1. What is an MOU, and the purpose of having a written ...
WWF International
People & Conservation Unit
Equitable Biodiversity Research Relationships in Practice:
Written Agreements Between Communities and Researchers
January, 1999
Sarah A. Laird
Please send comments to: sarahlaird@
Sarah Laird, P.O. Box 222, Waterbury Center, VT 05677 U.S.A.
Prepared for WWF-International (9Z0698/01)
I. Introduction
The WWF International Statement of Principles on Indigenous Peoples and Conservation calls for equitable relationships between indigenous peoples and local communities, and a range of parties, including researchers. In some cases, this will involve the establishment of “agreements with the indigenous organizations representing local communities, to ensure that they are able to fully participate in decisions about the use of knowledge acquired in or about the area they inhabit, and equitably benefit from it. These agreements will explicitly determine the ways and conditions under which WWF will be allowed to use such knowledge (para 28.)”
In order to serve the broader objectives of the statement – including rights to “free and informed consent prior to the approval of any project” (12.) and the sharing “in any economic or other benefits realized from their intellectual property and traditional knowledge, building on the provisions of the Convention on Biological Diversity “(15) – agreements between researchers and local communities in a variety of contexts will be required. The following discussion and guidelines for the development of written agreements is a response to this need, and calls from a number of quarters for the formalization of research relationships.
“Community research agreements”, “community protocols”, “community codes of conduct”, and “memoranda of understanding” are terms used to refer to written forms of agreement between communities and outside researchers. They are often used interchangeably, but can represent a range of approaches and relationships. For the purposes of the following discussion, we will use the term memorandum of understanding (MOU) to refer to written, yet flexible, and potentially legally-binding agreements between communities and researchers. The emphasis of the discussion is non-commercial research relationships, but there exists extensive and increasing over-lap between academic and commercial research relationships. As a result, this distinction is not always usefully made, and we will cover some commercial arrangements, as well.
To date there exist few examples of written research agreements between communities on the one hand, and academic or commercial researchers (or conservation and development project partners) on the other. In many cases written documents may not be appropriate. In others, they are the logical extension of a process through which communities and researchers define and clarify their relationship. Written documents grow from the basic elements of developing an ethical and open working relationship - agreement on operating principles and objectives, clear definition of activities to be undertaken and mutual responsibilities, and so on. As a result, each agreement will reflect very distinct cultural, academic, legal, and possibly commercial factors.
The framework document and guidelines below include a discussion of the process by which agreement is reached, and reviews the core elements contained in written agreements. Communities (as well as researchers, protected areas managers, and others) can pull from the framework as needed, since not all pieces will be relevant in all cases. It should also be emphasized that community research agreements are one possible “tool” which can be used to control access to knowledge and resources, set terms for equitable relationships, and define benefits that will be shared. They will be most effective when combined with other measures, including international and national law and policy, and researchers’ own professional codes of conduct.
Agreements of this kind, and the research relationships upon which they are based, raise a number of broad ethical, legal, and policy issues which form the background and context in which these agreements are situated. Because there are numerous publications addressing these issues, and the intention here is to provide practical guidelines and a framework for consideration, we will not review these wider issues here.[1]
II. Community Controlled Research and Written Agreements
There exist increasing calls, from a range of quarters, for “community controlled research”. Community controlled research is that in which communities set research agendas and the terms for research collaborations. The Kuna, in Panama, for example, launched a program in 1983 to establish and manage a forest reserve, including conducting inter-disciplinary research to assist in forest management (See Box). The Inuit of Nunavik in Northern Quebec initiated a large-scale research program in order to develop a database on their use and knowledge of the land base and resources, in order to help with the management and sustainable development of Nunavik (Simon and Brooke, IUCN, 1997).
In India, a People’s Biodiversity Registers program is underway to document and provide a record of local knowledge; to revitalize local knowledge; to alert conservationists to the need for protection of knowledge as well as resources; and to protect local biodiversity and knowledge from misappropriation by companies. These goals were agreed at the 1995 “Foundation for Revitalisation of Local Health Traditions: Beyond the Biodiversity Convention – Empowering the Ecosystem People” meeting held in Bangalore. Protocols guiding the collection and dissemination of data are currently under development (Gadgil, 1998).
Research tends to be most valuable for local community management when communities either actively design and manage the research program, or at a minimum provide “Prior Informed Consent” for the research program.
Whether growing from a community-designed research program, or the interests of an outside researcher, MOUs are a useful tool for defining and clarifying the nature of a research relationship. Through the process of reaching agreement, communities and researchers can come to a better understanding of where and how their goals converge. The final document is therefore less important than the process by which it is reached, since it will express relationships previously articulated and agreed-upon during this process. As a result, the following guidelines might be used primarily as a framework for reaching agreement, and might not culminate in a written document.
Written agreements should not make the research process unnecessarily bureaucratic and restrictive for ethical and conscientious researchers. If relationships are well-defined, drafting a written agreement should be straight forward and quite simple. If, on the other hand, relationships are poorly defined, the process of developing a written agreement can clarify potential concerns, state the underlying objectives of the relationship in ways that will hold true over time, and will avoid confusion and inconsistent and unrealistic expectations. An MOU will also bring to the surface what may be implicit in a research collaboration, but may not come to light otherwise. For example, in some countries government-funded research results must be published in entirety, and in others government-funded research institutions are required to pass results with commercial value on to companies. Public disclosure laws are often not well understood by the funding agencies or the individuals seeking to conduct research. In the United States, for example, both raw data and published results may be open to the public under various laws and regulations (Ruppert, pers. comm., 1998).
A case can be made that all commercial research collaborations should involve formal written agreements, and that if such agreements are deemed culturally inappropriate, the research should not take place. Commercial research grows from a sector in which the written word is central to communication and confirmation of shared objectives and understandings. If a community is ill-prepared to undertake written agreements with a company, then they are unlikely able to monitor the research relationship over time.
The distinction between commercial and academic research is blurred, however. Many academic researchers collect resources and knowledge for commercial companies. Less directly, but more commonly, most companies acquire information on traditional uses of species via academic publications and databases. This provides another reason for academic researchers to ensure their relationships with communities are well-defined, and are based on prior informed consent (including the manner in which data and recorded knowledge are distributed outside of the community).
It is important to recognize that traditional, customary law has a critical role in the negotiation, design, and resolution of disputes associated with agreements, and that agreements will take shape in response to existing customary norms, and either not or only partly with reference to national laws or international conventions. As The Four Directions Council (an organization of North American indigenous peoples) warns: “indigenous peoples possess their own locally-specific systems of jurisprudence with respect to the classification of different types of knowledge, proper procedures for acquiring and sharing knowledge, and the rights and responsibilities which attach to possessing knowledge, all of which are embedded in each culture and its language... Any attempt to devise uniform guidelines for the recognition and protection of indigenous peoples’ knowledge runs the risk of collapsing this rich jurisprudential diversity into a single “model” that will not fit the values, conceptions, or laws of any indigenous society...”
Finally, it must also be emphasized that agreements of this kind will only be effective in cases in which the national policy and legal context support the territorial and resource rights of local people, and their right to self-determination. These are required prerequisites for equitable relationships between local communities and outside researchers, and will provide the legal basis for agreement between parties. As stated by the International Alliance of Indigenous-Tribal Peoples of the Tropical Forests and the International Work Group for Indigenous Affairs (1997):
“… Any discussion on indigenous peoples and forests has to address the totality of our rights: our identity as peoples, our territoriality, our cultural heritage, our customary law and our political institutions which are framed by our fundamental right to self-determination. The document which best reflects our rights is the draft UN declaration on the Rights of Indigenous Peoples….
…Partnership and participation can only take place between equals and in conditions where our fundamental rights remain intact. We are rightsholders, not stakeholders. No activity should take place on our territories without our free and informed consent; we insist that we have the right to control our own resources…
… Our consent is a prerequisite for any access agreement or commercial contract. Whereas we support benefit-sharing, this must be based on principles of fair-trade, with a priority focused on empowering our diverse local economies and markets…”
III. The International Context
The term Prior Informed Consent is articulated in the Convention on Biological Diversity, increasingly in indigenous peoples’ declarations and statements, and in professional society codes of conduct. Broadly, it means the consent of a party to an activity that is given after receiving full disclosure regarding the reasons for the activity, the specific procedures the activity would entail, the potential risks involved, and the full implications that can realistically be foreseen (Posey and Dutfield, 1996)[2].
In the Convention on Biological Diversity (CBD), Article 15 on access to genetic resources requires that “Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party”(Article 15.5). In the case of the Convention, “Contracting Parties” are national governments. At the Madrid “Second International Indigenous Forum on Biodiversity” in November 1997, calls were made for the recognition of indigenous peoples as Parties to the Convention. Although this is not likely to transpire in the near future, in some national access and benefit sharing measures written to implement the Convention - such as those of the Philippines and the Andean Pact countries – the requirement of Prior Informed Consent (PIC) has been extended to local communities. In this way, “tiers” of required PIC have been established. An academic or commercial researcher must receive PIC from both the government and the local communities whose resources or knowledge are to be collected.
However, the process by which academic and commercial researchers obtain the prior informed consent of governments and local communities remains unclear in most countries. Even those countries with access and benefit sharing measures tend to include little in the way of guidelines or clear direction for the acquisition of PIC from local communities. It is likely that as part of the permitting process, written agreements between researchers and local communities will be required to demonstrate that PIC has been acquired.
In a 1996 survey of more than 60 statements and declarations made by indigenous peoples’ organizations, the Working Group on Traditional Resource Rights broke the central themes addressed down into the following categories: self-determination; territory; prior informed consent; human rights; cultural rights; and treaties. More than a third of the statements included reference to prior informed consent, and control over any research or use of resources and knowledge, including: the Leticia Declaration, Colombia (1996); Consultation on Indigenous Peoples’ Knowledge & IPR, Suva Fiji (1995); Mataatua Declaration, New Zealand (1993); General Assembly of the World Council of Indigenous Peoples, Panama (1984); Kari-Oca Declaration and Indigenous Peoples Earth Charter, Brazil (1992); and the Charter of the Indigenous Tribal Peoples of the Tropical Forest, Malaysia (1992).
Examples of approaches to and language on Prior Informed Consent:
• The Philippine Executive Order no. 247, Section 2. Consent of Indigenous Cultural Communities, requires that: “Prospecting of biological and genetic resources shall be allowed within the ancestral lands and domains of indigenous cultural communities only with the prior informed consent of such communities; obtained in accordance with the customary laws of the concerned community ” (2.a). Academic research also requires the PIC of local communities: Section 5.m concludes with “... In all cases, the university institution or governmental entity must ensure that affected communities have given their prior informed consent to the activities to be undertaken.”
“Indigenous Cultural Communities” are defined as: “Indigenous Cultural Communities or Indigenous Peoples are a homogeneous society identified by self-ascription and ascription by others, who have continuously lived as a community on communally bounded and defined territory, sharing common bonds of languages, customs, traditions, and other distinctive cultural traits, and who, through resistance to the political, social and cultural inroads of colonization, became historically differentiated from the majority of Filipinos” (section 2.1 IRR).
• In Article 8, on “In Situ Conservation” of the Convention on Biodiversity, the “approval and involvement” of local communities and indigenous peoples is required for the application of their knowledge to conservation problems: “Subject to its national legislation, respect, preserve, and maintain knowledge, innovations, and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations, and practices.” (Article 8j).
• Guiding Principles on “Conservation in Indigenous and Tribal Territories” (1996) were developed by the International Alliance of Indigenous-Tribal Peoples of the Tropical Forests, in order in part to “provide the basis for discussions with forest conservation organizations”. They call for conservation organizations to: “appreciate the enormous contribution which indigenous peoples have played in the current existence of tropical forests. They will respect and recognize the importance of indigenous knowledge, culture, and expertise in conservation... Conservation organizations must respect the collective rights of indigenous peoples to cultural heritage and intellectual property, genetic resources, gene banks, biotechnology, and knowledge of biodiversity. Any benefits deriving from this knowledge must be under indigenous control and management.”
• WWF addresses the issues of respect, local control, and PIC in Indigenous Peoples and Conservation: WWF Statement of Principles (1996): “With respect to the existing knowledge of indigenous communities, prior to starting work in a particular area, WWF will establish agreements with the indigenous organizations representing local communities, to ensure that they are able to fully participate in decisions about the use of knowledge acquired in or about the area they inhabit, and equitably benefit from it. These agreements will explicitly determine the ways and conditions under which WWF will be allowed to use such knowledge….” However, “…WWF acknowledges that, without recognition of the rights of indigenous peoples, no constructive agreements can be drawn up between conservation organizations and indigenous peoples groups.”
• At the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples in 1993, the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples was produced. It includes the recommendation that a code of ethics be developed to guide external observation and recording of traditional customary knowledge, and:
“...- Affirms that the knowledge of Indigenous Peoples of the world is of benefit to all humanity;
Recognizes that Indigenous Peoples are capable of managing their traditional knowledge themselves, but are willing to offer it to all humanity provided their fundamental rights to define and control this knowledge are protected by the international community;
Insists that the first beneficiaries of indigenous knowledge (cultural and intellectual property rights) must be the direct indigenous descendants of such knowledge...”
• UN Commission on Human Rights on the Protection of the Heritage of Indigenous Peoples, 1995 guidelines include:
“To protect their heritage, indigenous peoples must also exercise control over all research conducted within their territories, or which uses their peoples as subjects of study... The free and informed consent of the traditional owners should be an essential precondition of any agreements which may be made for the recording, study, use or display of indigenous peoples’ heritage...
...Researchers must not publish information obtained from indigenous peoples or the results of research conducted on flora, fauna, microbes or materials discovered through the assistance of indigenous peoples without identifying the traditional owners and obtaining their consent to publication...
...UN Operational agencies as well as the international financial institutions and regional and bilateral development assistance programmes, should give priority to providing financial and technical support to indigenous communities for capacity-building and exchanges of experiences focused on local control of research and education.”
• In a final example, the Draft Code of Ethics and Standards of Practice of the International Society of Ethnobiology (ISE) also calls for prior informed consent, and is based on a set of principles, and includes guidelines for its members which require formalization of relationships between researchers and communities. The ISE is holding a pre-congress workshop in New Zealand in November 1998 to further address “Cultural Protocols and the Code of Ethics”. This included ethical issues associated with scientific research involving indigenous peoples, case studies on the development of ethical guidelines for research, and a discussion of the Society of Ethnobiology’s Code of Ethics.
As we have seen, there are increasing and wide spread calls for the formalization of researcher-local community relationships. At international, national, professional society, NGO, and indigenous peoples’ organizational levels, calls have been made for the requirement of prior informed consent, “respect”, and local control over use of knowledge and resources, including research. These have included calls for written documentation of the consent process, including written agreements or MOUs (e.g. WWF, 1996; Posey and Dutfield, 1996; The Philippines, 1995; IUCN, 1997).
IV. Memorandum of Understanding
A Memorandum of Understanding requires the resolution of a number of key issues, most of which are integral to development of an equitable research relationship. If it is decided that a written document is not appropriate, it is still important to resolve issues relating to mutual responsibilities, expectations for benefit sharing, and the underlying objectives a research collaboration is intended to serve. As a result, the following discussion of elements, and examples of approaches and language used by groups from around the world, can serve as guidance in the development of a range of equitable partnerships.
The examples provided include a wide variety of documents - from research agreements, community management agreements with national park managers, to commercial contracts. Their inclusion here is not an endorsement of the nature or implementation of the agreement, but rather is intended to serve as an indication of what has been tried, and as a resource from which communities and researchers can pull, as needed. The first section, “Summary of Key Elements” is a brief discussion of the core elements of an MOU; the second section “Examples of Approaches and Language Used” provides sample text from a variety of documents; the final section includes brief case studies of agreements between communities and researchers.
A. Summary of Key Elements
1. Introduction/Executive Summary
Written research agreements are not common practice, and can serve a wide range of community and researcher objectives. It might be useful, therefore, to introduce the agreement with an explanation of why an agreement was developed (e.g. to serve wider community interests; clarify expectations); a review of the general principles underlying the agreement; and a summary of the core elements. A summary also provides a synopsis more accessible to a large audience not in need of detail.
2. Parties to the MOU
This section includes the names, addresses, and all contact details for the parties to the agreement. In addition to communities and researchers, all third parties – e.g. affiliated institutions and companies – should be included. Any policies, codes of conduct, or operating procedures issued by these institutions or companies should be appended to the agreement (see Annex below). All “invisible” as well as “visible” interests should be represented (e.g. funders, affiliated institutions).
3. Principles and Objectives
The underlying principles and objectives of the research relationship should be clarified in order to avoid misunderstandings between parties, and to help ensure that over time the original intent of the research relationship is upheld. Principles and objectives can range from the very general to the specific. They might reflect the wider issues communities hope to address through the research collaboration, or might only cover the purpose of a specific study. They can also serve to clarify issues within the community, such as distinctions between communally- and individually-owned information, knowledge, and resources.
Basic principles might include, for example:
- The rights of traditional/local communities/stewards/owners/holders of traditional knowledge to control the study and use of their knowledge and resources;
- The traditional ecological knowledge base of ______ communities is under threat, and research collaborations are undertaken to help communities record and salvage knowledge;
- The recording of knowledge and its dissemination must be strictly controlled in order to ensure that the community and specialists within the community retain control over its use;
- Communities and researchers are committed to a policy of openness and exchange, and will communicate any changes in plans and actions to all parties, whenever and however possible.
- The Prior Informed Consent of local communities must be acquired for any collection, recording, export, use, documentation, and publication of knowledge or resources.
4. Definition of terms and scope
The terms used in an MOU must be clear to all parties involved. Lack of clarity in terms used can result in a confusing agreement that is difficult to implement and monitor over time. Key terms in the Convention on Biological Diversity’s Article 8 j, for example, remain poorly defined, including: indigenous, local communities, traditional lifestyles, approval, prior informed consent, and indigenous and traditional technologies, and there are numerous calls for definition and clarification (e.g. The IUCN/ WWF Recommendations for COP4 Agenda Item 10).
5. National policy and legal context
National legal and policy frameworks – including measures relating to access and benefit sharing, environment, intellectual property rights, and human rights - will influence the formation and legal nature of written agreements (Gollin and Laird, 1996). For example, in the United States’ Glacier National Park, an MOU negotiated between the National Park Service and local tribes was considered unenforceable by the Interior Department Solicitor’s Office. A range of federal laws, regulations, and agency policies constrained the NPS from considering ownership of intellectual property (Ruppert, 1994; See Case Study below).
Contractual agreements between parties from different legal jurisdictions, or for activities to be carried out in several jurisdictions, also usually require a “choice of law” that will be used to interpret the meaning of the language of an agreement (Downes et al, 1993). In the case of community research agreements, the relationship between customary, national, state, and international law should be clarified where possible. Relevant international laws include those relating to intellectual property, human rights and indigenous rights, cultural property, aboriginal treaties, and the Convention on Biological Diversity (Downes et al, 1993; Shelton, 1995).
6. Process by which agreement was reached
It is valuable to review in writing the process by which agreement is reached, to ensure transparency in the short term, and greater understanding of the considerations that contributed to development of an agreement in both the present and into the future. The process by which communities “participate” in coming to agreement, and the methods by which informed “consent” are acquired can be complex. For example, different kinds of knowledge might be distributed throughout different segments of a society (e.g. See Blackfoot Confederacy experience below). Community consultations also require the use of existing community-based formal and informal organizational structures, oral communication and time frames appropriate for consensus decision-making and local cultural norms (almost certainly longer than that to which researchers are accustomed) (IUCN, 1997).
Grifo and Downes (1996) describe a “cooling off” period which can be factored into the process by which MOUs are agreed, although most community consultation processes already incorporate something of the kind. “Cooling off” periods allow parties to further consider their agreement during a designated time, and help ensure that all parties are satisfied with the agreed terms.
The process of acquiring prior informed consent for community-based research is not a quick and easy one, and will add both time and costs to a researcher’s project. In order for researchers to comply, it will be necessary for somewhat larger budgets and longer time-frames to be factored into proposals for funding. These changes in the planning and budgeting of research programs should become common practice, and might be institutionalized by major granting agencies.
