A 2011 TPP protest in Malayasia

What’s in the leaked TPP chapter?

Indigenous peoples, intellectual property, and the secret negotiations over TPP

Arnie Saiki

The Trans-Pacific “Strategic Economic” Partnership (TPP) is currently a US-led, twelve-nation (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, U.S.), $27 trillion dollar economic cooperation. Though it’s called a free-trade agreement, the TPP aims to standardize the rules for global trade and investment for the benefit of corporations, shareholders and investors.

None of the BRICS (Brazil, Russia, India, China, South Africa) economies are involved in the TPP. When read alongside the “Pacific Pivot,” Obama’s rebalancing of 60% of US military resources to the region, the TPP fits squarely into what should be seen as a containment policy against China, and one that seeks to define the investment and trade rules for the 21st century.

This means that the US and their corporate advisers are integrating their economic and military clout to bully China from capitalizing their State-owned investments and privatizing the resources of developing countries, many of whom are moving away from the neo-liberalism of US-dominant, free-market investment.

The Wikileak-ed draft text of the TPP Intellectual Property Rights Chapter brings some clarity as to what a corporate-derived treaty would look like if passed.

More than 600 of the world’s largest corporations have been advising US trade representatives. These special interests have been advising an agenda that impacts numerous peoples’ sovereignty, including crucial sectors like the environment, labor, and health.

TPP and the rights of indigenous peoples

Over the past several decades, international law has coalesced around the idea of free, prior and informed consent (FPIC). FPIC means that indigenous communities are free to decide whether they want companies or governments to exploit their resources, and have the right to make informed decisions through their own culturally relevant processes. It’s one of the strongest tools indigenous peoples have for challenging extractive industries and commercial enterprises that seek to profit off of indigenous properties.

What’s clear in the leaked documents is that the TPP has the potential of limiting free, prior and informed consent (FPIC) via a stifling dispute resolution process. The documents released by Wikileaks show that national governments are in disagreement of how to recognize the rights of clans and tribes from sharing the benefits arising from biochemical “derivatives,” of their “traditional knowledge associated with genetic resources.” This includes indigenous peoples’ traditional cultural expressions and the biological diversity to cultural, economic and social development.”

Indigenous peoples’ right to FPIC has been recognized by a number of intergovernmental organizations, international bodies and conventions and Human Rights laws, but there is currently no international enforcement mechanism. For the recognition of traditional cultural properties and expressions to take place, nation-states have to implement the legal framework to embrace new enforcement standards.

In 2014, the United Nations will convene a special meeting dealing with these questions. At this upcoming summit, the World Council of Indigenous Peoples, delegates will decide whether or not FPIC will emerge as an institutionalized protocol.

Millennium Development Goals

The Millennium Development Goals are currently an empty framework that form a blueprint agreed to by all the world’s countries and all the world’s leading development institutions.  These range from health and education to the environment and trade. Meeting the 2015 MDG means that many of the global rules concerning trade, resource extraction,indigenous rights, national accounting, global taxation, etc., are being harmonized into what the UN calls the Integrated Implementation Framework.  This “global governance” agenda, is taking place across many sectors among global industrial and financial institutions, NGOs, and Civil Society Organizations. This includes the WCIP.  In general, there has been little critical analysis of the lack of democratic participation in this new international order, however there are now Civil society initiatives beginning to advocate for the much needed rules that provide equity on many of the issues that are competing for recognition at the U.N.

The World Bank is currently partnering with the G77 on Global Partnerships for Development strategies to meet the 2015 Millennium Development Goals, and during the 2012 Ministerial Declaration, the G77 proposed a high-level outcome to implement some of the objectives outlined in the Declaration on the Rights of indigenous peoples (DRIP). What this means is that countries within the G77 could soon begin to promote indigenous rights, which would simultaneously provide a legal enforcement of Indigenous Rights, while streamlining the consent process that is integral to free, prior and informed consent,

This past June, indigenous peoples met in Alta, Norway, and produced the Alta Outcome Document that outlines recommendations that would promote Indigenous Rights. The Alta Outcomes recommends that States implement the right of “free, prior and informed consent before entering the lands and territories of indigenous peoples, including in relation to extractive industries and other development activities.”

This reverses the relationship nation-states have with FPIC under the UNDRIP, which encourages States to “consult and cooperate in good faith with the indigenous peoples concerned through their own representative institution in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

In other words, States simply “implementing the right” of FPIC before entering lands could open the gate for the extractive industries’ Trojan Horse, and is not the same as States cooperating with indigenous peoples to obtain FPIC before implementing legislative of administrative measures.

Why this seemingly small reversal of FPIC should be of concern, is that despite the intentions of regimes to call for the recognition of Indigenous Rights, the World Bank Global Partnerships for Development, and the G20 have been working on the Extractive Industries Transparency Initiative (EITI) to streamline and integrate FPIC within the “tax, transparency, and trade” initiative that will be determined by transnational corporations, extractive industries, and financial and investment institutions. This would subordinate the right of free, prior and informed consent to some other kind of to-be-determined consultative process.

