Common use of Lack of Resources Clause in Contracts

Lack of Resources. A common theme raised by indigenous organizations advocating for the various rights created in both international and domestic legislation is the massive and inherent power differential between them and their more established negotiating opponents.50 In this case, the rooibos industry is commercially successful, with modern means of communication and the capacity to rely upon legal advice from professional accountants, as well as a leading international commercial law firm. The indigenous peoples by contrast relied on voluntary organizations representing the poorest of South African communities, with no immediate funding for legal representation and a lack of access to modern means of communication. Whilst DEA has fulfilled its facilitative role in funding travel and logistics for the plenary meetings since 2012, both the San and ▇▇▇▇ were challenged by their lack of funding and capacity. The South African San Council had been functioning on a skeleton budget since 2001 that enabled them to employ only one or, at the most, two staff supporting a volunteer council. They had no additional funds to pay for community meetings, travel, or legal support. The lawyer representing the San interests did most of the work on the case pro ▇▇▇▇. The National ▇▇▇▇-San Council, despite having been formed by the government in 1999, had never been allocated funding, and it relied solely upon funds raised by its legal representatives, the environmental rights NGO Natural Justice. Legal and intellectual property advice for the TK holders was therefore reliant upon charity, as well as various international supporters of indigenous rights. To date, no other comprehensive, industry-wide benefit sharing agreement has been concluded under the CBD and the Nagoya Protocol. Hence, there was no precedent from which the parties to the RBSA could learn. Throughout the negotiations, the central question remained the issue of what constitutes a fair levy, i.e., both what the industry could afford, and what represents fair restitution for the holders of TK. Numerous proposals were made as to how the large and complex rooibos industry could be covered by a single agreement with one point of collection for monetary benefits. Several financial models, legal arrangements and competing proposals were shared in private meetings and correspondence. A mediation process was required to assist progress toward the final agreement that a 1.5 percent levy would be collected by processors of rooibos and shared with the TK holders (see Figure 3). As all rooibos is processed before it is either exported or converted into tea and other products, this model enables the cost of the levy to be spread and shared both ‘upstream’ to the growers, as well as ‘downstream’ to the distributors and sellers. The groups involved in the RBSA overcame significant obstacles which had led to the collapse of similar benefit sharing agreements in other geographic regions. Of particular importance was the aforementioned unity amongst the San and ▇▇▇▇ as TK holders, the recognition of the contributions of small-scale farmers, and the willingness of the rooibos industry to cover all rooibos production and sale with one benefit sharing agreement. The Relationship with the San Code of Research Ethics Indigenous peoples are frequently considered to epitomize vulnerable populations in need of protection from exploitation51,52,53,54 whereby being ‘vulnerable’ can be defined as: [facing] a significant probability of incurring an identifiable harm while substantially lacking ability and/or means to protect oneself.55 Being exploited in research, or biotrade and bioprospecting, is a serious, identifiable harm. Taking the San community as an example,56 deeply respected San community leaders have repeatedly expressed their concerns about such exploitation and have: In recent years …, with increasing confidence, arrived at the conclusion that most … research on their communities was neither requested, nor useful, nor protected in any meaningful way. In many cases dissatisfaction if not actual harm was the result.57 The effects of collective trauma (e.g., past genocide), loss of traditional lands, extreme poverty, lack of access to education, as well as lack of funds to employ outsiders, all meant “that the protection of … [San] traditional knowledge was precarious.”58 Yet, the San community have managed what no other indigenous community has done in Africa before, i.e., they were the first indigenous community on the continent to issue their own code of research ethics.59 The San Code of Research Ethics (2017) is built around four substantial moral values, and also requires due process. After a range of consultations, the authors of the San Code were clear that they wanted respect, honesty, fairness, and care60 from researchers and those using their TK. Unusually, and very effectively, the authors decided to add exploitation examples within the ethics code. For instance, under fairness, they wrote: We have encountered lack of justice and fairness in many instances in the past. These include theft of San traditional knowledge by researchers. At the same time, many companies in South Africa and globally are benefitting from our traditional knowledge in sales of indigenous plant varieties without benefit sharing agreements, proving the need for further compliance measures to ensure fairness.61 For rooibos, the RBSA ensures that the sales of indigenous plants based on TK no longer occurs without benefit sharing, thereby satisfying the moral value of fairness. The following overview shows how respect, honesty, fairness, and care are prominently worked into the RBSA, which was informed in the crucial last years of negotiations by the San Code of Research Ethics. The examples given are not exhaustive. Table 3. Respect, honesty, fairness, and care in the Rooibos Benefit Sharing Agreement (RBSA 2019)