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The Trouble Is, You Think You Have Time: Traditional Knowledge of Indigenous Peoples in Japan and India, the Reality of Biodiversity Exploitation

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Abstract

This paper aims to illustrate the crucial role of preserving, protecting and managing the environment by Indigenous Peoples in Japan and India. Traditional Knowledge has provided the ability to detect, understand and respond to environmental changes. However, modern science and applied technology often fall short of sustainable practices, acquired through ‘centuries of local observation’. Our consumer-centric world has unravelled a sad situation that has contributed to an irretrievable climate crisis. Multilateral instruments, however, have come to the rescue. In this journey, Japan and India have shown the world some constructive initiatives with positive outcomes which could go a long way in achieving the UN-SDGs.

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Notes

  1. The Convention on Biological Diversity, available at https://www.cbd.int/convention/. Accessed 12 October 2020.

  2. For the list of ILO Conventions signed and ratified by India look at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::p11200_country_id:102691. Accessed on 10 January 2021.

  3. ILO-C169—Indigenous and Tribal Peoples Convention, 1989 (No. 169). Available at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:55:0::NO::P55_TYPE,P55_LANG,P55_DOCUMENT,P55_NODE:REV,en,C169,/Document. Accessed 12 February 2021.

  4. United Nations Declaration on the Rights of Indigenous Peoples, “The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly on Thursday, 13 September 2007, by a majority of 144 states in favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine).” Available at https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html. Accessed on 20 February 2021.

  5. The Nagoya Protocol on Access and Benefit-sharing, “The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity is an international agreement which aims at sharing the benefits arising from the utilization of genetic resources in a fair and equitable way. It entered into force on 12 October 2014, 90 days after the date of deposit of the fiftieth instrument of ratification.” Available at https://www.cbd.int/abs/. Accessed 20 February 2021.

  6. Agenda 21: Chapter 13 Managing Fragile Ecosystems: Sustainable Mountain Development, Available at https://www.cbd.int/mountain/agenda21.shtml. Accessed 20 February 2021.

  7. Statement of Principles for the Sustainable Management of Forests. Available at https://www.mauricestrong.net/index.php?option=com_content&view=article&id=169:rio-statement-forests-management&catid=39&Itemid=89. Accessed on 20 February 2021.

  8. Article 8(j) - Traditional Knowledge, Innovations and Practices, it states: “Each contracting Party shall, as far as possible and as appropriate:

    Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices.” Available at https://www.cbd.int/traditional/. Accessed 10 October 2020.

  9. Dutfield, G. Harnessing Traditional Knowledge and Genetic Resources for Local Development and Trade, Draft paper presented at the International Seminar on Intellectual Property and Development, available at https://www.wipo.int/edocs/mdocs/mdocs/en/isipd_05/isipd_05_www_103975.pdf. Accessed 10 December 2020.

  10. Ibid.

  11. World Intellectual Property Organization Intergovernmental Committee in Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, ‘Glossary of key terms related to intellectual property and genetic resources, Traditional Knowledge and Traditional Cultural Expressions. Document prepared by the Secretariat’. WIPO document WIPO/GRTKF/IC/37/INF/7. July 5, 2018.

  12. Taubman, A. "Saving the Village: Conserving Jurisprudential Diversity in the International Protection of Traditional Knowledge", in International Public Goods and Transfer of Technology under a Globalised Intellectual Property Regime, ed. Keith E. Maskus and Jerome H. Reichman (Cambridge: Cambridge University Press, 2005), 536.

  13. Ibid.

  14. The Intergovernmental Panel on Climate Change, “The IPCC was created to provide policymakers with regular scientific assessments on climate change, its implications and potential future risks, as well as to put forward adaptation and mitigation options.” Available at, https://www.ipcc.ch. Accessed 12 February 2021.

