Asian Indigenous Peoples' Intellectual Property Rights on Biodiversity Endangered
By Dr. Michael A. Bengwayan Eurasia Review December 11, 2018
London---Indigenous and tribal peoples of Asia, are facing complex threats to their survival as distinct peoples. Not only are they confronted with dispossession of their lands and resources, and physical persecution, but they are also faced with the appropriation of their collective knowledge on plants, trees, animals, insects and even land and waters, developed through the ages.
This is according to a book by this author titled 'The Intellectual and Cultural Property Rights of Indigenous and Tribal Peoples in Asia' written for the Minority Rights Group International (MRG) based here in London, now available at Amazon.
Minority Rights Group International is an international human rights organisation founded with the objective of working to secure rights for ethnic, national, religious and linguistic minorities and indigenous peoples around the world with international headquarters in London.
The book says traditional knowledge on food, crops and medicinal plants is being taken by multinational companies, while traditional songs and designs are being commercialized for the tourism industry. The issue of indigenous cultural property rights is becoming more and more urgent for indigenous peoples.
Even with the United Nations' adoption of the Rights of Indigenous Peoples, there is minimum standard for the protection of indigenous peoples rights, the book asserts. This is because unfortunate international instruments are adversely impacting on indigenous peoples cultural rights. For instance, the General Agreement on Tariffs and Trade (GATT), and the Trade Related Aspects of Intellectual Property Rights agreement (TRIPS), put both indigenous peoples and developing nations at a disadvantage by imposing an intellectual property rights regime that does not take into account the diversity of cultures.
Also, Article 8j of the UN Convention on Biological Diversity (CBD), gives minimal recognition of indigenous peoples rights. It does not protect indigenous peoples from the drive by multinational companies to patent plant and animal materials — resources that are generally found in the biodiverse territories of indigenous peoples — for their potential medicinal and agricultural value, without the knowledge or consent of the peoples who have protected and nurtured such resources, the book covering 22 Asian countries said.
Salak Dima Personifies Asian IPs' Suffering
“When the trees are gone, the deer forever lost and the forests are just memories, we will weep. Not for the land that is bare and dead. But for us, our children and their children. When there are no more tears to fall, we will weep with our own blood.”
This is what Agta IP leader Salak Dima said to the author deep in the Palanan Wilderness Area of Sierra Madre, the biggest tropical rainforest of the Philippines at 200,000n hectares in personifying what wordsmiths call “the last forest guardians.
The Agtas are one of Asia's indigenous peoples marginalized by incoming settlers. Indigenous and tribal peoples see themselves as distinct from the mainstream. They speak their own languages, are largely self-sufficient, and their economies are tightly bound to their intimate relationship with their land. Their culture is different from that of the mainstream, inherited from their forebears and adapted to their current situation.
They take only from the Earth what they need, nurturing and caring for resources as a way of life. They have often lived on their lands for thousands of years.
It is difficult to generalize about Asia's indigenous and tribal peoples. They encompass a huge variety of peoples, living very different ways of life in a great variety of environments. One thing that they do have in common is the oppression and marginalization they experience. Often they suffer direct
violence, for example in Papua New Guinea, in Burma/Myanmar and in the Chittagong Hills of Bangladesh. They also suffer from development efforts by their own governments and by multinationals, through the takeover of their lands and resources.
In most parts of Asia where indigenous peoples land rights are recognized, the government retains the power to overrule these rights in the economic interest of the state. The intellectual and cultural property rights (ICPR) of indigenous peoples are under threat. These include their beliefs, knowledge (agricultural, technical, medicinal, ecological movable and immovable cultural properties), the book reveals.
Asian Indigenous Peoples’ Struggle To Protect ICPR of Biodiversity
The struggle of Asian indigenous peoples to protect intellectual and cultural rights ranges in form from resisting subjugation, territorial takeover, resources exploitation, the destruction of traditions, and infringement on customs and lifestyles, to fighting inhumane treatment, abuse and deprivation of human rights.
In South East Asia much of the struggle is over land and resources, as mining, timber and oil and agricultural corporations encroach upon indigenous peoples lands in search for profit.
Indigenous peoples are becoming victims of forced resettlement, pollution, diseases, militarization, starvation, social and cultural destruction, and the ruin of traditional ways of life.
