Protection, Promotion, Development & Management of Indigenous Knowledge Bill: Northern Cape negotiating mandate

Meeting report

The Chairperson thanked members for finding time to come to this important meeting. She also sent regards from the Minister of Public Enterprises, Mr Pravin Gordhan. Mr J Nyambi (Mpumalanga), Mr J Parkies (Free State) and Ms C Labuschagne (Western Cape) who could not make it to the meeting and had sent their apologies. The agenda of the meeting was consideration of and voting on the final draft of the negotiating mandate from the Northern Cape provincial legislature and legal clarity and comments by the Department of Science and Technology (DST) on the Indigenous Knowledge (IK) Bill.

Presentation
Ms Sherlene Moonsamy, Director: Legal Services, DST, briefed members on the legal clarity of the IK Bill. When the Portfolio Committee (PC) processed the Bill for final reporting on the 13th of September, they had some additional amendments that they thought wise to include. Following the presentation from the department last week on the negotiating mandates, the department has been able to interrogate the legislation again to be able to assist with voting on the negotiating mandate, where the Committee would like some amendments or not. In that process, the department realised that when the document was printed for voting by the Committee on the 8th June, the final touches did not in any way change the scope, ambit, impact or implementation of the Bill. They were minor and also in line with the interest of responding to the negotiating mandates were not reflected in the Bill as printed. That’s the Bill that went to the National Council of Provinces (NCOP). The PC in order to assist found some amendments favourable. In terms of the mandates, when negotiating mandates come in they give each province the parameters in which to negotiate it. The department found that those amendments were all highlighted in the negotiating mandates.

Issues like if National Indigenous Knowledge Systems Office (NIKSO) should have more responsibility and the issue of section 9 where property, people and indigenous communities are not being protected enough, are small issues which all filter back to the parameters of the negotiating mandates. There were also other small issues after reading through the Bill and its editorial for example license written with an s instead of a c, which in cleaning that to make sure the grammar is fine, the content of the Bill will not be changed. Another issue that the Portfolio Committee found favourable out of numerous questions from the North West Province is on clause 7 and 9. The PC thought it wise to include a definition of industry to clarify the whole idea of appointment of an advisory panel. One of the issues in the negotiating mandate is how do we know who the specialist is and where should he come from and what is this industry which they thought is vague. What the PC wanted to include in clause 9 is sentence which says ‘for purposes of this clause, when it comes to the establishment of the advisory panel, industry means any sector in the economy dealing in the commercial use of indigenous knowledge, products and services’. This was to emphasise that industry in this Bill is not just a broad industry in general economics and business but business specific to indigenous knowledge.

There was also another clause 9 issue highlighted by the North West Province which is subject matter of protection dealing with indigenous knowledge being the property of the indigenous community. The PC said clause 9 subsection 1 protects registered indigenous knowledge while subsection 2 states indigenous knowledge constitutes indigenous communities within the meaning of section 25 of the Constitution. The PC suggested that subsection 3 be deleted because it is a duplication of what is in subsection 2. Subsection 3 states the ownership of indigenous knowledge vests in the relevant indigenous community which they thought was just a different way of phrasing what was in subsection 2. For clarity so as for it not to be convoluted, they suggested sub-clause 3 be deleted. Also, as a consequential amendment to that for there to be clarity, subsection 13 (1) (b) which initially spoke about ‘acknowledged as its source’ now states ‘acknowledged as its origin’ because where property rights vests goes back to the origin of the indigenous knowledge and where it is rooted. Origin sounds clearer when speaking of what indigenous knowledge is being talked about rather than source.

On Clause 16 which speaks on registration of indigenous knowledge, in the negotiating mandate last week the issues of how there is control over this, who does this, issue of the curator, NIKSO’s responsibility all came out. The PC picked out that with the registrar of designations there was no compulsory nature to obligations therefore it was weak thus when dealing with registrations with the registrar of registrations in clause 16 (1). The PC proposed that NIKSO must keep the registrar in a prescribed manner and must ensure security of the registrar so as to enforce that obligation. There was also the question of exploitation, an issue which comes up frequently, and the whole idea of the Bill is to protect, to make it clear who the indigenous knowledge belongs to, and that an indigenous community must consent to a 3rd party from taking and using indigenous knowledge without an access agreement.
Clause 26 which deals with access to and use of indigenous knowledge initially stated that no prior informed consent for use of indigenous knowledge is required for use of non-commercial research purposes. Looking at what came out of public hearings and which basically is in the negotiating mandate is the idea of exploitation. The PC found it wise to delete that sub-section of non-commercial purposes.

Mr Tom Suchanandan, Director: Advocacy and Policy Development DST added that from the policy point of view, there is an alignment between the Bill and the Bio-Prospecting Regulations of the Country and also the Country’s commitment to international conventions such as the NAGOYA convention and also the Convention for Bio-Diversity which South Africa has ratified. They all do not provide for exceptions for non-commercial purposes. The proposed amendment is in line because one will have to seek prior informed consent. It is in line with policy requirements not only within what the DST is pushing but also across government in terms of other departments for example environmental department who manage the actual resources.

