Preserving traditional rights to natural resources

Realizing full indigenous right to self-determination in relation to natural resources. This means indigenous peoples are able to exercise their inalienable right to choice, and their right to full control over all their natural resources, such as lands, crude oil, natural gas, diamonds, uranium, gold, coal, air, waters, coastal seas, flora and fauna.

Preventing confiscation of land of indigenous peoples for commercial and other interests.

The principle of permanent sovereignty over natural resources could be generally stated as legal, governmental control or management authority over natural resources, particularly as an aspect of the exercise of the right to self-determination. The principle arose because of the political claim of newly emerging States to be free from unfair exploitation of their natural resources. Such unfair exploitation could make self-determination meaningless in many situations. The term "sovereignty" referred not to the abstract and absolute sense of the term, but rather to governmental control and authority over the resources in the exercise of the right to self-determination.

The reconciliation of the legitimate interests of States with the prior and paramount rights of indigenous peoples to their natural resources, had been recognized by many as a critical and necessary step for the advancement of the rights of indigenous peoples and an important factor to national, regional and universal economic and social development. Discussions of sovereignty over natural resources continues in the UN in the context of the Working Group on Indigenous Populations, the ad hoc Working Group of the Commission on Human Rights on the draft UN Declaration on the Rights of Indigenous Peoples, and, most recently, at the Permanent Forum on Indigenous Issues.

The term traditional resource rights (TRR) has emerged in recent years from the concept of intellectual property rights (IPR), specifically recognizing the rights of local people to their traditional resource base – tangible and intangible. The development of sui generis systems for natural resource use must first protect indigenous and local communities and ensure their control over land, territory and resource before issues of access and transfer can be discussed. Equitable benefit sharing from the wider use and application of the knowledge, innovations and practices of indigenous peoples and local communities, as well as the biological resources conserved on their lands and territories, can then be negotiated. Effective protection and benefit sharing mechanisms require a shift from economically-determined legal and political frameworks to a rights-driven ecologically based system.

TRR is an integrated rights concept which recognizes the link between cultural and biological diversity. It is guided by human rights principles including: basic human rights; the right to self-determination; collective rights; land and territorial rights; religious freedom; the right to development; the right to privacy and prior informed consent; environmental integrity; intellectual property rights; neighbouring rights; the right to enter into legal agreements; rights to protection of cultural property, folklore and cultural heritage; the recognition of cultural landscapes; recognition of customary law and practice, and farmers' rights.

Traditional resources include plants, animals, and other material objects that may have sacred, ceremonial, heritage, or aesthetic qualities. Indigenous and traditional communities are increasingly involved in market economies, with an increasing number of their resources traded on international markets.

The Trade-Related Intellectual Property Rights section of the General Agreement on Tariffs and Trade (GATT-TRIPs), and the United Nations Conference on Environment and Development (UNCED), where the Convention on Biological Diversity was developed, have made it clear to indigenous peoples that IPR law is important to them and will become more so in the future.

There is a need to clarify which agreement will be used to settle disputes over biological resources. The Convention of Biological Diversity – adopted in 1992 at the Earth Summit in Rio de Janeiro – aims to protect biodiversity, promote its sustainable use, and ensure that benefits be shared equitably between providers and users. In biological resource matters, the CBD grants sovereignty to the country possessing those resources, while the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) allows these resources to be patented by private companies.

For centuries rural peoples have encouraged and relied upon biodiversity for their livelihoods. Farmers have managed genetic resources for as long as they have cultivated crops. For some 12,000 years, they have selected varieties of crops and livestock breeds to meet environmental conditions and diverse nutritional and social needs. The immense genetic diversity of traditional farming systems is the product of human innovation and experimentation - both historic and ongoing. This has been recognized in FAO by the resolution on farmers' rights that acknowledges the past, present and future contributions of farmers in conserving, improving and making available plant genetic resources, and that they should be rewarded for their contributions.

The policies concerning the use of indigenous plants for commercial uses have historically protected those with the most to gain. In most cases, it is the pharmaceutical companies which benefit from the profits. Often the knowledge shared from indigenous people is essential to the research of these plants. Scientists are calling this the 'golden age of plant hunting' because of the growth of pharmaceutical companies and their research on indigenous medicines. There are many proposals to protect the rights of indigenous people and land from which the plants come. The Kuna Indians of Panama have established their own rules about how research is to be conducted on their lands. These rules are to keep the Kuna Indians from being exploited. These methods and others could possibly help to avoid situations such as that in Madagascar with the development of vinblastine and vincristine from the rosy periwinkle.

Meaningful political and economic self-determination of indigenous peoples will never be possible without indigenous peoples having the legal authority to exercise control over their lands and territories and thereby enjoy the full economic and other benefits deriving from their natural resources.