Document(s) 15 of 37

Many indigenous peoples have traded with outsiders for centuries, but interest in and potential profits from knowledge and biogenetic resources are now increasing in modern markets. Some pharmaceutical and personal care companies are approaching indigenous communities directly or through intermediaries or brokers. Indigenous peoples often need cash for tools, transport, schoolbooks, radios, medicines, cultural items, legal assistance, and to maintain their own institutions and negotiate with each other and the state. How can the need to secure external sources of income be reconciled with indigenous peoples’ wish not to sell, commoditize, or otherwise lose certain domains of knowledge, sacred places, plants, animals, and objects? The decision to enter trade relations with outsiders is important, and many factors must be borne in mind by those making it. They must be aware of their rights under the law and the implications of such a decision.

The effects of trade

Trade can be a two-edged sword. It can bring wealth and independence, but it can also increase dependence on outsiders and vulnerability to exploitation. Many environmentalists (and even some companies) believe that the trade in nontimber forest products (NTFPs), like fruits, nuts, fibres, oils, and exudates from tropical forests (the so-called “rainforest harvest”), can benefit both the forests and their indigenous inhabitants. A well-known advocate of this view is the NGO Cultural Survival, which has assumed an active role as an intermediary between indigenous groups and companies interested in buying products such as NTFPs. Another NGO, Survival International, which has campaigned for the rights of indigenous peoples for more than 25 years, is much more sceptical. In the early 1990s there was a great deal of debate among NGOs, journalists, and academics concerning the theory and practice of sustainable trade in NTFPs. What are the underlying assumptions behind the opposing positions of Cultural Survival and Survival International? It is instructive to see how they respond to the following four statements:

1.     Indigenous people are already part of the world economy and have needs that can only be satisfied through trade.

Cultural Survival says its position is one of realism: most indigenous peoples are already locked into the world economic system and cannot simply opt out. According to Jason Clay, former head of the organization’s trading operations, “We have not found any groups that are not, in some way, involved with the market economy, nor have we found groups that don’t want to get a better price for goods that they are producing” (Clay 1992). Cultural Survival also points out that campaigning for recognition of their rights will require a degree of financial independence by indigenous communities (Clay 1992). In addition, groups need money to buy medicines and other important goods. One might suggest also that it can seem paternalistic to assume that consumption of luxury goods will necessarily weaken a group’s cultural identity. For example, the Kayapó, who have had trading links with Cultural Survival and The Body Shop, use video cameras to record their ceremonies and tape recorders to record the promises made to them by company and government representatives. If they cannot gain income from an environmentally friendly source, they resort to other means, such as selling logging and mining rights.

Survival International claims not to disagree with the statement (Stephen Corry, director general, 1994, personal communication) but says that the new extractivism is far from lucrative and can only benefit a small number of people. The organization has accused Cultural Survival of exaggerating the economic potential of extractivism and its importance as a means of empowering indigenous peoples and of misleading members of the public who believe that they are helping indigenous peoples by buying their products (Corry 1993).

2.     Trading in forest products to supply overseas markets is inherently exploitative.

Survival International argues that the history of such trade provides strong evidence in support of this statement. For example, quinine, a cure discovered by indigenous Amazonians for a disease introduced by invading Europeans, was overexploited without benefit to the native people. Also, the “rubber boom” of the early 20th century caused enormous suffering to many forest dwellers who were badly treated by traders. Prices of many NTFPs are low and, even when products have a high economic value, local communities seldom receive a fair percentage of the value added to products that are processed and transported long distances. Thus, the view that trading in forest products has always been an expression of colonialism at its most rapacious is certainly reasonable, making the whole idea of saving the rainforests by increasing consumption of these products in the North seem contradictory. According to Corry (1992), “It’s dangerously ironic that the increased consumption in western markets, the cause of much of the destruction, is now hailed as beneficial.” Not only is Cultural Survival wrong to embrace it, but it is guilty of a subtle form of neocolonialism, even if its intentions are benign.

Cultural Survival counters with the argument that tropical forests must pay for themselves. Sustainable trade in forest products adds value to a standing forest and creates incentives to conserve them by providing employment and income. The fact that, more often than not, economic value has usually been extracted without any regard to the environment or the lives of forest dwellers does not invalidate the argument. Although Cultural Survival argues that the “use it or lose it” concept points to the need to build international market links of the kind it is promoting, Survival International argues that local communities are already using the forest’s resources but that this “subsistence value” is not taken into consideration in the development process. Thus, it is not international trade that will save the forests but securing the rights of forest communities so that planners and politicians will have to recognize this kind of nonmonetary value (Corry 1993, pp. 3–5).