Asian indigenous peoples close connection to the land makes them particularly vulnerable to ecological damage. Extractive activities threaten patterns of subsistence, living conditions and cultural practices.
In some cases governments deny indigenous peoples civil and political rights in order to prevent them from resisting the incursions. Some states face challenges in reconciling international human rights commitments to indigenous peoples with the requirements of foreign direct investment.
Against the odds, indigenous peoples have had some successes. Divide and rule tactics intended to break down their opposition have failed. Often, there are clear connections between resource extraction, human rights abuses and militarization. In some countries, governments have attempted to stifle the growing resistance of their indigenous populations.
From the Philippines, Indonesia and Malaysia to Papua New Guinea, there is a burgeoning indigenous movement against both governments and resource-depleting companies. This movement has brought together concerns about human rights and the environment. It is rural-based, grassroots-initiated and multiracial.
The indigenous opposition remains vibrant and effective. In Bangladesh, the struggle of the Jummas, the original inhabitants of the Chittagong Hill Tracts (CHT) is primarily to do with rights to land and resources. Many Jummas are losing their lands; they have been forcibly evicted by government military forces. The Jummas are also being displaced because of the discovery and development of a gasfield.
The gas reserve development has affected traditional food sources like homegardens and age-old community forests, threatening the extinction of many traditional food crops.
In Nepal, the indigenous people of Nepal are campaigning against the widespread plunder of germplasm (i.e. plant cells) and indigenous knowledge. Already, many plant resources have been lost, without recognition or recompense.
In Sri Lanka the Wanniyala-Aetto (forest beings), the Sri Lankan indigenous people, are being uprooted from their forest dwellings, shot at, detained, placed in reservations and sold as slaves or prostitutes. Their trees are being cut, logged and traditional foodlots being razed. The Wanniyala-Aetto women, in particular, bear the brunt of this inhuman treatment.
In the Philippines, many NGOs are working for indigenous peoples intellectual and cultural property rights in the Philippines and, seemingly, their efforts have paid off, with the passing of Indigenous Peoples Rights Act (IPRA) in 1997. But the body set up to implement IPRA, the National Commission on Indigenous Peoples (NCIP), cannot stop creeping mining, logging and commercial agriculture destroying wide tracts of forests.
In Indonesia,the most significant result of indigenous peoples struggle for recognition of their rights is the government's granting of decentralized power. It gave adat-based (traditional-based) villages powers beyond the standard notions of indigenous rights in international legal discourse. This allows the natives to take care of their forests and homegardens.
But millions of hectares of indigenous peoples lands are be destroyed and planted with oil palm destroying thousands of plant and animal species.
In Malaysia, encroachment into ancestral lands and intimidation are two of the many problems facing Malaysian indigenous peoples. There is no pause in the exploitation of their resources and appropriation of indigenous territories.
In Thailand, the Chao-Chaos, a mixed grouping of indigenous tribes in northern Thailand numbering almost a million, were granted a peoples Constitution which allowed them to participate in the democratic process in the country. They are led by the Assembly of Indigenous and Tribal peoples of Thailand (AITT). Together with the Northern Farmers Network, AITT is pressing for the adoption of a community Forest Bill, which will give indigenous peoples recognition of their right to their traditional resources and management practices.
In Cambodia, positive developments with regard to indigenous peoples struggle for land rights and the protection of their forests and natural resources is happening. Local activists and NGOs headed the campaign for a new law that gave provision for land tenure for indigenous people. Those who now have ownership and control of their lands are enjoying their rights to their resources, such as in the tapping of resin and development of inland fisheries.
But in Vietnam. the government is oppressive towards its indigenous population and does not allow advocacy activities. The government's Ministry of Agriculture and Rural Development and the Department for Sedentary Farming announced a campaign to wipe out traditional nomadic life and swidden farming of its indigenous population.
The government is attempting to eradicate traditional shifting agriculture, which is the lifeline of most highland indigenous peoples including the Banar, Ehde, Jarai, Koho and Mnong tribes, thousands of whom were imprisoned after calling for independence in February 2001.
This is causing genetic erosion of hunreds of traditional food crops including upland rice, rootcrops, legumes, tubers and leafy crops.
Laos has a similar policy as that of Vietnam, which aims to eradicate all traditional forms of agriculture by its indigenous peoples. As a result, hundreds of thousands of Hmong are being removed from their ancestral lands and relocated to areas which are not suitable for their lifestyle an cultural practices.
