PACIFIC GENES & LIFE PATENTS

Transcription

1 PACIFIC GENES & LIFE PATENTS Editors: Aroha Te Pareake Mead and Steven Ratuva PACIFIC GENES & LIFE PATENTS Pacific Indigenous Experiences & Analysis of the Commodification & Ownership of Life Editors: Aroha Te Pareake Mead and Steven Ratuva

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3 Published in 2007 by: Call of the Earth Llamado de la Tierra and The United Nations University Institute of Advanced Studies ISBN X Note from the Publishers: Call of the Earth Llamado de la Tierra is an international indigenous initiative on cultural and intellectual property policy committed to profiling indigenous authors who analyse cultural and intellectual property issues affecting their communities, peoples and regions. For further information refer to: The United Nations University Institute of Advanced Studies is one of a number of research and training centres and programmes spread around the world that are part of the UNU system. The Institute is committed to contributing creative solutions to key emerging issues of global concern. For further information refer to: The opinions expressed herein remain those of the authors and do not necessarily reflect the views of the organizations that have provided support for this publication

4 Copyright: This publication has been produced as an educational resource and is copyrighted under a Creative Commons Licence Creative Commons is a copyright that sits between full copyright (all rights reserved) and the public domain (no rights reserved). Creative Commons is a some rights reserved copyright. This publication is licensed under Licence 2.5 Attribution-Non-Commercial-No.Derivs Copyright for the whole publication is vested with Call of the Earth Llamdo de la Tierra Copyright for each individual contribution of chapters and/or photos, is retained by the individual authors and/or photographers Readers are encouraged to use, copy and circulate the information and to translate into other languages, as long as; (i) authors and photographers and the publication as a whole are duly attributed and cited; (ii) no part of the publication is used for commercial purposes (including on-selling); and (iii) None of the works are to be altered or transformed. Cover Design: Len Hetet / Ocean 64 Limited Layout Design: Len Hetet / Ocean 64 Limited Printed by: Red-i Cover Images: top, kava ceremony, Macuata, Fiji (Brent Stirton/WWF-Pacific) bottom, woman from the Pinai tribe, PNG (PNGIMR Copies available from: Call of the Earth Llamado de la Tierra Aroha Te Pareake Mead Maori Business, Victoria Management School Victoria University of Wellington PO Box 600, Wellington, New Zealand aroha.mead@vuw.ac.nz or through: info@earthcall.org

5 The publishers acknowledge the financial support of; Nga Pae O Te Maramatanga, New Horizons of Insight, the National Institute of Research Excellence for Maori Development & Advancement, NZ Victoria Management School, Victoria University of Wellington, NZ The University of the South Pacific, Pacific Institute of Advanced Studies in Development and Governance

6 CONTENTS 6 Preface, Professor A.H. Zakri, Director, UNU-IAS 8 Foreword, Editors Aroha Te Pareake Mead & Steven Ratuva 14 Biographical Details of Authors SECTION ONE AOTEAROA/ NEW ZEALAND 23 Jessica Hutchings Is Biotechnology an Appropriate Development Path for Maori? 34 Aroha Te Pareake Mead The Polynesian Excellence Gene & Patent Bottom-Trawling 60 Paul Reynolds The Sanctity and Respect for Whakapapa: The Case of Ngati Wairere & AgResearch 74 Linda Tuhiwai Smith Getting The Story Right Telling The Story Well, Indigenous Activism Indigenous Research COOK ISLANDS 82 Te Tika Mataiapo - Dorice Reid Pig Cell Guinea Pigs - an Experience of Xenotourism: The Proposed Diatranz Experiment in the Cook Islands FIJI ISLANDS 90 Steven Ratuva Na kilaka a vaka-viti ni veikabula: Indigenous Knowledge and the Fijian Cosmos: Implications on Bio-Prospecting 102 Joeli Vakabua A Fijian s Perspective on the Use and Ownership of Intellectual Property HAWAII 114 Le a Malia Kanehe From Kumulipo: I Know Where I Come From - An Indigenous Pacific Critique of the Genographic Project 130 Walter Ritte & Le a Malia Kanehe Kuleana No Holoa (Responsibility for Taro) Protecting the Sacred Ancestor From Ownership and Genetic Modification

