brazil) signed a deal to research three plant varieties cultivated by the Kraho. The Kraho also receive expertise from INPI (National Institute of Industrial Property), the main public body involved in intellectual property issues. The Association of Kraho Villages also secured around US$ 300.000 from the National Bank for Economic and Social Development (BNDES) to build an educational facility on their territory in the central state of Tocantins.

In Ecuador, the Awacachi project has embarked on the purchase and management of over 25,000 acres of lowland forest in NW Ecuador as a biological corridor reserve. The forest corridor will link the Cotacachi-Cayapas Ecological Reserve and the Awá Ethnic Reserve, maintaining the integrity of the region’s two largest reserves, therefore helping to protect the globally important Chocó ecosystem. A series of community buffer zones are also being re-established around the core area, to encourage sustainable income generation that will improve family economies and support indigenous communities restoration of the indigenous people. (managed by Fauna & Flora International, Rainforest Concern and its local Ecuadorian NGO partner, Fundación NYTUA)

Box 4.  The Awacachi Project’s (Ecuador)

The Awacachi Project’s land purchase strategy attends to local communities to remain in the area, and to participate in sustainable development activities. A percentage of the investment has been put into community trust funds to ensure the availability of initial start-up funds for sustainable alternative activities. Cooperatives and local associations are being actively encouraged in order to enable communities to market their products more efficiently. The project is also seeking full legal titling of project indigenous communities’ land, to prevent future land disputes with neighbouring settlements.

The Chocó ecosystem supports and estimated 6,300 species of plants, of which around 1,200 are probably endemic and often restricted to one or two ‘islands’ of habitat and they are still used by local people for medicinal purposes. Many of the 800 bird species are confined to the humid Chocó forests, while 17% of the area’s 142 mammal species are regionally endemic, as are about 60% of the frogs.

The region is home to many remarkable species, such as the endangered spectacled bear, jaguar, giant anteater, and Buffon’s Macaw.

The Chocó ecosystem is under grave threat from powerful commercial interests, which are besieging its protected areas. Over 90% of the Pacific lowland and foothill forests have already been lost to oil palm production or exploitation by logging companies. Thousands of acres of old growth forest are still being cleared, and social conflict is increasing as land becomes scarcer and more precious. The local Afro-ecuadorian communities are the poorest in the country, with an annual income under 10% of the national average. They currently have little alternative but to sell their land to commercial interests, thus sacrificing their only long-term resource and loosing the habitat of their traditional practices.

Source: Flora & Fauna International http://www.flora-fauna.org

 

The Peru component of the in situ conservation within the project of the International Plant Genetic Resources Institute proposes to investigate landrace conservation in the country’s lowland Amazonian region, relatively neglected by past conservation efforts compared with the Andean zone. The Peruvian Amazon region is the centre of traditional domestication for the globally important crops cassava (Manihot esculenta), peanut (Arachis hypogaea), and chili pepper (Capsicum) and is also a centre of diversity for maize (Zea mays) (Institute International Plant Genetic Resources Institute. 2001)

The Forest People's Fund in Suriname is a mechanism by which the Maroons and Amerindians receive 'up-front' compensation and share in a pharmaceutical company's future earnings from new drugs found with their help. The agreements between the International Cooperative Biodiversity Groups/Suriname and the Fund did not provide specifically for the sharing of royalties with shamans (traditional healers). For the most part, the ethnobotanical information obtained during the Suriname project was not derived from general or popular plant knowledge, but was made available to the ICBG project by healers. One factor that had to be taken into consideration was the fact that it challenged Maroon tradition for healers to sell knowledge about medicines to outsiders, or even to share it with them. It was no doubt for this reason that many healers had initially been reluctant to participate in the International Cooperative Biodiversity Groups, even though their Paramount Chief and local chiefs ('Kapitenis') voted in favour of participation. As ethnobotanical collecting began to develop, traditional healers expressed a preference for being paid about five dollars a day for their participation. (Green, Edward C. Kenneth J. Goodman, and Martha Hare. 1999)

These are just some of many iniciatives and developments scheduled in the South American region, but their records are not coordinated by a synchronized system to avoid overlapping efforts; to balance the most urgent actions and to make available, reliable and complete reports, which would allow submitting them all to congruous rules.

