Science and Research
A discussion paper prepared by the Commonwealth-State Working Group on Access to Australia's Biological Resources
October 1996
Australia has rich biological resources, with flora and fauna which are unique in the world. This diversity is an important asset to be conserved and used sustainably as a potential source of scientific and commercial benefit. Indigenous Australian plants and animals form the basis of substantial commercial industries in several countries. Our resources are increasingly targeted in 'bioprospecting' activities - the collection and assay of samples of biological material for scientific, conservation or commercial purposes. In this report, 'commercial purposes' does not include extractive practices such as forestry, fishing, agriculture and grazing, but does include the identification of potentially valuable compounds or attributes (such as, genes, foods, disease resistant plants, biologically active substances, etc).
There is a view that Australia is not getting adequate returns from the exploitation of its indigenous biological resources. For example, a Task Force established in 1992 by the Australia and New Zealand Environment and Conservation Council (ANZECC) concluded that it is possible for a large range and volume of biological resources to be accessed and exported for use in overseas research without appropriate returns to Australia.
There is an alternative view that, in most cases, the potential returns are not great and a more substantial benefit for Australia will be derived from encouraging access to our biological resources at low cost. In fact, greater benefit, in excess of the value of the resources themselves, may be generated by the development in Australia of value adding industries associated with the use of the resources.
International companies will, however, conduct value adding activities where it suits them. The development of these value adding industries is, therefore, unlikely to happen within Australia unless a degree of control is exercised. Such control, which is up to individual jurisdictions to consider, could help to ensure equitable flow back to Australia of benefits arising from the development of biological resources and through entering into joint venture developments agreed to in advance.
International conventions have also addressed the question of benefits that can be gained from accessing biological resources. In particular, the Convention on Biological Diversity (to which Australia is a party) addresses the sustainable use of biological diversity, and the fair and equitable sharing of benefits arising from that use.
Several other countries, groups of scientists and scientific societies are also addressing the task of protecting biodiversity while deriving benefit from its resources. Such publications as the Manila Declaration and the Melaka Accord(1) are evidence of these activities. However, it is important to note that many other countries are moving to impose tighter control of their biological resources.
Australia already has a range of instruments to manage access to biological resources, both at the Commonwealth level, and in the States and Territories. At the State and Territory level, these generally relate to conservation and land management, while the Commonwealth is responsible for controlling export of biological resources, Customs and protection of intellectual property in its various forms.
Nevertheless, these controls are not always consistent between States and Territories and are not comprehensive (ie do not cover all biological resources and all types of access). They are principally designed for conservation purposes, not sustainable utilisation. This raises the issue of whether Australia would be better served by a more comprehensive and consistent approach which not only ensures that Australian biological resources are adequately managed in ways that conserve biodiversity, but also encourages authorised access to those resources for sustainable uses.
The Commonwealth-State Working Group (CSWG) on access to biological resources was established in 1994 to investigate and report on action required to develop a national approach to access to Australia's biological resources. It was asked to: identify benefits from a national approach; develop principles to underpin access management; and suggest mechanisms which could be used to govern access, collection, processing, development and export of Australia's indigenous biological resources. This paper outlines its conclusions, for consideration by governments.
The CSWG concluded that a national approach, in the form of a uniform set of regulations or practices applied throughout Australia, would be likely to face substantial administrative and political hurdles. This paper, therefore, focuses on a nationally consistent approach, in which broad principles for managing access are developed, but which recognises that individual jurisdictions will determine their own access management regimes.
Central issues, fundamental to access to biological resources, are those of ownership, sovereignty and control. This is a complex set of issues.
Governments have sovereignty over the biological resources within their territory and sovereign rights within the Exclusive Economic Zone. However, governments do not always claim ownership of biological resources, and thus may not, without some form of regulation, be able to claim a share of the benefits from access to those resources, or to participate in contractual arrangements relating to use of biological resources on certain land and waters under their jurisdiction. In Australia, private landowners and Indigenous peoples may also have certain rights to control access to biological resources. The situation differs from jurisdiction to jurisdiction.
The CSWG does not offer a view as to whether it would be desirable for all governments to claim ownership. This is a matter for governments to resolve; it may require new legislation, and willingness to address the question of whether existing landholders and Indigenous peoples have certain rights regarding indigenous biological resources. The extent to which a government is prepared to exercise its sovereign rights will influence its overall approach to access management.