7 PAPUA NEW GUINEA 138 Alphonse Kambu An Analysis of Legal, Policy & Ethical Issues in Papua New Guinea Post-Hagahai 150 Eric L Kwa In the Wake of the Hagahai Patent: Policy & Legal Developments on Gene Ownership and Technology ROYAL KINGDOM OF TONGA 166 Sister Keiti Ann Kanongata a Autogen and Bio-Ethics in Tonga: An Ethical and Theological Reflection 172 Lopeti Senituli Ngeia o e Tangata - It s About Human Dignity SAMOA 178 Clark Peteru The Mamala Plant Patent 184 Clark Peteru Comments on The Pacific Regional Model Law on Traditional Biological Knowledge, Innovations & Practices VANUATU 190 Chief Viraleo Boborevanua and Motarilavoa Hilda Lini Vweu I Nagolumun Rahuana - Safeguarding Genetic Inheritance - Turaga Experience SECTION TWO PACIFIC INSTRUMENTS RELATING TO GENES AND GENE PATENTS 197 The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (1993) 201 Treaty For A Lifeforms Patent-Free Pacific And Related Protocols (1995) 214 United States Patent 5,397,696. Yanagihara, et al. March 14, 1995 Papua New Guinea human T-lymphotropic virus (1995) 237 Traditional Biological Knowledge, Innovations And Practices Act (2000) 245 Statement Of Bioethics Consultation Tonga National Council Of Churches Centre Nukuoalofa, Tonga (2001) 249 Model Law For The Protection Of Traditional Knowledge And Expressions Of Culture (2002) 262 Paoakalani Declaration (2003)

8 PREFACE Many international organizations are seeking to engage with indigenous communities in a mutually beneficial relationship, and in ways that enable indigenous communities to have greater visibility in national and international processes affecting them. Call of the Earth, Llamado de la Tierra (COE) is a global initiative on indigenous intellectual property policy that is wholly indigenous and has as one of its major aims the profiling and publication of indigenous analysis on cultural and intellectual property issues. The United Nations University Institute of Advanced Studies (UNU-IAS) is fortunate to have established a collaborative relationship with COE in It is through this collaboration with COE, that UNU-IAS has been able to contribute to this groundbreaking publication on Pacific Genes and Life Patents. The South Pacific is a unique and highly complex region that has the world s largest ocean and is home to some of the greatest cultural, linguistic and biological diversity in the world. It is also a region where the majority population is indigenous and still retains much of their traditional knowledge and the values of their communities. The cultural and biological diversity of the region however is under threat due to a series of factors, including population growth, over-fishing and poverty. As a region, the Pacific has experienced more than its fare share of external experimental research that has resulted in the commodification and misappropriation of important components of their ancestral inheritance. For others, it might be difficult to understand how a plant could be regarded as a living ancestor, or that human blood retains its life spirit even after it has been collected for medical research and synthesized and isolated for specific DNA qualities. Such values are still very much a part of the daily lives and analysis of Pacific communities. This publication provides the first of its kind report on specific cases that have been experienced by Pacific communities in Polynesia and Micronesia. First of a kind because the case examples are written by Pacific indigenous writers who are from the communities affected and/or were actively involved in the resultant community responses.

9 It is the aim of this COE and UNU-IAS report to provide to students, policy analysts, legislative drafters, biotechnology companies, patent owners and indigenous communities an educational resource that documents and records Pacific responses to genetic research and products and patents on life forms. It is hoped that readers will gain a greater understanding of and respect for the views of Pacific communities. The United Nations University Institute of Advanced Studies (UNU-IAS) was established in 1996 as a research and training centre of UNU to undertake research and postgraduate education on emerging issues of strategic importance for the United Nations and its Member States. Pursuant to its Statute, UNU-IAS undertakes its work in an independent, neutral and objective manner. A key purpose of the Institute is to promote interaction between the UN System and other bodies. Collaboration with Call of the Earth on this Pacific report fits comfortably within the Institute s wider programme on traditional knowledge and biodiversity, which includes initiatives on traditional communities ability to adapt to climate change and traditional management of wetlands. The programme is also working with Call of the Earth to examine certificates of origin for traditional resources and associated knowledge. Professor A H Zakri Director, United Nations University, Institute of Advanced Studies, Yokohama, Japan

