Protection of Indigenous Knowledge in Malaysia
Published: 03 November 2012
PROTECTION OF INDIGENOUS KNOWLEDGE IN MALAYSIA
Paper presented at the course entitled "Traditional Knowledge: Way Forward”,
Attorney-General’s Chambers, 6 November 2012, Putrajaya
Indigenous knowledge and practices pertaining to medicinal plants are of particular relevance to Malaysia because of its desire to be a global player in the natural products sector. Proponents see opportunities in the rising demand for specialty natural products especially in the primary health care and cosmetics arena.
They point to two of Malaysia's many strengths: the plants growing in its forests and the local know-how about the myriad uses of medicinal plants. Indeed, the creation of a depository of knowledge on the traditional uses of tropical herbs among Malaysians has been suggested as a way of expanding product development.
Many allude to the unique confluence of Asian health traditions found in Malaysia and say this cumulative knowledge could be used to advantage. They suggest that a continuous effort be taken to document that knowledge to build up a rich database of medicinal plant applications.
However, although many of these actors realize that the source of the "local know-how" has actually come from the indigenous peoples themselves, there is no concrete mechanism in place which ensures that the indigenous communities are able to participate directly and benefit equitably from the gains to be made from the use of the cumulative knowledge which they have acquired for millennia. On the contrary, the tendency has been for mainstream society, particularly researchers and bio-prospectors, to appropriate indigenous knowledge for commercial gain for themselves.
Orang Asli and indigenous knowledge
A majority of the Orang Asli live in areas that are rich in biodiversity. Their indigenous resource management system, with its set of intricate knowledge gained over generations, has been central to the conservation of resources in traditional Orang Asli areas. In fact, their very survival as a people often depends on their ability to creatively live off nature even as they help conserve and sustain it.
This knowledge has passed through generations and has assured the survival and sustainability of the forest, as well as that of the people and cultures dependent upon it. Indigenous knowledge is more often unwritten and handed down orally from generation to generation, and it is transmitted and preserved in that way.
Some of the knowledge is of a highly sacred and secret nature and therefore extremely sensitive and culturally significant and not readily publicly available, even to members of the particular group.
The rights to the indigenous knowledge are generally owned collectively by the indigenous community (or language group, or tribal group), as distinct from the individual. It may be a section of the community or, in certain circumstances, a particular person sanctioned by the community that is able to speak for or make decisions in relation to a particular instance of traditional knowledge.
The maintenance and protection of indigenous traditional knowledge is crucial to the maintenance of indigenous culture. Unfortunately, the spiritual, ancestral and linguistic ties the Orang Asli have to the land are rarely shared by loggers, settlers, developers, scientists and politicians who seek to make the most of tropical forests differently.
What is Indigenous/Traditional Knowledge?
The International Council for Science (ICSU) define traditional knowledge as:
A cumulative body of knowledge, know-how, practices and representations maintained and developed by peoples with extended histories of interaction with the natural environment. These sophisticated sets of understandings, interpretations and means are part and parcel of a cultural complex that encompasses language, naming and classification systems, resource use practices, ritual, spirituality and worldview.
Also, in the context of indigenous peoples such as the Orang Asli, traditional knowledge generally means traditional practices and culture and the knowledge of plants and animals and of their methods of propagation. It includes: expressions of cultural values, beliefs, rituals and community laws, and knowledge regarding land and ecosystem management. Generally, however, this knowledge is not documented, rather is it is transmitted orally.
Oral Tradition, a Collective Knowledge
Orang Asli oral tradition, nevertheless, is more than mere matter-of-fact information or record. It is, more accurately, collective knowledge. Such collective knowledge invariably translates into the culture of a people. This culture, as Varese (1988: 66) states, is its production, its objects, its works, the specific mode in which they are used, and the style contained in the work from the very moment of its production.
The communication of this matrix of cultural complexes among the members of a community is seen as the very core of a people’s consciousness. As such, it can be argued that Orang Asli collective knowledge, as contained in their oral tradition, is the foundation on which members obtain their sense of community, personal identity, and ancestral anchorage (cf. Greaves 1996: 26).
