BIODIVERSITY andfile/ab9d2... · 2013. 12. 9. · BIODIVERSITY AND INDIGENOUS KNOWLEDGE SYSTEMS...

BIODIVERSITY andINDIGENOUS KNOWLEDGE

SYSTEMS in Malaysia

EditorsCOLIN NICHOLAS

JANNIE LASIMBANG

Report of a Roundtable Meeting

On the cover, Toqk, with his forehead smeared witharomatic sap from the inner bark of a tree used in curingheadaches, identifies yet another plant with medicinalproperties. Like most of the Chewong in the Krau area,Toqk is not only able to identify the treasure trove ofmedicinal plants and other useful products in his foresthome, he also relies on them in his daily living.

Above, a Semai man goes through the final stages ofthe tedious process involved in preparing the ipoh dartpoison used when hunting with the blowpipe. The poisonhas potential applications in medicine because of themanner it works on the nervous system and on the heart.

Indigenous peoples are holders of a wealth ofknowledge on the usefulness of the numerous biologicalresources in their forest homelands. This knowledge hasbeen transmitted and expanded upon through thegenerations. Society can also benefit from this wisdomand experience. But the sharing has to be on terms thatare equitable and that will benefit humanity. This reportlooks at why this is generally not the case and suggestsways by which the issues can be addressed.

Published byCENTER FOR ORANG ASLI CONCERNS

forJARINGAN ORANG ASAL SEMALAYSIA(INDIGENOUS PEOPLES NETWORK OF MALAYSIA)

ISBN 983 40042 9 X

BIODIVERSITY AND INDIGENOUSKNOWLEDGE SYSTEMS

Deliberations at the National Roundtable on

BIODIVERSITY andINDIGENOUS KNOWLEDGE

SYSTEMS in Malaysia

EditorsCOLIN NICHOLAS

JANNIE LASIMBANG

CENTER FOR ORANG ASLI CONCERNSfor JARINGAN ORANG ASAL SEMALAYSIA

SUBANG JAYA • 2004


Printed byVinlin Press Sdn BhdKuala Lumpur • Malaysia

Cover • Design • LayoutCN/COAC

PhotographyCOLIN NICHOLAS

ISBN 983 40042 9 X

Published byCenter for Orang Asli ConcernsP.O. Box 305247590 Subang Jaya • MalaysiaEmail: [email protected]

forJaringan Orang Asal SeMalaysia(Indigenous Peoples Network of Malaysia)c/o PACOSP.O. Box 51189057 Penampang • Sabah • MalaysiaEmail: [email protected]

BIODIVERSITY AND INDIGENOUS KNOWLEDGE

SYSTEMS in Malaysia


cont

ents

Deliberations at the National Roundtable on

BIODIVERSITY andINDIGENOUS KNOWLEDGESYSTEMS in Malaysia

Background to the Roundtable, 5

Conflicts with Indigenous ResourceManagement, 7

Indigenous Knowledge Systemsand Biodiversity Preservation, 9

The Community Position, 13

Orang Asli of Peninsular Malaysia:Biodiversity and the Survival ofIndigenous Identity, 13Anak Negeri of Sabah:Towards the Recognition ofTraditional Knowledge, 17

Dayak and Orang Ulu Of Sarawak:Our Resources, Our Life and Our Heritage, 20

The Government Position, 23

Protecting Indigenous Knowledge, 27

Legislative Options, 31

Policy Responses Required, 33

Recommendations and Resolutionsby the Indigenous Community, 35



BACKGROUNDTO THE ROUNDTABLE1

The indigenous peoples of Malaysia live in areas thatare rich in biodiversity. These areas, once regarded as hostileand unproductive hinterlands by the mainstreamcommunity, are today much sought after for their naturalresources, or simply for their lucrative or exotic locations.Because external opportunistic interests are widespread,indigenous communities have been dispossessed from theirtraditional territories or have experienced their traditionalenvironments being degraded by others.

Today, it is widely known that the rich diversity of ourbiological resources – especially those in the traditional landsof indigenous communities – can bring immense profits totheir exploiters. However, because indigenous peoples havean enviable body of traditional knowledge that can helpbio-resource seekers narrow their search for potential

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biological “goldmines” – and therefore enjoy great savingsin their capital and research outlays – these bio-prospectorsare now compelled to interact with indigenouscommunities.