 

2.3                    Repatriation of objects and associated information to communities of origin

In the late 1980s, Aymara people of Coroma, Bolivia succeeded in arranging for the recovery of q'epis, bundles of sacred garments that document the spiritual origins and histories of particular Aymara communities and embody the spirits of their ancestors. By tradition, the responsibility for caring for each bundle rotates among families, although their ownership is communal. A decade before, a number of these centuries-old sacred garments disappeared  apparently sold, by individuals, to American art dealers.  Alerted by an anthropologist and with support from the Government of Bolivia, the people of Coroma convinced United States officials to confiscate the stolen q'epis and to impose emergency import restrictions on all Coroma textiles. (Economic and Social Council, E/CN.4/Sub.2/1993/28)

Objects of great religious and cultural importance continue to be discovered in museum collections that cultural protections acts do not ban, and many countries do not even have such laws. Many Indigenous objects remain unprotected, and since there is no consolidated strategy for those resources, a lot of them just disappear without anyone knowing. Although Indigenous people are able to claim for the stolen sacred objects, they have to file claims in foreign courts to prove their ownership and recover their possessions, in lengthy and costly processes. Other frequent issue in this cases of repatriation is the identification of the appropriate community or religious leader to whom an object should be returned.

All objects are not necessarily of great cultural importance and many objects, for whatever reason, will continue to be acquired, owned and displayed by museums. In such instances, Indigenous peoples claim an interest in determining how these objects are interpreted. Museums are a major factor in forming public perceptions of the nature, value and contemporary vitality of indigenous cultures. Indigenous peoples rightly believe that museum collections and displays should be used to strengthen respect for their identity and cultures, rather than being used to justify colonialism or dispossession.

Another related issue has been the right to harvest and use ceremonial materials, such as medicinal plants and feathers. Some of this problems arise in the Andean countries, for example, with respect to indigenous peoples' traditional medicinal and social use of coca, and in Amazonia with respect to ceremonial uses of feathers from increasingly scarce species of birds. Indigenous peoples insist that their enjoyment of religious and cultural integrity takes priority over commercial and recreational uses of wildlife by others.

 

2.4                    Strategic planning for conservation and sustainable use of biological diversity

The conservation ‘in situ’ is a joint work with the local communities, trying to maintain systems and adapted practices, that guarantee, on one hand, the conservation of such resources, and, on the other hand, the generation of benefits to those communities. Actually, the conservation ‘in situ’ through the maintenance of the traditional knowledge and practices has discharge priority, because the economic difficulties of the region, to maintain all the genetic resources at ‘ex situ’ banks and the information in electronic database.

 

2.4.1 Ethnobotanical gardens (‘in situ’ experiences)

In the region the ‘in situ’ conservation of biological diversity is associated to ethno-botanical gardens and herbaria, as well as of other similar initiatives that have the potential to contribute to the preservation of traditional knowledge. Nevertheless, it has to be noted that initiatives of this kind are not very frequent in the region, normally have little support from governments and they participate in world wide networks. The following programmes exemplify those kind of developments:

                Latin American Ethnobotanical Garden Networks and University of Georgia (USA) maintain agreements with several existing, developing, and proposed sister gardens throughout Latin America. Agreements involve research and design collaboration, exchange of faculty and students, and exchange of plant specimens (http://www.uga.edu/ethnobot/Sis.html). So  far, the Sister Garden are:

-       Jardín Botánico Dr. Miguel J. Culaciati, Huerta Grande, (Córdoba, Argentina) is located in the heart of the Sierras de Córdoba region, which is renowned in Argentina for its diversity of aromatic and medicinal herbs. Many inhabitants of this picturesque area, particularly those in rural communities, rely on wild-crafting of these herbs as a principal source of income. Nearly 100 species are collected and sold as medicinal teas, flavorings for beverages, and ingredients in cosmetics and other products. Indiscriminate collecting practices have reduced the supply of many species and further degraded an already deforested landscape. Individuals and government organizations have expressed interest in developing horticultural production of these herbs, as well as improved collecting practices, in an effort to promote rural development and plant conservation. (http://www.uga.edu/ethnobot/SisArgentina.html)

-       Reserva Etnobotánica Cumandá Baeza, Napo, Ecuador. The LAE garden is involved with the development of a proposed Protected Ethnobotanical Reserve in the montane cloud forests of Amazonia, Ecuador, near the town of Baeza. This reserve will provide a linkage of critical habitats currently settled in the Quijos river basin, between existing national parks and ecological reserves, and will serve to educate visitors about the importance of ethnobotanical knowledge and the ecology of the region.   The local counterpart is FundRAE, a non governmental organization that coordinates efforts with EcoRAE, a governmental branch for the ecodevelopment of the Amazon region in Ecuador. In 1998, a group of UGA faculty and researchers visited the area and provided a preliminary assessment of the area and a blueprint for the concept of the ethnobotanical sister garden to be implemented in future phases (http://www.uga.edu/ethnobot/SisEcuador.html)

-       Parque Botánico Omora, Isla Navarino, Chile. Another proposed site is in the southermost region of the continent, in Isla Navarino, where biological resources of the site have been used by both indigenous communities and mestizo settlers. The Omora garden is being planned with the co-sponsorship of the University of Magallanes, the municipality of Puerto Williams, Gobernacion Provincial Antartica Chilena, Museo Martin Gusinde, Liceo C-8 de Puerto Williams and Comunidad Indígena Yagan de Bahma de Mejillones. Important contributions to ethnobotanical knowledge are expected from research and extension programs being developed in conjunction with Chilean collaborators, with whom UGA began an academic exchange program (http://www.uga.edu/ethnobot/SisChile.html)