Ms Moonsamy continued that those were part of the larger amendments part from the grammatical ones and which reinforce the negotiating mandates that were highlighted the previous week.

Discussion
The Chairperson asked the Department to explain the way forward on how Members were going to deal with the Bill seeing that the negotiating mandate was with the Committee and how going through the Provinces, would affect it.

Ms Moonsamy, replied that the Department had not drawn any of that into the Northern Cape issue because it was not on the table, but going forward, because everything falls within the parameters of the negotiating mandate, if the Committee votes for the negotiating mandate, and finds that the explained information adds value to it that would be a positive vote on that aspect of the negotiating mandate. The Department will then do a draft table that can be send the Provinces to inform the final mandate so that the Provinces can see how we have filtered in the suggestions from the Portfolio Committee (PC) flowing from the negotiating mandate.

The Chairperson, noting that there was no representative on the Northern Cape present in the meeting read the negotiating mandate from the Northern Cape. After due deliberation and taking note of the public’s input, the PC on Education, Sport, Arts and Culture supports the Bill. The Committee adopted the negotiating mandate duly signed by the Chairperson of the Committee. The Committee recommends to the House to mandate the Permanent Delegates to participate in deliberations at the negotiating stage and to support the Bill, taking note of the comments and recommendations raised by the Committee as well as inputs from the public. She asked the department to guide members on how they were going to deal with the mandate.

Ms Moonsamy replied that because the Committee had not voted on the negotiating mandate, the Northern Cape negotiating mandate locks in to the one that would be voted on.

Mr Tom Suchanandan, Director: Advocacy and Policy Development, DST: drew the Committees’ attention to paragraph 4 of the Northern Cape negotiating mandate which is on general comments made by the public. The first point does not fall within the Departments’ mandate, although the Department does contribute to the preservation of languages. The issue around the practitioners’ cross border use of indigenous knowledge is covered in the legislation. The issue that recognised indigenous knowledge practitioners’ certificate should also grant them access to private farm land is not a competence of the Bill but rather falls to the Department of Environmental Affairs.
The next point of recognition to be afforded to the Communal Property Association (CPA) as trustees, once the issue of moving from a trustee to a board of trustees is the responsibility of the communities to appoint members of that board. The legislation only gives the broad parameters therefore there is a provision for that.
Lastly there is the issue which was come out from every province that the Bill must establish National Indigenous Knowledge Systems Office (NIKSO) in all regions for easy access. This has been attended to in section 76. Further, in each Province, there is an Indigenous Knowledge Documentation Centre.

Mr C Smit (DA; Limpopo) raised a point that the Committee was discussing the Northern Cape’s mandate and the Northern Cape did not have a representative in the meeting and wanted clarity on how that impacted the discussion.

Ms Moonsamy responded that the member from the Northern Cape was in the Committee meeting the previous week and communicated that the mandate would be sent. The representative was part of the presentations, discussions and processes and the Chairperson just stepped in to read what was given as a response. To add to what the Director had said, CPAs are in an already established area of law that deals with communal property associations and human settlements. That in itself deals with criteria for establishment though it has its challenges and is currently being reviewed to close the gap on its implementation. A trust is an alternative option. Basically, the idea is that there is a group of persons that represent as agents the interest of the community is a more divisional alternative form of the legislatively CPAs. One almost replaces the other but they serve the same purpose in protecting community rights.

The Chairperson asked Ms Lucinda Leroux, Senior State Law Advisor whether there was any problem with the representative of the Northern Cape not being present.

Ms Leroux replied with a no.

The Chairperson then asked Members to vote.

Eastern Cape
Ms Z Ncitha (ANC; Eastern Cape) replied that the Eastern Cape supports the bill.

Gauteng
Mr E Mlambo (ANC; Gauteng) added that Gauteng supports the bill.

Limpopo
Mr Smit said that he did not have the mandate in front of him so he could not vote yet.

KwaZulu-Natal
Mr A Singh (KwaZulu-Natal) affirmed that KwaZulu-Natal supports.

North West
Mr O Sefako (ANC; North West) communicated that the North West vote in favour of.

Western Cape
The Chairperson said the Western Cape supports the bill.

Limpopo
M Smit stated that Limpopo supports the bill.

The Chairperson noted that 6 Provinces had voted in favour of the Bill.

Ms Moonsamy said that with the Committee voting that gave the Department permission to draft the Bill as per the highlighted areas of concern. The Department would take it under consideration and present the draft to the Members the following week then the draft would go to the Provinces.

Adoption of minutes
Minutes of Committee meeting held on 13 June 2018 were adopted.
 

The Chairperson thanked the members for coming to this important meeting and stated that they would meet the following week.

The meeting was adjourned.