Some examples of Orang Asli Indigenous Knowledge
In my stays with the Orang Asli, too, I have been shown a little of what our forests have to offer: certain vines that, when crushed, produce juice effective as shampoo and lice-remover, or the inner bark of a tree that will easily cackle into flames when everything else is rain-soaked. There is also a variety of fruits and vegetables which the Orang Asli consume that you will not find in the market, as well as a variety of natural dyes, aromatic scents and, of course, medicines.
In fact, in 1966, I.H. Burkill, in his two-volume A Dictionary of the Economic Products of the Malay Peninsula, listed more than 1,000 items from the forests that were being used and had the potential for commercial exploitation – as medicines, food, personal care products, construction materials, and other uses. Of these, more than 400 have been attributed to the indigenous knowledge of the Orang Asli.
Also, Hanne Christensen, in her Ethnobotany of the Iban and Kelabit, catalogued 1,144 different plant species that had ethno-botanical value in just two traditional indigenous communities in Sarawak.
Orang Asli indigenous knowledge is not limited to medicinal plants
What constitutes indigenous knowledge includes Orang Asli oral tradition and Orang Asli cultural heritage. The latter is best defined by the then UN Special Rapporteur on Discrimination Against Indigenous Peoples: Protection of the Heritage of Indigenous People, Erica-Irene Daes (UNESCO 1995), as follows:
The heritage of indigenous peoples is comprised of all objects, sites and knowledge the nature or use of which has been transmitted from generation to generation, and which is regarded as pertaining to a particular people or its territory.
The heritage of an indigenous people also includes objects, knowledge and literary or artistic works which may be created in the future based upon its heritage.
[It] includes all moveable cultural property as defined by the relevant conventions of UNESCO, all kinds of literary and artistic works such as music, dance, song, ceremonies, symbols and designs, narratives and poetry; all kinds of scientific, agricultural, technical and ecological knowledge, including cultigens, medicines and the rational use of flora and fauna; human remains; immoveable cultural property such as sacred sites, sites of historical significance, and burials; and documentation of indigenous peoples' heritage on film, photographs, videotape, or audio tape.
On Orang Asli oral tradition
The teachings or ‘ancient wisdom’ of the Orang Asli are usually transmitted through storytelling, mythmaking, or via ritual and symbolic art. Orang Asli oral tradition is multi-functional, varied and invariably extensive and exclusive. It is used to amuse, to teach, to record, to remind and to explain.
Such oral tradition would include: myths about their view of the world and its genesis; heroic accounts of revered personalities (whether real or fictitious); a catalogue of do’s and don’ts to ensure the desired social behaviour; an encyclopedia of knowledge and information necessary for successful utilization of the natural resources; yarns and tales to amuse, entertain and educate; and accounts of personal experiences of the elders and of those who came earlier.
Nevertheless, regardless of its function, all Orang Asli oral tradition is based on close observation and understanding of the environment and represents a repository–and the means of transmission–of generations of wisdom about the environment.
However, it is also possible for an aspect of Orang Asli oral tradition to be appropriated by another community, with far-reaching consequences for the community’s identity and rights. The fate of the Orang Asli legend of Si Tenggang best illustrates how this can be so.
The Legend of Si Tenggang – Orang Asli or Malay?
The story, in brief, as it was told in school texts in the 1960s (Abdul Samad Ahmad, 1955) is that of a poor Orang Asli (“sakai”) boy, Tenggang, who joined a trading ship to improve his economic position. After a few years, he achieved success, married a Malay princess, and became the captain of a huge ocean-going ship, forgetting his humble roots in the process.
One day, in order to take shelter from an impending storm, his ship happened to berth near his birthplace. His ageing parents recognized him from a distance and rowed out to him in a dug-out canoe, carrying gifts of fruit. They called out to their long lost son. Tenggang recognized them but was too embarrassed, in front of his royal wife, to acknowledge the dirty duo in loin-cloth as his parents. The elderly couple was extremely depressed by this denial, and placed a curse on their unfilial son. The story goes on to describe how, in the ensuing storm, the ship capsized and was transformed into rock. The cabins of the ship then became the caverns of what is now known as Batu Caves, a popular tourist attraction just north of Kuala Lumpur.
