Group resource rights and the protection of indigenous knowledge systems in international law
Creators: name: Okpanum, CC
Publisher: name: University Of Tasmania
Year: 2023

description: This thesis considers the nature of indigenous knowledge systems, and recommends how the interests of indigenous and local communities could be protected in their knowledge systems. The need to protect indigenous knowledge is based on the increasing internationalization of indigenous issues in recent years, and the increasing accessibility to indigenous knowledge systems by non-indigenous entities. This increased external access is allied with attendant commercialization of several aspects of indigenous knowledge systems and resources. In turn, the commercialization of these knowledge systems and resources has engendered allegations of 'biopiracy': that is, the unauthorized or uncompensated access to indigenous knowledge and resources. This situation creates tensions between local communities and the states, and sometimes, between developing and developed states. In consequence, therefore, there is the imperative to protect the knowledge systems that have for centuries constituted the means of personal expression, survival and subsistence for indigenous and local communities. In brief, the crux of this thesis is that indigenous knowledge systems are peculiar in several respects, reflecting the distinct social and cultural practices of diverse local communities. Therefore, a good understanding of these peculiarities is a vital starting point in any effort to protect these knowledge systems. In the main, these peculiarities relate to three major aspects of the nature of indigenous knowledge. The first aspect relates to the holistic nature of indigenous knowledge: this attribute implies that local .communities nurture and exploit indigenous knowledge essentially as 'unified body of knowledge systems,' and do not compartmentalize knowledge into distinct components. The second aspect relates to the cumulative or inter-generational accumulation of knowledge across many generations, and over several centuries. These two attributes lead to the third: the preponderance of group or communal use and ownership of knowledge and resources by local communities. This thesis affirms that the need to protect indigenous knowledge systems exposes the inadequacies inherent in existing intellectual property right (IPR) mechanisms for this purpose. Furthermore, key existing treaties, including the Convention on Biological Diversity (CBD) 1992, and the ILO Convention on Tribal Populations 1982, among others, fall short of adequately protecting indigenous rights, knowledge, and interests. These inadequacies stem from the combined effects of the three factors noted above, especially the group nature of indigenous rights and resource holding. In consequence of the above, to effectively protect the resource rights and interests of indigenous and local communities, this thesis proposes the adoption of an International Convention on the Cultural and Resource Rights of Indigenous Peoples. This Convention is to act as a framework instrument for the sui generis domestic protection of indigenous cultural and resource rights as 'group rights,' to accommodate collective interests of indigenous and local communities, while allowing access to interested parties. In doing this, this thesis deliberately separates indigenous 'cultural and resource rights' from the issue of indigenous self-determination. This is to ensure that the adoption of the Convention by the international community is not entangled in the same web of international politics that has trailed the meaning of 'indigenous self-determination' for decades. In this way, getting control of effective cultural and resource rights would be a positive step for local communities.