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Sutherland, Johanna --- "Representations of Indigenous Peoples' Knowledge and Practice in Modern International Law and Politics" [1995] AUJlHRights 3; (1995) 2(1) Australian Journal of Human Rights 39

Representations Of Indigenous Peoples' Knowledge And Practice In Modern International Law And Politics

Johanna Sutherland[*]

Introduction

This paper is concerned with the fairly recent recognition in multilateral environmental and human rights treaties that tribal, indigenous and local people[s] and communities[1] have potentially useful traditional knowledge and techniques of natural/cultural resource management which can contribute to the conservation of biodiversity[2] and sustainable development. Another recent development in international law is the recommendation that equitable benefit-sharing arrangements should be developed and implemented where indigenous or local peoples' knowledge, or customary biological and genetic resources[3] are used. Reasoning based on equity, compensation, or the provision of incentives for biodiversity conservation and sustainable resource management[4] can be identified in support of this.

The conservation of biodiversity is a central concern within contemporary international debates about sustainable development. Biodiversity issues have become increasingly important because of unacceptable rates of species extinctions; the erosion of plant genetic diversity because of widespread conversions to high-yield, standardised and often hybridised agribusiness seeds (with the erosion of genetic diversity a concern for the twenty or so cultivated crops which comprise about 90 per cent of the world's staple food)[5]; and because of the degradation of forests, agricultural lands, oceans and waterways, and other ecosystems.[6]

This paper will explore the discursive dynamics involved in the assertion and recognition in international law and politics, of the value of `traditional' indigenous and local peoples' customary knowledge, innovations and practices regarding biological resources. These are being elevated from their former status as `subjugated knowledges'[7]. The paper will also attempt to counter suggestions that indigenous peoples are essentialised by this development, and within broader environmental debates[8], suggesting instead that indigenous peoples and their leaders actively demand recognition of the value of their customary practices, self-determination, and the capacity to share in the benefits of the exploitation of customary natural/cultural resources (where sanctioned), amongst other `rights'. It will be concluded that parallels can be drawn with feminist `standpoint' theory to justify retaining the ontologically `situated'[9] and historically constructed knowledges and identities of indigenous and local peoples, while the contribution of scholarly discourse and political networking will also be demonstrated.

Science and colonial expansion

Although multilateral legal recognition of the commercial and ecological value of indigenous and local peoples' knowledges and practices is a recent phenomena, the potential commercial value of those knowledges and practices for agriculture, medicine, aesthetics, and trade, has probably been known since trading and colonisation began. In the late seventeenth and eighteenth centuries, during the colonial predations of European states, public and private benefaction for the natural sciences[10], and financial support for the development of an international network of botanic gardens and plant collectors (natural historians, botanists and surgeons particularly) facilitated the transfer of strategic biological resources around the globe[11]. Colonising governments and trading corporations were motivated in part by the prospects for new agroindustry plantations and cash crops. The biological resources involved may have been traded voluntarily, or obtained in violation of local laws and protocols, and this fuelling of the mercantilist expansion of empires using new sources of wealth was not an exclusively European phenomenon. But retrospective assessments of the economic and social consequences of the `Columbian exchange'[12] have been particularly important in recent decades for supporting arguments in favour of national sovereignty over genetic resources and the development of benefit-sharing arrangements with the suppliers of commercially useful biological resources.

Colonial interaction and presence were highly variable and volatile, and international legal constraints on settlement and conquest were weak, despite protesting delegations of colonised leaders to imperial authorities[13]. The extent to which indigenous and local communities could, or preferred, to continue their pre-colonial political/cultural economies, or to seek commercial returns on their knowledges, innovations and practices, would have depended on the circumstances: the nature of their relationships with local administrations, imperial authorities, migrants and visitors; the sacredness or strategic utility of the knowledge or practice; and whether customary title to territories was retained would have been important. The respective interests of the encountering parties in `protecting' or `appropriating' aspects of the `other' would also have been important[14], as would the nature of the discourses influencing the church, government or business presence in the colony at the time. Such discourses included Aristotelian theories justifying slavery[15], Christian philanthropy or evangelism, mercantilist, Enlightenment, Romantic or Orientalist thinking, or nascent `scientific `environmentalism'[16]. Seventeenth and eighteenth century European writings on the justifications for colonialism were predicated on consent where peoples were `in possession' or cultivating their lands[17] and a range of treaties (or strategic alliances within colonies between some colonised peoples and administrative authorities) were common from the 18th century through much of the `new world'. But in the colonies between about 1870 and 1930, `primitive' indigenous societies were usually located by colonists at the base of the Darwinian evolutionary hierarchy and were thought destined to die out[18]. This was accompanied by a prolific public and private documentation of customary practices by a legion of anthropologists, archaeologists, missionaries, teachers and other researchers.

Twentieth century modernisation and `development' discourses

In the twentieth century the League of Nations and its treaties offered fairly ineffective protection for minority and colonised peoples[19]. In many colonies the widespread relocation to and strict regulation of indigenous peoples' lives on reserves, ostensibly for their protection (until the 1950s in some cases), impacted heavily on traditional knowledge and customary practices. In the 1930s, the International Labor Organisation promulgated standards for indigenous workers' labour conditions and contracts[20] and in 1957 finalised an assimilationist Convention on Indigenous and Tribal Populations. Modernisation discourse was paramount through the 1950s and 1960s, with Eurocentric indicators such as `urbanisation, industrialisation, political democracy, secularisation, social mobility, occupational differentiation, proliferation of voluntary associations, free enterprise, nuclear-family patterns and independent judiciaries tending to be used to gauge levels of social development in `developing countries'[21]. In this `development' model - aspects of which continue, and as a generalisation - natural resources are subject to large-scale extraction, so as to maximise gross national product, and agro-industry systems encouraged to maximise yields, with possibly more sustainable indigenous or customary uses of local ecologies being marginalised or even prohibited[22]. Within this discourse, industrial innovation is privileged over informal innovation, as manifest within international intellectual property conventions[23]. What are being asserted today as the collective and customary intellectual property rights, traditional resource rights, or cultural heritage rights[24] of indigenous peoples, were addressed in the non-binding and largely unimplemented model provisions on folklore developed by the World Intellectual Property Organisation in 1984[25]. But a more effective reform of the intellectual property rights (IPR) system, such as through domestic recognition of `sui generis rights' for informal innovation consistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights, of the General Agreement on Tariffs and Trade (The GATT TRIPS agreement), and domestic reform of IPR, heritage and resource management policies and legislation, is on many inter-governmental, government, and non-government organisations' reform agendas[26].

Despite the potential benefits of United Nations human rights edicts in instruments such as the Universal Declaration of Human Rights (1948), the post-war Bretton Woods institutions have been held partly responsible for widely promoting an unsustainable and `western' development model which has impacted heavily on social and cultural rights. But even within Marxist/socialist discourses, `primitive' communitarian societies were thought destined to be developed by capitalism and its dialectical materialism before enjoying liberation.

