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No 33 -
juin/août 2007

Terres inoccupées et semences brutes: des doctrines de la découverte aux brevets sur la vie
Shiri Pasternak

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Des articles plus étoffés, présentant des synthèses ou des analyses. Une certaine manière de «centrer l’image» sur l’impact éthico-social.

Empty Lands and Raw Seeds: From the Doctrines of Discovery to Patents on Life* Imprimer

This essay brings to light a relationship between the colonial doctrine of discovery and patents on life today. By tracing the doctrine of discovery, the assignment of terra nullius, and  the development of the discourse of improvement, this essay aims to show the ways in which indigenous people’s relationship to nature has been defined and circumscribed by terms of “vacant lands” and “raw seeds” in attempt to justify the denial of pre-existing Aboriginal ownership of land and knowledge in North America and around the world.

Shiri Pasternak**

In this paper I want to unpack the relationship between the emergence and implementation of the doctrine of discovery in North American and the current property rights regime of patents on life that are claimed by transnational corporations on seeds and plants in indigenous territories world-wide. I want to show how the colonial picture of terra nullius still holds us captive and the ways in which property rights are central to framing a particular image of indigenous peoples.

I will first show how colonial arguments justifying the expropriation of Native lands are now applied to the patenting of plants, animals, human biology, and knowledge. These “discovered” resources deny pre-existing indigenous laws and ownership of the land and life. I develop this argument by pointing to the genealogy of “improvement,” tracing it to John Locke’s adaptation of the doctrine of discovery, which he infused with the language of improvement, and showing how this discourse remains intact as a method of distinction between seeds cultivated by indigenous people and those developed for markets by transnational corporations.

In the final section of this paper, I look at how a new form of power, biopower, is used against indigenous people, exercised towards the aim of “discovering” more indigenous land and knowledge to expropriate for the benefit of transnational pharmaceutical and agribusiness profit. I conclude this survey of the doctrine of discovery by suggesting some problems with critiques of terra nullius that place indigenous people back within the descriptive language that they have so adamantly resisted. I suggest instead that we recognize the cultural and political integrity of property regimes.

The Doctrine of Discovery

Introduced by French settlers, the Doctrine of Discovery inscribed “vacant” or terra nullius (no man’s land) into Canadian geography, etching these words into the earth like rivers seen from above.

Terra Nullius is an ancient Roman law revived by Spain, Portugal, England and the Church in the fifteenth and sixteenth centuries. The Doctrine was designed to control and maximize European exploration and colonization of the New World. It gives the “discovering party” the right of occupation. If the land was inhabited, “discoverers” still had the first right to trade with and to negotiate with the newly “discovered” peoples. When Europeans settlers found the New World inhabited, Terra Nullius was redefined to include lands that were occupied, but uncultivated according to European standards of agricultural production. Vacant land had less to do with habitation than with legitimate property rights (1). Aboriginal peoples perceived to “roam wildly” were discounted as having territorial claims.

To be discovered meant to have your laws, customs, and ways of life re-described and overlaid by a distant, imperial force and its local officials. The French regime never even entered into any land treaties with indigenous peoples, “it simply assumed sovereignty and title to the land in virtue of the doctrine of discovery” (2). Soon after the ink dried on the Treaty of Paris in 1763 and sovereignty passed from the French to the British crown, King George III issued a royal proclamation that gave the Crown the exclusive right to buy land from the Aboriginal people and criminalized any settlement west of old Quebec and the Appalachians that had not obtained royal approval. The new government had faced open resistance – the Pontiac Rebellion (3) – contesting British rule over their lands. To appease badly needed military allies, the Royal Proclamation of 1763 recognized that discovered lands must be subject to purchase, while still criminalizing Pontiac’s rebellion by reaffirming the Crown’s rights of “discovery” and sovereignty. Today, section 25(a) of the Canadian Charter of Rights and Freedoms reaffirms the Royal Proclamation of 1763.

Austrian philosopher Ludwig Wittgenstein wrote aphoristically on the power of words to shape our ideas about the world: “A picture held us captive and we could not get outside it, for it lay in our language and language seemed to repeat it to us inexorably” (4). In 1996, the Royal Commission on Aboriginal Peoples recommended that Canadian governments acknowledge that the “concepts of terra nullius and the doctrine of discovery are factually, legally, and morally wrong” (5). However, to this day, Native territory still ultimately belongs to the sovereign nation of Canada, by virtue of discovery, and cannot be ceded or sold, except to the State.

Patents on Life and the Doctrine of Discovery

Unfortunately, history is compromising and tends not to discard its worst ideas. Rather, ideas entrench where regimes of power rely on the strength of particular narratives. Both European colonialism and the expansion of intellectual property claims to patents on life can be read as based on the same “doctrine of discovery”.

