A/HRC/45/35 41. Approaches to these problems must include better awareness of the world views of indigenous peoples, so that all parties can respect indigenous peoples’ own approaches to socalled intangible resources, knowledge and expressions. In addition, they must also include proactive measures for preventing the misappropriation of indigenous peoples’ cultural heritage, such as recognition of their ownership or stewardship pursuant to their laws, customs and traditions; requirements of consultation; and use of free, prior and informed consent by researchers, companies and others who seek to work with indigenous peoples’ resources. 22 Pursuant to indigenous traditions and practices, there may be multiple, overlapping owners or stewards of such resources, whose use is regulated customarily among them. Some indigenous peoples have developed their own protocols for regulating claims by outsiders, which may include requirements of permission to enter the indigenous territory, submission to the jurisdiction of the indigenous governance system, written consent of participants, labelling measures, benefit-sharing and other elements.23 42. Remedial measures are necessary when cultural heritage has been appropriated in violation of these rights and norms. In one example, the San people of South Africa, after finding out that their traditional knowledge had been used without their permission to secure a patent on the appetite-suppressing qualities of the Hoodia plant, successfully negotiated for a benefit-sharing agreement.24 In other instances of appropriation, repatriation may be an element of remedial measures. 43. One international body devoted to these issues is the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, of the World Intellectual Property Organization (WIPO). In accordance with its mandate, the Intergovernmental Committee is undertaking negotiations with the objective of reaching agreement on the text of an international legal instrument that will ensure the balanced and effective protection of traditional knowledge, traditional cultural expressions and genetic resources. 25 An indigenous caucus participates in the negotiations and a voluntary fund supports participation by indigenous peoples. 44. WIPO supports national policy development in the area of traditional knowledge, traditional cultural expressions and genetic resources, and conducts training for multiple stakeholders. It has also developed a practical guide for indigenous peoples and local communities on the strategic use of the intellectual property system to protect their rights.26 Nevertheless, because the Intergovernmental Committee has not yet fully embraced the rights enshrined in the United Nations Declaration on the Rights of Indigenous Peoples, the process risks perpetuating intellectual property concepts harmful to indigenous peoples’ intangible cultural heritage. One example is the insistence that once a cultural resource is in the “public domain”, the indigenous owners or stewards cannot reclaim it, even if it was taken without their free, prior and informed consent. V. Good practices and lessons learned A. Repatriations 45. There is a wealth of examples of repatriations from which valuable lessons can be learned. The following examples are all unique, given the specificities of the indigenous peoples and State institutions involved, the differing experiences of colonization, and the diverse understandings of cultural and spiritual dimensions of the ceremonial objects or human remains involved. Nonetheless, they all share the key element of efforts to advance recognition and respect for human dignity across cultures and societies, as well as a 22 23 24 25 26 See A/HRC/39/62. See https://jan.ucc.nau.edu/hcpo-p/ResProto.pdf; and https://umaine.edu/news/blog/2018/05/04/umaine-penobscot-nation-sign-mou-focused-managingtribes-cultural-heritage/. Cultural Survival, “Sharing the secrets of the Hoodia: San to reap financial benefits of traditional knowledge” (accessed on 10 July 2020). See www.wipo.int/tk/en/igc/. See www.wipo.int/publications/en/details.jsp?id=4195. 9