The human rights conventions of the 1960s[27] were precursors to the 1973 declaration of a Decade of Action to Combat Racism and Racial Discrimination, and these conventions have been used in recent years by indigenous peoples to complain of violations of their cultural rights in relation to the environment and self-determination[28]. Although early discussions on genetic diversity took place in UNESCO's Man and the Biosphere Program in the late 1960s[29] and 1970s, at that stage indigenous peoples had not yet become a recognised `major group' in international legal discourse about the environment[30]. The 1972 Stockholm Conference on the Human Environment produced a Declaration and Action Plan which advocated the fulfilment of basic needs by governments. It included actions on forests, fisheries, protected areas, genetic resources, scientific co-operation and information sharing, but did not identify `indigenous peoples' as a subject category[31]. It did call for increased price stability and greater returns on primary commodities and raw materials, but it did not advocate commodity status for genetic resources. International Conventions negotiated in the 1970s which are concerned with the protection of species recognised limited `traditional' rights to take[32], but most did not expressly recognise customary resource management and knowledge.

The incorporation of customary resource management mechanisms were also absent from protected area policies for much of this century. Protected areas embodying a wilderness iconography - essentially national parks without residents - were created widely around the globe between 1872 and about 1982[33], but government intent was often thwarted by local practices. In some jurisdictions the doctrine of terra nullius (land belonging to no-one) was implicit in such protected area creation, but that doctrine was strongly discredited in 1975[34].

By the 1970s and 1980s the need to recognise and regulate customary use of protected areas was being recognised by conservation organisation and in international instruments,[35] although in some jurisdictions domestic exemptions were conceded earlier. Joint-management approaches to protected areas and customary lands, and the recognition of the legitimacy of land rights claims have been particularly important in generating a broader cross-cultural understanding of indigenous peoples' cultural landscapes, traditional knowledge and customary resource management.

In retrospect, policies and legislation which were introduced in Australia, New Zealand and Canada during the 1970s, partly in response to the growing land rights movement and a series of landmark cases,[36] should be recognised as important developments for the later recognition of the value of customary knowledge in the instruments produced as a result of the United Nations Conference on Environment and Development process (the Rio Earth Summit). In Australia joint management became possible under Federal land rights legislation applicable in the Northern Territory and under Federal national parks and wildlife legislation in 1975 and 1976. In Canada, an Office of Native Claims was created in 1973 to process comprehensive land claims, and through subsequent policy revisions, resource management and environmental protection issues have become central to both comprehensive and specific claims negotiations and agreements. In New Zealand, the Treaty of Waitangi Act 1975 enabled Maori to seek better Crown compliance with the Treaty of Waitangi.

Subsequent `institutional experience' of a very limited accommodation of some customary laws of resource management[37] may partly explain why these governments promoted draft resolutions on the recognition of the value of `traditional knowledge' in the lead up to the Rio Earth Summit[38]. Sustainable use, conservation, management and development of natural resources and cultural relationships to the environment were recognised as important, as were economic growth and development. Latin American states in the lead up to Rio were also active on this issue[39].

Important cultural heritage conventions of the 1970s included the Convention for the Protection of the World Cultural and Natural Heritage 1972 and the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970. The potential of these treaties to promote recognition of the diverse values of traditional knowledge and customary practices has not yet been fully realised however.

By 1980 some United Nations agencies and international environmental organisations were advocating recognition of the value of traditional knowledge, particularly for conservation-based rural development[40]. Yet in 1982 the World Charter for Nature did not recognise the value of customary practices and traditional knowledge, urging instead that `[c]onstant efforts shall be made to increase knowledge of nature by scientific research and to disseminate such knowledge unimpeded by restrictions of any kind' after conceding awareness that `nature has shaped human culture and influenced all artistic and scientific achievement'[41]. Equitable rights to share in the benefits of sustainable (surface) resource developments, and in their management and conservation, and to continue community-based industries and traditional activities were included in the 1989 International Labour Organisation Convention Concerning Indigenous and Tribal Peoples in Independent Countries[42]. It has also been reported that the concept of an `informal innovation system' in agricultural practice was first suggested at a seminar convened by the African Academy of Agricultural Sciences in 1989, and that the concept became widely accepted quickly[43].

Over the following decade, and continuing, there has been a proliferation of scientific, public policy and sociological commentaries on biodiversity and the role of human communities. These include the World Commission on Environment and Development report Our Common Future[44], Economics and Biological Diversity: Developing and Using Economic Incentives to Conserve Biological Resources ,[45] the 1991 Final Report of the Keystone International Dialogue Series on Plant Genetic Resources[46], Caring for the Earth: A Strategy for Sustainable Living[47], BioDiversity[48], Keeping Options Alive: The Scientific Basis for Conserving Biodiversity[49]; Conserving the World's Biodiversity[50] and the Biodiversity Strategy and Action Plan[51], amongst others.

Of particular interest to current debates in international human rights and environmental fora about the value of traditional knowledge and customary practices were new appraisals of the commercial value of biological resources, the fundamental necessity of maintaining genetic diversity to minimise the impact of crop diseases, debate over the impact of plant variety rights and patents on living organisms, and a revived interest in natural products pharmaceutical research. Some of this literature with retrospective assessments of the substantial economic and social benefits accruing from the use of `developing countries' biological and genetic resources has been used in support of arguments for greater benefit sharing with farmers and informal innovators who provide germplasm for transfer, and with traditional healers whose customary knowledge of medicines is tapped[52]. These arguments echo the `unequal exchange economics' which earlier advocated a new international economic order[53] and several of the authors of these new works are active in international networks concerned with biodiversity, intellectual property rights and traditional knowledge[54]. These arguments are contested however by commentators who see slim prospects for any significant economic returns from trade in genetic materials particularly[55].

Debates over means to conserve plant genetic resources, benefit sharing from germplasm transfer and protections for rights to traditional knowledge are currently being addressed by the United Nations Food and Agriculture Organisation (FAO) and within its Global System for Plant Genetic Resources. The FAO's non-binding International Undertaking on Plant Genetic Resources 1983 provides that plant genetic resources[56] are to be treated as a `heritage of mankind' and are to be available without restricition[57] for plant breeding, for the benefit of present and future generations, and subject to the overriding sovereign rights of nations over their genetic resources. The FAO in 1989 accepted arguments put by Third World delegates that farmers should be compensated for their maintenance and development of plant genetic resources over generations, and it endorsed the concept of `farmers' rights'[58]. Such rights have been described as a `commitment of the participating governments to fund projects that will benefit farmers who develop and maintain germplasm', but the fund agreed to in 1991 to receive funds for that purpose, remains largely empty[59]. A resolution was agreed at the 1992 Rio Conference that the interrelationship between the Convention on Biological Diversity and the promotion of sustainable agriculture would be examined, recognising `the need to seek solutions to outstanding matters concerning plant genetic resources ... in particular ... farmers' rights'[60]. Implementation of Farmers' Rights continues to be discussed in that context[61], and the Undertaking may be revised and harmonised with the Convention on Biological Diversity by the time of the 4th International Technical Conference on Plant Genetic Resources in 1996.