While land distribution in Canada was based on discovery, claims to intellectual property are also based on principles of discovery. The “doctrine of anticipation” encapsulates this emphasis on discovery,  protecting the “novelty” of a discovery by refusing to grant patents to those that resemble other claims (6). Patents on life safeguard biological “inventions” or discoveries by awarding property rights. As we will see below, patent law comes to function precisely as the doctrine of discovery when applied to genetically engineered seeds and international bioprospecting in the traditional territories of indigenous peoples.

Comparisons between the concept of vacant lands to the logic of patents on life forms have been made before (7). Long-time anti-GMO campaigner Vandana Shiva points to the underpinning similarities: “The epidemic of biopiracy is rooted in the old colonial assumption of ‘Terra Nullius’ or the empty earth – if a territory is empty of ‘White Christians’ it is assumed to be empty. Today the ‘empty earth’ has been replaced by empty life – plants, animals, micro-organisms and humans become inventions when their knowledge is discovered by Western science or Western commercial interests, even if this knowledge has existed for centuries in indigenous cultures, and even though life forms are not human inventions”(8). Shiva’s crucial insight here is that biological life is not simply “discovered” and patented as invention, but that the gateway to this discovery is the indigenous knowledge that reveals the medicinal, textile, or nutritional value, i.e. commercial value, of these natural products.

Likewise, when explorers first came to the New World, it was the knowledge of indigenous nations that helped settlers adapt and survive in a bewildering and harsh new climate. If not for the generosity of Natives who showed the cold and starving visitors how to plant seeds, navigate waterways, and to hunt and clothe themselves, many would not have lived through their first winter. And yet, indigenous ways of life are considered to be the stuff of “vacant lands” and “empty life”.

The hinge of “vacancy” swings on a singular European understanding of property and ownership. While European settlers assumed that Natives lacked a basic grasp of the importance of property rights, in fact, it was Westerns who had not understood Native ownership practices, laws, and customs. This affront continues with intellectual property claims today. Debra Harry of the Northern Paiute Nation and Director of the Indigenous Peoples Council on Biopiracy, sees intellectual property as a further colonial affront to indigenous understandings of ownership and property: “Western laws are paradoxical to Indigenous cosmologies which revere the sanctity of all life, and mandate human responsibility to serve as stewards, not owners, of the natural world. The infringement of Western law on indigenous peoples over the past few hundred years has created a complex political and legal framework of existence for indigenous peoples” (9).

One method of discrediting indigenous laws and customs around ownership is to depict traditional societies as technology-adverse or as pre-moderns living in a bygone past. But indigenous people have also been engaged in agricultural production and biotechnology for centuries. Perhaps what is most ironic about the historical denial of property rights on the basis that indigenous peoples lack proper techniques of agricultural production is that the Natives of North America were engaged in sophisticated techniques of planting corn, beans and squash – the “Three Sisters” – for around three hundred years before European settlers ever landed on the coast (10).

In Greek, bios means life and techne means human art or skill; biotechnology literally means a “human art or skill of life”. In one of the most amazing technological feats of humankind, over a period of thousands of years, indigenous people in Central America – the Aztecs, Mayas, and Incas – purposefully transformed maize into one of the highest energy foods on earth out of a wild grass call Teosinte. Through diligent seed saving, selection, and cultivation, the agriculturists of these nations radically transformed the natural landscape and local diet. However, unlike current lab research, these techniques have taken place over incredibly long periods of time and were motivated by subsistence needs in the context of religious cosmologies.

Enframing the language of discovery that lead to patents on life are narrow assessments of innovation or invention. Judgments of value made upon these innovations still relies on a privileging of Europeans techniques of agricultural production and science that renders indigenous labours of seed selection and cultivation invisible. And yet, the irony is, those corporate institutions, including corporate-funded university labs, that develop the sciences of biotech may often rely on indigenous knowledge to discover the commercial value of natural products that they then patent (11). The next section looks more closely at how the doctrines of discovery – from land to patents on life – were implemented. Much of the injustice inflicted by the doctrines is captured by the languages of “vacant” lands and “raw” seeds, but these ideas have been shepherded by the historical narrative of “improvement”.

