Traditional knowledge policy co-production in Colombia and Ecuador

ABSTRACT

This paper opens the black box of policy co-production processes presented by the Colombian and Ecuadorian governments, regarding the traditional knowledge associated with genetic resources, in keeping with the necessities of Indigenous peoples. The purpose of this paper is to analyze what similarities and differences there exist in the role of the Ecuadorian and Colombian States as organizers, guarantors of plural expression, and facilitators of public deliberation, and how policymakers have opened the space for Indigenous peoples for producing traditional knowledge policy. The paper turns to qualitative research focused on collecting information from public actors. The data obtained assesses our working hypothesis that the role of the State in the production of traditional knowledge policy has been more democratic in Ecuador than in Colombia.

RESUMO

Este trabalho abre a caixa preta dos processos de coprodução de políticas públicas nos governos da Colômbia e do Equador, em torno do conhecimento tradicional associado aos recursos genéticos de acordo com as necessidades dos povos indígenas. O objetivo deste artigo é analisar quais semelhanças e diferenças existem no papel dos Estados equatoriano e colombiano como organizadores, garantes da expressão plural e facilitadores da deliberação pública e como essas instituições abriram espaço para que os povos indígenas produzam políticas de conhecimento tradicional. O artigo concentrou-se na pesquisa qualitativa, com foco na coleta de informações dos formuladores de políticas. Os dados obtidos avaliam a hipótese de trabalho: o papel do Estado na produção do conhecimento tradicional tem sido mais democrático no Equador do que na Colômbia.

RESUMEN

Este trabajo abre la caja negra de los procesos de coproducción de políticas presentados al interior de los gobiernos de Colombia y Ecuador, en torno a los conocimientos tradicionales asociados a los recursos genéticos de acuerdo con las necesidades de los pueblos indígenas. El propósito de este trabajo es analizar qué similitudes y diferencias existen en el papel de los Estados ecuatoriano y colombiano como organizadores, garantes de la expresión plural y facilitadores de la deliberación pública, y cómo los tomadores de decisiones han abierto el espacio para que los pueblos indígenas produzcan políticas de conocimiento tradicional. El documento se enfocó en investigación cualitativa, centrándose en la recopilación de información de los actores públicos. Los datos obtenidos se usan para evaluar la hipótesis de trabajo: el papel del Estado en producción de la política de conocimientos tradicionales ha sido más democrático en Ecuador que en Colombia.

KEYWORDS:

• Policy co-production
• traditional knowledge
• indigenous peoples
• policymakers

PALAVRAS-CHAVE:

• Coprodução de políticas públicas
• conhecimento tradicional
• povos indígenas
• formuladores de políticas

PALABRAS CLAVE:

• Coproducción de políticas públicas
• conocimiento tradicional
• pueblos indígenas
• hacedores de políticas

1. Introduction

The Kunming Declaration from the Declaration of the High-Level Segment of the UN Biodiversity Conference 2020 acknowledges that Indigenous peoples and local communities contribute to the conservation and sustainable use of biodiversity through the application of traditional¹ knowledge, innovations, and practices, and through their stewardship of biodiversity in their traditional lands and territories.

In this context, the need to advance research and promotion of alternative forms that support, conserve, modify, or re-invent mutual relationships between nature and society is recognized (Turnhout et al. 2013; Keller 2008; Suzuki 2006). According to Nemogá (2015), there is a convergence toward the biocultural approach, for which Maffi and Woodley (2010) propose to understand bio culturalism as the interrelation of life in all its manifestations; biological, cultural, and linguistic, which have co-evolved within complex socio-ecological adaptive systems. In the context of research with Indigenous communities in North America, the concept of traditional ecological knowledge (TEK) has been coined, including “the knowledge, beliefs, and practices of Indigenous populations regarding their relationships with other living organisms and environmental components” (Nemogá 2015, 313).

Although progress has been made in transforming traditional knowledge research from a biocultural approach, the need to recognize the social demands of Indigenous peoples in important socio-technological and environmental contexts remains underexplored. One of these is the adoption of policy protecting them from the exploitation of natural biochemicals and genetic material, which through patents can stop them from using these biochemicals in the future. Apart from restrictions in their future use for native people and local communities, a problem with patents is the lack of fair compensation to the community from which it originates.

Traditional knowledge is strategic for the development of new nutraceuticals, bioactive principles, and medicines (Pushpangadan et al. 2018). This affects the scientific and socioeconomic development of source countries and local communities, and the sustainable use through biotechnology of biological resources and their conservation. Megadiverse countries have a major concern in sharing the benefit of biodiversity conservation through the social development of local ethnic populations. The term megadiverse refers to a group of nations that harbor a significant percentage of species and have high numbers of endemic species. There are only a few studies regarding how public policies for traditional knowledge are produced in megadiverse countries such as Ecuador and Colombia.

To address this problem, this article focuses on the public policy that protects traditional knowledge in the context of Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) in the Andean region via Decision 391 of July 1996 (Common Regime on Access to Genetic Resources from Organization of American States – OAS). Four megadiverse countries, Bolivia, Colombia, Ecuador, and Peru recognize and value the rights and the authority of the native, Afro-American, and local communities to decide about their knowledge, innovations, and traditional practices associated with genetic resources and their by-products. (Article 7).

In this context, comparing Ecuador and Colombia is relevant because Ecuador was the first country in the world to recognize, at a constitutional level, nature's rights as a guarantee of “Buen vivir” (“good living,” also known as Sumak Kawsay). In 2008, its new Constitution included the rights to exist of the Pachamama, of its maintenance and regeneration of its vital cycles, structure, functions, and evolutionary processes. Colombia, on the other hand, is the only country from the Andean region that has not implemented Decision 391 yet. So, what similarities and differences are there in the process of producing traditional knowledge policy between Colombia and Ecuador in terms of policy co-production?