1990s discourses about biodiversity conservation and indigenous peoples

Many of the instruments concluded as a result of the Rio Earth Summit process (or negotiated separately, such as the Convention on Biological Diversity) - do recognise the legitimacy of indigenous people[s]' and local communities' claims to share in the benefits of the commercial application of their knowledge, innovations and practices. The Rio preparatory and negotiating process had been informed by indigenous peoples' contributions[62]. The rights of indigenous people and local communities to participate in decision-making; have their identity, culture and interests recognised and supported, and to share equitably in the benefits arising from the use of traditional knowledge were variably recognised in the 1992 Rio de Janeiro Declaration on Environment and Development[63], the UNCED Statement of Forest Principles[64] and in many of the Agenda 21 strategy's of 40 chapters and over 500 pages of general prescriptions[65]. The Convention on Biological Diversity encourages the use of incentives for conservation and sustainable use activities; requires parties to facilitate the exchange of relevant information (including specialized knowledge, indigenous and traditional knowledge) from all publicly available sources and States are to manage biodiversity through national plans. New and additional financial resources are to be provided to developing countries, while agreements about access to genetic resources and the transfer of technology are to be promoted. Access to genetic resources is premised on national sovereignty over genetic resources, mutually agreed terms and prior informed consent[66]. Indigenous and local communities `embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity', are entitled to an equitable share of the benefits deriving from the use of their knowledge, innovations and practices - `as far as possible and as appropriate' and subject to national legislation. Customary practices compatible with conservation or sustainable use are to be protected and encouraged.

The first Conference of the Parties to the Convention on Biological Diversity (COP) was held in the Bahamas in late 1994 and a medium-term work program was agreed for the next three years[67]. Strategies for the recognition of indigenous and local communities' peoples' knowledge, innovation and practices, and to encourage the equitable benefit sharing are likely to be discussed in 1996. Instruments negotiated subsequent to Rio have also recognised the need for States to ensure protection for local and indigenous people[s]' intellectual property rights and to value traditional knowledge[68].

This decade many United Nations agencies have been addressing indigenous peoples' rights and interests in sustainable development. The United Nations Working Group on Indigenous Populations (WGIP) has produced several special reports and a set of guidelines on intellectual and cultural property rights (which address biodiversity isues), as noted above. The Commission on Human Rights, in which it is located, has also commissioned a report on human rights and the environment[69]. The WGIP completed its Draft Declaration on the Rights of Indigenous Peoples in 1993[70] and that draft was accepted by the Sub-Commission in 1994. An inter-sessional working group of the Commission on Human Rights (which is comprised of government representatives)[71] has now been convened `with the sole purpose of providing a draft declaration for consideration and adoption by the General Assembly within the International Decade of the World's Indigenous People'.[72] Several articles in the Draft Declaration[73] pertain to intellectual and cultural property rights.

A range of professional organisations have been particularly concerned with codes of ethics for research, biodiversity prospecting and intellectual property rights, and many of these organisations have been supportive of indigenous peoples' activities and aspirations. The subject of traditional ecological knowledge is also generating a large literature and is generating a diverse academic/institutional research interest. Links between academics, indigenous activists and governments are likely to have been important in international environmental agenda construction and networking. Ethnobotanists, biologists and biochemists have been particularly active, but the academic literature on sustainable agriculture, traditional ecological knowledge and sustainable development is burgeoning. Indigenous peoples and organisations have also been actively conferencing and forming networks. In 1988, at the First International Congress of Ethnobiology in Belém, Brazil, indigenous and local communities, scientists and environmentalists produced the Declaration of Belém, a declaration of ethics which advocated that `procedures be developed to compensate native peoples for the utilisation of their knowledge and their biological resources'. At a subsequent congress the Kunming Action Plan (KAP) was developed to address the destruction of biological and cultural diversity. Scores of other institutions, professional societies and other organisations have followed suit. Relevant declarations, conference proceedings and resolutions which were issued in 1992 included the `Kari-Oca Declaration' (1992); proceedings of the United Nations Technical Conference on Practical Experience in the Realization of Sustainable and Environmentally Sound Self-Development of Indigenous Peoples[74]; recommendations from a conference on the Science of Pacific Island Peoples[75]; and the `Manila Declaration concerning the Ethical Utilization of Biological Resources'[76]. In June 1993 the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples was issued following the first international conference on the cultural and intellectual property rights of indigenous peoples in Whakatane, Aotearoa, New Zealand and in November 1993 the Julayinbul Statement on Indigenous Intellectual Property Rights, and a Declaration Reaffirming the Self-determination and Intellectual Property Rights of the Indigenous Nations and Peoples of the Wet Tropics Rainforest Area was negotiated at a Rainforest Aboriginal Network conference in North Queensland. The Indigenous Peoples' Biodiversity Network (IPBN) is also an active non-government organisation[77].

The United Nations Development Program in 1994-5 sponsored a series of regional meetings which were designed to raise the awareness of indigenous peoples about the value of their knowledge and to give them the opportunity to discuss and identify possible strategies to preserve their knowledge systems and to protect their knowledge from appropriation by others. The first of the three consultations was held in Bolivia in September 1994, sponsored by the Coordinating Body for the Indigenous Peoples' Organizations of the Amazon Basin (COICA) and the UNDP. Delegates agreed that intellectual property systems were `a new formula for regulating North-South economic relations in pursuit of colonialist interests' and that self-determination and recognition or restoration of `Indigenous territoriality' was integral to control over `determination of access to national resources, control of the knowledge or cultural heritage of peoples, control of the use of their resources and regulation of the terms of exploitation'[78].

The Asian Consultation workshop held in February 1995 agreed that self-determination was most important to indigenous people; that land, `in particular native customary or ancestral lands' were significant as `the source of their livelihood and the base of their indigenous knowledge, spiritual and cultural traditions'; and that indigenous peoples' struggle for self-determination was a very strong counter-force to intellectual property rights systems, `particularly their applications on life forms and indigenous knowledge'[79]. The report reiterated many of the criticisms of intellectual property rights raised in the briefing material provided by the Rural Advancement Foundation International (RAFI) for the consultation, and outlined a number of short-term and medium-term strategies.

The third consultation was held in Suva in April 1995, and it resulted in the issuing of a declaration which sought `the establishment of a treaty declaring the Pacific region to be a lifeforms patent-free zone'. It called for a moratorium on bioprospecting activities until `appropriate protection mechanisms are in place' and agreed that public awareness of the dangers of the expropriation of indigenous knowledge and resources was needed. It urged Pacific governments who have not signed the GATT to refuse to do so, and to encourage those that have signed `to protest against any provisions which facilitate the expropriation of indigenous peoples knowledge and resources and the patenting of life forms'. Amongst other recommendations, it also encouraged the South Pacific Forum to amend its rule of procedure to enable accreditation of indigenous peoples and non-government organisations as observers at future forum officials' meetings[80].The UNDP has since contracted a member of the Pacific Concerns Resource Centre Inc. to prepare a draft life-form patent-free zone treaty. It is also supporting IPBN to set up a database on bioprospecting, and has developed a proposal for a follow-up fund that would support indigenous peoples' activities and initiatives in this area, which was to be submitted to bilateral donors in July/August, 1995[81].