  15. Mathur, A. 2003. Who owns traditional knowledge? Economic and political weekly, pp. 4471–4481.

  16. Ibid.

  17. Gupta, A.K. Intellectual property, traditional knowledge and genetic resources: how can Asian countries protect traditional knowledge, farmers’ rights and access to genetic resources through the implementation or review of the WTO TRIPS Agreement?’ Paper presented at the WIPO/President of the Republic of Bulgaria International Conference on Intellectual Property, the Internet, Electronic Commerce and Traditional Knowledge. WIPO document WIPO/ECTK/SOF/01/3.9. May 2001. For a recent cautiously positive treatment of the tiered approach, see Oguamanam, C., Tiered or Differentiated Approach to Traditional Knowledge and Traditional Cultural Expressions: The Evolution of a Concept. CIGI Paper no. 185, Waterloo ON: Centre for International Governance Innovation, 2018; also see Okediji, R.L., Traditional knowledge and the public domain. CIGI Paper no. 176, Waterloo ON: Centre for International Governance Innovation, 2018.

  18. World Intellectual Property Organization Intergovernmental Committee in Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, ‘The protection of traditional knowledge: draft articles. Document prepared by the Secretariat’. WIPO document WIPO/GRTKF/IC/37/4 June 26, 2018.

  19. United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, 3–14 June 1992. Available at https://www.un.org/en/conferences/environment/rio1992. Accessed 20 February 2021.

  20. Francesca, C. 2016. The traditional knowledge advantage: Indigenous Peoples’ knowledge in climate change adaptation and mitigation strategies (No. 2356-2020-676).

  21. Public Notice of the Ministry of Finance, Ministry of Education, Culture, Sports, Science and Technology, Ministry of Health, Labour and Welfare, Ministry of Agriculture, Forestry and Fisheries, Ministry of Economy, Trade and Industry, and Ministry of the Environment No. 1 on 18 May 2017. http://abs.env.go.jp/pdf/english_guidelines.pdf. Accessed 1 March 2021.

  22. Ibid. The Japanese ABS Guidelines provides the following: (1) As a general rule, a user of genetic resources shall report to the Minister of the Environment that they have obtained their international certificate of compliance within six months of publication in the Access and Benefit-Sharing Clearing-House (ABSCH). The competent minister shall also provide guidance and advice to recipients as necessary. (2) The Minister of the Environment shall post the content of the report referred to in (1) on the website of the Ministry of the Environment and provide it to the ABSCH. (3) For monitoring, the Minister of the Environment shall request the provision of information related to the use of genetic resources approximately five years after the report referred to in (1). (4) If another Party has filed a complaint about a violation of the laws of the providing country, the Minister of the Environment shall request the person in charge of handling genetic resources to provide the information as necessary.

  23. Minister of the Environment, Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. http://abs.env.go.jp/. Accessed 1 March 2021.

  24. See, Ainu Association of Hokkaido. https://www.ainu-assn.or.jp/english/index.html. Accessed 1 March 2021.

  25. Shimazu, R. “The Knowledge and View of Nature of the Indigenous Ainu on Sustainability─ Focusing on the Ainu oral literature ─” Bulletin of the Graduate School of Education, Hiroshima University. Part. II, No. 77 (2017), p. 75. https://ir.lib.hiroshima-u.ac.jp/files/public/4/44808/20180213101021140507/BullGradSchEducHU-Part3_66_69.pdf. Accessed 1 March 2021 (Japanese only).

  26. Japan has not ratified either ILO Convention 107 or ILO Convention 169.

  27. The Saru River basin, where the Nibutani area is located, is rich in natural resources and has been home to many people since ancient times, and traditional Ainu culture has been passed down from generation to generation. In 1993, Mr Shigeru Kayano, who was the director of the Ainu Culture Museum in Nibutani, and others filed a lawsuit against the construction of a dam on the Saru River, seeking the reversal of a compulsory expropriation decision ordering them to vacate their land. In 1997, the Sapporo District Court ruled that the construction of the dam was illegal because it lacked consideration for the culture of the indigenous people. However, since the dam was already nearing completion, the court did not approve the suspension of construction after considering the cost of removal, and the dam was completed in 1998. As for the decision, see Levin, Mark A., Kayano et al. v. Hokkaido Expropriation Committee: ‘The Nibutani Dam Decision’ (1999). International Legal Materials, Vol. 38, p. 394, 1999, Available at SSRN: https://ssrn.com/abstract=1635447. Accessed 1 March 2021.

