“We hold that life cannot be bought, owned, sold, discovered or patented, even in its smallest form.” -1995 Declaration Issued by Indigenous Organizations
Biocolonialism is a modern term that casts genetics research in its true light, showing the role it plays as an aggressive and damaging assimilation against indigenous peoples. Dr. Debra Harry, a Northern Paiute woman who serves as the Executive Director of the Indigenous Peoples Council on Biocolonialism, states “the biocolonisation process requires access to, and ownership of, the world’s genetic resources (both human and non-human) for the development of new genetic products and processes.” (703). Genetically modified organisms (GMOs) are one of the most dangerous front-runners of the process as it the long-term effects of genetic food modification is unknown. Dr. Harry also believes the commercialization and release GMO crops ultimately threatens food security while simultaneously impacting the “cultural and spiritual relationships that Indigenous peoples have with their traditional foods and medicines” in a negative manner (703). The heart of the biocolonialism movement fosters attempts to control and own natural resources, thereby directly impacting the ancient knowledge systems of Indigenous peoples. To protect Indigenous knowledge, one must study the “intersection of international standard-setting debates related to genetic resources and traditional knowledge, and Indigenous peoples’ advocacy in the assertion and protection of their rights in international fora.” (Harry 706). There are two primary frameworks in which people can protect the rights of international Indigenous knowledge: the intellectual property rights framework or an Indigenous Peoples’ collective rights framework. While both have their pros and cons, the latter is most consistent with Indigenous ideologies and is ultimately better for the planet and people long-term.
Championed by big industry, Indigenous authors like Laurie Ann Whitt believe the intellectual property rights framework solely benefits the biotech industry with little regard given to Indigenous peoples or nature (Harry 704). When an aspect of Indigenous heritage is claimed by these intellectual property rights, it becomes just another commodity to be bought, branded, and sold, directly conflicting with the cultural values of most Indigenous communities. In fact, most Indigenous peoples are so opposed to this idea that in 1995, many Indigenous organizations issued a meeting of Indigenous groups from the Western Hemisphere to call for no patents on life forms (Harry 705). Aside from clashing with Indigenous ideas, the intellectual property rights framework is extremely focused on short-term benefits, giving little regard to the future of all people. The idea of being able to patent nature is a dangerous one; prior to the Patent Act of 1980, “laws of nature, physical phenomena and abstract ideas were not patentable subject-matter.” (Harry 717). The intellectual property rights framework argues that it can still protect Indigenous rights, but few Indigenous peoples have faith in it because the best it can do is limit “economic benefit when IK, GR or TCEs are used commercially if Indigenous peoples themselves are the IP holder.” (Harry 718). The life of patent protection is usually capped at 20 years, therefore, even this meager shield is short-lived. The main issue with this form of protection is that it is attempting to protect property when the Indigenous relationship with nature is built around the concept of natural resources being anything but property.
An Indigenous Peoples’ collective rights framework is founded on the idea of “self-determination as the basis for [Indigenous] proprietary, inherent and inalienable rights over [their] traditional knowledge and biological resources.” (Harry 719). Self-determination is a human right, and although international law recognizes and upholds it, states rarely legitimize the self-determination rights of Indigenous peoples (Harry 720). The states’ fears are centered around their colonial goals being undermined by the beliefs and ideologies of Indigenous peoples. By impeding on Indigenous rights set forth by international laws, states are casting aside the valuable answers that lie within Indigenous knowledge systems. While colonial ideology is “compartmentalized and specialized, and are often reductionist in nature,” Indigenous knowledge systems are interwoven with their “rich cultural heritage and the territories.” (Harry 722). If one closely follows those values, it is clear that no aspect of nature can be patented or sold because it is impossible to separate one entity from the other. Dr. Harry poses a brilliant question by asking “how could anyone possibly claim a right to sell Indigenous intellectual traditions when those traditions are a gift from previous generations and the birthright of future generations?” (722). It is dishonorable and a direct violation of human rights to patent nature. There are no disadvantages to following an Indigenous Peoples’ collective rights framework, save for the big industry leaders who care only for short-term profit.
Due to the complete disregard for nature and their rights as Indigenous peoples, some tribes have “declared their territories life-form patent-free zones, while others have enacted local and national legislation to regulate research.” (Harry 723-724). While the international deliberations remain stagnant, Indigenous peoples must continue to fight the battle locally and exercise self-determination by choosing to be non-subjects of unlawful state choices. To obtain actual protection of Indigenous knowledge, Dr. Harry recommends the following: limiting the IPR regime so it only protects true innovation and creative works; furthering the expulsion of IK and genetic resources that have been wrongfully claimed; categorizing IK, TCEs and genetic resources as unchallengeable heritage, making them outside the laws relevant to the public domain (724). Although it is up to the “United Nations to ‘monitor and take action against any States whose persistent policies and activities damage the cultural and intellectual property rights of Indigenous peoples,’” states must recognize the “collective rights of Indigenous peoples to protect their genetic resources and Indigenous knowledge on their own terms and to live free from the threat and impacts of biocolonialism.” (Harry 725). Changes to the Western law will never fully protect Indigenous knowledge and biodiversity, and the only solution to ensure Indigenous heritage survive is to follow Indigenous traditions and to avoid commercial exploitation at all costs. The ancient wisdom of the Elders sums it up best by explaining that “Indigenous knowledge and cultural heritage must be lived and practiced, and transmitted from generation to generation within our communities, as we have been doing for millennia.” (Harry 725).
Harry, Debra, “Biocolonialism and Indigenous Knowledge in United Nations Discourse.”
Griffith Law Review, Volume 20, No. 3, 2011.