4. Chapter Four : Challenges in Implementing South Africa’s
4.6 Obtaining Prior Informed Consent
4.6.3 The Maya International Cooperative Biodiversity Group Project
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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.
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The Maya ICBG encountered opposition due to their approach to PIC and the representation of the indigenous community. A major problem was that while the Maya ICBG intended for benefits to flow to the Maya people, the actual process as to how this would take place was decided by the research community.434 In this regard, the immediate, medium and long-term benefits for the indigenous community were set out in the Benefit-Sharing and Protection of Intellectual Property Agreement prior to the Maya communities being approached regarding the project.435 Accordingly, the major decisions had already been taken without consultation and negotiation with the Maya communities.
4.6.3.2 The concept of ‘community’
In accordance with the requirements of the CBD, the Maya ICBG worked on the basis that
‘community’ referred to a specific, geographically situated socio-political unit, which had to give PIC for the project.436 However, due to the shifting nature of ‘community’ in Chiapas, difficulties were inevitable. The concept of ‘community’ in Chiapas is uncertain and for some it is regarded as an administrative convenience that may not necessarily bear any relationship to local residential patterns or social organization.437 It has been argued that the Chiapas ethnic identity is initially determined by a person’s membership to a ‘municipality’ and thereafter by such person’s identification with a specific ‘community’. 438 Notwithstanding Chiapas communities being located within specified municipality boundaries, as recognized by Mexican law, due to the Maya traditions of village autonomy, municipal government authorities usually have no power in respect of bioprospecting related matters.439
The lack of an established, credible and broadly representative governance system of the Maya people was the key to the demise of the Maya ICBG project.440 The Maya ICBG project attracted negative publicity and was viewed as biopiracy; essentially due to questions being raised regarding the validity of the community agreements entered into with the indigenous
434 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 478.
435 Feinholz-Klip, D et al (n. 431) at 321.
436 Ibid at 319.
437 Ibid at 318.
438 Ibid.
439 Rosenthal, J (n. 414) at 381.
440 Berlin B & Berlin, EA (n. 434) at 481.
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communities and whether such communities were adequately and correctly represented.441 Other areas of concern that emerged pertained to the quality and completeness of the information furnished to communities; particularly in the light of the Maya ICBG withholding information regarding patents and certain risks of bioprospecting.442
4.6.3.3 Efforts to obtain PIC
During their negotiation with communities regarding PIC, researchers invited community members to watch presentations about the project, in the form of a theatrical performance, which involved a narrator who described, in native languages, a series of mimed skits performed by project members.443 Such skits included an introduction of the project’s overall goals, as well as each component of the project’s activities, its aims, objectives and potential benefits.444 In addition, community leaders were taken on a tour of the herbarium, laboratory facilities, as well as the experimental gardens and they were also provided with written summaries of the projects goals, activities and proposed benefit-sharing program, in various native languages. 445 Notwithstanding the above endeavors in negotiating PIC, the project failed due to a lack of trust and adequate representation. The establishment of a comprehensive, ‘credible and broadly representative governance system of indigenous communities’446 in Chiapas, to which PIC requests could be directed and the recognition that a project of this nature was required to be built on the gradual establishment of trust and collaboration among stakeholders, was essential and unfortunately, lacking.
Like many other indigenous communities, the Maya people and their cultural traditions suffered at the hands of colonialism and these inevitably affected conditions for trust.447 Issues of trust and representation will undoubtedly always complicate benefit-sharing, with particular regards to indigenous communities and accordingly, a PIC process that progresses over time and is focused on relationship-building is essential. The Maya ICBG Project reveals that even the most sincere and elaborately planned efforts to obtain PIC can lead to unforeseen complications and can
441 Feinholz-Klip, D et al (n. 431) at 323.
442 Ibid.
443 Berlin B & Berlin, EA (n. 434) at 477.
444 Ibid.
445 Ibid.
446 Rosenthal, J (n. 414) at 386.
447 Feinholz-Klip, D et al (n. 431) at 326, as well as Berlin B & Berlin, EA (n. 434) at 479.
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ultimately, fail. As a result of the negative publicity and allegations of biopiracy, the local researchers decided to halt bioprospecting until such time as the indigenous communities had established a formal authorized representative body to represent and protect their interests; and administrative as well as legal mechanisms and procedures were in place for obtaining PIC.448 Hence, it was recognized that an organization that was representative of the indigenous communities and which would assume the responsibility of facilitating information and discussion in the PIC process, was a major failing of the project.
4.6.3.4 The progressive nature of obtaining PIC
It is essential to recognize that obtaining PIC is not a quick, one-off process but rather a progressive one, which depends largely on collaboration with local intermediaries and support organizations.449 Although PIC remains essential, a certain level of flexibility is required when dealing with indigenous communities, as circumstances vary from community to community.450 Both users and indigenous communities must ideally approach the challenging PIC process with versatility, in order to adapt to varying circumstances and be dedicated to building relationships over a period of time. Ultimately, parties desiring access to traditional knowledge and genetic resources of indigenous communities must make sustained efforts to build long-term relationships with the relevant indigenous communities and in so doing, will minimize the potential for exclusion and misunderstandings.451