10 FOREWORD Considering that traditional and local knowledge systems, as dynamic expressions of perceiving and understanding the world, can make, and historically have made, a valuable contribution to science and technology, and that there is a need to preserve, protect, research and promote this cultural heritage and empirical knowledge, The nations and the scientists of the world are called upon to acknowledge the urgency of using knowledge from all fields of science in a responsible manner to address human needs and aspirations without misusing this knowledge. Excerpts from the UNESCO Declaration on Science and the Use of Scientific Knowledge, 1999 This book has been developed to inform the global audience at large on biotechnology and cultural and intellectual property issues in the Pacific. In addition, it seeks to provide guidance for Pacific policy makers, advice and caution for bio-pirates and inspiration for young Pacific scholars and activists who are eager to transform things for the better for future generations. This book comprises the offerings of sixteen indigenous Pacific writers and presents the first publication of its kind in the region in terms of profiling the direct experiences of Pacific indigenous communities who have had an acrimonious encounter with science, biotechnology and intellectual property rights from inside the communities concerned. It records these events and the efforts Pacific activists and communities have gone through in order to put right research, policy and legislation that has either gone askew or was not developed to adequately and appropriately address the issues that come about when science, culture and property rights interface. As with any endeavour, there was a process behind this publication and a significant number of supporters who brought this work to fruition. It is only appropriate to acknowledge them. In June 2005, a small gathering of Pacific activists was convened in Suva, Fiji. The Suva gathering brought together a unique collective of inimitable individuals whose passion for the specific issue of commodification and ownership of life is only eclipsed by their unwavering commitment to the integrity of their communities and peoples, as well as to the Pacific as a socio-political cultural and physical region. The participants had all directly participated in community and national interventions of government and/or foreign ownership assertions over genetic information and materials of Pacific indigenous peoples and other cultural resources.

11 The purpose of the Suva meeting was threefold: (1) To provide a forum to take stock of the incidences that have occurred in the Pacific concerning genetic research and life patents that have required activism and community intervention; (2) To reflect on the degree to which past experiences have informed policy and legislation at community, national, regional and international levels; and (3) To promote research and publication as a constructive tool to increase awareness of Pacific indigenous issues, analysis and visions at local, national, regional and international levels. The meeting was organised by the Pacific caucus of Call of the Earth Llamado de la Tierra, a global initiative on indigenous cultural and intellectual property policy, in partnership with the Pacific Institute of Advanced Studies in Development and Governance of the University of the South Pacific, and the World Council of Churches Pacific Desk. This partnership brought together an indigenous network specializing in intellectual property issues, an academic institution very active in the region and the Churches who play a fundamental role in Pacific communities. The collaboration came through a network of personal relationships, typical of how things are often done in the Pacific. As such, the Editors wish to acknowledge the following members of the Suva Organizing Committee: Kingi Gilbert, Te Tika Mataiapo Reid, Clark Peteru, Rahera Smith and Feiloakitau Tevi without whose efforts it would have been difficult to bring this particular gathering together. Regional meetings can only occur when there is sufficient financial backing as the Pacific is a very expansive and expensive region in which to bring people together. Likewise, a publication of this nature also requires financial and in kind support. We therefore acknowledge with thanks the following organizations that contributed to the Suva meeting and/or to this publication; Call of the Earth Llamado de la Tierra, Nga Pae o te Maramatanga National Institute of Research Excellence in Maori Development, Pacific Institute of Advanced Studies in Development and Governance of the University of the South Pacific, United Nations University Institute of Advanced Studies, United Nations Environmental Programme UNEP, United Nations Development Programme UNDP, Victoria Management School Victoria University of Wellington, World Council of Churches Pacific desk, and IUCN Commission on Environmental Economic & Social Policy Theme on Culture & Conservation. Activists tend to be stereotyped as anti-government trouble makers, but activism takes many forms, and activists themselves transform into many different career paths over time. Activists are people who care and are confident enough to articulate their views even if they are contrary to government policy and/or public consciousness. Activists are family and community members who take on many career roles including being family, community, village, tribal or national leaders. Activists can also be members of parliament, public servants, academics, media, environmental and socio-cultural-political

