Science and Research
John Voumard, Inquiry Chair
© Commonwealth of Australia, 2000
ISBN 0642547157
The need to respect the particular relationship between Indigenous people, their ancestral territories and the species to be found in those territories is widely acknowledged in the submissions to the Inquiry, as is the need to respect any traditional knowledge associated with their territories and species.
Many submissions strongly supported recognition of Indigenous cultures in maintaining Australia's biological diversity.1 The basic framework for the definition and recognition of Indigenous rights to lands, species and knowledge has been evolving for more than a decade in various international fora, including that provided by the Convention on Biological Diversity, and has been well summarised by Posey and Dutfield (1996) in the concept of 'traditional resource rights'. A number of submissions2 have drawn attention to this fact. For example, the Australian Research Council points out that:
An essential framework for the recognition of the rights of Indigenous peoples to their traditional knowledge and to the natural resources upon which they have relied for their subsistence has emerged over the last decade. These rights include the right to manage such natural resources, and to be involved in any decisions regarding those resources.3
It is anticipated there will be increased respect for the role that traditional biodiversity-related knowledge has in land and biodiversity management. This increased respect will stem from:
which are reflected in the various requirements in Bilateral Agreements between the Commonwealth and the States and Territories under Chapter 3 of the Commonwealth's Environment Protection and Biodiversity Conservation Act 1999.
With the prior informed consent and involvement of the knowledge-holders, it is expected that traditional biodiversity-related knowledge will play an increasing part in activities and processes regarding, for example:
It is, therefore, to be expected that there will be an increasing need to take account of traditional biodiversity-related knowledge in a range of activities and processes sanctioned by Commonwealth and State and Territory governments.
There is also considerable commercial interest in Indigenous traditional knowledge of plant and animal species for food, medicine and other purposes. Much of this knowledge has already been recorded and has been published in books readily available to the public as well as in scientific journals. Such knowledge is useful in helping to locate species that could be used, for example, by:
When Indigenous traditional knowledge is used to develop any new products, submissions widely acknowledged that Indigenous holders or owners of such knowledge should have the right to:
All these rights are recognised in Article 8(j) of the Convention on Biological Diversity.
A wide perception exists, among Indigenous peoples, that their knowledge has been ripped-off. The evidence can be readily seen, for example, in any government or ABC bookshop, where publications, such as the 'Bush Tucker Man' series, on bush tucker and Indigenous use of plants (particularly) can be readily purchased. In some cases these publications have been undertaken in collaboration with traditional knowledge-holders, who are duly acknowledged. A prime motivation in many of these collaborations is to ensure their traditional biodiversity-related knowledge is recorded and preserved. In other cases, Indigenous sources are not acknowledged, and the non-Indigenous author (or the institution for which he or she works) holds the copyright over this information.
While such 'rip-offs' cause grave cultural offence and harm, in considering this issue in the context of access and benefit sharing there is also need to reckon with the economic or monetary value of traditional knowledge within the research and development process.
A number of submissions4 drew attention to the recently released ATSIC report, Our Culture: Our Future, prepared by Terri Janke. The report deals with a number of mechanisms and options which can be used or developed to protect Indigenous cultural and intellectual property. Such options include:
Relevant findings and recommendations of the Our Culture: Our Future report will be referred to in this synthesis.
There may be a number of matters (because of the complexities involved and the need to respect Indigenous sensitivities and/or customary laws) which may lie outside the ambit of the regulations and be best left to the Indigenous community to resolve. Such matters may include:
The inquiry is to advise on a scheme that could be implemented through regulations under s301 of the Environment Protection and Biodiversity Conservation Act 1999 to 'provide for the control of access to biological resources in Commonwealth areas'.
The scheme is to take into account:
The scheme should operate in a manner that promotes certainty for industry and facilitates access to biological resources for environmentally-sound uses.
Consistent with the objects of the EPBC Act, the scheme should:
Section 301 'Control of access to biological resources', of the EPBC Act states:
A number of submissions5 indicated the need for a set of principles to provide a framework for developing a regime for accessing biological resources. They recommended:
that the Commonwealth adopt, as the basis for access to biological resources in Commonwealth areas, a simple, comprehensive, effective and consistent system, founded on the basic principles identified by the Commonwealth State Working Group on Access to Biological Resources in its October 1996 discussion paper, Managing Access to Australia's Biological Resources: Developing a Nationally Consistent Approach (see p.11).
In its submission, Environment Australia6 pointed to four over-arching principles, or desirable features, of an access scheme/regime, namely, that such a regime should:
To these principles could be added:
With regard to this last point, the CSIRO8 explains the principle that:
... consistency with international developments is of paramount importance. Australian agriculture has a net dependency on overseas biological resources, and consequently any access management regime should seek to ensure both Australians and overseas parties have access to Australian biological resources on similar terms as we would like to have to other biological resources kept overseas.
The issue of international credibility also has other dimensions, particularly with regard to enforcement. International consistency in legislation governing access to biological resources with regard to enforcement clauses will make it easier for Indigenous stakeholders, for example, to pursue actions against those who have infringed access conditions where Indigenous interests are concerned. This issue has been dealt with further in 'Illicit use of traditional knowledge in the international arena' below.
The Act puts into law many of Australia's obligations under international environment-related treaties, such as the:
It replaces the National Parks and Wildlife Conservation Act 1975 and contains many provisions of direct relevance to Indigenous peoples in Australia. The Act does not affect operation of the Native Title Act 1993 [s8].
Most importantly, in many of its provisions, the Act reflects Australia's obligations to Indigenous peoples under the Convention on Biological Diversity. For example, amongst the objects of the Act [s3] occur the following:
to promote a cooperative approach to the protection and management of the environment involving governments, the community, land- holders and indigenous peoples; and
to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia's biodiversity; and
to promote the use of indigenous peoples' knowledge of biodiversity with the involvement of, and in cooperation with the owners of the knowledge.
In order to achieve its objects, the Act, under s3(2)(g)(iii) promotes a partnership approach to environmental protection and biodiversity conservation through 'recognising and promoting Indigenous peoples' role in, and knowledge of, the conservation and ecologically sustainable use of biodiversity'.
Recognition and protection of Indigenous interests provisions occur many times in the Act. For example, under s49A, one of the prerequisites for making bilateral agreements between the Commonwealth and the States and Territories is that the Minister may enter into such an agreement only if he or she:
has considered the role and interests of indigenous peoples in promoting the conservation and ecologically sustainable use of natural resources in the context of the proposed agreement, taking into account Australia's relevant obligations under the Biodiversity Convention.
This, of course, means the obligations specified in Articles 8(j), 10(c), 17.2 and 18.4 in particular. The Minister, as long as other requirements are satisfied in relation to listed threatened species and ecological communities [s201(3)(c)], may issue permits, for example, for hunting, fishing and gathering in a Commonwealth area, as long as he or she is satisfied that 'the specified action is of particular significance to indigenous tradition and will not adversely affect the survival or recovery in nature of the listed threatened species or listed threatened ecological community concerned'.
Similar provisions also occur in relation to migratory species [s216(3)(c)] and listed marine species [s258(3)(c)]. Within the Act, 'indigenous tradition means the body of tradition, observances, customs and beliefs of indigenous persons generally or of a particular group of indigenous persons' [s201(4)]. In the content of recovery plans [s270(3)(e)], in the making of a recovery plan, regard must be had to 'the role and interests of indigenous people in the conservation of Australia's biodiversity'. Similar wording also occurs in relation to threat abatement plans [s271] and wildlife conservation plans [s287(3)(e)].
The Minister, under s305, may enter into conservation agreements (subject to a number of other provisions) with an Indigenous entity, which is legally binding [s307]. The relevant paragraphs of s305 state that:
Under subsection (1), the Minister may enter into a conservation agreement covering land with one of the following persons who has a usage right relating to the land:
This does not limit subsection (1)
The Minister must take account of the following when entering into a conservation agreement as described in subsection (4):
Importantly, the Act recognizes a role for Indigenous peoples in administering the Act. Three committees are established with their membership by ministerial appointment:
While membership of the Scientific Committee is determined by the Minister [s502(2)], the Biological Diversity Advisory Committee must have a representative of 'indigenous peoples' [s504(4)(ea)]. With regard to the Indigenous Advisory Committee, as with the other committees, the Minister is to determine in writing the composition of the Committee, including the qualifications of its members. The members are appointed on a part-time basis, and the Minister must appoint one of the members to chair the Committee. Under s505B:
While the provisions summarised above have important implications throughout the Act and are an important recognition of Australia's obligations to Indigenous peoples with respect to the Convention on Biological Diversity, it should be remembered that many will only apply where the Act applies only to Commonwealth areas [s525].