It is perhaps only in Burma/Myanmar, out of all the states in Asia, that the indigenous peoples form a majority. But under its military rule, politIcal detentions, harassment, militarization, military offensives, forced labour in labour camps and an educational crisis are widespread. Women face rape, marriage to military men and are trafficked by the military as slaves, labourers and prostitutes.
International Efforts to Fight Threat on IPs' ICPR
Indigenous people view the world they live in as an integrated whole. Their beliefs, knowledge, arts and other forms of cultural expression have been handed down through the generations. Their many stories, songs, dances, paintings and other forms of expression are therefore important aspects of indigenous cultural knowledge, power and identity form their heritage.
Heritage includes all expressions of the relationship between the people, their land and the other living beings and spirits which share the land, and is the basis for maintaining social, economic and diplomatic relationships — through sharing — with other peoples.
All of the aspects of heritage are interrelated and cannot be separated from the traditional Territory of the people concerned. What tangible and intangible items constitute the heritage of a particular indigenous people must be decided by the people themselves.
The guardians of an indigenous peoples cultural and intellectual property are determined by the customs, laws and practices of the community, and can be individuals, a clan or the people as a whole
Due to the active lobbying by indigenous peoples representatives in various international meetings, there is a growing appreciation by international agencies of the complexity of indigenous peoples discourse.
The World Intellectual Property Organization (WIPO) has begun discussions on the issue of indigenous peoples intellectual and cultural property rights, although many indigenous peoples are not entirely happy with the process. The UN has also undertaken a study on the heritage of indigenous peoples and put forward several recommendations but these remain recommendations only.
Most of the discussions at the international level on the issue remain elitist — only a very few indigenous individuals are able to participate and information regarding the discussions or outcomes is not extensively disseminated. There is a gap between the international debate and the local realities
Most indigenous communities are faced with life-threatening issues that keep them from actively engaging in international policy advocacy work, and yet many of the issues that indigenous peoples face on the ground are brought about by the implementation of policies crafted at the international level.
Asian indigenous peoples are now often able to wage their local struggles on a global front by working closely with international allies. A transnational movement of environmentalists, human rights workers, lawyers and indigenous organizations is emerging to defend indigenous rights.
By Dr. Michael A. Bengwayan Eurasia Review December 11, 2018
London---Indigenous and tribal peoples of Asia, are facing complex threats to their survival as distinct peoples. Not only are they confronted with dispossession of their lands and resources, and physical persecution, but they are also faced with the appropriation of their collective knowledge on plants, trees, animals, insects and even land and waters, developed through the ages.
This is according to a book by this author titled 'The Intellectual and Cultural Property Rights of Indigenous and Tribal Peoples in Asia' written for the Minority Rights Group International (MRG) based here in London, now available at Amazon.
Minority Rights Group International is an international human rights organisation founded with the objective of working to secure rights for ethnic, national, religious and linguistic minorities and indigenous peoples around the world with international headquarters in London.
The book says traditional knowledge on food, crops and medicinal plants is being taken by multinational companies, while traditional songs and designs are being commercialized for the tourism industry. The issue of indigenous cultural property rights is becoming more and more urgent for indigenous peoples.
Even with the United Nations' adoption of the Rights of Indigenous Peoples, there is minimum standard for the protection of indigenous peoples rights, the book asserts. This is because unfortunate international instruments are adversely impacting on indigenous peoples cultural rights. For instance, the General Agreement on Tariffs and Trade (GATT), and the Trade Related Aspects of Intellectual Property Rights agreement (TRIPS), put both indigenous peoples and developing nations at a disadvantage by imposing an intellectual property rights regime that does not take into account the diversity of cultures.
Also, Article 8j of the UN Convention on Biological Diversity (CBD), gives minimal recognition of indigenous peoples rights. It does not protect indigenous peoples from the drive by multinational companies to patent plant and animal materials — resources that are generally found in the biodiverse territories of indigenous peoples — for their potential medicinal and agricultural value, without the knowledge or consent of the peoples who have protected and nurtured such resources, the book covering 22 Asian countries said.
Salak Dima Personifies Asian IPs' Suffering
“When the trees are gone, the deer forever lost and the forests are just memories, we will weep. Not for the land that is bare and dead. But for us, our children and their children. When there are no more tears to fall, we will weep with our own blood.”