-       Jardín Etnobotánico San Pedro Alejandrino, Santa Marta, Colombia. This sister garden is planned as part of initiatives proposed in the Sustainable Development Plan of the Sierra Nevada, which has caught the interest of various stakeholders, including the co-sponsoring institution, the Fundacion Pro-Sierra Nevada de Santa Marta. Also involved are the Government of el Magdalena, the University of el Magdalena, the Bolivarian Museum of Contemporaneous Art, and the San Pedro Alejandrino's Quinta. Although the plan of this ethnobotanical garden is to include species found in traditional indigenous territory of the Sierra Nevada of Santa Marta, there have been no formal consultations yet with indigenous organizations or groups. Indigenous knowledge, intellectual property rights, and ex-situ cultivation of plants in the mythology Cogi will be studied as well as other projects on the ethnoecology of mountains. (http://www.uga.edu/ethnobot/SisColombia.html)

-       Jardín Etnobotánico Comunitario, Pisac Valley, Cusco, Peru. An LAE sister garden is being proposed in the Pisac valley in order to offer options for environmental education, conservation of agrodiversity, and reaffirmation of cultural values associated with potato cultivation as well as the rich tradition of Andean herbalism and medicinal utilization of plants. Following LAE's design principles, we want to recycle as much material as possible, and in this case, reconstruct and rehabilitate the old terraces and stone works of the valley to offer an appropriate setting for the garden.  The local participants are members of ANDES, a non-governmental organization of Quechua and Aymara indigenous representatives, as well as representatives from the Indigenous Peoples Biodiversity Network. We want to emphasize the value of women traditional knowledge in biodiversity and the use of heirlooms and female oriented natural heritage for cultural conservation. (http://www.uga.edu/ethnobot/SisPeru.html)

-       Jardín Etnobotánico Nugkui, Santa María de Nieva, Jaén, Peru. in Condorcanqui, Department of Amazonas, in order to gather knowledge for conservation and development of the resources of the jungle of highland Marañón, with a technical perspective adapted to the fundamental reference to traditional management of the Aguaruna and Huambisa peoples, of the Jíbaro ethnolinguistic family.  As part of the Tunaants Cultural Center, the sister garden will also have a zoonursery, a forest tree species nursery and an orchideary.  The project will work on three fronts: plant production (fruit, medicines, reforestation, etc.), Native culture and cosmovision (relation of myths and the jungle), and education (new models for jungle environmental education). Local participants are members of the Vicariato Apostólico San Francisco Xavier del Marañón, a denominational organization of Jesuit priests and Indigenous representatives of the Aguaruna and Huambisa. It emphasizes the value of traditional knowledge in biodiversity and the use of heirlooms and natural heritage for cultural conservation of sacred landscapes. (http://www.uga.edu/ethnobot/SisPeru2.html)

               Botanical Garden of the Trans-Andean Patagonia,  with the main objectives: to identify and preserve the natives species with economic potential (food and medicinal) and cultural relevance, promote the ‘in situ’ conservation and investigation of traditional uses. This project takes place within a wider one for the Bioprospección, Conservation and Sustainable Use of the flora of barren and semi-arid zones of Argentina, Chile and Mexico, directed and coordinated by the Dra. Barbara Timmermann, Director of the Department of Pharmacology and Toxicology of the University of Arizona, Tucson. International Coopertative Biodiversity Groups.

 http://ag.arizona.edu/OALS/ICBG/argentina/jardin/boletin2000.html

              Indigenous Ethnobotanical Gardens Network (Argentina), these gardens were designed by the Indigenous people and communities without any national or international economical support but the efforts of Indigenous members; the gardens are mantained and developed in the indigenous communities lands with the purpose of preserving their plants and related knowledge, and addressing future educational needs and deposit centers. At the moment of the writing of this report a Guaraní garden is been added to the network.