A Story of the Seed

The title for this paper is taken in part from a dispute that erupted at the 1983 Food and Agriculture Organization (FAO) 22nd biennial conference, when states were deliberating the terms of the International Undertaking on Plant Genetic Resources [Resolution 8/83] (12). The concept that seeds, or plant germplasm, are the “common heritage of humankind” was officially adopted into the agreement. However, advanced capitalist countries insisted on a distinction between “elite” and other varieties of seeds, lest they lose their patents to the common pool. “Elite” varieties are those seeds that have been hybridized or genetically engineered by agribusiness. The enlarged definition of “common heritage” would have challenged the commodity form of seeds, lumping together all varieties as “common” and undermining corporations’ ability to forbid, and therefore exclude, people from saving the shared resource of seeds. The Third World bloc eventually won their case for the use of this term, but as a result many advanced capitalist countries, including the US, refused to sign the convention (13). In other words, by saying that all seeds are “common”, corporations feared challenges to their seed patents on the grounds that no individual or institution could claim proprietary rights to a strain since they belong to a “common” pool. For example, intellectual property legislation in the U.S. today protects a genetically engineered tomato seed from being replanted by farmers, punishable as theft, because the corporation owns its genetic identity.

There were efforts made by seed merchants earlier that same year to reconcile the contradictions between “common seeds” and commodities. The transnational seed company Pioneer Hi-Bred sponsored a conference, posing this problem as central: “What is it about the germplasm in commercial varieties as opposed to the germplasm in land races [(14)] that justifies classification of the former as a commodity and the latter as a free good?” (15) As agrarian historian Jack Kloppenburg retells it, one participant rose to the challenge and responded by distinguishing between raw and improved varieties of seed: “raw” are the seeds that indigenous people have been cultivating for thousands of years; “improved” are the seeds that have benefited from “discovery” and manipulation at the hands of European or North American scientists.

By definition, “raw” implies that indigenous people have not processed, refined, or treated in any way the seeds or plants they grow and harvest. In this sense, indigenous people’s relationship to the natural world is depicted as devoid of interaction and interdependence. The upshot for seed companies is that plant germplasm can be mined in the “bio-rich” South, as Kloppenburg puts it, exiting this half of the world “as the common – and costless – heritage of mankind and return[ing] as a commodity – private property with exchange-value” (16).

Today, North America’s share alone in world grain exports is greater than the Middle East’s share of petroleum exports. “Improvement” played a big role in this dominant position. At the beginning of the twentieth century, “the site of [seed] variety ‘improvement’ shifted from the farm to the research station, as the free seed programmes that sent out a diversity of varieties for farmers to select from were gradually replaced by centralized and regulated seed research and production systems focused on releasing ‘elite’ varieties developed by scientists” (17). These national programs were, as Kloppenburg mentions above and which we will see more of below, part of a larger, unequal pattern of global trade in the world.

This language of improvement is intrinsically tied to markets. The transition from hybrids to GE technology, though fundamentally based upon developments in the field of genetics, emerged in large part through economic incentive. Generic competition and declining producer revenues pinched pesticide companies’ profits; they reacted by snapping up seed companies and turning their investments towards biotechnology (18) and the “improvement” of plant genetics. It is no coincidence that by the year 2000, just five corporations (Astra-Zeneca, DuPont, Monsanto, Novartis, and Aventis) accounted for virtually 100 per cent of the market in transgenic seeds and that these same five corporations also accounted for 60 per cent of the global pesticide market and 23 per cent of the commercial seed market (19).

This awesome ecological power did not originate with the penetration of capital into agriculture in the post-World-War II era. In fact, it was the fertile capacity of North American soil to produce grain for Europe that finally won over opposition to the British colonial project, since there was great opposition in England to the colonization of America. Historian Babara Arneil writes that “colonization in America was seen by a minority as the solution to the economic crisis and by the majority as a contributing cause” (20). The productive value of the New World had yet to be proven.

Imperial Improvements

The language of improvement may have been operative in America at the turn of the twentieth century, but its origins date back to the seventeenth century. Improvement answers a similar question to the one guiding today’s corporate patent holders: how do we justify expropriating seeds from the territories of sovereign nations and agricultural economies? The genealogy of such a problem is rooted in a similar conundrum: how does one justify the colonization of Aboriginals in America when they are clearly self-governing peoples?

This second question plagued the Christian conscience of one Virginia plantation owner, slave-trader, and radical dissident against the British Crown. Obtaining consent in nation-to-nation negotiations with the Aboriginals was critical for John Locke. Back home in England, he was a radical advocate of popular sovereignty and strongly anti-Monarchist. But appropriating land was essential to the North American settlement project in which he was invested. To massage his conscience and convince his countrymen, Locke had to invent an argument that could legally overcome the obstacles of Aboriginal resistance to the theft of their land and also the Royal Commission’s 1665 conclusion that indigenous peoples formed sovereign nations, therefore nation to nation consent must be obtained from Aboriginals regarding questions of land and distribution of resources (21).

