19 October 2010

• Public Participation – Thulani Faku

• Tagging in terms of section 76 – Anjuli Maistry

• Definition of community – Anjuli Maistry

• Customary law and protection of traditional knowledge systems – Henk Smith and Rachel Wynberg (UCT)

LRC 2010 10 19 1

PUBLIC PARTICIPATION

Section 59 & 72 of The Constitution of RSA:Public access to and involvement in National

Assembly and NCOP legislative processes

The structure of the legislative process

• Outside of the traditional mechanism of periodic elections, there should be mandatory mechanisms that facilitate for a give and take between legislative leaders and the public

• Constitutional Court: Doctors for Life v Speaker of the National Assembly

LRC 2010 10 19 3

Constitutional obligations on Public Participation

s59(1):” The National Assembly must: (a) facilitate public involvement in the legislative

and other processes of the Assembly and its committees;”

s72(1): The National Council Of Provinces must: (a) facilitate public involvement in the legislative

and other processes of the Council and its committees;”

LRC 2010 10 19 4

Doctors for Life v Speaker of National Assembly

• As held in Doctors for Life:• 59 “These democratic institutions represent different interests

in the law-making process. The National Assembly represents the people … to ensure government by the people”

• 60 The NCOP “represents the provinces to ensure that provincial interests are taken into account‟ in the legislative process.

• 61 Both must therefore participate in the law-making process and act together in making law to ensure that the interests they represent are taken into consideration in the law-making process. If either of these democratic institutions fails to fulfil its constitutional obligation in relation to a bill, the result is that Parliament has failed to fulfil its obligation.‘

LRC 2010 10 19 5

Principles emerging from the Doctors For Life case

• Public participation in the law-making process forms a fundamental part of the broader right to political participation and the right to take part in the conduct of public affairs;

i. the nature and scope of the constitutional obligation of a States’ legislative organ to facilitate public participation;

ii. Consequences of a failure to comply with that obligation;

iii.The issue of timing

LRC 2010 10 19 6

Ngcobo, J• “It is true … that time may be a relevant consideration in

determining the reasonableness of a legislature's failure to provide meaningful opportunities for public involvement in a given case. There may well be circumstances of emergency that require urgent legislative responses and short timetables. … When it comes to establishing legislative timetables, the temptation to cut down on public involvement must be resisted. Problems encountered in speeding up a sluggish timetable do not ordinarily constitute a basis for inferring that inroads into the appropriate degree of public involvement are reasonable. The timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable.”

LRC 2010 10 19 7

Tagging of Bills

The tagging test as confirmed in Tongoane: when tagging Bills what matters is whether

the provisions of the Bills in “substantial measure” fall within a functional area listed in

Schedule 4.

LRC 2010 10 19 8

LRC 2010 10 19 9

The provisions in “substantial measure” fall within the functional area of indigenous and customary law, as well as traditional leadership.The Bill replaces customary law, and the operation of the Bill is extended to traditional communities who are organised in terms customary law as well as traditional intellectual property.Tongoane further states that a Bill deals with Schedule 4 matters when it requires indigenous law (and also knowledge) to be ‘recorded’, ‘codified’ or ‘registered’. Para 75. The Bill also refers to “authorised person or body” that will represent the community – it thus gives traditional leaders and councils new functions.

LRC 2010 10 19 10

Tongoane

“What matters for the purposes of tagging is not whether the system contemplated by CLARA is good or bad. What matters is that the new system contemplated by CLARA

replaces the indigenous-law-based system currently managing the administration of communal land”.

LRC 2010 10 19 11

Community

The Bill defines community as follows: “ ‘indigenous community’ means any community of people living within the borders of the Republic, or which historically lived in the [sic] geographic area located within the borders of the Republic” It is thus defined spatially and in terms of geographical boundaries. In reality communities do not define themselves in this manner.

LRC 2010 10 19 12

In the Restitution of Land Rights Act community is defined as follows:“community” means any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group, and includes any part of such group.Boundaries constantly expand and contract depending on a number of factors.Communities define themselves through social and political organisation at layered levels and through shared customary laws, values , identity and mutual recognition of culture.