However, in the context of bilateral agreements between the Commonwealth and a State or Territory, with respect to s49A(c) and s50(a), in the latter instance the Minister may only enter into a bilateral agreement if satisfied the agreement accords with the objects of the Commonwealth Act (the Minister is obliged to ensure Indigenous interests are fully taken into account in such agreements). Such bilateral agreements, within the overall context of the Act, will be the principal instruments through which the Commonwealth can ensure the States and Territories comply with the various obligations entered into under the Convention on Biological Diversity.
Some consideration should be given to the role and function of the Indigenous Advisory Committee established by s505A of the EPBC Act. As noted above, the Minister is to determine the composition of committee and may provide written guidelines about its function. Because of the wide range of issues and international obligations covered by the EPBC Act which affect the interests of Indigenous peoples in Australia, membership of the Committee should be large enough to enable it to adopt a 'portfolio approach' in covering these issues and to be able to provide informed and quality advice to the Minister. Indigenous biodiversity-related issues are now being addressed in a number of international fora in addition to the Convention on Biological Diversity. These include the:
As with the Convention on Biological Diversity, meetings are held regularly under these Conventions and international processes and decisions are being made which directly affect the interests of Indigenous peoples in Australia: yet Indigenous Australians are not being represented at these meetings (with the exception of some recent World Intellectual Property Organization meetings).
For example, the Conference of the Parties (COP) to the Ramsar Convention, at its seventh meeting in Costa Rica in May 1999, adopted guidelines for involving local and Indigenous people in wetland management. Australia was among the first to sign this convention when it entered into force in 1975 and has emerged as one of the most significant signatories: ranking third in the world in its number of designated wetlands (42), and third in terms of their total area (4, 659,282 ha). While many of Australia's designated wetlands are clustered in Tasmania and southern Australia, other sites include Kakadu National Park, the Coongie Lakes in South Australia, Coburg Peninsula (Northern Territory), Shoalwater Bay (Queensland) and the Lake Argyle-Kununurra wetlands (Western Australia) which are all areas owned, inhabited and/or used by Indigenous communities. While Australia regularly sends delegations of five or six members to most of these meeting, Indigenous representation is absent.
To keep Indigenous communities and the Minister informed and to provide input into the meetings held in these various fora, sufficient funding should be provided so members of the Indigenous Advisory Committee, in accordance with their portfolio responsibilities, can attend relevant meetings.
RecommendationTo provide effective and informed advice to the Minister, the Minister should consider appointing members to the Indigenous Advisory Committee with experience and expertise in intellectual property rights and protection of traditional biodiversity-related knowledge; access and benefit sharing; conservation and sustainable use of biodiversity; international trade; forests; fisheries; wetlands and arid lands. The Indigenous Advisory Committee should also have representation from ATSIC, Australian Institute of Aboriginal and Torres Strait Islander Studies and the Indigenous Biodiversity Trust (if established). |
The National Strategy for the Conservation of Australia's Biological Diversity contains a number of references to Aboriginal and Torres Strait Islander peoples. Of the principles which have been adopted as a basis for the Strategy's objectives and actions, and which should be used as a guide for implementation, the final principle states:
The close, traditional association of Australia's Indigenous peoples with components of biological diversity should be recognised, as should the desirability of sharing equitable benefits arising from the innovative use of traditional knowledge of biological diversity.9
With regard to the objectives, the goal of Objective 1.8 is to: 'Recognise and ensure the continuity of the contribution of the ethnobiological knowledge of Australia's Indigenous peoples to the conservation of Australia's biological diversity.'10 One of the actions designed to implement this objective concerns access to information through:
[The provision of] resources for the conservation of traditional biological knowledge through cooperative ethnobiological programs [; and The provision of] access to accurate information about biological diversity for Aboriginal and Torres Strait Islander peoples, and involve them in research programs relevant to the biological diversity and management of lands and waters in which they have an interest.
The Strategy also identifies the need to improve our knowledge and understanding of Australia's biological diversity essential for its effective conservation and management. With regard to the ethnobiological knowledge of Aboriginal and Torres Strait Islander peoples, it is necessary to:
Recognise the value of the knowledge and practices of Aboriginal and Torres Strait Islander peoples and incorporate this knowledge and those practices in biological diversity research and conservation programs by:
In implementing the Strategy, it is stated that, by the year 2000, Australia will have, among other things,
implemented cooperative ethnobiological programs, where Aboriginal and Torres Strait Islander peoples see them to be appropriate, to record and ensure the continuity of ethnobiological knowledge and to ensure that the use of such knowledge within Australia's jurisdiction results in social and economic benefits to Aboriginal and Torres Strait Islander peoples.12
These references, in their various wordings, reflect the requirements of the Convention on Biological Diversity with respect to Articles 8(j), 10(c), 17.2 and 18.4, but also reflect the need to involve the nation's Indigenous peoples in the work of other provisions, such as Article 7 (identification and monitoring) and the whole of Article 8 (in situ conservation).
In the Convention on Biological Diversity the world has formally recognised the critical role that Indigenous and local communities and their traditional biodiversity-related knowledge have to play in sustainably managing critical components of biodiversity.
The official wording of the phrase 'Indigenous and local communities embodying traditional lifestyles' primarily refers to those communities which have not adopted western industrialised forms of agriculture and who remain responsible, in no small way, for the world's food and medicinal security because of the custodial and innovative role they play in nurturing and developing genetic resources essential to modern food and agricultural production. It is estimated that such communities number some 1.5 billion people,13 making Article 8(j), because of the sheer numbers of people involved and because of the critical genetic resources for which they are responsible, one of the most important provisions for the in situ conservation of biological diversity.
Thus consideration for Article 8(j) is embedded in virtually all the work programs being carried out under the decisions made at the various meetings of the Conference of the Parties (COP)14. Consequently, Indigenous and local communities world-wide are increasingly looking upon the Convention on Biological Diversity as the most important international instrument through which to protect natural resources, knowledge, technologies, traditions and lifestyles.
Among its provisions are those that require that:
Importantly, the COP has recognized that 'traditional knowledge should be given the same respect as any other form of knowledge in the implementation of the Convention'. This recognition was given further elaboration at COP5 in Nairobi in May 2000, whereby one of the general principles guiding the program of work adopted to further implement Article 8(j), states that:
'Traditional knowledge should be valued, given the same respect and considered as useful and necessary as other forms of knowledge.'15
Application of traditional biodiversity-related knowledge also is one of the essential elements making up the ecosystem approach which has been adopted by the COP as a framework for analysis and implementation of the objectives of the Convention on Biological Diversity and in elaborating and implementing the various thematic and cross-cutting work programs under the Convention.16
However, the requirements to 'respect, preserve and maintain' traditional knowledge, and to secure the approval of its holders can only take place within the context of acknowledging and protecting the intellectual property rights of Indigenous communities in their knowledge, innovations and practices. This can be achieved by either adapting and using existing patent and plant breeder's rights regimes, or through using other alternative mechanisms by which to negotiate access to such knowledge, and which will guarantee its acknowledgment and protection. Amendments to both the Patents Act and the Plant Breeder's Rights Act are discussed in Our Culture: Our Future.
Implementation of Article 8(j) and related provisions (Articles 10(c), 17.2 and 18.4) has been considered as a separate agenda item at the last three COP meetings, giving rise to decisions III/14 (COP3 in Buenos Aires, Argentina in 1996), IV/9 (COP4 in Bratislava, Slovakia, May 1998) and V/16 (COP5 in Nairobi Kenya, May 2000), and will be considered again at COP6 at The Hague in 2002.
Decision III/14 authorised a Workshop on Traditional Knowledge and Biological Diversity, which took place in Madrid, Spain in November 1997. This workshop recommended establishing an Ad Hoc Open-ended Intersessional Working Group to address Article 8(j) and related provisions and provided options for a program of work for consideration by COP4. COP4 duly established the Ad Hoc Working Group on Article 8(j) and mandated it to develop the program. The first meeting of the Ad Hoc Working Group took place in Seville, Spain in March 2000 and its recommendations to COP5 have resulted in adoption of a program of work for implementing Article 8(j).
The Secretariat of the Convention on Biological Diversity prepares a number of documents for the meetings held under the Convention by its various bodies (the COP; its principal advisory body, the Subsidiary Body on Scientific, Technical and Technological Advice; the Ad Hoc Working Group on Article 8(j); and various meetings of panels of experts). These documents include reports and background documents which help COP make its decisions, information documents and compilations of case studies, technical and national reports, and so on -- most of which are available to the public through the Convention's clearing house mechanism.
Of particular relevance to this Inquiry is the Report of the Panel of Experts on Access and Benefit Sharing17 and the decisions of COP5 which are available, at this stage, as a pre-publication release through the clearing house mechanism. These documents are also sent to the national focal points for the Convention to help Parties prepare for meetings. The documents, as a whole, contain much information that is of the utmost relevance to Indigenous communities and are essential if they are to achieve the best out of their negotiations with governments and their agencies.
The Parties consider implementation of Article 8(j) and related provisions to be a cross-cutting issue virtually affecting all sectoral and thematic areas, and work programs dealt with under the Convention on Biological Diversity (eg forests, agro-biodiversity, inland waters, coastal and marine ecosystems, incentive measures, access and benefit sharing, in situ conservation, public education and awareness, environmental impact assessment, and so on). Thus references to 'Article 8(j)' ('traditional knowledge, innovations and practices' and 'involvement of Indigenous and local communities') occur in no less than 11 of the 19 decisions made at COP4. In addition to the Ad Hoc Working Group on Article 8(j) the Executive Secretary of the Convention's secretariat has established a liaison group, comprising representatives of Indigenous and local communities, to act as an informal reference group to provide advice on preparation of documents for the various meetings. Indigenous peoples in Australia have representation on this liaison group.
Representatives of Indigenous and local communities have had a very direct input into the whole Convention process and have had a direct bearing on the outcomes of all the decisions referred to above. In fact the COP, in its meetings, has been very concerned to explore ways and means of increasing the direct and effective participation of Indigenous and local communities in the work of the Convention. Indigenous peoples from Australia have generally been well-represented at the above-mentioned meetings, and because of continuity of attendance, provide considerable leadership at the international level when dealing with issues being addressed by the COP under the Convention.
RecommendationIn order to promote the full and effective participation of Indigenous peoples in Australia in the work of the Convention on Biological Diversity and other international environment-related agreements, the national focal points for these agreements should disseminate the relevant information, forwarded by the respective secretariats, to relevant Indigenous organisations for their consideration. |
In any consideration of ownership of biological resources, the Indigenous position should be respected. Generally, Indigenous peoples in Australia have a particular spiritual connection with the native flora and fauna in their territories as expressed through their totemic relationships with various species. This relationship has been widely acknowledged in the submissions. In this relationship, which is a feature of many Indigenous and local cultures around the world, Indigenous people see themselves as custodians or stewards of biodiversity as distinct from having ownership in the form of a property right over particular species, whether exercised through a system of intellectual property rights (via patents or plant breeder's rights) or through statutes which might assign particular rights to landowners with regard to native animals and plants found on their land.
It is widely believed, amongst Indigenous peoples both in Australia and overseas (and as evidenced in their many declarations and statements made over the last decade), that all life, even in its tiniest forms and components, is sacred and therefore cannot be owned as property.18 This presents a huge ethical dilemma for traditional owner groups who may wish to profit commercially from native species found on their lands by undergoing, for example, plant breeding activities, and who may wish to take out plant breeder's rights over new varieties they have developed, in order to secure their commercial interests.
There are many religious, philosophical and ethical dimensions to the issue of ownership of biological resources. Many oppose, in particular, use of intellectual property rights to gain control over traditionally used varieties of food, medicinal and other useful species.19 For example, the Environmental Defenders Office:
... strenuously objects to patent laws that allow the patenting of components or modification of living organisms. Our objection is based on the following reasons, inter alia:
The Patent system favours larger corporations over traditional users of biological resources. Patenting systems around the world are littered with examples of major corporations patenting components or variations of living organisms that have been used by traditional breeders or Indigenous peoples for thousands of years.'20
Similarly the Australian GeneEthics Network submits that: 'Patents on life forms, including organisms, genes, primary or secondary compounds are inconsistent with ethical principles and with the beliefs and customs of many Indigenous peoples. ... Patents may apply to specific commercial products as long as they are not living organisms.'21
Patents over genes, genetic processes, etc., can be seen as a way for (some) countries to thwart the principle of national sovereignty over biological resources as contained in Article 15.1 of the Convention on Biological Diversity.
Some concern was also expressed about access to human genetic material (eg through extraction of DNA from Indigenous remains excavated in Commonwealth areas).22 The biological resources referred to under s528 of the EPBC Act do not include human biological/genetic material which is covered under separate legislation (see, for example, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cwth)). Human genetic resources are also not included within the framework of the Convention on Biological Diversity (see decision II/11, paragraph 2, arising from COP2 in Jakarta, November 1995). Research involving the human genome is, instead, covered under the UNESCO Universal Declaration on the Human Genome and Human Rights.
Broadly speaking, issues of ownership of biological resources with regard to Indigenous traditional owners revolve around ownership of:
It will only be in rare instances that ownership of land, a particular biological resource and associated knowledge will coincide. Such instances are likely to be confined to cases in which a particular species is endemic to a particular area of land owned by an Indigenous traditional owner group and over which they hold native title rights, particularly species found on their lands to which their cultural, social and economic rights, associated with the species, are recognised.
On the other hand, a situation more likely to arise is where Indigenous traditional owner groups have neither title to land nor can they claim, or have yet to establish, (native title) rights to traditionally used species, but possess traditional knowledge associated with a particular species which is the subject of an access request. In such situations, traditional knowledge may be important, from a conservation and sustainable use perspective, or it may have benefits in terms of taxonomic knowledge. As the CSIRO points out:
In considering the issues surrounding access to biological resources, it is necessary to distinguish between the physical biological resource itself (ie the living organisms, specimens, or accessions) and the associated knowledge about the resource itself (including embodied intellectual property), or further knowledge gained from the use thereof.23
A number of submissions noted that long-standing issues of ownership of biological resources needed to be satisfactory resolved, particularly where two or more jurisdictions were involved. It was also pointed out that resource managers were not necessarily owners, and that their right to claim a share of any benefits arising from use of a biological resource was open to question. The resolution of ownership is essential, particularly in relation to benefit sharing.24
The Australian Institute of Marine Science argued that only owners of biological resources should share the benefits from using such resources and not those whose role is confined to one of management (which may include the role of issuing permits for access, as is frequently the case with regard to statutory authorities charged with administering natural resources on Crown lands). In its first recommendation, the CSIRO:
... recommended that the regulations under the EPBC Act vest ownership and title to biological resources in its possession to the Crown.25
However, such an action would have to take into account native title considerations and recent court decisions, like the High Court's decision in Yanner v Eaton.26 See also 'Native title considerations' below.
In some Commonwealth areas, under Aboriginal land legislation, traditional owner groups manage access to their lands through a permit system. Normally, anyone wishing to access Aboriginal lands for whatever purpose must lodge a permit application with the relevant land council and, on the basis of information supplied, the traditional owner group(s) concerned can grant or refuse access. This regime will have practical implications for anyone wishing to access biological resources on Aboriginal lands and therefore must be taken into consideration in any access procedures.
The National Native Title Tribunal makes the following points:
The Inquiry will need to consider the effect of any proposed regulations on the common law of native title, which is that native title in any area may include rights and interests in relation to biological resources in the area. The Native Title Act 1993 confirms the common law of native title which is that this form of title is held by one or more people for the benefit of the members of their group and their descendants. Native title is an underlying right which continues to exist in some areas of land or water. It is not a right which is granted by any operation of law. Consistent with this position at common law, one of the objects of the Act is to recognise and protect native title where it continues to exist.
Under the Act people can apply to the Federal Court to have their native title recognised by a determination of the Court. Native title applications can be made in respect of land and waters other than private freehold land, including Crown land, reserve land, leasehold land and land affected by a range of other interests such as permits and licences.
Applicants seeking recognition of their native title, are required to specify the native title rights and interests they seek to be determined. Often applicants claim a native title right to manage and protect natural resources within the claim area, including biological resources.
All persons with an interest in an area of a claim, which interest may be affected by a determination of native title may become a party to an application. Through mediation the parties may reach agreement about the existence of native title and/or the existence of particular native title rights and interests. If parties do reach agreement the Federal Court may ratify the agreement as a determination of native title or it may make a decision after trial about whether native title exists and if so, what native title rights and interests are held by the native title holders.
If the Commonwealth has an interest in the land or waters the subject of an application, it may become a party and participate in mediation. Any native title right concerning access to and management and use of biological resources would therefore be considered in the mediation process.