Central to Locke’s arguments for overcoming traditional provisos of consent is a labour theory of value. What entitles one to enclose and appropriate land is the act of improving it through mixing one’s labour (or employing the labour of another on one’s land) with the earth. This labour theory of value develops concurrently with a notion of productivity that is connected to the rise of the market economy. Productivity should derive profit, which at the time would have been generated through colonial exploitation and naval commerce. This entitlement to appropriate a land is supported in religious terms, expressed as a natural right, conforming to God’s intentions for the order of things. But this imperative is also subjectified, or individualized, so that Man’s improvement is taken as the rational extension of God’s will.

Consent is so central here because for Locke legitimate authority was derived from the consent of the people, an idea that had tremendous influence on the Founding Fathers of the United States of America. The government’s purpose was to protect the natural rights of property and liberty. When a government did not protect those rights, the citizen had the right and even the obligation to overthrow the government.

Locke’s philosophy took virulent root in North America; it was entrenched by Thomas Jefferson in the Declaration of Independence, and subsequently inspired waves of revolution around the world, but it was also fundamentally entrenching a notion of property right entitlement devised to undermine and override indigenous sovereignty and territorial rights. In the Second Treatise of Civil Government, Locke makes the crucial distinction between techniques of improvement by comparing the impoverished vacant lands of the Natives and the wealth of the Europeans:

“There can be no clearer demonstration of anything, than several nations of the Americans are of this, who are rich in land, and poor in all the comforts of life; whom nature having furnished as liberally as any other people, with the materials of plenty, i.e. a fruitful soil, apt to produce in abundance, what might serve for food raiment, and delight; yet for want of improving it by labour, have not one hundredth part of the conveniences we enjoy: and a king of a large and fruitful territory there feeds, lodges, and is clad worse than a day labourer in England.” (22)

Locke criticizes the Natives for impoverishing themselves by being “rich in land”, and “yet for want of improving it by labour”, therefore living in a kind of abject poverty. But improvement is the red herring, of course. Locke in essence gave birth to a second, intertwined justification of colonialism that uses religion to validate settlers’ rights to appropriate indigenous land without Crown consent. The “discovery” of inhabited Native land is now also made valid for those unofficiated by the Crown.

Independent commercial enterprise, revolutionary challenges to monarchical sovereignty in England, and emerging notions of productivity pushed the doctrine of discovery towards the discourse of improvement. But in the next section, we will see how the accumulation of wealth for prospectors of both land and germplasm rests not just on the regulation of property, but also on the ownership of biological processes.

The Political Economy of Biopower

In many ways, this essay is a story about the role property rights and agriculture have played as a technology of colonial occupation. With the introduction of intellectual property in seeds, this occupation through ownership overcame the need for physical occupation and progressed to simple purchase of genetic codes and sequences, eliminating the need to own the land itself. One way to think about these changes in property rights and their implications to indigenous communities, is through the concept of biopower. The aspect of biopower that is most useful to our purpose here is to think of biopolitical power as a way of describing the economic control of reproductive, or biological, processes.

A good example of biopolitical control of reproductive processes emerges around the seed exchange and plunder between the Global North and South. Columbus’ “discovery” of the New World led to the global swapping of plant germplasm between the New World and the Old. Dubbed the “Columbian Exchange”, this oceanic crossing has meant that every single species of economic significance in America has benefited from introgression of foreign genes. According to Jack Kloppenburg, over a period of about four hundred years the world has seen a “global and unprecedentedly rapid movement of plant germplasm, a process that has been shaped in important ways by an ascendant capitalism committed to the creation of new social forms of agricultural production worldwide” (23). As explained in the section above, the Rural Advancement Foundation International (RAFI – now ETC Group) reiterates that “colonial governments had been systematically extracting genetic resources from the South for their own benefit during several hundred years, first through state-owned companies and supposedly non-commercial entities such as botanical gardens and medical research institutes, later also through crop genebanks and microbial collections. After the colonial period, ‘common heritage’ had become the smokescreen under which this extraction could continue, now increasingly under the control of private corporations and protected by IPRs [Intellectual Property Rights]” (24).

The Columbian Exchange, or the global hunt for germplasm, has persisted in the form of bioprospecting today. Bioprospecting is the search for chemical compounds and genetic material in living things that could have some medical or commercial use. Critics call it “biopiracy”, referring “to the appropriation of the knowledge and genetic resources of farming and indigenous communities by individuals or institutions who seek exclusive monopoly control (patents or intellectual property) of these resources and knowledge” (25). It is a lucrative market – though not necessarily for the developing countries, who see only the thinnest fraction of the enormous profits these products can net on the market. RAFI reports that “the value of germplasm from developing countries to the pharmaceutical industry in the early 1990s was estimated at US$32 [billion] a year at least, and genes from developing countries’ fields for 15 major crops contribute over US$50 billion in annual sales in the US alone” (26).

