(2010) JLP 61: 55-80
Indigenous peoples are today contesting the universalisation of Western intellectual property law, in which intellectual property rights have expanded to materialise abstract ideas so that individuals can gain private ownership of them. It is argued here that the application of Western property law threatens the social and cultural integrity of indigenous peoples. These issues are considered within the context of the San and their struggle to gain cultural and land rights in the landscape of the Kalahari in Southern Africa.
Policy in the international community towards indigenous peoples has evolved to an acceptance of the recognition of indigenous peoples’ self determination rights in the UN Declaration on the Rights of Indigenous Peoples. In the light of these developments the paper examines the case of Hoodia and the San. Hoodia, an edible wild plant which can serve as an appetite suppressant was long known to the San before it was scientifically investigated by the South African Council for Scientific and Industrial Research (CSIR). CSIR filed a patent application for its use without consulting or obtaining the consent of the San, and then signed a licence agreement for its further investigation and use with a foreign company. Publicity later encouraged the CSIR to enter into benefit sharing agreements with the San. However, when the focus shifted from using Hoodia as a drug to using it as a natural food supplement, the total market value and thus the absolute benefit share declined, while the international demand for Hoodia as a natural product exploded and poaching and illegal harvesting of the product became a problem. The San were able in 2007 to negotiate a new benefit sharing agreement specifically with the Hoodia farmers organized in the Southern African Hoodia Growers Association. Today it seems that a Hoodia growers’ benefit sharing agreement, while still bringing relatively modest benefits. might potentially be more lucrative than the initial benefit sharing agreement, but with proceeds distributed just to the farmers rather than the San as a wider community.
The paper explores the implications of these developments, using a socio-legal, anthropological and legal pluralist perspective, which allows for an exploration of how overlapping legal systems can interact with each other. This approach also encourages researchers to embrace the idea of a hybrid legal space where law-making consists of a praxis that interlocks a whole range of legal actors ranging from international institutions to daily localised legal actors.