Traditional Values and Modern Challenges in Property Law [2007] JSPL 8; (2007) 11(1) Journal of South Pacific Law 18

Traditional Values and Modern Challenges in Property Law

H.A. AMANKWAH^[1]

INTRODUCTION

After decades of negative portrayal of traditional land tenure systems by the world's financial institutions, the World Bank has finally conceded that traditional modes of land tenure serve a beneficent purpose, and provide a foundation for the functioning of non-market institutions. This is tantamount to the recognition that land serves a dual function, namely the provision of the foundations of market and non-market social institutions.[1]
Thus traditional land tenure systems can no longer be dismissed as a relic of ‘the Arcadian fantasy era in which noble savages were expected to wander off happily ever after to their dreaming sites and practice self-determination, in mystic communion with the land.’[2]
From such recognition of the function of traditional tenure flows the challenges it must face, the foremost being how to make traditional land tenure viable and relevant in a global economic system propelled by market forces and by concepts of sustainable development. Globalisation is proceeding on the assumption of a borderless world in which property and appurtenant interests and rights can be effected instantaneously.[3] The issue is therefore whether traditional land tenure systems and concomitant rights can retain a status autonomous of such a global economic matrix or be integrated into it.
In this regard the present writer essays a discussion of an issue pertinent to the theme of this conference, namely natural resources and ownership of the traditional knowledge which sustains them.
TRADITIONAL KNOWLEDGE[4]

A crucial component of the traditional proprietary paradigm is traditional knowledge (TK) also referred to as local knowledge. Experience gained from the colonial existence of non-western cultures suggests that whenever western values and institutions come into conflict with those of non-western culture the later must yield to the primacy of their western counterparts. Non-western cultural values and institutions – political, social and legal – deserved recognition and protection only to the extent they approximate their western counterparts. Pluralism or coexistence of multiple cultural values and institutions was at best tolerated.^[5]

The position is not any different in respect of traditional knowledge also, because the discourse of intellectual property excludes any consideration of traditional knowledge as a specie of interest or right informed by proprietary indicia. If land, the most concrete representation of property, was not so long ago considered as encompassed by indigenous ideas of property,^[6] is it any wonder that indigenous products of the intellect are excluded from the categories of legally recognisable and protectable rights and interests?

The globalisation process has even exacerbated the problem in its drive toward the evolution of a universal commercial monoculture in which goods and services are beyond the regulatory powers of individual territorial sovereigns.^[7]

However, it is simplistic to generalise the conception of TK; for to do so will be an experiment in trivialisation. Most of such knowledge is context specific and designed for the solution of localised problems. It is therefore important that its indicia be determined. It must be critically evaluated and validated. Such validation will enhance its protection and indiscriminate dissemination and exploitation.

Indigenous people assert ownership rights to their peculiar knowledge and practices relating to the bush which enabled them and their forebears before them to nurture and sustain the regenerative qualities of country in fishing, hunting and gathering and controlled burning of the bush. Additionally, indigenous people possess knowledge of the medicinal and curative properties of plants and vegetation which have been scientifically validated and are in great demand by pharmaceutical companies in western countries.^[8]

This knowledge has been transmitted in a continuum through oral tradition from generation to generation and cannot be said to belong to particular individuals as its creators. Indigenous people are under enormous pressure to concretise such knowledge, reducing it into writing which makes it more amenable to piracy. The term bio-piracy was not coined by indigenous people. Bio-piracy is the unauthorised appropriation of plant related substances for development into commercial commodities – such as pharmaceuticals, cosmetics and pesticides. This is the crux of the concern of traditional peoples today regarding intellectual property that is, the non-recognition and protection of TK from commercial exploitation.

Attempting to define TK can be likened to the proverbial Tropical African baobab tree which is so large that it is said it cannot be encompassed by two human hands. It is embodied in the norms, customs and traditional practices of a people and passed down by oral tradition from generation to generation. It is sacred and cannot be revealed to outsiders. It is inextricably bound with the land and its tenure. Entitlement to its use and enjoyment is communal and resides in the group. It embraces knowledge of places and of their ecology, knowledge of vegetation and plants and their properties as food to sustain life or as medicine to assist in curing maladies and diseases, knowledge of minerals and their uses etc. And just as there is no such thing as knowledge, but rather systems of knowledge,^[9] so also there are many systems of TK.^[10] And there could be knowledge according to sex, age, status or other social stratification.^[11]

Intellectual property in this context will be confined to patent law and away from copyright law because of the nexus between the World Intellectual Property Organisation’s (WIPO’s) trade related aspects of intellectual property rights (TRIPS) regime and traditional knowledge.^[12]

OWNERSHIP OF TRADITIONAL KNOWLEDGE

The emergence of traditional/indigenous knowledge (TK/IK) as an intellectual expression has serious implications for development and scientific exploitation of natural resources outside the predominantly western industrialised nations. Western and industrialised nations have tended to idolise intellectual prowess as the product of formal education buttressed in schools, colleges and universities. This posture has nurtured the inauguration of a mono-cultural intellectualisation which would not countenance the existence of other systems of knowledge in a world made up of multiple cultures. Non-western forms of knowledge are denigrated as unscientific and dismissed as based on superstition.

