The International Indigenous Forum, in an unprecedented collective move, decided yesterday to withdraw from the discussions of the WIPO Committee on Genetic Resources taking place from 14-22 February. The move calls into question the legitimacy of the negotiations.

As delegates were working on a compilation text at the twentieth session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), an Indigenous Peoples representative, speaking on behalf of the International Indigenous Forum, announced the withdrawal from active participation in the IGC.

In a statement that the representative could not read in its entirety in plenary, the group said that Indigenous Peoples have participated as experts in IGC sessions, and worked in good faith. They have, according to the statement, “made efforts over the years to submit to the IGC sessions our collectively developed and sound proposals, which have been ignored or left in brackets in negotiation texts.”

As the “titleholders, proprietors and ancestral owners of traditional knowledge that is inalienable, nonforfeitable and inherent to the generic resources that we have conserved and utilized in a sustainable manner within our territories,” the group feels that “the discussion on intellectual property rights and genetic resources should include Indigenous Peoples on equal terms with the States since the work will directly impact our lives, our lands, our territories and resources.”

As a consequence, they said they decided “unanimously, to withdraw our active participation in the work developed by this Committee until the States change the rules of procedure to permit our full and equitable participation at all levels of the IGC.”

Under the current rules of procedures, Indigenous Peoples have observer status at the IGC. They can make proposals to the negotiations but those proposals have to be endorsed by at least one delegation to be taken into account.

Participation Being Eroded Gradually, Representatives Say

In an interview with Intellectual Property Watch, Indigenous Peoples representatives Debra Harry, executive director of the Indigenous Peoples Council on Biocolonalism, and Lucia Fernanda Jófej Kaingáng, the representative of the Instituto Indigena Brasileiro para Propriedade Intelectual (INBRAPI), said that since the beginning of the IGC the Indigenous Peoples’ participation has been narrowed and they have been excluded from key bodies like the “friends of the chair.” In this particular meeting, they were not able to participate in the team of facilitators drafting the negotiating text, they said.

Most of the textual proposals made by the Indigenous Peoples are not currently included in the present text, they said. The text that was actually taken into account is put forward in a way that does not reflect their original proposal, they added. For example, in Objective 1, paragraph 1.1.1., the current text says: “[including the sovereign rights of [States] nations and peoples, the rights of indigenous peoples and local communities, as well as private property rights] in accordance with domestic legislation [in patent applications].” Additions such as “states,” “private property rights,” and “patent applications,” have transformed the original proposal.

Change of the Rules of Procedure Needed, Indigenous Peoples Say

According to Harry and Jófej Kaingáng, the WIPO Legal Council told the Indigenous Peoples representatives at the last session that a change in the rules of procedure to allow full and equal participation would require a decision from the WIPO General Assembly. At present, the rules of procedure do not anticipate having Indigenous Peoples take an active part in the IGC, General Assembly or a diplomatic conference to discuss an instrument, they said. “For Indigenous Peoples, it does not make sense to participate in the IGC session but not be able to participate in the final stages of discussion” they said. Indigenous Peoples have been calling for a change in the rules of procedure since the 18th session of the IGC to no avail, they added.

“Instead, the WIPO Secretariat put forward a draft study [pdf] on the participation of observers in the work of the IGC, including nine proposals, none of which recommends a change in the rules of procedure to increase the participation of Indigenous Peoples or their level of participation,” Harry said. “States need to put forward some language that is asking for a change in the rules of procedures.”

“Indigenous Peoples participation brings legitimacy to the process and they need to have an effective and equal participation in all levels of the process: drafting groups, friends of the chair group, facilitators committee,” Harry said. Indigenous Peoples have collective rights under the United Nations system and states do not take those rights into account, according to the representatives. “We cannot participate in a process that undermines our rights,” Harry said. “If we cannot have a fair and effective participation, we are essentially participating in a process that will diminish our rights.”

In Brazil, 15 percent of the national territory belongs to Indigenous Peoples, and this territory is best conserved, said Jófej Kaingáng. “We are owners and holders of GR.” In Brazil, Indigenous Peoples have exclusive rights to use natural resources inside their land, and GRs are natural resources, she said.

Previously in the week, a representative from Tupac Amaru said that Indigenous Peoples’ proposals are not considered even when they are supported by governments. “We consider this discriminatory,” he said.

“Some Indigenous Peoples say they have the right to sit beside states that have colonised them,” said Ronald Barnes, who represents the Indian Council of South America (CISA). “Gaps and loopholes are being created that are not going to give us our rights,” he said.

Indigenous representatives during the week urged negotiators to “keep to the high standards” of the UN Declaration on the Rights of Indigenous Peoples,” and other international instruments. WIPO is a UN organisation.

“States are asserting national sovereignty over genetic resources, but state sovereignty is not absolute,” Harry said. “If the final instrument fails to recognise Indigenous Peoples’ rights, states may become gate keepers on our genetic resources and traditional knowledge and this would undermine our right to self-determination.” This right is inscribed in the international legal framework, for example in the UN International Covenant on Economic, Social and Cultural Rights, she said.

“If the outcome of this process is reached without our equal participation, we would consider the process to have no bearing on us.” Harry said.

IGC government delegates’ reaction to the withdrawal of the Indigenous Peoples group was generally one of “regret”, but no suggestions for addressing the concern, for instance by granting them equivalent status in negotiations.

William New contributed to this story.

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FINAL STATEMENT OF THE INTERNATIONAL INDIGENOUS FORUM AT WIPO – WORLD INTELLECTUAL PROPERTY ORGANISATION

Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

14 to 22 February 2012

Twentieth Session

Geneva – We, the Indigenous Peoples and Nations present at the International Indigenous Forum during WIPO IGC 20, have evaluated our participation in all of the proceedings of this Committee, and we note with concern the continued reduction of the amount and level of our participation in this process.

We Indigenous Peoples have participated as experts in the IGC sessions, we have worked in good faith, and we have made efforts over the years to submit to the IGC sessions our collectively developed and sound proposals, which have been ignored or left in brackets in negotiation texts.

The IGC, in its overall procedures, has systematically ignored our rights, as Indigenous Peoples and as Nations with internationally recognized collective rights, to self-determination and full and equitable participation at all levels.

The draft study of the Secretariat on the participation of observers before the IGC does not contain modifications proposed by the Indigenous Peoples to WIPO’s rules of procedure. The States have obligations under their constitutions that have not been observed in the IGC, nor have they submitted proposals that could resolve the existing deficiencies in order to improve our participation.

Distinguished delegates: we, the Indigenous Peoples, are the titleholders, proprietors and ancestral owners of traditional knowledge that is inalienable, nonforfeitable and inherent to the genetic resources that we have conserved and utilized in a sustainable manner within our territories. For this reason, we appeal to the States to acknowledge that the discussion on intellectual property rights and genetic resources should include Indigenous Peoples on equal terms with the States since the work will directly impact our lives, our lands, our territories and resources, and will reach to the very heart of our cultures, which are the inheritance of future generations.

Therefore, the Indigenous Peoples present at IGC 20 have reflected seriously on our role in this process and have decided, unanimously, to withdraw our active participation in the work developed by this Committee until the States change the rules of procedure to permit our full and equitable participation at all levels of the IGC and until the instruments recognize and are consistent with the existing international frameworks for the rights and interests of Indigenous Peoples within the scope of the IGC.

Thank you, Mr. Chairman.

February 21, 2012