LRC 2010 10 19 13

“traditional knowledge embodies particular cultural and social value that is specific to local

communities. The protection of traditional knowledge is, therefore, not only a commercial

question but also a question of belonging, cohesion, and identity”

- J. Gibson, Community in Resources, Tradition in Knowledge.

LRC 2010 10 19 14

Departure Point

• Fundamental differences in approach between Western IPR system based on privatising (usually individualised) knowledge and time-bounded IP

• VS• Traditional knowledge as a collective, for the

public good, not time bound as constantly evolving, adaptive, dynamic

• Accounting for widespread recognition of the need for sui generis systems of protection for TK

LRC 2010 10 19 15

Coherent Laws and Policies are Vital for the Effective Protection of TK

• Where does the Bill fit in?• BABS regulations set up framework for equitable benefit

sharing. Very challenging to implement. Need to first learn these lessons!

• Patent Amendment Act a framework to prevent misappropriation in SA

• Multiple departments: DEA / DST / DAC / DTI – multiple funds, and multiple databases

• Will TK fall between the stools (as is currently happening)

• Strengthened frameworks for customary law are most essential component

LRC 2010 10 19 16

Objectives and implementation

• What will database achieve – and what information will it contain? What will qualify as ‘traditional’? Important to reflect unfolding (and not always successful) lessons with databases

• Songs and plants are not the same! TK associated with natural resources and biodiversity requires unique approaches.

• Capacity to implement is a major concern – and to what end? Complexities of transborder nature of TK?

Admitted shortcomings of IP regime to protect traditional knowledge

“There are essentially two main concerns with regard to the protection and commercialisation of traditional knowledge in South Africa using the intellectual property system:

• The current intellectual property system allows individuals to

protect their inventions and intellectual property rights, but does not allow communities to collectively protect their knowledge in all areas; and

• In those areas where collective intellectual property registration is possible, communities are not exercising their rights.

“As a result, in both South Africa and internationally, traditional

knowledge is not generally protected using the intellectual property system.

[dti policy framework 2006 p9]

17LRC 2010 10 19

Customary law protection preferable

“Among the most promising approaches are the possibility of designing regimes based on customary law, a misappropriation regime, and disclosure of origin.

“Securing the protection of traditional knowledge, technologies and resources according to the local customary regulations requires the existence of effective local governance structures and customary law, including property regimes, and respect for these structures and regimes from outsiders. This is easiest to achieve in countries where customary law systems can operate with relative freedom and where rights are enforceable.

[Graham Dutfield - PROTECTING TRADITIONAL KNOWLEDGE: PATHWAYS TO THE FUTURE]

LRC 2010 10 19 18

key challenges for the protection of TK on the basis of customary law

1. recognising the authority of customary law for TK protection issues, and at international level.

2. ensuring that customary law and rights are recognised in practice by formal legal system and cannot be extinguished or overruled, even when there is a conflict between them, whether customary law is written down or not;

3. enabling indigenous institutions to develop, apply and interpret customary law through their own customary institutions and law systems;

LRC 2010 10 19 19

key challenges for the protection of TK on the basis of customary law

4. allowing flexibility to recognise diverse customary legal systems

5. understanding key underlying principles and processes of customary law systems which need to be recognised and strengthened in formal law

6. understanding the factors which influence the choice of customary and formal law by communities for TK and biological resources

LRC 2010 10 19 20

Growing recognition

“domestic law cannot simply ascribe a confined set of detailed IPRs to traditional knowledge holders. This would freeze the traditional knowledge in time and result in the traditional knowledge from then on being absorbed into the domestic legislation. Rather, domestic law can only protect traditional knowledge by acknowledging its evolving character in a cultural context by recognizing the autonomous legal order within which the traditional knowledge evolved.

[STUDY ON COMPLIANCE IN RELATION TO THE CUSTOMARY LAW OF INDIGENOUS AND LOCAL COMMUNITIES, NATIONAL LAW, ACROSS JURISDICTIONS, AND INTERNATIONAL LAW - UNEP/CBD/WG-ABS/7/INF/5 6 March 2009 AD HOC OPEN-ENDED WORKING GROUP ON ACCESS AND BENEFIT-SHARING CBD]

LRC 2010 10 19 21