-       ‘Majada Sud’ Garden Santiago del Estero (Argentina) recovers and clasifies more than a hundred trees, plants, fungus and animals species from the drylands region where the Tonocoté people inhabit since inmemorial ages, they are the Arawak family’s southern located people. The project also develops the traditional bee-keeping technology and old textiles procedures. The development of educational programmes is also planned. The person responsible for this project is Solita Pereyra, tinkina (representative authority) of the Tonocoté People (huajyachej@yahoo.com.ar)

-       Charrua Ethnobotanical Garden ‘Pueblo Jaguar’ Entre Ríos (Argentina) was created to rescue and develop the plants and knowledge of the almost extinguished Charrúa and Mocoví people. The iniciative belongs to the Indigenous organization Pueblo Jaguar. The recollection and clasification of medicinal plants is being carried out by don Morinico, a charrua healer, and coordinated and registred on line by Rosita Albariño, from the charrua-mocovi people (hueguidai@clavis.com.ar). (http://www.prodiversitas.bioetica.org/nota71.htm)

ü                Proyecto Museo Interactivo de Conservación de la Biodiversidad Etnobotánico-Medicinal en los Valles Interandinos (La Paz, Bolivia), in coordination with the communities of Andean Valleys of Palca and Rio Abajo, it implements a process of identification of the plants traditionally produced in the zone. It also makes a communal evaluation of parcels and areas destined to production of medicinal plants. This task takes place with Indigenous organizations and local authorities, as well as the municipality of Palca. The museum will be an investigation and information center, and the centre for the coordination of project-related activities. Another responsibility of the museum will be public awareness building about the adapted use of medicinal plants and their derivatives.

 (http://www.micromega.org/kuska/museo.doc)

ü                Union of Yagé Healers of the Colombian Amazon, UMIYAC. This organization, consisting of representatives of 6 indigenous groups that live in the Colombian Amazon Piedmont, is based on the use of the sacred plant of Yagé as a universal principle for the treatment and healing of human diseases. It was created in 1999 with the goal of unifying and placing at the service of humankind, a knowledge inherited from generation to generation among indigenous peoples of the Amazon. Although removed from any commercial or promotional interest that could distort the authentic essence of their knowledge and their control of the powers of Yagé. In environmental terms, they are recognized and supported by the Colombian government for their efforts toward the preservation of the biodiversity of the Colombian rainforests, for the sowing, care, and use of medicinal plants constitutes for them a framework of life and thought linked to other activities such as improvement of their chacras (medicinal gardens), reverence for their surroundings, and the practice of natural indigenous medicine, which is benign to all life systems. (http://www.amazonteam.org/actnew/news-colenviroawards.htm)

ü                Pumapungo Park, (Ecuador) this project –launched by the Ecuatorian government in August, 2001- reconstructs the Gardens of the Inca, in the low part of Pumapungo, next to Tomebamba river (Ecuador). It is an ethnobotanical-archaeological park managed according to the traditional knowledge for handling water and lands. The project, in addition, contemplates the construction of five archaeological terraces to reproduce what in the Andes would be called the spiritual development of the human being. (http://www.municipalidadcuenca.gov.ec/municipio/dcultura/museos/nuevo/Pumapungo/default.asp)

ü                Omaere Ethnobotanical Parks of Ecuador, was created to contribute to the conservation of nature, to the protection of the environment, and to the preservation of ancestral knowledge of the indigenous peoples. It is accomplished through programs in conservation, botany, ethnobotany, and soil recuperation. Didactic materials have been published in more than four Native languages. A website offers information and images from Omaere Park (http://www.omaere.org/)

 

2.4.2 Botanical and ethnobotanical catalogues.

As happened with others in the region, Venezuelan authorities have received complaints from Amazonian communities regarding ‘bio-piracy’ by commercial companies in recent years, and they hoped the advantages of the BIOZULUA © database would encourage commercial companies to contact project's administrators rather than approaching Indigenous groups directly. But the strategy was not a success as they thought it should be, and the project has been objected by the main Indigenous Organization -Amazonian Indigenous People Regional Organization  (Organización Regional de Pueblos Indígenas del Amazonas - ORPIA)- because prior informed consent was not requested (El Universal, 08.07.02. www.eud.com). In regards to the lack of a specific legal protection for Indigenous peoples’ property of their knowledge, the collected data failed to address article 124 of the Constitution of Venezuela, according to the opinion of Indigenous organizations and some authoritative reports (David Vivas, E; 2001).

Box 5. The BIOZULUA © database.

A Marriage of Medicines

by Owain Johnson, photo ©Keith Dannemiller

Sharing the Amazon's secrets

The Amazon is believed to hold from a third to half of the earth’s biological diversity, and the region’s indigenous medical practitioners are the keepers of centuries of accumulated knowledge about natural medicinal resources. Scientists believe they may hold the key to the discovery of important new drugs that could benefit millions of people around the world.

The current debate in Venezuela centers on how best to exploit this traditional knowledge for the benefit of the communities that supply it. PAHO adviser Jorge Luis Prosperi agrees that indigenous groups must receive benefits from their knowledge, but he insists that this knowledge should be shared with legitimate researchers.

‘I don’t doubt that scientists could visit the Amazon to extract the active properties of some plants to make millions out of patented medicines,’ he says. ‘But it is correct and fair that legitimate research takes place. Just as I believe indigenous groups have a right to access the breakthroughs and knowledge of the modern world, I believe that Western society has a right to learn about these medicinal plants. They can’t be solely the property of the indigenous community or the shaman.’

