LEADLawEnvironment and

DevelopmentJournal

VOLUME

9/2

TRADITIONAL KNOWLEDGE AND BENEFIT SHARING AFTER THENAGOYA PROTOCOL: THREE CASES FROM SOUTH AFRICA

Roger Chennells

ARTICLE

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School of Law, School of Oriental and African Studies (SOAS) - University of Londonand the International Environmental Law Research Centre (IELRC).

LEAD is published at www.lead-journal.orgISSN 1746-5893

The Managing Editor, LEAD Journal, c/o International Environmental Law Research Centre (IELRC), International EnvironmentHouse II, 1F, 7 Chemin de Balexert, 1219 Châtelaine-Geneva, Switzerland, Tel/fax: + 41 (0)22 79 72 623, info@lead-journal.org

This document can be cited asRoger Chennells, ‘Traditional Knowledge and Benefit Sharing After

the Nagoya Protocol: Three Cases from South Africa’,9/2 Law, Environment and Development Journal (2013), p. 163,available at http://www.lead-journal.org/content/13163.pdf

Roger Chennells, Chennells Albertyn Attorneys, 44 Alexander Street, Stellenbosch, South Africa,Email: rogerchennells@gmail.com

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License

* Mr. Chennells is a human rights attorney based in South Africa. He was directly associated with two of the three cases, andfor that reason admits to a less than totally dispassionate perspective on the cases.

ARTICLE

TRADITIONAL KNOWLEDGE AND BENEFIT SHARINGAFTER THE NAGOYA PROTOCOL: THREE CASES

FROM SOUTH AFRICA

Roger Chennells*

TABLE OF CONTENTS

1. Introduction 165

2. Legal Framework and Conceptual Controversies 1662.1 South African Demographics and Legislation 1672.2 Three Case Studies and a Moral Tale 169

3. Determining the TK Holders 1713.1 Knowledge Long Held 1733.2 Exclusive or Shared Knowledge? 1743.3 Leadership and Governance 176

4. Towards New Legal Concepts 179

5. Concluding Comment 183

1INTRODUCTION

The two central frameworks that hold the debate inrelation to indigenous communities within this articletogether are the fulfillments of the Nagoya Protocolon Access to Genetic Resources and the Fair andEquitable Sharing of Benefits Arising from theirUtilization (Nagoya Protocol) and the Conventionon Biological Diversity (CBD). In particular, thisarticle examines how these two international legalinstruments have informed the debate surroundingbenefit sharing agreements with indigenouscommunities and the role that traditional knowledge(TK) play within these agreements. In order forbenefit sharing agreements to be successful, the issueof who owns TK rights becomes of centralimportance. Three recent case studies from SouthAfrica are used to illustrate the different ways inwhich the question as to who are the legitimateholders of TK was resolved.

Beginning with the outline of the legal context ofbenefit sharing within international bioethics andbiodiversity discourses, this article explores theconceptual controversies that are raised within thedebate on benefit sharing and the concept of TK andhow it becomes a controversial term when appliedto specific contexts such as ownership of TK withinindigenous communities in South Africa. In order tounderstand the context of the case studies, the articlegoes on to examine the particular known history anddemographics of modern South Africa. This discussionthrows some light on the complexity of the originsof communities and should find resonance in othercountries where populations have been disturbed bycenturies of migration and colonisation. Moreover,the use of three recent South Africa case studies asthe main methodology highlights the practicalapplication of incorporating rights to TK withincontracts. In order for benefit sharing agreements tobe concluded, TK rights-holding communities needto be identified as the recipients of the benefits. Ifthese important agreements are concluded in haste,as one of the case studies indicates, the appointmentof the TK holding community has the potential tocause conflict within indigenous and local communities.

Through use of the ‘family secret’ analogy, the articlesuggests the existence of a sense of morality andethics behind the sharing of knowledge. Sharingtakes place in a context of groups that are to someextent interdependent, forging an ethos andrelationship of mutual reciprocity. The legallandscape sculpted by the CBD and NagoyaProtocol, it is proposed, is mostly rights based andcreates new forms of value associated with TK.

South Africa has promulgated legislation in orderto give effect to the legal regime required by theCBD, including the determination of TK holdersassociated with genetic resources for the purpose ofbenefit sharing. Some aspects of this legislation arediscussed, in particular the provisions requiringidentification of the appropriate TK holders. Someaspects of the legislation are singled out for criticism,for example the manner in which information isdeemed to be disseminated to rural communities,and the lack of mechanisms for facilitatingdiscussions where conflict relating to shared TKneeds to be resolved. Three classic concerns relatedto the determination of TK-holding communitiesare then discussed in relation to the case studies.They are the need for knowledge to be long held,the need for the degree of sharing of knowledge tobe incorporated, and finally the need for a coherentgovernance system to be in place.

Proposals have been made for states to assisttraditional communities by creating sui generis formsof legal rights, distinct from modern forms ofintellectual property rights. This article suggests thatthe distinctive right described as TK, which is jointlyowned by one or more communities, is a form ofcommon pool property. In each case this would needto be governed in accordance with known andapproved rules. TK rights are shared resources, andan appropriate form of procedure as well as moraland legal criteria is needed in order to define andclarify them. The article describes some foundationalelements of the ancient law of equity, and proposesthat both procedural and substantive principles ofthis legal system are of potential use for such acomplex determination of rights. In order for benefitsharing to be fair and equitable, in the words of theCBD, the recipients of the benefits need to beestablished in a manner that is appropriate, and thatdoes not offend against the requirement of equity

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and fairness. It should be noted that the remit of thisarticle is limited, and that the concept of communityprotocols referred to in Article 12 of the NagoyaProtocol, which has potential relevance for TK issuesdiscussed, has not been addressed below.

2LEGAL FRAMEWORK AND CONCEP-TUAL CONTROVERSIES

The Nagoya Protocol1 provides a binding treatyframework promising benefit sharing not only toprovider countries, but also to the indigenous andlocal communities situated in such countries that areholders of TK and who are associated with the geneticresources being provided. The Protocol is undoubtedlya significant step towards achieving one of the mainobjectives of the Convention for Biological Diversity,namely fair and equitable sharing of the benefitsarising from access to genetic resources, at the sametime ensuring conservation and sustainable use ofbiodiversity.2 The formal introduction to theProtocol states that, ‘the Protocol’s provisions onaccess to traditional knowledge held by indigenousand local communities will strengthen the ability ofthese communities to benefit from the use of theirknowledge, innovations and practices’.3 This article

addresses the practical attempts to apply the notionsof ownership or holder-ship of TK that are centralto the benefit sharing regime envisioned by theProtocol and interpreted by its constituent members.

The international discourse concerning the relatedconcepts of TK, indigenous knowledge (IK), andindigenous knowledge holders leaves these termsfluid and deliberately less than clearly defined. Theterms TK and IK are generally used interchangeably,sometimes also referred to as ‘traditionalenvironmental knowledge’.4 TK is generallyaccepted as being a body of knowledge entirelydifferent from Western scientific forms, the detaileddescription provided by Johnson emphasisingseveral distinguishing factors including its oraltransmission, its intuitive rather than factual basis,and its rootedness in the traditional and spiritualcultural idiom.5

The transmission of knowledge takes place overcountless generations, within the context of thetraditional system. The associated term ‘indigenous’has long evaded consensual demarcation, althoughthe definition contained in ILO Convention 169 iswidely accepted as an adequate basis for thesediscussions.6 International documents haveexpanded the term ‘indigenous’ by adding otherrelated concepts, such as the phrase ‘indigenous andtribal peoples’ used in the ILO Convention 169, andthe phrase ‘indigenous and local communities’referred to throughout the Nagoya Protocol.

The word ‘local’ used in the Protocol throws thenet wider and includes rural settlements that are notcomfortably described as indigenous but are localand thus can be viewed as having potential claims to

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1 The Nagoya Protocol on Access to Genetic Resources andthe Fair and Equitable Sharing of Benefits Arising fromtheir Utilization (ABS) to the Convention on BiologicalDiversity (CBD is a supplementary agreement to the CBD.It provides a transparent legal framework for the effectiveimplementation of one of the three objectives of the CBD:the fair and equitable sharing of benefits arising out of theutilization of genetic resources. See Nagoya Protocol onAccess to Genetic Resources and the Fair and EquitableSharing of Benefits Arising from their Utilization to theConvention on Biological Diversity, Nagoya, 29 October2010, available at http://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf.

2 The three objectives of the CBD are conservation ofbiodiversity, access to genetic resources, and fair andequitable benefit sharing. See Convention on BiologicalDiversity, Rio de Janeiro, 5 June 1992, 1760 UNTS 79;31 ILM 818 (1992), available at http://www.cbd.int/convention/text/default.shtml, Article 1 .

3 Nagoya Protocol, note 1 above, p.1.

4 Graham Dutfield, Intellectual Property, BiogeneticResources and Traditional Knowledge 91 (London:Earthscan, 2004).

5 M. Johnson, ‘Research on Traditional EnvironmentalKnowledge: Its Development and its Role’, in M. Johnson ed.,Lore: Capturing Traditional Environmental Knowledge 3, 7(Ottawa: International Development Research Centre, 1992).

6 Convention concerning Indigenous and Tribal Peoples inIndependent Countries (ILO No. 169), 72 ILO OfficialBull.59, entered into force 5 September 1991, available ath t t p : / / w w w . i l o . o r g / d y n / n o r m l e x / e n /f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312314:NO, Article 1.