12 10 networks, business and community workers. Activism is not about the title or status of a person, rather it is about the values and beliefs they hold to be irrefutable. Some of the Suva participants wanted a Declaration or Statement to come forward from the meeting as it became apparent very early in the proceedings, that Pacific communities have suffered and been traumatized by the lack of regulation and control over unethical research and intellectual property assertions for many years, and very little progress has been made to address these issues. The Pacific has a strong record of developing powerful Declarations over the years and many of these are profiled here in this publication. It was always the vision of the Suva meeting to turn activism into reflective writing and produce a publication that could be distributed to a wider global audience. This is how this publication has come to be. Special thanks to the contributing authors who were willing to share their analysis. The book is divided into two major sections. The first section consists of country-based articles and case studies and the second section is a collection of formal instruments and agreements related to genes, gene patents and intellectual property rights in the Pacific. Aroha Te Pareake Mead sets the tone by providing a comprehensive overview and analysis of the situation of biotechnology in the Pacific, in particular with how it is linked to commercial activities, use of patents and other intellectual property mechanisms to facilitate, promote and protect outcomes and products. Mead makes the strong point that commodification and ownership of life through intellectual property systems are not compatible with many Pacific cultural values and norms. This strand of argument is taken up and reinforced further by Jessica Hutching s, article which problematizes the growing discourse on the relationship between biotechnology and Maori development. Despite using the ideological cloak of development and progress the deployment of biotechnology and subsequent claims to intellectual property rights (IPR) if not properly managed could be tantamount to intellectual cultural piracy. Paul Reynolds provides a detailed account of the opposition by the Ngati Wairere sub-tribe (hapu) in the central North Island of Aotearoa to AgResearch, a government research agency, which attempted to place copies of human genes into cows to produce a human-cow hybrid. The opposition was based on the concern about lack of consultation with local communities and the impact this type of research will have on whakapapa (genealogy). The case provided a platform for future consciousness raising on biotechnology amongst Maori. The issue raised by Reynolds manifests a fundamental contradiction between reductionist scientific research and local indigenous discourses. Nevertheless, engaging research and activism in mutually engaging ways within the broader indigenous context could provide the way forward for indigenous empowerment as Linda Tuhiwai Smith argues. Decolonizing methodologies for indigenous research and how this can be used to reinforce indigenous activism and vice versa is one of the major challenges to enable indigenous communities to achieve cultural sustainability and self-realization in the face of globalization and cultural hegemony.