Venezuela’s national science foundation, FUDECI, recently launched a major project to collect data about medicinal plants from Amazonian indigenous groups. The information is gathered by field researchers and stored in a searchable database known as BIOZULUA ©, administered from Caracas by FUDECI.

The contents of the database remain the intellectual property of the individual indigenous communities, and the Venezuelan government and FUDECI hope to raise money for the groups by charging international pharmaceutical companies for access to their knowledge.

FUDECI’s director general, Ramiro Royero, says the project has already produced some extremely interesting prospects and is generating considerable international interest. ‘No pharmaceutical company has seen this material yet, but when two or three different groups from different areas are using the same plants to treat the same ailments, then it’s obvious there’s something in the plant that would be worth investigating,’ he says.

Users of the BIOZULUA © database can search by species, geographic location, ethnic group or even by ailment. For example, companies interested in developing new herbal headache remedies could look at all the plants used for this purpose by indigenous groups throughout the Venezuelan Amazon. The database also includes video footage of shamans collecting and preparing medicinal plants, as well as images of how patients respond to treatment. It provides genetic profiles of every plant entry and the global positioning system coordinates of where exactly it grows. ‘We have tried to be as comprehensive as possible. We even include a photo of the first person to tell us about the plant,’ Royero says.

Venezuelan authorities have received a number of complaints from Amazonian communities about biopiracy by commercial companies in recent years, and ORPIA has been very active in denouncing such abuses. ‘We’ve seen it all,’ says ORPIA human rights coordinator Daniel Guevara. ‘Scientists disguised as tourists, tourists disguised as scientists. They’ll try anything.’

FUDECI hopes the BIOZULUA ©  database will encourage interested pharmaceutical companies to contact the project’s administrators rather than approaching indigenous groups directly. ‘Our database provides added value and it will be much cheaper for companies to buy information from us than to send teams of researchers undercover into the Amazon,’ Royero says.

The BIOZULUA ©  project could well serve as a model for similar schemes around the world. Several other countries in Latin America and Africa have expressed an interest in the project’s methodology, and the governing committee of the World Intellectual Property Organization recently invited Royero to deliver a paper on BIOZULUA © at its Geneva headquarters.

Its supporters say BIOZULUA ©  eventually could generate several millions of dollars that could be used to meet the heavy financial costs of providing improved health and other services for indigenous Amazonian communities.

Source: Perspectives in Health Magazine. The Magazine of the Pan American Health Organization. Volume 7, Number 3, 2002

 

Other strategies developed in the recent past have been the check listings provided by  scientific efforts, most of them fulfilled with the support of foreign institutions (see Box 6).

Box 6. Biological Diversity of the Guianas

Situated on the north-eastern shoulder of South America, the Guianas lie over the biologically rich Guiana Shield region.

Guyana has a land mass of 215,000 square km (83,000 sq. mi.) divided by the major river systems of the Essequibo, Demerara, and Berbice which flow into the Atlantic Ocean. Its many ecosystems can be divided into three main types: the coastal plain, the savanna, and the rainforest. The coastal plain is a low-lying, flat, fertile strip ranging from 15 to 65 km (9 - 40 mi.) wide. It extends 432 km (268 mi.) from the Orinoco River in the west to the Corentyne River in the east. Although it is only 4% of the total land area in Guyana, it is the principle food producing region with major agricultural crops of rice and sugar. Because of the ease of access, the agriculture, and the cooling sea breeze, most Guyanese (estimated 800,000) live along the coast. Because of the agricultural activities and population, little of the coastal vegetation remains intact.

The savannas of Guyana are of two major types. The Rupununi savanna, which is shared with Brazil and Venezuela, is the largest. This typical dry savanna in the south-west is the major cattle producing area in Guyana. In the northeast region there are tropical wet and semi-wet savannas centering on the Berbice River system.

Rainforest covers the rest of Guyana, approximately 170,000 square km (65,600 sq. mi.) or 80% of the land mass. The rainforest is actually make up many different types of forest, including greenheart, dry evergreen, seasonal, montane, and lowland evergreen as well as swamp forest. Relatively pristine, this area has a rich biodiversity with natural habitats that have high levels of endemism. This region is also rich in Guyana's natural resources, such as, bauxite, diamonds, gold, kaolin, and manganese. The timber and mining industries, in response to Guyana's need for economic development, have placed accelerated pressures on the native vegetation.

