INDIGENOUS PEOPLES' CAUCUS STATEMENT

Presented at the "Roundtable on Intellectual Property and Traditional Knowledge", World Intellectual Property Rights Organization, Geneva, 2 November l999

Presented by Victoria Tauli-Corpuz, Tebtebba Foundation (Indigenous Peoples' International Centre for Policy Research and Education)

Madame Chairperson,

This is a statement on behalf of the indigenous peoples who are present in this Roundtable. We met over the lunch break and agreed upon a common message to present to this body. First of all we would like to thank WIPO for allowing us to participate in this meeting. We will present some comments and observations and at the end, some proposals which we hope the WIPO will take into consideration.

1. We take exception to the statement of Mr. Bo Jensenn of Novo-Nordisk, yesterday when he said there is no incompatibility between the CBD and the TRIPS Agreement of theWTO. We believe there is a serious conflict on the rights and obligations of member-states between the two treaties, particularly between Article 8j of the CBD and Article 27.3.(b) of the TRIPS Agreement. Article 8j calls on governments to respect, preserve, and maintain knowledge, innovations, and practices of indigenous and local communities in biodiversity conservation and encourage equitable sharing of benefits arising from the utilization of such knowledge.

2. On the other hand, Article 27.3.b of TRIPS legitimizes private property rights in the form of intellectual property over life and processes entailed in modifying life forms. But these are rights for individuals, corporations, and states, not for indigenous peoples and local communities. Governments are asked to change their national intellectual property rights laws to allow for patenting of micro-organisms and non-biological and micro-biological processes.

3. Even many developing country governments recognize this incompatibility and in fact, they already tabled proposals on this which can be found in the Revised Draft of the Ministerial Text on the Preparations for the l999 Ministerial Conference of the WTO. This is a document dated 19 October l999 JOB (99) 5868/Rev. 1. Paragraph 22 (g) of this document:

"..Article 27.3.b. should be amended to take into account the Convention on Biological Diversity and the International Undertaking on Plant Genetic Resources. The amendments should clarify and satisfactorily resolve the analytical distinctions between biological and microbiological organisms and processes; that all living organisms and their parts cannot be patented; and those natural processes that produce living organisms should not be patentable. The amendments should ensure the protection of innovations of indigenous and local farming communities; the continuation of traditional farming processes including the right to use, exchange, save seeds, and promote food security."

4. The delegate of Brazil in his statement earlier referred to this need to harmonize CBD, FAO, and WTO, particularly TRIPS to guarantee protection of traditional knowledge.

5. We are concerned over the way in which this present Roundtable is organized. It seems that this was primarily organized to reinforce the mandate of WIPO to promote and implement the dominant intellectual property rights regime and to assert that intellectual property rights is the only viable path to protect traditional knowledge. We have heard many interventions from this meeting saying that intellectual property rights as embodied in the existing international conventions and the TRIPS of WTO may not be the adequate and appropriate mechanisms to protect indigenous and traditional knowledge.

6. We would like to remind this body that the Roundtable of WIPO and Indigenous Peoples which was held in July l998 came up with conclusions and recommendations which should have been presented in this present Roundtable in order to build upon it. As it is, it seems the efforts of WIPO are fragmented and results of earlier dialogues with indigenous peoples are wasted.

7. We reiterate that any discussion on traditional and indigenous knowledge should always refer to the articles on the Draft Declaration on the Rights of Indigenous Peoples, particularly Articles 24, 25, 26, and 29. These articles clearly establish that our rights to our indigenous knowledge, innovations, and practices, which are referred to as intellectual and cultural heritage, cannot be discussed in isolation from our rights to our indigenous territories and resources.

8. We see a problem in the fact, that while on one hand there are many years spent in evolving international standards for the protection of indigenous peoples in the UN, resulting to Draft Declaration on the Rights of Indigenous Peoples, and efforts to protect traditional knowledge through the CBD and FAO International Undertaking; on the other hand, there are other international agreements like the WTO Agreements which are undermining these. This is also happening in the national level. In the Philippines for instance, while there is an Indigenous Peoples' Rights Act, at present the President is actively campaigning to have the l987 Constitution amended to allow foreign investors and corporations to own lands. There is also the Mining Act of l995 which allow mining corporations to have a 50-75 years lease on mineral lands, most of which are found in indigenous peoples' territories. These make a mockery of the Indigenous Peoples' Rights Act.

9. So the picture is not very good for indigenous peoples struggling to have their rights to their indigenous knowledge and cultural heritage because powerful economic and political interests are behind the efforts to undermine our rights.

