Thailand Law Journal 2009 Spring Issue 1 Volume 12

B Indigenous Knowledge
Indigenous knowledge is normally mentioned together with traditional knowledge. Traditional knowledge and indigenous knowledge are defined from the interpreter’s point of view. The central issue is what needs to be protected and how it is to be protected.

The meaning of indigenous knowledge and traditional knowledge are inextricably linked, but there are some points of distinction. For example, not all traditional knowledge is part of indigenous knowledge, but all of the indigenous knowledge is a subset within traditional knowledge. This is because traditional knowledge may have been created by any individual or group of humankind whether indigenous peoples or not. Similarly, indigenous knowledge is therefore part of the traditional knowledge category. That is to say, indigenous knowledge is traditional knowledge, but not all traditional knowledge is indigenous knowledge.21

Although traditional knowledge and indigenous knowledge are not synonymous, they share many attributes, such as being unwritten, customary, pragmatic, experiential, and holistic. This explains why traditional knowledge and indigenous knowledge, are regularly used in the same context. The distinction between traditional knowledge and indigenous knowledge relates to the holders rather than the knowledge per se.22 Traditional knowledge is a broader category that includes indigenous knowledge as a type of traditional knowledge held by indigenous communities.23

Stephen B. Brush points out distinguishing characteristics of indigenous knowledge which can also be applied to traditional knowledge. He includes localness, oral transmission, origin in practical experience, emphasis on the empirical rather than theoretical, repetitiveness, changeability, being widely shared, fragmentary distribution, orientation to practical performance, and holism.24

At this stage, it is evident that the character of indigenous knowledge and traditional knowledge are not different in context, but in the holders. Stakeholders of traditional knowledge are either indigenous peoples or local communities.

Further terms which need to be defined include indigenous peoples and local communities.

C Indigenous Peoples and Local Communities
Traditional knowledge is something which comes from the talents of traditional knowledge holders. This paper examines two groups of traditional knowledge holders; indigenous peoples and local communities. Indigenous peoples and local communities have been defined according to the context of each international institution.

1 Indigenous Peoples
Indigenous peoples are people who have inhabited all continents since time immemorial. They have lived on their lands, maintained their cultural values, maintained and cultivated their environment and kept their traditions alive over centuries.25

Indigenous peoples are documented in the chronicles of European colonisation from the sixteenth century onwards.26 Post empire-building and colonial settlement traditional inhabitants of the encroached-upon lands became known as indigenous.27 The term indigenous now refers to the living descendants of pre-invasion inhabitants of lands now dominated by others. Indigenous peoples, nations, or communities are culturally distinctive groups that find themselves overcome by settler societies born of the forces of empire and conquest.28

The situation of indigenous peoples began to change during the second half of the twentieth century, in parallel with decolonisation.29 Indigenous peoples were recognised in the context of human rights documents, such as, the Universal Declaration of Human Rights (UDHR)30, the International Labour Organization Convention (ILO) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal populations in Independent Countries of 195731 , Convention No.169 Concerning the Indigenous and Tribal Peoples in Independent Countries of 1989 32 and the United Nations Declaration on the Rights of Indigenous Peoples.33

21. WIPO Report, above n 16, 23.

22. Stephen B. Brush, ‘Biodiversity, Biotechnology, and the Legal Protection of Traditional Knowledge: Protecting Traditional Agricultural knowledge’ (2005) Washington University Journal of Law & Policy 59, 99.

23. Ibid.

24. Ibid. 100-1.

25. Peter-Tobias Stoll and Anja von Hahn, ‘Part II. Indigenous Peoples, Indigenous Knowledge and Indigenous Resources in International Law’ in Silke von Lewinski (ed), Indigenous Heritage and Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (2004) 5, 5.

26. Ibid.

27. S. James Anaya, Indigenous Peoples in International Law (2nd ed, 2004) 3.

28. Ibid.

29. Stoll and Hahn, above n 25, 6.

30. Universal Declaration of Human Rights of 10 December 1948, General Assembly Official Record, III, Resolutions, (UN Doc. A/810), 71.

31. International Labour Organization Convention No.107 of 26 June 1957, into force on 2 June 1959, United Nations treaties Series 328, 247.

32. International Labour Organization Convention No.169 of 27 June 1989, into force on 5 September 1991, United Nations treaties Series 1650, 383.

33. The United Nations Declaration on the Rights of Indigenous Peoples was drafted by the Working Group, United Nations Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities (now Sub-Commission on the Promotion and Protection of Human Rights), Sub-Commission resolution 1994/45, 24 August 1994, The Draft Declaration was elaborated by the Working Group on Indigenous Populations of the Sub-Commission established in 1982. The Working Group also developed the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples; See also Stoll and Hahn, above n 25, 22-3, 111. See also Agnes Lucas-Schloetter, ‘Section 4 Folklore’ in Silke von Lewinski (ed), Indigenous Heritage and Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (2004) 259, 347-349.

This article is published with the kind permission of Panumas Kudngaongarm, Professor, Ph.D. Candidate, School of Law, the University of New England, Australia. (Lecturer, School of Law, Sukhothai Thammathirat Open University, Thailand.). This article was presented at the Inaugural Conference of the Asian Society of International law: International Law in Asia-Past, Present and Future.


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