Indigenous Heritage and Self Determination

Intellectual Property Rights have moved centre stage as a controversial human rights issue. International legislation, such as the Convention on Biological Diversity and the General Agreement on Tariffs and Trade, seek to impose international norms on developing countries to promote trade in bio-technologies and human knowledge. The exact form of the national legislation to be adopted to secure these international obligations is the subject of heated debate between those representing the interests of transnational corporations, national governments and local communities. At the same time, some environmentalists have been promoting the commercialisation of forest products and indigenous pharmacopeia, as ways of saving forests and making them valuable.

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After centuries of disparagement, indigenous peoples suddenly find their millennial wisdom coveted by outsiders and they are demanding that mechanisms be established to effectively protect their rights. The problem is, how? Western legal regimes have a poor record of accommodating indigenous rights, and in the past many laws adopted to protect indigenous peoples interests have done more harm than good.

This study was born from a concern that precipitated moves to define legal mechanisms for protecting indigenous peoples intellectual property rights might repeat these mistakes. So often imposed laws defining indigenous rights to their lands have had the effect of opening up the communally-held ancestral territories of indigenous peoples and oftentimes parcelled them up into saleable titles.

The study, carried out for the Forest Peoples Programme by the Australia lawyer, Tony Simpson, examines the legal avenues presently open to indigenous peoples to defend their cultural heritage and seeks to elucidate the advantages and disadvantages of the various approaches so far advocated. It aims not to determine indigenous policy but to help them define their own local, national and international proposals to secure their futures, in accordance with their right to self-determination and to exercise their own customary law.

We are grateful to the IUCN-Netherlands for funding this research and to the International Work Group for Indigenous Affairs and the Greenland Home Rule Government for helping with the publication.