7. Responsibilities of researchers
The responsibilities of collaborating parties at different phases in the research process should be clearly articulated. It might be useful to break the research process down into three phases:
1. PRE: Consultation and prior informed consent
2. DURING: Data collection
3. POST: Follow-up.
Each stage has its own set of responsibilities. For example, during Phase 1. researchers should consult with communities, seek prior informed consent, and might sign a written agreement. Phase 2. will include responsibilities associated with respect for the local culture and environment (e.g. avoidance of sacred sites, adherence to cultural norms in conducting interviews), fees to be paid, behavior of researchers in the community (including details like picking up rubbish, and appropriate dress), and training of local community members. Phase 3. might involve sharing of publications, up dates on data analysis, inclusion of analysis relevant to community resource management, and translation of results into local languages.
8. Responsibilities of local communities
In addition to clarifying the responsibilities of researchers, a written agreement should articulate the responsibilities of local communities. Because communities do not usually recruit researchers into their area, and there will be tremendous variation by case, it is difficult to generalize on community responsibilities. However, agreements might try to ensure that all information provided by the researcher is communicated effectively within the community, and that community interests are well-represented. Because PIC will be sought from individuals representing existing community structures, this will be likely, but not guaranteed in all cases. Logistical matters should also be clarified including, for example, the provision of housing, and structures to hold collections; and assistants, guides and informants, for a set number of days, and at an agreed upon fee.
9. Responsibilities of other collaborators
Researchers are generally affiliated with universities, research institutions, conservation projects, and other groups. Collected resources might be housed in botanic gardens, herbaria, and other ex situ collections. Communities might be members of a federation representing a wide geographic area, or might work closely with a local council in developing their relationships with researchers. The nature and scope of involvement of all parties, and their responsibilities, should be clarified in a written agreement.
10. Benefit-Sharing
Benefits resulting from research collaborations can take monetary and non-monetary form, and will vary depending upon whether research is academic or commercial. In the case of academic research, monetary benefits include fees paid to assistants and guides, payment for use of facilities and infrastructure, and possibly small grants to village development and other community funds.
Non-monetary benefits – often considered of greater value than monetary benefits over time – might include training of community members, equipment and infrastructure support, copies of publications, co-authorship on publications, production of manuals and other documents in forms of use to communities, photographs, building of local commercial capacity or community-based industries, provision of medical services, and so on. Non-monetary benefits will grow directly from the relationship negotiated and described in Section 6. above, and will reflect the type of research undertaken. Both monetary and non-monetary benefits should be clearly identified in the body of the written agreement.
11. A plan for distribution of benefits
The distribution of monetary and non-monetary benefits within a community should be clarified in the agreement, in order to ensure transparency, and clarity of intent over time. Benefits for other collaborators (e.g. botanic gardens and host institutions) in the research process should also be clarified. Janzen et al (1993) suggest that any research project should provide a roster of in-country entities likely to receive the various compensations, the nature of compensation should be spelled out, and the legal and logistical reason for such a distribution explained. At the community level, The Covenant on Intellectual, Cultural, and Scientific Resources (1994) states that compensation should be “equitably shared within and among groups, and…is in a form that strengthens the community and ethnic group.” Trust funds are increasingly used to distribute financial benefits to communities and others according to agreed-upon objectives. The Healing Forest Conservancy, for example, has recently launched a trust fund with the Bioresources Development and Conservation Program in Nigeria, and a few of the ICBG programs have similarly made use of community trust funds (Moran, 1998; Iwu and Laird, 1998; Guerin-McManus et al, 1998).
12. Disposition of collected information
Conditions attached to data and collections might relate to:
• community access to raw data;
• the need for communities to be regularly updated on the status of data analysis and publication;
• the publication or entry into databases of information collected;
• the housing (and numbers) of specimens collected; and
• the requirement of prior informed consent from the community for any distribution, publication, or housing of information or materials.
These issues should be resolved in an agreement, and the process by which prior informed consent and mutual agreement are reached clarified.
13. Reporting, monitoring and evaluation
The process by which research relationships will be monitored and evaluated over time should be clarified in the written agreement. Requirements for meetings with the community, and the timing, scope, and submission of reports by researchers should be detailed. Standards against which the relationship is evaluated (e.g. elements of the written agreement) should be explained. In some cases, particularly commercial collaborations, outside evaluation by a third party may be helpful.
14. Exclusivity and confidentiality
Exclusivity of research relationships should be clarified. It is assumed that for academic relationships exclusivity is not required, however commercial agreements will often involve a period of exclusive access to resources or knowledge. Communities will likely not wish to enter into this type of arrangement, but should clearly state this in the agreement. The Covenant on Intellectual, Cultural, and Scientific resources (1994), for example, emphasizes “non-exclusivity of relationships, meaning that both parties are free to enter into agreements with other parties.”
Confidentiality issues are central to academic, as well as commercial, research relationships. As we see below in the agreement between AMRAD and the Northern Land Council and Arnhem Land Aboriginal Land Trust, community members should expressly state that information not otherwise publicly available on traditional cultures, or traditional use of species, may not be disclosed without the prior informed consent of the community. The types of information that may be shared, and those off-limits to the research, should be spelled out in the agreement.
15. Dispute Resolution
Clear protocols for resolution of disputes should be included in an agreement, including the role of customary law and bodies. UNESCO’s Commission on Human Rights on the Protection of the Heritage of Indigenous Peoples (1995), for example, states that: “In the event of a dispute over custody or use of any element of an indigenous peoples’ heritage, judicial and administrative bodies should be guided by the advice of indigenous elders who are recognized by the indigenous communities or peoples concerned as having specific knowledge of traditional laws.”
16. Term and amendment
Agreements should include clear protocols on the ways in which agreements can be modified, and parties can break the agreement, including listing acceptable reasons for breaking it (Janzen et al, 1993). This process will integrate the results of monitoring and evaluation activities. By keeping the duration of an agreement relatively short, the need for re-negotiation might be kept to a minimum (Grifo and Downes, 1996). However, it is important to detail the process by which the agreement might be amended during the course of the research relationship.
17. ANNEX
Annexed to the agreement should be copies of relevant supporting material which will provide background and context to the agreement. This information will help to make the collaboration as transparent, and information as accessible to the largest numbers, as possible.
Materials that could be attached include:
• Copies of funding proposals for the research project;
• Information on the funding agency, and their requirements relating to research results;
• CVs of the researchers;
• Copies of permits;
• Indigenous peoples statements/declarations, and/or other documents supported by the community;
• Copies of state/provincial, national, and international laws or policies relevant to the collaboration;
• Professional codes of conduct to which researcher’s adhere;
• Affiliated institutional/company policies.
B. Examples of Approaches and Language Used
Principles and Objectives
UN Commission on Human Rights (E/CN.4/Sub.2/1995/26)
Principles and Guidelines for the Protection of the Heritage of Indigenous People
1. The effective protection of the heritage of the indigenous peoples of the world benefits all humanity. Cultural diversity is essential to the adaptability and creativity of the human species as a whole.
2. To be effective, the protection of indigenous peoples’ heritage should be based broadly on the principle of self-determination, which includes the right and the duty of indigenous peoples to develop their own cultures and knowledge systems, and forms of social organization.
3. Indigenous peoples should be recognized as the primary guardians and interpreters of their cultures, arts, and sciences, whether created in the past, or developed by them in the future.
4. International recognition and respect for indigenous peoples’ own customs, rules and practices for the transmission of their heritage to future generations is essential to these peoples’ enjoyment of human rights and human dignity.
5. Indigenous peoples’ ownership and custody of their heritage must continue to be collective, permanent, and inalienable, as prescribed by the customs, rules and practices of each people.
6. The discovery, use, and teaching of indigenous peoples’ knowledge, arts, and cultures, is inextricably connected with the traditional lands and territories of each people. Control over traditional territories and resources is essential to the continued transmission of indigenous peoples’ heritage to future generations, and its full protection.
7. To protect their heritage, indigenous peoples must control their own means of cultural transmission and education. This includes their right to the continued use and, wherever necessary, the restoration of their own language and orthographies.
8. To protect their heritage, indigenous peoples must also exercise control over all research conducted within their territories, or which uses their people as subjects of study.
9. The free and informed consent of the traditional owners should be an essential precondition of any agreements which may be made for the recording, study, use, or display of indigenous peoples’ heritage.
10. Any agreements which many be made for the recording, study, use, or display of indigenous peoples’ heritage must be revocable, and ensure that the peoples concerned continue to be the primary beneficiaries of commercial application.
The International Society of Ethnobiology’s Draft Code of Ethics and Standards of Practice include 14 Principles upon which the code is based. They are introduced with the following language: “The Principles of this Code are intended to embrace, support, and embody the established principles and practices of international law and customary practice as expressed in the United Nations Declaration of Universal Human Rights and the Draft Declaration of Rights of Indigenous Peoples. The following Principles are the fundamental assumptions that form the Code:…”
The 14 Principles are: Principle of self-determination; Principle of inalienability; Principle of minimum impact; Principle of full disclosure; Principle of PIC and veto; Principle of confidentiality; Principle of active participation; Principle of respect; Principle of active protection; Principle of good faith; Principle of compensation; Principle of restitution; Principle of reciprocity; and Principle of equitable sharing.
Principles for the treatment of intellectual property and the sharing of benefits associated with International Cooperative Biodiversity Groups (United States NSF/NIH/AID) sponsored research
d) Disclosure and consent of indigenous or other local stewards
I. Arrangements for the use of traditional knowledge or the collection of samples from the lands of local peoples should be based upon full disclosure and informed consent of those peoples.
ii. Indigenous concepts of intellectual property should be respected. If for instance, cooperating indigenous groups on the basis of religious or other concerns, object to specific uses, widespread dissemination or other treatments of the knowledge they provide, these concerns should be respected in the conduct of ICBG projects
iii. The process of disclosure and informed consent should be as inclusive and formal as is possible and culturally appropriate. The best practice is the development of written agreements with a community following complete and formal presentation of the Group’s goals and methods. Presentations should provide realistic descriptions of the type amounts and probabilities of benefits as well as any costs or risks that may accrue to cooperating communities.
iv/ Arrangements with individuals who cooperate or provide information should be based upon prior community-level agreements whenever possible or appropriate.