Some commentators have suggested that representations of indigenous peoples in debates about environment and development resurrect the Rousseauian `noble savage' and tend toward a primitivist, romantic and essentialist portrayal of indigenous peoples. But, in my view, to examine the assertions that indigenous peoples and farmers should have their traditional knowledge, innovations and practices valued is not to endorse a romantic idealisation of an essentialised subject - the indigenous person who is close to nature with unique spiritual affiliations (although such concepts do feature in much of the literature generated by these issues), and nor is it necessarily to endorse cultural nationalism. Theoretically, `standpointing' on constructed identities in negotiating fora has been a useful political strategy to achieve desired outcomes, and access to and rights to control the use of customary, natural/cultural resource bases has been a fairly constant demand of indigenous peoples' organised politics. Moreover in the Rio instruments references to indigenous people and their communities are often coupled with `local' people, emphasising the bio-cultural, bio-geographic location of the subject rather than an imputed `racial' identity privileging indigenous peoples.

Feminist debates on the question of essentialism are relevant to the `construction' and representation of indigenous peoples[82]. Alcoff for example, has suggested that constructed subjectivities need to be historicised. If history is seen to both create subjects through discourses, with history itself being a social construct, then the concept emerges of `a conception of human subjectivity as an emergent property of a historicized experience'[83]. Harding similarly defends standpoint theorising against charges of essentialism by arguing that feminists should focus on socially located differences between constructed subjectivities, whilst also recognising fluid identity interactions across other socially constructed categories (including `race', sexuality, class and culture)[84]. Goetz pleads that feminists not abandon `women in development' agendas because of criticisms of privileging `woman', and urges a focus instead on postructural situatedness in the social with its relational/shifting/positional perspectives[85].

Feminist concerns are relevant in another sense. `Women in development' (WID) is now a mainstream discourse and one of its concerns has been the failure of economists, development planners and national account systems to recognise and value women's unpaid labour[86]. There are parallels here with the `unrecognised knowledge and labour input' claims in the benefit-sharing debate made by and on behalf of indigenous and local farmers, traditional healers and others, many of whom are women. The assertion of subject status as for `indigenous peoples' in political practice, using similar arguments, can be seen as a constructed and historicised identity, an assertion of socially-located commonality to underpin a stronger political presence in a given forum or context - an identity taken (and defined) `as a political point of departure, as a motivation for action, and as a delineation of one's politics'[87]. The capacity for agency, choice of immediate identity, and self-identification is recognised in this approach.[88] Indigenous peoples (and their leading delegates) have used and continue to use their legal options and political openings to good effect.[89] Participation by indigenous peoples' organisations in United Nations processes has been important, and global summits and other conferences have strengthened networks and generated support for common causes. Such supra-national strategies have been particularly effective between indigenous peoples of the Pacific Rim countries.[90]

Conclusion

Thus the paper has attempted to map the discursive formations through which hitherto often subjugated knowledges of indigenous and local peoples are today being represented as valuable. It is too early to determine whether indigenous communities will be able to realise sustainable development through a recognition of the value of customary knowledge and benefit-sharing arrangements, although a range of reforms are being developed and discussed. At the moment whether traditional knowledge generates returns is often dependent on local circumstance and negotiated appropriations. International law is not yet determinative in whether equitable outcomes are achieved, despite the existence today of a range of relevant standards. Prospects for sustainable development may still be dependent on the adequacy of environmental regulation of extractive processes, and on the willingness and capacity of stakeholders to implement equitable benefit sharing mechanisms.


Footnotes

[*]BA/LLB(Hons), MA(IR), PhD candidate, Department of International Relations, Research School of Pacific and Asian Studies, Australian National University. An earlier version of this paper was presented at the 14th Annual Law and History Conference in Canberra, 30 June-2 July 1995. I would like to thank Greg Fry and Jim Richardson for constructive comments.

[1]The use and meaning of the terms indigenous populations/communities/people[s] is not yet agreed in international law, with existing instruments and UN agencies using different terms. Indigenous peoples is the writer's preferred term. The chairperson of the Working Group on Indigenous Populations, Mme Daes, in 1993 urged acceptance of the term `peoples' as a political, social, cultural and ethnological reality: Daes, Discrimination Against Indigenous Peoples: Explanatory Note Concerning the Draft Declaration on the Rights of Indigenous Peoples, Sub-commission on Prevention of Discrimination and Protection of Minorities, Commission on Human Rights, Economic and Social Council, 45th Session, Item 14 of the provisional agenda, UN Doc. E/CN.4/Sub.2/1993/26/Add.1.

[2]Generally defined as the variability of life at the genetic, species and ecosystem level.

[3]`Biological resources' are `those components of biodiversity which maintain current or potential human uses' including biota such as forests, wetlands and marine habitats, and also'genetic resources'. `Genetic resources' means any material of plant, animal, microbial or other origin containing functional units of heredity of actual or potential value: Pearce and Moran, The Economic Value of Biodiversity (IUCN and Earthscan Publications, 1994), p 1, Article 2, Convention on Biological Diversity.

[4]Greaves (ed), Intellectual Property Rights for Indigenous Peoples : A Sourcebook (Society for Applied Anthropology, Oklahoma City, Oklahoma, 1994); McNeely, Economics and Biological Diversity: Developing and Using Economic Incentives to Conserve Biological Resources (International Union for Conservation of Nature and Natural Resources, Gland, 1988).

[5]The Crucible Group, People, Plants, and Patents: The Impact of Intellectual Property on Biodiversity, Conservation, Trade, and Rural Society (International Development Research Centre, Ottawa, 1994), p 4.

[6] The genetic properties of plants, animals, microbes, algae and fungi have become increasingly important in political-economic terms because of the so-called biotechnological revolution, particularly in agriculture, and a revived interest in natural products research: see Miller, The Third World in Global Environmental Politics (Lynne Rienner Publishers, Boulder, 1995); McChesney, `The Promise of Plant-derived Natural Products for the Development of New Pharmaceuticals and Agrochemicals', in Seidl, Gottlieb and Kaplan (eds), Chemistry of the Amazon: Biodiversity, Natural Products and Environmental Issues, (American Chemical Society, Washington DC, 1995); Brown and Moran, `Valuing biodiversity: The scope and limitations of economic analysis', in Sanchez and Juma (eds); Reid, Laird, Meyer et al (eds) Biodiversity Prospecting: Using Genetic Resources for Sustainable Development (World Resources Institute, Baltimore, 1993); Sanchez and Juma (eds), Biodiplomacy: Genetic Resources and International Relations (ACTS Press, African Centre for Technology Studies, Nairobi, 1994), esp. Part IV See generally: Barber, `Integrating Biodiversity Conservation and Development in the Asia-Pacific Region: Projects, Policies, Problems and Potentials', in Asian Development Bank and The World Conservation Union, Biodiversity Conservation in the Asia and Pacific Region: Constraints and Opportunities, Proceedings of a Regional Conference 6-8 June 1994, (Asian Development Bank, Manilla, 1995).

[7]Foucault, `Two Lectures', in Gordon (ed), Power/Knowledge: Selected Interviews and Other Writings 1972-1977 (Pantheon Books, New York, 1980) pp 78-108, at p 82; Foucault, `The Order of Discourse', in Young (ed.) Untying the Text: A Post Structuralist Reader (Routledge and Kegan Paul, Boston, 1970), pp 48-78.