This is what Agta IP leader Salak Dima said to the author deep in the Palanan Wilderness Area of Sierra Madre, the biggest tropical rainforest of the Philippines at 200,000n hectares in personifying what wordsmiths call “the last forest guardians.
The Agtas are one of Asia's indigenous peoples marginalized by incoming settlers. Indigenous and tribal peoples see themselves as distinct from the mainstream. They speak their own languages, are largely self-sufficient, and their economies are tightly bound to their intimate relationship with their land. Their culture is different from that of the mainstream, inherited from their forebears and adapted to their current situation.
They take only from the Earth what they need, nurturing and caring for resources as a way of life. They have often lived on their lands for thousands of years.
It is difficult to generalize about Asia's indigenous and tribal peoples. They encompass a huge variety of peoples, living very different ways of life in a great variety of environments. One thing that they do have in common is the oppression and marginalization they experience. Often they suffer direct
violence, for example in Papua New Guinea, in Burma/Myanmar and in the Chittagong Hills of Bangladesh. They also suffer from development efforts by their own governments and by multinationals, through the takeover of their lands and resources.
In most parts of Asia where indigenous peoples land rights are recognized, the government retains the power to overrule these rights in the economic interest of the state. The intellectual and cultural property rights (ICPR) of indigenous peoples are under threat. These include their beliefs, knowledge (agricultural, technical, medicinal, ecological movable and immovable cultural properties), the book reveals.
Asian Indigenous Peoples’ Struggle To Protect ICPR of Biodiversity
The struggle of Asian indigenous peoples to protect intellectual and cultural rights ranges in form from resisting subjugation, territorial takeover, resources exploitation, the destruction of traditions, and infringement on customs and lifestyles, to fighting inhumane treatment, abuse and deprivation of human rights.
In South East Asia much of the struggle is over land and resources, as mining, timber and oil and agricultural corporations encroach upon indigenous peoples lands in search for profit.
Indigenous peoples are becoming victims of forced resettlement, pollution, diseases, militarization, starvation, social and cultural destruction, and the ruin of traditional ways of life.
Asian indigenous peoples close connection to the land makes them particularly vulnerable to ecological damage. Extractive activities threaten patterns of subsistence, living conditions and cultural practices.
In some cases governments deny indigenous peoples civil and political rights in order to prevent them from resisting the incursions. Some states face challenges in reconciling international human rights commitments to indigenous peoples with the requirements of foreign direct investment.
Against the odds, indigenous peoples have had some successes. Divide and rule tactics intended to break down their opposition have failed. Often, there are clear connections between resource extraction, human rights abuses and militarization. In some countries, governments have attempted to stifle the growing resistance of their indigenous populations.
From the Philippines, Indonesia and Malaysia to Papua New Guinea, there is a burgeoning indigenous movement against both governments and resource-depleting companies. This movement has brought together concerns about human rights and the environment. It is rural-based, grassroots-initiated and multiracial.
The indigenous opposition remains vibrant and effective. In Bangladesh, the struggle of the Jummas, the original inhabitants of the Chittagong Hill Tracts (CHT) is primarily to do with rights to land and resources. Many Jummas are losing their lands; they have been forcibly evicted by government military forces. The Jummas are also being displaced because of the discovery and development of a gasfield.
The gas reserve development has affected traditional food sources like homegardens and age-old community forests, threatening the extinction of many traditional food crops.
In Nepal, the indigenous people of Nepal are campaigning against the widespread plunder of germplasm (i.e. plant cells) and indigenous knowledge. Already, many plant resources have been lost, without recognition or recompense.
In Sri Lanka the Wanniyala-Aetto (forest beings), the Sri Lankan indigenous people, are being uprooted from their forest dwellings, shot at, detained, placed in reservations and sold as slaves or prostitutes. Their trees are being cut, logged and traditional foodlots being razed. The Wanniyala-Aetto women, in particular, bear the brunt of this inhuman treatment.
In the Philippines, many NGOs are working for indigenous peoples intellectual and cultural property rights in the Philippines and, seemingly, their efforts have paid off, with the passing of Indigenous Peoples Rights Act (IPRA) in 1997. But the body set up to implement IPRA, the National Commission on Indigenous Peoples (NCIP), cannot stop creeping mining, logging and commercial agriculture destroying wide tracts of forests.