10. In this context, we believe that the challenge for WIPO and governments, as well as other international multilalteral organisations, is to maintain an open mind and be more daring in exploring ways and means to protect and promote indigenous and traditional knowledge outside of the dominant IPR regimes. WIPO should not insist in imposing that the IPR regime it is implementing, particularly patents, is hwat should be used to protect traditional knowledge. Other forms of protection should be explored and developed in partnership with indigenous peoples and other traditional knowledge holders. Any effort to negotiate a multilateral framework to protect indigenous and traditional knowledge should consider indigenous practices and customary laws used to protect and nurture indigenous knowledge in the local, national, and regional levels.

11. The call of indigenous peoples all over the world against patenting of life-forms and life-creating processes should not be diminished nor trivialized. We are appending to this statement an important document which we came up with last July l999, which is entitled "No to Patenting of Life: Indigenous Peoples' Statement on the TRIPS of the WTO". This statement contains our proposals for the review of Article 27.3.b. of TRIPS which echoes some of the proposals of the African Countries, Cuba, Honduras, Paraguay, Venezuela (WT/GC/W/329, 22 Sept. l999) Bolivia, Colombia, Ecuador, Nicaragua and Peru (WT/GC/W/362, 12 October l999), and also the Draft Ministerial Declaration we quoted earlier.

12. Finally, we are presenting the additional following proposals;

1. That WIPO undertake studies, in collaboration with other relevant international organizations, in order to make recommendations on the most appropriate means of recognizing and protecting traditional knowledge, medicinal plants, seeds, and expressions of folklore of indigenous peoples and local communities. These studies should build upon Madame Erica Daes' work on the "Protection of Cultural and Intellectual Heritage of Indigenous Peoples."
2. With regards to program of WIPO on technical assistance we propose that indigenous peoples and traditional knowledge is by enabling knowledge holders to become the main trainors and awareness- raisers. We also propose that indigenous peoples organizations and communities should be provided resources from WIPO to undertake their own capacity-building efforts to protect and promote their knowledge.
3. Prior Informed Consent should be the common thread among all the proposals being brought forth to protect indigenous knowledge, whether these are intellectual or non-intellectual property rights protection. PIC is defined to mean that indigenous peoples and local communities will be consulted, informed and their full consent obtained before any appropriation or research of their knowledge is undertaken.
4. There should be a list of all the knowledge, genetic resources, medicinal plants, seeds, etc. which have been stolen from indigenous peoples and some form of indemnification may be given to those who own and developed this knowledge. This can be put into a fund which will help further build indigenous peoples' capacities. The arts and artifacts which were also stolen should be repatriated back to the original owners.
5. We call on the WIPO to create a mechanism within its structures which will allow for more meaningful participation of indigenous peoples. Other specialized of the UN are already undertaking dialogues with indigenous peoples towards the formulation of policy guidelines on indigenous peoples. Since WIPO claims it is the body which has a key role in traditional knowledge then it should also formulate its own guidelines.

World Trade Organization
and
Indigenous Peoples.

This is a report of the meeting which was held in Geneva last October 30-31, l999. After the Commission on Human Rights Working Group to Elaborate on the Draft Declaration on the Rights of Indigenous Peoples (18 - 29 October l999), this small meeting was held. It was jointly organized and initiated by the TEBTEBBA Foundation and the Indigenous Programme of the World Council of Churches. This is a summary report so it does not contain all the details of the discussions. We hope that this will generate more interest from indigenous peoples all over the world on why we should be concerned about the World Trade Organization.

RATIONALE

The WTO 3rd Ministerial Meeting is taking place in a few weeks time in Seattle, Washington. This will be held from 30 November to 3 December, l999. Indigenous peoples have not been actively involved in WTO or WTO-related activities. And yet many of the WTO Agreements which are now being implemented by member nation-states are directly affecting the daily lives of many indigenous peoples all over the world. The only indigenous NGO which has sent a representative to observe the first WTO Ministerial meeting in Singapore and which got invited by the WTO Trade and Environment Committee to take part in three consultation conferences with NGOs is the TEBTEBBA Foundation (Indigenous Peoples' International Centre for Policy Research and Education). This is an international indigenous peoples' NGO which is mainly focused on capacity building for indigenous peoples.