[8]See this concern in, for example: Tennant, `Indigenous Peoples, International Institutions, and the International Legal Literature from 1945-1993' (1994) 16 Human Rights Quarterly 1-57; Sackett, `Promoting Primitivism: Conservationist Depictions of Aboriginal Australians', (1991) 2(2)The Australian Journal of Anthropology 233-246; Thomas, Colonialism's Culture: Anthropology, Travel and Government (Polity Press, Oxford, 1994), ch.6; Thomas, Entangled Objects: Exchange, Material Culture, and Colonialism in the Pacific (Harvard University Press, Cambridge, 1991) p 10; Keesing, `Creating the Past: Custom and Identity in the Contemporary Pacific' (1989) 1 The Contemporary Pacific 19-42 at 23, 29-30; Palmer Aborigines, Values and the Environment (Centre for Resource and Environmental Studies, Australian National University, 1991) Fundamental Questions Paper No. 7.

[9]Standpoint theory is predicated on social location and particularised perceptions of social phenomena: Longino, `Feminist Standpoint Theory and the Problems of Knowledge', (1993) 19(1)Signs 201-212.

[10]Mackay, In the wake of Cook: Exploration, Science and Empire, 1780-1801 (Victoria University Press, Wellington, 1985); Cf. Grove, Green imperialism: Colonial Expansion, Tropical Island Edens and the Origins of Environmentalism, 1600-1860 (Cambridge University Press, Cambridge, 1995).

[11]Brockway, `Plant Science and Colonial Expansion: The Botanical Chess Game', in Kloppenburg Jr. (ed) Seeds and Sovereignty: The Use and Control of Plant Genetic Resources (Duke University Press in cooperation with the American Association for the Advancement of Science, Durham and London, 1988) pp 49-66.

[12]Crosby, The Columbian Exchange: Biological and Cultural Consequences of 1492 (Greenwood Press, Westport, 1972). Plants from the colonies with food, medicinal and industrial uses, such as bananas, cocoa, coffee, cotton, oil palm, pineapple, tea, quinine, tobacco, sisal and rubber, maize, beans, potatoes, squash, sweet potatoes, cassava, and peanuts were to become cash crops in other compatible tropical and sub-tropical colonies, while European wheat, rye, oats and other vegetables also were transferred to other compatible environments: Kloppenburg, First the seed: The political economy of plant biotechnology, 1492-2000. (Cambridge University Press, Cambridge, 1988), pp 154-5.

[13]Lepage, `The Long Struggle for International Recognition: Indigenous Peoples and the Evolution of International Standards: A Short History', in Leger (ed) Aboriginal Peoples: Toward Self-Government (Black Rose Books, Montreal, 1994) pp 1-38.

[14]Thomas, Entangled Objects: Exchange, Material Culture, and Colonialism in the Pacific , op cit.

[15]Marks, `Indigenous Peoples in International Law: The Significance of Francisco de Vitoria and Bartolome de las Casas', in Greig and Alston (eds) The Australian Yearbook of International Law (Faculty of Law, Australian National University, Canberra, 1992), Vol. 13, pp 1-51

[16]See Grove, op.cit.

[17]Reynolds, The Law of the Land (Penguin Books, Ringwood, 1987), ch.1.

[18] Reynolds, Dispossession: Black Invaders and White Australians (Allen and Unwin, Sydney, 1989), pp 114-122.

[19]Thornberry, International Law and the Rights of Minorities (Oxford University Press, Oxford, 1991), pp 25-52.

[20]Wilmer, The Indigenous Voice in World Politics: Since Time Immemorial (Sage Publications, Newbury Park, 1993), p 215. See generally: Swepston, `A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989', (1990) 15(3) Oklahoma City University Law Review, 677-714.

[21]Hoogvelt, The Third World in Global Development (MacMillan, London, 1982), p 118; Shiva, Monocultures of the Mind: Perspectives on Biodiversity and Biotechnology (Zed Books and Third World Network, London and Penang, 1993).

[22] Sachs, `Global Ecology and the Shadow of `Development'', in Sachs (ed) Global Ecology: A New Arena of Political Conflict (Zed Books and Fernwood Publishing, London and Halifax, 1993) pp 3-21; Clarke, `The Ecopolitical Meanings of Indigenous Ecological Knowledge', in Bührs (ed) Pacific Visions: Ka Tirohaka o te Moana-nui-a-kiwa: Proceedings of the Ecopolitics VIII Conference held at Lincoln University, Canterbury, New Zealand, 8-10 July, 1994 (Centre for Resource Management, Lincoln University, Canterbury, 1995) pp 115-123.

[23] Relevant intellectual property rights instruments include the Berne Convention for the Protection of Literary and Artistic Works 1886; Universal Copyright Convention 1952; Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations 1961; Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms 1971; Paris Convention for the Protection of Industrial Property 1883; Patent Co-operation Treaty 1970; Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure 1977; Strasbourg Agreement Concerning the International Patent Classification 1971; International Convention for the Protection of New Varieties of Plants 1961; the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks 1957 and the General Agreement on Tariffs and Trade: McKeough and Stewart, Intellectual Property in Australia (Butterworths, Sydney, 1991). An assessment of the limitations of these instruments for indigenous peoples is included in: Daes, Discrimination Against Indigenous Peoples: Working paper on the Question of the Ownership and Control of the Cultural Property of Indigenous Peoples, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Commission on Human Rights, Economic and Social Council, United Nations, Forty-third session, Item 15 of the provisional agenda, 3 July, 1991, UN Doc. E/CN.4/Sub.2/1991/34; Secretary-General, Discrimination Against Indigenous Peoples: Intellectual Property of Indigenous Peoples: Concise Report, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Commission on Human Rights, Economic and Social Council, Forty-fourth session, Item 15 of the provisional agenda, 6 July 1992, UN Doc. E/CN.4/Sub.2/1992/30; Daes, Discrimination Against Indigenous Peoples: Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Commission on Human Rights, Economic and Social Council, Forty-fifth session, Item 14 of the provisional agenda, 28 July 1993, UN Doc. E/CN.4/Sub.2/1993/28; Daes, Discrimination Against Indigenous Peoples: Protection of the Heritage of Indigenous people: Preliminary Report , Sub-Commission on Prevention of Discrimination and Protection of Minorities, Commission on Human Rights, Economic and Social Council, United Nations, Forty-sixth session, Item 15 of the provisional agenda, 8 July 1994, UN Doc. E/CN.4/Sub.2/1994/31, and see Greaves (ed), op cit.

[24] See for example the Bulletin of the Working Group on Traditional Resource Rights, Oxford Centre for the Environment, Ethics and Society, Oxford University, United Kingdom.

[25]WIPO's `Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Action' purport to protect oral and written individual and collective folklore, and require proper authorisation before folklore can be used commercially outside its cultural context.

[26]The GATT TRIPS agreement requires that enforceable intellectual property rights are created in members' domestic laws, and patents are to be available `for any new inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application'. Although plants and animals (other than micro-organisms); and essentially biological processes for the production of plants or animals (other than non-biological and microbiological processes), can be excluded from patentability, members are required to provide for the protection of plant varieties either by patents or by `an effective sui generis system': Article 27(1): `Patentable Subject Matter'. Developing countries have up to five years to implement the TRIPS agreement, and the least developed countries have up to ten. Many non-government organisations are campaigning for the revision of the GATT Trips agreement and for the development of model laws which recognise informal innovation.