Northwest Territories Policy 51.06
Policy on Traditional Knowledge
This policy is based on the following principles:
1. The primary responsibility for the preservation and promotion of traditional knowledge lies with aboriginal people.
2. Government programs and services should be administered in a manner consistent with the beliefs, customs, knowledge, values, and languages of the people being served.
3. Traditional knowledge should be considered in the design and delivery of Government programs and services.
4. The primary focus of traditional knowledge research should be the aboriginal community.
5. Traditional knowledge is best preserved through continued use and practical application.
1. Oral tradition is a reliable source of information about traditional knowledge.
The Leticia Declaration and Proposal for Actions (Leticia Colombia, December 1996): International Meeting of Indigenous and Other Forest-Dependent Peoples on the Management, Conservation, and Sustainable Development of All Types of Forests.
General Principles include:
“ That [Indigenous Peoples] rights to their lands, territories, forests, and other natural resources should be recognized, secured, respected, and protected;”
…That they should have full control over the management, use, and conservation of these resources…
... That new mechanisms should be established to ensure the equal participation of Indigenous Peoples and other forest-dependent peoples in decision-making on forests at all levels.”
The Covenant on Intellectual, Cultural, and Scientific Resources (1994):
Basic Principles to be Exercised by all Partners
I. Equity of partners, including profit sharing, joint planning, and goal setting, informed consent and full disclosure in all aspects of the project, including results;
II. Working to insure that compensation is equitably shared within and among groups, and that compensation is in a form that strengthens the community and ethnic group;
III. Non-exclusivity of relationships, meaning that both parties are free to enter into agreements with other parties; priority for exchange will obviously be between partners;
IV. Confidentiality of information and resources, meaning that information imparted by indigenous groups to the partner cannot be passed on to others without the consent of the giver;
V. Continual dialogue and mutual review, supported by independent monitoring and, if necessary, mediation by a third party (as agreed by partners); mandatory review is required if there is a change of status of either party or in the law;
VI. Diversification of the economic base through diversification of collecting, ingredients, and products based upon traditional knowledge, cultural practice, and local resources, as well as diversification of markets;
VII. Cooperation with local (indigenous and non-indigenous educational, health, research, and non-governmental institutions;
VIII. Insuring ecological and cultural sensitivity in all phases of any project, including collecting, screening, sourcing, production and manufacture;
IX. Encouragement of community autonomy and control over all aspects of the project as early as possible.
Additional principles to be observed by the company, scientists or institution
X. Responsibility to be informed about local, regional, and national laws, customs, and cultures;
XI. Judicial recognition and registration of this agreement, followed by appropriate legal protection to enable the indigenous group to protect its knowledge and biogenetic resources;
Additional principles to be observed by the indigenous group
XII. Establishment of a consensus on representation, group participation, ethnic boundaries, and “legal personality (ies) of partner(s)”
XIII. Commitment to work toward assuming legal, economic, and financial independence.
Additional principles for independent monitors
XIV. Must have no conflict of interests and be able to act as arbitrators or mediators for all parties;
XV. Must have the professional qualifications and relevant experiences to represent all parties equitably;
XVI. Must practice full information disclosure and provide a public statement of working procedures and principles;
XVII. Must serve as the guardian of the Covenant, providing audits when requested by either party, but at least once annually, on actual practice in all area of the agreement.
Definition of terms and scope
A wide range of definitions might apply to community research agreements. Definitions included in biodiversity prospecting contracts can be found in Downes et al, 1993 and Grifo and Downes, 1996, as well as in national access and benefit sharing measures. Examples from community-based documents include:
The North West Territories Policy on Traditional Knowledge
• Aboriginal cultural organization - any local, regional, or Territorial organization which promotes aboriginal culture in the NW Territories;
• Research Institute - includes universities, research associations affiliated with universities, and government-sponsored research organizations;
• Traditional knowledge - knowledge and values which have been acquired through experience, observation, from the land or from spiritual teachings, and handed down from one generation to another.
The Third World Network’s Community Intellectual Rights Act (1994)
• Commercial utilization – occurs when the innovation and any process relating to it or products embodying it, are made available for sale in the modern marketplace;
• Local community – refers to a group of people having a long standing social organization that binds them together whether in a defined area or howsoever otherwise and shall include indigenous peoples, and local populations, and shall where appropriate refer to any organisation duly registered under the provisions of this Act to represent its interest.
The Memorandum of Understanding Regarding the Gathering of Plant Resources for American Indian Traditional Cultural-Religious Purposes from National Park Lands among Zion National Park, Cedar Breaks National Monument, Pipe Spring National Monument, and the Kaibab Band opf Paiute Indians, the San Juan Southern Paiute Tribe, the Moapa Paiute Tribe, the Las Vega Paiute Tribe, and the Paiute Indian Tribes of Utah:
• Tribes – As used in this document this term refers only to the following federally recognized tribes: the Kaibab Band of Paiute Indians, the San Juan Southern Paiute Tribe, the Moapa Paiute Tribe, the Las Vegas Paiute Tribe, and the Paiute Indian tribes of Utah;
• Tribal Government – The government of those federally recognized tribes referred to as TRIBES;
• Tribal Government Representative – The individual or individuals designated by each of the TRIBES that are party to this agreement to act on behalf of their respective tribal governments;
• Culturally Appropriate Amounts – This phrase refers to those amounts of plants which are used for personal, family, or community use to engage in traditional, cultural, or religious activities. Commercial use of these materials is excluded from this definition;
• Collection – The hand gathering of plants and plant materials by traditional means.
The Uganda Wildlife Authority’s Collaborative Management Agreement (Memorandum of Understanding)
• Resource use committee - A group of local community representatives for access resource users on a ridge;
• Sustainable use – Means of harvesting a specified access resource which can be maintained indefinitely without reducing the potential of the resource to continue providing the said rate of harvesting;
The “Review Draft MOU Regarding Proposed Ethnographic Research in Glacier National Park” (Ruppert, 1994)
• New data – any ethnographic information collected through research procedures conducted during the course of the Research Contract (including, but not limited to structured or unstructured interviews, survey instruments, participant observation, video and audio taping, photography), and not previously recorded or otherwise documented. “New Data” does not include undocumented existing ethnographic data found in personal notes, recording, collections, and archives collected in activities not related to the Research Contract.
• Researcher – the person or persons designated to the terms of the Research Contract to conduct data collection and analysis.
• Tribes – the American Indian communities represented by their official elected tribal governing bodies and subject to the terms and conditions of this agreement.
• Tribal Representatives – any individual or individuals, or any organization officially designated by the Tribal Council of each of the Tribes to represent the respective Tribes in matters related to this Research Contract.
• Traditional Practices – behavior of individuals or groups derived from cultural rules, tenets, norms, or beliefs. These behaviors (either individual or group) are part of a distinct ethnic group’s cultural complex with a demonstrated continuity through time.
• Ethnographic Data - information collected during the course of the Research Contract which pertains to the traditional cultural beliefs and practices of the cultural groups under study.
Process by which agreement was reached
The Resource Management Law reform process in New Zealand provided a range of alternative mechanisms for Maori participation that responded to Maori cultural preferences, including (Crengle, 1997):
• An intensive set of hui (meetings) on marae (customary community meeting places);
• An open-door policy on accepting and incorporating submissions at any time in the review to more easily accommodate tribal timeframes;
• Provision of a free phone service for recording of oral submissions;
• Comprehensive funding, and human resource assistance to tribal organizations for the preparation of written submissions;
• Meeting of personal and travel costs of participants in hui.
In an example from the private sector, Shaman Pharmaceuticals spent more than two years negotiating with the Coordinating Body of Indigenous Organizations of the Amazon Basin (COICA) and the Aguaruna Indian Federation for a supply agreement for the anti-viral species Sangre de Drago. Indigenous leaders were adamant that the process of negotiation not move too quickly, and that the time necessary for discussing among the many federation and community leaders was allowed. They suggested that if Shaman was in a great hurry to establish this supply agreement that they should “move to another geographic region” (King, 1992).
A guide to developing (a memorandum of) understanding within and between parties involved in community-based recording and use of ethnobotanical knowledge, Barry Evans, 1998:
“Developing a meaningful relationship and understanding between diverse parties is all too often a haphazard affair conducted under difficult circumstances. Poor communication, language barriers, time pressure, money, hidden agenda, lack of and unequal knowledge of the process and substance can all hinder the process of developing an understanding between parties. Consequently, the process is often truncated or bypassed resulting in unnecessary conflict…”
Describing the process by which an understanding can be reached, and an MOU signed, using a case of ethnobotanical research in the South Pacific, Evans’ (1997) suggestions include the following:
• Select/determine a group within the community to work with the village-based ethnobotanist, supporting NGOs, botanic gardens, WWF South Pacific, etc. to come up with the framework for an MOU;
• This group should consult with a range of stakeholders within the community in order to receive a range of perspectives, and in recognition of the fact that traditional ecological knowledge manifests itself in different forms within the community, and that the expectations of stakeholders vary;
• Compile the findings of this consultation into a framework MOU.
• Distribute the MOU within the community for final feedback - workshops, meetings, etc.;
• Make sure everyone affected by the MOU has a copy of the final document;
The process by which “prior informed consent” is acquired in the Philippines Executive Order and Implementing Rules and Regulations includes governments, private land owners, and local communities, and requires:
• PIC of the recognized head of an indigenous community, head of local governments in a community, the local or district office of the Philippines Protected Area Management Board, or a private land owner;
• public notification (includes newspaper, radio, television or “direct communication” in the case of academic research); and
• public sector consultation (community public hearings - not required for undergraduate or graduate student research);
The Inuit Circumpolar Conference produced a report for the Arctic Environmental Protection Strategy (AEPS) that included guidelines for the stages and elements of working with indigenous peoples and indigenous knowledge. The following steps were included under the design and consultative process stages (Brook, 1993):
• Design Stage – A research committee formed and ethical and methodological guidelines defined through a participatory process involving all stakeholders.