Since the WTO is already a major institution which is directly impacting indigenous peoples lives, it is felt that it is an imperative for indigenous peoples to know more about it and get involved. This means grasping what the WTO is all about, understanding the key agreements which directly affects indigenous peoples, and participating or initiating campaigns on the WTO. Since the ministerial meeting is just around the corner, it is also important to know what this meeting is and what kinds of issues are on the table. building for indigenous peoples.

It is within this light that indigenous peoples would like to hold a two day meeting wherein they will talk about WTO and brainstorm on strategies related to WTO. building for indigenous peoples.

OBJECTIVES: building for indigenous peoples.

GENERAL OBJECTIVE: building for indigenous peoples.

To have a deeper understanding of what the World Trade Organization is, what are the main agreements it is implementing, and how are these related to the rights and welfare of indigenous peoples. building for indigenous peoples.

SPECIFIC OBJECTIVES: building for indigenous peoples.

1. To have a historical overview of how the WTO came about and understand the difference between the General Agreement on Tariffs and Trade (GATT) and the WTO. building for indigenous peoples.

2. To understand more deeply the Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Agriculture Agreement, and the Trade-Related Investment Measures (TRIMs) and the direct impacts of these on indigenous peoples. building for indigenous peoples.

3. To know what the WTO Ministerial Meeting is going to deal with and to plan some actions which indigenous peoples can do in relation to this. 4. To come up with an indigenous peoples' position paper on the Seattle meeting which can supplement the present "Indigenous Peoples' Statement on TRIPS". building for indigenous peoples.

5. To identify some actions which can be undertaken in Seattle and beyond Seattle. This means creating a mechanism among indigenous peoples to sustain the campaign around WTO. building for indigenous peoples.

6. To identify further possible steps for cooperation with WCC in related issues. building for indigenous peoples.

DATE:30-31 October l999
VENUE: World Council of Churches, Route de Ferney 150, Geneva
SPONSORING ORGANIZATIONS:

l. World Council of Churches, Indigenous Peoples' Programme
2. TEBTEBBA FOUNDATION (Indigenous Peoples' International Centre for Policy Research and Education)

30 October
• 9:30-10:00 - Registration
• 10:00-10:30 - Introduction and Expectation Check
• 10:30-11:30 - Orientation to the Workshop-Seminar and an Introduction of WTO
• 11:30-12:30 - Discussion on key WTO agreements: TRIPS, Agriculture Agreement, TRIMS, GATS (General Agreement on Trade in Services).
• 12:30-13.00 - Open Forum
• 13.00-14.00 - LUNCH BREAK
• 14.00-15.00 - Sharing of indigenous peoples on impacts of WTO
• 15.00- 16.00 - Discussion on WTO Ministerial Meeting
• - Discussion of the Indigenous Peoples' Statement on TRIPS

• 11.00-12.00 - Discussion on mechanisms for continuing coordination among indigenous peoples on WTO related campaigns and programs
• 12.00 - 13.00 - Planning of immediate activities to undertake
  PARTICIPANTS:
  1. Estebancio Castro - Kuna Youth Movement , Panama
  2. Bineet Mundu - Chotanagpur Adivasi Sewa, Samiti, India
  3. Maria Eugenie Choque - Taller de Historia Oral, Andina, Ecuador
  4. Tomas Alarcon - CAPAJ, Peru
  5. Kumar Yonjon Tamang - Nepal Tamang Ghedung , Nepal
  6. Ronald Barnes - Indigenous World Association/Indigenous Nations and Peoples Coalition , USA
  7. Willie Littlechild - International Organization of Indigenous Resource Development , Canada
  8. Rigoberto Juarez - Coordination de Organizaciones Mateo del Pueblo Maya de Guatemala, Saqbichil - COPMAGUA, Guatemala
  9. Moises Gutierrez - MRKTL (Movimiento Revolucionario Tupaq Katiri) , Peru
  10. Margarita Gutierrez - ANIPA (Coordinadora Nacional de Mujeres Indigena, Mexico
  11. Helen Corbett - Indigenous Woman Aboriginal Corporation, Australia
  12. Cesar Estrada Cordero - Alianza Mundial de los Bosques, United Tropicales, Kingdom
  13. Hansi Kreutzmann - Inuit Circumpolar Conference, Greenland
  14. Hjalmar Dahl - Indigenous Secretariat - Arctic Council, Denmark
  15. Michael Halewood - International Development Research Centre, Canada
  16. Brigitte Vonasch - INCOMIENDOS, Switzerland
  17. Miriam Anne Frank - Netherlands Centre for Indigenous Peoples (NCIV) , Netherlands
  18. Steven Bloxham - The Navajo Nation, USA
  19. Jacqueline Herrera - Bolivia