TK rights to the resources in question.7 Theimportant criterion that the status of an indigenousor tribal people is usually determined outside themainstream of a state’s system, or in other wordsthat the group is not recognised or included in thegovernance of the country, is to be found in the ILOConvention definition of the term ‘tribal’, and inother attempts at defining the meaning of‘indigenous’.8 The ubiquitous word ‘community’,used freely in legal instruments, is notoriouslyslippery, and can mean anything from an extendedclan to an entire regional population. Whetherurban, rural, traditional, modern or mixed,communities may be characterised further by factorssuch as culture, language and geographic situation.

As Dutfield suggests, one should avoid a fixed anddogmatic idea of what TK holders and theircommunities look like.9 Other than merely focusingon a debate detached from the empirical world, thiswork attempts to reflect on how the concepts of‘indigenous’, ‘original rights’ and ‘holders’ were builtin practice by looking at three recent Access andBenefit Sharing (ABS) cases in South Africa. Afterexploring some of South Africa’s early origins, thethree case studies will then be introduced, togetherwith a conceptual devise to understand how TK ispassed down generations.

2.1 South African Demographicsand Legislation

The question of who the indigenous and localpeoples are is a crucial question if the CBD and the

Protocol are to be effectively applied. In SouthAfrica, people live in a wide range of collectives;from industrial towns, rural townships, informalsettlements and villages to remote and traditionalor indigenous tribal clans. For the purposes of thisarticle it is important to understand the generalhistory and current demographics. The San orBushmen were undisputedly the first peoples toinhabit the subcontinent, evidence of their pre-history indicating their presence between 20000 and30000 years ago, a timing supported by the geneticrecord as concluded in Himla Soodyall’s book onthe prehistory of Africa.10

According to Alan Barnard, the next grouping toemerge in the archeological record was the Khoi, orKhoi-khoi, (including the Nama, Damara and otherKhoi speakers). These were primarily pastoralistherders of sheep and goats, who were somehowrelated to the San, and who are generally estimatedto have emerged between 1500 and 2000 years ago.The latter groupings are scattered throughout thecountry, some being merged to an extent withinurban settlements, and are today referred togenerally as the Khoi or the Khoe khoen.11

Barnard confirms that the next clearly recordedwaves of migration or colonisation were providedby the two primary groupings of Africanspastoralists, namely the Nguni group (Swazi,Ndebele, Zulu, Xhosa) down the east coast and theTswana and Sotho group through the centre of thecountry. These migrations are believed to havecommenced from about 1000 years ago. The Xhosafinally entered the southernmost Eastern Province

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7 Note that the phrase ‘indigenous and local communities’is used throughout the Nagoya Protocol.

8 Article 1 of the ILO Convention describes indigenous andtribal peoples as follows: (a) tribal peoples in independentcountries whose social, cultural and economic conditionsdistinguish them from other sections of the nationalcommunity, and whose status is regulated wholly orpartially by their own customs or traditions or by speciallaws or regulations; (b) peoples in independent countrieswho are regarded as indigenous on account of their descentfrom the populations which inhabited the country, or ageographical region to which the country belongs, at thetime of conquest or colonisation or the establishment ofpresent state boundaries and who, irrespective of their legalstatus, retain some or all of their own social, economic,cultural and political institutions.

9 See Dutfield, note 4 above, at 94.

10 Himla Soodyall, The Prehistory of Africa: Tracing theLinage of Modern Man (Cape Town: Jonathan Ball, 2006).

11 The Khoi (also called the Khoi Khoi, the Khoe or Khoe-khoen) are deserving of extensive treatment, and this articlecannot do them justice. This article will primarily use theword Khoi. The South African Government recognisesthe National Khoisan Council as the representative bodyfor the entire set of San and Khoi peoples. See N. Crawhall,‘Still Invisible: San and Khoe in the New South Africa’,13/3 Southern Africa Report 26 (1998). See also UnitedNations Commission on Human Rights, Human Rightsand Indigenous Issues, Report of the Special Rapporteuron the situation of human rights and fundamental freedomsof indigenous people, Rodolfo Stavenhagen,on his Missionto South Africa, E/CN.4/2006/78/Add.2 (15 December2005), p.7.

region of South Africa about 500 years ago. Theresident San hunter-gatherers were in most casesforcibly displaced by the newcomers, whilst thehistorical record also indicates patterns of trade,intermarriage and cooperation.12

When the Dutch and other European traders startedto settle in South Africa in the 16th century, a newwave of immigration, conquest and domination ofresident populations commenced, one mirrored incolonial ambitions throughout the world. The doctrineof discovery regarded land held by indigenouspopulations as terra nullius and free for the taking.13

All descendants of the pre-European African invasionof South Africa, comprising the majority of the 50million population currently known as Africans,regard themselves not only as being traditional inorigin, but also as ‘indigenous’ to South Africa inthe traditional understanding of the word.

Whilst the more isolated and tribal communities falleffortlessly into the clichéd remit of the narrowdefinition of ‘indigenous’, other communities whoare ‘indigenous to Africa’, as described in the AfricanCommission’s working group on indigenouspopulations, do not self-identify as indigenous in theUnited Nations context, and reflect the inexorabledrive towards urbanisation and modernity withincreasingly tenuous links to their tribal origins.14

The San peoples, who have been reduced to a mere9000 individuals in South Africa, still predominantlylive in their own small communities, and are

governed by an elected San Council withrepresentatives from the !Khomani, !Xun and Khwelanguage groups. Similarly, San Councils have beenelected in neighbouring Namibia and Botswana,where their numbers are estimated at 35 000 and55 000 respectively.15 Naturally, some San haveurbanised and are not included as part of thesecommunities. The San exist and are represented asan indigenous community at three distinct levels,for example the !Khomani San community of SouthAfrica functions not only at local level butadditionally through the South African San Councilat the national level and through Working Groupof Indigenous Minorities in Southern Africa(WIMSA) representing the San of Southern Africaat regional and international levels, respectively.

The South African Government promulgated theBiodiversity Act in 2004,16 and subsequently issuedspecific ABS regulations in 200817 indicating its firmintent to give domestic effect to the principlescontained in the CBD. Having ratified the NagoyaProtocol, the combined South African legislationprovides an ABS framework managed by adesignated clearinghouse, which requires users or bio-prospectors inter alia to secure benefit-sharingagreements from the holders of TK relating to thegenetic resources in question.18 An indigenouscommunity is described in relation to its knowledge,namely ‘as one whose traditional uses or knowledgeof the indigenous biological resources; initiated orcontribute to the proposed bioprospecting’.19 Theregulations go on to define an indigenouscommunity even more broadly, as ‘any communityof people living or having rights or interests in adistinct geographical area within the Republic ofSouth Africa’ and to include either a traditional

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12 Alan Barnard, Hunters and Herders of Southern Africa: AComparative Ethnography of the Khoisan Peoples 28-29(Cambridge: Cambridge University Press, 1992).

13 ‘The Doctrines of Discovery, ‘Terra Nullius’ and the legalmarginalisation of indigenous peoples in contemporaryAfrica’, Statement by Indigenous Peoples of AfricaCoordinating Committee to 11th session of the UNPermanent Forum on Indigenous Issues (UNPFII),available at http://www.osisa.org/sites/default/files/discovery_nullius_africa.pdf.

14 For a clear exposition of the traditional, and the UnitedNations related meaning of the word ‘indigenous’, seeAfrican Commission on Human and Peoples’ Rights,Report of the African Commission’s Working Group ofExperts on Indigenous Populations/Communities (2005),available at http://pro169.org/res/materials/en/ident i f i c a t ion/ACHPR%20Repor t%20on%20indigenous%20populations-communities.pdf.

15 Roger Chennells, Victoria Haraseb and MathamboNgakaeaja, ‘Speaking for the San: Challenges forRepresentative Institutions’, in R. Wynberg, S. Schroderand R. Chennells eds, Indigenous Peoples, Consent andBenefit Sharing: Lessons from the San-Hoodia Case 165(London: Springer, 2009).

16 South Africa, The National Environmental Management:Biodiversity Act 10 of 2004 [hereafter NEMBA].

17 South Africa, The Biodiversity: Access and BenefitSharing regulations (BABS) promulgated 1 April 2008[hereafter BABS Regulations].

18 Id. at chapter 6.19 See NEMBA, note 16 above, Article 82(1)(b).

problems believed to be applicable in othercountries. The bare bones of these cases, namely theHoodia,22 the Sceletium and the Pelargonium23

cases, are briefly as follows:

1. Hoodia - The San peoples used Hoodiagordonii (Xhoba) which grows in SouthernAfrica, inter alia for its appetite suppressantqualities. This aspect of the San TK guidedthe Council for Scientific and IndustrialResearch (CSIR) in their research, whichresulted in the registration of a patent in1996. The San challenged the patent in2001, claiming rights based upon their TK,and the CSIR acknowledged the San as theknowledge holders. A benefit-sharingagreement was signed in 2003 providingSan with a 6% share of future royalties. Thepatent was unsuccessfully licensed first toPfizer Inc,24 and then in 2005 to Unilever.Currently the CSIR is planning a newcommercialisation plan for the Hoodia,with the San as (minor) joint venturepartners. Many other rural communitieswho are not San utilise and haveknowledge about the use of Hoodia. Nonehave claimed TK rights, presumablybecause the San were acknowledged asbeing the primary knowledge holders. InNamibia the San and the Nama negotiatedan agreement in 2010 to share benefitsrelating to the Hoodia and otherindigenous plants. The TK rights relatingto the Hoodia patent were howeverawarded solely to the San on the basis ofthem being primary knowledge holders intime.

council where traditional uses of indigenousresources contribute towards the proposedbioprospecting, or where knowledge of thediscoveries is to be used for the proposedbioprospecting.20 These definitions rest heavilyupon the concepts of ‘traditional knowledge’ and‘traditional uses’ relating to the indigenous biologicalresources and the bioprospecting activity in question,in order to try and ensure that the benefit-sharingaims of the CBD are met.