In a recent statement, EITI asserts that they will provide a platform in strengthening indigenous peoples’ rights to be part of the decision making process in utilizing natural resources. Already, without the free, prior and informed consent of the clans and tribes, EITI is asserting a “venue to strengthen the process of acquiring the FPIC of indigenous people and expenditure monitoring at the national level through the creation of a sovereign wealth fund,” capitalized by the World Bank or the Asian Development Bank (who also formally endorsed them).

At the upcoming World Conference, indigenous peoples could oppose FPIC from becoming streamlined via the World Bank/ G77 process, but doing so jeopardizes indigenous rights from being promoted to the legal enforcement mechanism indigenous peoples yearn for. In other words, promoting indigenous rights to having some kind of binding settlement arbitration process in international law, could essentially sell out the one tool that individual clans and tribes have for opposing resource extraction or any other action that violates the free, prior and informed consent as defined in the UN Declaration on the Rights of indigenous peoples.

Whether investment is coming from the US or China, indigenous peoples’ health, lands and resources are generally the most impacted. Most governments have been slow to implement a process for consulting with indigenous peoples, and despite having ratified or recognized the UNDRIP, many governments have been quick to sell out their resources. Having the World Bank and the G77 recognize and implement free, prior and informed consent as understood in the UNDRIP will be a major step for the rights of indigenous peoples.  However, implementing FPIC as a tool to streamline and integrate indigenous communities is fraught with potential abuse, and any attempt at harmonizing trade, extractive industries, indigenous Rights, and the corporate-driven excess of financial and investment rules should be treated as suspect.

The risk of streamlining FPIC is that it creates a protocol for industries and corporations to standardize the consultation and consent process.  FPIC was originally designed for States to “consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” (Article 19, UNDRIP)

With that, this may come as no surprise, but the TPP could provide enforcement standards for indigenous peoples through the UN Commission on International Trade Law (UNCITRAL) to international courts and tribunals like the International Centre for Settlement of Investment Disputes (ICSID) (an arbitration and conciliation service for governments and private, foreign investors in dispute). The caveat is that these arbitration tribunals usually side with investors as investment agreements are narrowly read and might not consider public opposition, environmental damages or health risks, unless there is egregious neglect or conditions specified in the investment agreement.

As a result of investor-state dispute settlements (ISDS), millions of dollars in settlements have already been awarded to corporations. Additionally, these arbitrations are costly and have been used to order States to remove barriers that do not conform to the demands of the agreement, and States will often rather settle out of court than pay the hefty fees. Very few indigenous peoples’ tribes and clans will be able to afford these arbitration costs, and they will be unprepared to challenge the scope of these investment agreements.

In the leaked draft, it may appear that recognition within the TPP, like the World Bank/G77 Ministerial agenda, should give indigenous peoples a dispute settlement mechanism to enforce their rights. However, the countries are split in deciding whether indigenous peoples should derive any ownership from their traditional and genetic resources, and States are also divided as to how international protocols, conventions, treaties and agreements should be implemented among the Parties involved.

It also appears that the drafters of the TPP have gone out of their way to exclude “free” from free, prior and informed consent and would seek to rather obtain prior and informed consent to access indigenous peoples genetic resources and traditional knowledge associated with the genetic resources.

Nestlé, one of the corporations advising US trade representatives, has already filed patents on the Nigella Sativa extract from the fennel flower, which has been traditionally used as cure-all remedy for over a thousand years. As reported by Sum Of Us, Nestlé is attempting to create a Nigella Sativa monopoly off this extract and gain the ability to sue anyone using it without Nestlé’s permission.  It should be of great concern that States could claim ownership over the derivatives of plants or animals that are embedded in the traditional knowledge of a tribe.

Although the intellectual property system is one possible means to protect traditional knowledge and cultural expressions, States have proposed that “quality patent examination of applications concerning genetic resources and traditional knowledge” will look at all the background information that might be relevant to a patent’s claim of originality and hold that patent as a sovereign asset.  In the context of the TPP Intellectual Property Chapter, this could include music, educational material, artistic or literary work, biological processes for the genetic modification and production of plants and animals—both commercial and experimental—or relating to pharmaceutical products.

Under Article QQ.E.23 of the TPP draft text entitled: “Proposed joint text for the Intellectual Property Chapter on Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources,” each Party “exercises their sovereignty over their biological diversity and resources and shall determine how to access them.” According to the World Intellectual Property Organization, genetic resources refer to genetic material of actual or potential value. Genetic material is any material of plant, animal, microbial or other origin containing functional units of heredity. Examples include material of plant, animal, or microbial origin, such as medicinal plants, agricultural crops and animal breeds.

Article 31 in the UNDRIP asserts that “indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.”

The inclusion of indigenous peoples’ properties in the TPP Intellectual Property chapter suggests that there are other chapters that also include indigenous peoples’ rights and properties.  The leaked Intellectual Properties chapter concludes with, “This text is placeholder, to be reconsidered depending on the outcome of the Cooperation section.” The Cooperation section proposes that all parties to the TPP implement relevant international agreements, protocols and conventions. Currently, there is disagreement in the leaked text as the US and Australia opposes implementing international agreements as a regulatory framework that would offer legal guidelines to TPP Intellectual Property rules. It would be fair to suggest that this same opposition would be found in the other TPP chapters as well.