Indigenous Peoples’ Participation at the Intergovernmental Committee

Representatives of indigenous groups at WIPO IGC. (Photo: IP Watch)

The Intergovernmental Committee at W.I.P.O. is charged with developing international legislation to protect traditional knowledge, traditional cultural expressions, and genetic resources as classes of intellectual property.  As various indigenous communities throughout the world are the originators and keepers of these categories of knowledge, one would expect their rights and concerns to be at the heart of treaty negotiations.  However, despite several initiatives throughout the I.G.C.’s existence, explicit frustrations from indigenous groups at the committee have been multiplying for at least the last three years, stemming from the view that their interests are being subjugated in favour of those of national governments or global corporations.

The countries of the Intergovernmental Committee have repeatedly stated that, without effective input from indigenous peoples, the credibility and legitimacy of the I.G.C.’s ongoing treaty negotiations would be seriously undermined.  As such, these countries have also repeatedly stated that they are committed to ensuring that indigenous representatives have mechanisms through which to voice their concerns to the committee.  As evidence, they point to a number of systems put in place at the I.G.C. over the years to increase the participation of indigenous groups.  One is a Voluntary Fund for Accredited Indigenous Observers, which was formally adopted after its approval by the W.I.P.O. General Assembly at the April 2006 meeting.  Countries such as Sweden, France, South Africa, Australia, and New Zealand have made major donations to this fund over the years, and it has helped to cover travel, accommodation, and administrative costs for indigenous representatives to attend I.G.C. meetings in Geneva, Switzerland and speak on behalf of their local communities.  Another implementation is a series of discussion panels, led by indigenous representatives, held the day before each I.G.C. general meeting.  Proposed and agreed upon at the November 2004 meeting, and first run at the April 2006 meeting, these presentations allow indigenous groups to informally express to committee members what they see as the major issues in intellectual property that affect indigenous peoples.

However, neither of these initiatives have escaped scrutiny.  The Voluntary Fund ran so short of money at the April 2013 meeting that it was thought that the fund would not support the cost of even one indigenous representative attending the next meeting (see Section 4: “Participation of Indigenous and Local Communities: Voluntary Fund” from the report of this meeting).  Also, the fund’s operating procedures have been questioned by some of the more vocal critics among indigenous observers at the I.G.C., including “Tupaj Amaru” (“The Indian Movement”)  and the Indian Council of South America (C.I.S.A.).  These groups contend that there is inherent bias as to which indigenous representatives receive funding, as countries with relatively large indigenous populations (such as Mexico, Bolivia, and Guatemala) have almost never used the fund and have almost never sent any indigenous representatives to I.G.C. meetings.  Meanwhile, countries with relatively small indigenous populations have repeatedly used the fund to allow what few indigenous representatives they have to attend I.G.C. meetings.  There is also speculation that some so-called “indigenous representatives” are simply at I.G.C. meetings to advance the positions of their own countries, and that they are even being privately funded by national governments or global corporations.  While the I.G.C. has never confirmed or denied the occurrence of this private funding as of yet, it has also stated that this would not conflict with any procedural rules.  (For more on these operational concerns and criticisms, see the “Participation of Indigenous and Local Communities: Voluntary Fund” sections in the reports from the meetings of June 2005, July 2007, May 2011, and April 2012).

As for the pre-meeting indigenous presentation panels, there seems to be a consensus among indigenous observers at the I.G.C. that their subject matter is too broad, and their impact on the I.G.C. is too low.  That is, most panels to date have been discussing general themes and case studies related to indigenous peoples and intellectual property.  However, indigenous observers would like to see the panels discuss specific issues with the terms of treaties under negotiation within the I.G.C. itself (see Section 11: “Any Other Business” in the report of the December 2009 meeting).  At the end of the April 2012 meeting (see Section 7: “Participation of Observers” in the report of this meeting), a proposal was put forth to formally integrate the indigenous presentation panels into main I.G.C. meetings, but this movement was blocked by national delegations.