The Nagoya Protocol, which attempts to prescribemore clearly the duties of states to ensure fair andequitable benefit sharing, sets out what is requiredin Article 5, which reads as follows:

Each party shall take legislative,administrative or policy measures, asappropriate, with the aim of ensuring thatbenefits arising from the utilisation of geneticresources that are held by indigenous andlocal communities, in accordance withdomestic legislation regarding the establishedrights of these indigenous and localcommunities over these genetic resources, areshared in a fair and equitable way with thecommunities concerned, based on mutuallyagreed terms.21

This important article of the Nagoya Protocol,central to the issues discussed in this article, begstwo important questions, both of which are threadedthroughout the CBD as well as the South Africanlegislation. First, how are the relevant TK holdingindigenous and local communities to be identifiedand determined? And second, what exactly are the‘established rights’ of such communities over thesegenetic resources?

2.2 Three Case Studies and aMoral Tale

In the discussion below, the two questions raisedregarding the identity and rights of knowledgeholders will be considered in the light of threeongoing ABS cases, which have raised issues and

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20 See BABS Regulations, note 17 above, definitions.21 Nagoya Protocol, note 1 above.

22 See Wynberg, Schroeder and Chennells, note 15 above.23 Misaki M Koyama and Mariam Mayet, Bioprospecting

Biopiracy and Indigenous Knowledge: Two Case Studiesfrom the Eastern Cape Province, South Africa(Johannesburg: African Centre for Biosafety, 2007).

24 Both Pfizer and Unilever, after some years of researchand development, decided to discontinue the license basedupon the CSIR P57. See Wynberg, Schroeder andChennells, note 15 above at 100. Currently, CSIR isresponsible for the development of the patent incollaboration with the San.

2. Sceletium tortuosum - The Sceletiumtortuosum (Kanna, Kougoed) grows inSouth Africa. The San peoples originallyheld TK relating to the plant, but overcountless centuries knowledge of its mood-enhancement properties becamewidespread not only amongst the San butalso amongst other rural communities(Nama, Baster, Koranna) and in theNorthern Cape region. A patent wasregistered in 2000 after a researcher namedNigel Gericke utilised knowledge andassistance from Nama-speaking traditionalhealers from two rural villages in theNorthern Cape region, namely Nourivierand Paulshoek. The patent holder, HGHPharmaceuticals, acknowledged the San asbeing the ‘primary knowledge holders’ ofthe TK, and entered into a benefit-sharingagreement to pay royalties to the San inthe event of commercial success. In anattempt to respond to the fact that the tworural communities had contributedtowards the patent, and were in additionknowledge holders, the San insisted thatthe agreement should provide for anallocation of 50 per cent of the entireroyalty received to the villages ofNourivier and Paulshoek. An advance inlieu of royalties has been paid annuallysince 2008, the product has been releasedand a formal market release of the producttook place in mid 2013.25

3. Pelargonium sidoides - Pelargoniumsidoides is widely used in Europe to combatrespiratory infections, and has a broadrange of traditional uses, including forother health problems. The internationalcompany Schwabe Pharmaceuticalsnegotiated a benefit sharing agreementwith a Xhosa grouping in the Eastern Capewho claimed TK rights and who alsoprovided access to the resource, which

grew wild on their tribal land.26 The localcommunity was paid harvesting fees for theproduct. The same company applied for arange of patents in Europe relating to thePelargonium, which were successfullychallenged by a group of opponentsincluding a different Xhosa community.The question of who ‘owns’ the TK relatedto the Pelargonium is unresolved and isbeing addressed by the Department ofEnvironmental Affairs. The San haverecently voiced their claim to be jointholders of the TK, on the basis that theypassed it on in previous centuries inter aliato the Xhosa peoples. The San and Khoipeoples have yet to formally register theirconcern about not being included.

In order to shed light on the two main problem areasdiscussed in this article, that is 1) the identificationof the TK holding community, and 2) theunderstanding of what is the nature of the particularright that communities claim to hold, the followingmoral tale is proposed:

Imagine that family A holds a valuable and ‘secret’health-giving recipe, passed down from generationto generation by the mothers. Perhaps this secretcould be a unique and special recipe for a cake.

Family A meets regularly with families B, C and Dover the years, and the mothers in family A sharethe secret. The mothers in families B, C and D whoreceive the recipe are all grateful, and use it to theiradvantage within their families and beyond. Thecake is used far and wide.

Some years later, the secret recipe, due to a changein conditions, unexpectedly becomes a highly soughtafter and valuable commodity. Depending upon thecircumstances, three different possible scenarios areimagined:

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25 The patented Sceletium product is marketed as ‘Elev8’and claims to elevate moods and to assist in coping withstress.

26 It should be noted that doubts have been levelled at theTK claims for use of this plant as a bronchial remedy,stating that TK links are tenuous. See J van Niekerk andR. Wynberg, ‘The Trade in Pelargonium Sidoides – RuralLvelihood Relief or Bounty for the ‘Bio-bucaneers’’ 29/4 Development Southern Africa 530 (2012).

1. A patent was taken out based upon family A’ssecret, which had been published in a journaland which was worked on by researchers.The patent holders approach family A asTK holder to discuss sharing the proceeds.

2. A patent was taken out based upon familyA’s secret. However researchers wereassisted by the mothers in family B indeveloping the secret recipe into a patent.Patent holders approach family A to sharebenefits, who insist that family B shouldalso be included in the benefit share.

3. A patent was taken out and a thriving marketis developed, based upon the secret recipe,which has been in the public domain forcenturies. Patent holders approach familyC which agrees to sign a benefit-sharingagreement with no reference to the otherfamilies. Families A and B feel this is not right.

This article suggests that the manner in which TK isshared corresponds with the manner in whichfamilies might share such a secret recipe. The Hoodiacase is essentially analogous to case number 1, wherethe original family A was the San, who becameprimary beneficiaries of the benefit sharingagreements. The Sceletium case has been approachedin a manner analogous to case number 2, where theSan family A offered a 50 per cent share of theroyalties to family B, namely the group that activelycontributed to the patent. And finally thePelargonium case reflects the more complicatedsituation in case number 3, where the secret has been‘out’ in the public domain for many decades, andthe issue of who should be the beneficiary or TKholder has become far from a simple matter. It isnot clear who is entitled to claim the TK. In practicethen, how are TK holders normally determined?

3DETERMINING THE TK HOLDERS

South Africa’s rich biodiversity has long beenexplored by bio-prospectors seeking commercially

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valuable genetic resources and who wouldcustomarily glean useful plant knowledge from localcommunities. The meaning of the word community,utilised so freely in ABS and other developmentaldiscourse, is deserving of closer attention. The natureand extent of the community being referred to isusually indicated by the context of the use, and isthus seldom explored or challenged in practice. Forexample the statement on benefit sharing by theHuman Genome Organisation describes the entirerange of different communities that might requireconsideration during genomic research, including‘communities of origin’ (for example family,geography, culture, history, race, religion) and‘communities of circumstance’ (shared interests,workplace, disease).27 Where TK has been sharedover centuries of migrations, it would betheoretically possible for a community of interests(those that have the knowledge) to become separateand distinguishable from the community of origin(geography, language). Clearly then where it issought to identify specific legal rights, namely theright to claim benefits as TK or knowledge holdersrelating to a certain plant, greater specificity on theword ‘community’ is required; continued avoidanceof the issue may then lead to ABS legislationbecoming unintelligible and less enforceable.

The South African ABS legislation envisages theanswer to this complex question being provided firstby the community itself, which is defined as astakeholder, and is assumed to have the capacity toassert its TK rights.28 A further implication is madeby the requirement that the intended user or bio-prospector who wishes to negotiate a benefit-sharingagreement must identify the TK holder and negotiatea benefit-sharing agreement.29 Both of these notionshave proved optimistic. For example, two keyassumptions are made by the legislation in thedefinitions and the process referred to above. TheTK community should be clearly evident andidentifiable in relation to specific plant resources,and would thus automatically claim its rights as the

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27 Human Genome Organisation (2000) HUGO EthicsCommittee, ‘Statement on Benefit-Sharing’ (9 April2000), available at http://www.hugo-international.org/img/benefit_sharing_2000.pdf.

28 See NEMBA, note 16 above, Article 82(1) (b).29 Id., Article 82 (2) (b)ii.

knowledge holder. Second, the bio-prospectorshould be able to identify the relevant TKcommunity after having first researched thepublished ethno-botanical or anthropological record.

Both of these processes could in practice lead toillogical, opposing or inconclusive outcomes. In thePelargonium case, for example, neither the San northe Khoi communities were timeously made awareof the benefit-sharing agreement, and the bio-prospector failed to engage correctly with the TK-related facts. It should be borne in mind that in SouthAfrica, as in many other countries, there is a lack ofrelevant historical, anthropological or ethno-botanical knowledge. Relying on experts can onlybe one component of the process. The South Africanlegislation provides further that the user/permitapplicant (bio-prospector) be required to provide thegovernment with all information concerning theprocess of establishing that the correct TK holderhas been identified, a requirement that obliges bio-prospectors to engage scientists, researchers or otherbio-prospectors to assist them with the complexfields of anthropology or ethno-botany.30

Indigenous peoples are seldom satisfied with thecredibility of experts as being the final arbiters oftheir knowledge. San leaders have pronouncedthemselves to be mistrustful of the Western systemof written knowledge, in response to the call bygovernments and companies for proof in the formof publication as evidence of TK. AndriesSteenkamp, !Khomani San leader, stated during ameeting with government officials:

‘Our knowledge is oral. We reject the ideathat for it to be true it must be written downand recorded by white academics’.31

Indigenous peoples, if properly engaged on the issue,are in most cases able to find an equitable responseto the question of TK holder-ship; to engage withone another and to seek agreement with regard totheir mutual rights as knowledge holders relating tocertain plants.