• Research committee – The research committee designs and oversees all phases of the collection and documentation of indigenous knowledge. It establishes the methods, devises a consultation process, and develops a detailed study design that extends to data analysis and presentation of findings. Most importantly, it ensures that the views and priorities of the affected indigenous population are included in the earliest discussions of methodology and project design. The committee reviews objectives, methodologies, and procedures which other similar projects have used elsewhere. The research committee comprises representatives of all stakeholders from the communities, region, and economy covered by the study.
• Consultation – The consultation process extends through all stages of the study, including discussion about concerns or points of view that give shape and definition to the research project; setting research priorities and study objectives; identifying the study components and procedures for data collection and analysis; interpreting findings and drawing conclusions; applying the findings and conclusions; and monitoring their application in any work or project resulting from the study.
• Establishing ethical guidelines – Through a consultative process, the research committee establishes and enforced ethical guidelines and codes of conduct governing the research. Ethical guidelines for researcher behavior recognize the need for full negotiation by affected indigenous people through all stages of the research process. They also reflect indigenous concerns about political implications of research projects carried out on their territories, and about the way research findings are used. Guidelines are needed in order to safeguard access to data and information while at the same time controlling their use.
• Preparing a Field Guide – Preparation of a Field Guide forms part of the consultation process. Its purpose is to explain the research project to all participants in the research process, including the need for the research; its objectives; methods and procedures for collecting and processing information; units or categories of information to be collected; and the rights, responsibilities, and ethical principles to be respected and adhered to throughout the project.
Responsibilities of Researchers
Research Management Policies: Permits for Collecting and Research in the Tropics (Janzen et al,1993)
Materials and information required to seek prior informed consent might include:
1. A clear and unambiguous description of the research project, that includes detail on:
Who (individuals and institutions, with roles indicated and attached CVs); Why the research is undertaken; Where; When; How; What (kinds of information to be extracted, collected, /recorded, photographed, and/or observed), and in what format (notes, specimens, photographs, computer entries, human memories, etc.); Final and intermediate destinations and forms of the information; How the information will be used initially (e.g. in a national inventory collection) and subsequently (e.g. in drug exploration, field guide preparation)
2. Copies of funding proposals, sources of funding, and obligations to funders;
3. An analysis of the foreseen social/cultural and environmental impacts;
4. Detailed description of the immediate compensation anticipated – whether in cash, barter, services, specimens – and the structure and nature of fees;
5. Detailed description of long-term benefits (sharing in future production possibilities from the research, cash, royalties, services, equipment, goods, etc.);
6. Method of benefit distribution and justification
Proposed Guidelines for Researchers and Local Communities Interested in Accessing, Exploring, and Studying Biodiversity
Pew Scholars Initiative (1996)
…Initial disclosure of information
When first contacting a community or individual to seek access, the researcher:
• Should carry out all communications in the local language;
• Must explain the nature and purpose of the proposed research, including its duration, the geographic area in which research would take place, and research and the collecting methods;
• Must explain the foreseeable consequences of the research for resources, people and accessors, including the potential commercial value;
• Should explain the potential non-commercial values, such as academic recognition and advancement for the researcher;
• Should explain any social and/or cultural risks;
• Must notify the community at large by some means, e.g. public meeting
• Should consider explaining the guidelines that the researcher is following, as well as his/her practice in previous similar research projects;
• Should be willing to provide copies of relevant project documents, or summaries thereof, preferably including the project budget,. In the local language. In the case of commercial prospecting, researchers must share such documents;
• Must agree on a protocol of acknowledgements, citation, authorship, inventorship as applicable, either citing local innovators or conservators, or respecting requests for anonymity;
• Must share findings at different stages with the providers;
• Must not engage in bribery or making false promises.
The Arctic Environment Protection Strategy (1993) describes problems and makes recommendations for researcher behavior during and post- data collection:
• Data collection – The type of data to collect, and method of collecting it, obviously depends on the nature of the problem being investigated. Thus, methods of data collection may range from participant observation to study and analysis of sacred texts. In the participatory mode, interviewing is not the ritualistic process associated with formal questionnaire surveys. It is at most semi-structured and should be in the form of a dialogue. “Interviewers” should regard themselves, and behave, as participants in a collaborative effort of inquiry with local people, Sensitivity, patience and experience are crucial qualities for this collaboration.
• Review, verification, and application of findings – One of the primary methods for validating data collected through participatory research is a process of community review and verification, based on a second round of interviewing. A frequently- encountered problem in field research is that information collected form individuals or small groups is assembled into larger patterns by researchers, while local participants may not have an adequate or equal opportunity to view their more limited individual pieces of information as part of a larger and more comprehensive “picture”. The verification process provides a chance for individuals and groups to reconsider their own information as it is or in light odf the larger patterns. The review process also provides an opportunity for indigenous peoples to comment on findings, identify gaps, and make corrections.
In Australia, the AMRAD Natural Products Pty Limited and Northern Land Council and The Arnhem Land Aboriginal Land Trust entered into an agreement in 1995 for the collection of plants from Arnhem Land for the purpose of pharmaceutical screening. Included in the Flora Collection Agreement are terms governing the plant collection activities:
(4.) AMRAD’s Covenants
AMRAD convenants and agrees with the NLC and the Arnhem Land Aboriginal Land Trust as follows:
a) That it will not without the prior consent of the NLC and Arnhem Land Aboriginal Land Trust use or permit the Land to be used by any other person or body other than AMRAD, its employees or the Collectors for the purposes of or incidental to the collection of Samples.
b) That AMRAD will conduct its operations on the Land in an orderly and respectable manner and will not do or suffer to be done in, upon or about the Land any act matter or thing which shall or may be or become an illegal nuisance to the Arnhem Land Aboriginal Land Trust or the Traditional Aboriginal Owners or occupiers of any adjoining or neighbouring lands.
c) That AMRAD will observe all the restrictions as to the use of the Land imposed by any law for the time being in force in the Northern Territory of Australia.
d) That AMRAD will pay the costs of and incidental to the execution stamping and registration of this Deed.
e) AMRAD shall not without the prior informed consent of the NLC and/or Arnhem Land Aboriginal Land Trust: I) knowingly enter upon or undertake any collection of Samples whatsoever within any sacred site; ii) undertake any activities on the Land which could reasonably be expected to damage or interfere with or the use of a sacred site. AMRAD and/or its Collectors will consult with the Traditional Aboriginal Owners as to any sacred site(s) and locations thereof and will consult the Sacred Sites Authority Register prior to commencing collection activities.
f) That AMRAD shall take any reasonable action required by the NLC and/or Arnhem Land Aboriginal Land Trust to ensure compliance with this clause, including keeping information about any sacred sites or ceremonial activities confidential.
g) That it shall not disclose any aspect of the Traditional Aboriginal Owner’s traditions and culture which are not publicly available and which are communicated to or observed by AMRAD pursuant to this Deed, and refrain from making any public statement relating to the political, economic, or social development of the Traditional Aboriginal Owners, without the prior consent of the Arnhem Land Aboriginal Land Trust.
h) That it shall not seek to obtain any traditional knowledge of the medicinal properties of Plants from the Traditional Aboriginal Owners which is not publicly available.
i) That it shall have no rights to sell Plants or Samples as herbal medicines.
“Negotiating Research Relationships in the North”
Inuit Tapirisat of Canada, 1993
Principles for research relationships:
• Informed consent should be obtained from the community and from any individuals involved in research;
• In seeking informed consent the researcher should at least explain the purpose of the research; sponsors of the research; the person in charge; potential benefits and possible problems associated with the research for people and the environment; research methodology; participation of or contact with residents of the community;
• Anonymity and confidentiality must be offered and, if accepted, guaranteed except where this is legally precluded;
• On-going communication of research objectives, methods, findings, and interpretation from inception to completion of projects should occur;
• If, during the research, the community decides the research is unacceptable, the research should be suspended;
• Serious efforts must be made to include local and traditional knowledge in all stages of research, including problem identification;
• Research design should endeavor to anticipate and provide meaningful training of aboriginal researchers;
• Research musty avoid social disruption;
• Research musty respect the privacy, dignity, cultures, traditions, and rights of aboriginal people;
• Written information should be available in the appropriate language(s);
• The peer review process must be communicated to the communities, and their advice and/or participation sought in the process;
• Aboriginal people should have access to research data, not just receive summaries and research reports. The extent of data accessibility that participants/communities can expect should be clearly stated and agreed upon as part of any approval process.
The Declaration of Belem (1988), produced at the First International Congress of Ethnobiology, and numerous other statements, call for “ethnobiologists [to] make available the results of their research to the native peoples with whom they have worked, especially including dissemination in the native language.”
There are an increasing number of professional researcher codes of conduct and ethical guidelines. These include those developed by the International Society of Ethnobiology, the Association of Applied Anthropology, the Society of Economic Botany, the American Chemical Society, the American Society of Pharmacognosy, and the Pew Conservation Scholars “Suggested Ethical Guidelines for Accessing and Exploring Biodiversity” (See Box above). These documents provide differing levels of detail, but all address the elements of appropriate and ethical behavior on the part of researchers. For most types of field research involving local communities, there now exist at least draft versions of codes of conduct, and these should be appended to an MOU. These documents provide a framework for the standards set within a researcher’s or project’s professional community, and can act as a valuable compliment to MOUs.
Benefit Sharing
The Covenant on Intellectual, Cultural, and Scientific Resources (1994) calls for the establishment of up front benefits such as legal trust funds to provide legal assistance during commercial negotiations.
For a discussion of the package of monetary benefits common to commercial agreements - including fees per sample, advance and milestone payments, and royalties – see, for example, Grifo and Downes, 1996; Laird, in press; ten Kate and Laird, in press; and Tobin, 1995. For illustration of a range of commercial benefit-sharing “packages” see Case Studies on Benefit Sharing, issued by the Secretariat to the Convention on Biological Diversity, at the Fourth Meeting of the Conference of the Parties to the Convention on Biological Diversity, Bratislava, Slovakia.