In the context of Latin American co-production of policies in relation to indigenous peoples, there is literature that addresses dialogues between heterogeneous experts (on ontologies, epistemologies, and other philosophical–political aspects). This includes the work of Martínez-Alier (2008) that deals with valuation languages linked to different ontological frameworks; of Gudynas (2010) on the intrinsic values of Nature that should be recognized as a subject; Carman (2018) on anthropogenic activities and elements that have been introduced by indigenous movements, on Pachamama (Canessa 2012; Melo 2013; Maluf et al. 2017; Postero 2018; Rodrigo 2022) and the biocultural paradigm (Boege Schmidt 2008; Barrera-Bassols and Toledo 2008; Toledo 2013; Nemogá 2014, 2015, 2016; Ungar, Bastidas, and López 2021; Nemogá, Appasamy, and Romanow 2022).

The connection between public policy production and indigenous peoples raises deep philosophical questions. However, little has been studied about the co-production of policies caused by citizen demands made by Indigenous peoples to prevent biopiracy. Biopiracy “constitutes a practice whereby researchers or companies illegally use the biodiversity of developing countries and the collective knowledge of indigenous peoples or peasants to make products and services, which are exploited without the authorization of their creators or innovators and thus commercialize indigenous traditional knowledge without their consent” (Martínez Castillo 2011, 35). This is the issue addressed in this article.

Co-producing policies, preventing biopiracy, and protecting traditional knowledge from biopiracy in accordance with the demands of Indigenous peoples lead to public policies aimed at greater human dignity and political equality in the context of cultural heterogeneity in Latin America. In this way, a State that achieves policy co-production with Indigenous peoples to solve the problem of biopiracy fulfills the purposes that Lasswell (1951) had proposed for public policies: the progress of society and the realization of greater human dignity, particularly focused on democratic ideals. Here we show that in Ecuador, unlike in Colombia, there has been co-production of policies to prevent biopiracy according to citizen demands. The context of these policies in the two countries is presented below.

2. National contexts of Ecuador and Colombia

The policy processes for the protection of traditional knowledge associated with genetic resources in Colombia and Ecuador originated in the Convention on Biological Diversity adopted by the United Nations in 1992 and entered into force in 1993. Likewise, the two countries began a process of implementation of this agreement within the framework of the Andean Community through Decision 391 of 1996. However, the policy-making processes in the two countries have occurred very differently.

Ecuador ratified the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization of the Convention on Biological Diversity in 2017 and its implementation began this year. Colombia has not ratified the treaty. The Colombian Council of State has said that to ratify it, a prior consultation procedure (ILO Convention 169) has to be carried out with Indigenous peoples, which has not been done. In this sense, the two countries do not have exactly a common international framework given by Nagoya. The ratification of this treaty is not of interest to this article because in ratifying an international treaty there is no interaction between State and non-State actors, as is scrutinized in this article.

In Ecuador in 2016 traditional knowledge was protected through the Organic Code of the Social Economy of Knowledge, Science, an Technology, which adopted the voluntary deposit of traditional knowledge by Indigenous peoples and local communities as a preventive instrument that avoids illegal access to it through a collective intellectual property mechanism. With its application, between 2016 and 2022, Ecuador has managed to voluntarily deposit in the National Service of Intellectual Rights (SENADI) around 420 traditional knowledge pieces associated with biological resources, traditional cultural expressions, worldviews, and Indigenous spirituality.

In Colombia, meanwhile, no measure has been taken to protect traditional knowledge that goes beyond Decision 391. Although there is still no traditional knowledge protection policy, there have been two unsuccessful attempts to adopt it. The first during the government of President Santos was led by the Ministry of Environment and Sustainable Development and sought to adopt a multicultural public policy to protect traditional knowledge systems associated with biodiversity in Colombia. This process was advanced with the support of the United Nations Development Program (UNDP) and the Global Environment Facility (GEF) through the Project “Incorporation of traditional knowledge associated with agrobiodiversity in Colombian agroecosystems” from 2010 to 2015 (Gómez Lee 2014). The second was during the government of President Duque on behalf of the Ministry of Science, Technology, and Innovation, from 2020 to 2022, to meet requirements from a group of experts (the “Mission of Wise Men”) and the National Development Plan 2018–2022, without it being at the request of international cooperation.

These two political processes that had the same purpose of adopting a policy within the framework of the scientific authority, without being initiatives of international cooperation, are compared here. We contrast the adoption process of Chapter 16 on traditional knowledge, Article 511 to Article 537 of the Organic Code of the Social Economy of Knowledge, Creativity, and Innovation in Ecuador with Colombia's attempt to adopt the Comprehensive Public Policy of Ancestral and Traditional Knowledge (PPICAT) undertaken by the Ministry of Science, Technology, and Innovation (Minciencias) between 2020 and 2022. These two processes have the same level of importance. Although in Colombia it was only an attempt to adopt a policy, and in Ecuador this attempt did materialize, in both cases it was about spaces and opportunities for policy co-production with non-State actors, such as Indigenous peoples.

The objective of the two stakeholder interaction processes, both in Colombia and Ecuador, was to adopt a policy to protect the traditional knowledge of Indigenous peoples and local communities within the framework of access to genetic resources and benefit sharing. Likewise, in both cases, the production processes of the policies originated within the framework of the science, innovation, and technology authorities, interested in protecting the intellectual property rights of these peoples and communities.