Parties in the Tribunal's arbitral process in relation to certain future dealings in land may also reach agreement about access to that land and use of resources derived from that land, including biological resources. The relevant State or Territory may be a party to an agreement reached in the course of an arbitral process.
Further, under the Act Indigenous people and other persons may enter Indigenous Land Use Agreements. These may be developed in the course of, or independently of, an application for a determination of native title. These agreements can deal with a range of issues in relation to access to and use of land, including extraction and use of natural resources. Parties to the agreement can request the Native Title Registrar to register the agreement on the Register of Indigenous Land Use Agreements. Upon registration an agreement takes effect as a contract between the parties. Therefore, even if a native title application has not been filed or finalised, parties are able to reach agreements about access to land and use of resources derived from that land, including biological resources. Local, state, territory and Commonwealth governments may be party to an Indigenous Land Use Agreement.
Applicant groups may be represented and/or legally aided by native title representative bodies. These bodies are established under the Native Title Act to assist applicants and potential applicants within designated areas. They operate under the auspices of the Aboriginal and Torres Strait Islander Commission.27
Among Australia's obligations under the Convention on Biological Diversity, the Commonwealth Attorney-General's Department mentions 'an obligation to protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements'.28 That is a direct reference to Article 10(c) of the Convention. At COP5 in May 2000, the Conference of the Parties of the Convention on Biological Diversity recognized that:
... the maintenance of knowledge, innovations and practices of Indigenous and local communities is dependent on the maintenance of cultural identities and the material base that sustains them and invites Parties and Governments to take measures to promote the conservation and maintenance of such identities.29
A number of submissions30 highlighted the importance of continued access to traditionally-used biological resources for maintaining traditional lifestyles and traditional knowledge, and that access to any particular biological resource for whatever purpose should not impede traditional/customary usage of that resource.
While access regimes (subject to conservation and sustainable use requirements) should not impede traditional usage, some consideration needs to be given to traditional owner groups wishing to access biological resources for commercial purposes, either by harvesting the species in the wild, or by commercial farming. For a number of Indigenous communities, access to the biological resources on their traditional lands and associated knowledge for commercial purposes may be their only hope for a long-term economic and sustainable future.
The Tasmanian Conservation Trust submits that:
Article 10(c) of the Convention on Biological Diversity requires Australia to 'protect and encourage customary use of biological resources in accordance with traditional cultural practices ...' This obligation, taken with Article 8(j) and 18(4), should be regarded as establishing a binding obligation to confer ownership of intellectual property rights over populations of native animals and plants customarily used by Aboriginal and Torres Strait Islander communities in Australia to those communities. These rights should include the right to control access to and use of all characteristics and parts of members of relevant species and populations of plants and animals within Australian national jurisdiction.31
Some concern was also raised that any access regime which allows for continued access to biological resources for customary purposes should not condone any cruelty or inhumane practices towards any fauna. Lucy Fish 'does not feel traditional Aboriginal methods of hunting and killing should be encouraged ... as many of these are incredibly inhumane and are not justified in the society we live in today'.32 M Wilson submits that the 'Terms of Reference fail to take into consideration animal welfare issues'.33 Particular reference is made to turtles and dugong: 'Indigenous people should be held accountable under the same laws of prevention of cruelty as the rest of the community is held responsible.' '... These issues must be addressed before you talk about rights or control over or ownership of our biological resources.'
In its submission, the CSIRO argues that:
Managing knowledge is just as important as managing the biological material, as knowledge may actually be of greater value than the physical resource. ... The knowledge management issues are as complex as those involved with managing physical resources.34
Intellectual property is an important aspect of managing knowledge, but it should also be pointed out that intellectual property can be used to gain control over certain genetic resources and the species of which they are a part,35 and can therefore have a considerable bearing on access and benefit-sharing arrangements.
The World Bank has pointed out that: 'Today knowledge is perhaps the most important factor determining a nation's standard of living -- more than land, than tools or labour.'36 It also points out that: 'Eighty per cent of the world's commercial research and development and a similar share of its scientific publications come from the more industrialised nations. World Bank vice- president Ismail Serageldin warns of an 'emerging scientific apartheid'.37 In the global economy, creation of intellectual property is becoming an increasingly important factor in wealth generation as new ideas, new research and innovation form the basis of much modern-day commerce.
This source of wealth creation also requires protection of the intellectual property on which it relies. This is particularly so with regard to the life industries with their heavy reliance on genetic engineering and other forms of biotechnology. Not only do biological resources provide much of the raw materials for such industries, but traditional biodiversity-related knowledge of such resources can also provide vital clues to industry researchers, saving valuable time and money in the research and development process.
It is also important for long-term economic security and sustainable development that Indigenous communities in Australia secure a stake and participate in this and any other industries based on Australia's biological wealth and its management. Indeed, for many of Indigenous communities, their long-term sustainable economic development may depend on their capacity to generate new intellectual property from their traditional knowledge; to create new products derived from their natural resources. In this context, Indigenous communities might, therefore, need to focus on such forms of intellectual property protection as plant breeder's rights, patents, trade secrets, and creation and protection of economic advantage through trademarks, product certification, labelling and geographic indicators. It is also relevant to consider various forms of contractual means for protecting traditional knowledge, such as biodiversity contracts, non-disclosure clauses to protect certain kinds of information, and licensing agreements.
Many Indigenous, institutional, non-governmental and industry groups have expressed concern about the need to find some form of adequate protection of Indigenous traditional knowledge as (Indigenous) intellectual property.38 For, example, in the view of the CSIRO:
... it would appear that the traditional means of capturing benefit from knowledge-generation through the usual intellectual property regimes does not always work well in those situations where Indigenous knowledge about particular biological resources are of significance. The existing regimes, such as patents, copyrights, plant variety rights etc, are not geared to capture such 'background Indigenous'.39
In referring to its 1994 Workshop Report, Access to Australia's Genetic Resources, the Australian Research Council pointed out that:
The 1994 Workshop consideration of intellectual property issues went wider than just the technical interpretation of patents, trademarks, design, copyright and plant variety rights. It also included the rights of Indigenous people to protect the 'intellectual property' or knowledge derived from living organisms that they have supplied to researchers. Participants felt that this alternative interpretation of intellectual property needed to be carefully distinguished from the more conventional understanding of the term and that these rights also require protection.40
It should also be pointed out that issues concerning protection of traditional knowledge have been receiving considerable attention and have been the subject of a number of inquiries and reviews over the last two and a half decades with no effective response by government. Traditional knowledge of biodiversity represents a considerable economic asset for Indigenous knowledge-holders, but an asset upon which they have been unable to capitalise, the benefits of such knowledge, instead going to others. It is clear from submissions received that the matter needs to be dealt with. Pires de Carvalho, Intellectual Property Division, World Trade Organization Secretariat, Geneva, argues that:
Indigenous (knowledge) holders might very well be seen as potential technology providers for the western pharmaceutical and agro-chemical industries -- provided the legal mechanisms exist that allow transactions to take place within a framework of legal security. Contract law, for instance, may apply. But the parties to a contract have obligations only to each other, and they have no rights enforceable erga omnes. A framework of legal security undoubtedly means proprietary rights.
If Indigenous communities' interests are to prevail in the relations with companies, then there must be a set of laws that allows stable legal relations between the economic agents to be set forth. We should then look for an enabling system for the protection of Indigenous knowledge. 'Enabling' means that the system should enable knowledge holders to have their rights protected and enforceable, and, on the other side of the equation, it should allow companies to conclude negotiations within a legal framework that they could understand. Furthermore, the adopted system should enable courts to feel comfortable with the rules they will apply.41
For traditional knowledge-holders to effectively realise their knowledge as an economic asset and to enter into partnerships with research institutions and industry groups, their traditional knowledge must be given recognition and protection in a way that provides legal certainty for both knowledge-holders and those with whom they wish to share it. Such certainty will also enable traditional knowledge holders and research/industry groups to more confidently negotiate terms of access to traditional knowledge and benefit- sharing arrangements a situation that will also further the cause of reconciliation.42
Legislative recognition and protection of traditional knowledge should not, however, preclude traditional knowledge holders from building on their knowledge and having recourse to other (standard) forms of intellectual property rights such as plant breeder's rights and patents.
