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 written out of the research agenda of the CRC Reef and that the Centre has comprehensively failed to meet its obligations under the Convention on Biological Diversity and the National Strategy for the Conservation of Australia's Biological Diversity. This situation also exhibits the classic symptoms of institutional racism.94
This situation is to be found, to a greater or lesser extent, in most of Australia's research institutions, although there are positive signs of emerging collaborations, for example, Cooperative Research Centre for Tropical Rainforest Ecology and Management, Northern, Central and Kimberley Land Councils;95 Key Centre for Tropical Wildlife Management, Northern Territory University.96
Stronger collaborative links between the nation's scientific institutions and Indigenous communities, such as that being forged between the Cooperative Research Centre for Food Industry Innovation and an Aboriginal company97 will also significantly advance the cause of reconciliation. The Council for Aboriginal Reconciliation points out that it:
... has long recognised the important links between reconciliation and control of access to biological resources. Council strongly supports initiatives which will improve recognition of the intellectual property rights of Aboriginal and Torres Strait Islander peoples and which will increase the sustainable use of the environment while also protecting the heritage and cultures of the first Australians.98
To which can be added the comment from the Tasmanian Conservation Trust:
Taking the necessary time to build a consensus throughout the Australian community on how best to establish and operate such an equitable benefit- sharing regime has the potential to make a substantial contribution to the process of reconciliation between Aboriginal and other communities in Australia as well as to identify a broad range of other potential beneficiaries from the full implementation of the Convention on Biological Diversity.99
A number of submissions noted the tendency of statutory bodies charged with administering permit regimes over government-controlled areas to focus on, or over-emphasise, the value of royalties in an access and benefit-sharing arrangement and to overlook the possibilities of other benefits. For example, the CSIRO notes that:
... most permits issued for bioprospecting activities are predominantly focused on royalties arising from the subsequent sale of products derived from biological resources. CSIRO has observed that some such permit schemes appear to be driven by a perception of the need to avoid 'lost opportunities' rather than being clear about what strategic benefits can realistically be expected; the focus seems to be on the biological resource itself rather than the accompanying intellectual property.100
while the Australian Institute of Marine Science points out that:
... within agencies there is a focus on the prospect of royalties and other monetary benefits, and an unrealistic over-expectation of their probability, timing and quantum. ... The misunderstanding over potential monetary benefits is impossible to definitively resolve at the point of initial access, because the product leads, their proposed commercial application and potential value are unknown.101
The Institute summarises its approach thus:
By defining a broad array of benefits that are available for sharing, the AIMS approach formally acknowledges all benefits of biodiscovery research including some that, to date, have been overlooked by many resource stakeholders. When seen in the context of the total benefits package, purely monetary returns such as potential royalties take on minor importance.
While each benefit-sharing agreement would be negotiated on a case-by-case basis, the Institute has developed the following framework within which it would expect these agreements to sit.
Prior to emergence of a lead, benefits will be non-monetary. They will comprise documentation of biodiversity including lodgement of taxonomic vouchers in relevant museums, description of new species, and provision of data to aid resource management (identification of rarity, threats etc); opportunities for scientists in the jurisdiction of origin to participate in collection expeditions, and other collaborations which provide opportunity for the development of intellectual property in commercial discoveries (eg taxonomy, chemical ecology, natural products chemistry, biology).
Once a lead has emerged, the research focuses on individual species and the potential commercial target. Thus, the potential commercial benefits are more specific and definable, and include the possibility of monetary returns such as an agreed percentage of monetary benefits received by AIMS (eg milestone payments, license fees, royalties). The actual percentage due to the resource owners will reflect the resource owner' intellectual property and other contributions to the discovery and development of the lead.
More significant benefits at this point relate to opportunities for participation of scientists in the jurisdiction of origin in recollections and the development of intellectual property in options for long-term large-scale supply of active compound and other 'value adding' initiatives. Such involvement can produce the technology base for potential new marine biotechnology industries in the jurisdiction of origin.102
The Institute's benefit-sharing agreements are proposed to be broad in scope to capture benefits from all leads that use a sample as a source of innovation, regardless of whether or not lead development involves derivation (synthetic) approaches. They will provide legal certainty over the Institute's right to use the samples for biodiscovery research, including to transfer the samples to third parties. They will define all benefits to be delivered to the Institute, without ''triggers' for further negotiations with the 'owner'. However, there should be provisions for review of the operation and success of the agreement as a whole, and procedure for amendments.'103
In an analysis of a number of access agreements negotiated under selected access regimes in overseas countries, carried out by Columbia University for the Biodiversity Action Network,104 it was concluded that:
The main benefits to be obtained from access agreements will most likely be non-monetary, ie capacity building, technology transfer, joint research, and training. ... Many of the access agreements reviewed here -- those in the Philippines, the SIDR-USP agreement in Fiji, INBio-Merck, the African ICBG, the NCI-University of Yaounde Letter of Collection, and the NCI-UNIP MoU, as well as the BioAndes application -- strongly emphasize the training and capacity-building responsibilities of the foreign parties. Therefore training and capacity-building, as emphasized by these agreements, are likely to be much more important than monetary benefits in the short and long term. They may also address conservation goals in a shorter term.
It was therefore recommended in the study that:
When establishing agreements, all parties should acknowledge that benefits obtained from access will for the most part be non-monetary, and that monetary benefits may be elusive. Education of resource owners should emphasize that long-term royalty benefits are unlikely.
Existing intellectual property rights do not protect traditional biodiversity- related knowledge, including that related to uses of plants and other natural resources, against unauthorised commercial exploitation unless the knowledge is recorded in some way.