Some further difficulties with the application of theSouth African ABS legislation are apparent. Once aprospective benefit sharing agreement is placed beforethe Minister for approval, this information may bepublished in the Government Gazette in order toinvite comments from interested and potentiallyopposing parties.32 This well-intended provision infavour of other knowledge-holding communities canbe viewed as less than useful, due to the fact that theGovernment Gazette is a formidable and distantofficial publication. It is inaccessible to all but themost dedicated researchers. How could thisimportant information possibly be assumed to reachindigenous or local communities in this manner? Itappears that few if any objections from TK holdershave ever been elicited by such publications. It wouldbe reasonable to expect the Minister, as part of theclearinghouse responsibilities, to create a database ofall known indigenous organisations and todisseminate such information to them, rather thanrely upon the formal Government Gazette.

On the basis of all the information received, theMinister is theoretically deemed to be in a position toapply his or her discretion, and to make a finaldetermination that the published benefit-sharingagreement is not only fair and equitable but also thatit fulfills all the legal requirements.33 The Ministermay consult with any person, including a team of experts,and may invite public comment, prior to making afinal decision. Significantly, the word ‘may’ in thetext indicates that this is optional. Furthermore thelaw is silent on how one would determine a disputeof rights between two or more communities inrelation to the TK in question should any communityobject as a result of the Gazette notification, this notbeing one of the appealable matters set out in Article14. Another serious failing of the legislation relevantto this article is that no processes to resolve claimsthat might overlap or compete are provided.

TK rights to traditional medicinal knowledge arenormally shared freely between cultures andneighboring groups over centuries.34 The centralissue then becomes one of what group, tribe, clan,community or region could claim with confidence

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30 See BABS Regulations, note 17 above, Regulation 8(1).31 Statement by Andries Steenkamp at the meeting between

the South African Government and San leaders at CapeTown, 22 November 2011.

32 See BABS Regulations, note 17 above, Regulation 17(4).33 Id., Regulations 17(3) & (4).34 See Dutfield, note 4 above, at 71.

to be the sole knowledge-holder of specific TK, andon what basis. The question remains howeverwhether such an exclusive claim can be justified bythe largest and most assertive group that possessesthe knowledge and is still currently utilising it. Whatabout the rights of an earlier or original group thatmight have freely passed on, or donated, theknowledge to subsequent invaders? All of thesequestions weigh heavily upon any decisions made bythe Minister regarding the identity of the TK holdingcommunity. Given these difficulties it is importantto note that such a decision is required in order toimplement the benefit sharing principles of the CBD.

Based upon a synthesis of published writings referredto above regarding the existence and transmission ofTK within indigenous populations, the followingthree criteria require assessment in order to validatea community’s claim to be a valid TK holder. First,the TK should be long held within a TK system.Second, the degree to which the TK is exclusivelyheld, or jointly held with others should be considered,and third, the existence of a coherent and functioningleadership or governance system in the TKcommunity should be confirmed.

3.1 Knowledge Long Held

A central question in the debate on TK claims is howlong must the knowledge have been held by thegroup? Based upon the history of benefit sharing inSouth Africa, there seems to be an intuitive acceptancethat a community that acquired or gained the TK relativelyrecently, or in a manner inconsistent with an indigenousknowledge system (such as a commercial farmer whoacquires knowledge from a nearby community), cannotclaim to be a genuine TK holder. The San claimedthe description that they held the knowledge sincetime immemorial and that they therefore regardedthemselves as prior knowledge holders with regardto the Hoodia and Sceletium cases. These terms wereaccepted both by the companies seeking to negotiateas well as the Department of Environmental Affairs.35

The use of these terms was based upon the assertionsof the San that they were acknowledged generally asbeing the first peoples on the subcontinent, and wasin addition supported by anthropological andarcheological evidence.36 In their opposition to theSchwabe Pelargonium patents, the African Centrefor Biosafety, acting on behalf of the ‘community ofAlice’, similarly claimed in pleadings that the localcommunity had utilised the TK relating to thePelargonium ‘since before recorded time’.37 Whilsttheir use of the term might be strictly defensible inthat there were no records two hundred years ago,their failure to acknowledge the existence of the Sanand Khoi peoples as prior knowledge holders in theEastern Cape raises concerns.

Although the Xhosa speaking opponents to thePelargonium patent38 did not claim exclusiveownership or rights as knowledge holders, theirclaimed TK rights were unchallenged in the patentappeal proceedings and deemed sufficient to providetheir locus standi, or legal standing, as indigenousknowledge holders. Failure of the San or the Khoito object was not surprising, considering the disputetook place before the European Patent Office andwas not covered by any government or otherpublications in South Africa. It is not disputed thatcertain rural Xhosa communities have rights toprovide or deny access to the Pelargonium plantsgrowing in their area, or that through theirtraditional healers they have a legitimate claim tothe TK relating to the plant’s usage. However, thePelargonium case brings to light a more complexquestion relating to rights, namely the extent towhich the TK community is legally entitled tobenefit from exploitation of the Pelargonium plantand how other groups that are excluded shouldrespond?

The fact that the opponents to the patent case weredescribed as the ‘community of Alice’, the latter arural university town run by a local council within

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35 The Hoodia case is described in detail in R. Wynberg &R. Chennells, ‘Green Diamonds of the South: AnOverview of the San-Hoodia Case’, in Wynberg,Schroeder and Chennells, note 15 above at 89. TheSceletium agreement is unpublished, available from theSan Council of South Africa.

36 References to the San first people status include Soodyall,note 10 above and Barnard, note 12 above.

37 The pleadings for the patent challenge by the AfricanCentre for Biosafety are available at http://w w w . a c b i o . o r g . z a / i n d e x . p h p / p u b l i c a t i o n s /biopiracy?start=10.

38 The opponents are described in the patent oppositionpapers as the ‘Alice community’.

millennia after them.41 This term was understoodand accepted by the Nama as being appropriate, andas providing persuasive moral grounds for the prior,and therefore to a certain extent stronger, TK claimof the San. In summary, this discussion confirms theperhaps obvious criteria, namely that knowledgeneeds to be long held in order to validate TK rights.

3.2 Exclusive or Shared Knowledge?

It is a recurring theme in this article that TK, likethe secret cake recipe, is seldom unique or exclusiveto one community. The manner in which knowledgeabout the properties of the Hoodia is now widelyheld in rural communities in the arid regions ofSouthern Africa is testimony to the healthy sharingethos that existed in the past, and as the Nama andSan discussions attest, a sense of morality seems tobe active and persuasive when the issue of benefitsharing is discussed.

Other potential complexities of knowledge sharingshould also not be denied. For example certainproperties of plants might well have been discoveredat different times, so that the first sharing or discoveryof such knowledge would become truly lost in themist of time. Any claim of exclusive rights by a TKcommunity should be tempered by this reality, whilstclaims of relative latecomers would be taken lessseriously. The millennia of migrations, conquest,intermarriage, cultural mixing and trading of bothcommodities and knowledge that preceded recordedhistory provide ample reason why knowledgeregarding plant use in particular is so widespread.

The San, who were the first and only peoples onthe African continent for countless millennia, livedpredominantly as hunter gatherers until relativelyrecently, with some small communities and pocketsstill living much as their forefathers did to this day.These communities did not hesitate to shareknowledge and information with those in need, aspart of an ethos of goodwill, barter and reciprocal

a Xhosa-speaking region of South Africa’s EasternCape province, indicates the fragility of the TKholder identification process. If Xhosa communitiesclaim such TK holder rights, as they did in this case,what is the nature and extent of this indigenouscommunity? The Xhosa people comprise a powerfulSouth African tribe strongly represented ingovernment, having produced both recent presidentsNelson Mandela and Thabo Mbeki. Therefore, howdoes one define the extent of a TK or knowledgeholding community when it might represent asignificant proportion of a country’s citizenry, suchas the Xhosa people?

The question as to the TK rights of rural communitiesin Southern Africa who have acquired knowledgerelating to the Hoodia over the past centuries hasfrequently been raised.39 Currently, only the San areacknowledged in the CSIR benefit sharing agreementas TK holders, to the exclusion of many otherlinguistic or geographically defined potentialcommunities. It has been explicitly accepted by theparties that the San priority in time provides acoherent reason that is inherently acceptable to otherindigenous communities for their acknowledgementas knowledge holders. The Hoodia gordonii also growsin Namibia, giving rise to cross-border questions. TheSan subsequently entered into negotiations withleaders of the Nama community in Namibia in orderto clarify their relationship and their respective rightswith regard to TK.40

The fact that many members of the Nama or Sancommunities are not individual knowledge holders,or even resident in the core settlement areas, did notprevent either of these two bodies from negotiatingwith each other to resolve and determine the issueof their respective rights. During the lively debatesbetween San and Nama delegates, which arerecorded in the minutes of the parties and alsoremain unpublished, the San utilised the term‘primary knowledge holders’ in order to distinguishthemselves from other valid but chronologicallylater knowledge holders, who had emerged many

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39 See Dutfield, note 4 above and Wynberg, Schroeder andChennells, note 15 above.

40 The Nama peoples in Namibia are represented in seventeentraditional communities by elected leaders, who togetherform the Nama Traditional Leaders Association of Namibia.