The National Roundtable on Biodiversity and IndigenousKnowledge Systems was therefore organised to bringtogether the various stakeholders interested in maintainingthe country’s rich biodiversity. The goal was to explore thelinks between indigenous knowledge, biodiversity andindigenous lives so that governments, the private sectorand academia can better appreciate, and fairly reciprocate,the knowledge and resources of the indigenouscommunities.

The roundtable was held on 7th and 8th March 2001 atthe Law Faculty of the University of Malaya, Kuala Lumpurand was attended by almost 60 representatives from theindigenous communities as well as from the government,non-governmental organisations and academia. It wasjointly organised by the Indigenous Peoples Network ofMalaysia (Jaringan Orang Asal SeMalaysia, JOAS) and theLaw Faculty of the University of Malaya, with financialsupport from the Minority Rights Group, London.

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Indigenous resource management, with its fund ofintricate knowledge gained over generations, has beencentral to the conservation of resources in indigenouspeoples’ territories. The current global environmental crisishas even caused some people who advocate sustainabledevelopment and living to turn to indigenous peoples’knowledge, innovation and practices on biodiversityconservation for important answers.

However, resource management is only one part of aninter-locking system governing the way of life of indigenouspeoples. This system also ensures the continued survivalof communities as a whole. Without doubt, all indigenoussystems – judicial, social, economic, cultural, political,religious, agricultural, technological, and also health andthe arts – are crucial in ensuring the holistic development

CONFLICTS WITH INDIGENOUSRESOURCE MANAGEMENT2

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and well-being of the community. Internal conflicts – suchas disputes on land ownership and control, or the violationof community regulations on resource management – arewithin the experience and capacity of most communitiesand are consequently dealt with easily using customarylaws and traditions.

However, indigenous resource management is no longerdictated merely by internal factors but is instead increasinglydictated by external ones. External conflicts, in particular,are more difficult to resolve as they involve outside actorswho challenge the rights of indigenous communities tocontrol and manage their own resources.

These outside actors encroach on, and often appropriate,indigenous lands, thereby directly threatening, for example,the continuity and viability of indigenous social systems.Or the outsiders, using indigenous knowledge, gobioprospecting in indigenous areas for wealth-bringingresources – and, when successful, invariably exclude theindigenous communities from an equitable share of returnsand benefits.

The Roundtable Meeting looked at some of these conflictsand sought ways by which indigenous communities couldstrengthen cooperation between government, the privatesector and academia in order to protect the indigenousresource base, as well as to acknowledge the integrity ofthe indigenous system of resource management.

The roundtable also sought to resolve some of these issuesand discussed initiatives by some communities to setprotocols in dealing with some of the external conflicts.

The roundtable further examined the extent to which thedominant legal system has been effective in resolving issuesrelated to resource management. Improvements to the legalsystem were considered that would incorporate principlesand practices found in the traditional indigenous legalframework.

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“The planet is delicately balanced. All life forms fromthe minutest micro-organisms to humans, in variedecosystems, are self-regulating, yet interconnected andworking in concert, in a complex web of relationships tocreate and maintain conditions conducive to life. Theserelationships are well understood by indigenous peoples.”So began the keynote address of University of Malaya LawProfessor, Gurdial Singh Nijar.

He added that indigenous peoples maintain a symbioticliaison with their habitat. Their survival, in fact, dependson their ability to live creatively off nature even as theyhelp sustain it. This creativity is reflected in the body ofknowledge they have developed to conserve and carefullyutilise the rich biological diversity that abounds on thisplanet. This is the creativity that has healed, fed and clothed

INDIGENOUS KNOWLEDGE SYSTEMSAND BIODIVERSITY PRESERVATION3

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the world, and still continues to do so.The knowledge of indigenous peoples is often enshrined

in rituals, ceremonies and magic, thus underlining howculture, language, religion, psychology and spiritual beliefscannot often be separated from their understanding of thenatural world. This knowledge has passed throughgenerations and assures the survival of the forestenvironment, its component parts, and the people andcultures dependent upon it and the ecosystem as a whole.The ethos, in the main, of indigenous knowledge is holisticand ecological. It takes into account, and relies upon, thecomplexity of interrelationships of all that exists.