The greatest stores of biodiversity on earth are concentrated near the equator, mostly in the developing world and in the territory of indigenous peoples. Key to “unlocking” the secrets of countless plants and animals is gaining access to indigenous peoples’ extensive knowledge about the properties and uses of native plants. For example, a bioprospecting research project in Chiapas, Mexico, led by the University of Georgia in cooperation with a Mexican university research center, El Colegio de la Frontera Sur (ECOSUR), and Molecular Nature Ltd., a biotechnology company based in Wales, U.K., used indigenous knowledge to guide its research. Met with protest by Mayan communities, known as the Council of Indigenous Traditional Midwives and Healers Chiapas, the consortium refused to back down from their goal of “discover[ing], isolat[ing], and evaluat[ing] pharmacologically important compounds from the plant species and microorganisms employed in traditional Mayan medicine” (27).

In Tarzan, Indiana Jones and Conservation International's Global Greenwash Machine, Aziz Choudry reports that “[i]n Panama, Conservation International (CI) worked with biotech companies Novartis, Monsanto and others, in ‘ecologically guided bioprospecting’ – seeking pharmaceutical and agricultural products from plants, fungi and insects. In Surinam it cooperated with Bristol Myers Squibb, with its ethnobotanists collecting plant samples. CI worked to win the trust of Indigenous communities and healers and negotiate a very dubious ‘benefit-sharing’ agreement” (28). RAFI criticized the deal for the paltry percentage (believed to be around 2%-3% of any royalties) offered to indigenous communities, and said that it is unlikely that the communities fully understood the implications before they consented.

Genetically engineered seeds present another form of biopolitical control. The irony of genetically engineered seeds is that they were conceived to award patent holders with the ultimate commercial control of the seed. However, due to the nature of seed reproduction enforcing ownership on the “product” is nearly impossible. As in the case of nuclear weapons, genetically engineered seeds have a power beyond their creators’ control. Cases of genetic drift – the migration and natural cross-breeding of seeds resulting in the mix of genetically engineered seeds with wild or otherwise cultivated populations – have been recorded in Central and Eastern Europe, Latin America, Africa, and Asia, including Georgia, Sri Lanka, the Philippines, India, Ecuador, Bosnia and Burundi (29). In 2002, officials from the World Food Program (WFP) were forced to admit that they had been distributing genetically engineered seeds for the past seven years without disclosing this fact to the 83 recipient countries of WFP donations. It is now known that the WFP donates about a million and a half tons of transgenic crops annually, most of it likely donated by the United States, their most valuable contributor.

To control their biological products, transnational agribusiness patent holders have to introduce, with the help of states and law-makers, new levels of surveillance, policing and enforcement. The transition from owning a piece of land to owning the rights to a strain of seeds also demands seed companies to exercise a more vigilant form of control because patents on life, and intellectual property more generally, are particularly vulnerable to theft. Devlin Kuyek found that “Monsanto has used private security agents and toll-free ‘snitch’ lines” to enforce “technology transfer” agreements farmers must sign when they purchase genetically engineered seeds (30). In addition, a bevy of thick and tangled legislative ropes governs IP rights internationally. These other methods of control include multilateral trade agreements, such as the Trade Related aspects of Intellectual Property Rights (TRIPs) Agreement of the World Trade Organization (WTO), international conventions for plant breeders rights, such as the International Union for the Protection of New Varieties of Plants (UPOV), and even conservation agreements, such as the Convention on Biodiversity.

Most convenient, however, is the introduction of new laws while a nation is still drafting their constitution. In June 2004, “when transferring sovereignty” to the Iraqi people, Iraq’s U.S. administrator, Paul Bremer, left behind a list of orders for Iraq to adopt. The Order no. 84 “makes it illegal for Iraqi farmers to re-use seeds harvested from new varieties registered under the law. Iraq’s new patent law opens the door to the multinational seed trade, and threatens food sovereignty” (31).

The ethical implications of bioprospecting and genetically engineered seeds are most basically a matter of theft. The criminalization of seed saving and seed sharing means the destruction of local knowledge systems and traditional practices that are deeply entwined with social and political forms of life. It is also an insult to those communities used to sell products they helped cultivate without reaping any of the benefits themselves (32). But the solution is not simply “benefit-sharing”, as it is often called. Transnational corporations deriving profits from these ventures represent enormous concentrations of wealth and power as well as a consolidation of agriculture, food, chemical, and pharmaceuticals industries (33). It is a global enclosure movement, where social movements of indigenous people, peasants, and their allies, are fighting not just the patents on life, but a concentration of capital in the industrial agriculture business that threatens to control world food and drug prices, damage the natural environment, and continue to foster neo-colonial relations of dependence.