13 11 In the article on the Cook Islands, Te Tika Mataiapo-Dorice Reid asks the question which resonates throughout the book: Are the lives of indigenous people less important than those of others? This is in reaction to a case where the Cook Islands government agreed in principle in 2002 to allow Diatranz Ltd a New Zealand company to commence xenotransplantation [human and pig] experimentation in the Cook Islands without consultation and without the informed consent of the people. This is a classical example of how biotechnology can be used for ethically questionable practices. The debate regarding the implications of biotechnology and bioprospecting on indigenous identity and cultures is taken up by Steven Ratuva in his assessment of the need to put in place legal mechanisms which recognizes indigenous Fijian knowledge and cosmology. Ratuva s analysis focuses largely on the holistic relationship between the environment, Fijian epistemology and cosmology and how the fine balance between these could be undermined by bioprospecting. The next chapter by Joeli Vakabua reinforces Ratuva s point further by arguing for the need for the embedment of intellectual property rights and ownership of resources in the hands of the landowners. Vakabua also argues for recognition of rights of other stakeholders such as farmers, breeders, designers and composers as crucial aspects of IPR. The ethics of human genetic research is discussed in a comprehensive way by Lea Malia Kanehe of Hawaii. The article is a critique of the National Geographic sponsored Genographic Project which attempted to collect and analyze 100,000 DNA samples to trace the origin and links between human groups. Kanehe s argument is that a genome map does little to inform indigenous peoples about themselves culturally because we know who we are and where we come from. The next article is a joint piece authored by Walter Ritte and Le a Malia Kanehe on the contentious issue of genetic modification of taro in Hawaii. It looks at the circumstances surrounding the attempt by the University of Hawaii s College of Tropical Agriculture and Human Resources to genetically modify Hawaiian taro. One of the significant messages of the chapter is the need for scientists to have more respect and sensitivity for the sentiments of the indigenous people who have been guardians of local crops like taro for hundreds of years. Modifying and patenting Hawaiian taro tantamount to modification and commodification of the spirit of ancestors. Alphonse Kambu provides an overview of some of the shortcomings associated to scientific research and development in Papua New Guinea, especially in relation to the Hagahai patent case which involved removal and patenting of genes belonging to the Hagahai people by Dr Carol Jenkins a US medical researcher. The case provides some important lessons for other Pacific communities to learn from especially in the areas of effective communication between stakeholders, lack of understanding of the benefits and inadequacy of the law. The case of the Hagahai is further elaborated on by Eric Kwa who explores the legal aspects of the case. While the legal system may have changed in response the Hagahai case, there are still ambiguities and lack of political commitment on the part of the government. A lot still need to be done to sort out the legal gaps and protect the PNG people from further genetic piracy. Clark Peteru from Samoa provides two contributions. The first one is about the agreement between the Samoan government and the University of California at Berkely in relation to the mamala plant. Peteru puts the case forward that indigenous land-owners and Pacific governments need to take a critical and

14 12 long-term view to negotiating with foreign researchers. Access to genetic resources of plants, and the equitable sharing of benefits of the use of biodiversity and associated traditional knowledge is the subject of intense international debate. In the second section of the book, Clark also provides an annotated version of the Pacific Model Law on Traditional Biological Knowledge, Innovations and Practices. Lopeti Senituli s article documents civil society responses to attempts at biopiracy from a regional activist s point of view. The first case relates to the attempt in 1995 by the University of the South Pacific to sign an agreement with Smith Kline-Beecham a pharmaceutical conglomerate to extract bio-diversity material from two locations in Fiji. The other case involves the Australian company Autogen Ltd which signed an agreement with Tonga s Ministry of Health to identify and extract Tongan genes for the purpose of identifying causes of common diseases such as diabetes. The other article on Tonga by Sister Keiti Ann Kanongata a provides a theological view of the Autogen project, especially the relationship between bio-ethics, human values and human dignity. The last article by Chief Viraleo Boborenvanua and Motarilova Hilda Lini provides an alternative framework for indigenous living in the face of globalization. The Turaga Nation is an attempt to recapture traditional philosophy, governance and economics in an applied way as a means of maintaining social coherence and sustainability in the face of the dominant market economy and cultural values. The chapters are deliberately organized to engage with each other in a dialogue, yet retain their own independent voices. Each has its own voice echoing across the Pacific space and conversing with each other without being restricted by any mechanical editorial template. This is one of the intended strengths of this volume. The authors articulate their own voices in ways which are specific to their own context. Some of these voices have been marginalized and have struggled to enter into scientific and legal discourse on biotechnology and bioethics. The dominant reductionist science separates components of life into isolated entities which can be manipulated and commodified, however, one has to be conscious of the fact that those isolated entities are still part of the human environment from which they are extracted. Respect for the human values and spirit must remain a paramount consideration both in symbolic and practical terms. The book represents - both in a symbolic and practical way - the need to contest dominant discourses in their own terms not as a mere intellectual, ideological or political exercise for its own sake but as a means of articulating subaltern voices and finding a respectable niche in the domain of global discourse. This is important for small Pacific communities who have historically been nothing more than objects of romantic image-making for novelists and tourist brochures. This is especially so as a form of empowerment and self-actualization for indigenous communities who have been at the receiving end of cultural hegemony and marginalization. Hopefully this book will provide space and visibility for Pacific activists and communities to contribute to on-going national, regional and international discussions on the ethics of science, biotechnology and the commodification and ownership of life through intellectual property rights. Aroha Te Pareake Mead Steven Ratuva