Indigenous People’s Rights Cases
Title / Forum / Date of Decision
Mataquescuintla vs. Guatemala
Constitutional Court of Guatemala
December 2013
Pueblo Indigena Kichwa de
Sarayuku vs. Ecuador
Inter-American Court of Human Rights
June 27, 2012
Diaguita vs. Goldcorps
Supreme Court of Chile
October 7, 2014
Council of Sipacapa vs. Guatemala
Facts
During a community consultation in 2012,
the population of the town of
Mataquescuintla, under the municipal law in
Mataquescuintla, voted at 96% to reject the
plans for mining exploration and exploitation
by four 4 companies.
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.
A complaint was filed against Ecuador for
having granted a concession for oil
exploration and exploitation and allowing an
Argentinean company to begin seismic
exploration within the Sarayuku people’s
territory, without having consulted
with/obtained the consent of the community.
With the help of Ecuador’s armed forces, the
company:
(a) Forcibly entered the lands
(b) Placed 1.5 tons of explosives in
the forest
(c) Caused destruction of sacred sites
(d) Engaged in various confrontations
with the people
(e) Threatened their leaders and
caused violence against
community members
Canadian mining giant Goldcorp was
granted an environmental permit to mine
gold and copper in Chile.
This was heavily opposed by the local
Diaguita community.
The Mayan Council of Sipacapa claimed
their collective rights and demanded the
Issue
Was the 2012 community
consultation with the locala and the
Xinca IPs valid?
Did Ecuador violate the Sarayuku
people’s rights to:
(a) prior consultation
(b) prior consent
(c) community indigenous
land
(d) cultural identity
(e) life
(f) personal identity
Should the permit be cancelled on
the ground that the state of Chile
violated the IP’s right to prior
consultation?
Did the Guatemalan government
violate the Sipacapan IP’s
Ruling
Yes.
In a groundbreaking decision, the Constitutional Court of
Guatemala ruled that the community consultation was valid
and legally binding, and should be implemented by the state
of Guatemala.
Yes. After a historic visit by the Inter-American Court of Human
Rightsto Sarayuku, the Court held that Ecuador violated the
said rights.
Hence, the Court held that the State should:
(a) clear the land of explosives
(b) prior to any resource extraction, consult with the
community re environmental impact
(c) conduct trainings on IP rights for public employees
working with IPs
(d) pay for material and nonmaterial damages
IP consultation should be (a) prior, (b) informed and (c)
culturally appropriate, and (d) should not be delegated to
third parties.
Yes. The Court held that the environmental permit should be
put on hold until a fresh consultation with the Diaguita IPs
has taken place.
Goldcorp shall not move forward with its mining operations until
the local indigenous groups are consulted.
Yes. The state of Guatemala violated the Sipacapan IP’s
collective right to prior information and consultation.
Guatemalan Court cancellation of a mining permit, “Los
2014 Chocoyos”, which was granted by the
Guatemalan government to a transnational
company (a local subsidiary of Canadian
mining company Goldcorp Inc.) without prior
information and consultation with the IP of
the municipality of Sipacapa.
collective right to prior information
and consultation by granting the
mining permit?
It was also a historic moment as the state of Guatemala,
through this judgement, recognized the proper organization of
the indigenous communities,a collective right, as represented
by the Mayan council 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
Tepezcohuite
Facts about the Indigenous Plant
 Tepezcohuite is a thorny tree
with a wide distribution, but the
only place where it holds
healing properties is in
Chiapas, Mexico.
 It is primarily used to treat skin
lesions, especially for healing
burns. It has antiinflammatory,
anti-bacterial, anaesthetic and
epidermal regeneration
properties and is nicknamed
“the Miracle Plant”.
Patent Effects of Patent on Locals Current Status of Patent
 Dr. Leon Rouqe, a  Mexico is a significant country and a The patent for this plant is still
former Chiapa filed a frequent target for bioprospectors. The valid.
patent in 1986 for the country contains 34 out of 36 identifiable
powder obtained from ecoclimates, is home to 25 out of 28
the roasted bark. categories of recognized soils and contains
14,4 per cent of all the living species in the
 He was granted a U.S. world.
patent in 1989.
 Dr. Roque’s patent describes the
traditional usage; it is only an addition
being that of a sterilising step. This means
that all the powder produced under
traditional methods is an infringement
of his patent.