  28. International Covenant on Economic, Social and Cultural Rights. Available at, https://treaties.un.org/doc/Treaties/1976/01/19760103%2009-57%20PM/Ch_IV_03.pdf. Accessed 1 March 2021.

  29. Act on the Promotion of Ainu Culture, and Dissemination and Enlightenment of Knowledge about Ainu Tradition, etc. https://elaws.e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/detail?lawId=431AC0000000016. Accessed 1 March 2021(Japanese only).

  30. Act on Promotion of Measures to Achieve a Society in which the Pride of the Ainu People is Respected. https://elaws.e-gov.go.jp/search/elawsSearch/elaws_search/lsg0500/detail?lawId=431AC0000000016. Accessed 1 March 2021 (Japanese only).

  31. Ibid.

  32. UPOPOY. https://ainu-upopoy.jp/en/. Accessed 1 March 2021. “UPOPY” means “singing in a large group” in the Ainu language.

  33. Indigenous remains and associated burial goods and burial instruments have been collected from the interests of the study of racist natural anthropology, archaeological and ethnological studies of the early 19 and 20 centuries, or under the influence of colonialist policies, and kept in major museums and research institutions around the world. In Japan, as a result of research, many historical and cultural heritages, including the remains and burial goods of the Ainu indigenous people, are kept at universities and other institution. In recent years, from the perspective of respecting the Ainu people’s spiritual culture, the government has decided to return those that can be returned to the bereaved family while taking the initiative to return those that cannot be returned to the bereaved family to UPOPY so that a dignified memorial service is possible. Ministry of Education, Culture, Sports, Science and Technology, “Regarding the Return of Ainu Remains Stored by the University”. https://www.mext.go.jp/a_menu/kagaku/ainu/. Accessed 1 March 2021 (Japanese only).

  34. Jeff, G. and Uzawa, K. “Japan.” In The Indigenous World 2020, edited by Dwayne Mamo, 267–273. Copenhagen: IWGIA, 2020.

  35. Shinbu, A. Ainu indigenous rights lawsuit: “a major turning point” and “if discussions deepen.” 18 August 2020. https://www.asahi.com/articles/ASN8K7D8GN8KIIPE00Q.html. Accessed 15 March 2021 (Japanese only).

  36. Ibid.

  37. See, WIPO, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). https://www.wipo.int/tk/en/igc/. Accessed 1 March 2021.

  38. Basic Act on Biodiversity. https://www.biodic.go.jp/biodiversity/about/kihonhou/files/biodiversity.pdf. Accessed 1 March 2021.

  39. The Constitution of India, 1950. Available at https://legislative.gov.in/sites/default/files/COI-updated.pdf. Accessed on 10 January 2021.

  40. Ibid.

  41. ‘Kani’ refers to forest dwellers of Kerala. Reportedly, they were brought to Tamil Nadu during British period as labourers in the tea and cardamom estates (KTMR Report).

  42. Tamil Nadu (8° 5′ N) lies on the East Indian peninsula and is known with the rich ancient ethnic heritage of traditional Siddha system of medicine and biodiversity (Jaganathan et al. 2016).

  43. Subramanian, M.P.S., Chelladurai, V., Thiruvalluvar, M. and Manokari, M., 2019. Folklore medicinal claims from Kani tribes of Kanyakumari District, Tamil Nadu, South India. World News of Natural Sciences, 23.

  44. Search made in Ayurvedic literature indicates that the plant may be the divine drug named variously as MRITHA SANJEEVINI (the drug that can revive unconscious or dead) or SANJEEVINI, THAMPRA RASAYANI in the Oushadha Nighantu (Dictionary of Medicinal Drugs) of Tayyil Kumaran Krishnan (1906).

  45. Varma, R.V. (2017) Access and Benefit Sharing in India: Challenges Ahead. In: Laladhas K., Nilayangode P., V. Oommen O. (eds) Biodiversity for Sustainable Development. Environmental Challenges and Solutions, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-319-42162-9_5.

