1. After Nagoya :
Who Owns
Native Culture
Brendan Tobin
Warwick University June 17

2. Peru ICBG 1994-96
• No national legislation
• No government oversight of conditions
• Use of genetic resources made conditional on
licence to use TK
• All TK treated as know how whether or not in
the public domain
• Control of use of TK very difficult
• Conflicts – politics of indigenous organizations
• Most benefits stayed in the North

3. Whose Knowledge Whose Laws
• Brown – dangers of removing TK from the public
domain
• Barsh – property rights are the easy way –break
the bond between land, knowledge and people.
• Daes – guidelines and principles – protection
should be based on customary law
• Rosa Brooks – Human rights and rule of law –
New Imperialism
• Carpenter et. Al. redefining notions of property

4. Int’l law Obligations
• Convention 169
– Duty to consult
– Recognition of land rights
– Rights to customs and institutions
• UNDRIP
– Right to self-determination
– Rts to lands, territories and resources - knowledge
– due recognition of customary law
– Rights of access to justice

5. Peru Ley 27811
• Requires licence for use of TK
• Creates indigenous fund
• Fixes unilateral royalty rates
• Recognizes TK as cultural patrimony
• Requires state to defend indigenous rights
• May undermines collective management and
rts

6. Nagoya’s take on community rights
• Each Party to take measures with the aim of
ensuring :
– PIC for access to ILC’s genetic resources
– Fair and equitable benefit sharing arising from
utilization of genetic resources
– PIC for access to TK
– Fair and equitable benefit sharing re use of TK
– Implementation in accordance with ILC’s
customary law and protocols

7. What it hasn’t done
• Regulate pre-CBD and pre-Protocol uses of TK
• Set up functional enforcement mechanisms
• Dealt with misappropriation
• Include TK within monitoring system
• Provide support for ILC’s to monitor use of TK
• Promote strengthening of TK systems through
multilateral fund

8. What is Custom
• Greeks & Romans
Natural, Customary and Positive law
• Medieval Europe
– End of middle ages began codification
• Britain –
• General custom, local custom and court custom
• International
– Customary int’l law, Leymarchant
• Indigenous Peoples
– Indigenous common law - custom
– Tribal statute – written – applying custom

9. Rights to lands and resources
• HRC - Lanesman cases –
– cultural rights to traditional economic
practices
• CERD
– Art 27ICCPR interpreted as source of State
obligations to protect the traditional land tenure of
indigenous peoples
• Saramaka - Awas Tingni
– Without them, the very physical and cultural
survival of such peoples is at stake

10. Customary law as a source of law
• Native title to lands
– Mabo, - exhaustion of rights
– Canada – Justification test
• To resources
– Blue Mud Bay
• To knowledge
– Based on knowledge sharing spaces?

11. Customary solutions
• NAGPRA – US –
– museums to repatriate human remains, sacred and
funerary objects
– Customary law to determine cultural patrimony
• Sacred sites –
– government always wins –
– need positive measures to promote compliance.
• Proposal for stewardship –
– using customary concepts in positive property regime.

12. Nagoya - What it might be
• Provide recognition of basic rights
• basis for an international monitoring system
• Respect ILC’s human rights
• Basis for provider country collective action
• Promote gender equity
• Testing ground for customary law and legal
pluralism

13. Role of Customary law
• Inform participatory process to define
implementation mechanisms
• Provide legal solutions
• Identify cultural patrimony
• Define sui generis rights
• Provide basis for community PIC Protocols
• Inform and guide dispute resolution
• Guides Tribal courts

14. Compliance and custom
• Compliance mechanisms
– access to justice
– Issues of proof of custom
• Name and shame process
– Form of Human rights Treaty body
• Need for impartiality
• ombudsman
• Capacity building
– private sector, government, courts

15. Interface with positive law
• Multicultural approach confines CL to internal
regulation of indigenous peoples
• Intercultural approach seeks to combine
principles from a variety of legal traditions
• Protection of TK takes CL beyond local and
national jurisdiction.
• Raises many practical and legal questions –
access to justice – recognition of foreign
judgments – rules of evidence

16. Intercultural Equity
• Equitable system requires equitable
compliance mechanism balancing customary
and positive law
• This requires construction of flexible
interfaces between disparate systems
• Requires intercultural legal pluralism drawing
upon a variety of legal traditions
• With a human rights dispute resolution
mechanism based upon a body of intercultural
principles of Equity.

17. Conclusion
• Equity is a process not a destination
• Nagoya adds an imprint of international
concern and possibility of legal consequences
of failing to comply with CBD objective.
• Riddled with ambiguities and unmet potential
Nagoya reflects the conservative process of
international legal development.
• Intercultural equity requires a more expansive
and flexible legal vision