It is important to note that international intellectual property rights regimes are likely to apply to development and diffusion of technologies which make use of genetic resources (including 'improved' plant varieties), however, they do not require a sharing of benefits with the providers, implemented with the requirements of the Convention on Biological Diversity. For these reasons, more formalised arrangements governing access to genetic resources may provide an important avenue for recognising the contribution of the traditional biodiversity-related knowledge of Indigenous communities, and ensure an equitable sharing of the benefits.
Intellectual property protection for traditional biodiversity-related knowledge may be sought by applying alternative legal forms to those of patents, trade secrets, plant breeder's rights and copyright. Such alternative forms, under the umbrella term 'biodiversity agreements', encompass both legally binding and non-binding agreements and would be based on the prior informed consent of the relevant community, be subject to mutually agreed terms and would include benefit-sharing arrangements. The former include contracts, material and information transfer agreements and licensing agreements, while the latter can involve letters of intent. The United States National Cancer Institute uses such an arrangement with memoranda of understanding and covenants.105
Legally binding contracts, in particular, have become the standard modus operandi of a number of corporations that have been accessing biological resources and their traditional biodiversity-related knowledge within Indigenous territories for a decade or more. Many of these agreements are, however, not required or guided by legislation. They are established on mutual trust arising from a long and close contact between the communities and the researchers/collectors.
Reliance upon such contractual methods to capture benefit for Indigenous communities is widely thought of as the most practical approach to ensure the equitable sharing of benefits referred to in Article 8(j) and to protect a community's intellectual property rights. It is considered attractive because the contractual concept is one with which most societies are familiar and because it is a relatively private bargain involving minimal governmental intervention.
However, the contractual approach can present some severe limitations. Factors such as:
all significantly limit the extent to which Indigenous communities can use the contractual approach to gain protection for, and capture the true value or benefit for, the use of their traditional biodiversity-related knowledge.
In general terms, a biodiversity agreement may involve two or more parties in obligations that are to be fulfilled by all sides. It may have a fixed time limit, or its duration may depend upon completion of obligations or mutual agreement to terminate it. Such agreements may be used to establish and define certain relationships legally, such as those between employer and employee, or between a drug company and a supplier of biological samples.
Know-how and confidentiality agreements, for example, are contracts (or clauses of contracts) made by parties, one of which may be a patent owner, who seek to exploit an invention or inventive process through exchange of information. Agreements are usually in the form of written documents signed by all parties, may require quite limited legal assistance and may be useful mechanisms for Indigenous communities to ensure any transfer of knowledge and resources is fairly compensated.
Biodiversity agreements could provide for the following benefits: up-front payments, training, licences, technology transfer, royalties, establishment of trust funds and other financial and non-monetary forms of benefit sharing. Agreements are considered to be an important means of distributing the costs, benefits and risks. They are a market-oriented means of achieving direct control of the bargaining process of access that allows for a more immediate return of the benefits to those directly interested.
However, bilateral agreements (ie those which do not involve governments) in particular inevitably carry risks. They may be difficult to negotiate, draft and enforce, and may turn out to be expensive. Also, they may include obligations to perform environmentally unsound or anti-competitive practices, and may not necessarily have the public good in mind with regard to benefit-sharing. Professor Conyngham puts forward the view that:
Access to biological resources (on Commonwealth lands) for the purposes of bioprospecting (searching for specific forms of biological activity or the genes controlling specific traits) should be encouraged and not be subject of any exclusive agreements with any multinational or national organisation (other than an independent national organisation, without self-interest, that is responsible for supervising use). All access for this purpose (which would include, species improvement, pharmaceutical, agrochemical, nutriceutical, other health and personal care uses) should be governed by an agreement which includes a set of schedules for payment into a common fund where products are commercialised.106
These risks, however, may not necessarily outweigh the positive features of bilateral agreements which seem to be the more immediate and effective way of giving companies and Indigenous stakeholders some certainty and clarity on the legality of their transactions regarding genetic resources and associated traditional biodiversity-related knowledge.
The Cooperative Research Centre for Food Industry Innovation 107 has adopted this approach which 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).
In considering the substance of biodiversity agreements, if the claims and aspirations of Indigenous communities, as well as the goals of conservation and sustainable use of genetic resources, are to be dealt with effectively and fairly, certain matters have to be subject to clearly defined deeds and regulations. Two issues in particular need to be addressed:
In addition, there are likely to be at least three parties to any biodiversity agreement, namely, the Indigenous community (or communities); the researcher/collector and associated interest/stakeholder groups; and the government (national or state, or both) with an interest in overseeing such agreements to ensure they comply with the law, satisfy taxation requirements, and for statistical and monitoring purposes. Each party will have its own concerns and interests which it will want to have acknowledged and protected within an agreement.
With regard to Indigenous stakeholder interests, it is necessary to consider:
The answers to these questions will determine the kind of agreement to be negotiated. For example, is the purpose of the agreement to prevent use, stimulate the market, or stimulate innovation? If the means is to achieve the end, it will be important to have these issues clear before formulating the mechanism for protection. If, for example, Indigenous stakeholders want to secure financial reward the mechanism adopted must be one which maximises returns. If, on the other hand, the main objective is to prevent unapproved use, or to impede use altogether of traditional biodiversity-related knowledge, a strict and demanding access regime might be what is needed.