Long the subject of imposed laws that deny the pre-existence of their own traditions, indigenous people are wary of the relationship between intellectual property and neo-colonial agendas of appropriation. Capitalism moves inward and outward at once; expanding geographically to new markets and internally to previously uncommodified things like genetic codes and the chemical compounds of plants. This is where the legal powers of discovery and invention fold into biopower: private property is created by control of biological processes, but protected by the public institutions of the state.

Controlling seed production advances capitalism from a system based on a ruling class that owns the means of production to a class of owners, in this case, agribusiness and pharmaceutical corporations, owning the means of reproducing the means of production: in other words, owning the biological processes upon which all production is based. These new “improvements” affect not only the land upon which everything depends, but the creation of life itself.


“[…] When we hear the head of a European state declare with his hand on his heart that he must come to the aid of the poor underdeveloped peoples, we do not tremble with gratitude. Quite the contrary; we say to ourselves: ‘It’s a just reparation that will be paid to us’.”

Frantz Fanon, The Wretched of the Earth

In the beginning of this essay, I invoked Wittgenstein’s quote: “A picture held us captive and we could not get outside it, for it lay in our language and language seemed to repeat it to us inexorably.” This quote acts as a warning for Natives and their sympathizers or allies, eager to refute erroneous assumptions of vacant lands and raw seeds. The danger of further entrenching these attitudes lies in the language in which the discussion is framed:

When Europeans first settled in North America, they understood the land as terra nullius, or occupied by no one. […] We want to deny terra nullius by denying that the land was unoccupied. However, I would argue that to answer the claim of terra nullius, on its own terms, is dangerous because it re-describes Aboriginal relationships to land as ‘occupation’, ‘possession’, and ‘property’. […] Why not deny the authority of terra nullius in its applicability in the first place, rather than quibble about whether or not Aboriginal systems invite definitions of legal systems? (34)

If we continue to defend Aboriginal title within the framework of colonial property rights regimes – those established through colonial settlement and defended by national sovereignty coercively imposed upon indigenous people – then we in fact only more deeply entrench the picture of terra nullius into our political and legal landscape.

Another danger in confronting the erroneous descriptor lies in that which replaces the doctrines of discovery and terra nullius. In 1975, the United Nations General Assembly brought the question of terra nullius to the International Court of Justice. The case referred to whether or not the term could be applied to the peoples of Western Sahara or whether they were eligible for independence since the Spanish had decamped. The court ruled that “territories inhabited by peoples living as ‘organised societies’ were not to be considered empty of peoples and open to state acquisition on the basis of occupation” (35). But as Irene Watson points out, the doctrine of discovery, legitimized by terra nullius, was soon replaced by the doctrine of extinguishment. Never referred to directly as such, nonetheless, from the pre-confederation acts in Canada such as the 1857 Act of Gradual Civilization to the 1869 Enfranchisement Act (36), to the more recent White Paper of 1969, which argued for a comprehensive land claims policy that “rejected land claims as incapable of remedy and treaties as regressive”, the Canadian government adopted policy after policy to force the extinguishment of Aboriginal land title in Canada (37).

What then is the appropriate response to terra nullius and the doctrines of discovery? Indigenous peoples in Canada, the United States, and around the world have resisted the appropriation of their lands for over 500 years and continue to struggle to maintain control over sacred plants and seeds. The recognition of indigenous law, custom, and tradition is integral to understanding (what we call) their “property” and “ownership” systems. Understanding the performative aspect of property, in the sense of being embedded within living social and political practices, means changing the way we think about relations between land and people.

A step towards reconciling the past of terra nullius would be recognizing indigenous lands – in the most expansive sense of that term, embodying mountains, forests, plants, animals, wind, rain, sun, and moon – as interconnected with community, and a step away from describing indigenous life in terms of vacant lands and raw seeds.

*This article is also published in French under the title: Terres inoccupées et semences brutes: des doctrines de la découverte aux brevets sur la vie.

**Shiri Pasternak is a PhD student in the Planning Department of the University of Toronto. She is a Research Associate at the Polis Project for Ecological Governance and the moderator of the Property Taskforce website ( She has published book chapters and articles on issues of intellectual property, food sovereignty, and the resurgence of demands for the “commons”. She is currently involved in activism on housing rights and abandoned properties in Toronto.


(1) The British were heirs to a long tradition of thought linking property rights to agricultural production. Classical philosophers, medieval and early modern thinkers all contributed to the notion that hunting and pastoral ways of life did not require title to land, nor the institution of government to protect these rights.

(2) General Synod of the Anglican Church of Canada. Doctrine of Discovery & Terra Nullius. 2001. Online: (Accessed August 31st 2007).

