Indigenous Knowledge Systems Bill: deliberations

Meeting report

Ms Renee Osborne-Mullins, Committee Content Advisor, worked through the Indigenous Knowledge Bill with the Committee, highlighting those areas where changes had been made.

Layout and Arrangement of sections

In Chapter 5 Clause 14, ‘agent’ had been changed to ‘assessor’

Chapter 1 Definitions

‘agent’ had been changed to ‘assessor’ throughout the Bill.

‘functional’ was qualified as ‘in relation to indigenous knowledge, means knowledge that is scientific and, or technical in nature.’

‘juristic’ had been changed to ‘legal’ throughout

Chapter 3 National Indigenous Knowledge Systems Office (NIKSO)

Functions and Powers of NIKSO

A ‘non-exclusive licence agreement’ was changed to ‘licence agreement’ throughout because the regulations had not specified exclusive or non-exclusive. This was reflected in clause 5.1 (h)

Administration of NIKSO

Clause 6 2(a) was amended to show the difference in power between the Minister and Director-General.

Establishment of Advisory Panel

Clause 7 subsection 4, where it had to be clarified that officials who served on the Advisory Panel did not get remuneration as other members would, and was changed to read: ‘Members of the Advisory Panel, with the exclusion of subsection (2)(a) representatives who are subject to public service remuneration prescriptions..’ 

Regarding the issue raised about members of the panel who had had experience, clause 7 (6) accommodated this, as the Minister could reappoint panel members for three years.

Chapter 4

Rights conferred

In Clause 13(3) (b), Members had requested a change where individuals of an indigenous community wished to make use of that knowledge. This now read: ‘may only make commercial use of that indigenous knowledge in a manner and subject to the indigenous community imposed terms and conditions as formalised in an agreement with the trustee’.

Chapter 5

Accreditation of assessors

Here the word ‘assessors’ now appeared throughout the Bill.

Chapter 6

Clause 18(2) was changed to reflect the superior powers of the Minister with regard to the Curator.

Ms Osborne-Mullins said that the Department had amended clause 18(4) so that it now read; ‘The Curator must permit the trustee to act on behalf of the indigenous community for whom he or she is a trustee,’

Chapter 7

Clause 26(1) reflected the change where the phrase ‘non-exclusive licence agreements’ had been changed to ‘licence agreements’.

Mr N Koornhof (ANC) asked how, if one was doing a review, this could be done without non-commercial research by an academic. Criticism had to be based on something. There should not be a burden on the academic review process.

Mr Tom Suchanandan, Director: Department Science and Technology, said that much of the work had been underpinned by the Nagoya Protocol. During the first two weeks, a decent analysis of the Nagoya Protocol had been obtained and it had been found that the Protocol demanded that all research required prior informed consent.

Dr Yonah Seleti, Chief Director: DST, said that the community that held the knowledge had to be acknowledged. This would provide some security for the knowledge holder.

Chapter 8

Offences and Penalties

Clause 28(1) (b) had been changed to: ‘….is guilty of an offence and on conviction liable to pay a fine as prescribed’. This was done to deal with the Committee’s concerns about penalties.

Memorandum on Objects of the Bill

The Content Advisor said that it could recalled that during the initial deliberations on the Bill, the public had requested that the Memorandum on the Objects of the Protection, Promotion, Development and Management of Indigenous Knowledge Bill be more detailed. This had been attached to the B Bill.

Background

In section 1 -- the background section -- the Department had now taken cognisance of the fact that the Bill had been published for public comment in 2015 and in 2016.

In section 2, in the summary of the Bill, it took note of the change from ‘agent’ to ‘assessor’. Under the Objects of the Bill, setting out the different sections of the Bill,  it read more or less the same except for the Section 3.4, Accreditation and Certification, as it set out the new order in which that appeared in the Bill.

Mr Suchanandan said that the heading in Section 3.4 would be amended to ‘the Recognition of Prior Learning’.

The Chairperson said that those were therefore the amendments/additions and deletions, and asked if there was anything else Members wished to raise.

Mr Suchanandan said that he had picked up two other inconsistencies. The one was spelling of the word ‘licence’. For consistency sake, it is spelt as ‘licence’ throughout the Bill.

Chapter 4

Protection of Indigenous Knowledge

Subject matter of protection

In Clause 9(3) the word ‘ownership’ would be replaced by ‘custodianship’.

The State Law Advisor said she had picked up some issues. On page 4 line 44, the definition of ‘Curator’ should read ‘means the curator of indigenous knowledge who is the head of the Registration…’

Her second issue was the reference to the Public Service Act on page 7 in line 15, and on page 10, under the heading ‘Administration of NIKSO’. She explained that the reason why the full citation was used was because it had not been defined in the Bill. She recommended that it should be put under the definitions.

Ms C King (DA) asked whether it was felt that ‘industry’ should be defined as it appeared on page 7 clause 7(2)(c) in Chapter 3.  She felt that ‘industry’ should be broadly defined, and in this Bill one should be specific about the industry that was being referred to, as Industry could be commercial or non-commercial.

Dr Seleti said that it did not detract from the general meaning. It was just meant to be clear.

Mr Koornhof asked if it was not covered where it said, ‘based on criteria where prescribed’ in 7(2) (d). He asked who would prescribe.

The State Law Advisor said that the Member just wanted to know which industry, so clarity would be provided on this matter in terms of the relevant industry being spoken of.

The Chairperson said that a long way had been traversed in dealing with this Bill. She thanked all for their inputs. The changes discussed today would be effected so that the Bill would be ready next week for adoption.

The meeting was adjourned.