Governments, because of the range of rights and responsibilities affirmed by the Convention on Biological Diversity, are increasingly likely to be involved in some way with any arrangements forged between Indigenous communities and private sector interests, particularly if they are from outside the country. A number of countries have, or are in the process of, formulating standardised biodiversity contracts under their access regimes which are enforced by national legislation (see Attachment 5). These generally include other levels of prior informed consent which might be required (for example, that of a relevant Indigenous or local community) before a responsible national authority authorises 'the deal' to go ahead.
Governments at the appropriate level could also make access to genetic resources conditional on payment of a licence or user fee or compliance with certain provisions (particularly regarding prior informed consent). However, concerns that may arise over such arrangements include:
There is little doubt that some form of agreement between a collector/researcher and an Indigenous community (or communities), is of great potential. However, experience, to date, suggests that to protect Indigenous community collective traditional biodiversity-related knowledge a number of principles or elements should guide any agreements. Such principles or elements should:
At all stages, there must be the widest consultations with the relevant traditional owner groups and any developmental, resource use and conservation measures must be compatible with, and build upon, their cultures.108
Before any access agreement or contract can be drawn up, all parties must agree upon the terms. Environment Australia points out that:
Mutually agreed terms presupposes prior informed consent to the access and benefit-sharing arrangements. Mutually agreed terms imply a prior discussion or negotiation between the party providing the biological resource and the potential user. The terms which may be mutually agreed upon include:
The sticking point in arriving at mutually agreed terms in many cases will most probably be the issue of third party involvement. The Australian Institute of Marine Science advises that:
In order to utilise facilities and funding opportunities outside AIMS through collaborations and joint ventures, it is typically necessary to transfer samples to third parties. Where the third party is not located within Australia, export permission will be required and applicants should be required or at least encouraged to maximise the opportunity for development of intellectual property within Australia. The need to transfer samples to third parties is inevitable because the full gamut of expertise and facilities to do everything from primary collection, through lead identification, and onto product development, will never occur within the one single organisation. In order to provide certainty to investors in biodiscovery research, it is essential that the terms and conditions of third party transfers are set up-front, at the time permission for primary access to in situ resources.110
The negotiation of access and benefit-sharing agreements or contracts requires time, money and legal assistance. Indigenous stakeholders generally have few resources at their disposal and therefore must have recourse to independent outside assistance, where necessary. Such assistance should be seen in the context of capacity building.
As recognised by Environment Australia:
Any access scheme should give appropriate recognition of Indigenous intellectual property rights. Knowledge, innovations and practices should be recognised and benefits based on these should flow back to the relevant traditional owners. The traditional owners of Indigenous people's land (as defined in the Aboriginal Land Rights Act 1976 and the EPBC Act 1999) should have the right to determine who, when and where researchers can access biological resources on Indigenous people's land and a say in the ongoing security arrangements for the data or biological resources collected.
The definition and defence of intellectual property rights may be complex and expensive, however. Design of the access scheme should thus consider providing an appropriate level of independent legal and technical support, and recover the full cost of negotiation of appropriate commercial arrangements by traditional owners. Any scheme should seek to minimise such costs by recognising and incorporating existing sources of legal advice for traditional owners, and facilitate the sharing of such advice.
Consideration should also be given to the provision of assistance to those institutions responsible for the collection of data and biological resources that are the custodians of such Indigenous intellectual property. Such assistance could be designed to aid these institutions to effectively disperse information, safeguard it in culturally acceptable ways, and ensure that the collection of such information in the future is in accordance with procedures that meet scientific standards and requirements of Indigenous owners, government, and end users.111
In dealing with these issues generally, ATSIC has recommended:
That consideration is given to implementing, 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.112
Section 14 in this reference is dealt with in 'An Indigenous biodiversity trust' below.
One of the tasks COP5 identified to help implement the program of work adopted at the meeting, with regard to participatory mechanisms for Indigenous and local communities, is for:
Parties to take measures to enhance and strengthen the capacity of Indigenous and local communities to be effectively involved in decision-making related to the use of their traditional knowledge, innovations and practices relevant to the conservation and sustainable use of biological diversity subject to their prior informed approval and effective involvement.113
The centre piece of ATSIC's submission is 'an Indigenous biodiversity trust, established to hold rights in biological resources and traditional knowledge, and to control and manage these rights and interests in accordance with custom and Indigenous law'.114 ATSIC's model is based on that recommended by Langton M, Epworth D and Sinnamon V (1999). The establishment of such a trust is also supported by the Northern, Central and Kimberley Land Councils115 with secondary endorsement from the Kimberley Aboriginal Law and Cultural Centre.116
Establishing such a trust may be particularly significant for managing benefits associated with species that have a wide geographic range and occur in different ecosystems/bioregions. The traditional knowledge of that species may differ among different traditional owner groups and may reflect factors concerning sustainable use and management within the context of different ecosystems, soil types and climatic conditions.
Establishing some form of body to act on behalf of the Indigenous community is supported in a number of submissions. Dr David Bennett, for example, proposes:
... an Indigenous intellectual property foundation operated by Indigenous people to stand in stead of collective owners. ... a legal entity operating on a nationwide basis and capable of having 'ownership' of traditional ecological knowledge intellectual property for all individuals and groups who have a legitimate (under customary and administrative systems and practices) claim to 'the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices'.117
The Australian Research Council points out that it '... may .... prove appropriate that access fees and other benefits be forwarded to authorities charged with the local provision of services, or to an overarching authority such as ATSIC'.118
The Australian GeneEthics Network believes that: 'Some benefits (whether royalties or not) from products that are developed from Australian biota should be put directly into; (ii) a general Indigenous fund that could be accessed for supporting Indigenous concerns'.119
Professor Barry Conyngham argues that: 'Knowledge held by Indigenous people, if in the public domain, should be open to exploration using the biological resources of Commonwealth areas ... with the added proviso that a proportion of any profit arising be attributable to a general fund for the development of all Indigenous people in Australia.'120
The ATSIC proposal is as follows:
One suggested model is that of an Indigenous Trust. This could be based on a region, such as a bioregion, to be agreed and defined by Indigenous peoples. This could, for example, comprise an area defined on the basis of its specific biodiversity type, such as wet tropics or savannahs, or other types of environmental characteristics (eg a riverine ecosystem) or biological diversity. Or it could be established on the basis of building capacity among a grouping of existing Indigenous organisations such as land councils and other bodies within a region.