In his detailed legal analysis, de Carvalho argues that patent law systems can be used in a number of circumstances to protect traditional knowledge and the rights of its holders, either by stopping the grant of a patent because of the existence of such knowledge as prior art (as in the case of turmeric in the United States), or by knowledge-holders themselves applying for patent protection over their knowledge. While this is an option few Indigenous groups anywhere have tried, it is also relevant to point out that the costs of applying for and defending a patent are way beyond the means of most communities.
For example, to obtain patent protection for an invention in an appropriate range of countries can cost as much as US$100,000 - 200,000 (A$150,000 - 300,000), and up to double that per litigation to protect the patent from illegal use or challenge.43 While this might represent small change for a major biotechnology corporation, and is no doubt factored into their overall research and development and operational budgets, fees like this represent insurmountable obstacles for Indigenous traditional knowledge holders in Australia.
CSIRO has put forward two options that ... 'could be considered further in order to appropriately recognise the value of Indigenous knowledge about biological resources, although we acknowledge that the policy challenges could be significant:'
Accordingly, the CSIRO has recommended that the Commonwealth consider in more depth the intellectual property issues surrounding Indigenous knowledge, including options for declaration and validation of intellectual property rights.45
ATSIC also addresses the matter, referring to recommendation 11.5 of the Our Culture: Our Future report in which:
A new class of proprietary rights for traditional knowledge should be considered, or the creation of a transfer agreement for the adoption of procedures which ensure that:
Indigenous people are informed of patent applications or plant breeder's rights applications that include Indigenous material or relate to Indigenous species; Prior informed consent to use such material and species has been obtained from any relevant Indigenous group or groups; and
Indigenous people have a right to negotiate the types of use permitted and to share in any economic benefits that might accrue. Where possible, rights should be effected in written agreements.46
Granting of plant breeder's rights and patents over, for example genes of certain species, may compromise Indigenous customary rights to those species or, if such rights are protected, it may compromise their rights to the commercial application of those species, ie they may only use such species for commercial gain under license to the company holding the patent or plant breeder's rights.
There is world-wide concern over commercial interests exploiting the knowledge of Indigenous communities. Such commercial interests have, thus far, sought free access to what they consider to be public domain knowledge of plant resources and their uses, modifying this public property superficially, and transferring it into the private domain of intellectual property rights. This is particularly the case in regard to patenting of life forms and recognition of plant breeder's rights.
This so-called 'public domain knowledge', defined according to criteria laid out in standard intellectual property law, is in fact the communally-owned knowledge of Indigenous peoples, governed and regulated by their customary laws with regards to its access, use, and dissemination. But because much traditional knowledge cannot be attributed to a single community, much less to an individual, and is frequently shared in accordance with cultural practices, it is regarded as being in the public domain and therefore, for example, unprotectable under patent law.
One of the main consequences of the incompatibility of 'western' systems of intellectual property rights laws and local customary systems can be seen in the way in which corporations gain access to, use, benefit from, and ultimately control components of traditional knowledge.
Typically, anthropologists, ethnobiologists, or their like, visit Indigenous communities, collect traditional biodiversity-related knowledge from the Elders and acquire copyright protection for their compilations of this knowledge, whether or not they acknowledge the intellectual contributions of their local informants. Company researchers may then read this work, investigate a certain piece of information in it, add knowledge of their own, and patent the result. This process is well advanced in Australia: traditional biodiversity-related knowledge has largely been exploited by others, with benefits accruing to those who have acquired and disseminated that knowledge. While to many the Bush Tucker Man is the very public face of that process, many non-Indigenous people and institutions are involved.
A considerable amount of traditional knowledge about Indigenous use of plant and animal species for food and medicine is already published, with the copyrights to such information held by non-Indigenous collectors and institutions.
While the EPBC Act addresses the important provisions contained in Articles 8(j), 10(c) and 18.4 of the Convention on Biological Diversity, it falls short of providing intellectual property-style protection for communally-held traditional knowledge. While prior informed consent procedures and contractual provisions can give a degree of legal certainty to protecting traditional knowledge, recognition of such knowledge as intellectual property will provide a higher degree of certainty for all parties and attract greater recognition in court proceedings.
Pires de Carvalho argues that:
... Indigenous knowledge presents some characteristics that make it irremediably unsuitable to fit within one or two specific intellectual property rights. Those peculiar characteristics derive from the fact that there are cultural, philosophical and religious components that are intrinsically connected to the scientific and technical knowledge of traditional communities that no intellectual property system can cover entirely.47
Dr David Bennett also points out that '... reforms may not be sufficient, rather a new sui generis regime is needed'48 and refers to subsection 26.4(b) of Agenda 21 which states that one measure governments could take is to:
Adopt or strengthen appropriate policies and/or legal instruments that will protect Indigenous intellectual and cultural property and the right to preserve customary and administrative systems and practices.
He concludes that: 'The important point made here is that any form of intellectual property rights regime adopted should 'preserve customary and administrative systems and practices'. That is, the regime should conform to traditional practices rather than attempt to force traditional practices into a Western legalistic mould.'49
ATSIC refers to the Our Culture: Our Future report's recommendations 18.1-21 concerning introduction of specific, sui generis laws to protect Indigenous cultural and intellectual property. As the ATSIC submission concludes: 'These measures would enable a more 'holistic' approach to protection and management of Indigenous cultural and intellectual property, that includes biodiversity-related traditional knowledge, innovations and practices.'50
RecommendationThat the Commonwealth Government commission a study, to be carried out in conjunction with the Indigenous community, to draft sui generis legislation to protect Indigenous intellectual and cultural property. Such a study should take particular account of recommendations 18.1-21 of the Our Culture: Our Future report, as well as existing models developed for this purpose together with sui generis laws in force in other countries.51 |
The possibility of using native title as a means of providing protection for traditional biodiversity-related knowledge as intellectual property has, to date, not been thoroughly explored. For example, Bryan Horrigan and Simon Young do not deal with it in the book they edited concerning the Commercial Implications of Native Title, and yet, from the evidence presented so far, the commercial implications for both Indigenous and non-Indigenous Australians regarding protecting and using traditional biodiversity-related knowledge are far-reaching.
In the context of both protecting traditional biodiversity-related knowledge and regulating access to it, in cases where it has not been extinguished, native title may hold the key and warrants further critical examination. As Dr David Bennett argued in his 1996 paper, 'Native Title and Intellectual Property':
... native title rights and interests are based on Indigenous intellectual property. Therefore a loss, diminution, or impairment of the intellectual property that underlies native title rights and interests would in effect be wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests, and therefore could entitle the owner of traditional knowledge to compensation under the Native Title Act. If this is so, then the Native Title Act could be a form of protection for communal intellectual property of Aboriginal and Torres Strait Islander peoples.
He suggests that use of traditional biological knowledge in the scientific, commercial and public domains without the cooperation and control of the traditional owners of that knowledge, and without ensuring the use and collection of such knowledge results in social and economic benefits to the traditional owners, '... could lead to extinguishing a communal, group or individual native title right or interest or be otherwise wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests.' If an action were successful in such circumstances, compensation could be payable for the extinguishment or impairment of that native title right.
Shelley Wright also argues that the absence of statutory instruments extinguishing Indigenous intellectual property rights (and numerous Federal Court judgements recognising the presence of communal interests in Indigenous designs) supports the continued operation of common-law intellectual property rights. As Wright notes, such rights as Indigenous 'cultural rights' would 'transcend the normal boundaries between and within intellectual property regimes and protection of cultural heritage'.52 She believes such cultural rights would only arise in relation to traditional forms of Indigenous culture related to occupation and guardianship of land. In pursuing this line of argument, Terri Janke concludes that:
Under Indigenous customary laws, cultural heritage is an integrated whole way of life and thinking which connects Indigenous people with all aspects of their inherited cultural heritage, including arts and cultural expression, cultural objects, land and knowledge. So it follows that native title is incidental to the protection of other aspects [of] Indigenous cultural and intellectual property such as knowledge, cultural objects and stories, songs and designs associated with land and the environment.53
However, as Janke points out in the Our Culture: Our Future report, this area of law requires further testing and analysis, particularly in view of the government's amendments to the Native Title Act 1993, and recommends that:
Support should be given for native title actions which test and expand the meaning of native title rights and interests to other areas of Indigenous cultural heritage including stories, biodiversity knowledge and cultural objects.
In a submission that has important implications for holders of traditional biodiversity-related knowledge, John Henderson points out that:
... some Australian biological specimens are being illegally removed from the country for the sole purpose of scientific research. ... The inquiry into the examination of access to biological resources does not appear to address the problem of 'illegal access' to biological resources, or legal access gained for what may well turn out to be the illegal export and subsequent research work and exploitation of native biological specimens.54
He then asks a number of questions:
Has consideration been given to the implications relating to the intellectual ownership consequent on the illegal removal and scientific exploitation of native biological specimens taken from Commonwealth areas by foreign nationals?
