Conserving heritage: cultural and intellectual property rights.

For centuries, cultural artifacts have been stolen from indigenous people, sold and displayed in violation of their beliefs. Similarly, medicinal plants developed over thousands of years by traditional healers have reaped big earnings in the pharmaceutical market--with very small profit shared with the indigenous originators. Native legend song, lore and lahguage--few are unscathed by the long history of injustice towards the intellectual and cultural property rights of indigenous people.

One challenge in dealing with these rights is in balancing two distinct ideas as to how they should be handled. One view, subscribed to by many indigenous peoples, holds that they themselves must protect their own traditions, ideas, innovations and objects, and that only self-protection will guarantee preservation of their property and adequate compensation for its use.

Opposing this perspective is the claim of some States that, because many indigenous knowledge bases and cultural objects have universal value, they are part of the world's common heritage. Under this view, these objects and ideas should be accessible to all in society for legitimate scientific and educational purposes. it is hoped that the international Year for the World's indigenous People will increase the commitment of the international community to help indigenous people realize their rights in both areas.

Cultural property

Cultural property rights focus on enabling indigenous peoples to preserve and control the use of their relics, archaeological sites, textiles, skeletal remains, rituals, songs, legends, and other materials.

The term "cultural property" was formally coined by the UN Educational, Scientific and Cultural Organization (UNESCO) Convention for the Protection of Cultural Property in the Event of Armed Conflict--known as the Hague Convention--which was elaborated in 1954. The first in-depth definition was described in the landmark 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The term is defined as "property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science". While the document focused on the repatriation of cultural property to its place of origin, the scope of cultural property was broadened to include sites of outstanding universal value with the adoption of the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage.

These international Conventions have provided some redress for the exploited cultural heritage of indigenous people. The 1970 Convention, for example, gave the support of international law to the claims of the Aymara community in Cormoa, Bolivia, which in 1988 began pursuing the repatriation of sacred weavings that disappeared in 1978 during visits by North American ethnic art and antiquities dealers.

In Canada as well, the Kwakiotl Indians were able to invoke the Convention to secure the return of artifacts taken when police broke up a "Potlatch" ceremony in 1922. This ancient rite, held to celebrate important events such as initiations, deaths or the investiture of chiefs and marked by feasting, spirit-dancing and gift-giving, was banned in Canada from 1884 until 1951.

However, the international Conventions do not reflect all the concerns of indigenous people. For instance, they make no reference to skeletal remains, which are frequently displayed in museums in a manner perceived by native cultures as undignified and sacrilegious.

To augment the treaties, the UN General Assembly has formulated resolutions to support cultural property rights, including a 1991 appeal to States to conclude bilateral agreements for the return of cultural property to its country of origin.

Finalization of the draft Universal Declaration on the Rights of indigenous Peoples will further expand the protection of historical sites and structures, artifacts, designs, ceremonies and works of art. The draft also provides that indigenous people have the "right to the repatriation of human remains".

Other violations of cultural rights are harder to protect, especially those related to indigenous folklore, songs and oratory. For instance, international copyright laws do little to support the Brazilian Suya community's law-in-practice that a song belongs to the person who first sings it out loud.

Policies of assimilation also threaten indigenous language and heritage. Until 1906, the Japanese Government denied even the existence of Ainu people, which had formed a distinct society and culture in parts of Japan for thousands of years. The result: the unwritten Ainu language is dying and a fraction of the Ainu people know their native culture, which was built around rites, such as bear hunts and salmon fishing, both of which are now banned.

The cultural quandary of indigenous people was summed up for the Assembly by Bimal Bhikkhu, a Buddhist monk from the Chakma tribes of the Chittagong Hill Tracts of Bangladesh, when he noted that indigenous people do not want to become "a museum for anthropologists"; instead, they want the right to educate their children in order to achieve the "harmonious development of the human potential".

Indigenous knowledge

Most of the 7,000 natural compounds used in modern medicine have been employed by traditional healers for centuries.

For example, pharmaceutical companies are working to develop a new anticoagulant based on the tikiuba plant used by the Uru-eu-Wau-Wau people of the Brazilian Amazon. They are also testing for potential drugs, based on the discovery by the nomadic Punans of Indonesia that the root of the jileng plant could be boiled and used as a cure for tuberculosis.

However, the valuable contributions of indigenous people--who have already identified the species for medicinal use, as well as their locations and methods for collecting and storing them--are typically dismissed as tradition or folklore.

Similarly, indigenous agriculturalists have contributed greatly to crop productivity. North American indigenous people developed improved strains of maize, potatoes, manioc, sweet potatoes, peanuts and beans.

The UN system has taken a leading role in promoting the intellectual property rights of indigenous people. The International Undertaking on Plant Genetic Resources of the Food and Agriculture Organization included in 1991 an annex acknowledging that farmers around the world have "conserved, nurtured, improved and made available plant genetic resources" and that these local technologies complement more advanced technologies in the conservation and utilization of plant genetic resources. The Union for the Protection of New Varieties of Plants--an intergovernmental association linked to the World intellectual Property Organization--has also worked to protect the rights of breeders of new plant varieties.

There are signs that pharmaceuticala companies are growing to realize their obligation to provide reciprocal benefits. One such indication came from a California company--Shaman Pharmaceuticals--which wrote of indigenous people: "They have the knowledge that will help bring new medicine to our global pharmacopoeia. it is time to recognize the gift they have provided to the world."

North America: Sacred freedoms

Native Americans have struggled against discrimination and persecution for centuries as continuing waves of immigration from foreign lands, starting with the European explorers in the sixteenth century, have effectively razed more than 10,000 years of indigenous culture. Not only are the so-called "Indians" of the United States and Canada fighting to reclaim native territories, they are also demanding that their age-old customs and beliefs be respected and protected by a Government that would guarantee their religious rights and freedom.

Towards this end, a coalition of Native American leaders and environmental human rights and religious groups have lobbied for passage of a bill to ensure Native American access to sacred objects, use of substances vital to their ceremonies, and rights to protect sacred sites.

Unfortunately, the qualities that make certain sites sacred--beautiful, untouched wilderness--also make them attractive to developers who consistently fight for the right to exploit native territories for tourism and natural resources.

Under such pressure, existing laws, such as the 1978 American Iindian Religious Freedom Act, often fail to secure religious rights of indigenous people.

Protecting such sites is part of the quest of Native Americans to renew their culture and regain the way in which they lived before people came to the "New World". "Freedom had been a way of life", said Oren Lyons, Faithkeeper of the Onondaga Nation, at the General Assembly on 10 December 1992. "Ceremonies had been held to honour the life-giving forces of the world. Generosity and equal sharing, respect, care and love for elders and children had been the basic teachings."