4. Chapter Four : Challenges in Implementing South Africa’s
4.6 Obtaining Prior Informed Consent
4.6.2 The Peruvian Medicinal Plant Sources of New Pharmaceuticals Project
An interesting foreign example of the difficulties that can be encountered in obtaining PIC is a project entitled ‘Peruvian Medicinal Plant Sources of New Pharmaceuticals’. In this project, which ran from 1994 to 2000, and which was funded by four US government agencies under a programme known as the International Co-operative Biodiversity Group (ICBG),409 it soon became apparent that PIC would prove a major challenge.
4.6.2.1 Background
One of the awardees of the ICBG was the Washington University, whose consortium included the Universidad Peruana Cayetano Heredia, the Museo de Historia Natural, Universidad Nacional Mayorde San Marcos, G.D. Searle & Co. (a pharmaceutical firm) and the Aguaruna people.410 The Aguaruna are a large Amazonian population of over 45 000 people, who live in more than 180 communities, most of which are affiliated to at least 13 organizations which are
407Dutfield, G, ‘Protecting the Rights of Indigenous Peoples: Can Prior Informed Consent Help?’ in Wynberg, R et.
al (Eds.) Indigenous Peoples, Consent and Benefit-Sharing: Lessons from the San Hoodia Case, Springer Scientific Business Media B.V. 2009, 53 at 53.
408Ibid at 60. Darrell Posey is an esteemed ethnoecologist and campaigner for indigenous peoples’ rights.
409 This was an innovative programme established by the Fogarty International Centre of the National Institutes of Health, together with the United States Agency for International Development (USAID) with the aim of discovering and developing pharmaceutical and other useful agents from natural products, while promoting sustained economic growth in developing countries and conserving the biological resources from which such products are derived.
Berlin B & Berlin, EA, ‘Community Autonomy and the Maya ICBG Project in Chiapas, Mexico: How a Bioprospecting Project that should have Succeeded Failed’ in Human Organization, Vol. 63, No. 4, 2004, 472 at 474.
410 Lewis, WH & Ramani, V, ‘Ethics and Practice in Ethnobiology: Analysis of the International Cooperative Biodiversity Group Project in Peru’ in McManis, CR (Ed) Biodiversity and the Law, Earthscan, London, 2007, 394 at 401.
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run by the Aguaruna, either jointly with neighboring ethnic groups or alone.411 The project was ethnobotanical in nature in that it involved the use of traditional knowledge of the Aguaruna people, relating to their use of plants for traditional medicine.412
4.6.2.2 Difficulties in Identifying the correct Representative Body
The project leader identified the Organizacion Central de Communidades Aguarunas del Alto Maranon (OCCAAM) as representative of the Aguaruna people and therefore as the potential partner organization.413 Accordingly, it was understood that consent by this organization could have been taken to mean the consent of the entire Aguaruna people. Subsequent to the grant of the award, the project leader was advised to approach a larger, more organized and easier to communicate with organization, the Consejo Aguaruna Huambisa (CAH).414 This was done and a Letter of Intent was entered into with ICBG and CAH regarding annual payments for plant collections and royalties.415 The Washington University then negotiated a formal agreement with Searle, in terms of which the University would receive payments from Searle and thereafter pass a share thereof to CAH.416 CAH objected on the grounds that they were not informed in an appropriate and timely manner of this separate agreement between Washington University and Searle, and that it was made without their direct involvement.417 Once the matter became public, both Washington University and Searle were condemned as biopirates, for failing to be transparent, keeping the Aguaruna out of substantial negotiations and for offering them too small a share of the proceeds.418 A major issue raised was that the CAH did not sufficiently represent the entire Aguaruna population.419
CAH subsequently withdrew from the project, leaving the Consortium without any Aguaruna representation. The Washington University decided to approach OCCAAM, which was happy to enter into a written agreement with the ICBG. OCCAAM and the two other Aguaruna
411 Dutfield, G (n. 407) at 60.
412 Lewis, WH & Ramani, V (n. 410) at 401 -402.
413 Dutfield, G (n. 407) at 61.
414 Rosenthal, J, ‘Politics, Culture and Governance in the Development of Prior Informed Consent and negotiated Agreements with Indigenous Communities’ in McManis, CR (Ed) Biodiversity and the Law, Earthscan, London, 2007, 373 at 377.