The Indigenous Trust would have the following functions, defined on the basis of relevant provisions of the Convention on Biological Diversity and the National Strategy for the Conservation of Australia's Biological Diversity:
The Indigenous Trust would be established on the basis of agreed principles of customary law. These principles, which could be entrenched in community protocols and guidelines, would underpin all transactions involving benefit sharing and use of traditional knowledge, innovations and practices.
[A Trust of this type] ... which recognises, respects and gives meaning to Aboriginal law is the most appropriate mechanism for the collection and distribution of royalties and other payments.
[It is also] ... best placed to pursue the necessary research, advocacy and litigation on behalf of traditional and native title owners of cultural and intellectual property in biota and traditional ecological knowledge of the use of biota, for ownership, control and management of these natural resources and resource rights.'121
COP5 adopted a program of work to further the implementation of Article 8(j) of the Convention. Of the tasks chosen to help carry out the work program, in accordance with Task 4, Parties are:
... to develop, as appropriate, mechanisms for promoting the full and effective participation of Indigenous and local communities with specific provisions for the full, active and effective participation of women in all elements of the programme of work, taking into account the need to:
As noted in the Our Culture: Our Future report, the National Aboriginal and Torres Strait Islander Rural Strategy proposed establishing an Indigenous-managed Australian Centre for Traditional Medicines at Wujal Wujal. The centre, if established would undertake research, documentation, harvesting and processing functions, and help Indigenous communities negotiate contracts with research companies seeking to use their knowledge. It was suggested that such a centre could play a role in setting standards for sharing Indigenous traditional knowledge resources with the biotechnology industry (p.229). Thus many of the functions to be performed by the Centre for Traditional Medicines would be the same as those envisioned for the Indigenous biodiversity trust.
The concept of an Indigenous biodiversity trust and the functions it might perform find some precedent in the National Indigenous Arts Advocacy Association.122
The ATSIC submission also contains a proposal for community and national registers of traditional biodiversity-related knowledge:
Provisions may be made for supporting the development of Indigenous community registers or inventories of biological and genetic resources, derivatives and knowledge.
These registers to be owned, controlled and managed by local and/or regional Indigenous community organisations.
The concept of a National Register could also be considered, ensuring that such a register would provide adequate safeguards for secrecy and confidentiality regarding traditional knowledge and cultural matters.123
The idea of such a register is also supported by Alistair Graham, World Wide Fund for Nature (Australia), Humane Society International (Australia) and the Tasmanian Conservation Trust which points out that:
Establishing beneficiaries is likely to be difficult and protracted and would involve establishing and maintaining a register of holders of (traditional) knowledge about identified components of biological diversity. This is one area where the Indian experience could save much time and heartache.124
This proposal is linked to that of a National Biodiversity Screening Centre proposed by Graham, World Wide Fund for Nature (Australia), Humane Society International (Australia) and the Tasmanian Conservation Trust. The idea is to 'establish registers of in situ custodians of both biological resources and knowledge about them as potential beneficiaries of any benefit-sharing arrangements -- in the context of a proposal for a National Biodiversity Screening Centre'.125
COP5, in paragraph 17 of decision V/16, has requested:
Parties to support the development of registers of traditional knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity through participatory programmes and consultations with Indigenous and local communities, taking into account strengthening legislation, customary practices and traditional systems of resource management, such as the protection of traditional knowledge against unauthorized use.
Pires de Carvalho (nd:61) proposes a mechanism which:
... building on currently available features of the intellectual property system, can nevertheless be adapted to those characteristics. The system proposed ... is an Indigenous database system that might borrow three of the features contained by test data protection, as adopted in the TRIPS Agreement (Article 39.3), namely: the establishment of rights in the data (as opposed to existing systems that establish rights in the organization of the data); the enforceability of rights in the data against their use by unauthorized third parties (as opposed to existing systems that make rights enforceable only against the reproduction of the data, and not against their use); and the non-fixation of a predetermined term of protection (or, alternatively, the establishment of a term of protection counted from the date of the first authorized commercial exploitation of the data).
Such a sui generis protection should be without prejudice to the recourse to other intellectual property rights in order to protect some specific aspects of the data. Nor would the Indigenous owners of the data be prevented from updating the contents of the database (in other words, continuing to create and improve existing creations). In the case of relevant updates, new terms of protection would be provided.
The databases containing Indigenous knowledge should be registered with Patent Offices, in order to produce legal effects erga omnes. As information already in the public domain should not be appropriated, there should be some definition of novelty as a requirement for data holders to enforce rights against unauthorized users (p.58).
In addition, data protection should co-exist with independent protection of some of the database contents, under other intellectual property rights, such as patents, (plant) breeder's rights, industrial designs, copyright. this sort of coexistence of different intellectual property rights has been adopted in Article 2.5 of the Berne Convention and Article 10.2 of the TRIPS Agreement. Therefore, Indigenous communities would have access to protection of their knowledge by means of a bundle of rights, which could protect more effectively the various aspects of information contained in a database of that sort (p.59).
