Governance and Micropolitics of Traditional ... - IPRsonline.org

4. THE KNOWLEDGE AND RESOURCES OF INDIGENOUS AND LOCAL
PEOPLES.
During one interview with Professor Yos Santosombat (17 th May 2005), a highly regarded
anthropologist with over a decade of fieldwork with the chao khao (indigenous and
sometimes immigrant ‘hill tribes’ as they are often stereotyped) of northern Thailand, a series
of complicated questions were asked about access and benefit-sharing, prior informed consent
and databases for traditional knowledge. At the end of the sequence of these questions he
remarked:
…Such things do not matter if there is no continued local practice. I worry most about
the disruption of local practice.
Indeed, if traditional practices are lost, then things like databases and genebanks only become
useful as a static source of prior art, or a genetically static sample. So far, the focus of this
paper has discussed government policies and laws which are oriented more towards the
protection of genetic resources and traditional knowledge from misappropriation. However
the day-to-day threats to the livelihood and culture of indigenous and local communities
seem, at times, far removed from these complicated ‘technical’ issues.
This section attempts to address the complexity of traditional knowledge, problems associated
with defining and transferring down-scale some legal notions that are poorly understood for
the ‘local’ context, and threats to continued local practice. The first section discusses
ambiguities over the identity of an indigenous or local community, an examination of the
meaning of traditional practice through a few case studies, an analysis of the propertyresource-intellectual
property nexus, and threats to continued practice.
4.1 Identity of Indigenous and Local Communities
It is rarely clear exactly which groups fit within the scope of ‘indigenous peoples’, no matter
which country. One common difficulty with the distinction is in regards to whether a
dominant population can indeed be considered ‘indigenous’. In Thailand, the word indigenous
is unclear and could refer to the dominant population, or to smaller tribal groups.
It is also often unclear to where the boundaries of a ‘community’ may be extended.
Community has a great deal to do with self-recognition as well as external or trans-local
recognition of the unity of a group of people. Self-recognition may at times be at odds with
external recognition, the fringes of community (in terms of land, population and culture) may
be unclear, and the holism of a communitarian ideal will also be dependant upon
individualism. The internal sense of community may be dislocated by regulatory or forced
actions by government, industry, or other groups. Thus a variable view of community is
essential.
Clearly then, finding legal and practical means for the recognition of indigenous and
community rights must take into account some of these dynamics. Box 4 outlines some of the
definitions that have been used in international law and national laws. The last definition is
that used by the Thai PVP Act such that local communities can register a local plant variety
for protection.
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