3.     Trade makes indigenous peoples more, not less, dependent.

According to Survival International, indigenous groups are bound to become victims of the vagaries of market forces if they get involved in selling raw materials for products like confectioneries and cosmetics. Trade in exported products whose popularity may be short-lived will increase dependence on the trade and on the companies that groups work with, making trade-based relations essentially paternalistic. According to Survival International, “The ‘harvest’ will not empower the rainforest community . . . the real effect is to tie the people into exactly the same relationship of dependence and patronage as any of the traditional forms of exploitation through which the wealthy dictate trading terms to impoverished people and countries” (Corry 1993, pp. 6–7).

Cultural Survival is aware of the risks but counters that in the absence of alternative sources of income, the sustainable trade in forest products is a worthwhile activity. According to Clay, “If they [the producers of raw materials] do get more of a return, that will slow or maybe even halt the destruction of a lot of this resource base. It will also

help preserve the cultural diversity if these indigenous people have an economic base”

(see Lerner 1992, p. 160).

4.     Trade can cause internal divisions within indigenous communities.

Survival International has claimed that a project in which the UK-based company, The Body Shop, works with the Kayapó Indians of Brazil to extract brazil nut oil for export to Britain has been socially divisive. According to Corry, “It has contributed to internal antagonisms and divisions, not to mention social dislocation and alienation which recently ruptured the community completely” (Corry 1993, p. 2). Certainly, the social impact of sudden wealth, along with quarrels between those who wish to participate in trading and those who oppose it, can be destructive to a community.

Cultural Survival and The Body Shop accept that there are risks but argue that indigenous peoples and their cultures may be far more resilient than Survival International appears to assume. They also point out that Kayapó society has always been riven by disputes: they did not begin with its relationship with Cultural Survival and The Body Shop. According to The Body Shop’s chairperson, “The Kayapó are not placid people; their history is one of internal strife and villages breaking into factions, eventually dividing into subvillages” (Roddick 1992). This point of view is supported by most anthropologists familiar with these people.

Whether Cultural Survival or Survival International has the most convincing arguments, local communities around the world are finding it ever more necessary to secure a reliable flow of income so that they can achieve greater self-sufficiency. They may try to earn money by working outside the community, although doing so is seldom lucrative. Another way, and often a more appealing option, is to establish market links. Community members may take the initiative and sell local resources, manufactured goods, and artwork in local and regional markets, as many communities have done for centuries, or they may establish an agreement with a company, perhaps from another country, that is interested in commercializing the community’s knowledge, resources, or arts and crafts.

Given the reality that some companies and individuals will enter into such agreements without even asking local communities for their consent, what rights do communities have to prevent unwanted commercialization or to ensure that they have control over commercial activities?

Option 1: say “no”

“Biodiversity prospectors” and biotechnology developers are not noted for their ethics and concern for, or experience with, indigenous peoples or local communities. They are noted for capitalizing on opportunity. Therefore, there are good reasons why indigenous and traditional peoples should be worried about the commoditization of their cultural, intellectual, and scientific property — not to mention their plants, animals, seeds, and even their own genetic material.

For example, the Guajajara people of Brazil use a plant called Pilocarpus jaborandi to treat glaucoma. Although Brazil now earns $25 million annually by exporting the plant, the Guajajara have allegedly been subjected to peonage and slavery at the hands of agents of the company involved in the trade. Furthermore, the supply is being rapidly exhausted (Davis 1993, pp. 8–11).

However, companies and individuals are not the only ones seeking to commercialize resources without the consent of local people; local communities face the serious problem of expropriation of their resources by nation states. Most collection agreements and international exchange arrangements are not with communities but with national governments. Thus, indigenous peoples are often denied by their own governments the basic right to exploit their own resources for commercial purposes.

Two kinds of rights may be asserted to strengthen the ability of indigenous peoples to enforce a decision against commercialization of their knowledge and resources by others: the right to self-determination and inalienable rights.