The issue of establishing registers and databases of cultural material and knowledge belonging to Indigenous local communities has been addressed in the Our Culture: Our Future report.126 One such database concerning Indigenous visual artists has already been established within the Australian Institute of Aboriginal and Torres Strait Islander Studies. The Our Culture: Our Future report concludes that:
After the analysis of feedback received, it appears there is scope for registers or databases to be of use in so far as they relate to material that is already, publicly available in some material form. New material or secret and sacred knowledge would need greater rights protection.
Furthermore, Indigenous people should have control over the content of any databases established, as well as who can access and use the knowledge and related information on the register.
If the register is to act as a clearance system, it must be appropriately designed and operate on the premise of prior authorisation rather than under a blanket authorisation.
The cost of establishing and maintaining a register (or a number of regionally-based registers) of traditional biodiversity-related knowledge is an important consideration. It should, however, also be borne in mind that, in the absence of legislation to provide effective protection to traditional biodiversity-related knowledge, a registry system may help prevent further cultural harm and insult caused through the illicit and unauthorised use of such knowledge. At the same time, the register could ensure that those whose knowledge is the subject of a request for access can be easily located so they can negotiate the terms of access and benefit-sharing arrangements.
Careful thought and planning is essential when designing such a register (or registers) to ensure appropriate access while protecting confidentiality. Decisions about how to store, file and cross-index information need to be made as well as the level of information which can be openly accessed by a wide range of potential users (ie other Indigenous groups, intellectual property officers, researchers, industry, biological resource managers, etc.). Security codes could be built into the register database so confidential information can only be accessed by its owners, thus ensuring access seekers have to consult knowledge holders/owners before further information can be divulged. This will enable the knowledge owners to work through their own prior informed consent procedures and set the terms and conditions (in contractual form if needs be) for the further application of their knowledge.
RecommendationConsideration should be given to establishing a national register which identifies the owners of Indigenous cultural and intellectual property. Any established register should not be a means of evidencing title. The Register should be used only to provide contact details for subsequent users of Indigenous material to contact the relevant community for prior consent. The register should be designed, managed and controlled by Indigenous people.127 |
A number of submissions comment on the need for some form of regulation, guidance, model or protocol for executing agreements. The Australian Biotechnology Association notes that:
Commercialisation agreements could be expedited by new legislation providing guidelines to the expected stakeholders including federal and state governments, traditional landowners and custodians, researchers, financiers and business interests, so that reasonable returns are provided to the community.128
The Australian GeneEthics Network proposes a bioprospecting research agreement model to be monitored by a federal regulator,129 while Professor Conyngham submits that:
Where Indigenous knowledge is not in the public domain but there is a desire to bring it to the attention of organisations or individuals who might be able to add value to that knowledge this needs to be done through a formal set of protocols. This can open the knowledge to a process where tenders are invited for undertaking development or where an individual or individual organisation is identified as a development partner.130
The Australian Science, Technology and Engineering Council report, Environmental Research Ethics: National Principles and Guidelines for the Ethical Conduct of Research in Protected and Environmentally Sensitive Areas (1998), contains a set of 'Principles particularly relevant to Aboriginal and Torres Strait Islander Peoples' Concerns'.131 A number of submissions, including ATSIC,132 referred to this report. Professor Helene Marsh regards the Inquiry as:
the ideal opportunity to provide regulatory 'teeth' to the management of the issues outlined in the ASTEC Report. ... To date, I am aware of only two Commonwealth agencies that have begun to address these issues: The Great Barrier Reef Marine Park Authority and the Antarctic Division.133
While it appears there are no protocols, guidelines, or codes of ethics developed specifically for bioprospecting in Indigenous territories in Australia (apart from locally specific policies/guidelines adopted by some land councils), there is, nevertheless, no shortage of ethics documents that could serve as models. Foremost amongst these are the funding guidelines developed by the Australian Institute of Aboriginal and Torres Strait Islander Studies, and those of the National Health and Medical Research Council. Others include the Ethics Policy and Research Protocol developed by the Centre for Indigenous Natural and Cultural Resource Management, Northern Territory University; the Australian Anthropological Association Code of Ethics: Consulting Work; the Australian Association of Consulting Archaeologists: Code of Ethics; the Aboriginal Languages Association: Resolutions and the Social Research Association Ethical Guidelines.
The Australian Institute of Aboriginal and Torres Strait Islander Studies guidelines have been described in detail in the Our Culture: Our Future report.134 Internationally, many such industry-specific guidelines have been developed (see Attachment 5 below). Amongst the best of these is the Code of Ethics developed by the International Society of Ethnobiology and adopted at its sixth international congress in New Zealand in 1998.