41 It is commonly estimated that the Nama as an identifiedpeople emerged as herders in Southern Africaapproximately 2000 years back, whereas the pre-historyof the San is estimated from rock art and other sourcesas being between 30 000 and 40 000 years. See H.P Steyn,The Bushmen of the Kalahari (Cape Town: Juta, 1989).

exchange that bound people in relationships ofmutual reciprocity.42

Anthropologists have described how the San sharedtheir knowledge of medicinal plants and othernatural resources with all tribes and peoples whosubsequently migrated to their lands, and it isreasonable to believe that this was the norm.43

Anthropologists have hesitated to extrapolateexactly how these exchanges took place, beyondsuggesting that the processes of use and sharingwould have been inherently flexible, and thatknowledge, whilst incorporating moments ofdiscovery, would have remained inherentlydynamic.44 For example amongst the componentsof TK, Johnson cites that it is oral, holistic ratherthan reductionist, intuitive rather than analytical,and that it ‘derives its explanations from cumulative,collective and often spiritual experiences’ which arevalidated seasonally through cycles of activities.45

The Xhosa speaking people, migrating to the EasternCape as recently as 1400 AD, found the San and otherKhoi tribes already resident. Whilst little is knownabout the precise nature of their early interactions,what is clear is that the Xhosa borrowed widely notonly from the San and Khoekhoe languages,46 butin addition and more pertinently for this article, paiddeference to and learned avidly from the Sanmedicinal healers.47 San knowledge of plant use wasregarded as vital for survival in the newly colonisedterritory, and Xhosa medicine men trained, as wellas took on the spiritual and medicinal beliefs of their

San forebears. The Xhosa name for healer is‘uGqira’, a San word, and many spiritual practicesstill carry ancient San beliefs and terminology. Adocumentary film named Iindawo Zikathixo (InGod’s Places) refers to the sacred places originallyused by San healers, and vividly documents howmodern Xhosa medicine men continue healing andspiritual practices learned in past centuries from theSan.48

Regarding Pelargonium, nobody would deny thatmembers of the Xhosa rural communities haveacquired over time and currently hold TK rights tothe medicinal knowledge. However, it should alsobe clear that this knowledge was received by them,and shared with them by the San forebears, in asimilar manner to the Nama referred to above. Onemight question why the San have never challengedthe Xhosa communities regarding their benefit-sharing agreement with Schwabe. The response of aSan representative to this enquiry was that it isunseemly and rude to challenge another communityon such a matter, with whom they have not beeninvited to engage on the issue.49 Asserting objectionsunder such circumstances is no simple matter. Inaddition, they have not been placed in possession ofinformation requesting their views on Pelargonium(the Government Gazette announcing theagreement, if ever published, was never madeavailable to them or seen by them). Finally, the Sanleader stated that if at some stage a forum is createdin which the respective respresentatives of differentcommunities of TK holders may meet and discusstheir respective rights, at that stage it would beappropriate to exchange views and to resolve theissue.50

Underlying this view is a belief that the TK right atstake is not one of ownership in a typical Westernor developed world sense, where one party claimsexclusivity resulting in the rejection of the claims ofothers, but is a right based upon morality, equity

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42 Exchanges would typically take place in informalrelationships of mutual reciprocity first examined byMauss in his book The Gift, and would typically includeall of the commodities needed for survival, including howplants could be used to treat illnesses. See Marcel Mauss,‘Essai sur le don’, in Sociologie et Anthropologie (Paris:Presses Universitaires de France, 1950) and Marcel Mauss,The Gift: The Form and Reason for Exchange in ArchaicSocieties (London: Routledge, 1990).

43 See Steyn, note 41 above.44 See Johnson, note 5 above.45 Id. at 8.46 The additional ‘click’ sounds in the Xhosa language were

derived from interaction with the San people that they foundand subsequently subjugated. See Steyn, note 41 above.

47 Frans E. Prins and Hester Lewis, ‘Bushmen as Mediatorsof the Nguni Cosmology’ 31/2 Ethnology 133 (1992) andFrans Prins, ‘Secret San of the Drakensberg and TheirRock Art Legacy’ 23/2 Critical Arts 190 (2009).

48 Documentary film directed by Richard Wicksteed andproduced by Irene Staehelin. KhoiSan AwarenessCampaign, 2007. Details available at http://whoswho.co.za/richard-wicksteed-42053.

49 Personal correspondence (20 April 2011) Chairman ofSA San Council Andries Steenkamp.

50 Id.

and fairness, where all relevant factors are able to,and should, be taken into account. Surely TK thathas been shared over many centuries has becomesomething of a common pool resource in the wordsof Elinor Ostrom, which resists and buckles underthe attempts of external agents, including lawmakinggovernments, to impose private property typerights.51 One of the issues that is faced by managersof common pool resources is how to deal with free-riders, or those that in one way or another actopportunistically with regard to the resource. TheSan response to the claim of TK rights by the Xhosacommunity in respect of Pelargonium impliedlyregarded that as such an opportunistic act, whichshould be rectified in the interests of all those thatbenefit from the common resource. A new modelof sharing of TK rights is offered in the Sceletiumcase, where the San were acknowledged by the userHGH Pharmaceuticals, based upon their ownresearch, as being the primary knowledge holders.

As described above in the Hoodia case, it wascommon knowledge that healers in most ruralcommunities in the Northern Cape would haveknown and used the properties of the plant. Inparticular it was conveyed to the San that certainhealers in two particular rural communities hadassisted and contributed actively over many yearstowards the original research that led to theSceletium patent. Negotiations between the San andthe leaders of the Nourivier and Paulshoekcommunities commenced in order to address thisissue, with fairness and equity as the objective. TheSan offered to convey fifty percent of their financialbenefits under the agreement, in an attempt to ensurean appropriately fair benefit or reward to thesecommunities. The percentage was arrived at in thespirit and ethos of fair play, in view also of theunenviable difficulty of motivating any other moresubstantive formulations. The fact that somemembers of these two communities happened tocome from the Nama linguistic group, or that othersin the communities had not contributed towards theresearch at all, was not regarded as significant in thedecision to share the benefits in a broad-brushmanner most likely to be perceived as being fair.

The following clause, reflecting the desire of the initialparties to strike a fair and generous balance in allocatingbenefits from the commercialisation of the Sceletiumpatent, appeared in the preamble to the agreement:

Both the San and HGH acknowledge that awide range of communities in South Africa haveover the centuries acquired knowledge relatingto the Sceletium, and that one community inparticular provided detailed ethnobotanicalinformation to researcher Dr Nigel Gerickeon folk-uses of Sceletium. This community,namely the rural community of Paulshoek/Nourivier, has been identified by the partiesas a secondary beneficiary of the rights flowingfrom this agreement, as is set out below.52

It must be admitted that in the absence of furtherexplication, this formulation of a fifty percent splitdoes not assist or guide other knowledge holdingcommunities who might have other more nuancednarratives of information sharing. Whilst thediscussions and criteria applied are not evident fromthe agreement, it must be accepted that the fiftypercent decision might well have been motivated asmuch by pragmatism in the form of the desire toreach an amicable accord, as by any attempt tocalculate or calibrate the respective value of theirrespective contributions.

3.3 Leadership and Governance

A leadership structure is to some extent implied, butnot an essential component of an indigenouscommunity. It should be noted that traditional orcustomary communities in South Africa areimpacted by draft legislation53 attempting to clarifytraditional leadership structures, and the customarylaws that apply to those communities. A pervasivenotion persists, perhaps gained from an idealisedimagery of TK holders, namely that the TK holding

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51 Elinor Ostrom, Governing the Commons: The Evolutionof Institutions for Collective Action (Cambridge:Cambridge University Press, 2006).

52 San HGH Benefit Sharing Agreement, not yet published(on file with LeanaCloete at leanacloete@gmail.com).

53 See Traditional Leadership and Governance FrameworkAmendment Act, 2003, available at http://www.info.gov.za/view/DownloadFileAction?id=68019and the National House of Traditional Leaders Act, 2009,available at http://www.info.gov.za/view/DownloadFileAction?id=150569.

community should be at least geographically distinct.The South African definition relies upongeographical distinction. However, the reality showsthis notion to be simplistic and problematic in theextreme. Many groups as discussed above (such asthe San, Nama, Sotho, and Tswana) havepopulations not only spread over more than onecountry, but also dispersed within culturally andlinguistically mixed settlements.

In practice and as evidenced by the three case studiesabove, identification of TK communities for ABSpurposes is most often done by reference to language,as perhaps the most convenient and tangible markerof culture. Linguistics alone as a source of definitionof a community is however only a partial guide,understandable as a desire for simplicity rather thancomplexity. In the Northern Cape of South Africafor example, previous Khoi, Griqua, Nama or Bastercommunities have generally begun to speakAfrikaans, for centuries the language of thedominant group, with fewer and fewer groupsretaining their former languages. Determining theparameters and extent of these linguistically andgeographically fractured groups for TK purposeswould be difficult.

Cori Hayden warns against the assumption thatgroups exist,54 and states that a prerequisite forengagement with (and for the existence of) acommunity is that it must have ‘a system oflegitimate political representation’.55 The establishedgovernance or leadership structure should thus bethe appropriate body not only to assert rights, thatis to negotiate and formally reach agreement onmaterial transfer and benefit sharing, but would alsobe the conduit for receiving and properly disbursingfunds. The Nama Traditional Leaders Associationof Namibia referred to above was thus able tocoherently negotiate with the San and their own(Namibian) government relating to their TK rights.This group recently formed a constitutionalframework to unify the Nama peoples in Namibia,and to legitimately represent seventeen recognised

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traditional regions, each with its own structure andchief, in relation to the outside world.