The right to self-determination

Self-determination is a doctrine of international law that can be regarded as a collective human right. According to two UN agreements — the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the ICCPR — all peoples have the right to self-determination, and by virtue of that right, may freely determine their political status and pursue their economic, social, and cultural development (see also Chapter 10).

In spite of its enshrinement in international law, the degree of self-determination conceded by nation states to indigenous peoples varies within the extremes of virtually none to full sovereignty rights. Full sovereignty rights include the right

• To be self-governing;
• To enact legislation;
• To control access to the territory and the resources existing within territorial boundaries; and
• To enter into legally binding international treaties.

In some countries, indigenous peoples have limited sovereignty over their own territories. Perhaps the broadest sovereignty rights for indigenous peoples are exercised by the people of Greenland under the 1979 Home Rule Act passed by the Danish parliament (Nuttall 1994; Petersen 1994). The people of Nunavut in northern Canada will soon enjoy similar rights. Many native tribes in North America and the Maori of New Zealand have treaties with their nation states that imply acknowledgment of their right to self-determination. In the United States, native tribes recognized by the federal government have sufficient sovereignty rights to allow tribal courts to adjudicate violations of customary law committed by both Indians and non-Indians (T. Greaves, Department of Sociology and Anthropology, Bucknell University, Lewisburg, PA, USA, 1994, personal communication). If their laws forbid the commercialization and “export” of certain

resources, it may be possible to prosecute visitors who break them (although this action may conflict with federal law). Some native American tribes even issue passports.

Without self-determination, including legal title to their territories, it is very difficult for traditional groups to back up their right to say “no” to commercialization. Nevertheless, principles do exist in international law that support rights to self-determination of indigenous and traditional communities.

Inalienable rights

In traditional societies, the right to livelihood resources (apart from immediate personal possessions), such as trees, crop species, and medicinal plants, are not usually exclusive (Okoth-Ogendo 1989, p. 11). They are often shared among individuals and social and corporate groups, each of which may have “bundles” of graded rights to the same resources within a given area. Such rights are considered inalienable; they cannot be transferred, either as a gift or through a commercial transaction. As a general rule, knowledge and resources are communally held and, although some specialized knowledge may be held exclusively by males, females, certain lineage groups, or ritual or society specialists (such as shamans), this does not give that group the right to privatize the communal heritage (see also Chapter 6). Thus, customary law may make it illegal for anybody to sell knowledge and resources. Many African countries acknowledge customary law by having dual legal systems, so that crimes and disputes can either be settled within the community or decided in the courts according to local custom. Other nation states, regardless of whether they have conceded sovereignty rights to indigenous groups, may also recognize customary law. For example, the Canadian Royal Commission on Aboriginal People recommended that indigenous customary laws take precedence over federal and provincial laws when they conflict (Richardson et al. 1994, p. 45). In countries where customary law is recognized as part of national law, and local communities have inalienable rights to certain knowledge and resources, legal recourse in national courts should be possible in cases of unauthorized commercialization of knowledge and resources.

Both collective rights and the inalienability of resources are linked to the need for indigenous peoples to secure legal title to their territories and can be used to strengthen their claim to territory. According to Gray (1994):

Indigenous land rights are based on a people’s prior occupation of an area, usually before a state was even formed. In this sense, Indigenous Peoples have a claim to “eminent domain” (inalienability) which a state usually considers to be its own exclusive right . . . . Connected with the concept of inalienability is the collective responsibility which a people has for its territory. This does not mean that individual persons cannot hold lands and resources for their own use, but that personal ownership is based on collective consent. The collective rights to lands and resources of Indigenous Peoples have been acknowledged by many governments of the world in their constitutions and in international provisions.

Option 2: say “yes”

Indigenous groups may have been trading in local resources and in manufactured goods for many years. Others may be less experienced traders and less aware that biogenetic resources and local knowledge about them may serve as the basis for products that can help drug, personal care, and other companies generate profits. Whether an indigenous group chooses to trade independently or to build relations with such companies, legal options do exist. Chapter 8 explains how indigenous peoples can use IPR tools to protect knowledge about resources that they wish to commercialize. In many cases, however, the best way to benefit from trade may be to press for the right to receive fair compensation.

