Sharing Benefits Fairly: Decision-Making and Governance
Understanding how decisions were made by the San in the Hoodia case and how decision-making and governance structures vary between bioprospectors and indigenous communities is essential for the implementation of effective benefit sharing.
Drawing on academic literature and on interviews undertaken in South Africa, this chapter shows that decision-making processes in benefit-sharing negotiations vary significantly from party to party. In corporate hierarchies, decision-making usually centres on a small number of individuals and does not involve the wider consultation of stakeholders. Decisions are routinely made by highly educated personnel in positions of power who are well versed in the legalities and implications of their decisions. By contrast, decision-making in traditional indigenous communities such as the San often involves a large number of community members, typically with little knowledge of the technicalities and legal implications of their decisions. Discussions are seldom limited to a single event, but rather emerge over time during conversations among friends, relatives and neighbours. In the case of the San, decisions are taken by consensus, which is reached when significant opposition no longer exists.
These differences in decision-making practice place an obvious burden on negotiations, with one party requiring fast decisions to satisfy shareholders while the other needs significant time to allow meaningful community consultation and digest the implications of different options. This clash over decision-making procedures and speed often turns out to be detrimental to traditional knowledge holders, whose decision-making abilities are compromised by the commercial partners' need for urgent resolution.
One possible solution is embraced by South Africa's National Environmental Management: Biodiversity Act, which now locates support for consultation firmly with the government to ensure that negotiations are on an equal footing when benefit-sharing agreements are negotiated. However, the practical implementation of this requirement remains hampered by constraints of capacity, resources and knowledge.
Keywordsbenefit sharing consultation decision-making governance indigenous communities traditional knowledge
- Barnard, A., & Taylor, M. (2002). The complexities of association and assimilation: an ethnographic overview. In S. Kent (Ed.), Ethnicity, hunter-gatherers, and the ‘other’: association or assimilation in Africa. Washington, DC: Smithsonian Institution Press.Google Scholar
- CIPR (2002). Integrating intellectual property rights and development policy. Report of the Commission on Intellectual Property Rights, London. www.iprcommission.org/graphic/docu-ments/final_report.htm. Accessed 10 April 2006.Google Scholar
- Craig, G. (2004). The media, politics and public life. Sydney: Allen & Unwin.Google Scholar
- Crucible II Group (2001). Seeding solutions, volume 2: options for national laws governing control over genetic resources and biological innovations. International Plant Genetic Resources Institute, Rome; Dag Hammarskjöld Foundation, Uppsala; International Development Research Centre, Ottawa, ON.Google Scholar
- Ekpere, J. A. (2001). The OAU's model law: the protection of the rights of local communities, farmers and breeders, and for the regulation of access to biological resources, an explanatory booklet. Lagos, Nigeria: Organisation of African Unity, Scientific, Technical and Research Commission.Google Scholar
- ETC Group (2001). New enclosures: alternative mechanisms to enhance corporate monopoly and bioserfdom in the 21st century. Communique, issue 73. www.etcgroup.org/upload/publica-tion/230/01/newenclosuresfinal.pdf. Accessed 11 October 2008.
- GRAIN (2001). No patents on rice! No patents on life! Statement from peoples' movements and NGOs across Asia, revised August. www.grain.org/briefings/?id=172. Accessed 11 October 2008.
- Guenther, M. (2002). Independence, resistance, accommodation, persistence: hunter-gatherers and agropastoralists in the Ghanzi veld, early 1800s to mid-1900s. In S. Kent (Ed.), Ethnicity, hunter-gatherers, and the ‘other’: association or assimilation in Africa. Washington, DC: Smithsonian Institution Press.Google Scholar
- Hayden, C. (2003). When nature goes public: the making and unmaking of bioprospecting in Mexico. Princeton, NJ: Princeton University Press.Google Scholar
- Huntington, S. P. (1996). The clash of civilizations and the remaking of world order. New York: Simon & Schuster.Google Scholar
- Lee, R. (2003). The Dobe Ju/'hoansi. Toronto, ON (first published in 1983): Thomson Learning.Google Scholar
- Locke, J. (1960). Two treatises of government. Cambridge: Cambridge University Press.Google Scholar
- Mill, J. S. (1910). Utilitarianism, liberty and representative government. London: J. M. Dent & Sons.Google Scholar
- Mitchell, J. (1987). Women and equality. In A. Phillips (Ed.), Feminism and equality. Oxford: Basil Blackwell.Google Scholar
- Plato. (1935). The Republic, vol II. London: William Heinemann.Google Scholar
- Robins, S. (2002). NGOs, “bushmen”, and double vision: the ≠Khomani San land claim and the cultural politics of “community” and “development” in the Kalahari. In T. A. Benjaminsen, B. Cousins, & L. Thompson (Eds.), Contested resources: challenges to the governance of natural resources in South Africa. Programme for Land and Agrarian Studies, School of Government, University of the Western Cape, Cape Town.Google Scholar
- Rousseau, J.-J. (1973). The social contract and discourses. London: J. M. Dent & Sons.Google Scholar
- Silberbauer, G. (1982). Political process in G/wi bands. In E. Leacock & R. Lee (Eds.), Politics and history in band societies. Cambridge: Cambridge University Press.Google Scholar
- Then, C. (2004). The true cost of gene patents: the economic and social consequences of patenting genes and living organisms. Greenpeace, Hamburg. http://weblog.greenpeace.org/ge/ archives/1Study_True_Costs_Gene_Patents.pdf. Accessed 11 October 2008.Google Scholar
- Vierich, H. (1982). Adaptive flexibility in a multi-ethnic setting: the Basarwa of the southern Kalahari. In E. Leacock & R. Lee (Eds.), Politics and history in band societies. Cambridge: Cambridge University Press.Google Scholar
- WIMSA. (2004). WIMSA Annual Report, April 2003 to March 2004. Windhoek, Namibia: Working Group for Indigenous Minorities in Southern Africa.Google Scholar
- WIPO. (2001). Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998–1999). Geneva: World Intellectual Property Organisation.Google Scholar