It comes as no surprise therefore that among the 120 activecompounds currently isolated from the higher plants andwidely used in modern medicine today, 75 per cent show apositive correlation between their modern therapeutic useand the traditional use of the plants from which they arederived. More than two thirds of the world’s plant species– at least 35,000 of which are estimated to have medicinalvalue – come from the developing countries. At least 7,000medical compounds in the Western pharmacopoeia arederived from plants. In Malaysia alone, as early as the 1960s,

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at least 500 local plants used by the indigenous peopleswere documented to have economic or medicinal properties.The economic returns from such traditional discoveries arealso not insignificant. According to Rural AdvancementFoundation International (RAFI) estimates, US$32 billionof sales of pharmaceuticals worldwide are based ontraditional medicines.

Indigenous knowledge and practices pertaining tomedicinal plants are of particular relevance to Malaysiabecause of her desire to be a global player in the natural-products sector. Proponents see opportunities in the risingdemand for speciality natural products, especially in theprimary health care and cosmetics arena. They point to twoof Malaysia’s many strengths: the plants growing in herforests and the local know-how about the myriad uses ofmedicinal plants.

Indeed, the creation of a depository of knowledge on thetraditional uses of tropical herbs among Malaysians hasbeen suggested as a way of expanding productdevelopment. Many allude to the unique confluence ofAsian health traditions found in Malaysia and say this

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cumulative knowledge could be used to advantage. Theysuggest that a continuous effort be made to document thatknowledge to build up a rich database of medicinal plantapplications. However, although many of these actorsrealise that the source of the “local know-how” has actuallycome from the indigenous peoples themselves, there is noconcrete mechanism in place which ensures that theindigenous communities are able to participate directly andbenefit equitably from the gains to be made from the use ofthe cumulative knowledge which they have acquired formillennia.

On the contrary, the tendency has been for mainstreamsociety, particularly researchers and bio-prospectors, toappropriate indigenous knowledge for commercial gain.

“It should not become another commodity,” saidProfessor Gurdial, who is also with the Third WorldNetwork. “You must draw a balance between thecommodification of indigenous knowledge and theundermining of that knowledge itself.”

How then can the alternative knowledge system ofindigenous peoples be reasserted? Professor Gurdial feltthat the first move must come from the national governmentand from those who determine national policy. They mustshow themselves to be genuinely concerned about ensuringjust and equitable recognition and recompense of the gainsderived from indigenous knowledge.

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Three position papers were presented by representativesof indigenous communities from each of the three regionsof Malaysia. The papers were prepared after consultationwith indigenous representatives from the various regions.

THE COMMUNITYPOSITION4

The Orang Asli (literally original or first peoples) consistsof three main groups, namely the Negrito, Senoi andAboriginal-Malay. Of the 134,000 Orang Asli in thepeninsular today, 88.7 per cent live in the interior and forest

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ORANG ASLI OF PENINSULAR MALAYSIABiodiversity and the Survival of Indigenous IdentityPresented byTijah Yok Chopil


fringe areas. Not surprisingly, therefore, the Orang Aslicommunities consider themselves to be a part of the naturalenvironment and link their identity to this environment.

Orang Asli Principles on the Use of ResourcesThe Orang Asli subscribe to three basic principles in theiruse and control of resources. One is the collective ownershipof resources within a village, which they see as analogousto cak samak, the Semai term for ‘eating together’. Sharingof the harvest – be it vegetables, hunted game or harvestedfish – with one’s neighbour is the norm, although individualrights apply to agricultural produce, handicrafts and rearedanimals.

The second principle is based on the concept that allnatural resources belong to the Creator and thus one has tohave respect for natural resources, including the plants andanimals. Ceremonies such as cenagoh – where permissionis first sought from the friendly spirits before any land isopened for agriculture – are a form of respect.

Thirdly, land and the biodiversity within it is intrinsic tothe Orang Asli’s identity. For this reason, the elders in thecommunity take it upon themselves to ensure thattraditional conservation and management practices of theresource base are passed down through the generations.

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Orang Asli Resource Management PracticesOne important practice is the zoning of the nenggrik orvillage area into eleven areas based on traditional use. Thesezones are for settlement, sacred sites, pathways/naturalwatercourses, hunting areas, fishing areas, forest areas forcollecting products for commercial purposes, forest areasfor collecting products for domestic use, commercialagriculture areas, home gardens, orchards and watershedareas. These areas are managed strictly according tocustomary law or adat.

Another important practice revolves around hill paddycultivation, especially in the way field sites are selected andcare is taken to ensure that soil fertility is restored over timeso that the whole activity can be rotated with minimumerosion. Orang Asli communities are also careful to ensurethat resources are not depleted. They practice controlledharvesting by taking only what is needed by the family orcommunity. This also applies to hunting and gathering offood and materials from the surroundings.

