Sharing benefits fairly: decision-making and governance

Understanding how decisions were made by the San in the Hoodia case and how decision-making and governance structures vary between bioprospectors and indigenous communities is essential for the implementation of effective benefit sharing.
Drawing on academic literature and on interviews undertaken in South Africa, this chapter shows that decision-making processes in benefit-sharing negotiations vary significantly from party to party. In corporate hierarchies, decision-making usually centres on a small number of individuals and does not involve the wider consultation of stakeholders. Decisions are routinely made by highly educated personnel in positions of power who are well versed in the legalities and implications of their decisions. By contrast, decision-making in traditional indigenous communities such as the San often involves a large number of community members, typically with little knowledge of the technicalities and legal implications of their decisions. Discussions are seldom limited to a single event, but rather emerge over time during conversations among friends, relatives and neighbours. In the case of the San, decisions are taken by consensus, which is reached when significant opposition no longer exists.
These differences in decision-making practice place an obvious burden on negotiations, with one party requiring fast decisions to satisfy shareholders while the other needs significant time to allow meaningful community consultation and digest the implications of different options. This clash over decision-making procedures and speed often turns out to be detrimental to traditional knowledge holders, whose decision-making abilities are compromised by the commercial partners' need for urgent resolution.
One possible solution is embraced by South Africa's National Environmental Management: Biodiversity Act, which now locates support for consultation firmly with the government to ensure that negotiations are on an equal footing when benefit-sharing agreements are negotiated. However, the practical implementation of this requirement remains hampered by constraints of capacity, resources and knowledge.