Legal pursuit of those who have illicitly used traditional biodiversity-related knowledge outside of Australia is likely to be prohibitively expensive with little prospect of a guaranteed result so other means may need to be investigated. One strategy advocated by the Scientific, Technical and Research Commission of the 53-member Organization of African Unity in its Draft 'Legislation on Community Rights and Access to Biological Resources',56 is to provide for a scale of sanctions and penalties which include publicising any violations through national and international media, and reporting to the secretariats of relevant international agreements/treaties and regional bodies (see Article 10.2). Presumably the Secretariat of the Convention on Biological Diversity would be one such body.
It may be that an international facility, such as the proposal for a Global Biodiversity Information Facility, put forward at the OECD Global Science Forum, may also be able to undertake a policing role with regard to illicit use of traditional biodiversity-related knowledge.57 As envisioned, the Global Biodiversity Information Facility would encompass:
... the creation of a world-wide electronic information network. ... Scientists hope the Global Biodiversity Information Facility will become the single database that pools all the recorded, but widely scattered, data about the earth's animals, plants and micro-organisms. The database is to be made accessible via the Internet.
The Global Biodiversity Information Facility is needed to coordinate the standardisation, digitisation and world-wide dissemination, within appropriate property rights conditions, of the data collected world wide on organisms, genomes, species and ecosystems. Opportunities in health, resource and environmental management, agriculture, industry as well as education and research increasingly depend on it. It will also contribute to information management for the Convention on Biological Diversity.
Setting up such a facility raises issues as to whether information should also include that concerning traditional knowledge of species and would, therefore need to consider protocols for lodging such information as well as access and use. Such a database could be beneficially accessed by national intellectual property offices, for example, with respect to traditional knowledge as prior art.
COP5 directed that, as one of the tasks in the program of work it adopted, the Working Group on implementing Article 8(j) and related provisions, '... develop standards and guidelines for the reporting and prevention of unlawful appropriation of traditional knowledge and related genetic resources'.
However, as this falls into the second phase of the program of work it is unlikely that the Working Group will address this until after COP6 in 2002. Nevertheless, the Commonwealth Government, in conjunction with the Indigenous community, should give thought to this matter and present findings and recommendations as a case study to the Secretariat of the Convention on Biological Diversity under paragraph 13 of decision V/16. See also 'Developing an Indigenous code of ethics' below.
RecommendationThe Commonwealth Government, in conjunction with the Indigenous community, undertake a study of ways and means of preventing the illicit use of traditional biodiversity-related knowledge overseas and of addressing instances of such use where it has occurred. |
In its submission, Environment Australia points to:
Prior informed consent [as] the central procedural device which enables the provider to negotiate the terms of access and benefit-sharing agreement with the prospective user of the biological resource or related knowledge. It is desirable that prior informed consent on a number of issues is reached between the providers and prospective users of the biological resource.58
For the CSIRO '... the principle of prior informed consent, [constitutes] the explicit agreement to the end purpose of granting access.'59
Prior informed consent is essentially an administrative procedure or device which engenders considerable flexibility. It enables providers of biological resources and users of those resources to put all their concerns on the table and discuss any issues before the provider(s) decide whether to give their consent. The bottom line, is of course, that providers must retain the right to refuse consent (and should be empowered to do so by the regulations) or withhold consent until certain conditions are met by the access seeker(s).60 For traditional owners it offers the possibility to exercise customary law in the decision-making processes, and to impose certain conditions, based on customary law, as part of the mutually-agreed terms governing access.61 Such terms can form the essential conditions of any contracts between traditional owners as providers of a biological resource and the access seeker(s).
In the absence of more formal recognition of Indigenous systems of customary law within the legal framework of the Australian State, a prior informed consent regime can give practical effect to the exercise of customary law, albeit within the limits of a regime governing access to biological resources over which traditional owners can exercise a range of rights. This becomes particularly important in terms of being able to enforce intellectual property rights over traditional knowledge in accordance with customary law.
In order to provide basic minimum protection to traditional owner groups regarding biological resources in which they are stakeholders and associated traditional knowledge, the proposed regime should involve an administrative process based on achieving the prior informed consent of traditional owners. A prior informed consent procedure should involve the full and legally accurate disclosure of information regarding, among other things:
Provision of misleading or false information could result in a penalty or the cancellation of any agreements entered into on the basis of the information originally provided.
While it might be possible to formulate national guidelines for the information required in a prior informed consent procedure, some land councils/Native Title Representative Bodies may wish to devise their own checklists and guidelines. In their joint submission, the Northern, Central and Kimberley Land Councils pointed out that: 'Research and consultation is required to ensure current and comprehensive information is gathered and provided to the Boards and traditional owners in a form which is both accessible and understandable to Aboriginal people. This is a necessary precondition to prior informed consent.'62
The proposed administrative processes regarding the prior informed consent of the relevant traditional owners, and which would be governed by regulation, could entail a number of steps. For example:
The administrative process should also include an appeal process for cases where applications are refused, or to enable other Indigenous groups to appeal an application if they believe their interests have not been adequately considered. The overall process should also be set within a realistic timeframe (eg six months from date of lodgement), and with appropriate timeframes for each stage. Adequate time (two to three months) must be given for the traditional owners to assess the application. This must particularly be the case where the biological resource for which access is being sought is found over a wide geographic range and there are a number of traditional owner groups for whom the resource has traditional significance.
Some consideration might be given to a process whereby access applications are dealt with twice a year. Rather than dealing with a constant trickle, a number of applications can be assessed at the one time by the various affected traditional owners with recourse to the necessary technical advisers (legal, scientific and anthropological) who will also need to be assembled. In this way the likely environmental and cultural impacts of a number of proposed access activities can be assessed and, if needs be, coordinated so as to minimise disturbance to the communities involved and to their lands.
The basis of such an approach governing prior informed consent procedures already exists, for example, in the Australian Institute of Aboriginal and Torres Strait Islander Studies' application process for research grants.
RecommendationTo protect the interests of traditional owners in their lands, biological resources and associated traditional knowledge, any access procedure instituted under s301 of the EPBC Act should contain requirements which make the approval of access conditional upon receipt of prior informed consent from the traditional owners and/or knowledge holder(s) in the relevant circumstances. |
Submissions widely support the view that the Commonwealth should develop an approach to benefit-sharing that, among other things, recognises the role of Indigenous peoples.64
Indigenous traditional owner groups, as providers of biological resources, however, will need to bear in mind that the value of genetic resources and associated traditional knowledge may vary enormously according to the needs of particular industries, availability of the genetic resource itself, whether there is a need for ongoing supply, and the usefulness of their knowledge. For example, the main value of genetic resources to the pharmaceutical industry is less in the genetic resource than in the intellectual property that can be generated from that resource during research and development (ie the identification and isolation of chemical compounds, synthesis of compounds in the laboratory, pharmaceutical applications of the compound, the manufacturing process for market, etc.).
Even within the pharmaceutical industry there are widely varying estimates of the economic value of raw natural genetic materials. For example, Dr David Newman of the United States National Cancer Institute considers that: 'The 'value' of a sample, in the absence of any biological assay data, is probably in the range of US$1.00 to US$5.00, irrespective of the cost of collection.'65 While the CSIRO places the value 'typically in the order of A$10 to A$100 per sample'.66 In many cases, once the molecular structures of active compounds from a particular species have been determined, these can be replicated synthetically, thereby alleviating the need to have continued access to the raw resource.
In its submission, the CSIRO cautions that:
In considering the issues surrounding access to biological resources, it is necessary to distinguish between the physical biological resource itself (ie the living organisms, specimens, or accessions) and the associated knowledge about the resource itself (including embodied intellectual property), or further knowledge gained from the use thereof.67
Overall, there will be a need for an accurate appraisal of the potential economic benefits to Indigenous communities arising from the biotechnology industry as a whole, taking into account its different sectors (ie pharmaceuticals, natural therapies, agriculture, personal care products, food and beverages, etc.). For example, whereas bioprospectors working for pharmaceutical companies may require only a one-off collection of a small amount of a particular biological resource/species, the bushfood industry may require a regular supply of a particular plant as a special food ingredient which may ultimately give rise to the need for commercial production of that species. Such a situation may create the need to establish an Indigenous community- based industry with considerable value-adding potential.