Issues Related to Loss of Biodiversity and Indigenous KnowledgeA major problem is the non-recognition by outsiders ofOrang Asli rights to their traditional land. EventhoughOrang Asli are categorised as bumiputera (‘sons of the soil’,or indigenous peoples, together with the dominant Malaypopulation and the natives of Sabah and Sarawak), theirland rights are not recognised under the Aboriginal PeoplesAct (1954). Without such recognition, the sustained control,access and management of the land’s biodiversity and, itfollows, the protection of traditional knowledge, areendangered.

Another cause of both land and cultural loss is attributedto development policies that differ from the Orang Asliperspectives. Development programmes for the Orang Aslithat resettle communities often lead to inferior economic,social and cultural conditions. This isolation from traditional

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lands and resources, in particular, leads to severe loss ofknowledge of biodiversity and of the indigenousmanagement system. The imposition of mainstreamreligions and the policy of modern resource management,which are in conflict with traditional resource managementsystems, are also identified as causes of such loss.

The Orang Asli reiterated that they are not againstdevelopment per se but maintain that such developmentmust be appropriate and in accordance with their needsand culture. Programmes and policies aimed at changingtheir culture and way of life to one that is devoid ofindigenous culture, identity, values and knowledge are notacceptable.

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Ora

ng A

sli P

etiti

onsIn order to guarantee their viability as a people, the

Orang Asli want the following concerns addressed:• Legal and permanent recognition of Orang Asli

traditional lands;• Dialogues/negotiations conducted and subsequent

informed consent of communities to be obtainedwith respect to any proposed development projectmeant for them;

• Prior informed consent to be obtained from thecommunities affected in the event their traditionallands are to be converted to protected areas;

• The right to practise and protect their traditionalculture and indigenous knowledge; and

• Encouragement and support to document and applyindigenous knowledge with respect tomanagement, conservation and use of biodiversity,and to include this in the national curriculum.


The Anak Negeri (or Natives)in Sabah, who make up 60percent of the state’spopulation, comprise 39ethnic groups. Many of themstill live in their traditionalterritories. For the AnakNegeri, the management ofbiodiversity is closely relatedto their traditional knowledgeand their control overresources, particularly theiradat on customary land.However, unsustainable development, conflicting resourcemanagement systems and external and internal influenceshave begun to take a toll on both the Anak Negeri’sbiodiversity and their indigenous knowledge.

Anak Negeri Resource Management SystemThe indigenous belief system of the Anak Negeri is basedon the worldview that all matter, including spirits, arecreated by God. As such, the principal tenet of Anak Negerispirituality is: respect for all beings – living or dead. Thus,for example, in their traditional resource managementsystem, the guardian spirit of the forests and the land mustbe respected.

Also, the principle of “use and protect” in Anak Negeriresource management ensures the integrity and sustainableuse of the biodiversity. Community members are taughtfrom a young age to take and use natural resources in a

ANAK NEGERI OF SABAHTowards the Recognition of Traditional KnowledgePresented by Gallus Ahtoi

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responsible manner so as to avoid depletion or destruction.Management practices are incorporated into everyday lifeand elders make certain that this knowledge is passed tothe next generation.

Main issuesSome important problems were identified as impacting thelives of the Anak Negeri with respect to traditionalknowledge and biodiversity conservation. The first is theconflict between the traditional system and the policiespursued by the government in resource management. Inparticular, the policies on the management of parks,sanctuaries, forest reserves and other protected areas thatprohibit indigenous peoples from using these areas and/or that require the people to be relocated.

Secondly, the influence of religious institutions andmodern thinking has forced many native people to stoppractising indigenous resource management. This hascurtailed the transmission of traditional knowledge to theyounger generation. Due to the completely different systemof education in schools, young Anak Negeri are unable tograsp the traditional way of passing down knowledge. Lackof understanding by authorities of the indigenous

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management system also underlies the non-recognition ofindigenous conservation practices.

The third problem identified is the commercialisation ofindigenous knowledge and of biodiversity, particularlymedicinal plants, which distorts the holistic value ofknowledge and of biodiversity and permits bio-prospectorsto exploit communities. There is growing concern aboutthe Anak Negeri themselves falling into the trap of sellingthe resources from their forest for small, but quick, monetaryreturns. Lack of adequate protection, poor enforcement, andlack of strong local leadership have also contributed to manycommunities being exploited for their knowledge andbiodiversity.