Non-monetary benefits include training of community members, equipment and infrastructure support, copies of publications, co-authorship on publications, production of manuals and other documents in forms of use to communities, photographs, building of local commercial capacity or community-based industries, provision of medical services, and so on. A good example is Fruitiferas da Mata na Vida Amazonica by P. Shanley, M. Cymerys and J. Galvao, which was published in 1998, and produces in a form relevant for community management the results of five years of ecological and ethnobotanical studies in the Eastern Amazon. In another example, Shaman Pharmaceuticals has produced a manual on sustainable management of Sangre de Drago, a species in which they have commercial interest: El Manejo Sostenible de Sangre de Drago o Sangre de Grado: Material Educativo. Aveda Corporation has established a collaboration with the Yawanawa in Brazil for the sourcing of Bixa orellana for its cosmetics line (See Waddington and Laird, in press). Numerous conservation organizations, including Conservation International, Cultural Survival, and WWF, as well as many local NGOs, have established small enterprises with communities.
Disposition of Collected Information/Resources
Inuit Tapirisat of Canada, 1993 in their “Negotiating Research Relationships in the North” guidelines include: “Aboriginal people should have access to research data, not just receive summaries and research reports. The extent of data accessibility that participants/communities can expect should be clearly stated and agreed upon as part of any approval process.”
ICBG Principles
e) i. Agreements and research plans should anticipate the tension between the traditional scientific ethic of public access to information, including publication of results, and the understandable desire of indigenous or commercial partners for confidentiality of information with potential commercial value, pending protection through patenting or other means.
National Institute of Biodiversity (InBio), Costa Rica “Rights Agreement”
“In order to publish the results of the collaboration, terms must be mutually agreed, and both parties must provide approval and consent in writing prior to submission for publication. All publications will be made jointly, unless otherwise agreed upon in writing. All revisions to or modification of any proposed publication must be approved in writing by both parties prior to actual publication. The submission and subsequent publication of any proposed publication will be delayed until any intellectual property or confidential information contained in the proposed publication is adequately protected as mutually agreed by both parties.”
Reporting, monitoring, and evaluation
The Covenant on Intellectual, Cultural, and Scientific Resources (1994), calls for: “Continual dialogue and mutual review, supported by independent monitoring and, if necessary, mediation by a third party (as agreed by partners); mandatory review is required if there is a change of status of either party or in the law;” Independent monitors:
• Must have no conflict of interests and be able to act as arbitrators or mediators for all parties;
• Must have the professional qualifications and relevant experiences to represent all parties equitably;
• Must practice full information disclosure and provide a public statement of working procedures and principles;
• Must serve as the guardian of the Covenant, providing audits when requested by either party, but at least once annually, on actual practice in all area of the agreement.
Exclusivity and confidentiality
National Institute of Biodiversity (InBio), Costa Rica “Rights Agreement”
“Neither party will disclose, divulge, or otherwise communicate to a Third Party and Confidential information received from the other party as a result of this collaboration nor use such Confidential Information for any purpose except as agreed in this agreement… Prior to publication of any research data, both parties must provide written approval and publication may be delayed until any intellectual property or confidential information is adequately protected”
The Memorandum of Understanding Regarding the Gathering of Plant Resources for American Indian Traditional Cultural-Religious Purposes from National Park Lands among Zion National Park, Cedar Breaks National Monument, Pipe Spring National Monument, and the Kaibab Band opf Paiute Indians, the San Juan Southern Paiute Tribe, the Moapa Paiute Tribe, the Las Vega Paiute Tribe, and the Paiute Indian Tribes of Utah:
Confidentiality
“Information shared with the PARKS by the TRIBES or by individual tribal memebers, realted to gathering activities, shall be considered sensitive and confidential. As such, the PARKS shall protect such information from public disclosure to the maximum extent practicable under law and regulation.”
Dispute Resolution
The “Review Draft MOU Regarding Proposed Ethnographic Research in Glacier National Park” (Ruppert, 1994) includes the following steps for “Dispute Resolution”:
1. In the event that any Tribe(s), as party to this agreement, find(s) conflict with the fulfillment of the stipulations set forth in this agreement or with specific aspects of the execution of the Research Contract the Tribe(s) shall give written notice of such claims to the Superintendent of Glacier National Park.
2. The Superintendent of Glacier National Park, or his designee, shall convene a meeting with the disputing parties within 15 days of receiving the notice. The disputing parties shall attempt to reach a mutually acceptable resolution within 7 days.
3. If the disputing parties cannot agree within 7 days they shall agree to designate a third party to mediate the dispute. If a third party cannot be agreed upon within a 7 day period the Superintendent of Glacier National park shall appoint one to serve in that capacity.
4. The disputing parties shall attempt to reach a resolution with the assistance of the third party.
5. If a resolution cannot be reached within 30 calendar days of the designation of the third party, the third party shall resolve the dispute.
The Memorandum of Understanding Regarding the Gathering of Plant Resources for American Indian Traditional Cultural-Religious Purposes from National Park Lands among Zion National Park, Cedar Breaks National Monument, Pipe Spring National Monument, and the Kaibab Band opf Paiute Indians, the San Juan Southern Paiute Tribe, the Moapa Paiute Tribe, the Las Vega Paiute Tribe, and the Paiute Indian Tribes of Utah:
Dispute Resolution
1. Should any actions taken under the provisions of this agreement be disputed by any party, said party shall promptly notify by phone or in writing all parties to this agreement of this dispute.
2. It is agreed between all parties that should disputes occur between the parties to this agreement, an attempt will be made to resolve a dispute in an informal manner, emphasizing personal, face-to-face discussions and mutual interests.
3. After notification of a potential dispute, a meeting between the designated representatives of the TRIBES and the PRKS shall be convened as soon as possible but no later than 30 calendar days following receipt of the notification of the potential dispute. These individuals shall attempt to resolve the dispute at this initial stage.
4. 4. In the event that the dispute cannot be resolved a second meeting will be convened between the PARK superintendent, or his/her designated representative, and the Tribal Chairpersons, or their designated representatives as oon as possible but no later than 30 calendar days following the first meeting between designated representative of the TRIBES and the PARKS.
Term and amendment
The Memorandum of Understanding Regarding the Gathering of Plant Resources for American Indian Traditional Cultural-Religious Purposes from National Park Lands among Zion National Park, Cedar Breaks National Monument, Pipe Spring National Monument, and the Kaibab Band opf Paiute Indians, the San Juan Southern Paiute Tribe, the Moapa Paiute Tribe, the Las Vega Paiute Tribe, and the Paiute Indian Tribes of Utah:
Term and Amendment
1. The PARKS and TRIBES agree that this MOU is a “living” document and may require changes or alterations to meet new or changing circumstances;
2. 2. This MOU shall remain in effect fior a term of five (5) years and may be amended only with the written consent of all parties hereto at the time of such amendment;
3. 3. Any signatory party may terminate hteir participation in this MOU upon 30 days written notice to the other signatories.
Memorandum of Understanding among National Park Service, Redwood National Park, California Department of Parks and Recreation, Prairie Creek Redwoods State Park and The Yurok Tribe for Government to Government Relations:
Term of Agreement
1. Unless earlier terminated pursuant to Article X below [providing sixty (60) days written notice to the other parties], this Agreement shall remain in effect through _____, subject to the right of either party to terminate in accordance with Article X hereof and may be renewed by mutual agreement of the parties;
2. 2. This MOU may be revised or modified as necessary by mutual consent of all parties through the issuance of a written amendment, signed and dated by all parties.
Uganda Wildlife Authority “Terms of the Agreement” includes the following language:
“ Although it is predicted that, with necessary modifications, this agreement will remain valid for an indefinite period into the future, the trial agreement will be valid for an initial period of 12 months from the date of signing. After this period, the results of the monitoring plan will be considered. An evaluation will be carried out and the agreement renewed if the responsibilities stated below are upheld and after any necessary modifications have been made. These modifications should be determined through a process of negotiation and should be in line with the objectives of the two parties, providing they are still compatible with one another.”
INBIO “Rights Agreement
“9.a. This agreement shall expire on the fifth anniversary of the date first above written, unless extended by the written agreement of the parties or sooner terminated in accordance with section x... 9.b. This agreement will continue until one or both of the parties terminates this Agreement in the following manner: i) a party may terminate by giving one year’s notice in writing; or ii) a non-breaching party may terminate this Agreement for breach of contract after one month written notice to the breaching party, during which time the breaching party may cure the breach... “
The “Review Draft MOU Regarding Proposed Ethnographic Research in Glacial National Park” (Ruppert, 1994) includes the following under “Term and Amendment”:
1. From the date of the last signature, this MOU shall remain in effect for a period not to exceed 5 years. Before the end of this 5 year period any party to this agreement may terminate its participation in the agreement.
2. Any signatory party may terminate its participation in this MOU upon 30 days written notice to other signatories.
C. Case Studies of Agreements and Approaches
The Glacier National Park Project
(Ruppert, 1994)
The Glacier National Park, in the United States, has strong historical and contemporary ties to the Blackfeet, Kootenai, and Salish tribes. The National Park Service contracted with a researcher to gather information on contemporary uses of park resources by these tribes. To initiate this work, the researcher and park officials met with tribal representative in 1992 to receive permission for this study. Tribal representatives were concerned about the type of data collected, the sensitivity of researchers to its meaning for the tribes, and the release of this information into the public domain. For example, information about sacred sites, vision questing, and the use of plants and minerals for ceremonial purposes was considered highly sensitive. Tribal representatives were also wary because many researchers had come through in the past collecting cultural information, and had provided nothing in return, including information on the research they conducted. As a result, a Memorandum of Understanding (MOU) was drafted for the proposed research project between the NPS, the Glacier National Park,. The Confederated Salish and Kootenai Tribes of the Flathead Nation, and the Blackfeet Tribe.
The MOU addressed the following five areas:
• Defined the concept of “ethnographic resource” – any natural or cultural resource, landscape, or natural feature linked by an ethnic community to the traditional practices, values, beliefs, and/or ethnic identity of that community – and the types of information related to these resources that the park needed for its planning process;
• Specified the kind of information or data which would qualify to be protected by tribal rights to intellectual property. This information was called “new data” resulting from interviews detailing cultural information not found in other sources;
• Placed stipulations on the use of “new data” by the park for planning, decision making, and public education purposes. These stipulations also specified the tribes’ right to recall or deny the use of this “new data” by the park if the use to which they were put was considered inappropriate to the tribe;
• Outlined the tribes right to grant or deny permission for publication of “new data”;
• Defined a process of dispute resolution.
