Protection, Promotion, Development & Management of Indigenous Knowledge Bill: provincial briefing

Meeting report

The Chairperson welcomed all present and asked everyone to introduce themselves.

Briefing by the Department of Science and Technology

Dr Yonah Seleti, Chief Director, Science Missions at the Department of Science and Technology (DST) said that the Bill had been in the works for a long time because it cut across various departments. As a result, government more widely owned it.

The Bill addressed bio-piracy and misappropriation and promoted registration of Indigenous Knowledge (IK). It recognised prior learning of practitioners, facilitated research and development, and created mechanisms for dispute resolution for communities.

Legislative Processes

Prior to the tabling of the Information Knowledge (IK) Bill to Cabinet, DST had subjected the draft Bill to consultation with national government departments and with stakeholders in all nine provinces. The response indicated a significant level of awareness and engagement with the process.

The Bill was published in the Government Gazette on 20 February 2015. The closing date for submissions was 20 May 2015. The DST received a number of comments from a wide range of interest groups ranging from government departments, research institutions, academic institutions and the public. A total of 29 written comments were received and 13 public engagement meetings were held.

A review team comprising both international and local experts was established. The review team convened to consider the Department’s response to the comments from the public. A revised Bill was then drafted and on 12 April 2016, the Minister of Science and Technology introduced the Protection, Promotion, Development and Management of Indigenous Knowledge Bill to the National Assembly. [B6-2016].

The Bill includes a range of definitions aligned with international agreements and protocols ratified or acceded to by South Africa. The primary objective of the Bill is to protect indigenous knowledge of indigenous communities from unauthorised use, misappropriation and misuse, and to regulate the fair and equitable distribution of benefits from its commercial use. The Bill also provides mechanisms for the accreditation of assessors and the certification of practitioners and allows for the establishment of the National Indigenous Knowledge Systems Office (NIKSO) within the Department.

Financial implications

It is envisaged that the National Indigenous Knowledge Systems Office (NIKSO) will operate under its current budget as a Specialised Services Delivery Unit.

Parliamentary Procedure

The State Law Advisors and the Department of Science and Technology advised that the Bill should be dealt with in accordance with the procedure established by Section 76 of the Constitution.

Discussion

Mr B Kivedo (DA) was impressed with the presentation. He asked what had been done to bring accreditation, customary processes and prior knowledge in line with conventional knowledge? Did Indigenous Knowledge (IK) entail a corporate of people owning it? In terms of professional status, were those who had IK certified? What was their professional and academic status? Was social identity a prerequisite for IK in the community or was it a collective identity in that instance? How was the register of designation supposed to give people access to IK? Was the register for research or commercial purposes?

Ms D Gopie (ANC) wanted to know why the Bill had taken such a long time to get to that point. It had been mooted in 2004 and it was now 2018. Why such a long time? How would the trans-national aspect of the Bill be coordinated?

Mr L Max (DA) had a question about clause 17, which was about the registration office for IK. If the knowledge belonged to one and one registered it, would it become public property? When studying customary law, he had been told that customary knowledge was passed down from generation to generation. Before IK was codified, it was passed from the older to the younger generation by verbal communication and when an old man died, it was equivalent to burning down a library. Now that knowledge was to be registered, did it belong to an individual or a group? If it was a group, was it a specific group? Clause 24 determined that an amendment to the register must be pronounced by a court of law, but if a judgment had a particular effect on people’s customs, what remedies were available to them?

In response, Dr Seleti stated that on the issues relating to the recognition of prior learning, the Department had invited institutions of higher learning, IK holders themselves, the Departments of Education and Health, and the South African Qualifications Authority (SAQA) to participate in the work. SAQA had a unit that dealt with professional associations and had provided guidance as to how to organise qualifications, how to relate the qualifications to educational systems, and how to deal with professional qualifications. The Department had looked at the SAQA criteria to grade equivalence between the various knowledge systems. SAQA had also been able to teach the Department what to look for in respect of academic qualifications and how to determine the level of a qualification against the qualifications framework.

In looking at the IK of healers, the Department had looked at the various ethnic groupings in SA, and the competencies required from a healer in each group. It had to be noted that it was not knowledge-based but based on the competencies. If, for instance, a person was a Sangoma, and that person had undergone training, the equivalence of that training was allocated according to the national qualifications framework. However, if one was a trainer of Sangoma, that person was more than a Sangoma, and the set of competencies required to become a trainer was compared to the national qualifications framework. That system would eliminate people who were not properly qualified and would be run by the knowledge holders themselves who would certify themselves using the established equivalence. There would also be designations of Sangoma and the like and they would be registered as designations that would equate to their professional standing in society, backed up with the equivalence in the national qualifications framework.

Identity was very complex, and the approach used was that of self-definition. The communities would define who they were. That was an important concept because they were self-determinant.

Dr Seleti responded to the question of whose knowledge it was. IK had been passed on from generations gone by but had reached a point whereby it was formally recognised and registered. One challenge was how to train legal practitioners, trained in Western laws, to consider the different ways of knowing and to ascertain different kinds of knowledge, including knowledge which was different from tribe to tribe.

Mr Tom Suchanandan, Director: Advocacy and Policy Development, at DST, in his reply to the question of why the Bill had taken so long, said that the Bill dated back to 1998 when the Portfolio Committee on Arts, Culture and Technology had presented a Private Member’s Bill in the House of Assembly but was referred back to the Committee because of deficiencies identified. The Portfolio Committee commissioned the Department to proceed with the development of a policy and legislation. That piece of work was commissioned to the Human Sciences Research Council (HSRC).