The selected theoretical framework is justified by the recent concern in Science and Technology Studies to improve the understanding of the interaction between State and non-State actors with the objective that knowledge transfer be increased by encouraging public innovation. In this way, it seeks to broaden the understanding of how governments and their organizations can enter the path of experimentation and openness to collaboration with actors outside the public system. The purpose of this paper is to analyze the new role of the State as an organizer, guarantor of plural expression, and facilitator of public deliberation that has opened the space for citizens (Fischer 2009; Roth 2016).

There is widespread concern about the close relationship between Indigenous groups and the immense Latin American biodiversity wealth. Latin America's multifaceted ethnic and racial diversity is not considered in the formation of public policies. This diversity requires a pragmatic, collaborative, and democratic conception of decision-making and action. In Latin America, political and regulatory support is required to foster democratic developments with Indigenous peoples, unlike the responses of Europe and the United States.

The policy co-production approach allows the social sciences to have a new understanding of public policies. However, classical policy co-production literature does not refer to the participation of Indigenous peoples (Ostrom 1996; Kiser 1984). This research aims to contribute to closing this knowledge gap. To increase this knowledge, this investigation looks at the problem from a theoretical point of view, focusing on the co-production of public policies that concern Indigenous Peoples.

3. Theoretical framework²

Gibert Galassi (2019) states that scientific relationships nowadays can be presented in an asymmetrical model in which the North is the generator of theories while the South works as a database for Northern research. Feld and Kreimer describe this asymmetry as “‘subordinate integration’ modalities: (in which) the activities most frequently undertaken by Latin American researchers in the research consortia’s division of labor are data production, organization, and systematization” (2019, 166). This general phenomenon of social sciences is accentuated in public policy analysis. Most models considered for policy analysis in Latin America come from a Northern framework pool. Thus Latin American public policy analysis is a systematization of Northern models (Roth 2020; Gómez-Lee 2021).

Typically, policy production is also mostly based on Northern frameworks. Yet, analyzing their structure shows their many limitations and how they need arrangements to work properly in peripheral conditions. In this case, the arrangements come from (a) the emphasis on specialized authors studying Latin America (Roth 2016; Roth 2018; Zurbriggen and González Lago 2015; Zurbriggen and Sierra 2017) who have already shaped co-production to the region’s specifications; (b) other Hispanic academics like Subirats (2015) looking at the Latin American ethnic-racial context. This corresponds to a “creolization” process described by Dumoulin Kervran, Kleiche-Dray, and Quet (2018), a mix of traditional Social Studies of Science approaches with post-colonial ones; and (c) works on coproduction of knowledge (Jasanoff 2004).

Efforts must be done to reduce or eradicate Latin American dependency on Northern frameworks. The policy co-production approach grants the possibility to reduce this dependency. Arellano-Hernández and Morales-Navarro (2019) describe an important approach on how “Matters of Concern” should define science rather than “universally true facts,” resulting in scientific advancements that are beneficial to the region’s needs. Campos Navarrete and Zohar (2021) put this concept in terms of development, demonstrating how traditional knowledges like “Buen vivir” values and “Comunidad” can be applied to generate specific and holistic frameworks that embrace Latin American problematics. Latin American sustainable development can then be reached by collaboration with the communities affected by political decisions, and not by following a Northern framework.

Invernizzi (2020) also contributes to this approach by defending that local participation in the scientific and technological agenda is a democratizing mechanism that, again, broadens the beneficial effects on people. Both concepts, regional sustainable development and democratization can be obtained by policy co-production, the central approach of this article.

In this context, the central theoretical approach of this research is that of co-production of policy. As mentioned in the studies of Valdivieso Cervera and Rangel Parra (2019), the concept of co-production has a history in the literature of public administration, as a co-production of services. The essential element of Ostrom’s classic work (1996) on co-production is the active participation of individuals who receive goods or services in the production process. Co-production is a process through which inputs from individuals who are not “in” the same organization, are transformed into goods and services. Bandola-Gill et al. (2022) show the existence in the scientific literature of five different ways to approach the co-production of knowledge and public policy: co-production as a relationship between science and politics, as knowledge democracy, as transdisciplinarity, as boundary management, and as a research use intervention. Osborne, Radnor, and Strokosch (2016) affirm that co-production is currently one of the cornerstones of public policy reform across the globe. Inter alia, it is articulated as a valuable route to public service reform, planning, and delivery of effective public services. It is a response to a democratic deficit and a route to active citizenship and active communities, and as means to leverage additional resources for public service delivery.

These authors present a conceptualization of co-production that is theoretically rooted in both public management and service management theories (boundary management approach). It argues that this is a robust starting point for the evolution of new research and knowledge about co-production and the development of evidence-based public policymaking and implementation. In particular, it is pertinent to recognize the specific problem and the efforts of co-production of knowledge and public policy carried out concerning the integration of Western science and the traditional knowledge of Indigenous communities in other parts of the world (Agrawal 1995; Watson-Verran and Turnbull 1995; Nadasdy 2003). From his experience with First Nations in Canada, Nadasdy (2003) considers that the integration of knowledge from different knowledge systems is difficult not only in technical and methodological terms but that it turns out to be primarily a problem of a political nature. For him, successful co-management implies true institutional transformation.

As emphasized by Valdivieso Cervera and Parra (2019), the concept of co-production has become central to the public discourse about open government and the deepening of democracy in Latin America and Spain (Subirats 2015; Uvalle Berrones 2011). It is frequently connected to reflections regarding public innovation (Waissbluth et al. 2014; Roth 2016; Zurbriggen and Sierra 2017; Méndez and Roth 2020), and it is proposed to improve the quality of government. According to Zurbriggen and González Lago (2015), the co-production of policy comes from social demands which have been listened to by the public administration. The State then designs and implements this policy according to the needs of the people. This implies “reclaiming a new process based on innovation with initiatives and spaces where joint work between the diverse actors to solve public problems is experimented with.” (p.4).