The realisation now, albeit grudgingly conceded, that knowledge can be formal or informal means there has to be a re-evaluation of those interests, rights and claims built on the presumption of a universal monolithic intellectual culture. The North/South cleavage palpably demonstrates the correctness of the dichotomy of formal and informal knowledge systems.^[13]

By relying on the knowledge of local people about resources and their properties, those interested in the acquisition of such knowledge save themselves the expense and trouble of engaging in long and drawn out experiments to arrive at such knowledge. However, even when such secret knowledge has been revealed by local people to bio-prospectors there is still the task of validating it scientifically.

The question regarding ownership of TK does not lend itself to an easy solution. It could begin initially as the thought of one individual which was then subsequently embraced by direct descendants and later practiced by the community as a whole.^[14]

Mobility, the extended family system and inter-tribal marriage could lead to the transportation of the knowledge so that over time it spread over regions and even countries and is transformed or refined into other knowledge products. As Sillitoe observes, local knowledge ‘is never still’.^[15] Sikana echoes the same idea when he says local knowledge ‘is dynamic and strategic’.^[16]

Native title claims in Australia demonstrate how difficult identifying the beneficiaries of a native title interest can be. Shiva states the matter eloquently:

[W]ithin indigenous communities, despite some innovations being first introduced by individuals, innovation is seen as a social and collective phenomenon and results of innovation are freely available to anyone who wants to use them. Consequently, not only the biodiversity but its utilization has also been in the commons, being freely exchanged both within and between communities. Common resource knowledge based innovations have been passed on over centuries to new generations and adopted for newer uses, and these innovations have over time been absorbed into the common pool of knowledge about that resource. This common pool of knowledge has contributed immeasurably to the vast agricultural and medicinal plant diversity that exists today.^[17]

It is perhaps therefore not feasible to always determine with finality who is/are entitled to payment of compensation for particular knowledge, whether a group or tribe, because they are considered currently to be the rightful owners of some knowledge. Doing so could well work injustice on unidentified but potential beneficiaries.^[18]

SUSTAINABLE DEVELOPMENT AND HARMONISATION OF THE CONFLICTING PROPERTY PARADIGMS: THE RELEVANCE OF ENVIRONMENTAL LAW

After centuries of ruthless exploitation of the world’s natural resources often accomplished through subjugation of local populations, the real owners and custodians of such resources, the realisation has dawned on humankind that such natural resources, despite nature’s boundless bounty are not inexhaustible and that unless humankind’s extant patterns of exploitation and use of natural resources are drastically adjusted, there will be nothing left to bequeath posterity and future generations. The conception of the ideology of sustainable environment and its institutional gestation resulted in the United Nations Conference on Environment and Development (UNCED), also called the “Earth Summit” in 1992 at Rio de Janeiro, and is very critical to humankind’s survival. Among the outcomes of the UNCED, three instruments are significant and pertinent to the theme of this gathering viz:

1. The Rio Declaration on Environment and Development;^[19]
2. Agenda 21;^[20] and,
3. The Convention on Biological Diversity (CBD).^[21]
   

The Rio Declaration on Environment and Development is significant for its recognition of the potential of indigenous and other traditional or local peoples for the management and development of the ecosystem through the deployment of their TK systems. Principle 22 states:

Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.

Agenda 21 is a comprehensive plan of action that can be implemented on global, national and local proportions. Though more hortatory than a legally binding document, it wields a moral force and provides a yardstick by which the performance of states could be measured. Its significance lies in the recognition it accords the ‘holistic tradition of scientific knowledge of their lands, natural resources and environment’^[22] of indigenous, traditional and other local peoples.

The CBD, the world’s first legal instrument on biodiversity and its conservation is the most significant in its impact on the world’s traditional peoples not only for its objective of the conservation of biological diversity and the sustainable use of its components but also for its objective of equitable sharing of benefits from the exploitation and use of genetic resources. To that effect Article 8(j) enjoins each contracting party:

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 10 buttresses Article 8(j) by obligating each contracting party to:

100. Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation and sustainable use requirements...

4. Support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced.