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Indigenous People’s Rights Cases

Title / Forum / Date of Decision Facts Issue Ruling


Mataquescuintla vs. Guatemala During a community consultation in 2012, Was the 2012 community Yes.
the population of the town of consultation with the locala and the
Constitutional Court of Guatemala Mataquescuintla, under the municipal law in Xinca IPs valid? In a groundbreaking decision, the Constitutional Court of
December 2013 Mataquescuintla, voted at 96% to reject the Guatemala ruled that the community consultation was valid
plans for mining exploration and exploitation and legally binding, and should be implemented by the state
by four 4 companies. of Guatemala.

These companies included Tahoe


Resources, which was granted a 15-year
license to mine silver, gold, zinc and lead in
the middle of an agricultural region.

The project was heavily opposed by locals,


especially by the Xinca IPs, who live in
communities surrounding the mines.
Pueblo Indigena Kichwa de A complaint was filed against Ecuador for Did Ecuador violate the Sarayuku Yes. After a historic visit by the Inter-American Court of Human
Sarayuku vs. Ecuador having granted a concession for oil people’s rights to: Rightsto Sarayuku, the Court held that Ecuador violated the
exploration and exploitation and allowing an (a) prior consultation said rights.
Inter-American Court of Human Rights Argentinean company to begin seismic (b) prior consent
June 27, 2012 exploration within the Sarayuku people’s (c) community indigenous Hence, the Court held that the State should:
territory, without having consulted land (a) clear the land of explosives
with/obtained the consent of the community. (d) cultural identity (b) prior to any resource extraction, consult with the
(e) life community re environmental impact
With the help of Ecuador’s armed forces, the (f) personal identity (c) conduct trainings on IP rights for public employees
company: working with IPs
(a) Forcibly entered the lands (d) pay for material and nonmaterial damages
(b) Placed 1.5 tons of explosives in
the forest IP consultation should be (a) prior, (b) informed and (c)
(c) Caused destruction of sacred sites culturally appropriate, and (d) should not be delegated to
(d) Engaged in various confrontations third parties.
with the people
(e) Threatened their leaders and
caused violence against
community members

Diaguita vs. Goldcorps Canadian mining giant Goldcorp was Should the permit be cancelled on Yes. The Court held that the environmental permit should be
granted an environmental permit to mine the ground that the state of Chile put on hold until a fresh consultation with the Diaguita IPs
Supreme Court of Chile gold and copper in Chile. violated the IP’s right to prior has taken place.
October 7, 2014 consultation?
This was heavily opposed by the local Goldcorp shall not move forward with its mining operations until
Diaguita community. the local indigenous groups are consulted.

Council of Sipacapa vs. Guatemala The Mayan Council of Sipacapa claimed Did the Guatemalan government Yes. The state of Guatemala violated the Sipacapan IP’s
their collective rights and demanded the violate the Sipacapan IP’s collective right to prior information and consultation.
Guatemalan Court cancellation of a mining permit, “Los collective right to prior information
2014 Chocoyos”, which was granted by the and consultation by granting the It was also a historic moment as the state of Guatemala,
Guatemalan government to a transnational mining permit? through this judgement, recognized the proper organization of
company (a local subsidiary of Canadian the indigenous communities,a collective right, as represented
mining company Goldcorp Inc.) without prior by the Mayan council of Sipacapa.
information and consultation with the IP of
the municipality of Sipacapa.
Biopiracy Cases

Biopiracy Defined:

 Biopiracy is the commercial development of naturally occurring biological materials, such as plant substances or genetic cell lines, by a technologically advanced country or
organisation without fair compensation to the peoples or nations in whose territory the materials were originally discovered. Patents to these indigenous plants/plant substances
are often granted to nonresidents to the country in which the plant or substance was found.
 The US Patent Law is a huge source of the biopiracy cases. The fact that the US Patent Law does not recognise use of an invention as prior art makes it possible for
American inventors to patent such inventions that have only been used (and not patented or described in a publication).

International Conventions:

 Two conventions that are related to biopiracy are the Convention on Biological Diversity (the CBD) and the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS).

Effects:

 Aside from depletion of the wild resources and increasing prices for the locals, biopiracy also contravenes the right of communities to exercise control over their own
resources, to be previously informed of the goals and extent of the extractions, and to grant their previous informed consent.

Indigenous Plant/Substance Facts about the Indigenous Plant Patent Effects of Patent on Locals Current Status of Patent
Tepezcohuite  Tepezcohuite is a thorny tree  Dr. Leon Rouqe, a  Mexico is a significant country and a The patent for this plant is still
with a wide distribution, but the former Chiapa filed a frequent target for bioprospectors. The valid.
only place where it holds patent in 1986 for the country contains 34 out of 36 identifiable
healing properties is in powder obtained from ecoclimates, is home to 25 out of 28
Chiapas, Mexico. the roasted bark. categories of recognized soils and contains
14,4 per cent of all the living species in the
 It is primarily used to treat skin  He was granted a U.S. world.
lesions, especially for healing patent in 1989.
burns. It has antiinflammatory,  Dr. Roque’s patent describes the
anti-bacterial, anaesthetic and traditional usage; it is only an addition
epidermal regeneration being that of a sterilising step. This means
properties and is nicknamed that all the powder produced under
“the Miracle Plant”. traditional methods is an infringement
of his patent.