One short-coming of codes of ethics/conduct/practice is their uncertain legal status and/or lack of 'teeth'. Members of some professions (eg doctors, lawyers, chartered accountants) are legally bound by their respective codes. Similarly, breaches of codes maintained by funding institutions, such as the Australian Research Council and the Australian Institute of Aboriginal and Torres Strait Islander Studies, can be dealt with swiftly. Difficulties may arise, however, in relation to non-institutional and private collectors (who may also bioprospect under contract for overseas companies -- the third parties). In this regard, we should heed the findings of a study of 98 of Canada's largest corporations operating abroad (in a range of industries) which has shown that the majority has not adopted codes of conduct dealing with basic human rights, and of those which have such codes, they generally do not have any mechanisms for ensuring their codes are respected.135
Lessons could also be learned from the Australian Broadcasting Authority's cash-for- comment inquiry into commercial radio. The inquiry found 95 separate breaches of either the Broadcasting Services Act or the Commercial Radio Codes of Practice showing that: '2UE's management either ignored its legal obligations or decided that within the construct of self-regulation such breaches did not matter'. The report exposes the Australian Broadcasting Authority to criticism that it has not developed an effective monitoring system for an industry that won the right to self-regulation in 1992. The code of practice breaches carry no sanction other than the Australian Broadcasting Authority's ability to impose conditions on a broadcaster's licence.136
It is therefore recommended that any code of ethics to regulate bioprospecting and/or biodiscovery in Indigenous territories be overseen by an ethics committee. Furthermore, it is recommended that all bioprospectors/biodiscoverers who wish to operate in Indigenous territories register with any body set up by the Commonwealth Government to administer the regulations under s301 of the EPBC Act. Such registration must be conditional upon receipt of a signed commitment to abide by the Code of Ethics for Bioprospecting on Indigenous Territories, and such an undertaking must be binding on third parties in an access and benefit-sharing agreement.
A nationally recognised code of ethics for accessing biological resources on Indigenous lands could be embedded in any access and benefit-sharing agreements between traditional owner groups and any party accessing biological resources and associated knowledge on their lands.
The Indigenous community might therefore wish to develop its own 'regulatory approach' to access to genetic resources on Indigenous territories by setting some industry standards or 'bottom-line principles' to curtail the problem of access-seekers playing one traditional owner group/community off against another -- referred to by the CSIRO as 'access shopping'137 -- and thereby potentially lowering the bottom line with regard to benefits packages.
RecommendationA Code of Ethics Governing Access to Biological Resources on Indigenous Territories be developed through consultation between all relevant Indigenous, and public and private sector groups. Such a code should be formally adopted by the national regulatory body overseeing the regulations under s301 of the EPBC Act, by all relevant research and funding bodies, and by private sector bioprospectors. An ethics committee be established to hear complaints concerning alleged breaches of the Code and to provide advice on how they should be dealt with. The committee is to include membership from the Indigenous Advisory Committee established by s505A and s505B of the EPBC Act. Furthermore, it is recommended that all bioprospectors/biodiscoverers who wish to operate in Indigenous territories register with any body set up by the Commonwealth Government to administer the regulations under s301 of EPBC Act and that such registration is conditional on receipt of a signed commitment to abide by the Code of Ethics for Bioprospecting on Indigenous Territories. Such an undertaking to be also binding on third parties in any access and benefit- sharing agreement. |
Many submissions expressed the need for a nationally consistent approach for access and benefit sharing and raised the hope that the regulations developed and adopted by the Commonwealth might serve as a model for adoption by the States and Territories. For example, the Commonwealth Department of Industry, Science and Resources recommended that:
... the Commonwealth review, with the States and Territories, the relevance of a Multi- Purpose Contract System, as previously proposed by the Commonwealth State Working Group, or other agreed system, for access to biological resources in Commonwealth areas, with a view to establishing agreed nationally consistent arrangements which can be used either directly or as a model by the states and Territories.138
Maxine Chi raised concerns, from an Indigenous perspective, about:
... access issues to Western Australian State managed areas (National Parks, Nature Reserves, Crown Land and Aboriginal Lands Trust reserves) and whether the precedent and regulations established under this Inquiry will be adopted by the States.139
For this reason, many submissions intentionally did not confine their comments to access to biological resources in Commonwealth areas. Expressing an Indigenous perspective, the Northern, Central and Kimberley Land Councils stated that:
The incidents of Indigenous knowledge and ownership are not restricted to political boundaries. Consequently the process of developing an effective and culturally appropriate scheme for controlling access and determining equitable sharing of benefits will have application to all customary estates.
Cadastral boundaries drawn for historical and political reasons are virtually irrelevant to issues of customary estates and traditional responsibilities. Nor do biological resources respect arbitrary lines drawn on a map.
This dissonance poses profound challenges for developing mechanisms to deal with decision-making concerning access to customary estates. The challenge for this Inquiry is to recognise that issues of cross-border and cross-regional resource ownership are difficult and complex, but not insurmountable.140
The Tasmanian Conservation Trust argued that:
... Commonwealth legislation, on its own, will go only part of the way to meeting the Commonwealth's outstanding obligation on ratifying the Convention on Biological Diversity. The Commonwealth has a responsibility in international law to ensure that a regime is established to allow control of biological resources throughout all areas subject to the jurisdiction of all Australian governments -- not just the Commonwealth.
To be most helpful, therefore, we suggest that this Inquiry frame its recommendations with respect to Commonwealth legislation bearing in mind the Commonwealth's responsibility to ensure that all Australian governments must adopt analogous legislation. Indeed, the Commonwealth's legislation should be explicitly developed:
To do this effectively, the Commonwealth will need to rely on its constitutional powers over both foreign affairs and trading corporations.141
This position was also supported by the Environmental Defenders Office (Vic) Pty Ltd,142 which recommended that a national scheme for the control of access to Australia's biological resources be implemented, pointing out that the legislative power of the Commonwealth to implement such is clear and certain under the external affairs power in order to implement the Convention on Biological Diversity and address a matter of high international concern.
If the scheme to control access to biological resources in Commonwealth areas is to act as a model for the States and Territories, it is necessary to make doubly sure the regime adopted accords well with the aspirations of the traditional owner groups and adequately addresses their concerns. Most importantly, it needs to provide certainty and legal clarity to traditional owner groups. They need to know they:
Once the Commonwealth has adopted such a regime in relation to Commonwealth areas, it may serve as a model in the context of any bilateral agreements forged between the Commonwealth and States and Territories under Chapter 3 - Bilateral Agreements of the EPBC Act.