Another factor which will have a major bearing on benefit-sharing arrangements is the geographic range of the biological resource for which access is being sought.
In the case of a species with a wide geographic range and which is found on the lands of a number of different traditional owner groups, this can be very complex.
In these cases the nature of traditional rights may vary from one group to another in accordance with the customary laws of each group. A particular species may have more 'status' in the cultural, economic, and religious life of one traditional owner group than in that of another, or its role may vary in the secret/sacred life across communities, eg with regard to 'men's business' and 'women's business'. This obviously increases the number of Indigenous stakeholders, and the nature of their interests in a particular wide-ranging species may vary considerably.
This also raises issues of prior informed consent: while one traditional owner group may grant prior informed consent, another may withhold it thus creating a situation which affords opportunities for traditional owner groups to play-off (and be played off against) each other -- a matter further complicated if there is no nationally consistent approach. A particular State's access regime may act to the detriment of a traditional owner group in another State or Commonwealth area while giving advantage to the traditional owner group in the granting State.
It is circumstances like these that would be best addressed by creation of an Indigenous Biodiversity Trust which could mediate arrangements between Indigenous stakeholders to arrive at fair terms for benefit-sharing.
With regard to a species with a narrow range, in comparatively rare circumstances, some species will be endemic to the lands of a particular traditional owner group, in which case that group might feel they would be entitled to exclusive rights and benefits arising from access to such a genetic resource.
A number of submissions noted the need to distinguish between access biological resources for 'pure research' (or 'academic research') purposes as distinct from research which has a commercial purpose in mind.68 This distinction is made, for example, in the access application process under the Philippines Executive Order No 247. In reality, however, the boundaries between the two are often blurred.
Research requiring access to biological resources generally falls into five categories, as identified by the Biodiversity and Ethics Working Group of Pew Conservation Fellows.69 These categories have been adapted, below, to apply more appropriately for conditions with regard to Indigenous communities in Australia:
The kind of research involving access to biological resources will necessarily have a bearing on the kind of benefits that could be shared with traditional owner groups.
To determine appropriate levels of benefits in an access and benefit-sharing arrangement, it is necessary to consider the role and value of biological resources and of associated traditional knowledge in research and development. In the CSIRO's experience:
... the value of the associated knowledge of a particular resource is limited in most cases; Indigenous knowledge is extremely valuable in conservation and in identifying plants with medicinal properties, but not much used in current bioprospecting activities, which are characterised by mass sampling and mass screening for bioactive molecules.71
However, Professor Noel Dunn, Cooperative Research Centre for Food Industry Innovation, points out that:
Little work has been done on assessing Indigenous edible plants as sources of food ingredients. Potential ingredients include colours, antioxidants, antimicrobials, phytoestrogens (potential nutriceuticals) which may also offer health benefits and find application in the health care and other industry sectors.72
It should also be pointed out that traditional knowledge of acacias has been particularly important in identifying edible species of wattle seed, and, in some cases, the processes necessary for their preparation for human consumption in order to eliminate toxins. In work carried out by the CSIRO, Aboriginal knowledge was instrumental in identifying 44 of the 49 species of acacias traditionally used by central Australian Aboriginal communities, as potential food species for planting overseas. As Jeannie Devitt concluded: 'With respect to food potential, what is currently known about the food value of acacias has been largely the result of tapping into Aboriginal knowledge.'73
A number of submissions support the Australian Institute of Marine Science conclusion that, 'Biodiversity research is a high cost, high risk, and long-term process. The chances of identifying a lead that is then developed into a vendible product have been likened to those of winning a lottery.'74 The odds of finding a new drug from botanical samples in this lottery have been variously put at: as 'One new drug ... in every 1000 species of plants' by Bio- Gene Bioprospecting Pty Ltd in Western Australia;75 in excess of 1:10000;76 and 'from 1 in 80,000 to 1 in 250,000 plant samples'.77 As Newman, points out:
What is becoming evident ... is that Nature is probably not going to produce the next 'blockbuster drug' directly, but that the chemical structures that Mother Nature provides, are the structural leads that chemists will then modify to produce 'improved molecules' that no chemist in his or her right mind would have considered making de novo.78
It is also noted that the biotechnology industry in general is subject to a fair amount of media hype designed to extract funds from investors for much needed venture capital.79
The research and development process itself is outlined by the CSIRO:
In bioprospecting, biological resources are sampled for input into various screening programs in order to identify biologically active molecules. A separate company, often an overseas entity, may perform these screenings and subsequent product developments. The biological resource is valued, and a collector may be paid for the collection process typically in the order of $10 to $100 per sample. Unsuccessful samples are quickly discarded and [are] therefore valueless. The relatively few successful leads may then pass through further screens, are perhaps enhanced chemically, then pass through formulation and safety trials prior to scale-up and marketing a final product. This always involves a significant research and development component. In many instances, once an active molecule has been found it is then cheaper to manufacture this synthetically rather than continue extracting the compound from biological sources.
The entire product development process is typically a mass process with high throughput and very little knowledge being applied about properties of particular samples. ... There are significant intellectual property and commercial interests at play at the manufacturing end, and any commercial returns would have to offset the significant value-adding processes during the development phase.
It then follows that the commercial returns that may accrue from the exploitation of biological resources through bioprospecting may be quite limited. There is often a commercial separation between the collector and the product developer with the latter taking the commercial risk and therefore entitled to a greater 'fair' share of the potential rewards.
Hence the emphasis of permit schemes should be on strategic use of the associated knowledge, not just on the physical samples.'80
With regard to drug development within the pharmaceuticals industry, Dr David Newman, provides a short description of the drug development system 'used almost universally'.81 The systems used generally fall into the following pattern:
Newman concludes that:
The overall odds of any one extract or compound becoming a drug 10-15 years later can only be calculated after the drug is commercialized, but are well in excess of 1:10000 for any one screen.
What this means in practice is that the larger the number of screens a compound or extract can be put into, the better the odds of finding something effective to commercialize. As far as the Source Country is concerned, the more exposure that its biological resources can be given, the better the odds that there will be a commercial success.
The nature of the benefits which could be anticipated from accessing biological resources are broadly of two kinds: monetary and non-monetary. In any access and benefit-sharing arrangement, as both the CSIRO and Australian Institute of Marine Science submissions have emphasised, there is a need to think strategically rather than monetarily about benefit-sharing arrangements and/or agreements, in other words, about 'a total benefits package'.
Monetary benefits to Indigenous stakeholders are likely to occur as access fees for entering onto Indigenous lands; collection fees; informant fees; copyright fees; licensing fees; milestone payments; and/or royalty payments. All are discussed below.
1) ACCESS FEE FOR ENTERING ONTO INDIGENOUS LANDS
For entry onto many Indigenous community-held lands, irrespective of purpose, a permit is required which may also require payment of a standard access fee. Such a permit may detail a set of conditions governing conduct while on their lands, eg routes to be followed, places to be avoided (sacred sites, etc.).
With regard to requests for access to biological resources, in some cases this fee may be all that Indigenous land-holders might legitimately expect if the biological resources to be accessed involve, for example, microbial species (eg soil bacteria) about which there is no traditional knowledge or use.
Such access fees may be dedicated to landcare/biodiversity conservation.
The Australian Research Council, in referring to the 1994 Workshop Report 'Access to Australia's Genetic Resources', considered the issue of fees for access and suggested that a national royalty and fee system be established to protect Australia's interests in the event that functional genetic resources are identified. The Council argues for:
... recognition of two categories of sites under a national system and hence developing two categories of access:
The royalty fees identified in b) would, ipso facto, apply to materials and information derived from sites identified in category a). In addition, any access and fee regime would need to distinguish between access for basic research purposes, and access likely to generate commercial returns in a fairly short period of time and structure fees accordingly.
It should be noted that native title considerations would still apply for land under claim and access applications would fall under the Native Title Act's future act regime.
2) COLLECTION FEES
Collection fees will vary according to the circumstances.
Members of traditional owner groups may be contracted to provide quantities of particular biological resources found on their lands. A range of situations might occur, for example, a request might specify samples of a particular species for bioassaying in which case only a small amount may be necessary; others may require a regular supply of quite large amounts (particularly for natural product development).
Samples may also be collected by the researchers, in which case a fee per sample arrangement might apply. It also might be carried out as a collaborative exercise, especially where further samples may be needed. When regular supplies of large amounts are required in a situation akin to the harvesting of a biological resource (within the limits of sustainability) such fees could be quite lucrative.