That this was an Orang Asli story is beyond doubt. In the textbooks, Tenggang and his parents were described as ‘sakai’, the derogatory term used popularly then to refer to the Orang Asli. Illustrations of the elderly couple also conformed to the stereotyped perception of the Orang Asli: ragged hair, topless, loin-cloth, wretched-looking.
Nevertheless, the story as it stands has important implications for the Orang Asli, not the least of which being that the story is but part of the vast body of oral tradition identified with the particular Orang Asli group–the Temuan–living in the vicinity of Batu Caves. Such clear references in the legend to the presence of Orang Asli living near the caves since mythical times also add testimony to their claim of being the original inhabitants of the area. In any case, the legend contributes to the cultural complexity that gives the community its social identity.
However, in recent times, the story of Si Tenggang has been retold without any suggestion of Orang Asli characters. In the 1992 version, in the widely-read New Straits Times Annual (Adibah Amin 1992), there is no doubt that Si Tenggang and his parents had always been Malay. There was also no suggestion of any Orang Asli origin to the story.
Later, in perhaps an attempt to firmly establish the ‘Malay context’ of the story, it was made into a television drama and aired over the national channel (RTM1, 22 May 1997). The casting, the costumes, the dialogue–all left no doubt that it was a Malay story about a Malay event.
Thus, by the gradual action of communicating a deception, the collective property of the Temuan in the Batu Caves area became appropriated by another community. In the process, the ‘historical’ or legendary link of the Temuan to the caves has been diluted in the mind of the public, and over time, the Temuan’s own spatial identity with the caves has been affected. In a way, the Temuan community concerned has been subjected to a sort of cultural conquest, where the weaponry has been bloodless, silent and dominating.
As such, infringements of indigenous intellectual property rights as they pertain to Orang Asli oral traditions do not merely translate into ringgit and sen lost to the community, or gained by others. More significantly, they often affect the very basis of Orang Asli political autonomy and identity–as such acts cause the Orang Asli to lose their cultural and civilizational autonomy, especially if they are accompanied by policies of assimilation and integration into the ‘mainstream society’.
Threats to Indigenous Knowledge Preservation and Continuity
The preservation of Orang Asli indigenous knowledge is under threat. There are threats today that seek to compromise (and sometimes extinguish) both the traditional knowledge of indigenous peoples and the biodiversity of their forest homelands. Their lands are being converted to plantations, development projects or recreational sites. This inevitably involves the resettlement of indigenous peoples to new, unfamiliar areas. Other threats are less direct yet have as much impact, such as their assimilation into mainstream society or their adoption of a different worldview.
More frequently, the Orang Asli and other indigenous peoples have had to disregard their time-tested traditions at the expense of the environment.
The threats to Orang Asli indigenous knowledge can be categorized as follows (cf. AHRC Native Title Report 2008):
- political non-recognition (of Orang Asli and their rights)
- breakdown in cultural integrity
- social and economic pressures (assimilation, poverty, education, marginalisation of women, loss of language)
- land encroachments (deforestation, forced displacement and migration)
- exploitation of traditional knowledge (bioprospecting, objectification)
- development policy (agricultural and industrial development)
- globalisation and trade liberalisation.
Major international instruments that recognize
Indigenous peoples’ right to protect their traditional knowledge
The threats to Orang Asli indigenous knowledge occur despite there are several ‘protections’ afforded by international instruments, including those which Malaysia had already signed or ratified.
The Universal Declaration of Human Rights
The International Covenant on Economic, Social and Cultural Rights
Article 15, paragraph 1 (c)
The International Covenant on Civil and Political Rights
The Convention on Biological Diversity
Article 8 (j)
The International Labour Organisation Convention No.169 concerning Indigenous and Tribal Peoples in Independent Countries
Articles 13, 15, 23
The Rio Declaration on Environment and Development
The UN Declaration on the Rights of Indigenous Peoples
Articles 11 and 31
More specifically, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) draws on other major instruments to provide the most explicit recognition internationally of Indigenous people’s rights to their traditional knowledge:
Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect, and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. [Article 31, paragraph 1.]