The deepest problem concerning indigenous peoples’ participation at the I.G.C., however, began to surface (at the latest) at the December 2010 meeting, after the first Intersessional Work Group had devised a draft treaty for traditional cultural expressions.  As countries began debating the terms of this treaty (and the two others that followed), indigenous groups were frustrated to learn that, because of their observer statuses at the I.G.C., they were constrained by procedural rules.  In order for any of their textual recommendations for any of the treaties under negotiation to even be accepted for consideration, they had to have the explicit support of at least one national delegation.  Despite a handful of countries — with Bolivia and Venezuela at the forefront — occasionally stepping up to keep indigenous proposals on the table, many more proposals were either met with dismissive silence or eventually taken out of the treaties by revision facilitators.  (See especially comments made in Section 8: “Genetic Resources” from the report of the December 2010 meeting, and in Section 10: “Closing” from the report of the May 2011 meeting.)

Tensions over this procedural roadblock reached a boiling point at the I.G.C.’s February 2012 meeting.  A coalition of indigenous observer groups, led by the Brazilian Indigenous Institute for Intellectual Property (INBRAPI), stated that since the I.G.C.’s procedural rules did not allow them to actively and independently participate in treaty negotiations, they were walking out on the meeting, since there was no point in them continuing to attend a debate in which they were constantly ignored (see page 94, paragraph 656 from the report of the above meeting, as well as this written declaration in English & Spanish).  Though some of these groups eventually returned, a discussion on the role of observer groups at the I.G.C. near the end of the meeting provided the ideal opportunity for several indigenous representatives to lash out in anger at the I.G.C. and W.I.P.O.  (The assertions in the following two paragraphs are taken from Section 8: “Draft Study on the Participation of Observers in the Work of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore” in the report of the above meeting.)

Indigenous representatives argued that the rights of indigenous peoples had been spelled out by numerous other international instruments, chief among which were the United Nations Permanent Forum on Indigenous Issues (formed in 2000) and the United Nations Declaration on the Rights of Indigenous Peoples (issued in 2007).  These included the rights to be self-determining nations under customary laws; hold inalienable sovereignty over their land, natural resources, and collective property (i.e. the categories of traditional knowledge, traditional cultural expressions, and genetic resources dealt with by the I.G.C.); demand free prior informed consent and equitable benefit-sharing in any appropriation of said land, natural resources, or collective property by outside parties; have past transgressions against them remedied; and have their problems considered as fundamental human rights issues.  As long as the I.G.C. failed to mould its policies and procedures to be in accordance with these rights, its work would never be truly accepted as legitimate by indigenous peoples.

On this note, indigenous representatives believed that indigenous organizations at the I.G.C. deserved special statuses that would allow them to negotiate on par with other countries, in order to protect intellectual property that was theirs by right.  Instead, indigenous organizations at the I.G.C. had been kept as mere “observers”, with no more rights to negotiate than the likes of corporate lobbyists, patent lawyers, and bio-prospectors posing as anthropologists.  Indigenous representatives could not understand why any of these other groups even deserved to be at I.G.C. meetings, since it was clear that their only purpose was to ensure that they could continue stealing indigenous collective property by pressuring national delegations to negotiate treaties that were legally non-binding.

At the two I.G.C. meetings after the February 2012 blowup (in April and July of that year), the committee continued its review of the status of observer groups at meetings.  Proposals were made to change the criteria for observer groups, as well as to create a special observer class for indigenous organizations that would allow them to directly and independently take part in treaty negotiations.  While these proposals enjoyed moderate to near-unanimous support from indigenous representatives, national delegations received them with much more tentativeness.  In the case of the United States of America and Russia, reaction to the proposals was outright hostile.  While the issue of indigenous peoples’ participation at the I.G.C. has been more or less put on hold since those meetings, indigenous representatives at meetings never fail to remind the I.G.C. that the longer it continues to ignore their concerns and deny their rights by refusing to change its policies, the less credibility and legitimacy the committee will have in the eyes of indigenous peoples worldwide.