In order to ensure that their rights and interests areupheld, the Anak Negeri seek the following:• To review policies and laws that impact on

indigenous knowledge and biodiversity;• To impress upon religious authorities the

importance of understanding the values andconcepts of indigenous belief systems;

• To correct general misconceptions about (theabsence of) indigenous knowledge systems;

• To reverse the trend that sees biodiversity andindigenous knowledge as something to exploit forprivate profit; and

• For the formal education system to acknowledgethe contribution and importance of indigenousknowledge and to include it within the nationalcurriculum.

Anak

Neg

eri P

etiti

ons


Sarawak covers an area of 12.5 million hectares and has 36ethnic indigenous groups. The Dayak and Orang Ulu(peoples of the hinterland) consider the forest as animportant part of their life, since living in a healthy forestmeans having a healthy life, as all their needs are takencare of there. They also see the forest as a heritage to bepassed down to future generations.

The implication and impact of development on biodiversityand indigenous knowledgeThe Dayak and Orang Ulu of Sarawak depend very muchon their diverse biological resources and the land. Theirdaily life, cultural heritage, social values, traditions,medicinal knowledge, belief system and quality of life aredependent on the biodiversity of the resources. The forestis also a place for learning, recreation and for ceremonies.Biodiversity and knowledge, as such, are interlinked andare the foundation of the indigenous peoples’ lives.

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DAYAK AND ORANG ULU OF SARAWAKOur Resources, Our Life, Our HeritagePresented byKomeok Joe and Jacqueline Insham


For NGOs• To work with indigenous peoples to handle issues

related to indigenous knowledge and biodiversity;• To help disseminate information that is precise and

easy to understand; and• To help organise conferences where indigenous

peoples, government and NGOs can dialogue.For Governments• To be perceptive of the needs of indigenous

peoples in their effort to conserve and revitalisebiodiversity;

• To implement the Biodiversity Ordinance that wasenacted in the state; and

• To ensure good governance by recognisingindigenous peoples’ customary rights to lands andresources;

• To have a more open attitude and be more trustingtowards indigenous peoples, instead of alwaysascribing the actions taken by indigenous groupsto protect their resources as being instigated byothers; and

• To base policies on international laws.For Dayak and Orang Ulu Peoples• To continue to protect resources from further

encroachment; and• To strengthen traditional systems and practices of

indigenous peoples.

Daya

k an

d O

rang

Ulu

Pet

ition

s

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Encroachment and destruction of resources by large-scaledevelopment projects such as logging, the Bakunhydroelectric dam, and oil palm commercial cultivationhave caused very serious impacts on both the Dayak andOrang Ulu, as well as on the environment.

Actions TakenThe Dayak and Orang Ulu communities have beenanalyzing and organizing discussions among themselvesand have come up with viable solutions on the issues theyface. Community mapping was one of the ways to ascertainthe borders of their customary land. Stronger actions havealso been taken on the ground to stop encroachments, aswell as resorting to the courts to challenge the encroachingcompanies. Some of these actions have brought aboutrecognition of indigenous peoples’ right to their customaryland, but they have not influenced the policies of thegovernment to protect indigenous knowledge andbiodiversity.

With regards to benefit-sharing, the Dayak and OrangUlu felt that the enjoyment of a clean environment andadequate resources should not be underrated and cannotbe valued in monetary terms.

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Malaysia signed the Convention on Biodiversity on 12June 1992. A National Committee on Biological Resourceswas established in 1993 under the auspices of the Ministryof Science, Technology and Environment (MOSTE), whichbecame the focal point for all matters concerning themanagement of biological resources in the country.Malaysia became a member of the Conference of Parties on22 September 1994.

According to Dr. Nadzri Yahaya, head of theEnvironmental Conservation and Management Division ofMOSTE, the National Biological Resources Policy aims toconserve the nation’s biological resources by ensuring thatits components are used sustainably for the social andeconomic development of the country.

As far as the relationship between indigenous knowledge

THE GOVERNMENTPOSITION5

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and biodiversity is concerned, the government accepts, inprinciple, the need for an equitable partnership betweenitself and the local stakeholders. This presupposes that localcommunities and their knowledge be recognised and thatlegal safeguards be put in place to protect their interests.The way to go about this, from the perspective of MOSTE(Ministry of Science, Technology and Environment), is tointroduce intellectual property rights especially by way ofpatents. However, developments in this regard, bothinternationally and more so locally, are still at the initial stages.