  Coordinators:

  20. Eugenio Poma - World Council of Churches , Switzerland
  21. Victoria Tauli-Corpuz - TEBTEBBA Foundation , Philippines
  

  Resource Speakers:

  22. Martin Robra - World Council of Churches, Switzerland
  23. Martin Khor - Third World Network , Malaysia
  

  Interpreters

  24. Monica Castelo - Uruguay
  

  SUMMARY OF PRESENTATIONS, DISCUSSIONS, PROPOSALS

  First Day - 30 October l999: 11:00 - 13.00 and 14.00 - 16.00

  l. The first resource speaker was Martin Khor who is the Director of the Third World Network (TWN). The TWN is an international non-government organization (NGO) which has been doing research, publications, advocacy and lobbying work on the GATT (General Agreement on Tariffs and Trades) since the early l980s and now in the World Trade Organization (WTO). He has a very extensive knowledge of the WTO because of this long history of involvement in trade, development, and environment issues.

  He talked about the history of GATT and WTO, why it is a very powerful institution compared to other multilateral bodies, why it has become the vehicle of choice of the developed countries to bring in their favorite issues, and what are main agreements being implemented by WTO. He also talked about the 3rd Ministerial Meeting in Seattle on Nov. 30 - Dec.2, l999. What are the issues at stake here and what kinds of issues are brought in by different countries.

  While GATT started as a multilateral body to regulate the trade in manufactured goods, it went beyond this mandate and expanded into other areas like agriculture, services, investments, and intellectual property rights. In l993, at the conclusion of the Uruguay Round of GATT the member states agreed to create the World Trade Organization which came into being in January l994. The WTO is the body created and mandated to oversee the implementation of the GATT now the WTO Agreements. Some of these Agreements are: Agriculture Agreement, General Agreement on Trade of Services (GATS), Trade-Related Investment Measures (TRIMS), Trade-Related Aspects of Intellectual Property Rights (TRIPS), etc. While most of the Agreements talk about liberalization of trade in the particular areas, the TRIPS is mainly about protectionism. How the developed industrialized countries can continue reaping profits from the royalties paid for what they claim as intellectual property rights.

  The TRIPS Agreement is creating problems for developing countries and also for indigenous peoples because it is the agreement which harmonizes intellectual property rights laws to allow for the patenting of lifeforms and traditional knowledge. He elaborated on why indigenous peoples should be concerned about TRIPS and what they can do to influence the forthcoming review of Article 27.3.b. Mr. Khor discussed what are the proposals from developing country members of the WTO with regards to the review of Article 27.3.b. of the TRIPS.

  He talked about the Agriculture Agreement and what are the implications for indigenous peoples, especially the subsistence producers. He also discussed that five years after WTO came into being, there are already many imbalances and inequities identified by developing countries and also by civil society, such as NGOs and even indigenous peoples. These will have to be reviewed and amended so that the imbalances will be corrected. The WTO is also a most untransparent and undemocratic body. Therefore there is also a demand that this body should be reformed to become more democratic and transparent. Thus, in Seattle, it is important to ensure that the focus will be on the review and reform agenda, instead of making it an occasion to start negotiating another new round, what they also refer to as the WTO Millenium Round.

  Among his articles and papers which were distributed to the participants are the following:

  - "Why We Should Oppose a New WTO Round" - "A Checklist of Issues and Positions in Seattle" - "Implications of New Issues in WTO" - Bagirath L. Das - "WTO Hijacked by Big Corporations"
  He provided the participants a copy of the 19 October l999 version of the Draft Ministerial Declaration of the WTO for the Seattle Meeting. He pinpointed which among the proposals are relevant for indigenous peoples and what lobbying can be done on governments.

  2. Martin Robra, the Programme Executive of the Justice, Peace, and Creation Team of the World Council of Churches, talked about what the WCC is doing in relation to globalization and the WTO.

  He discussed how the WCC got involved with the WTO issues, shared their ideas on how they can cooperate with indigenous peoples, and also offered an invitation to indigenous peoples for more meaningful partnership. He reiterated that globalization and liberalization basically is about the power of transnational corporations to make planet earth safe for their investments and operations. It is about ensuring the access and control of resources and markets for the more powerful countries and corporations.

  He talked about how liberalization of services are killing the smaller banks, firms and farms in the South and he cited the situation in Zimbabwe. He also shared how the WCC joined the anti - Multilateral Agreement on Investments (MAI) campaign.

