Chilean Constitutional Court Orders Protection of Indigenous Seeds

On Friday, June 24th, the Chilean Constitutional Court rules on the constitutionality of UPOV 91 — the International Convention for the Protection of New Varieties of Plants –which essentially gives property and other rights to the “breeders” of new seed variants. UPOV 91 has been consistently opposed by Indigenous peoples who have argued that the Convention will hurt Indigenous farmers and has the potential to rob Indigenous peoples of their cultural property.  Ultimately, the Court ruled that UPOV 91 was constitutional, but in the process it made several important statements designed to protect the interests of Indigenous peoples.

The challenge to UPOV 91′s constitutionality came on May 27th when seventeen Chilean senators, led by Senator Navarro (MAS) claimed that the Convention was unconstitutional, primarily on the grounds that the Convention takes seeds away from Indigenous and peasant farmers who have used them for generations without any sort of compensation. The Constitutional Court accepted the case and provided time for organizations and communities to submit comments and reports on the issue. Many Indigenous communities took advantage of this opportunity and expressed their concerns and problems with UPOV 91 as well as their opposition to it.

The Court ultimately upheld the constitutionality of UPOV 91, but according to Senator Navarro, the Court set forth “a sentence that requires the State to protect the rights of Indigenous and peasant communities.”

In the Court’s 115-page decision, it laid out guidelines to protect Indigenous peoples, as well as Indigenous and peasant farmers throughout Chile. For instance, the Court indicates that, “UPOV 91 cannot be interpreted in any way that might affect traditional knowledge and practices, which are rights that make up Indigenous peoples’ cultural identities, and that the Chilean State must respect and promote those rights because of a constitutional mandate and the international commitments to instruments, such as ILO Convention 169.” In this context, the Court seemed to indicate specifically that ILO Convention 169 requires consultation on this issue with as widespread participation as possible, but the Court never directly indicated whether it believed that consultation process had effectively occurred or not.

More specifically, the Court indicated that if an Indigenous people have immemorial knowledge of a seed, that could prevent registration of rural Indigenous seeds with a corporation. Navarro called this a great achievement that “severely limits the possibility of legal theft of traditional seeds.” Additionally, the Court held that the sale or exchange of seeds within the context of Indigenous communities could be enough to take a seed out of UPOV 91′s reach, thus protecting those seeds from registration with a corporation as well.

The Court also indicated that President Piñera wrongly denied payments of compensation or benefits to Indigenous peoples whose seeds were the basis for future improvement by corporations. And at another point, the Court made it clear that “the rights of breeders established by UPOV 91 are not absolute,” but are limited by various laws and regulations. In particular, the Court indicated that the Convention should be construed in a manner that protects domestic farmers, including Indigenous farmers.

Senator Navarro indicated that while the Court did not find UPOV 91 unconstitutional, there were positive statements made by the majority, as well as additional beneficial statements in the dissenting opinion. Navarro also stated that it was now up to the legislature to use what the Constitutional Court has said and carefully craft legislation that will continue to protect local and Indigenous farmers moving forward.

Document: Constitutional Court decision (June 24, 2011)

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