Biodiversity Management in SarawakThe East Malaysian state of Sarawak is blessed with itsuniqueness and diversity of flora, fauna and otherorganisms. According to Eileen Yen Ee Lee, the executivedirector of the Sarawak Biodiversity Centre, the state beganaddressing the globally agreed objectives of the Conventionon Biological Diversity (CBD) when it enacted the SarawakBiodiversity Centre Ordinance 1997 and the SarawakBiodiversity (Access, Collection and Research) Regulations 1998.The Ordinance and the Regulations provide foradministrative and regulatory mechanisms to facilitate andauthorize access to, and promote sustainable utilization of,the State’s biological resources as well as to ensure that theState and its people receive appropriate economic and otherbenefits from access to these resources.

In addressing Article 8(j) of the Convention – whichrecognizes the knowledge, innovations and practices of theindigenous and local communities embodying traditionallifestyles – Sarawak has taken the initiative to put in placeprocedures to better enable traditional communities toprotect and control their knowledge, innovations andpractices. In this context, Sarawak is initiating programmesboth to raise public awareness of the value of traditionalknowledge as well as to educate traditional communitieson the importance of documenting their ethno-biological

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knowledge, as an initial step towards identifying potentialbenefits to be derived from ethnobiology-related researchand ultimately for directing appropriate benefits back tothe local communities.

Nevertheless, governmental activities thus far fall shortof the goal of genuine community participation (becausethe local communities and stakeholders are not involved atthe decision-making levels at the outset). Also, while theintention is to allow local communities to benefit from anygains from the use of their traditional knowledge,mechanisms for equitable benefit sharing have not beendeveloped.

Some Statistics on Sarawak’sSome Statistics on Sarawak’sSome Statistics on Sarawak’sSome Statistics on Sarawak’sSome Statistics on Sarawak’sBiodiversityBiodiversityBiodiversityBiodiversityBiodiversity

8,000 species of flowering plants2,000 species of vertebrates10,000 species of invertebrates250 species of freshwater fish700 species of marine fish200 species of birds160 species of snakes100 species of lizards4,500 species of fungi2,500 species of trees900 species of orchids200 species of palms600 species of ferns

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Indigenous Knowledge Systems andBiodiversity Management in SabahLike Sarawak, the other East Malaysian state of Sabah hasestablished its own Biodiversity Council and has draftedthe Sabah Biodiversity Act (2000). In their paper, JosephPounis Guntavid and Sintiong Gelet, the director anddeputy director respectively of the Sabah Museum, gavean assurance that the Sabah Biodiversity Act seeks to ensurethat the state as well as the traditional and indigenouscommunities are able to benefit equitably from any gainsmade by the use of biological resources that are derivedfrom elements of indigenous systems and knowledge.

They added that the Sabah Biodiversity Act puts norestrictions on novel approaches from indigenous systemsand knowledge that can be applied to resourcemanagement, conflict management, or to ensuringsustainable development for the nation in general or forSabah in particular. There are also provisions which allowthe enactment to be amended from time to time, as andwhen necessary, in order to solve issues and problemsrelating to indigenous systems and knowledge, includingintellectual property rights.

However, they added that, as in the case of Sarawak, therealisation of these well-intentioned provisions in the SabahBiodiversity Act comes to very little if importantstakeholders such as the indigenous communities are notrepresented. At the present time, even the Sabah Museumis not involved in the decision-making process.

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The importance of indigenous knowledge on forestproducts cannot be denied. This is evidenced from thegrowing number of pharmaceutical companies signingagreements with national or state governments to screenmedicinal plants found in the traditional territories ofindigenous peoples.

However, indigenous peoples are invariably excludedwhenever any financial remuneration or compensation ispaid for the right to use their knowledge. The main reasonfor this, according to Ong Chui Koon, the Senior Managerof the Intellectual Property Services Section of the Standardsand Research Institute of Malaysia (SIRIM), is that the lawon intellectual property in Malaysia does not adequatelyprotect indigenous knowledge and forest products. On thecontrary, intellectual property in Malaysia covers copyright,

PROTECTING INDIGENOUSKNOWLEDGE6

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trademarks, patents and registered designs, of which onlypatents are remotely applicable to indigenous knowledgeand indigenous use of forest products.