(3) The rebellion was named after its leader, Chief Pontiac of the Ottawa nation.

(4) Wittgenstein L. Philosophical Investigations. Cambridge, Mass: Blackwell, 1997, no. 115.

(5) Report of the Royal Commission of Aboriginal People. Indian and Northern Affairs Canada. 1996. Online: (Accessed August 31st 2007).

(6) “A claim is said to be ‘anticipated’ if comparison of the claimed invention with a prior art reference reveals that each and every element in the claim under attack is shown or described, organized, and functioning in substantially the same manner as in the prior art reference. Anticipation is perhaps most easily understood as the converse of infringement: ‘That which will infringe, if later, will anticipate, if earlier.’” New York State Science and Technology Law Center. Patentability requirements. Online: (Accessed August 31st 2007).

(7) A succession of declarations by indigenous peoples have related the appropriation of genetic resources and indigenous intellectual property with threats to their permanent access to and sovereignty over natural resources: The Declaration of Indigenous Organizations of the Western Hemisphere (Phoenix, Arizona, February 1995), asserted: “We oppose the patenting of all natural genetic materials. We hold that life cannot be bought, owned, sold, discovered, patented, even in its smallest form”. The Ukupseni Declaration (Kuna Yala, Panama, November 1997), stated: “We reject the use of existing mechanisms in the legalization of intellectual property and patent systems […] including intellectual property rights and patents to legalize the appropriation of knowledge and genetic material, whatever their source, and especially that which comes from our communities”. Finally, the International Cancun Declaration on Indigenous Peoples (5th WTO Ministerial Conference, Cancún, Mexico, September 2003) demanded the polity to: “[…] stop patenting of life forms and other intellectual property rights over biological resources and indigenous knowledge”. (Declaration on Indigenous Peoples’ Rights to Genetic Resources and Indigenous Knowledge, 6th Session of the United Nations Permanent Forum on Indigenous Issues, May 14-25, 2007, New York, New York).

(8) Shiva V. “North-South Conflicts in Intellectual Property Rights”. Peace Review 2000; 12(4): 501-508, p. 503, emphasis added.

(9) Harry D. “Patenting Of Life and Its Implications For Indigenous Peoples”. Information About Intellectual Property Rights. No. 7, January 1995. Online: (Accessed August 31st 2007).

(10) See: New York State Museum: A guide to the Three Sisters Diorama. Online: (Accessed August 31st 2007). For transcribed oral history of the story, see: “An Iroquoian Story of Creation”, in the Mohawk Creation Story page online: (Accessed August 31st 2007). The Three Sisters are also an excellent example of the sophisticated technique of intercropping, sometimes called “companion” planting, this gardener describes the genius of the system: “Corn provides a natural pole for bean vines to climb. Beans fix nitrogen on their roots, improving the overall fertility of the plot by providing nitrogen to the following years’ corn. Bean vines also help stabilize the corn plants, making them less vulnerable to blowing over in the wind. Shallow-rooted squash vines become a living mulch, shading emerging weeds and preventing soil moisture from evaporating, thereby improving the overall crops’ chances of survival in dry years. Spiny squash plants also help discourage predators from approaching the corn and beans.” Formiga A. Celebrate the Three Sisters: Corn, Beans and Squash. Online: (Accessed August 31st 2007).

(11) For case studies on attempts to patent the traditional neem plant and basmati rice please see, respectively: Neem Foundation. Patent on Neem. Online: (Accessed August 31st 2007). Shiva V. “Basmati Biopiracy: Ricetec Must Withdraw All Patent Claims For Basmati Seeds And Plants”. November 2000. Online: (Accessed August 31st 2007).

(12) FAO. International undertaking on plant genetic resources. Resolution 8/83 Twenty-second Session of the FAO Conference. Rome, 1983. Online: (Accessed August 31st 2007).

(13) There is controversy surrounding this point – another interpretation of the developing world’s reaction to seeds as the “common heritage of humankind” is that this designation opened the doors to bioprospecting, since indigenous people and peasants would not be able to contest the use of their seeds and plants, which are in a “common” pool of humankind. GRAIN. “Re-situating the benefits from biodiversity”. Seedling April 2005. Online: (Accessed August 31st 2007).

(14) Landrace: “A crop cultivar […] that evolved with and has been genetically improved by traditional agriculturalists, but has not been influenced by modern breeding practices.” European Commission. Glossary in Biosociety and the Knowledge-Based Bio-Economy. Online: (Accessed August 31st 2007).

(15) Kloppenburg J. First the Seed: The Political Economy of Plant Biotechnology, 1492-2000. Second Edition. Cambridge University Press, 2004, p. 184.

(16) Ibid, p. 169.