In 2002, HSRC, with other government departments, had presented the Department of Arts, Culture and Technology with a draft policy and draft legislation. The then Minister, Minister Ngubane, had indicated that, because of the political nature of IK that time, it would be better for the Department to proceed initially with the policy to test the waters. The policy was presented to Cabinet and adopted in 2004. However, the Bill was kept in abeyance. From 2004-2007, the Department of Trade and Industry (DTI) worked on a policy on Intellectual Property Rights and IK, which meant the legislation was once again kept in abeyance. That policy was presented to Cabinet in 2008.

Thereafter, DTI proceeded with legislation using the conventional Intellectual Property Rights system to protect Indigenous Knowledge until consensus was reached between the Ministers of Science and Technology and Trade and Industry to put the IK Bill once again on the back burner so that the DTI could proceed with Amendments to the Intellectual Property Rights Act. The idea was not to confuse the public with two legislations relating to the same subject matter. In 2013, the National Assembly approved the Intellectual Property Amendment Act which protected IK using conventional intellectual property rights. Once that Bill had been approved in 2013, then the current Bill was started. It was currently in the National Council of Provinces (NCOP).

Responding to questions on the trans-border nature of the IK Bill, he said that the Convention on Biodiversity had adopted the Nagoya protocol in 2010. That protocol dealt with access and sharing of IK associated with genetic resources. In 2014, 101 countries ratified that protocol. Except for Lesotho, all of the Southern African Development Community (SADC) countries were signatories to it. One element of the protocol was that all countries had to form a competent authority. As a result, DST and the Department of Environmental Affairs was establishing a SADC desk which would act as the competent authority. The Department was presently working with SADC neighbours so that the legislations would be synchronized. Synchronisation would mean that, if, for instance, a research company from the United Kingdom came to SA, it would be subjected to the same legislation as in Swaziland and vice versa. SADC countries should be aware that they all share the same resources and the boundaries are merely political. What is found in SA is also found in Swaziland and if Swaziland did not have stringent legislation, researchers would rather go there to obtain SA resources through the back door.

Communities would self-identify. The Nagoya protocol included a bio-cultural protocol. It stated that before any research or registration started, a bio-cultural protocol had to be established with the community on the amendments to the register, and that could only be done in terms of established ownership. One of the concerns of the disclosure was that governments might force communities to disclose, whereas the Bill states that disclosure can only be done through a voluntary process.

Dr Seleti responded to the question of whether IK became public property because it was in the national registration database. In terms of the one-stop shop, when a researcher accessed the database, the researcher had to sign five agreements. The first was a non-disclosure agreement, then consent, a material transfer agreement, a benefit-sharing agreement and finally a license agreement. Those systems had been developed and were all accessible through the Department’s website. The state could not own the information because it belonged to the community, so no public property was involved in the issue.

On the question of what verification was, the Committee had to understand that because some communities did not understand the right of ownership, they went into bio-cultural protocols which tied them into a level of agreement as a community. It formed the basis on which someone who wanted to use their knowledge could enter into the community. Through that protocol, a group of elders could be identified who then pointed out experts in a particular knowledge within that community. The community was responsible for verification of that knowledge. When that information had been collected, the next level was the collection of samples. If the matter had to deal with biological resources, there was an existing agreement with the South African National Biodiversity Institute (SANBI) that scientists from SANBI would take those indigenous species and determine the scientific name. Should a court case ever arise, the Department would have both the traditional and scientific names. There were various levels of verification in place. The Department had employed full-time officers to look at how IK was recorded, and to look at the quality of those materials.

A monitoring and evaluation unit was attached to the national recording system because it was considered a very valuable resource. It was all about SA’s integrity and respect for posterity as a nation. How SA defined itself globally depended on how it managed those resources that spoke about the country. The work had been presented in an international forum and was acclaimed as one of the best benchmarks in empowering communities in the knowledge management of their own resources.

Ms Gopie’s follow-up question was centred on the royal houses that would be encountered in implementing the Bill. If the royal houses claimed that all the community’s resources belonged to them as the custodians of the communities, how would such issues be resolved so that the entire communities benefitted and not just a select few? What if there was infighting amongst the elders in the community with some claiming that they were the authentic custodians of an IK. How could that be determined?

 Dr Seleti answered that the Department had been finding solutions towards distinguishing between the political offices and the knowledge base. The Bill was concerned with the knowledge base. A method of binding communities was the bio-cultural protocol. That protocol used traditional mechanisms that communities could agree on and identify themselves as a basis for the management of their knowledge. It did not involve the political offices which fell within the competences of the Department of Local Government and Traditional Affairs. As for claims of knowledge, there was clause that recognised multiple claimants, so the legislation was flexible on knowledge that many people had contributed to. In situations like that, knowledge was co-owned:  it was not exclusive knowledge. An example was Rooibos in the Western Cape, where no single community could claim sole ownership. Different communities had been brought together to enter into an agreement with Nestle. That was what the legislation could do. It did not cut out businesses but rather give legitimacy for businesses to continue to operate without looking over their shoulders.

The Chairperson thanked the Department for briefing the Committee.

The meeting was adjourned.