[27]Such as United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples (UN Resolution 1514[XV])(1960), International Covenant on Civil and Political Rights (1966), International Convention on the Elimination of All Forms of Racial Discrimination (1966), International Covenant on Economic Social and Cultural Rights (1966), UNESCO Declaration on the Principles of International Cultural Cooperation (1966), and the UNESCO Declaration on Race and Racial Prejudice (1978). The 1981 Declaration of San José is cited as the first official recognition within the United Nations system of the role governments and intergovernmental agencies can play in preventing the further erosion of indigenous peoples' cultural and intellectual heritage: UN Doc. E/CN.4/Sub.2/1993/28, op cit, p 4.

[28]See for example Views of the Human Rights Committee under Article 5, paragraph 4, of the Firts Optional Protocol to the International Covenant on Civil and Political Rights, Communication No. 167/1984, Bernard Ominayak, Chief of the Lubicon Lake Band v Canada (views adopted on 26 March 1990 at the thirty-eighth session); and Human Rights Committee, General Comment on Article 27 of the Covenant on Civil and Political Rights, Text adopted by the Committee at its 1314th meeting, 6 April, 1994, UN Doc. CCPR/C/21/Rev.1/Add.5, 7 April 1994.

[29]Ingram Planning District Networks of Protected Habitat for Conservation of Biological Diversity: A manual with applications for marine islands with primary rainforest (PhD Thesis, University of California, Berkeley, 1989) p 9.

[30]In 1968 the United Nations Economic and Social Council resolved to enable consultative status to be conferred on non-government organisations. In 1970 the Sub-Commission called for a comprehensive study of the problem of discrimination against indigenous populations, resulting in the production of the five volume Martinez-Cobbo report: UN Doc E/CN.4/Sub.2/1986/7 and Add.1-4 (1986). The Working Group on Indigenous Populations was established in 1982 within the Council's Commission on Human Rights to review developments relating to the promotion and protection of the human rights and fundamental freedoms of indigenous populations, with special attention to the evolution of standards concerning their rights.

[31] United Nations, Report of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972, A/Conf.48/14/Rev.1, United Nations, 1972.

[32] Such as the Convention on the Conservation of Migratory Species of Wild Animals (the Bonn Convention)(1979) which provides for contracting parties to make agreements to restore the conservation status of listed migratory species and which requires parties to prohibit the taking of listed species, except for example, where the taking is to accommodate the needs of traditional subsistence users of such species. Agreements with similar exceptions for hunting and gathering for traditional food, clothing or cultural purposes, can be found in the China and Australia Migratory Birds Agreement (the CAMBA Convention), and the Japan and Australia Migratory Birds Agreement (the JAMBA Convention).

[33]Harmon, `Cultural Diversity, Human Subsistence, and the National Park Ideal', (1987) 9 Environmental Ethics 147-158. See for example the Convention Relative To The Preservation Of Fauna And Flora In Their Natural State (1933) which entered into force in 1936 between the Governments of the Union of South Africa, Belgium, the United Kingdom of Great Britain and Northern Ireland, Egypt, Spain, France, Italy, Portugal, and the Anglo-Egyptian Sudan. On more recent developments see: Wells and Brandon, with Hannah, People and Parks: Linking Protected Area Management with Local Communities (World Bank, World Wildlife Fund and US Agency for International Development, Washington DC, 1992); West and Brechin (eds), Resident Peoples and National Parks: Social Dilemmas and Strategies in International Conservation (University of Arizona Press, Tucson, 1991); and the IUCN's 1992 Caracas Declaration: Parks, Protected Areas and the Human Future which was issued after the IV World Congress on National Parks and Protected Areas.

[34]Western Sahara, Order of 3 January 1975, ICJ Reports 1975, p 3.

[35]The highly protective Convention on Conservation in the South Pacific (the Apia Convention, 1976) for example, provides that parties can make appropriate provision for customary use of areas and species in accordance with traditional cultural practices. It entered into force only in 1990. Customary practices, customary tenure and traditional knowledge were also endorsed in the 1982 South Pacific Declaration on Natural Resources and the Environment.

[36]Such as Calder v Attorney-General of British Columbia (1973) 34 DLR(3d) 145; cfMilirrpum v Nabalco Pty Ltd (1971) 17 FLR 141;Sutherland, `The Struggle for Land Rights: Aborigines, Torres Strait Islanders and Australian Law', in Loos and Osanai (eds) Indigenous Minorities and Education: Australian and Japanese Perspectives of their Indigenous Peoples, the Ainu, Aborigines and Torres Strait Islanders (Sanyusha Publishing Co., Tokyo, 1993), pp 67-82.

[37]See generally: Birckhead, de Lacy and Smith (eds), Aboriginal Involvement in Parks and Protected Areas (Australian Institute of Aboriginal and Torres Strait Islander Studies Report Series, Aboriginal Studies Press, Canberra, 1992); Woenne-Green, Johnston, Sultan, and Wallis, Competing Interests: Aboriginal Participation in National Parks and Conservation Reserves in Australia: A Review ( Department of Employment, Education and Training, 1994).

[38]United Nations, Resolutions: Cross-Sectoral Issues Australia, Canada and New Zealand: draft decision : Indigenous people and local communities, Agenda item 2 (c): Preparations for the United Nations Conference on Environment and Development on the Basis of General Assembly Resolution 44/228 and Taking into Account Other Relevant General Assembly Resolutions, A/CONF.151/PC/L.38, Preparatory Committee for the United Nations Conference on Environment and Development, Second session: Geneva, 18 March-5 April 1991, 4 April 1991. By September 1991 a diverse coalition of countries had endorsed a similar proposal: United Nations Draft decision: Indigenous people and local communities, A/CONF.151/PC/L.48, Agenda item 2(c): Preparations for the United Nations Conference on Environment and Development on the Basis of General Assembly Resolution 44/228 and Taking into Account other Relevant General Assembly Resolutions: Cross-Sectoral Issues: Australia, Bolivia, Canada, Colombia, Denmark, Ecuador, Finland, Iceland, Mexico, New Zealand, Nicaragua, Norway, Peru, Philippines, Solomon Islands, Sweden, United Republic of Tanzania and Venezuela, Preparatory Committee for the United Nations Conference on Environment and Development, Third session, Geneva, 12 August - 4 September 1991. The Tlatelolco Platform on Environment and Development adopted at Mexico City on 7 March 1991, had also influenced the April 1991 A/CONF.151/PC/L.38 draft decision. See also Res. 1990/27 of the Working Group on Indigenous Populations, noted in Posey, `International agreements for protecting indigenous knowledge', in Sanchez and Juma, op cit, pp 119-153 at p 126.