Indigenous communities must remain alert to the possibilities offered under such agreements and be prepared to negotiate with the responsible Federal and State or Territory Ministers.
To this end, the recommendation ATSIC put forward should be supported.
RecommendationThat the design and implementation of the Regulations are carried out only with the full and equitable participation of Aboriginal and Torres Strait Islander people. The Indigenous Advisory Committee established under s505A and s505B of the EPBC Act should be the mechanism through which such participation is achieved.143 |
A number of submissions supported the idea of a single Commonwealth regulatory body to oversee access to biological resources in Commonwealth areas, offering a 'one-stop-shop' approach to processing access applications, seeing that all requirements for prior informed consent are met, and for granting final approval.
In concluding this analysis on access to biological resources and benefit sharing, I note that a number of submissions emphasised the need for further research and consultation with Indigenous stakeholders.
The Northern, Central and Kimberley Land Councils recommended the need for further research and consultation to develop the most appropriate mechanisms for determining access and benefit sharing -- the process to be Indigenous controlled, noting that regional definitions, such as bioregional zones, are a necessary subject for further research and consultation; a wide range of models and options be included in the process; and the trust model, recommended by Langton, et al., be used as a starting point for consultation.144
The Australian GeneEthics Network expressed the view that the 'cultural value of Australian biota to Indigenous peoples must be recognised, with extensive consultation provided to Indigenous communities, especially community Elders, on access to native biota'.145 While the Biological Diversity Advisory Council suggests that 'awareness is raised of intellectual property and 'ownership' in both the public and private sectors, and that this includes Indigenous Australians'.146
RecommendationThat the Indigenous Advisory Committee, established under s505A and s505B of the EPBC Act, conduct a series of regional access and benefit sharing workshops to enable Indigenous traditional owner groups and communities, industry representatives and researchers to examine issues of access and benefit sharing in relation to biological resources and associated knowledge on Indigenous territories. Any conclusions, findings and/or statements which result from the workshops should be used to help formulate a national Indigenous code of ethics to guide bioprospecting and biodiscovery on Indigenous territories. |
The following suggests a framework for the Regulations to be introduced under s301 of the EPBC Act. At the heart of this framework is a model for equitable benefit sharing with Indigenous rightful owners, holders and custodians of biological resources and traditional knowledge, innovations and practices.
The following terms must be adequately defined.
'Biological resources'
'Genetic resources'
'Traditional knowledge, innovations and practices' means the intangible, intellectual aspects of biological and genetic resources, and any innovations and practices based on that knowledge. Traditional knowledge must be acknowledged as having a spiritual, as well as secular, component.
'Indigenous rights' refers to the collective rights of Indigenous peoples in biological and genetic resources and in traditional knowledge, innovations and practices.
To establish partnership arrangements with Indigenous peoples, to advise and recommend on the introduction of appropriate capacity building structures, such as Indigenous regional trusts. These bodies would hold and assert Indigenous rights in biological resources, traditional knowledge, innovations and practices, and make decisions regarding management and control of biological resources, and traditional knowledge, innovations and practices.
A process must be introduced, in agreement with the relevant Indigenous Trust, for formulating appropriate benefit-sharing arrangements and agreements for access for each case in which biological or genetic resources or their derivatives, and/or traditional knowledge, innovations or practices are sought.
Benefit-sharing arrangements that are introduced should include at least the following elements, to be agreed by the appropriate Indigenous owners, custodians and managers:
On the basis of appropriate consultation and agreement with the relevant Indigenous trust, any process for seeking access to biological and genetic resources and their derivatives must be conducted only after having first identified, and sought the consent of the rightful Indigenous owners, holders and custodians.
Prior informed consent with the rightful Indigenous owners, custodians and managers must be the basis for any agreements regarding access to, and use of biological resources and traditional knowledge.
Prior informed consent is to be obtained from rightful Indigenous owners, holders and custodians on the basis of community derived principles of rights and ownership of biological resources and traditional knowledge, including intellectual property rights.
Agreements and contracts for access to biological resources and traditional knowledge, innovations and practices should contain:
Contracts and agreements must be based on mutually agreed terms between the seekers of biological resources, and the providers and/or Indigenous rightful owners, holders and custodians.
Access agreements must contain provisions explicitly aimed at preserving customary and traditional uses in accordance with relevant provisions of the Convention on Biological Diversity, the National Strategy for the Conservation of Australia's Biological Diversity, and relevant legal developments (eg Yanner v Eaton).
Access agreements must contain provisions ensuring protection of Indigenous rights and interests in biological resources, traditional knowledge, innovations and practices, including protection of secrecy, confidentiality and Indigenous intellectual property rights.
Access agreements will contain provisions to ensure that such agreements do not in any way limit, impose constraints on, or restrict customary use of such resources and knowledge.
Provisions may be made for supporting the development of Indigenous community registers or inventories of biological and genetic resources, derivatives and knowledge. These registers to be owned, controlled and managed by local or regional Indigenous community organisations.
The concept of a National Register could also be considered, ensuring that such a register would provide adequate safeguards for secrecy and confidentiality regarding traditional knowledge and cultural matters.
Appropriate penalties and sanctions to be imposed for breaches of Indigenous rights in biological resources and traditional knowledge, innovations and practices.
'The Workshop recognises the rights of Aboriginal and Torres Strait Islander people stem from their prior occupation of Australia and following the High Court's Native Title ruling, what we now know as Aboriginal lands may increase.