Web listings of plants are provided and a searchable database of this list is being implemented: Angiosperm (flowering plant) families from Acanthaceae through Lythraceae include distributions for the states of the Venezuelan Guayana: Amazonas (AM), Bolívar (BO), and Delta Amacuro (DA); and the three Guianas: Guyana (GU), Surinam (SU), and French Guiana (FG). Bryophytes, pteridophytes, gymnosperms, and angiosperms from Magnoliaceae to Zygophyllaceae are currently only listed for Guyana, Surinam and French Guiana

Preliminary Checklist of the Plants of the Guiana Shield (Venezuela: Amazonas, Bolívar, Delta Amacuro; Guyana; Surinam; French Guiana). Volume 1: Acanthaceae – Lythraceae http://www.mnh.si.edu/biodiversity/bdg/guishld/index.html

Checklist of the Plants of the Guianas (Guyana, Surinam, French Guiana). Boggan et al., 1997 http://www.mnh.si.edu/biodiversity/bdg/checklst.html

Web Checklists of Plants. A-L Families of Flowering Plants for the Guiana Shield; all others for the Guianas http://www.mnh.si.edu/biodiversity/bdg/planthtml/index.html

Checklist of the Plants of Kaieteur National Park, Guyana by C.L. Kelloff and V.A. Funk Biological Diversity of the Guianas Program National Museum of Natural History MRC166 Smithsonian Institution Washington, D.C. 20560 http://www.mnh.si.edu/biodiversity/bdg/kaieteur/cover.html

Checklist of the Plants of Iwokrama, Guyana. This list is the result of collaboration between the Iwokrama International Centre for Rain Forest Conservation and Development and the Smithsonian's Biological Diversity of the Guiana's Program. http://www.mnh.si.edu/biodiversity/bdg/iwokspp.html

Source: Biological Diversity of the Guianas: Guyana, Surinam, French Guiana. Smithsonian National Museum of Natural History http://www.mnh.si.edu/biodiversity/bdg/index.html

 

2.5                    Legislative measures

‘People in the local communities are corrupted by thieves, receiving a pittance for their knowledge and work’ Hamilton Casara, president of the  Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis (2002).

 

The term ‘traditional knowledge’ is interpreted in an open-ended way to refer to tradition-based literature, artistic or scientific works; performances; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields. Traditional knowledge does not have a formal definition; it is a working concept which is not as precise as a scientific or restrictive legal definition. Hence, it does not provides the essential elements for the understanding of the nature and scope of traditional knowledge as a unique legal subject-matter.

The UN Food and Agriculture Organisation (FAO), the Convention on Biological Diversity (CBD), the World Intellectual Property Organisation (WIPO), the Andean Community, the Organisation of African Unity and many other institutions and forums have been discussing how to protect indigenous peoples traditional knowledge for the following purposes:

-          obliging interested parties to obtain the prior informed consent of communities providing the biodiversity-related knowledge;

-          promoting mutually agreed terms by recognising the need to sign licenses (contracts) for the use of the knowledge when a commercial or industrial application is intended (whether or not in the public domain);

-          avoiding unfair competition procedures to defend the rights recognised in the regime (in the case of misappropriation or unauthorised use);

-          calling for the establishment of different types of registers to document collective knowledge and make it more or less (depending on the type of register) available to third parties;

-          creating a Fund for the Development of Indigenous Peoples (article 37); and

-          linking the protection of traditional knowledge with intellectual property regimes by imposing the obligation to present a license when applying for a patent. This requirement is also an obligation under Decision 486 of the Andean Community on a Common Regime on Industrial Property (Ruiz, Manuel and Isabel Lapeña; 2002)

In the South American region, the national legislative state of affairs regarding traditional biodiversity-related knowledge ranges from considering it as national patrimony (such as Brazil) to a non regulated issue; in that range, others submit the access to a strong official participation even if it is considered an Indigenous asset. The possible reasons would be: traditional biodiversity-related knowledge involves biological resources which involve sovereignty and public patrimony. On the other hand paternalism is not absent of the scenario and it is justified by the cultural gap between the dealers (traditional Indigenous people vs. sophisticated commercial companies). However, recent statements made by Indigenous and doctrinaire groups claim intellectual property rights on it in the name of Indigenous peoples and communities (e.g. Acuerdo del Tobogán de la Selva –2002; Venezuela-; Declaración de Buenos Aires –2003; Argentina-).

In the regional scenario, two regulatory efforts (Perú already promulgated; and Argentine, under administrative consideration) give legal definitions and approaches that illustrate the range of differences.

In August 2002 Peru, promulgated Act N° 27811 for the protection of collective knowledge on biological resources. It defines traditional biodiversity-related knowledge as the accumulated and intergenerational knowledge developed by indigenous communities and people on: propierties, uses and characteristcs of the biological diversity (section 2, c)). The law’s general objective (article 5) is the protection of collective knowledge for the benefit of its holders (communities). It recognizes that collective traditional knowledge is part of the cultural patrimony of Indigenous communities. The law also establishes that the license should (a) adopt a written format; (b) be in Spanish and the appropriate Native language; (c) be in force for a maximum period of three years; and (d) be registered with the competent national authority (in this case INDECOPI, the National Patent and Unfair Competition authority).