However, patent law in Malaysia will not permit thepatenting of knowledge per se. Knowledge per se, such asknowledge about the identity and medicinal properties ofplants, is not an invention within the definition of patentlaw. One cannot patent a new medicinal plant just by beingthe first to catalogue it. However, collection and preparationmethods may be patented if they embody some practical,technical or industrial application. If indigenous peoplesthemselves have used these methods for generations, andthese methods are available to the public and clearly lacknovelty, they are not entitled to enjoy patent rights.

Furthermore, as contended by Ong, although the PatentsAct provides for the protection of a new use of a knowncompound, this provision is not suitable for the protectionof plant or animal extracts. The reason is that patent lawonly allows the patenting of single, pure, active substances,not a complex mixture. Moreover, patent law protectsindividual property rights, whereas indigenous knowledgeis collective. Such knowledge, developed over a period oftime and codified in texts or retained in oral traditions overgenerations, cannot satisfy the patentability criterianecessary for the grant of a patent.

Having noted that the existing patent law cannotadequately protect indigenous knowledge and forestproducts, some other options are available.

Amending the Patents ActIt is proposed that a provision be provided in the Malaysianpatent law specifically for the protection of plant and animalextracts. Under this special provision, in order to bepatentable, the new extract or a new use of a known extractshall not have been made available to the public and shallnot be part of the prior art. The examination of a patent

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application claiming an invention in the field of plant oranimal extracts can be carried out under the InternationalPatent Classification group A61K dealing with pharma-ceutical inventions.

Documentation of Indigenous Knowledge and Forest ProductsIf indigenous knowledge and forest products are properlydocumented, they can be used to check, even nullify, thegrant of patents based on indigenous knowledge and forestproducts that are already available in the public domain.Documentation may also identify the indigenous groupswho have contributed the knowledge and provide somekind of protection of their rights.

Sui Generis Systemfor Protecting Indigenous Knowledge and Forest ProductsIt is noteworthy here that various sui generis (‘alone of itsown kind’) systems providing for the protection ofintellectual property rights in plant varieties, integratedcircuits and databases are currently available. Theavailability of sui generis solutions means that the categoriesof intellectual property rights are not closed. Therefore, asui generis system could be designed to protect indigenousknowledge and forest products. Such a system would bewithin the spirit of the TRIPS Agreement.

Dr. Tay Pek San, of the Law Faculty of the University ofMalaya, concurred that a sui generis system appears to be

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the most appropriate scheme for the protection ofindigenous knowledge and forest products. A sui generissystem will be able to accommodate the peculiarcharacteristics of indigenous knowledge and to prevent thesurreptitious use of the knowledge by bio-prospectors.

Speaking primarily in the context of protecting works ofintellectual creativity of indigenous peoples, Dr. Tay alsoasserted that other intellectual property protections,especially the Copyright Act, do not afford indigenouspeoples the protection they need, nor should indigenouspeoples resort to such protections. In fact, she contended,the significant differences between the underlying reasonsfor the creation of indigenous works of art and the Westernstyle works raise the question of whether copyright law isthe appropriate framework for protection of indigenous art,for example.

The principles of copyright law tend to be prompted byconcerns irrelevant to indigenous peoples. Concepts ofprivate ownership of works, material fixation and thelimited duration of copyright protection are contrary to therights of indigenous peoples in their works of intellectualcreativity. To attempt to accommodate indigenous worksof art into copyright law in a manner that preserves theintegrity of both types of work and at the same time isbeneficial to both would likely be an exercise in futility. Thesubject matter of protection of copyright law and indigenousart forms are two very different systems – and thereforeare an inappropriate mechanism to protect the interests ofindigenous peoples.

Again, a sui generis system for the promotion andprotection of indigenous works that addresses indigenousartistry in its cultural context would be more appropriate.A regime of protection should be neither so broad that itprevents it from being practical and effective, nor so rigidthat it is an obstacle to the expansion and regeneration ofindigenous creativity.

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Drawing heavily from the paper of Professor Gurdial,several legislative options were identified. But first, therights of indigenous peoples and of the policy optionsdiscussed below should be affirmed. Indigenous politicaland social structures and institutions must be recognisedand insulated from any encroachment or abridgement. Thiscould be entrenched as a fundamental right and formallyincorporated into the Federal Constitution.