As Roth (2016) claims, the new role of the State as an organizer, guarantor of plural expression, and facilitator of public deliberation has opened the space for citizens and institutional transformations. However, in Latin America the important presence of Indigenous communities with traditional knowledge challenges the modern conception of science and the participation of individuals and citizens as they are considered in Ostrom’s classical perspective (1996). Additionally, in the case of Latin America, most States have approved international labour organization (ILO) Convention 169, which enshrines the right of Indigenous and tribal peoples to participate effectively in decisions that affect them through the mechanism of prior consultation (ILO 1989). We believe that this contextual framework offers the space and legitimacy for the development of a specific process of public policy co-production.

In this sense, it is not a question of introducing new data from a traditional knowledge system into Western or modern institutional and scientific systems, thus maintaining an extractivist (Latulippe and Klenk 2020) and neo-colonial practice. The co-production of new knowledge for policy design or for its implementation (co-management), where several knowledge systems are involved, should be done from an innovative institutional framework that guarantees equitable relations between them and that takes local conditions into account (Yua et al. 2022).

4. Methodology and research design

We started with the following research question: What similarities and differences are there between Colombia and Ecuador in the process of producing policy regarding traditional knowledge associated with genetic resources?

We turned to qualitative research that focuses on collecting information from public and private actors. This produced descriptive data: people's own words, spoken or written, and observable behavior. Sampling was carried out with the authors acting as their own key informants based on their knowledge of the phenomenon at hand, to capture the most representative of interactions by public and private actors involved in policies for the protection of traditional knowledge. This was weighed alongside practical concerns regarding a reduced cost for the investigation, greater speed, better scope, and flexibility in obtaining the information.

Five semi-structured interviews were made. First to inlcude public actors, with Fernando Nogales, an official of the National Service of Intellectual Rights (SENADI) in Ecuador on April 14 and 30, 2021, and with Francisco Eliecer Sarmiento, the Directorate of Capacities and Dissemination of the Ministry of Science, Technology, and Innovation (Minciencias) in Colombia, on April 15, 2021. Second, for private actors, with Rodrigo de la Cruz of the Kichua/Kayambi Indigenous people of Ecuador, on November 15, 2022, and Jairo González, Social Advisor of the national indigenous organization of Colombia (ONIC)- Colombia, on November 17, 2022.

As for the events, the participative observation from the author Gómez-Lee as a member of the working group arranged by the government of Colombia stands out. The working group's objective was to produce the policy on May 7 and 28, 2021, and the invocation in Colombia of the constitutional right to request information (Derecho de petición)³ on March 3, 2022. In the Colombian case, Gómez-Lee observed academics invited in April 2021 to discuss the policy.

As for the evolution of the research, regarding the processes of policy production, it was considered that in Ecuador the process was completed in 2016 through the Organic Code. While in Colombia the process is ongoing. For content analysis, the following criteria were followed.

First, the evidence and findings regarding two proposals or solutions that must be met to deduce a co-production in the policy change were

1. Social demands to the public administration to design and implement policies in line with people's current needs.

2. Claims of a new innovation-based process with initiatives and spaces where joint work between diverse actors is experienced to solve public problems with evident need for citizens to take control of their interests and organize public administration.

Second, the analysis had to provide a clear and convincing systemic process in which innovative solutions are generated “with” Indigenous people and not “for” Indigenous people. This implied, therefore, the participation of Indigenous people in a new way of generating knowledge (qualitative, first-hand), as well as in innovative processes for deliberation. The rule was that for the deduction to be correct, it had to be based on the following criteria: (i) Face-to-face exchange between public and private actors; (ii) Meeting in several instances; (iii) Presence of facilitators; (iv) Visible and concrete results (Waissbluth et al. 2014).

5. Evidence and findings

The evidence and findings were organized logically based on two criteria: (i) Claim of an innovation process with initiatives given by citizens; (ii) Sui generis interaction process between public and private actors with an exchange of inputs.

5.1. Claim of an innovative process with initiatives given by citizens

Traditional knowledge associated with genetic resources is an issue that both Ecuador and Colombia have addressed since the 1990s through an international agenda. Specifically, by applying Article 8(j) of the Convention on Biological Diversity (CBD), and since 2000s, the Intergovernmental Committee of the World Intellectual Property Organization (WIPO). The evidence and findings showed that the policy process regarding traditional knowledge associated with genetic resources was vastly different in both countries.

In Ecuador, Chapter 6 on traditional knowledge of the Organic Code of the Social Economy of Knowledge, Creativity, and Innovation (COESCI) was adopted. The State involved Indigenous people in a 9-year process. In Colombia no standard has been adopted to protect traditional knowledge. The Ecuadorian government designed policies in line with the current needs of Indigenous peoples and invited them to participate, while in Colombia this did not occur.

In 2007, the Ecuadorian government’s office for traditional and genetic resources and traditional and cultural expressions was created. From that point on, the development of capacities of the Indigenous peoples and nationalities in the sector began. The Ecuadorian State took the initiative because of the Awá case regarding illegal access to traditional knowledge. The Awás are a community that lives on the border with Colombia. The case began when the National Cancer Institute and the New York Botanical Garden went to the Awá territories to carry out research. As a result of this, about 2500 samples of plant species were taken to the United States that were associated with significant traditional knowledge. This case led the Ecuadorian State to begin regulating legal access to traditional knowledge and build traditional knowledge standards.