Other norms determine the equitable sharing of benefits and require prior consent of the indigenous people for the exploitation of biological resources in their territories. These norms are: -Act Nº 26839, on conservancy and sustainable utilization of biological diversity and its Supreme Reglamentary Decree Nº 068-2001-PCM, Supreme Decree Nº 102-2001-PCM, approving the National Biodiversity Strategy – Act N° 27300 for Sustainable Use of Medicinal Plants. At the regional level: Decisión 391 of the Andean Community, about Access to genetic resources (Thematic Report: Mountains Ecosystems, October 2002)

ü                In march 2003, 44 indigenous leaders from 24 of the 26 indigenous groups of Argentina submitted to the administrative authorities of the Instituto National de la Propiedad Industrial the creation of a registration system for their traditional knowledge and practices in a holistic way, and the draft is being considered by the industrial property office (Roman, V.; 2003). The definition is wide and arises from the source of origin, it is said, the Indigenous or Native people: Any indigenous or native people can register as Native traditional knowledge: graphical symbols, emblems, allegories, signs or designs, architectonic forms; processes and methods to produce tangible expressions of folklore (for example, musical instruments, songs performed on the occasion of births, deaths, hunting and fishing, among others); ceremonial processes and games; medicines, practices and traditional methods of treatment; prescriptions and processes; proverbs and myths; cultural and technological practices and products obtained from their application; and all other knowledge originating from Indigenous people with present or potential commercial or industrial application.

Both parties coincided on acknowledging that the legal existence of traditional knowledge would stem from its registration under IPs authorities, in the same way other specific mechanisms were developed in the past within general intellectual property laws to deal with particular practical needs, or policy objectives relating to specific subject matter. However, some clarification is still needed for these new intellectual property standards (WTO-TRIPS Council; 2002):

(a)     The distinction between traditional knowledge documentation and entry of traditional knowledge into the public domain;

(b)     evidence of prior ‘informed’ consent of the providers coming from different cultural structures;

(c)     the disclosure of cultural sources in any application for intellectual property rights on biological materials.

In its 2nd. National Report to the Secretariat of the Convention (January, 1997) Bolivia annouced the elaboration of a ‘Estudio Nacional sobre la protección del Patrimonio Científico, Cultural y Natural de los Pueblos Indígenas de Bolivia’ as a basis for a regional treaty (Comunidad Andina) on the protection of traditional knowledge, innovations and practices. This country is aware that all forms of documentation and inventorying constitute tools for an integral protection of traditional knowledge. However, considering its recent experience with ayahuasca and quinoa, Bolivian authorities point out that it is necessary to identify and develop special and effective international mechanisms for the protection of traditional knowledge without prejudice to the existing ones (WIPO/GRTKF/IC/4/15; 2002).

Actions has been taken by the Government of Brazil to prohibit invasions of Indigenous lands, as witnessed by the recent removal of gold miners from the Yanomami reserve. Nonetheless, this problem remains one of the main causes of the loss of biodiversity and traditional lifestyles and practices, along with the advance of agricultural frontiers in both the Cerrado and the Amazon. Besides the descendants of numerous European, Asian and African colonists, in Brazil there are over 200 indigenous groups, each with their unique customs, languages and cultures, and a broad, profound and largely untapped knowledge of Brazil’s fauna and flora, which comprise another significant and threatened heritage of the country. The exploitation of any resources on Indigenous land requires authorisation from Congress, following consultation of the parties involved according to the Medida provisoria 2126/11 April, 26, 2001. Currently Brazil has no formal legal protection for cultural expressions. A presidential decree, however, had been issued in 2000, resulting in the creation of a register of cultural goods of immaterial heritage and the national immaterial heritage program. The decree did not establish rights or obligations, but provided for the recognition, description and collection of cultural goods. Brazil emphasized its position that, first, databases should be a mechanism for declaring existing rights, not for constituting rights; second, that databases should be planned and managed primarily at the national level; and, third, the use of databases for defensive purposes, namely identification and disclosure of the origin of genetic resources and associated traditional knowledge. It also Brazil’s conviction that the protection of traditional knowledge should be based on a holistic approach (WIPO/GRTKF/IC/4/15; 2002)

In 1997, Colombia published its National Biodiversity Policy. It develops the main objectives of the Convention by seeking to promote the conservation of knowledge and the sustainable use of biodiversity by enhancing biodiversity-related knowledge through the scientific characterization of its components and the recovery and dissemination of traditional knowledge and practices (1st. National Report. January 1998) The Decree of July 13th 1998 regulates on the prior consent of the indigenous and black communities on natural resources within their territories.