The federal agencies deemed that the MOU conflicted with federal laws and regulations, however, and this agreement was not put in place.
The Kuna Yala
(PEMANSKY, 1988; Chapin, 1991; Breslin and Chapin, 1984)
In Panama, the Kuna Yala launched an initiative in 1983 to set aside 60,000 hectares of forest as a nature reserve, and to document their resources and knowledge using integrated Kuna and western scientific techniques. To do this, they realized that they would need to set standards for the practices of outside researchers with whom they collaborate. The Kuna Yala design of a researcher-community relationship has served as the basis for a number of other communities developing written agreements with researchers.
The manual Programa de Investigacion Monitoreo y Cooperacion Cientifica, provides an outline of Kuna objectives with regards to forest management, the conservation of biological and cultural diversity, scientific collaboration, research priorities, and establishes guidance for researchers, including the types of benefits that must accrue to the Kuna. It recognizes the need for collaborations between Kuna and western scientists in order to better document and manage their cultural and natural resources, however all research is geared toward providing the Kuna with the information necessary to better manage their forests and marine resources, and in some cases to revive local cultural traditions. Guidelines for visiting scientists include the following requirements:
• Develop a proposal outlining the timing, extent and potential environmental and cultural impact of a research program. This must then be approved by the Scientific Committee of PEMANSKY (The Study for the Management of the Forested Area of the Kuna Territory);
• Provide PEMANSKY with written reports of the research, and two copies of any publications, in Spanish;
• Provide PEMANSKY with copies of photographs or slides taken during the research program;
• Include in their research program Kuna collaborators, assistants, guides, and informants, and undertake training in relevant scientific disciplines;
• Provide descriptions of all species new to science;
• Receive approval for the collection of species from the Scientific Committee of PEMANSKY. All collections must be done in non-destructive manner, may not include any endangered species, and may not be used for commercial purposes. Samples of all collected specimens must be left with PEMANSKY 9to be added to collections at the University of Panama).;
• Undergo an orientation into the culture of the Kuna Yala, and respect the norms of the communities in which they work.
The Procedures also forbid the introduction of exotic plant or animal species, or the manipulation of genes. Research is restricted to certain areas of the reserve, is prohibited in some sites, such as ceremonial or sacred sites, and is controlled in other specific sites, such as some forest areas under community management.
The Awa Federation
The Awa Federation is a legal institution which administers 1,000 hectares held under communal title by the Awa in Ecuador, and makes collective decisions regarding its use, and works on the development of socio-economic infrastructure. The Awa acquired legal recognition as citizens and communal title to their land in 1988 (previously they were considered “wards of the state”), and since then have demarcated their territory by planting a 50 meter wide border with fruit trees, and patrolling and securing their boundaries. Due to the botanical and ethnobotanical wealth of the Awa and their lands, the New York Botanical garden and other research institutions have begun collaborations with the Awa. In 1993, the Convenio – Reglamentos para la Realizacion de Estudos Cientificos en el Territorio de la Federacion Awa – was developed to set terms for research relationships. It includes the following provisions:
1) All scientists must ask for written permission to carry out studies. The written request for permission must include a description of objectives, size, and composition of research party, length of research program, species or object of study, and the manner in which this research will benefit the Awa community;
2) The request for permission must be given with a minimum of two months notice (widely dispersed communities only meet four time a year for four days).
3) More than five people to a research group is prohibited;
4) More than one group of scientists are prohibited from entering at the same time (provisions 3. and 4. are intended to minimize the cultural impact of the research process);
5) Local guides and informants must accompany all scientists;
6) The collection of animals, insects, or plants for commercial purposes is prohibited;
7) Only 3 specimens of each species are to be collected – one each for the research group, the Awa federation, and the Tobar Donoso Project in Quito (this was increased in 1995? to allow for larger numbers);
8) The removal of any object from Awa territory not approved by the Federation is prohibited (the main concerns are cultural artifacts and property, including stone mortars found in the forest and believed to be possessions of the ancestors);
9) Scientists must dispose of their own garbage;
10) The prices established by the Awa Federation for their services are as follows: each member of the each scientific group must contribute to the Federation 1,000 sucres in order to enter Awa territory; guides and informants receive 700 sucres per day; cooks, cleaners, and other workers receive 500 sucres per day; members of scientific groups from Ecuadorean universities or institutions pay only 500 sucres per day to enter Awa territory.
11) It is not permitted to provide gifts or money outside of the established regulations;
12) Scientists who do not respect these rules or Awa organizations and cultures will be expelled immediately;
13) The Awa Federation must receive acknowledgement in publications.
Permission to collect in Awa territory requires two tiers of permission: first the researcher must secure permission from the Awa, and secondly, they must obtain permission from the government.
Examples of Characteristics of “Good” and “Bad” Research Relationships:
Responses from Kadazandusun Communities, Kinabalu National Park, Sabah
| |“Bad” relationship |“Good” relationship |
|Consultation and Prior Informed |Community not consulted on the design of the |Community provided approval for the research; use of |
|Consent |project, or the intended products; communities |valid permits; introduced and registered themselves in|
| |given incomplete information; use of |the community (presented a formal letter and then |
| |forged/false permits; researchers did not |convened a meeting); researchers involved all relevant|
| |introduce themselves and did not register with |village authorities (village chief, religious leaders,|
| |the relevant village authority; only people with|Village Development and Security Committee – JKKK); |
| |a personal interest were consulted; the |researchers organized a meeting with representatives |
| |researchers involved community members, but did |of village families (e.g. at community hall); |
| |not explain things clearly; | |
|Products/Benefits |Community did not see any benefits or products |Researchers provided benefits as promised (paid |
| |resulting from the research as promised; |guides, training, provided posters, photos, etc.); |
| |researchers did not show appreciation before |showed appreciation; provided materials in languages |
| |departure; materials provided to the community |and in a form communities can use; researchers |
| |are not in local languages; |provided training and shared their knowledge; research|
| | |contributes to the wider objectives and welfare of the|
| | |community; |
|Behavior during research |Researchers did not use guides from the village;|Researchers used guides from local village; received |
| |did not receive permission to collect specimens;|permission to take specimens; adhered to conditions of|
| |did not adhere to community rules/conditions |the village (e.g. not go into forest during bad |
| |(e.g. hunted, used poison to fish, left |weather, appropriate dress; did not hunt; did not |
| |rubbish); researchers steal or disrespect the |smoke in prohibited locations); researchers are clean,|
| |way of life and local customs (e.g. |honest, and approachable; researchers treat with |
| |hot-tempered, rude); researchers practiced |respect sacred areas, burial sites, community halls, |
| |favoritism; dishonest; only socialized with |etc.; researchers respect the culture (respect for |
| |people of rank in the village; |elders, socializing, moral and social values); |
| | |researchers are concerned about the rights of the |
| | |villagers; researchers reported on their activities |
| | |throughout; |
| | | |
- From a September 1998 workshop for Kadazandusun communities and Kinabalu National Park, coordinated by People and Plants in Southeast Asia and Project Etnobotani Kinabalu (PEK) - Sarah Laird, Jannie Lasimbang, Agnes Lee Agama, Gary Martin, Sugarah Juanih, Claudia Lasimbang, Wendy Yap, Rusaslina Idrus
Bibliography
Brooke, L. 1993. The Participation of Indigenous Peoples and the Application of their Environmental and Ecological Knowledge in the Arctic Environment Protection Strategy. Inuit Circumpolar Conference, Ottawa. In. IUCN Inter-Commission Task Force on Indigenous Peoples, Indigenous Peoples and Sustainability: Cases and Actions.
Brush and Stabinsky. Valuing Local Knowledge; Indigenous People and Intellectual Property Rights. Washington, DC: Island Press
Crengle, D. 1997. Perspectives on Maori Participation Under the Resource Management Act: A Case Study. In. IUCN 1997.
Downes, D. SA Laird, C. Klein and BK Carney. 1993. Biodiversity Prospecting Contract. In. Reid et al. 1993. Biodiversity Prospecting. Washington, DC: World Resources Institute
Evans, B. 1998. A Guide to Developing (a memorandum of) understanding within and between parties involved in community-based recording and use of ethnobotanical knowledge. WWF South Pacific.
Four Directions Council. 1996. Forests, Indigenous Peoples, and Biodiversity. Canada.
Gadgil, M. et al. 1998. New meanings for old knowledge: the people’s biodiversity registers programme. Ecological Applications (forthcoming).
Glowka, L. et al,. 1994. A Guide to the Convention on Biological Diversity. Environmental Policy and Law Paper No. 30. Gland: IUCN.
Gollin, M. and SA Laird. 1996. Global Policies, Local Actions: The Role of National Legislation in Sustainable Biodiversity Prospecting. Boston University Journal of Science and Technology Law, 2, L. 16.
Greaves, T. (ed.). 1994. Intellectual Property Rights for Indigenous Peoples: A Sourcebook. Oklahoma City: Society for Applied Anthropology.
Grifo, F. and D. Downes. 1996. Agreements to Collect Biodiversity for Pharmaceutical research. In. Brush and Stabinsky. Valuing Local Knowledge; Indigenous People and Intellectual Property Rights. Washington, DC: Island Press
Guerin-McManus et al. 1998. Bioprospecting in Practice: A Case Study of the Surinam ICBG Project and Benefit Sharing Under the CBD. In. Case Studies on Benefit Sharing Arrangements. Secretariat, Convention on Biological Diversity, Conference of the Parties 4, Bratislava, Slovakia.
International Alliance of Indigenous-Tribal Peoples of the Tropical Forests and International Work Group for Indigenous Affairs and IWGIA. 1997. Indigenous Peoples, Forest, and Biodiversity.
IUCN, 1997. “Perspectives on Maori Participation under the Resource Management Act”. 1997. In. IUCN Inter-Commission Task Force on Indigenous Peoples.
IUCN. 1997. Indigenous Peoples and Sustainability: Cases and Actions. IUCn Inter-Commission Task Force on Indigenous Peoples. International Books, The Netherlands.
IUCN and WWF. 1998. Implementation of Article 8j and Related Provisions. Policy Recommendations for the Fourth meeting of the COP to the Convention on Biological Diversity.