The communities then began to realize that this legal instrument was important and necessary for the country. The Indigenous peoples reacted positively in support of the process.

On the other hand, during last 10 years in Colombia the Ministry of the Environment, the Ministry of Culture, and the Ministry of the Interior have talked about public policy initiatives on traditional knowledge. Regardless, no traditional knowledge policy has been created. The Colombian State has not reacted to social demands or initiatives of Indigenous peoples in this regard.

Since January 20, 2020, the Ministry of Science, Technology, and Innovation (Minciencias) intends to build the Comprehensive Public Policy of Ancestral and Traditional Knowledge (Política Pública Integral de Conocimientos Ancestrales y Tradicionales, for its initials in Spanish): not at the request of citizens or social groups, but by instruction of the National Development Plan 2018–2022 and suggested by the “Misión Internacional de Sabios” 2019, convened that year by the national government to draw up a roadmap for the development of science, technology, and innovation in Colombia.

For this purpose, Minciencias has worked only to bring together public actors. The Inter-ministerial Technical Committee “is a permanent workgroup of inter-ministerial articulation that coordinates and manages the formulation, implementation, and evaluation of the policy through dialogue between the participating ministries, in a guided and coherent manner.”

This workgroup includes Minciencias, the National Planning Department, and the following seven ministries (in addition to Minciencias): Agriculture, Health, Environment, Interior, Justice, Education, and Culture. So far, six inter-ministerial thematic roundtables have been developed.

The Interministerial Technical Table for the formulation of the PPICAT sought to address the general interests in the face of the protection and recognition of ancestral and traditional knowledge and to articulate the actions previously conducted with the objective of the policy, in addition to attending to their interests (within the competence of each ministry).

5.2. Sui generis interaction process between public and private actors

5.2.1. The Ecuadorian case

In Ecuador, in the production of Chapter 6 on traditional knowledge of the Organic Code of the Social Economy of Knowledge, Creativity, and Innovation (Código Orgánico de la Economía Social del Conocimiento, la Creatividad y la Innovación), the State involved Indigenous peoples in a nine-year process.

The state authority that advanced the entire procedure for the adoption of this instrument was the Ecuadorian Institute of Intellectual Property (IEPI). It is worth noting that in 2016 the IEPI was transformed into the National Service of Intellectual Rights (Servicio Nacional de Derechos Intelectuales) by the provision of the Organic Code (COESCI).

The director of the IEPI, the Kichwa/Kayambi Indigenous nation, initiated the process. Three drafts were prepared that were considered for the pre-legislative consultation that finally gave rise to the chapter on traditional knowledge of the Organic Code (Código Orgánico de la Economía Social del Conocimiento, la Creatividad y la Innovación).

The draft was prepared through the following procedure:

In 2008, IEPI organized three major workshops to produce a first draft of the traditional knowledge regulations. The first workshop was in Santo Domingo, on the coast of Ecuador, with forty-one delegates; the second in Quito, in the Sierra, with thirty-five delegates; and the third, in the Amazon, with thirty-one delegates. Public actors interacted with representatives of Indigenous peoples and communities, and grassroots organizations such as CONAICE, FECHE, and EPERA.

For the second draft, in 2011, the new IEPI director hired a consultancy agency, Impacto del Sur (SurIMPAC S.A), to develop the process. The consultancy conducted 145 surveys in the country, through seven regional workshops from February 2012 to July 2012. The main promoters were the IEPI, the Ministry of Public Health, and the Council for the Development of the Nationalities and Peoples of Ecuador (CODENPE).⁴

In 2012, IEPI published the book “Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions: Inter-institutional Legal Mapping.” The book first summarizes the tasks of State entities that manage genetic resources and traditional knowledge systems. Second, it analyzes regulatory aspects, such as the Convention on Biological Diversity (CBD), Nagoya, and Decision 391. Third, it identifies the country's leading research experts on these issues.

With these inputs, Impacto del Sur produced the second draft of the law, from which some adjustments were made.

In 2015, IEPI began a more formal third draft process with SENESCYT (Secretaría Nacional de Educación Superior, Ciencia, Tecnología e Innovación), the Secretariat of Higher Education, Science, Technology, and Innovation, specifically with the unit of ancestral knowledge. In this way, the third draft of the law was written and submitted to the National Assembly, and discussions and debates began.

On October 7, 2015, the first debate was held in the National Assembly for the draft Organic Code of the Social Economy, Knowledge, Creativity, and Innovation (Código Orgánico de la Economía Social del Conocimiento, la Creatividad y la Innovación) (procedure 227042).

On November 16, 2015, the Standing Specialized Commission on Education, Culture, Science, and Technology (Comisión Especializada Permanente de Educación, Cultura, Ciencia y Tecnología), called for a pre-legislative consultation on traditional knowledge issues.

To advance the pre-legislative consultation, the unit of ancestral knowledge of the SENESCYT organized and planned a series of workshops throughout the country, in Santa Elena, Santo Domingo, Ambato, Riobamba, Coca, Riobarrio, Cuenca, Loja, and Quito.

Meetings were then held in which some adjustments were made that allowed a chapter on traditional knowledge to finally be included in the Organic Code, adopted on December 9, 2016.

In Ecuador, it was possible to observe Indigenous people's agency in the development of the Code through the dialogues between the indigenous peoples and State actors, (documented in interviews). Indigenous peoples had the opportunity to expose, for example, cases of looting of traditional knowledge. They were also able to clearly express their need for their traditional knowledge to be protected by the Ecuadorian State. This allowed for the government and authorities to begin developing mechanisms for the control of biopiracy. Indigenous representatives also asked for solutions from the State that recognized and protected their collective rights. In this way, a cooperative relationship was generated in the production of the traditional knowledge protection policy between public and private actors.