 For the locals of Chiapas, prices have

Jamun  It is a plant; known for its anti-
diabetic properties. It is common
knowledge and everyday
practice in India.
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.
 A US patent was
granted in 1999 to
Cromak Research
Inc., based in New

 Their use in the treatment of
diabetes is documented in
authoritative treatises such as
the “Wealth of India”, and the
“Treatise on Indian Medicinal
Plants”.
Hoodia Cactus (and the  Hoodia (and the similar
similar Trichocaulon) Trichocaulon) are two
succulent plants indigenous to
southern Africa.
 For long, they have been used
by San and Khoi shepherds of
the harsh arid environments of
southern Africa to reduce
hunger and thirst. The South
African Army also uses it to
suppress appetite.
 CSIR, one of Africa’s largest
scientific and technological
research institutions and the UK
Company Phytopharm have
entered into an agreement to
develop an appetite
suppressant, which has been
named P57 derived from
Hoodia.
 Obesity is one of the main
public health problems in
developed countries, so the
market potential is huge.
Turmeric  To many people from India,
Turmeric is considered as a
magic cure-all. This orange root
has been used for thousands of
years to treat sprains,
inflammatory conditions and
wound healing. It is a key
component of ayurdevic
medicine.
Jersey, USA. The
assignees are three
non-resident Indians.
 The international  The P57 promises large profits for all The San people has filed legal
patent application WO research institutions involved. The demands for compensation in
9846243 claims projects earn royalties of what they 2001, and a benefit-sharing
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.
suppressant agent” Pfizer entered into a US$32 million license
of the extracts of agreement with Phytopharm for the rights
Hoodia or to the P57 and Pfizer expects to make the
Trichocaulon and its 74 US Pat. 5,124,349 and 4,556,562. 75
use in pharmaceutical Gupta. 76 Of Patents & Pi®ates. 35
appetite suppressants. remarkable sum of US$ 2-3 billion annually
out of the drug.
 No proportion of projected royalties has
been earmarked for conservation, or for
benefit sharing with holders of
traditional knowledge about the plant.
 The cultivation is undertaken by
commercial farmers, not by those who
have traditionally nurtured the resource,
or even by resource-poor farmers.
 Two US Scientists  Local communities are already victims, due  The Indian government challenged
were granted a US to high market prices on turmeric. the patent as theft and because of
patent on the use of their evidence, the US Patent and
turmeric for healing Trademark office rejected the full
wounds, claiming this patent claim in 1997.
to be novel. They did
acknowledge in their  If granted, the US patent would
application that have prevented Indian companies
“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

Azadirachta Indica (Neem)  A fast-growing evergreen tree
 This compound makes it useful
Ayahuasca (Banisteriopsis  It is used by the Amazon basin
caapi)
 According to their cosmology,
that contains a number of potent
compounds, notably a chemical
found in its seeds named
azadirachtin
in many fields including leprosy,
diabetes, constipation,
contraception, mosquito-
repellent and even as an
antiseptic tooth brush.
for medicinal use and religious
ceremonies and it is central for
many groups in the region.
this is a sacred plant that has
bestowed upon their knowledge
about nature, cures for many
illnesses and hallucinations that
show “past and future”.
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.
Robert Larson, a  The Neem patent is one of the few
timber importer filed a biopiracy patents that have been
patent for pesticides revoked and it was done so by the
based on Neem and European Patent Office.
transferred the rights
to the American  The US Neem patent of W R Grace
corporation W R is still valid.
Grace and Co.
 US citizen Loren  The COICA challenged the
Miller claimed to patent on the grounds of lack of
have discovered a novelty and distinctiveness, that
new variety in it is found in an uncultivated
Ecuador. state and as a sacred element of
many indigenous cultures of the
 In 1986 the Plant Amazon.
Medicine Corporation  In May 1997, the COICA’s fifth
was granted US congress agreed to launch a public
patent PP 05751 on awareness campaign. They
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.