On the contrary, the Pelargonium patent challengeand ongoing dispute between various Xhosa-speaking role-players has laid bare the latentconfusion over who was entitled to claim to be TKholders of the plant. The German companySchwabe, hasty to comply with the ABS regulations,had signed benefit sharing agreements with a smallrural Xhosa-speaking community in the EasternCape, which was itself part of a larger communityruled by a chief.56 This is an example of howpersuasive bio-prospectors are able to persuadeleaders of a possible TK-holding community to signa benefit sharing agreement rather than to properlyinvestigate and establish the true TK holders inrelation to a plant. Rural community leaders are thusnot only vulnerable to financial inducements, butare often unaware of the existence of otherknowledge holders.

As evidenced by the case of the Maya Indians in theMexican Chiapas highlands, where benefit-sharingnegotiations finally failed in a mire of conflict andmisunderstandings, one of the lessons learned wasthe fact that the university research consortiumunderestimated the complexity of the governancestructures of the indigenous Maya peoples. To whatextent can reliance be placed upon informalleadership structures or upon the legitimacy of thosethat claim to represent the communities?57 Benefitsharing requires a legitimate authority, which inmany instances such as the Chiapas case, proved tobe elusive and not willing to engage. In the Chiapascase, the indigenous communities did not haveexisting governance structures that matched theresources being bargained for, and the benefit sharingproject required them to create new structures,

54 Cori Hayden, ‘Taking as Giving. Bioscience, Exchange,and the Politics of Benefit Sharing’, 37/ 5 Social Studiesof Science 729 (2007).

55 Id., at 746.

56 M. Mayet, Biopiracy under Fire: The Pelargonium PatentHearing (Johannesburg: African Centre for BiosafetyBriefing Paper, 2010) and M. Mayet, Knowledge Not forSale: Umckaloabo and the Pelargonium Patent Challenges(Johannesburg: African Centre for Biosafety BriefingPaper, 2008).

57 L.G. Barrios and J. C. Lucas, ‘The Limitations of GoodIntent: Problems of Representation and InformedConsent in the Maya ICBG Project in Chiapas, Mexico’,in Wynberg, Schroeder and Chennells, note 15 above, at315.

leading to competition, conflict and influence fromthird parties.58

Fortunately, the San peoples were able to avoid thisparticular pitfall. They had adopted a singlenetworking and representative structure in 1996,when WIMSA was first formed as a regionalnetworking and representative organisation with thepurpose to represent the disparate San groups fromBotswana, Namibia and South Africa in matters thataffected their common culture and heritage rights.59

Whilst the operational governance of these Sanleadership structures is far from perfect, their effortsto establish a coherent representational structurehave proved valuable, enabling them to mandatechosen leaders to articulate and negotiate TK andother rights on behalf of the community.

In relation to the role of leaders, the position ofhealers and diviners, sometimes known as shamans,within a traditional community, is worthy ofmention.60 A modern doctor would not, after sixyears studying medicine at university, claim that theknowledge that he had gleaned belonged in any wayto him. For similar reasons, it is regarded as morallydubious for community healers to claim any rightsover the knowledge that has been passed on to themfor themselves individually, rather than on behalfof the communities they serve. Their knowledge isgleaned from healers and diviners before them, whoin turn received it from their own predecessors, andmodern healers are expected to do the same. Wherebenefit-sharing agreements are hastily negotiated bybio-prospectors with complicit individuals or groupsof healers, they run the risk of being both unfairand flawed.

Collective rather than private ownership of TK isthe common principle shared not only by traditionalcommunities, but confirmed internationally in aseries of binding documents. The United NationsDeclaration on the Rights of Indigenous Peoples(UNDRIP) that emerged from the Working Groupon Indigenous Populations (WIPO) confirms the

indigenous peoples right to intellectual propertyrelating to TK.61 In addition, the WIPO workinggroup on Indigenous Knowledge records collectiveas opposed to individual ownership as being at thecore of indigenous culture.62 Bio-prospecting andbenefit-sharing agreements, or material transferagreements that have been signed with traditionalhealers present, according to this principle, can be asignificant threat and an injustice to the communitieswithin which those healers acquired their knowledgeif the communities are not properly represented. Thewarning appears to suggest that traditional healersmight be tempted to act as if they are the solerepresentatives of the community regarding thecommunity’s TK, or as if they have particular rightsin respect of the knowledge, rather than being partof and accountable to the community.

CSIR in South Africa, for example, announced a bio-prospecting agreement with ten traditional healersas part of the bio-prospecting policy.63 Thisannouncement begged the question to what extentthese healers were mandated within their traditionalcommunity structures. One would assume that whilstbearing in mind Dutfield’s warning not to have anyfixed assumptions about ownership or authorship ofTK in traditional societies,64 the traditional healerswould be expected to have secured their authority tothus share their TK by some or other effective andlegitimate community process. If indeed TK is a formof a common pool resource it should meet the criteria

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58 Id., at 317.59 See Chennells, Haraseb and Ngakaeaja, note 15 above.60 R. Barsh, ‘Indigenous Knowledge and Biodiversity’, in

D.A. Posey ed, Cultural and Spiritual Values ofBiodiversity 73 (UNEP: Nairobi, 1999).

61 United Nations Declaration on the Rights of IndigenousPeoples adopted by UN General Assembly 13 September2007, Resolution 61/295, available at http://www.un .org/e s a/ socdev/unpf i i /document s/DRIPS_en.pdf [hereafter UNDRIP], Article 31 and 32.2.

62 WIPO working group on Traditional Knowledge GeneticResources and Traditional Cultural Expressions/Folklore, Intellectual Property and TraditionalKnowledge, Booklet No.2, available at http://www.wipo.int/export/sites/www/freepublications/en/tk/920/wipo_pub_920.pdf.

63 CSIR, Joint media release by the South African SanCouncil and the CSIR, 28 October 2004, available athttp://ntww1.csir.co.za/plsql/ptl0002/PTL0002_PGE157_MEDIA_REL?MEDIA_RELEASE_NO=7233055.See also Tamar Kahn, Indigenous group to share royaltieson anti-obesity drug 23 March 2003, available at http://www.scidev.net/global/bioprospect ing/news/indigenous-group-to-share-royalties-on-antiobesit.html.

64 See Dutfield, note 4 above, at 95.

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suggested by Ostrom that there should be clearlydefined boundaries, collective rules or arrangements,and self-determination of the collective that isrecognised by the ‘higher level authorities’.65

What the ABS regime has brought about is a newuse for TK that previously lacked significantcommercial or related value. In effect, a new andvaluable resource has been formed. It is notsurprising that the indigenous peoples are finding arange of different ways to respond to and deal withthis development, one of which is the need todevelop the political structure necessary to articulateand negotiate with outside parties, where they donot yet exist. Leadership and governance of theindigenous peoples, whilst an essential componentof ABS practice, is not a simple question ofestablishing the legitimate representative of the TKholding community. Indigenous peoples areresponding in a dynamic manner to the newopportunities brought about by the evolving ABSregime, and the crucial issue is the extent to whichstates provide an enabling legal environment for suchresponses to result in positive outcomes.

4TOWARDS NEW LEGAL CONCEPTS

The entire discussion around the determination ofa TK community presupposes the existence of TKrights, as set out in the CBD and the NagoyaProtocol and translated into domestic legislation.This begs the question as to what is the nature andform of these TK rights as now governed by the CBDlegal paradigm. Generally, the idiom and ethos ofABS in the CBD discourse is one predicated on theinternational system of intellectual property rights(IPR). For example, Article 16(3) of the CBD statesthat, ‘the Contracting parties, recognising thatpatents and other intellectual property rights mayhave an influence on the implementation of thisConvention, shall cooperate in this regard…’.66

Contributions to innovation or knowledge providedby TK communities are acknowledged and protectedprimarily by Article 8(j), which enjoins states to‘respect, preserve and maintain knowledge,innovations and practices of indigenous and localcommunities...’.67 The attribution of a new form ofvalue to the TK that is facilitated by the CBD regimeresults from the partial sovereignty, or control, thatis attributed by Article 8(j), which is subject to theoverall sovereignty granted to the state in accordancewith Article 15.68 Indigenous and local communitiesare thus afforded significant, albeit subservient,power to provide or withhold material terms ofaccess and/or consent in respect of resourcesassociated with their TK.69 Despite the fact that thiswas a new form of right granted to the indigenouspeoples, namely partial sovereignty over their TKand genetic resources, many indigenous activistsobjected stridently against the notion that theyshould have anything less than complete control.70

The following decision made by the Conference ofthe Parties to the CBD in 2000 leaves no room fordoubt as to the extent and purpose of the collectiverights of the indigenous peoples. It is stated that,‘access to the traditional knowledge, innovations andpractices of indigenous and local communitiesshould be subject to prior informed consent or priorinformed approval from the holders of suchknowledge, innovations and practices’.71

Articles 6 and 7 of the Nagoya Protocol, the mostrecent development of the ABS framework of theCBD, set out clear processes for obtaining priorinformed consent, including the specific case whereTK is accessed from indigenous and localcommunities, thus cementing an effective veto rightin their favour.72 Prior informed consent, a term used

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65 Ostrom, note 51 above.66 CBD, note 2 above.

67 Id., Article 8(j).68 Id., Article 15(5).69 Id., Article 8(j). See also Nagoya Protocol, note 1 above.70 Debra Harry and Le’a Malia Kanehe, ‘The BS in Access

and Benefit Sharing (ABS): Critical questions forIndigenous Peoples’, in Beth Burrows ed, The Catch:Perspectives in Benefit Sharing 88 (Washington: EdmondsInstitute, 2005).