The Convention on Biological Diversity also provides specific opportunities for introducing measures to recognize and protect indigenous knowledge. In particular, Article 8(j) of the Convention encourages countries to:
…respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices. [Article 8(j)]
Article 8j in fact acknowledges that indigenous knowledge, which has passed through generations, is holistic and ecological. It recognizes that indigenous knowledge can assure the survival of the forest environment, its biological components, and the people and cultures dependent upon it – that is, the ecosystem as a whole.
It follows that, if indigenous culture is not respected, if indigenous traditions and spirituality are not continued, and if indigenous territories are not protected, one can expect both the biodiversity and the knowledge that comes with this to soon disappear ... forever.
Unfortunately, Article 8j of the Convention on Biological Diversity itself does not call for such protection, subjecting instead each country to its own national legislations. This needs to be reformed, for existing practices and legislations are still skewed away from the interests of the indigenous peoples and, consequently, of protecting biodiversity indirectly.
Measures needed to protect indigenous knowledge
Shubha Ghosh (2012:1-2) opines that traditional knowledge does not find a comfortable fit within the broad category of intellectual property. Traditional know-how is often more mental than technological, engaging with culturally defined ways of thinking, rather than complex machines or technologies.
He further adds that, while the products of intellectual property are designed to promote change, the fruits of traditional change are meant to ensure a stable set of knowledge rather than to invite innovation and change. Indigenous traditional knowledge therefore is not simply a different type of intellectual property; it is a completely different entity. And a different way of resolving the issue is needed.
The conceptual framework for traditional knowledge protection should therefore be relooked into. Should the framework be a defensive one, preventing the misappropriation of traditional knowledge through patenting by multinational corporations, or should it be an offensive one, allowing carefully defined stakeholders to manage and appropriate value from property rights? If both defensive and offensive goals are desired, then how should the promotion of a rich public domain be balanced with commitments to protecting economic, social, and cultural rights of designated owners? (Ghosh, 2012)
Sui generis solutions are also needed. Certainly a law which recognizes the knowledge systems of indigenous peoples may also be a necessary corollary. This could, for example, state that indigenous knowledge is, and will always remain, the right of indigenous peoples and will be inviolate. It becomes, like land, inalienable, because it is inextricably a part of their social and cultural identity.
Such a law would also see to it that the registration of intellectual property that is based on indigenous knowledge will be only be able to be effected if there was:
- Mandatory disclosure of the indigenous knowledge element;
- Free, prior and informed consent of the indigenous knowledge owners; and
- A benefit sharing arrangement entered into with the relevant indigenous knowledge owners.
This will require ‘prospectors’ to apply for consent from indigenous peoples and for them to specify why access is requested, the amount of biological material to be taken and where they will be deposited, how these will be used, how the indigenous people can collaborate and, finally, what the benefit-sharing arising from the use of the resource and knowledge will be.
The aim of all this is not only to bring benefit to those who justly deserve them but to rethink the way knowledge of, and the benefits derived from, the diversity of our biological resources should be disseminated and shared, as it was originally intended – that is, for the good of all.
Assessment of available traditional knowledge
However, before we can think up of any sui generis legal systems to protect indigenous knowledge, it may be necessary to assess the current situation in the country. We will need answers to the following questions posed by Twarog and Kapoor,(2004: 63):
- What are the main types of traditional knowledge in the country?
- Who are the traditional knowledge holders?
- Are some parts of the traditional knowledge shared by several communities or tribes? If so, what is the relationship between these groups?
- How is traditional knowledge transmitted among traditional knowledge holders and inter-generationally?
- What role do customary laws play?
- Are certain bodies of traditional knowledge in danger of being lost? If so, what are the main underlying reasons for this?
- What efforts have been made to document traditional knowledge?
- In what ways are traditional knowledge and traditional knowledge -based products being used commercially?
- Is traditional knowledge currently being accessed by third parties? If so, in what manner? Are the traditional knowledge holders reaping benefits from this? Are there cases of inappropriate use?
- What is the level of awareness of the value of traditional knowledge in the country?
- What is the current legal and institutional framework affecting traditional knowledge?