5.2.2. The Colombian case

Although the process began officially on January 20, 2020, it was only until April 2021 that interaction with citizens began. Minciencias (Ministerio de Ciencia, tecnología e Innovación) installed an academic-community table to collect inputs on several axes previously defined exclusively by the State in 2020 and 2021.

Representatives of 12 universities, research centers, and civil society organizations participated in the roundtable. Two sessions were held through virtual platforms. The representatives had explicitly and repeatedly expressed that it was necessary to build the policy through a respectful dialogue with the communities of the territories. They also considered it imperative to look after the fundamental rights of Indigenous peoples, especially that of prior consultation and free, prior, and informed consent (under ILO Convention 169). The demand was to develop a policy on traditional knowledge and ancestral knowledge following the standards established by the Constitutional Court, the Council of State (Corte Constitucional, the Consejo de Estado), and international law.

One of the representatives suggested that Minciencias should start by establishing ethical protocols that guarantee the active participation of communities in the definition of common research agendas for projects that it finances with public resources.

In response to these statements, the government representative said that these requests had been noted. However, he said that documents from the Consejo Nacional de Política Económica y Social (CONPES) do not require prior consultation.

In this regard, Minister Mabel Torres said concerning the CONPES documents:

… although they must be diffused, guaranteeing the right of popular participation by the community derived from article 2 of the Political Constitution, does not require Prior Consultation (…) A CONPES document is not, in itself, a legislative or administrative decision that must be consulted under article 6 of ILO Convention 169; since such a CONPES document, which, once the project has been filed by its promoter before the National Council of Economic and Social Policies, only includes recommendations to the Government on general policies in the field of economic and social development. (Communication by Mabel Torres, October 7, 2020)

Members of the Academic Community Board expressed in this regard that:

Minciencias and the government, in general, seem more interested in ensuring access to traditional knowledge and plant genetic resources in the collective territories of Indigenous and Afro-descendant communities than in their effective protection. (…) In practice, Minciencias, like other ministries and institutions, concur in identifying prior consultation, prior, free, and informed consent as an obstacle, and communities are simply expected to hand over their resources and knowledge for marketing and third-party profits. (Statement to Minciencias, personal communication, May 28, 2021)

The State intended to have the first version of the TK policy by July 2021 and to implement it in December of the current year. However, this process was interrupted on May 28, 2021, when the third session of the Academic Community Bureau (Academic Community Board) was intended to start.

On this occasion, the representatives said that the construction of a genuine dialogue with the communities can only take place when the social and political conditions of respect for the life and integrity of the other exist, and those conditions were not met during the current National Strike. The government representatives listened to the complaints of the members of the roundtable and suspended the process due to these social demands.

According to the schedule proposed by the Colombian State for the second half of 2021 for the formulation of the PPICAT in July, the first draft of the policy was ready. The plan was to begin with strategic dialogues in August and end in September 2021. The Consejo Nacional de Política Económica y Social (CONPES) process would start in October and end in November. Finally, the policy was meant to be published in December 2021.

However, as of March 2022,⁵ the draft policy document was still unpublished, and it is intended to be delivered to the members of the interministerial table for review. After this, the document is meant to be shared in the territory through strategic community meetings, in which the communities can complement and adjust the policy document. Subsequently, it will be submitted to the National Planning Department (DNP) to validate it and convert it into a CONPES policy document. However, there is no known progress on the process to date.

6. Discussion

6.1. Discussion of the results

First, neither in Ecuador nor in Colombia was there a demand for an innovation process with initiatives provided by the citizens. On the contrary, the process of adopting traditional knowledge policies in the two countries has been a vindication of a classical political process, promoted by State initiatives. Therefore, the cases of Ecuador and Colombia are similar in not fulfilling what Zurbriggen and González Lago (2015) propose: co-production of policies from the social demands of private actors.

Similarly, in Ecuador and Colombia, Indigenous peoples did not voluntarily seek, as Pestoff, Osborne, and Brandsen (2006) point out, to improve service delivery. Nor did they seek to participate in the change of services to see their interests reflected. The beginning of the policy-making process was not due to the need to organize their interests and organize themselves in front of the State. Under these conditions, the initial stages of the policy-making process did not meet the needs expressed by Indigenous peoples. In this situation, innovation cannot increase the conditions for democratization in either country.

Regarding the sui generis interaction between public and private actors in Ecuador, the process of producing policies, as stated by Zurbriggen and González Lago (2015) involved “claiming a new innovation-based process with initiatives and spaces where joint work between diverse actors is experienced to solve public problems.” This has not happened in Colombia yet.

Ecuador developed ad hoc devices or instances, so that, through open public deliberation processes, the voice, and knowledge of Indigenous peoples could be better considered. As Roth (2016) points out, these processes involved public innovations that transformed the relations between the State and society to be framed in a context of collaborative governance in which citizens have a voice to discuss, and authority to decide.

From this perspective, we argue the Ecuadorian State has indeed created new arrangements for participation and deliberation between public actors and Indigenous peoples. According to Roth (2016), this increases the legitimacy of policies by developing governance strategies, rather than the traditional one: government as a top-down decision-making mechanism.

Ecuador evidences processes of inclusion and strengthening of culture and innovative democratic institutions thanks to the ideas of co-production or co-creation of public policy on traditional knowledge.

None of this has happened in Colombia, where the process for the adoption of the traditional knowledge policy began in January 2020 with a classic top-down model and has not yet involved Indigenous peoples, despite and contrary to ILO Convention 169.