[39]During one of the three preparatory regional ministerial-level meetings (for the Economic Commission for Europe (ECE), the Economic and Social Commission for Asia and the Pacific (ESCAP), and the Economic Commission for Latin America and the Caribbean (ECLAC)) before the Rio Conference, the Latin American and Caribbean countries stressed the importance of `knowledge on biodiversity' to national patrimony and national sovereignty over biological diversity. The ECLAC meeting stressed the need for the proposed convention on biological diversity to address national regulation of access to biological resources, conservation, benefit-sharing provisions and obligations and responsibilities regarding biotechnology: United Nations, Summary of Recommendations of Regional Preparatory Meetings for UNCED: Report of the Secretary General of the Conference, A/Conf.151/PC/44, Preparatory Committee for the United Nations Conference on Environment and Development, Third Session, Geneva, 12 August - 4 September 1991, 5 July 1991.

[40]International Union for Conservation of Nature and Natural Resources (IUCN),World Conservation Strategy: Living Resource Conservation for Sustainable Development. (IUCN, UNEP, WWF, 1980), ch.14.

[41] Individual rights to participate in decision making regarding the environment was recognised: World Charter for Nature, UN-Resolution 37/7, 1982, as reproduced in Hohmann, Basic Documents of International Environmental Law (Graham and Trotman, London, 1992), Vol. 1, pp 64-68.

[42]See particularly Arts. 7, 15, 23. See Swepston, op cit. See also the 1986 Declaration on the Right to Development which refers to the inalienable human right to free and meaningful participation in development and the fair distribution of its benefits: Dower, `Sustainability and the right to development', in Attfield and Wilkins (eds), International Justice and the Third World, (Routledge, London, 1992), pp 93-116.

[43]Correa, Sovereign and Property Rights over Plant Genetic Resources, Commission on Plant Genetic Resources, First Extraordinary Session, Rome, 7-11 November 1994, Background Study Paper No. 2, p 33.

[44]World Commission on Environment and Development, Our Common Future (Oxford University Press, Oxford, 1987). See especially pp 12, 114-116.

[45]McNeely, op cit.

[46]Rural Advancement Foundation International, Conserving Indigenous Knowledge: Integrating Two Systems of Innovation, nd, pp 50-51.

[47]IUCN, UNEP and WWF, Caring for the Earth: A Strategy for Sustainable Living (IUCN, UNEP and WWF, Gland, 1991).

[48]Wilson and Peter (eds),Biodiversity (National Academy Press, Washington, 1988).

[49]Reid and Miller, Keeping Options Alive: The Scientific Basis for Conserving Biodiversity (World Resources Institute, Washington, 1989).

[50]McNeely, Miller, Reid, Mittermeier and Werner, Conserving the World's Biodiversity (IUCN, Gland, Switzerland CI,WWF-US and the World Bank, Washington DC, USA, 1990).

[51]WRI, IUCN, UNEP, FAO, UNESCO, Global Biodiversity Strategy: Guidelines for Action to Save, Study, and Use Earth's Biotic Wealth Sustainably and Equitably (WRI, IUCN, UNEP, 1992). For other key publications see: Jutro, `What Biodiversity Information do Decision Makers Need?', in Proceedings of the Norway/UNEP Expert Conference on Biodiversity Trondheim, Norway, 24 - 28th May, 1993, pp 166-171: Bioline System [bioline@ftpt.br], Bioline tr93030, 1993.

[52]Kloppenburg Jr, First the Seed: The Political Economy of Plant Biotechnology, 1492-2000. (Cambridge University Press, Cambridge, 1988); Kloppenburg (ed), Seeds and Sovereignty : The Use and Control of Plant Genetic Resources (Duke University Press, Durham, 1988); Mooney, Seeds of the Earth: A Private or Public Resource (Inter pares (for the Canadian Council for International Co-operation and the International Coalition for Development Action (London)), Ottawa, 1979); Fowler and Mooney, Shattering: Food Politics and the Loss of Genetic Diversity (University of Arizona Press, Tucson, 1990); The Crucible Group, op cit..

[53]Such as Spraos, Inequalising Trade? A Study of Traditional North/South Specialisation in the Context of Terms of Trade Concepts (Clarendon Press, in co-operation with the United Nations Conference on Trade and Development, Oxford, 1983); Amin, Unequal Development: An Essay on the Social Formations of Peripheral Capitalism (Trans. Pearce, The Harvester Press Limited, Sussex, 1976).

[54]Jack Kloppenburg, Vandana Shiva and Pat Mooney for example, spoke at a SWISSAID and WWF-International symposium `Patents, Genes and Butterflies' in Berne, Switzerland in October 1994; Posey, `Patents, Genes and Butterflies', (1995) 1 Bulletin of The Working Group on Traditional Resource Rights, p 6.

[55]Williams and Walcott, `Managing Biodiversity and Intellectual Property', Conference paper delivered at the Asia Pacific Agri-Industry Community Conference, Australian and New Zealand Institutes of Agricultural Science, Brisbane, August 1995, pp 1-11.

[56]Plant genetic resources are defined to include cultivars, land races, and wild and weed species and special genetic stocks such as elite and current breeders' lines and mutants: Article 2.1: see `International Undertaking on Plant Genetic Resources and Establishment of a Commission on Plant Genetic Resources (FAO Res. 9/83), FAO 1983' in Hohmann, op cit, pp 113-119.

[57]An agreed interpretation of the Undertaking in 1989 provided that freely available did not necessarily mean free of charge, and it was agreed that farmers who supplied `raw' germplasm should be financially compensated: Commission on Plant Genetic Resources, `International Undertaking on Plant Genetic Resources', (First Extraordinary Session, Rome, 7-11 November 1994), CPGR-Ex1/94/Inf.1, September 1994, Annex 1, p 7.

[58]Esquinas-Alcazar, `The Global System on Plant Genetic Resources', 1993 (2)(2) RECIEL 151-157.

[59]Svarstad, `National sovereignty and genetic resources', in Sanchez and Juma, op cit, pp 45-65 at p 50. See also Shiva, `Farmers' rights and the Convention on Biological Diversity', in Sanchez and Juma, op cit, pp 107-118 and Posey, `International agreements for protecting indigenous knowledge', in Sanchez and Juma, op cit, pp 119-153.

[60]Svarstad, op cit, p 59.

[61]See for example Brush, `Providing Farmers' Rights Through In Situ Conservation of Crop Genetic Resources', Commission on Plant Genetic Resources, First Extraordinary Session, Rome, 7-11 November 1994, (Background Study Paper No. 3, November 1994).

[62]Indigenous groups participated in UNCED preparatory meetings and UNCED proper, distributing material and negotiating alternative instruments. Official research reports were also commissioned for UNCED which explained the contributions that indigenous peoples can make to sustainable development. See for example Cabixi, The Technologies of Indigenous Peoples in Environment Preservation (United Nations Conference On Environment And Development, 1992), Research Paper No. 53; and International Indigenous Commission, Indigenous People's Traditional Knowledge and Management Practices: Research Paper No. 48, (United Nations Conference on Environment and Development, February 1992).

[63]Principle 22.

[64]The Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests :UN Doc, UNCED A/Conf.151/6/Rev.1.

[65] Koch and Grubb, `Agenda 21' in Grubb, Koch, Munson, Sullivan, Thomson, The Earth Summit Agreements: A Guide and Assessment (Earthscan Publications Ltd, London, 1993), pp 97-157 at 99.

