Exploring the Nuances, Ethicality and Functionality of ‘Consent’: Prior Informed Consent as a Legal Mechanism to Protect Malaysia’s Indigenous Communities’ Rights to Genetic Resources and Associated Traditional Knowledge

Abstract

Indigenous communities worldwide face a new type of capitalist accumulation by the outside world – not only are lands and livelihoods illegitimately seized, as has been the case throughout history, but today indigenous innovations and knowledge systems are commoditized and ascribed commercial value as they present a biotechnological and pharmaceutical marketplace. Researchers, corporations, and governments seek access to and ownership over native plant resources and their associated traditional knowledge, and often do so unjustly, unlawfully, and violently. Thorough and meaningful consent processes for the utilization of such knowledge are rarely undertaken by access-seekers, and when they are, they often have many problems. Governments additionally sideline and marginalize indigenous individuals from the political process that governs these resources. Methodologically, this study utilizes scholarly research to analyze current formal and informal frameworks used to protect such traditional knowledge systems, posing a comparative analysis of the international, national, and grass roots frameworks. It focuses largely on the legal concept of ‘Free, Prior, and Informed Consent (FPIC),’ its historical foundations, ethical boundaries, nuances, and the potential functionality of a mandatory FPIC policy governing indigenous biodiversity matters within Malaysian national law. The research concludes by detailing visits to and interviews with four indigenous communities in the East Malaysian state of Sarawak and in Perak, Peninsular Malaysia, sharing locals’ concerns, hopes, and methods for knowledge protection, and recommendations for indispensable legislative action to be taken by both the state and federal governments of Malaysia and other biodiversity-rich countries.