6.2. Criteria that ensured correction of reasoning

To discuss the success of the co-production of the traditional knowledge policy that was conducted in Ecuador, we use four criteria listed by Waissbluth et al. (2014): face-to-face exchange, meeting in several instances, presence of facilitators, and visible and early results verification. These same steps were used to examine the Colombian case.

6.2.1. Face-to-face exchange

According to Waissbluth et al. (2014), face-to-face collaboration is fundamental in co-production. There must be an exchange of ideas and knowledge between the public and private actors. Confidence and social capital must be generated among the participants for co-production to be successful, and also to reach an innovative process.

An interview with Fernando Nogales shows that in Ecuador the process was done in the territories through participatory workshops and surveys in which public actors and representatives of Indigenous peoples discussed face-to-face. In the same way, the workshops and surveys that were held throughout the country allowed public actors to explain their ideas and criteria to Indigenous peoples. The public actors made known to Indigenous peoples, face to face, what was expected with the draft that was being constructed. On many occasions, Indigenous communities were exposed to the public actors, their points of view, their criteria, and gave feedback. In this way, public actors were using criteria sourced from the communities. According to the face-to-face exchange that took place in Ecuador, the co-production between Indigenous peoples and public actors was successful.

On the contrary, in Colombia, there have been no face-to-face meetings between public actors and representatives of Indigenous peoples. Therefore, there has been no exchange of ideas and knowledge between public actors and Indigenous peoples. Under these conditions, neither trust nor social capital has been generated. This corroborates that in Colombia there has been no co-production of policies in this area.

6.2.2. Encounter in several encounters

According to Waissbluth et al. (2014), for the co-production process to be successful, the meeting of public and private actors must take place in several encounters. The authors do not recommend resolving the matter at once. Having a single shared encounter does not promote the exchange of knowledge.

According to this criterion, the co-production was successful, since the issues were addressed in several instances and were not resolved at once, on the contrary, they were widely discussed in a total of nineteen workshops and 145 surveys. Therefore, again, it was confirmed that the Ecuadorian State did function as an organizer of activities and spaces that facilitated public deliberation with Indigenous peoples.

In Colombia, there has been no meeting of public actors with Indigenous peoples for this purpose, which shows that there has been no co-production in this country concerning the policy under study.

6.2.3. Presence of facilitators

According to Waissbluth et al. (2014), for the co-production process to be successful, it is crucial to have the presence of facilitators who can nurture the exchange of knowledge and keep this process active and sustainable.

According to the testimony of Nogales, the alliance between the IEPI and the Ministry of Public Health was sought. As the Ministry of Health is decentralized, there are offices of this ministry throughout the country that do community work in the seven areas that make up the country. At that time, Indigenous communities from different provinces were grouped by area of the country.

In particular, both the Office of Intercultural Medicine and meetings with community leaders in the territories were the base for the organization for the workshops. Thus the main facilitators were the public actors of the Ministry of Health. Delegates from the Ministry of Health and the IEPI organized the workshops for the first draft. However, the main facilitator was Rodrigo de la Cruz of IEPI, who led the process in its first step.

For the second draft, the main facilitator was the director of IEPI, who led the process and used the consulting company “Impacto del Sur (SurIMPAC S.A).” This company put together the entire series of workshops and made and tabulated the surveys. Overall, the process was kept active thanks to the work of this company.

For the third draft, the facilitator was the SENESCYT. SENESCYT's office of ancestral knowledge was responsible for locating the main Indigenous leaders in the various places where workshops were held. They oversaw summoning people and doing the workshops. It was this secretariat that produced the outcome document that considered the concerns raised by the National Assembly (Asamblea Nacional).

This last process was supported by the previous facilitators, who nurtured the exchange of knowledge and kept this process active and sustainable. It was the State that played a successful role as a facilitator.

In Colombia, the process was not successful, as there was no presence of facilitators. This is due to limited inter-ministerial communication.

6.2.4. Visible and early results

Waissbluth et al. (2014) point out that everything that is possible needs to be done to achieve visible results early in the process. Otherwise, the interest of the participants is easily lost.

In Ecuador, the criterion of early results was not met as the process lasted 9 years. However, the participants did not lose interest. The most important thing to demonstrate the success of co-production is that there were three drafts (2008, 2012, 2016), which visibly closed three stages. The last stage culminated in a particularly important visible result, which was Chapter 6 on traditional knowledge of the Organic Code. The important thing here is that the interest of the participants could be counted on until finally reaching the desired result.

In Colombia, in August 2022, the government of President Duque ended without having adopted the traditional knowledge protection policy that he had promised to adopt during his term.

7. Conclusion

During the government of President Duque, Colombia adopted an elitist and vertical approach in its political work with Indigenous peoples regarding the protection of their traditional knowledge associated with genetic resources. In contrast, Ecuador adopted a pragmatic, collaborative, and democratic conception for decision-making and political action concerning Indigenous peoples.

In Ecuador, unlike in Colombia, a process of public innovation was presented aimed at the experimentation and institutionalization of workshops, surveys, and pre-legislative consultation with Indigenous peoples that constitute strategies and devices for policy co-production.

We also argue that the Colombian State is still behind in adopting a policy for the protection of traditional knowledge, given that the process it has been conducting since 2020 until August 2022 does not have the characteristics of policy co-production.

Although the concept of co-production was created in the Global North, it is useful for interpreting the reality of Latin America. Even more, the present article demonstrates how efforts must be done to broaden Latin American-based theoretical frameworks that embrace the region’s “Matters of Concern” (Arellano-Hernández and Morales-Navarro 2019). Academic production should not be an asymmetrical power dynamic (Gibert Galassi 2019).