In Indonesia,the most significant result of indigenous peoples struggle for recognition of their rights is the government's granting of decentralized power. It gave adat-based (traditional-based) villages powers beyond the standard notions of indigenous rights in international legal discourse. This allows the natives to take care of their forests and homegardens.
But millions of hectares of indigenous peoples lands are be destroyed and planted with oil palm destroying thousands of plant and animal species.
In Malaysia, encroachment into ancestral lands and intimidation are two of the many problems facing Malaysian indigenous peoples. There is no pause in the exploitation of their resources and appropriation of indigenous territories.
In Thailand, the Chao-Chaos, a mixed grouping of indigenous tribes in northern Thailand numbering almost a million, were granted a peoples Constitution which allowed them to participate in the democratic process in the country. They are led by the Assembly of Indigenous and Tribal peoples of Thailand (AITT). Together with the Northern Farmers Network, AITT is pressing for the adoption of a community Forest Bill, which will give indigenous peoples recognition of their right to their traditional resources and management practices.
In Cambodia, positive developments with regard to indigenous peoples struggle for land rights and the protection of their forests and natural resources is happening. Local activists and NGOs headed the campaign for a new law that gave provision for land tenure for indigenous people. Those who now have ownership and control of their lands are enjoying their rights to their resources, such as in the tapping of resin and development of inland fisheries.
But in Vietnam. the government is oppressive towards its indigenous population and does not allow advocacy activities. The government's Ministry of Agriculture and Rural Development and the Department for Sedentary Farming announced a campaign to wipe out traditional nomadic life and swidden farming of its indigenous population.
The government is attempting to eradicate traditional shifting agriculture, which is the lifeline of most highland indigenous peoples including the Banar, Ehde, Jarai, Koho and Mnong tribes, thousands of whom were imprisoned after calling for independence in February 2001.
This is causing genetic erosion of hunreds of traditional food crops including upland rice, rootcrops, legumes, tubers and leafy crops.
Laos has a similar policy as that of Vietnam, which aims to eradicate all traditional forms of agriculture by its indigenous peoples. As a result, hundreds of thousands of Hmong are being removed from their ancestral lands and relocated to areas which are not suitable for their lifestyle an cultural practices.
It is perhaps only in Burma/Myanmar, out of all the states in Asia, that the indigenous peoples form a majority. But under its military rule, politIcal detentions, harassment, militarization, military offensives, forced labour in labour camps and an educational crisis are widespread. Women face rape, marriage to military men and are trafficked by the military as slaves, labourers and prostitutes.
International Efforts to Fight Threat on IPs' ICPR
Indigenous people view the world they live in as an integrated whole. Their beliefs, knowledge, arts and other forms of cultural expression have been handed down through the generations. Their many stories, songs, dances, paintings and other forms of expression are therefore important aspects of indigenous cultural knowledge, power and identity form their heritage.
Heritage includes all expressions of the relationship between the people, their land and the other living beings and spirits which share the land, and is the basis for maintaining social, economic and diplomatic relationships — through sharing — with other peoples.
All of the aspects of heritage are interrelated and cannot be separated from the traditional Territory of the people concerned. What tangible and intangible items constitute the heritage of a particular indigenous people must be decided by the people themselves.
The guardians of an indigenous peoples cultural and intellectual property are determined by the customs, laws and practices of the community, and can be individuals, a clan or the people as a whole
Due to the active lobbying by indigenous peoples representatives in various international meetings, there is a growing appreciation by international agencies of the complexity of indigenous peoples discourse.
The World Intellectual Property Organization (WIPO) has begun discussions on the issue of indigenous peoples intellectual and cultural property rights, although many indigenous peoples are not entirely happy with the process. The UN has also undertaken a study on the heritage of indigenous peoples and put forward several recommendations but these remain recommendations only.
Most of the discussions at the international level on the issue remain elitist — only a very few indigenous individuals are able to participate and information regarding the discussions or outcomes is not extensively disseminated. There is a gap between the international debate and the local realities
Most indigenous communities are faced with life-threatening issues that keep them from actively engaging in international policy advocacy work, and yet many of the issues that indigenous peoples face on the ground are brought about by the implementation of policies crafted at the international level.
Asian indigenous peoples are now often able to wage their local struggles on a global front by working closely with international allies. A transnational movement of environmentalists, human rights workers, lawyers and indigenous organizations is emerging to defend indigenous rights.
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