Benefits of a nationally consistent approach
The CSWG considers that the significant benefits to be gained from effective and efficient management of access to Australia's indigenous biological resources include:
The CSWG has also identified a number of potential benefits from a nationally consistent approach to managing access to biological resources, in addition to those from managing access per se. These include:
Not all working group members agreed, however, that the benefits of a nationally consistent approach would outweigh the costs, or that cooperation is necessarily better than competition between jurisdictions.
Principles for the management of access to biological resources
The CSWG considers that the development of a nationally consistent approach will be best facilitated by the development and adoption by jurisdictions of a common set of principles to underpin access. Even a degree of consistency between the mechanisms to manage access in various jurisdictions would be very difficult to achieve in the absence of such principles.
The principles identified by the CSWG are that access management regimes should:
Mechanisms for the management of access to biological resources
The CSWG considered a number of possible options for mechanisms to manage access to biological resources (ie possible permit or contract systems).
The CSWG noted that any scheme to manage access should meet a number of conditions. It should be simple and cost effective to administer, comprehensive, flexible, and involve minimal changes to existing regulatory/legislative systems. The CSWG proposed that these conditions could be met by a mechanism it called the Multi-Purpose Contract System (MCS).
Under the MCS any person wishing to access biological resources for scientific research or for commercial purposes, such as bioprospecting, would need to enter into a contract with the relevant owner of the resource with conditions covering a range of relevant matters. The precise details of the contract would depend on the particular circumstances of the case, but should cover such things as permission to enter land and remove material, a requirement to ensure that material or benefits are not passed on to third parties without the agreement of the contracting parties, sharing of benefits (financial, scientific knowledge, etc), and arrangements for handling of intellectual property and any intellectual property subsequently developed. The intention is to develop a comprehensive approach, but one which is flexible and meets the needs of the parties concerned.
Clearly the application of the MCS would depend on the extent to which a jurisdiction claimed ownership or chose to regulate biological resources within its jurisdiction. The CSWG considers that it is important for jurisdictions to institute programs to educate land owners to ensure that they are aware of the potential value of the biological resources on their land and are able to negotiate fair deals with those wishing to have access to those resources, which ensure equitable sharing of benefits.
The MCS is intended primarily to cover access to biological resources which could lead to commercial uses . This includes (for example) access for the purposes of scientific research, bioprospecting for commercially valuable products, collection for display in herbaria and museums, commercial harvesting of 'bush tucker', and collection of wild varieties for interbreeding with commercial crop and pasture species. However, personal and recreational use of biological resources, and use of plants and animals by Indigenous peoples for traditional purposes, would not be covered, but would be subject only to existing controls.
The CSWG's terms of reference require it to take into account the interests of Indigenous peoples in the use and ownership of biological resources. The CSWG consulted with some Indigenous groups, and a presentation was made by Indigenous representatives at a CSWG meeting. A key issue is that of access to the intellectual property in traditional knowledge. Existing Australian (and foreign) intellectual property (IP) laws do not specifically recognise the existence of indigenous IP rights, and consequently traditional knowledge is not currently protected under IP laws in Australia. The CSWG considers that resolution of this matter is beyond the scope of its terms of reference. However, a range of other domestic and international fora are considering it; an outline of current activity is provided as an appendix to this paper.
The CSWG considers that jurisdictions should work together to pool the information about Australia's biological resources which they obtain from their access management mechanisms. There would be value in developing a national database (or network of databases) of information about Australian biota to be available to all Australians, as this could be an important national scientific resource.
The CSWG presents this paper to the Commonwealth, State and Territory governments for their consideration. It is now up to each jurisdiction to consider the CSWG paper and deliberate on what, if any, action it will take with regard to the development of a nationally consistent approach to managing access to biological resources.
In particular, the CSWG believes that consideration will need to be given by jurisdictions to:
In addition, the CSWG considers that:
(1) See Attachment 6 for a list of international mechanisms impacting on access to biological resources.
(2) In considering whether any new domestic legal mechanisms are warranted, regard must be had to the National Competition Policy and the Council of Australian Governments (COAG) document entitled, ''Principles and Guidelines for National Standard Setting and Regulatory Action by Ministerial Councils and Standard Setting Bodies'.
In February 1994, COAG adopted the principle that "proposals for new regulation that have the potential to restrict competition should include evidence that the competitive effects of the regulation have been considered; that the benefits outweigh the costs; and that the restriction is no more restrictive than necessary in the public interest".