71 CBD COP 5, Decision V/16, Article 8(j) and relatedprovisions, May 2000, available at http://www.cbd.int/decision/cop/default.shtml?id=7158.

72 Nagoya Protocol, note 1 above, Articles 7 and 12.

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in ILO Convention 169 as well as the UNDRIP andother instruments relating to mining, logging,damming and forced removals involving indigenouspeoples, lies at the heart of what operates to a largedegree as a veto right afforded to the indigenouspeoples.73 It is suggested that the term ‘free’ added bythe UNDRIP to the term ‘prior informed consent’ inrelation to prohibiting relocation from their lands74

or the taking of their TK is largely tautologous, anddoes not add to the meaning.75

As has been described above, the concept of privateownership within indigenous communities isconfined largely to personal effects, and justificationsof exclusion and privatisation are foreign to thegenerally collective ethos. Indigenous peoples issueda public statement expressing opposition to the entiresystem of patenting and commoditisation, stating thatsuch laws were ‘against our fundamental values andbeliefs regarding the sacredness of life processes, andthe reciprocal relationship which we maintain withall creation’.76 However, it is not clear to what extentthis statement is fully supported by the indigenouspeoples. Both Dutfield77 and Vermeylen78, in anexamination of private ownership, have for examplewarned against generalisations such as the assertionthat all property is commonly owned in indigenouscommunities, so this notion, including the very useof the loaded word ‘ownership’, should be treatedwith caution.

Article 5(2) of the Nagoya Protocol refers to ‘geneticresources held by indigenous and local communities’(emphasis added), which seems to imply at the veryleast some form of collective rights, if not ownershipper se. Article 5 goes on to define how the resourcesare held, namely ‘in accordance with domestic

legislation regarding the established rights of theseindigenous and local communities’ (emphasisadded).79 Again the words ‘established rights’expressly imply that the TK holders must first applyfor and establish some recognised form ofregistration of their TK rights, presumably to beissued by their government. This provision emerges,in the harsh light of everyday practice, to be largelyaspirational. The clause begs two questions, first bywhom are these held rights to be established, andsecond what precisely is the nature of such rights?Neither of these questions has an answer in the CBDor the South African legislation.

A more optimistic or flexible interpretation of thisclause would construe the words ‘established rights’as including the recordal of rights established bycustom and/or agreement, which is the manner inwhich the San have proceeded to secure their rightsto Hoodia and Sceletium. This would entail theindigenous peoples engaging in dialogue with theirgovernment, in which they clearly set out theframework and content of such TK rights. And inthis regard, they might choose to frame their rightsin their own terms, rather than to use theterminology and meanings contained in theprevailing intellectual property regime. For example,even though IPRs had been secured by the users,namely the patents taken out by CSIR in the Hoodiacase and by HGH in the Sceletium case, the Sanchose in their negotiations to assert rights resultingfrom their TK, rather than claiming any form ofownership or established IPRs themselves. Similarly,in the Sceletium case the preamble to the agreementdescribed the San rights as dating back for countlessmillennia and the San as the ‘indigenous knowledgeholders’ and thus holders of certain legal rightsrelated to the medicinal uses of the plant known asSceletium tortuosum, an indigenous biologicalresource found in South Africa.

These rights, which may be better described ascustomary legal rights, are determinable and ofpotential value to the TK community. Indigenouspeoples should be expected to ensure that such TKrights are not immorally or illegally claimed byothers, and they are increasingly acquiring thecapacity to articulate and claim their rights. These

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73 It is a matter of debate as to whether this procedural rightrequiring PIC by indigenous peoples should be termed a‘veto right’, or whether it is simply a lesser form of right,namely a procedural right.

74 UNDRIP, note 61 above, Article 10.75 Id., Article 11(2).76 V. Tauli-Corpuz, ‘Our Right to Remain Separate and Distinct’,

in Jerry Mander & Victoria Tauli-Corpuz eds, ParadigmWars: Indigenous Peoples’ Resistance to Globalization 13 (SanFrancisco: Sierra Club Books, 1st ed. 2006).

77 See Dutfield, note 5 above at 95.78 S. Vermeylen, ‘Trading Traditional Knowledge: San

Perspectives from South Africa, Namibia and Botswana’,in Wynberg, Schroeder and Chennells, note 16 at 193. 79 Nagoya Protocol, note 1 above.

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rights do not fit comfortably under the aegis of theterm ownership, and are thus not comfortablycovered by the strict ownership laws that haveevolved in the formal systems of the West.

Similarly, if ownership rights in any form were tobe granted to a TK community, the erroneous effectwould be to purport to afford the community astronger form of right than the sui generis commonpool right that existed before. In other words, theunsellable, inalienable TK, which was previouslyfreely shared and not excluded from others, wouldhave suddenly been deemed able to be privatised,commodified, and sold to the highest bidder. Evenif certain aspects of TK remained secret, such asspiritual components guarded from outsiders, theability of previously unenclosed rights to beprivatised and sold on as commodities requirescareful scrutiny. Community leaders, as custodiansof TK passed down to them, are seldom if everallowed (by their customs and laws) to sell acommodity or resource that was passed down tothem, in the form of trusteeship, and which they inturn are entrusted to pass on to succeedinggenerations. Simply put, a custodian or a trustee isnot entitled to sell the rights to which he or she hasbeen entrusted, and can thus not be termed an owner.

As an additional comment regarding the issue of TKownership, the key issue is thus, who precisely hasthe right to determine access to the knowledge?

In the terminology used by the Aborigines fromAustralasia,80 the core question asked is who ‘speaksfor’ the TK in question? Traditional owners ‘speakfor’ land that is known to be under theircustodianship.81 As the cases above show, it isseldom that any one grouping has an exclusive bodyof rights such as are embodied in the term‘ownership’, and the reality is that the rights to theTK should be viewed in a more flexible manner,appropriate to the ethos surrounding the rights.

Another soft or vulnerable spot in the determinationof TK rights is the requirement, as set out in theNagoya Protocol, that the TK should be associatedwith genetic resources.82 This gives rise to a host ofquestions such as how closely associated should suchknowledge be? Is it sufficiently associated if the TKabout the plant was used traditionally for healing ofblood and general ailments, but a patent is appliedfor to heal specific sicknesses with modern Westernnames?83 And does the existence of broad knowledgeregarding the usage of a plant lead to rights by virtueof the TK association with the specific usage? Someplants are commercially utilised for a totally differentpurpose; for example Pelargonium, which is alsowidely used as a perfume base.84

This article argues that the TK rights of communitiesand consequently the rights to receive benefits fromthe commercialisation thereof are legitimate anddeterminable, but are sui generis rights, different toand distinct from the Western concept ofownership.85 Whilst the CBD acknowledges therights of Contracting parties to give effect to theirown formulation of rights, examples of formulationof such sui generis rights outside the frame andterminology of the prevailing international IPRsystem are few. Furthermore, unlike ownership,which is established in a formal legal system anddefended in a court based upon Western laws, theallocation of TK rights might well benefit from theancient paradigm found in the law of equity, whichevolved in early English law as a bastion againstperceptions of injustice in the common law.86

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80 J. Altman, ‘Benefit Sharing is No Solution toDevelopment: Experiences from Mining on AboriginalLand in Australia’, in Wynberg, Schroeder and Chennells,note 16 above, at 285.

81 T. Rowse, ‘Refiguring ‘Indigenous Culture’’, in J. Altmanand M. Hinkson eds, Culture Crisis: Anthropology and Politicsin Aboriginal Australia (Sydney: UNSW Press, 2010).

82 Nagoya Protocol, note 1 above.83 For example five patents on Asphelatus linearis (Rooibos tea)

by Nestle included a number of medicinal and relatedproperties. The Berne Declaration and Natural Justice opposedthese patents. See Berne Declaration Briefing Paper, ‘DirtyBusiness for Clean Skin: Nestlé’s Rooibos Robbery inSouth Africa’, available at http://www.evb.ch/cm_data/Berne20Declaration-Natural20Justice20Briefing20Paper20Rooibos20 Robbery202720May202010.pdf.

84 Pelargonium is used for geranium oil, widely in demandas a perfume base.

85 C. Correa, Traditional Knowledge and IntellectualProperty: Issues and Options Surrounding the Protectionof Traditional Knowledge, A Discussion Paper (Geneva:Quaker United Nations Office, 2001), available at http://www.geneva.quno.info/pdf/tkcol3.pdf.

86 The word equity has ancient roots, with its origin in theLatin word aequitas meaning just, impartial or fair.

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Equity law has developed new approaches toproblems within the formal legal system, for examplethe apportionment of damages in accordance withthe degree or proportion of wrongdoing, and alsothe provision of novel forms of injunction to ensurejustice.87 Equity developed in the English commonlaw as a set of legal principles separate from andsupplementing the strict rules of the common law,which were then exported in some form to much ofthe Western world.88 In everyday terms, equity issaid to ‘mitigate the rigor of the common law’ andwas introduced precisely to deal with the sort ofunfairness described earlier, and to introduce fairnessinto the legal system. According to ‘Hanbury’s’‘Modern Equity’, the origin of equity was said to be‘in justice, beyond human control’ and ‘older thanany of its characteristics’. Whilst an in depth analysisof the law of equity is not required for this discussion,it is synonymous with flexibility, and securing justiceas opposed to legality.89 In legal systems that followthe English common law tradition, as well as in civillegal systems, the law of equity is thus still very muchpart of the established legal practice.90

A number of maxims or principles of equity havebecome incorporated in law, including the well-known audi alterem partem of procedural law (hearthe other side) and nemo in sua causa iudex (no onemay judge his own case).91 Further comfortingmaxims for aggrieved litigants are ubi ius ibiremedium (where there is a right, there is a remedy)and ‘no man should be enriched to the prejudice ofanother’ (unjust enrichment). What the three case

studies have shown is that each case is different,requiring weighing up of different issues and factsthat do not fit comfortably into modern notions oflaw. It is proposed that discussions on TK rightsbased upon equity as a legal framework are able tosupplement sui generis notions of rights, and to assistparties in arriving at fair agreements.