Laws would then be needed that give effect to this right.In respect of biological resources managed by and withinthe territorial control of indigenous peoples, there could bea law on access. This would require prospectors to applyfor consent from indigenous peoples for access to thebiological resource and knowledge related to it. The lawwould provide punitive and compensatory measures for

LEGISLATIVE OPTIONS7

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any access that is in violation of this mandate. The law wouldgovern all bio-prospecting activities prior to, during andafter the access is granted. It may require the prospector tospecify why access is requested, how much of a samplewill be taken, how the resource will be used; how the accesswill be carried out, how the indigenous people willcollaborate in collecting the resource, where a sample ofthe collected resource will be deposited, and finally, whatthe benefit sharing arising out of the use of the resourceand associated knowledge will be.

A law relating to the recognition of the knowledgesystems of indigenous peoples may also be a necessarycorollary. This could, for example, state that indigenousknowledge is, and will always remain, the right ofindigenous peoples and will be inviolate. It cannot be takenaway from them. It becomes, like land, inalienable, becauseit is inextricably a part of their social and cultural identity.The content of this right will be determined by theindigenous peoples’ own social and institutional structures.

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The first option for national governments would be toaffirm indigenous peoples’ right to exist as a people withtheir culture and practices intact. This affirmation must beboth formal (as in fundamental constitutional guarantees)and real (both by removing all conditions that threaten theirculture and survival and by establishing measures thatsupport the preservation and enhancement of their cultureand practices). One of the impediments to indigenouscultural survival is the lack of secure tenure of land. InMalaysia, native customary land titles are beingextinguished at an accelerating pace to permit lands uponwhich indigenous peoples have lived for millennia to beparcelled out, often for questionable commercial enterprises.

Governments, as a matter of policy, must engageindigenous and local communities in decision-making in

POLICY RESPONSES REQUIRED8

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relation to all matters relating to biological resources. Thiswill concretize the recognition of the role of indigenouspeoples, their culture and their knowledge accorded themby the Convention on Biological Diversity. Whereverbiological resources are concerned, then indigenous peoplesshould have the final say.

Governments could undertake research as determinedand directed by indigenous peoples. Others (researchers,NGOs, experts) could participate but the indigenouspeoples must have a veto power over the choice ofparticipants and the direction and purpose of the research.To the extent possible, indigenous peoples must be involvedin the research activities. There must be appreciation andhumanistic value accorded to research in situ. The integrityof local ecosystems, and the need to conduct research withinthese ecosystems, must be respected at all times.

Policies that enhance the use of indigenous technologiesmust also be promoted.

Policies that give indigenous communities control overtheir knowledge should be developed. This would involvethe recognition or promulgation of rights that give themcontrol and management over both their physical resourcesand the knowledge associated with the use of plants andother materials.

The policies suggested here must, of course, emanatefrom, and be acceptable to, the indigenous peoples, whowill necessarily determine their content and manner ofimplementation. The policy makers then can play animportant supportive role.

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In order to ensure that indigenous communities arenot further marginalized and that the rights of indigenouspeoples to their land and their cultural and biologicalresources are fully recognized, the indigenous participantsof the roundtable meeting resolved as follows:

Indigenous groups and communities are to draft theCommunity Protocol and present this to the authorities forrecognition and endorsement. This protocol will includeconditions and regulations for the procurement of biologicalspecimens, information, etc.

To work towards ensuring indigenous representation inthe national and state Biodiversity Councils, and to securethe genuine participation of the indigenous communities.

To strengthen cooperation and collaboration betweenindigenous peoples, government and academics, for

RECOMMENDATIONS ANDRESOLUTIONS FROM THE INDIGENOUSCOMMUNITIES

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example, by getting biodiversity conservation andindigenous knowledge issues into the national educationcurriculum and by strengthening and recognising therelevant Council of Elders or Native Chiefs to regulate andenforce such issues.

To undertake more joint research and documentation andjointly to monitor theft and biopiracy of biological resources.

And to re-examine all existing laws that are in conflictwith indigenous rights to traditional lands and biologicalresources.

The full papers of the roundtable meeting have been published underthe title, Indigenous Peoples’ Knowledge Systems andProtecting Biodiversity. The book is edited by Azmi Sharomand Gurdial Singh Nijar and published in 2004 by AdvanceProfessional Courses. The articles are either in English with Malaysummaries or Malay with English summaries.

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