  46. The Constitution of India, 1950. Available at https://legislative.gov.in/sites/default/files/COI-updated.pdf. Accessed on 10 December 2020.

  47. WIPO and WTO are two different organizations WIPO has a cultural mission and no trade aim, whereas WTO is duly trade orientated. WIPO has treaties that member states can ratify or not, WTO TRIPs is of adhesion and there is no space to non-ratification or to repel certain articles.

  48. The Copyright Act, 1957. Available at https://copyright.gov.in/Documents/CopyrightRules1957.pdf. Accessed on 10 December 2020.

  49. Kuruk, P. ‘Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa And The United States’ (1999)48 American University Law Review).

  50. Geographical Indications of Goods (Registration and Protection) Act, 1999, available at http://www.ipindia.nic.in/act-1999.htm (hereinafter the GI Act).

  51. The Biological Diversity Act, 2002, available at, https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf, (this is called correspondence, you point it our to the reader where it has been already cited).

  52. Protection of Plant Varieties and Farmer’s Rights Act, 2001, available at, https://www.indiacode.nic.in/bitstream/123456789/1909/1/200153.pdf.

  53. Geographical Indications of Goods (Registration and Protection) Act, 1999, available at http://www.ipindia.nic.in/act-1999.htm.

  54. TKDL, available at http://www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng accessed on 10 Dec 2020.

  55. Ibid.

  56. Chambers, D.W. and Gillespie, R. ‘Locality In The History of Science: Colonial Science, Techno science, And Indigenous Knowledge’ (2000) 15 Osiris Nature and Empire: Science and the Colonial Enterprise http://www.jstor.org/stable/301950 accessed 14 October 2020.

  57. Sengupta, N. ‘Traditional knowledge in modern India: Preservation, Promotion, Ethical Access and Benefit Sharing Mechanisms’, Springer 2019 at p 49.

  58. Ibid.

  59. Ibid.

  60. National Innovation Foundation, available at https://nif.org.in accessed on 10 Dec 2020.

  61. Supra note 25.

    See also, The Department of Science and Technology, GOI, later established NIF in the year 2000 for preventing biopiracy on the one hand and IPR protection of TK and Ancestral Knowledge. This ensures, consequently, retainment of the rich knowledge the land is famous for.

  62. The Plant Varieties Act and the Biodiversity Act protects passively and not actively as required to be adapted in India.

  63. The authors in collaboration with the WB Biodiversity Board are reviewing the Biodiversity Bill.

  64. Please see Section 21 of the Biological Diversity Act, 2003.

  65. Architha Narayanan, Research and Teaching Associate, NLSIU, A Primer on Biological Diversity Laws, Access and Benefit Sharing (UNDP & CELERA, NLSIU, 2018).

  66. “Department of Economic and Social Affairs-Sustainable Development, The 2030 Agenda for Sustainable Development,” available at https://sdgs.un.org/goals. Accessed 10 December 2021.

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Acknowledgements

The authors thank the anonymous reviewers for their constructive comments on the earlier version of this paper.

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  1. Centre for Regulatory Studies, Governance and Public Policy (CRSGPP), West Bengal National University of Juridical Sciences (WBNUJS), Dr Ambedkar Bhavan, Sector III, Salt Lake City, Kolkata, 700106, India

    Shambhu Prasad Chakrabarty

  2. School of Law, Senshu University, 3-8 Kanda Jimbo-cho, Chiyoda-ku, Tokyo, 101-8425, Japan

    Maiko Tanoue

  3. School of Law, University of Notre Dame, Cnr Broadway and Abercrombie St (PO Box 944), Sydney, NSW, 2007, Australia

    Ana Penteado

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Chakrabarty, S.P., Tanoue, M. & Penteado, A. The Trouble Is, You Think You Have Time: Traditional Knowledge of Indigenous Peoples in Japan and India, the Reality of Biodiversity Exploitation. Environmental Management 72, 100–112 (2023). https://doi.org/10.1007/s00267-021-01560-0

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