The San discussions with the Nama took placeoutside notions of law, and in a manner aimed atplacing all possible relevant information on the table.Whilst this aspect was not explicit, it is suggestedthat the ethos and framework that governed thediscussions were guided by notions of equity andfairness, rather than a rights discourse. Historicalinformation, myths, beliefs, and perceptions of thetwo groups were shared on the one hand, togetherwith modern and scientific facts relating to patents,markets and economics on the other. At the end ofthe discussions, an outcome was reached in the formof a binding agreement, which both parties signedand thus regarded as being fair and equitable.92

Similarly, in the San-Nama negotiations, the word‘ownership’ was never an issue. The factors listedabove (historical origin, sharing of TK) werediscussed together with an acknowledgement of thereal contribution made by the Paulshoek andNourivier communities, and the sum total of theshared facts supported the parties in arriving at asolution that was fair and acceptable to both.Agreement without force or persuasion or undueinfluence presupposes that the outcome is, in theview of both parties, fair and equitable. Admittedly,if the two parties were to be badly advised, and wereencouraged to engage with one another in anadversarial manner, the aforementioned peacefuloutcomes would be by no means assured. The abovetwo examples lead to the conclusion not only thatprinciples of equity are useful in the balancing ofcomplex forms of rights, but in addition that suchrights can best be realised in discussions that arefacilitative and non-adversarial in nature.

Indigenous peoples need to be aware of their legalrights, but the very involvement of lawyers in the

Traditional Knowledge and Benefit Sharing - Three Cases from South Africa

87 The Mareva Injunction, or the Anton Pillar order fordiscovery, are examples of equitable injunctions.

88 S. Worthington, Equity (Oxford: Oxford UniversityPress, 2nd ed. 2006).

89 H.G. Hanbury, Hanbury and Maudsley’s Modern Equity11 (London: Stevens and Sons, 1981).

90 For example in America where the federal courts and moststate courts have merged law and equity, the substantivedistinction between law and equity remains vital, whilstmany modern remedies originated in equity law. Followingthe case of Willard v Tayloe in 1869, a leading case on theuse of equity to assist the limits of contract law, the courtdecided that the fashioning of relief to be granted was amatter in the discretion of the court to be decided accordingto the circumstances. See John P. Dawson, ‘JudicialRevision of Frustrated Contracts: The United States’ 64Boston University Law Review 1 (1984).

91 L. Baxter, Administrative Law (Cape Town: Juta, 2nd ed. 1984).

92 The San Nama Agreement was concluded and signed on15 July 2009. The document is unpublished and is on filewith the author.

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process between communities is to tiptoe on perilousquicksand. Legal practitioners trained in theadversarial legal system that supports the players inthe individualistic free market are inclined to see theissue as one of a competition to be won, rather thanan equitable outcome to be sought. Once anintemperate shot has been fired at the other group,framed as the opponents in a competition, it is farmore difficult to frame the matter as a constructiveand collaborative problem-solving exercise. It is clearfrom the positive preambles of the Hoodia and theSceletium benefit-sharing agreements that theseparties had ‘found’ one another, and that they wereable to negotiate in a manner where fairness, ratherthan winning, was the ultimate prize.

The above discussion on the legal and extra-legalissues that are brought to bear in an assessment ofTK holders leads one to empathise with the taskfacing stakeholder parties in relation to the CBD.These are the difficulties that seem to have emergedin a similar form in many other countries, causingstumbling blocks on the road to creating a soundand effective benefit-sharing regime. It is suggestedthat the designated clearinghouse of each state, whichis the Department of Environmental Affairs in SouthAfrica, needs to take account of the fact that TKrights held by communities are sui generis rights,which are more effectively to be determined withinthe procedures and idiom constituting equity, ratherthan of formal law. Where TK communities overlap,such as in the Sceletium case described above, thedesignated clearinghouse should facilitate the typeof discussions that were held between the patentholder, the San and the Nama speaking communitiesof Paulshoek and Nourivier communities.

Empirical research on procedural justice in practicehas supported what is a pervasively innate intuition,namely that the more fair the procedure used todetermine outcomes, the more psychologicallyacceptable the outcomes will be.93 Indeed sometheorists claim that fair procedures are more

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fundamental than fair outcomes,94 namely thematerial manifestations of how the resources havebeen distributed between competing recipients.

Africa has an ancient tradition of discussing mattersin an open-air forum, known as ‘indaba’ in the Ngunilanguage, or a ‘Kgotla’ in the Tswana/Sotho languagegroup. In these forums important issues would bediscussed until consensus, or sufficient consensus,was clearly reached. Time frames imposed bytraditional communities, who have egalitarian andparticipative decision-making structures, need tochallenge the more rigid time frames preferred bycommercial negotiating partners. The result wouldbe a sustainable and equitable agreement.

5CONCLUDING COMMENT

In the Nagoya Protocol, Article 5 requires nationalgovernments to give effect to benefit sharing.However, in order to do so they are required todetermine who are the indigenous and local communitiesthat hold knowledge relating to utilisation of geneticresources. Once TK holders have been establishedwith regard to a particular bio-prospecting case,benefits need to be shared in a fair and equitablemanner in accordance with their respective‘established’ rights. This article has explored someof the difficulties inherent in the apparently simpletasks that make up fair and equitable benefit sharingwith the appropriate TK holders.

The question of who is the TK holding communitybecomes clearer if the entire analysis of rights is donein a fair process and from the perspective of equity.Equity examines all the facts of a case, and apportionsweight appropriately across a range of relevantfactors. Procedures for such discussions inevitablyneed to be more measured and less hasty, in order todeal with the diffuse and less hierarchical decisionmaking procedures of indigenous and local93 R. Folger and J. Greenberg, ‘Procedural Justice: An

Interpretive Analysis of Personnel Systems’, in K.Rowland & G. Ferris eds, Research in Personnel andHuman Resources Management (Vol. 3) 141, 183 (Greenwich, CT: JAI Press, 1985).

94 L.D. Molm, J.L. Collett and D. Schaefer, ‘Conflict andFairness in Social Exchange’ 84 Social Forces 2331 (2006).

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communities. In South Africa, the San, as acknowledgedfirst comers on the continent, were identified asprimary TK holders in the Hoodia and the Sceletiumcases; however, in time such priority should notdetract from the rights of other communities to putforward their claims as holders of relevant TK. Thisprocess has yet to take place within the frameworkof the domestic legislation, which is less than effectivein communicating with and facilitating appropriateprocesses for the indigenous peoples.

The imaginary example of the sharing of the secretcake recipe was proposed above as a means toexamine the flow of TK over time and to emphasisethat such sharing is predicated upon reciprocalacknowledgement and relationships between parties.This article proposes that such forms of knowledge,which are shared in particular ways over centuries,constitute sui generis legal rights, with significantcommercial implications, which are held accordingto the flexible principles of equity. Equity, derivedfrom aequitas or equality in Roman law, is acollection of principles of ancient origin, anddesigned to bring about idealised conceptions of idealjustice and fairness. It is not necessary to pronounceand debate whether these rights are legally definedas ownership, custodianship or other legal rights,although it is proposed that the consequences inpractice are the same.

The veto explicit in the CBD and Nagoya Protocoldoes in fact provide TK holders with one of the mostpowerful criteria that distinguishes ownership fromweaker forms of use rights, namely the right to sayno and thereby prevent use by others. It is suggestedthat the families A, B and C described in the secretrecipe analogy above would, in an equity-framedanalysis, and with the aid of a facilitated process, beable to determine a fair apportionment of theconsequences of such rights without having tosqueeze them into a private property legal paradigm.

Application of the principles of equity would entailassessment of all the complexities discussed above.This includes the nature of the TK, the differentforms and discoveries over time, the known historyof settlement and of sharing, the period for whichthe particular community has held and nurtured theknowledge, the current state of the communitiesincluding leadership structures, and any other factors

with a bearing upon a fair outcome. The degree towhich the TK has become a common pool resourcewith a discernible boundary and governance systemwould become apparent, with logical outcomes forthose that should benefit from its use. An outcomereached after such a process is likely to besustainable, as opposed to one following a legalchallenge where only the litigants are in court, andwhere the judge is only in possession of the factsthat are placed by the parties before the court.

In summary, the unique form of property rights thatsubsist in TK held collectively by communitiesrelating to specific plant forms does not lend itselfto being dealt with under the intellectual propertysystem. Private ownership, as the most significantcharacteristic of the IPR system, is a form ofenclosure anathema to collective knowledgepractices. The law of equity contains the flexibilityand the core principles that enable the issue of rights-holders of TK to be interpreted and managed in amanner envisaged by the drafters of the CBD andthe Nagoya Protocol. Where governments are ableto harness the examples such as provided in the casestudies above, and to implement the allocation ofbenefits based upon equity, the fair benefit sharingaspirations as enshrined and aspired towards in theseimportant legal instruments will become manifest.In the South African context, where these casestudies are situated, the government will for exampleneed to establish flexible and justice-seekingprocesses where competing or overlapping rights ofTK holders can be discussed, allocated anddetermined in accordance with the laws andprinciples of equity.

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