  Then he discussed why the WCC would like to link up with indigenous peoples and then invited indigenous peoples to present their proposals to the WCC on how it can support their struggles and the achievement of their vision.

  3. After the inputs there was a lively open forum where the indigenous peoples asked many questions and shared also their views on globalization and the WTO.

  4. In the afternoon, the session resumed and more clarifications and responses were given to the questions raised earlier:

  One of the requests is more explanation on what is the MAI (Multilateral Agreement on Investments). Victoria Tauli-Corpuz explained the history of the MAI, that it was a proposal mainly from European Union members within the OECD (Organization for Economic Cooperation and Development). The OECD is club of the richest countries in the world. The MAI is an agreement which is basically the bill of rights for investment corporations. It stipulates that foreign investors should be given a right of entry to any country where they wish to bring in their investments. These should be given the so-called "national treatment" which means that they should be treated equally as the nationals of the country they are entering. They should also be allowed to invest in any sector of the economy of the host country. If these rights are not respected by the host country they can be brought to court.

  5. After questions were clarified, the indigenous participants were asked to share what they think are the impacts of liberalization and globalization in their countries and on the indigenous peoples. The participants from Guatemala, Mexico, Peru, Bolivia, India, Colombia, and the Philippines, shared their experiences.

  6. The "Indigenous Peoples' Statement On The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the WTO" of which most of the participants are signatories, was discussed again. The main elements of the paper and the demands of the indigenous peoples were explained anew in order for the participants to understand more what can still be done as far as the review of Article 27.3.b . of TRIPS is concerned.

  Second Day: 11:00 - 13.30 , 31 October l999

  7. The discussion started on how indigenous peoples can sustain the effort to raise the general awareness on WTO and globalization issues. A proposal was presented on the possibility of creating a mechanism to sustain the work and this can be done by a "Working Group on Indigenous Peoples and the World Trade Organization".

  8. The Working Group is envisioned as an informal body which is composed indigenous peoples and advocates who are committing some of their time and efforts in understanding more what is the WTO and its Agreements and how these are linked to globalization and liberalization. After they have grasped the basics of WTO then they should be more active in raising the awareness of indigenous peoples on these issues. The initial members can be those who have attended this strategy session if they so desire.

  9. An intense discussion followed where almost all the participants shared their views on how to make a working group function effectively. Some shared their frustrations on efforts in the past along the same line but which did not prosper. Many agreed that there is indeed a need for such a group which can systematize and organize better the efforts of indigenous peoples to respond to the developments brought about by the WTO and to analyse what is happening.

  10. There were those who immediately supported the idea and committed themselves and also their organizations to form such a working group. Some said they have to consult their organizations first but they support the general idea. It was also recognized by the group that there are already efforts in different levels, whether on the community level, national or international levels where indigenous peoples are already undertaking actions against liberalization and globalization. For instance, the campaigns against biopiracy, against mining, against the human genome diversity project, etc. So the best approach is to complement and support ongoing efforts. What is needed is better networking and coordination among the various campaigns so that the impacts will be more significant.

  11. At the end, all agreed that the idea of creating a working group is good and it is worthwhile pursuing this effort. However, what is more important is for this group to already proceed in implementing already some suggestions on how to move forward. The most immediate activities which should be pursued are as follows:

  1. Write up a summary of what transpired in this meeting and send to all the participants.
  2. Help link together indigenous peoples who are going to Seattle and create an indigenous caucus.
  3. Ensure that there is a common meeting place for indigenous peoples so that they can get in touch with each other and attend relevant forums.
  4. Support a few indigenous peoples from Asia and Latin America to go to Seattle.
  5. Prepare a list serve of indigenous peoples who have attended the meeting and ensure that they get a copy of the summary and other updates on developments.
  6. Come up with a primer on "Indigenous Peoples and the World Trade Organization".
  12. It was agreed that Eugenio Poma of the Indigenous Programme of the WCC and Victoria Tauli-Corpuz of the TEBTEBBA Foundation, the coordinators of this meeting, will continue doing the coordination work.

  13. The meeting ended with additional discussions on the Draft Ministerial Declaration of the Seattle WTO Meeting and which paragraphs are going to work in our favor and therefore should be pointed out to the government delegates to the WTO. It was also agreed that if there is a possibility of indigenous peoples getting into government delegations, this might be a good idea. Since most indigenous peoples will not be officially accredited to attend the official meetings, they should actively participate in the parallel events which are organized by the NGOs who will be there in Seattle.

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