Venezuela authorities believed that it is essential to create sui generis forms of protection for all types of expressions of culture. This country is concerned about the fact that many documentation processes appear to focus on the defensive protection of traditional knowledge, without adequate prior informed consent of the knowledge holders. Venezuela considered that one effective way to preserve traditional knowledge associated to biodiversity could be achieved through the development of broad legal systems that would guarantee the rights of indigenous peoples, Afro-American communities and local communities, in accordance with Articles 120 and 124 of the Venezuelan Constitution.  The BIOZULUA © project is not operative and its implementation depends not only on legal measures to be taken but also of a deeper understanding of its implications and mechanisms by the holders of traditional knowledge.

 

2.7          Summary

Whilst extolling the virtues of an expanded knowledge base to facilite the retention of traditional biodiversity-related knowledge, it must be recognised that according to recent experiences of misappropiation and acting on new, untested and perhaps not fully understood information exposes the communities to risks and increases their vulnerability. This may explain why communities started to be reluctant to open participation in initiatives on the registration of their traditional biodiversity-related knowledge.

There is a growing tension between Western scholars’ interest in Indigenous peoples’ knowledge and protecting the right of Indigenous peoples to control the dissemination and use of their knowledge. Academic publication funds -including journals such as the Journal of Ethnobiology, the Journal of Ethnopharmacology, and the Indigenous Knowledge and Development Monitor, and many websites as was illustrated above - have been entirely devoted to studies on indigenous peoples' knowledge. Information disclosed in this way may well be used commercially before indigenous people have any opportunity to assert their rights.

Some national and regional reactions to those challenges and risks are taking place. A regional policy on traditional biodiversity-related knowledge and practices is being included as part of the regional resources policy, and legal efforts are put in place to control and limit access to that knowledge without consultation of administrative and Indigenous authorities. In any case, these actions are not solely focusing on the retention of traditional biodiversity-related knowledge and practices, but rather trying to regulate economic implications, property rights and misappropriation. And at this point, they are claiming to identify and develop special and effective international mechanisms for the protection of traditional knowledge without prejudice to the national existing and upcoming ones.

Actually, most countries understand ‘protection’ according to the meaning generally given to this term in the field of intellectual property, whereas others see it as a means of preserving traditional knowledge and avoiding its erosion. In this latter understanding, the term ‘protection’ has a more positive role in life and cultures.  It is needed to establish a new system which would be able to protect traditional knowledge effectively and comprehensively (World Intellectual Property Organization, Sessions of the Interguvernamental Commission; 2002).

It has also been emphasized that local, indigenous and Afro-American communities cannot be ignored when any process involving their knowledge is at stake. Several Indigenous communities are extremely concerned about the issue of documentation of their traditional knowledge. In response, some countries have started a process of information meetings on this matter -such as the BIOZULUA © in Venezuela. This type of initiative should be supported.Indigenous people maintain a cautious position in relation to the dissemination of documented traditional knowledge, in particular as to whether or not such knowledge should be placed on public databases. Researchers’ promises to restrict access to the files, although their intentions are laudable, raise the question as to whether or not it would be preferable to strengthen the capacity of communities to have their own research and documentation facilities. The accelerated rate of Western research on Indigenous knowledge is deemed, at this point in time, more of a threat to Indigenous peoples than a benefit for them. The enhancement of the retention of the traditional knowledge will also depend on whether IK can interact with new types of technological and economical situations, and whether it can be used to solve emerging problems. Consequently, research and extension approaches can be designed to facilitate the acquisition of the necessary technical knowledge by holders of traditional biodiversity-related knowledge and practices, and counteract the erosion of their prior knowledge.

Perhaps the main factual challenge to face is the intrinsically practical nature of this type of knowledge, its constant evolution and incremental improving; for these reasons, its description and fixation into an inventory should necessarily remain extremely flexible, in the sense that:

(a)    a classification cannot overlook the fact that the full character and systematic nature may only be apparent with a greater understanding of the cultural contexts and rules that govern its creation, and

(b)    that the spiritual and practical elements of traditional knowledge cannot be easily adapted and expressed in the different technical domains or fields.

Those characteristics must be somehow reflected in the measures for the protection and conservation of traditional biodiversity-related knowledge. In fact, suggestions have already been tabled to ponder (and respect) the holistic nature of traditional knowledge in a way that permits its description and fixation into general inventories of knowledge belonging to a certain community (or group of communities), without separating its components (World Intellectual Property Organization, Sessions of the Interguvernamental Commission; 2001).

However, the greatest obstacle for the protection of traditional knowledge is the lack of attention that it has received so far. In past years, little consideration has been paid to the loss of traditional cultures and practices compared to conservation concerns for natural resources. Paradoxically far more indigenous communities are at risk or threatened due to economic activity, but only a tiny portion of conservational funds is devoted to traditional cultures conservation efforts, and when these efforts are being made, they are widely scattered and minimal.