In the Brazilian Amazon, traditional communities, such as babassu breaker women, rubber tappers, riverine peoples, maroon communities, and other extractive peoples, have struggled against usurpation of lands and forests, defending their livelihoods in respective territories. Historically, usurpation of their rights over genetic patrimony and traditional knowledge has been a constant as well.
Requirement of benefit sharing from products that use the Amazon biodiversity and traditional knowledge is an important principle from CBD in order to guarantee some rights of traditional communities. However, operationalizing the principle is a challenge. Provisional Act 2186-16 of 2001, establishes that before companies can start prospecting activities, they must obtain a Statement of Previous Consent (TAP) and a Contract of Utilization and Benefit Sharing (CURB) from the relevant communities. Only then, can they apply for an authorization issued by the governmental Council for Management of Genetic Resources (CGEN). The absence of specific rules or parameters on how to divide the benefits in the CURB, however, leaves both Amazonian traditional communitie (1) and companies with the onus of finding out, by themselves, fair and equitable agreements, though there is a process of public consultation for a new project of law to change the way benefit-sharing is implemented in Brazil. This article elicits main obstacles faced and gateways sought by traditional communities seeking their rights in this new field of potential social transformation.
Obstacles How to conceive and achieve a jointly established “fair and equitable” agreement on benefit sharing is a major challenge. The main obstacles constraining the process include:
Access to samples of genetic resources and traditional knowledge without TAP and CURB are prohibited. Companies find it difficult to invest financial and human resources for these usually lengthy and complex negotiations with communities, without at least having bioprospecting and initial phases of research done;
The CURB is a contract that should be made for benefit sharing before the prospecting starts, and at this stage neither communities nor companies have a goodclear idea of the future benefits;
It is difficult to assess the value-added of the knowledge and products obtained from the communities. It may be just a small input in a complex research and development process, or they may worth much more than the people themselves can evaluate;
Communities and their supporters are not informed about the magnitude of their rights, and may be allured by contracts they were not expecting anyways. The complexity of the information flows have an impact not only on negotiations, but on the communities and their very functioning;
Research institutions and commercial enterprises have not yet established adequate protocols to contact and negotiate with traditional communities. Expected cultural clashes frustrate both sides and are fertile ground for opportunist professionals supposedly favoring either one or the other part;
Confidentiality is a routine issue to companies used to industrial secrecy, but confusing to communities and supporters accustomed with the fluidity of information among social movements. Careful negotiation is needed.
Lessons learned Companies can learn from the few cases of dealings between communities and companies:
Genetic patrimony and traditional knowledge as collective assets have brought moral issues when contracts privatize benefits to only one individual or grassroot organizations providing the samples or information, among many that exist and which have the same resources and knowledge. This can generate conflicts among communities. Up until now, only one community decided to transfer the benefits to be received with a pool of similar organizations;
The role of a public authority, e.g. a public attorney has become a key figure to compensate for the shortcomings of the PA, guaranteeing a power balance in the negotiation between unequal parts and helping them to reach a fair deal;
By law, communities have rights to services from lawyers, economists, and others, in addition to an anthropologist to attest informed consent (paid by the interested enterprise). Under time pressure and novelty of such demands, integration of experts may happen only by chance.
Negotiation takes time. Companies need to be aware of the timeframe to start and finish a negotiation process with fair results for both sides. A rushed process can lead to conflicts and mistrust among the stakeholders involved.
Responsible firms always benefit from being pro-active in looking for deals on benefit sharing with communities. They gain the complex tacit knowledge of negotiating with communities. Sooner or later, more regulatory pressures will come, and those responsible businesses will be ahead in the learning curve of the negotiation abilities.
Implementing benefit sharing is a complex negotiation process for communities, companies and governments. Lack of clear rules makes implementation even more difficult. The Brazilian Act is an attempt to provide some guidance on how to share the benefits of biodiversity and traditional knowledge, but it still falls short of providing the clear institutional environment that protects communities and gives incentives to businesses to negotiate with them. Countries rich in biodiversity have to move faster to create clear rules for benefit sharing or they take the risk to hurt both communities and responsible businesses.
(1) Traditional people and communities are culturally differentiated groups, who recognize themselves as such, who have their own forms of social organization and occupy and use territories and natural resources as condition for their cultural, social, religious, ancestral and economic reproduction, using knowledge, innovations and practices generated and transmitted by tradition (Decree 6.040-2007 Art 3 Inc I).
Noemi Miyasaka Porro is an independent consultant with a background in agronomic engineering and anthropology based on Belém, Brazil.
Antonio Puppim de Oliveira is Associate professor, Brazilian School of Public and Business Administration, Fundação Getulio Vargas (FGV), Rio de Janeiro, Brazil.