Ecuador, we argue, offers a case of democratic development based on the collaborative governance of public affairs, where the State played a significant role, no longer as a monopolistic actor that imposes solutions with its hierarchical and normative authority. On the contrary, it had a role as organizer, promoter, and guarantor of the plural expression of Indigenous peoples, facilitator of their public deliberation, and of the administrative political processes that concern them.

In Ecuador, according to the findings of this research, the demands of Indigenous peoples who asked the Ecuadorian State to protect them from biopiracy were heard. The acceptance of these demands was democratic since Ecuador acted respecting democratic principles such as participation, solidarity, respect for diversity, equality, and equity. This was managed by taking into account the demands of these citizens to protect them from the illegal use of biodiversity and the appropriation of knowledge of native peoples and peasants for commercial exploitation. There are currently 417 traditional knowledge systems registered in and guarded by the Ecuadorian SENADI authority.

Likewise, the Ecuadorian public administration designed and implemented policies in accordance with the needs of Indigenous peoples to be protected from biopiracy. This implied claiming a new process based on innovation with initiatives and spaces where joint work between diverse actors was experimented to solve the public problem of biopiracy. This contributed to understanding how governments and their organizations can enter the path of experimentation and openness to collaboration with Indigenous peoples, actors located outside the public system.

However, the method of Waissbluth et al. (2014) used in this research has the limitation that it does not cover aspects of substance, but only of form, such as compliance with the four criteria: face-to-face exchange, meeting in several instances, presence of facilitators, and visible and early results. In these conditions, although our research shows that in Ecuador there was a co-production of policy with Indigenous peoples, we do not prove that this co-production was for Indigenous peoples. To achieve the latter, policy co-production and innovation require a greater ambition: that there be a dialogue between heterogeneous knowledges (expert/scientific knowledge and traditional knowledge).

We conclude by stressing that the co-production of policy for Indigenous peoples cannot be limited only to policy co-production and innovation. It requires that policy actors generate transdisciplinary knowledge and new hybrid knowledge that recovers subordinated wisdom. This is the only way to make policy co-production central to the public discourse on open government and deepening democracy in Latin America.

Knowing the limitations of this research, it is worth considering future avenues of policy co-production research aimed at addressing theoretical frameworks related to knowledge co-production and dialogue for other knowledge systems. It is important to recognize the contributions made by Science, Technology & Society (STS) studies on the co-production of knowledge, that integrate traditional knowledge in other regions of the world (Åm 2015; Agrawal 1995; Jasanoff 2004; Nadasdy 2003). Likewise, it is worth considering the new biocultural paradigm that alludes to the relationship that exists between the natural or biological and culture (Maffi and Woodley 2010; Nemogá, Appasamy, and Romanow 2022).

This is the only way to measure the full level of co-production of policies with democratic purposes of equality and dignity for Indigenous peoples, to the extent that it is proven that the co-production of policies did take into account the ontologies and epistemologies of these peoples, recovering their subordinated wisdom.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Martha Isabel Gómez Lee

Martha Isabel Gómez Lee holds a PhD in Political Studies from the Universidad Externado de Colombia with doctoral (2009–2012) and postdoctoral (2023) research stays at the Free University of Berlin. She is an environmental lawyer and a postdoctoral researcher at the Ibero-American Institute of Berlin. Since 2004, she has been a researcher at the Center for Research and Special Projects (CIPE) of the Externado University of Colombia, where she has worked as a professor since 2000. She has been the author of 3 books, over 15 book chapters, research and popularization articles. She has served as a member of the International Council of Environmental Law, Bonn, Germany, is a member of the Technical Committee on Intellectual Property and Genetic Resources of the Colombian Foreign Ministry, and a senior consultant for a capstone project for the National Organization of Indigenous Peoples of Colombia (ONIC). She is currently a founding member of the Colombian Public Policy Network (REGOPP), a member of the Comparative Public Policy Group of the Latin American Association of Political Sciences (ALACIP), the Alliance for Agrobiodiversity, the Research Network for the defense of Agrobiodiversity (RIDABI), and the International Political Science Association (IPSA). Recently, she participated as an accredited member of the Network of Indigenous Women of Latin America and the Caribbean.

André-Noël Roth Deubel

André-Noël Roth Deubel is a Doctor in Economic and Social Sciences, with a Master’s in Political Sciences from the University of Geneva-Switzerland. Since 2006, he has been Research Professor attached to the Department of Political Science and Director of the Research Group “Analysis of public policies and public management” (APPGP) of the Faculty of Law, Political and Social Sciences of the National University of Colombia (UNAL) in Bogotá. He was Director of the PhD program in Political Studies and International Relations, Director of the Political Science Review, and Vice Dean of Research of the Faculty of Law, Political and Social Sciences of the UNAL. He is the co-editor of Mundos Plurales Review (FLACSO-Ecuador). He is Visiting Professor of Public Policy graduate programs in Colombia and various Latin American countries. He is a member of ASSP (Switzerland), REGOPP (Colombia), and ALACIP and LAGPA.

Notes

1 Ethnicity and “traditional knowledge” are on the center of the analysis, both are subjects of controversy in Ecuador and Colombia.

2 Special thanks to Santiago I Gómez R, International Relations student, for his help in this literature review.

3 In Colombia, citizens have the constitutional right to inquire about a fact, act or administrative situation that corresponds to the nature and purpose of public administration. This type of request (Derecho de petición) must be resolved within ten days following its reception.

4 CODENPE, established in 1988, is a national deliberative body composed of representatives of Indigenous communities, Afro-descendants, other traditional peoples of Ecuador, and the State.

5 As of May 2022, there still hasn't been any publication.