[66] See generally Glowka, Burhenne-Guilmin and Synge et al, A Guide to the Convention on Biological Diversity, (IUCN - The World Conservation Union, Gland, 1994), Environmental Law and Policy Paper No. 30.

[67] `Biodiversity Conference: Gains and Setbacks', (1995) 42 The Network 1.

[68] See for example the 1994 Barbados Declaration and Programme of Action at the Global Conference on Sustainable Development of Small Island Developing States and the Intergovernmental Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (1994) which refers to traditional knowledge.

[69]Ksentini, Review of Further Developments in the Fields with which the Sub-Commission has been Concerned: Human Rights and the Environment: Final Report, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Commission on Human Rights, Economic and Social Council, Forty-sixth session, Item 4 of the provisional agenda, 6 July 1994, UN Doc. E/CN.4/Sub.2/1994/9. Draft principles on human rights and the environment are attached to the report. These express deep concern about international trade and intellectual property regimes (preamble) and also recognises `the right to benefit equitably from the conservation and sustainable use of nature and natural resources for cultural, ecological ...' and other purposes: Article 13. Indigenous peoples' rights to `control their lands, territories and natural resources and to maintain their traditional way of life ...' and to have protection against environmental harm to their territories are also recognised: Article 14.

[70] Iorns Magallanes, `The Draft Declaration on the Rights of Indigenous Peoples' in Australian and New Zealand Society of International Law, Proceedings of Second Annual Meeting 1994, (Australian National University, 27-29 May 1994), pp 285-302, at p 286.

[71] Barber and McIntosh, `Update: UN Draft Declaration on the Rights of Indigenous People', (1995) 3(73)Aboriginal Law Bulletin, p 26.

[72]Australia, Canada, Denmark, Finland, New Zealand and Norway: draft resolution: Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-Sixth Session: Commission on Human Rights, Fifty-first session, Agenda item 19, Economic and Social Council, 28 February 1995, UN Doc. E/CN.4/1995/L.62.

[73] Daes, `Discrimination against indigenous peoples: Report of the Working Group on Indigenous Populations on its eleventh session', Economic and Social Council, United Nations, E/CN.4/Sub.2/1993/29, 23 August 1993, Annex 1. Article 29 provides that 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, literatures, designs and visual and performing arts. Articles 12, 13, 14 and 24 concern rights to revitalise, develop, practise and transmit cultural traditions, religious beliefs, histories, languages, literatures and names, to use traditional medicines and health practices, and to have vital medicinal plants, animals and minerals protected.

[74]Egede, Discrimination Against Indigenous Peoples: Report of the United Nations Technical Conference on Practical Experience in the Realization of Sustainable and Environmentally Sound Self-Development of Indigenous Peoples (Santiago, Chile, 18-22 May 1992), Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-fourth session, Item 15 of the provisional agenda, 23 June 1992, UN Doc E/CN.4/Sub.2/1992/31.

[75] MacLeod, Morrison, Ravuvu, O'Sullivan, Crowl, `Recommendations of the Conference on Science of Pacific Island Peoples', in Morrison, Geraghty and Crowl (eds) Science of Pacific Island Peoples, Vol. 1: Ocean and Coastal Studies, Institute of Pacific Studies, University of the South Pacific, Suva, 1994, pp 5-9.

[76] See: The Melaka Accord, resolutions ratified by ASOMPS VIII: Eighth Asian Symposium on Medicinal Plants, Spices and other Natural Products, 12-16 June 1994, Melaka, Malaysia': Garson, `Biodiversity, the Manila Declaration and the Melaka Accord: Contemporary Issues for Australian Natural Product Chemists', (1995) January Chemistry in Australia 62-64. See also the resolutions from a 1988 Ethnobotany workshop held in Christchurch, New Zealand : Kalotas, `Recording and applying aboriginal botanical knowledge in Western Australia': Some recent examples and future prospects, in Williams and Baines (eds) Traditional Ecological Knowledge: Wisdom for Sustainable Development (Centre for Resource and Environmental Studies, Australian National University, Canberra, 1993), pp 94-103 at p 98.

[77] Argumedo, `Global Forum for Indigenous Peoples', Indigenous Peoples' Biodiversity Network, Biodiversity Newsgroup, Rsenanayake@elci.gn.apc.org, 28 June 1994.

[78]Anon., `Amazonian Peoples on Biodiversity and IPR: Resolutions from the Coordinating Body of Indigenous Communities of the Amazon Basin's Regional Meeting, September, 1994, Santa Cruz de la Sierra, Bolivia.', (1994) 8(4)Abya Yala News 17-18.

[79]Anon, Report, Asian Consultation Workshop on the Protection and Conservation of Indigenous Knowledge, 24-27 February 1995, United Nations Development Programme, TVRC Tabunan, Sabah, East Malaysia.

[80]Pacific Concerns Resource Centre, Proceedings of the Indigenous Peoples' Knowledge and Intellectual Property Rights Consultation, 24-27 April 1995, Suva, Fiji.

[81]Viergever, UNDP, personal communication, June 20, 1995.

[82]Jan Pettman has addressed feminist and indigenous subjectivities in: Pettman, Living in the Margins: Racism, Sexism and Feminism in Australia (Allen and Unwin, Sydney, 1992).

[83]Alcoff, `Cultural Feminism Versus Post-Structuralism: The Identity Crisis in Feminist Theory', (1988) 13(3)Signs 405-436 at 431.

[84]Harding, Whose science? Whose knowledge? : thinking from women's lives (Cornell University Press, Ithaca, New York, 1991), ch.7.

[85]Goetz, `Feminism and the Limits of the Claim to Know: Contradictions in the Feminist Approach to Women in Development', (1988) 17(3)Millenium 477-496. See also Williams, `Dissolving the Sameness/Difference Debate: A Post-Modern Path Beyond Essentialism in Feminist and Critical Race Theory', (1991) Duke Law Journal 296-323.

[86]Abramovitz, `Biodiversity and Gender Issues: Recognizing Common Ground', in Harcourt (ed) Feminist Perspectives on Sustainable Development (Zed Books Ltd in association with the Society for International Development, London and Rome, 1994), pp 198-212 at p 202. See also the range of articles on gender and international law in Alston and Greig (eds) The Australian Yearbook of International Law (1988-89), Vol. 12, pp 177-278.

[87]Alcoff, op cit, at 431-2.

[88]Some commentators may see some similarities between this and other `instrumentalist' political mobilisation approaches: see for example Young, `The Dialectics of Cultural Pluralism: Concept and Reality', in Young (ed),The Rising Tide of Cultural Pluralism (University of Wisconsin Press, Madison, 1993), 3-35 at 21-25; Gurr, `Peoples Against States: Ethnopolitical Conflict and the Changing World System', (1994) 38 International Studies Quarterly 347-377 at 348.

[89]Williams, `Encounters on the Frontiers of International Human Rights Law: Redefining The Terms of Indigenous Peoples' Survival in the World', (1990) Duke Law Journal 660-704.

[90]Jhappan, `Global Community?: Supranational Strategies of Canada's Aboriginal Peoples', (1992) 31(1)Journal of Indigenous Studies 59-91.



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