Iwu, MM and SA Laird. 1998. The ICBG: Drug Development and Biodiversity Conservation in Africa: A Case Study of a Benefit Sharing Plan. In. Case Studies on Benefit Sharing Arrangements. Secretariat, Convention on Biological Diversity, Conference of the Parties 4, Bratislava, Slovakia.
Janzen, D et al. 1993. Research Management Policies: Permits for Collecting and Research in the Tropics. In. Reid et al. 1993. In. Reid et al. 1993. Biodiversity Prospecting. Washington, DC: World Resources Institute
ten Kate, K. and SA Laird. In press. Commercial Use of Biodiversity: Access and Benefit Sharing under the Convention on Biological Diversity. London: Earthscan.
Laird. SA. 1993. Contracts for Biodiversity Prospecting. In. Reid et al. 1993. Biodiversity Prospecting. Washington, DC: World Resources Institute.
Laird, SA and EE Lisinge. 1998. Sustainable Harvest of Prunus africana on Mount Cameroon: Benefit-Sharing between Plantecam Company and the Village of Mapanja. In. Case Studies on Benefit Sharing Arrangements. Convention on Biological Diversity, Conference of the Parties, Bratislava, Slovakia.
Laird , SA. In press. Equitable Partnerships In Practice: The Tools of the Trade in Biodiversity and Traditional Knowledge. A People and Plants Conservation Manual. Stanley Thornes, UK.
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Posey, DA and G Dutfield. 1996. Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities. Ottawa: IDRC.
Posey, DA. 1996. Traditional Resource Rights: International Instruments for Protection and Compensation for Indigenous Peoples and Local Communities. Gland, Switzerland: IUCN.
Posey, DA. 1995. Indigenous Peoples and traditional Resource Rights: A Basis for Equitable Relationships? Green College Centre. Oxford.
Ruppert, D. 1994. Buying Secrets: Federal Government Procurement of Intellectual Cultural Property. In. Greaves, T. (ed.). 1994. Intellectual Property Rights for Indigenous Peoples: A Sourcebook. Oklahoma City: Society for Applied Anthropology.
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Shelton, D. 1995. Fair Play, Fair Pay: Strengthening Local Livelihood Systems through Compensation for Access to and Use of Traditional Knowledge and Biological Resources. Gland: WWF International.
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Text and examples were drawn from the following documents:
• Memorandum of Understanding among National Park Service, Redwood National Park, California Department of Parks and Recreation, Prairie Creek Redwoods State Park and The Yurok Tribe for Government to Government Relations.
• The Memorandum of Understanding Regarding the Gathering of Plant Resources for American Indian Traditional Cultural-Religious Purposes from National Park Lands among Zion National Park, Cedar Breaks National Monument, Pipe Spring National Monument, and the Kaibab Band opf Paiute Indians, the San Juan Southern Paiute Tribe, the Moapa Paiute Tribe, the Las Vega Paiute Tribe, and the Paiute Indian Tribes of Utah
• The Uganda Wildlife Authority’s Collaborative Management Agreement (MOU)
• The “Review Draft MOU Regarding Proposed Ethnographic Research in Glacier National Park” (1994)
• AMRAD Natural Products Pty Limited and Northern Land Council and The Arnhem Land Aboriginal Land Trust Agreement (1995)
• The Awa Federation Convenio – Reglamentos para la Realizacion de Estudos Cientificos en el Territorio de la Federacion Awa (1993)
• The Programa de Investigaion Monitoreo y Cooperacion Cientifica, Kuna Yala, Panama (1988)
• National Institute of Biodiversity (INBio), Costa Rica, “Rights Agreement” (1994)
• International Alliance of Indigenous-Tribal Peoples of the Tropical Forests. Guiding Principles: Conservation in Indigenous and Tribal Territories (1996)
• Northwest Territories Policy 51.06 – Policy on Traditional Knowledge
• The Inuit Circumpolar Conference report for the Artic Environmental Protection Strategy
• The Leticia Declaration and Proposal for Actions (1996)
• Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (1993)
• The Declaration of Belem (1988)
• The Covenant on Intellectual, Cultural, and Scientific Resources (1994)
• Negotiating Research Relationships in the North, Inuit Tapirisat of Canada (1993)
• Draft Code of Ethics and Standards of Practice of the International Society of Ethnobiology (1998)
• Proposed Guideline3s for researchers and Local Communities Interested in Accessing, Exploring, and Studying Biodiversity. The Pew Scholars Initiative (1996).
• Convention on Biological Diversity
• The Philippine Executive Order no. 247 and Implementing Rules and Regulations
• Third World Network’s Community Intellectual Rights Act (1994)
• UN Draft Declaration on the Rights of Indigenous Peoples (1993)
• UN Commission on Human Rights, final report for Mrs. Erica-Irene Daes, “Discrimination Against Indigenous Peoples”, June 1995. E/CN.4/Sub.2/1995/26.
• Principles for the treatment of intellectual property and the sharing of benefits associated with International Cooperative Biodiversity Groups (United States NSF/NIH/AID)
• WWF/IUCN Draft Principles and Guidelines on Indigenous/Traditional Peoples and Protected Areas (1998)
• WWF International Statement of Principles on Indigenous Peoples and Conservation (1996)
Acknowledgements
Sincere thanks to Gonzalo Oviedo, head of the People and Conservation Unit of WWF International, for his support and help with this project. Thanks, too, to David Ruppert, Alan Hamilton, Graham Dutfield, Howard Mann, and Lyle Glowka for their insightful comments, as well as those facilitated by Michele Bowe and provided by Peter Whitehead of WWF Australia.
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[1] See, for example, IUCN, 1997; Four Directions Council, 1996; International Alliance of Indigenous-Tribal Peoples of the Tropical Forests and International Work Group for Indigenous Affairs and IWGIA, 1997; Posey and Dutfield, 1996; Posey, 1996; Reid et al, 1993; Brush and Stabinsky, 1996; Tobin, B. 1995; Greaves, 1994; and the range of indigenous peoples’ declarations and statements.
[2] See, too, the definition of PIC in Glowka, L. et al,. 1994.
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“Indigenous peoples are entitled to the recognition of the full ownership, control, and protection of their cultural and intellectual property. They have the right to special measures to control, develop, and protect their sciences, technologies, and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literature, designs, and visual and performing arts.” - The UN Draft Declaration on the Rights of Indigenous Peoples (1993)
Do you need a written document?
A Sample of the “Pro’s” and “Con’s”
PRO’s
• Mutual expectations – on the part of both researchers and communities - are clarified;
• Removal of confusion;
• Formalization of the research relationship over time – interpretations are unlikely to change with a written document as years pass;
• Protects the relationship from over reliance on the involvement of one or a few individuals;
• In some cases, parties are legally bound by the document;
• Interpretation of the research relationship takes a form which can be shared widely and made clear to a large number of people;
• A researcher is morally bound to a set of principles and objectives;
• Researchers are made aware of the need for PIC and respect of local cultures, and are forced to adapt accordingly;
• Agreements promote and push forward a shift in the researcher-community relationship paradigm;
• Agreements ground in local detail the principles expressed in professional codes of conduct;
• Although they are most effective when the legal and institutional framework is in place, agreements can be used as a tool for setting terms and requiring benefit sharing, when the legal framework does not exist;
• The process of reaching agreement can clarify distinctions between communally- and individually- owned information or knowledge within the community.
CON’s
• Written documents are culturally inappropriate;
• They are a “western” approach to clarification of objectives;
• Agreements take too much time and are bureaucratic;
• Written documents go against a more friendly atmosphere of research collaboration;
• Written agreements require too much time and investment for short-term research projects;
• In some cases, they could create division among community members;
• For commercial agreements, communities need legal or other expert assistance, perhaps not readily available, to develop, monitor and evaluate compliance;
• The transaction costs for commercial agreements can be well beyond the reach of local communities;
• The history of indigenous peoples’ experiences with written agreements is not a good one – agreements and “legally” agreed terms have been used to undermine community interests;
• Agreements can be made with the wrong party or parties within a community.
Recommended Procedure for Acquiring Prior Informed Consent from Local Communities or Indigenous People
(Posey and Dutfield, 1996)
Requests for consent should be accompanied by full disclosure of the following, in writing, in the local language:
• The purpose of the activity;
• The identity of those carrying out the activity and its sponsors, if different;
• The benefits for the people or person whose consent is being requested;
• Possible alternative activities and procedures;
• Any risks entailed by the activity;
• Discoveries made in the course of the activity that might affect the willingness of the people to continue to cooperate;
• The destination of knowledge or material that is to be acquired, its ownership status, and the rights of local people to it once it has left the community;
• Any commercial interest that the performers and sponsors have in the activity and in the knowledge or material acquired; and
• The legal options available to the community if it refuses to allow the activity.
“Even though applied academic and industrial science has a long-established system of patents, direct research compensation, delayed publication, and employee-employer agreements designed to allow the person or organization sponsoring the research to protect a costly investment, university or museum-based researchers in whole-organisms biology still feel that the free and unimpeded flow of information and the exchange of data through symposia, publications, discussions, etc. are essential to keeping their discipline alive. Even so, much of such information doesn’t begin to “flow” until its initial possessors have extracted what they need for their own research “– Janzen et al, 1993.
“ The Blackfoot Confederacy in North America is comprised of several allied nations, each of which is divided into several territorially-localized clans. Each nation also has its own unique system of “societies” which are voluntary associations of women or men with special skills, knowledge and responsibilities. Although one language is spoken through the confederacy, ecological knowledge is divided among the clans, “societies” and individual societies. The natural history of particular places is generally clan-level knowledge. Relationships with the animal and spirit worlds are knowledge for this purpose. The possession of different kinds of hunting or foraging knowledge by comparison varies by species: clans for berries and small animals, “societies” for some large animals such as bison, and individual specialists for the most powerful animals such as bears.... women tend to hold knowledge of medicinal and food plants, and men possess most knowledge of animals... A complete model of the Blackfoot ecosystem can therefore only be reconstructed through the cooperation of all segments of the population; no one individual or group possesses, or has the right to share all of the relevant data.” – Four Directions Council, 1996
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