 For the locals of Chiapas, prices have


rushed high and wild resources have
been depleted. Locals have to compete
for access to the tree with those
commercialising it for the Mexican
Tepezcohuite market.
Jamun  It is a plant; known for its anti-  A US patent was
diabetic properties. It is common granted in 1999 to
knowledge and everyday Cromak Research
practice in India. Inc., based in New
Jersey, USA. The
 Their use in the treatment of assignees are three
diabetes is documented in non-resident Indians.
authoritative treatises such as
the “Wealth of India”, and the
“Treatise on Indian Medicinal
Plants”.
Hoodia Cactus (and the  Hoodia (and the similar  The international  The P57 promises large profits for all The San people has filed legal
similar Trichocaulon) Trichocaulon) are two patent application WO research institutions involved. The demands for compensation in
succulent plants indigenous to 9846243 claims projects earn royalties of what they 2001, and a benefit-sharing
southern Africa. monopoly use of the describe as “hundreds of millions of Rand agreement is in the process of
“P57 appetite per annum for the lifetime of the patent”. being negotiated through CSIR.
 For long, they have been used suppressant agent” Pfizer entered into a US$32 million license
by San and Khoi shepherds of of the extracts of agreement with Phytopharm for the rights
the harsh arid environments of Hoodia or to the P57 and Pfizer expects to make the
southern Africa to reduce Trichocaulon and its 74 US Pat. 5,124,349 and 4,556,562. 75
hunger and thirst. The South use in pharmaceutical Gupta. 76 Of Patents & Pi®ates. 35
African Army also uses it to appetite suppressants. remarkable sum of US$ 2-3 billion annually
suppress appetite. out of the drug.

 CSIR, one of Africa’s largest  No proportion of projected royalties has


scientific and technological been earmarked for conservation, or for
research institutions and the UK benefit sharing with holders of
Company Phytopharm have traditional knowledge about the plant.
entered into an agreement to
develop an appetite  The cultivation is undertaken by
suppressant, which has been commercial farmers, not by those who
named P57 derived from have traditionally nurtured the resource,
Hoodia. or even by resource-poor farmers.

 Obesity is one of the main


public health problems in
developed countries, so the
market potential is huge.
Turmeric  To many people from India,  Two US Scientists  Local communities are already victims, due  The Indian government challenged
Turmeric is considered as a were granted a US to high market prices on turmeric. the patent as theft and because of
magic cure-all. This orange root patent on the use of their evidence, the US Patent and
has been used for thousands of turmeric for healing Trademark office rejected the full
years to treat sprains, wounds, claiming this patent claim in 1997.
inflammatory conditions and to be novel. They did
wound healing. It is a key acknowledge in their  If granted, the US patent would
component of ayurdevic application that have prevented Indian companies
medicine. “turmeric has long from marketing turmeric for wound
been used in India as healing in the USA. The Indian
a traditional medicine government is increasingly
for treatment of concerned about biopiracy of other
various sprains and natural resources by foreign
inflammatory companies.
conditions”, but they
also claimed that there
was no research on
the use of turmeric as
a healing agent for
external wounds.
Azadirachta Indica (Neem)  A fast-growing evergreen tree Robert Larson, a  The Neem patent is one of the few
that contains a number of potent timber importer filed a biopiracy patents that have been
compounds, notably a chemical patent for pesticides revoked and it was done so by the
found in its seeds named based on Neem and European Patent Office.
azadirachtin transferred the rights
to the American  The US Neem patent of W R Grace
 This compound makes it useful corporation W R is still valid.
in many fields including leprosy, Grace and Co.
diabetes, constipation,
contraception, mosquito-
repellent and even as an
antiseptic tooth brush.
Ayahuasca (Banisteriopsis  It is used by the Amazon basin  US citizen Loren  The COICA challenged the
caapi) for medicinal use and religious Miller claimed to patent on the grounds of lack of
ceremonies and it is central for have discovered a novelty and distinctiveness, that
many groups in the region. new variety in it is found in an uncultivated
Ecuador. state and as a sacred element of
 According to their cosmology, many indigenous cultures of the
this is a sacred plant that has  In 1986 the Plant Amazon.
bestowed upon their knowledge Medicine Corporation  In May 1997, the COICA’s fifth
about nature, cures for many was granted US congress agreed to launch a public
illnesses and hallucinations that patent PP 05751 on awareness campaign. They
show “past and future”. it. declared Miller an enemy of
 Miller named the Amazonian indigenous peoples,
product Da Vine. prohibiting him from entering their
territories and warning Miler that
 The patent granted they could not guarantee his
exclusive rights to sell physical safety in the event of
and develop new entering those territories.
varieties of the plant.
Miller’s intention was  In November 1999, the patent
to set up a laboratory was cancelled.
in the Equatorial
Amazon.  The Convention on Biological
Diversity (CBD) gives the
(contracting) nations sovereignty
over its own biological resources.
Unless Miller can prove he
obtained the plants with official
authorisation, his patent
contravenes Ecuadorian law,
since Ecuador is a part of the CBD.

 It would also contravene the


right of communities to exercise
control over their own
resources, to be previously
informed of the goals and extent
of the extractions, and to grant
their previous informed consent.

Related Interests