(17) Kuyek D. Reaping What’s Sown: How the Privatization of the Seed System Will Shape the Future of Canadian Agriculture. Master’s Thesis. Université du Québec à Montréal, September 2004, p. 2.

(18) Ibid.

(19) RAFI. Seedless in Seattle – Terminator Tech trumps Trade Talk. News release, 26 November 1999, online: (Accessed September 10th, 2007).

(20) Arneil B. “Trade, Plantations, and Property: John Locke and the Economic Defense of Colonialism”. Journal of the History of Ideas 1994; 55(4): 561-609, p. 593.

(21) Tully J. Strange Multiplicity. Cambridge University Press, 1995.

(22) Locke J. Two Treatises of Government. London; Vermont: Everyman, 1993, p. 41, no. 135.

(23) Kloppenburg J. Supra note 15, p. 153.

(24) GRAIN. Supra note 13.

(25) Shand H. “Bioprospecting or Biopiracy?”, in Project Censored, (#18) Indigenous People Challenge Private Ownership and Patenting of Life. Online: (Accessed August 31st 2007).

(26) Khor M. “IPRs and Biodiversity: Stop the Theft of Indigenous Knowledge”. TWN Briefings for WSSD, No. 6. Online: (Accessed September 10th, 2007).

(27) Singh S. “Rampant Biopiracy Of South’s Biodiversity”. Third World Network, 2000. Online: (Accessed August 31st 2007)

(28) Coudry A. Tarzan, Indiana Jones and Conservation International's Global Greenwash Machine. October 10, 2003. Online: (Accessed September 11, 2007).

(29) For further reading, please see: GRAIN. “GMOs Found In Food Aid To Latin America”. Seedling June 2001, online: (Accessed August 31st 2007); Weiss R. “US on GE-Tainted Food Aid- ‘Beggars Can't Be Choosers’: Starved for Food, Zimbabwe Rejects U.S. Biotech Corn”. Washington Post Wednesday, July 31, 2002, p. A12; Pearce F. “UN is slipping modified food in to aid”. New Scientist 21 September 2002, online: (Accessed August 31st 2007); Mulvaney P. “The dumping-ground: Africa and GM food aid”. Open Democracy April 2004, online: (Accessed August 31st 2007); GRAIN. “USAID: Making the world hungry for GM crops”. Seedling April 2005, online: (Accessed August 31st 2007); Food First, Institute for Food and Development Policy. “Fact Sheet: Food Aid in the New Millenium - Genetically Engineered Food and Foreign Assistance”. 2000, online: (Accessed August 31st 2007).

(30) He reports that “[i]n Canada in 1997, seed companies formed a Plant Technology Alliance to ‘allow companies to enforce their technology position’. Within a few months it resulted in 24 out-of court settlements worth more than $170,000[1] […] By February 1999, Monsanto had launched an unbelievable 525 cases against farmers.” Kuyek D. “Intellectual Property Rights: Ultimate control of agricultural R&D in Asia”. GRAIN, March 2001, online: (Accessed August 31st 2007).

(31) ETC Group. Captain Hook Awards for Biopiracy, 2006, online: (Accessed August 31st 2007).

(32) ETC group reports that in 2006 AMMA Corporation, Calgary sought “to patent a treatment for Hepatitis C based on traditional plant medicines of the Peruvian Amazon and the traditional knowledge of the Suni-Mirano people. Although the company website boasts of a benefit-sharing agreement with a Peruvian consultant and the establishment of a biosphere preserve [sic] to preserve the rainforest and its inhabitants, the Suni-Mirano people have not been acknowledged and consulted, nor are they direct beneficiaries.” ETC Group. Captain Hook Awards for Biopiracy, 2006, online: (Accessed August 31st 2007).

(33) Heffernan WD. Biotechnology and Mature Capitalism. Presented at the 11th Annual Meeting of the National Agricultural Biotechnology Council. Lincoln, Nebraska, 1999.

(34) Bryan B. “Property as Ontology: On Aboriginal and English Understandings of Property”. Canadian Journal of Law & Jurisprudence 2000; 13(3), p. 4. Online: (Accessed August 31st 2007).

(35) Watson I. “Aboriginal Laws and the Sovereignty of Terra Nullius”. Borderlands 2002; 1(2), p. 4. Online:
(Accessed August 31st 2007).

(36) The Act of Gradual Civilization of Indian Tribes of Canada sought to remove distinctions between Natives and the general population and the Enfranchisement Act introduced a system of elected chiefs to replace traditional chiefs and individual Natives were again encouraged to give up collective land rights and take private ownership of the land.

(37) Agreements, Treaties and Negotiated Settlements Project. Indigenous Studies Program, The University of Melbourne, 2007. Online: (Accessed August 31st 2007).



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