- Who are the main stakeholders interested in the issue? These could include traditional knowledge holders (individuals, communities, tribes, traditional practitioner associations, etc.), government officials (in ministries of environment, trade, intellectual property, indigenous affairs, health, tourism, development, etc.), non-governmental organizations, research institutes, health care facilities and private-sector entities.
- How do these stakeholders currently interact?
- What are the main traditional knowledge-related concerns and objectives expressed by these different groups of stakeholders?
In conclusion, it is safe to say that the true protection of indigenous knowledge for the Orang Asli and Orang Asal communities will only be realizable if and when two fundamental prerequisites are realized:
- To protect biodiversity, you need to protect traditional knowledge. And to protect traditional knowledge, you need to recognize the rights of the Orang Asal, including their right to their customary lands.
- The Orang Asal are to be regarded, not as a stake-holder, but as a rights-holder to their knowledge, to the bio-resource and to the territories those resources are found in.
Only then can they be expected to turn their own knowledge into income generating opportunities through the use of modern methods to protect and market such knowledge.
Time did not allow the proper annotation and references of some of the text above which have been drawn heavily, sometimes verbatim, from the following references.
Abd. Samad Ahmad (1955). Nakhoda Tenggang. Kuala Lumpur: The Khee Meng Press.
Australian Human Rights Commission, Native Title Report 2008.
African Regional Intellectual Property Organization (ARIPO) (2010), Swakopmund Protocol
on the Protection of Traditional Knowledge and Expressions Of Folklore, Namibia.
Burkill, I.H. (1966), A Dictionary of the Economic Products of the Malay Peninsula, 2 volumes, Ministry of Agriculture, Malaysia.
Christensen, Hanne (2002), Ethnobotany of the Iban and Kelabit, Nepcon/University of Aarhus/Forest Department Sarawak.
Davies, Rob (2011), ‘How we're trying to protect indigenous knowledge.’ 28 October, Speech by minister on Intellectual Property Laws Amendment Bill (Oct. 27), South Africa.
Ghosh, Shubha (2012), ‘The quest for effective traditional knowledge protection: Some reflections on WIPO’s recent IGC discussions.” Intellectual Property Programme, Volume 6, Number 2, June 2012.
Greaves, Thomas (1996). Tribal Rights. In: Stephen B. Brush and Doreen Stabinsky (Ed.)(1996), Valuing Local Knowledge: Indigenous People and Intellectual Property Rights. Washington DC: Island Press, pp. 25-40.
International Council for Science, Science and Traditional Knowledge, Report from the ICSU Study Group on Science and Traditional Knowledge, Paper delivered to 27th General Assembly of ICSU, Rio De Janeiro, Brazil, September 2002, p 3.
Kelly, G. (2005), Report on Threats to the Practice and Transmission of Traditional Knowledge Regional Report: Asia and Australia, Phase II of the Composite Report on the Status and Trends Regarding the Knowledge, Innovation and Practices of Indigenous Peoples and Local Communities relevant to the Conservation and Sustainable Use of Biodiversity, 2005, UN Doc: UNEP/CBDWG8J/4/INF/4, p 25.
Nicholas, Colin (2004), ‘For the Good of All.’ The Star, 3 February [Star Two/Environment, page 4].
Nicholas, Colin (2004), ‘Stories of a People: Asserting Place and Presence via Orang Asli Oral Tradition’, Paper presented at the Seminar and Exhibition on Orang Asli Oral Tradition, 8 September, FSSK-UKM, Bangi.
Nicholas, Colin (2006), ‘Biodiversity & Local Livelihoods and the link with Culture, Politics and Development among the Orang Asli in Peninsular Malaysia.’ Paper presented at the 10th International Congress for Ethnobiology, 6–9 November 2006, Chiang Rai, Thailand.
Twarog, Sophia and Promila Kapoor, (Ed)(2004), Protecting and Promoting Traditional Knowledge: Systems, National Experiences and International Dimensions. UNCTAD, United Nations.
United Nations Permanent Forum on Indigenous Issues, Report of the Secretariat on Indigenous traditional knowledge, UN Doc E/C.19/2007/10.
United Nations Permanent Forum on Indigenous Issues, Report of the Secretariat on Indigenous traditional knowledge, UN Doc E/C.19/2007/10.