According to Corry (1993, p. 6):

The best marketing schemes are those which arise from the people themselves and are controlled by them; are appropriate within their economic and social situation; lead to genuine economic independence from exploitative middlemen; promote cohesiveness rather than division within the communities concerned; and are not carried out by outside organizations for their own profit. Profits should belong to the community which should be under no coercion if it wishes to abandon the scheme.

According to Clay (Lerner 1992, pp. 159, 161):

Every indigenous group that I have worked with, and the vast majority of the rest of them, sells or trades something because they all need to buy things . . . . We [Cultural Survival] work at figuring out how these groups can make a living in the modern world. We focus on how they can trade, sell, or barter products to get what they need to have better health, better education, or whatever. We are interested in what skills they need in the modern world that will not destroy or degrade their resource base. This requires working with them and providing them with technical assistance.

The right to development

There is at least one principle of international law that grants any people the right to participate in development on their own terms: the right to development. For indigenous peoples this right encompasses

• The right of access to resources on their territories; and
• The right to seek development on their own terms.

This is an important principle because governments may interpret the CBD in a way that gives nation states sovereignty rights to all knowledge and biogenetic resources existing within their borders. Also, government agencies and NGOs concerned with conservation sometimes deny communities the right to exploit and commercialize local resources. The principle of the right to development is enshrined in international law in

Box 5.1

Bixa orellana: the Yawanawa Association and the Aveda Corporation

Bixa orellana (or annatto) is native to and widespread throughout the neotropics. It is a shrub, often cultivated around villages and in yards. It has many traditional uses, such as in folk medicine.

Bixin is a derivative that is traded internationally as a food dye. During the 19th century, the Brazilian Amazon exported significant quantities of annatto powder to Europe. Nowadays, there is renewed interest in annatto among food-processing and cosmetic companies because bixin is safe for consumption and skin application.

The Yawanawa Indians have lived in an area of Acre, Brazil for centuries, but like many indigenous groups have been under extreme pressure from immigrants to the region for over 100 years. The Aveda Corporation, based in Minnesota, has recently begun a joint effort with the Yawanawa to develop commercial products from B. orellana. Aveda staff have worked directly with the Yawanawa Community Association in the development of their research program.

The project itself was put together and is administered by the community association with support from local institutions. The Yawanawa association is legally institutionalized and autonomous. Aveda has supplied financing to cover all the costs of establishing “plantations.” Financing is spread out according to a schedule determined by the operational and administrative needs of the community. Aveda must approve expenditure reports before supplying funds, and these must match the preapproved plan.

Once larger scale B. orellana production is in place, the association can sell or export the material as it wishes, and Aveda will be treated as any other buyer. The agreement between the association and Aveda is not exclusive, nor must Aveda buy all that is produced, although it has made a commitment to help place any excess product in the market. It is thought that the amount produced will exceed Aveda’s current needs significantly, but staff at Aveda are researching additional applications for B. orellana in their cosmetic line, and local and international demand is significant and rising.

Because B. orellana is a widely known and used product throughout the neotropics, and is available in any marketplace there, the agreement between Aveda and the Yawanawa was not based on ethnobotanical leads but deals primarily with assuring a source of raw material for use in Aveda products. Aveda is trying to keep the level of its involvement to a minimum and is taking the lead of the community regarding product selection (within a list of species) and sustainable harvesting.

For further information, contact Aveda Corporation, Rua Marques de Abrantes 148/1104, Flamengo, Rio de Janeiro, Brazil.

both the ICESCR and the ICCPR (Article 1 of both). It is also included in the International Labour Organisation’s (ILO) Convention 169, as follows:

The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. [Article 7.1]

The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources. [Article 15.1]

Whether a group decides to favour or oppose the commercialization of their knowledge, legal options are available, such as contracts and covenants providing for up-front payments, royalties, a legal fund, and arbitration. Also, some companies are developing policies intended to provide benefits for indigenous peoples collaborating with them. The case study in Box 5.1 illustrates the potential benefits of trading links with those, so far few, companies that are willing to collaborate with local communities in a manner that respects their rights.

Conclusions

Deciding whether to commercialize knowledge and resources may be one of the most important decisions faced by a community or group because of the possibility of far-reaching economic and social impacts and the risk that it will result in diminished control over knowledge and resources. Before deciding to get involved in trade, either independently or in collaboration with an NGO or corporation, the community must be clear about how it can act legally. The next three chapters provide information about how communities can do this.

Document(s) 15 of 37