415 Ibid.
416 Dutfield, G (n. 407) at 61.
417 Rosenthal, J (n. 414) at 377.
418 Dutfield, G (n. 407) at 62.
419 Ibid.
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organizations were affiliated with a national indigenous peoples confederation, ‘Confederacion de Nacionalidades Amazonicas de Peru’ (CONAP), which became involved in the matter.420 CONAP organized a meeting of community and organization leaders, which included representatives of OCCAAM and several other Aguaruna organizations, representatives of the ICBG Consortium, including Searle as well as other interested individuals. This resulted in the formation of a Consortium made up of CONAP and several Aguaruna organizations, which reached agreement that three representatives could go to Searle’s headquarters to negotiate a contract. A contract was agreed which included a know-how license agreement, in terms of which license fees were to be paid as long as Searle used plant extracts, together with the collective medicinal know-how of the Aguaruna people.421 However, it has been argued that it was presumptuous of CONAP and its associates to agree to license the collective know-how of all the Aguaruna people, particularly since they represented fewer than half the Aguaruna.422 Of further significance is that acceptance by CONAP and its affiliates did not automatically mean acceptance by all Aguaruna Committees and in many instances, individual communities challenged CONAP and its Affiliates’ authority to consent to the project on their behalf. Such communities further refused access to ICBG researchers to work in their communal territory, notwithstanding their association with one of CONAP’s affiliates.423
4.6.2.3 The Complexities involved when putting PIC into practice
Although this project was novel in that it gave a group of indigenous people control and full ownership of their traditional knowledge, all its efforts in putting the PIC requirement into practice resulted in unsatisfactory levels of representation and sharp divisions among the Aguaruna. The project highlighted the fragmented nature of most indigenous communities and the difficulty of identifying the correct representative body, as well as obtaining PIC.424 More importantly, this project highlights that notwithstanding the best intentions and most prudently made plans by users, misperception, confusion, inappropriate marginalization, resentment and even internal conflict can result from endeavoring to put the PIC concept into practice, where
420 Ibid.
421 Ibid.
422 Ibid.
423 Ibid.
424 Lewis, WH & Ramani, V (n. 410) at 409.
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indigenous communities are involved.425 This is particularly so when there is confusion and uncertainty regarding indigenous governance structures and representation.
4.6.2.4 Similarities with a local BSA involving the buchu plant
Locally, we have seen similar issues emerge when a BSA was signed between Cape Kingdom Nutraceuticals (CKN), the South African San Council (SASC) and the National Khoi-San Council (NKC) on 19th August 2013, enabling CKN to use the buchu plant for commercial purposes.426 The BSA acknowledges that, as the primary traditional knowledge holders of the medicinal benefits of the buchu plant, the San and Khoi communities are legally entitled to share in the benefits that result from the commercial development of such plant.427 In terms of the BSA, which was drawn up in accordance with the Biodiversity Act, CKN agreed to share three percent of the profits with the San and Khoi communities.428 However, allegations subsequently emerged from the Khoi organization ‘People of the South’ to the effect that the NKC lacked the necessary mandate from the Khoi people to make the deal.429 In response, Roger Chennells, a lawyer who assisted the NKC with legal advice during the negotiation of the BSA, highlighted that government, by approving the BSA, acknowledged the NKC as the legitimate spokesman for the fractured Khoi community, and that it is in fact due to this recognition that the NKS is placed in a position to benefit from the commercialization of the buchu plant.430
Having regard to the lack of clarity that the BABS Regulations provide in their definition of
‘indigenous communities’, coupled with the generally fragmented nature of indigenous communities, it is most likely that the complexities involved in identifying indigenous governance structures and representation will persist. Successfully satisfying the PIC requirement, particularly in the context of uncertainty and confusion regarding indigenous representation, is undoubtedly challenging and a community-specific process. It is a process that
425 Ibid.
426 Press Release dated 19th August 2013 entitled ‘Cape Kingdom Nutraceuticals signs Agreement with the San and Khoi, Health24, Available at http://www.health24.com/Natural/News/Cape-Kingdom-Nutraceuticals-signs-benefit- sharing-agreement-with-the-San-and-Khoi-20130819. Accessed on 30th October 2013.
427 Ibid.
428 Cape Times news article dated 4th September 2013 entitled ‘National Khoi-San Council comes under fire for negotiating buchu deal’. Available at http://www.pharmacychoice.com/News/article.cfm?Article_ID=1097307.
Accessed on 30th October 2013.
429 Ibid.
430 Ibid.
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progresses over time and is focused on relationship building and establishing trust. The flexibility involved in obtaining PIC from indigenous communities may prove difficult to maintain in the context of the relatively rigid, legal ABS framework of South Africa.