3) INFORMANT FEES
An informant fee is a payment for use of traditional knowledge and/or intellectual property especially for identifying useful species, their traditional uses, methods of preparation, etc.83
The Australian Institute of Aboriginal and Torres Strait Islander Studies maintains a schedule of fees to be paid by researchers who wish to engage Indigenous people to provide information and such fees are normally factored into the research grant. However, when Indigenous people are providing information, conditions regarding its use, confidentiality, review prior to release, publication (including the possibility of co-authorship), entitlements to royalties in situations in which the information leads to development of commercially useful product, access by others, etc., should be negotiated.
4) COPYRIGHT FEES
Where Indigenous people have provided useful information and the information is included in a publication (scientific paper, book) they should be entitled to a share of any copyright fees the publication attracts. Such payments are not likely to amount to more than pocket money, but the legal protection afforded by copyright may prove important where the information occurring in published form is used by a third party in, for example, a patent application.
5) LICENSING FEES
Posey and Dutfield define a licence as:
A type of contract between an intellectual property owner and another allowing the latter to use, manufacture, or market the invention in exchange for a royalty, a fee, or an immediate payment. The subject of the licence might be patented information, a trade secret, a copyright protected work, etc.
At least two situations can arise concerning licensing fees.
6) MILESTONE PAYMENTS
These are payments that might be received at various stages of a research and development process, particularly in relation to developing a new pharmaceutical. Again, possible milestones, and the kind of payments to be made, should be mapped out in the access and benefit-sharing agreement/contract, eg after a lead has been discovered, at the conclusion of different phases of clinical trials, etc.84
7) ROYALTY PAYMENTS
Several submissions highlighted the fact that the chances of developing a commercially viable product, based on a particular genetic resource, are exceedingly slim. In the event that a biodiscovery results in a successful commercial application, what might be expected in the way of royalty payments is outlined in the paper, 'Using Genetic Resources after the CBD Implementing Article 15'. Referring to the INBio/Merck Agreement:
Typical royalties for samples of unknown clinical activity for synthetic chemicals range from 1-5% ... this range developed for new synthetic chemicals will also apply to natural products. Factors such as the enormous effort required to develop a successful commercial product from raw wild genetic resources, the low probability of any particular species being of commercial value ... mean that the holders of unimproved material are unlikely to be able to increase these types of percentages significantly. ...
Furthermore, due to the economics of biotechnology, any attempt to obtain any advance on the royalty is unlikely to result in substantial revenues. Consider an institution that supplies 1000 extracts to a pharmaceutical company in return for a 5% royalty on the net sales of any commercial product. Given a 1 in 10,000 chance of a useful lead being discovered, a 1 in 4 chance of that being developed into a commercial product, a 5% discount rate, 10 years before a product is marketed and 7 years of effective patent protection during the period of marketing and, assuming that the drug generates $10m net annual profit, the present value of the extract is estimated to be only $50,000. Alternatively, if the custodian decides to forego advances on royalty payments, it will be more than a decade after the screening process commences before any royalties can be expected.85
This is not to argue that the possibility of royalty payments eventuating out of an access and benefit-sharing agreement does not exist, and therefore should not form part of such an agreement.
The potential for such payments may vary from industry to industry and should be considered. For example, Professor Noel Dunn,86 has been working with the Aboriginal community to set up a mechanism whereby food ingredients can be sourced from Indigenous plants. A proposal has been prepared and ATSIC has given in principle support provided appropriate mechanisms and agreements are set in place. To this end, the Aboriginal community is establishing a company to work with the Cooperative Research Centre company. The Aboriginal company will be responsible for sourcing information nationally right down to the community level. Agreements are being drawn up such that royalties or licenses generated will be shared equally between the Aboriginal company and the Cooperative Research Centre company (Food Technology Innovations Pty Ltd).
It is clear from the evidence presented that monetary benefits, particularly in the form of royalties, may prove very illusive and that therefore, as the Australian Institute of Marine Science suggests, access and benefit sharing arrangements should focus on 'a total benefits package'.87 For traditional owner groups these benefits may take the general form of capacity building, ie increasing the ability or capacity of such groups to conserve and sustainably use their natural resources, through benefits provided in the form of, for example, information, technology and training. As the CSIRO points out in general terms:
... the most valuable benefit arising out of bioprospecting would be capacity building and technology development to foster new, local industries within Australia that in turn provides economic growth.88
While the CSIRO considers that:
This is achieved most effectively by smart use of any intellectual property leverage to structure agreements between companies and research organisations that retain control within Australia of downstream use of extracts, collected material and associated data.
such a strategy may not be readily available to traditional owner groups. In its submission, ATSIC argues that:
Indigenous management and control over rights in biological resources and traditional knowledge, innovations and practices is best achieved by the development of capacity building. Such capacity building could provide the basis for a regionally based Indigenous organisation to protect collective rights and interests, and manage the equitable sharing and distribution of benefits at the community level.89
Accordingly, ATSIC recommends:
Recommendation 3: That consideration is given to implementation, through the Regulations, appropriate forms of capacity building or Indigenous institutional support. The Indigenous Biodiversity Trust model outlined in Section 14 of this submission provides an example.90
The suggestion for a regionally-based organisation, in the form of an Indigenous Biodiversity Trust, is dealt with in 'An Indigenous biodiversity trust' below.
In dealing with access seekers, traditional owner groups will need to keep in mind the respective abilities of such seekers to deliver 'a total benefits package'. Institutional collectors/researchers may be better positioned to provide certain capacity-building benefits (eg technology transfer, training, and repatriation of information concerning traditional knowledge of species held in institutional collections and recorded long ago -- and as referred to in article 17.2 of the Convention on Biological Diversity) than, say, private operators under contract to large multinational corporations, unless of course, such corporations are prepared to deliver. These matters should be addressed during the prior informed consent procedure.
In this regard it should also be pointed out that national institutions like the CSIRO, the Australian Institute of Marine Science, the Australian Research Council, the Australian Institute of Aboriginal and Torres Strait Islander Studies and the university-based cooperative research centres and key centres (particularly those concerned with natural resource use and management) are also bound to follow through with the Commonwealth's obligations to the various international environmental agreements which it has signed, such as those covered by the EPBC Act.
COP5, in decision V/16 paragraph 11, has urged Parties and governments, and organisations representing Indigenous and local communities, among others, to:
facilitate the full and effective participation of Indigenous and local communities in the implementation of the Convention and to this end:
Some of the examples of capacity building revealed in the submissions include the training of local Indigenous people in taxonomy.91 The Australian Research Council points out that:
Other countries are taking a less traditional approach using minimally trained local parataxonomists, which also allows for ready access to knowledge of Indigenous people. This approach (known as parataxonomy) involves collaboration between professionally trained taxonomists and parataxonomists to the mutual benefit of both parties. Researchers are able to draw upon the expertise of local people and local people are able to learn valuable skills.
Adoption of such an approach would also contribute to the increased involvement of Indigenous communities, and widen the range of benefits those communities might derive from the access system adopted.92
Bioprospecting activities may also provide information which can be shared with traditional owners for conservation and management purposes, for example, discovery of populations of threatened species (which, in the case of plant species, can provide the genetic material that can be used to propagate the species), identification of rarity, conservation status of a population of a particular species, threats to a species because of alien species encroachment, or identification of alien species infestations.93
A meeting of the Convention on Biological Diversity's Panel of Experts on Access and Benefit Sharing has compiled a list of possible monetary and non- monetary benefits which national governments, research institutions and bioprospecting companies might consider. While not specifically tailored to the needs of Indigenous and local community providers of biological resources, nevertheless many of the listed benefits could be negotiated with such communities. The list is provided in Attachment 6.
Other benefits, more specific to the needs of traditional owner groups in Australia, include:
There is no doubt there is much our national institutions can do. A virtual state of 'scientific apartheid' exists in Australia as Indigenous research needs and interests in the biological/environmental sciences are widely ignored and Indigenous community representatives are shut out from participating in the nation's important scientific institutions, such as the CSIRO, the Australian Institute of Marine Science and the university-based Cooperative Research Centres. For example, in my analysis of Indigenous participation in the Cooperative Research Centre for Ecologically Sustainable Development of the Great Barrier Reef (CRC Reef), I found that:
This has occurred in spite of the fact that Indigenous peoples are major stakeholders and users of the Great Barrier Reef and large areas of the Great Barrier Reef Marine Park are the subject of native title claims. In summing up this situation, I wrote:
On the evidence presented, one can justifiably conclude that Indigenous reef interests and concerns have been entirely