The Workshop agreed that an underlying principle which must contextualise any discussion of Australian Indigenous peoples' rights is that all interactions with Aboriginal and Torres Strait Islanders will involve negotiation as well as consultation.'
Noting that ILO Convention 169, the Convention on Biological Diversity, and the Rio Declaration on Environment and Development all contain important provisions regarding Indigenous peoples' rights to natural resources, '... and with these conventions in mind, and noting that there is also a Declaration on the Rights of Indigenous Peoples already in draft form, the workshop agreed on the following set of principles in relation to Aboriginal and Torres Strait Islander rights which need to be recognised in a national policy on access to genetic resources:
RecommendationsThe workshop recommends that the above principles be incorporated in the national policy on access to Australia's genetic resources. The workshop recommends that both consultation and negotiation should contextualise any discussion regarding the rights of Australia's Indigenous people. |
Environmental Research Ethics: National Principles and Guidelines for the Ethical Conduct of Research in Protected and Environmentally Sensitive Areas (1998)
Indigenous Australians, confident that research in protected and environmentally sensitive areas:
Researchers must:
Code of Conduct for Plant Germplasm Collecting and Transfer (FAO)
Principles and Guidelines for the Protection of the Heritage of Indigenous People Elaborated by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Mrs. Erica-Irene Daes
Operational Directive 4.20: Indigenous peoples (World Bank)
Strategies and Procedures on Socio-Cultural Issues Related to the Environment (Inter- American Development Bank)
Policy on Indigenous peoples (draft) (Asian Development Bank)
Guidelines for Support to Indigenous peoples (draft) (United Nations Development Programme)
The draft UN Declaration on the Rights of Indigenous Peoples
ILO Convention 169
World Intellectual Property Organisation /UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1985)
The World Trade Organisation TRIPs Agreement
Agenda 21
The Ramsar Convention on Wetlands
Convention to Combat Desertification
Intergovernmental Forum on Forests
International Union for the Protection of New Varieties of Plants
Andean Pact Decision 391: A Common System on Access to Genetic Resources
Philippines Presidential Executive Order No. 247 of 1995 prescribing guidelines for bioprospecting, etc.
Costa Rica Biodiversity Law
Organisation of African Unity: Draft Legislation on Community Rights and Access to Biological Resources
India's proposed sui generis System for Protection of Plant Variety Rights
Declaration of Principles of the World Council of Indigenous Peoples
Kari-Oca Declaration and the Indigenous Peoples' Earth Charter (Kari-Oca, Brazil, May 25-30, 1992)
Charter of the Indigenous Tribal Peoples of the Tropical Forests (Penang, Malaysia, February 15, 1992)
The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (Whakatane, Aotearoa/New Zealand, June 12-18,1993)
Recommendations from the Conference 'Voices of the Earth: Indigenous Peoples, New Partners and the Right to Self-Determination in Practice' (Amsterdam, Netherlands, November 10-11, 1993)
Statement from the Regional Meeting sponsored by COICA and UNDP on 'Intellectual Property Rights and Biodiversity' (Santa Cruz de a Sierra, Bolivia, September 28-30, 1994)
Statement from the 'Asian Consultation on the Protection and Conservation of Indigenous Knowledge'(TVRC Tambunan, Sabah, Malaysia, February 24-27, 1995)
Final Statement from the 'Consultation on Indigenous Peoples' Knowledge and Intellectual Property Rights' (Pacific Concerns Resource Centre, Suva, Fiji, April, 1995)
The Julayinbul Statement on Indigenous Intellectual Property Rights and Declaration Reaffirming the Self-Determination and Intellectual Property Rights of the Indigenous Nations and Peoples of the Wet Tropics Rainforest Area (Jingarrba/Daintree, Australia, November 25-27, 1993)
Treaty for a Lifeforms Patent-Free Pacific and Related Protocols (Suva, Fiji, April 1995)
Beijing Declaration of Indigenous Women (Huairou, Beijing, Peoples Republic of China, August 30 - September 8, 1995)
Indigenous Peoples' Statement on Access and Intellectual Property Rights (IPBN, Jakarta, Indonesia, November 10, 1995).
Statement of Indigenous Nations, Peoples, and Organizations (New York, December 9,1992)
Ukupseni Kuna Yala Declaration
Oka Declaration on a Sustainable Future for the Environment and Traditional Peoples of the Okinsky Territory (Okinsky Territory, Siberia, September, 1994)
The Chiapas Declaration
Declaration of Indigenous Peoples of the Western Hemisphere Regarding the Human Genome Diversity Project (Phoenix, Arizona, February 19, 1995)
Resolutions of the Women's Commission, First Continental Conference of Indigenous Peoples on 500 Years of Resistance (Quito, Ecuador, July 1990)
Research Principles for Community-Controlled Research with the Tapirisat Inuit of Canada
The Jovel Declaration on Indigenous Communities, Indigenous Knowledge and Biodiversity
Leticia Declaration and Proposal for Action with regard to the Management, Conservation and Sustainable Development of All Types of Forests (Leticia, Colombia, 13 December, 1996)
Inuit Resource Conservation Strategy
The 'Heart of the Peoples' Declaration (North American Indigenous Peoples Summit on Biological Diversity and Biological Ethics, Fort Belknap Reservation, Montana, USA, August 7, 1997)
The Manila Declaration
The Declaration of Belem
A Rights Regime for the Protection of Indigenous Rights and Biodiversity Third World Network, Penang, Malaysia)
Rural Advancement Foundation International (RAFI)
The Crucible Group
The Covenant of Intellectual, Cultural and Scientific Resources Indigenous Peoples and Conservation: WWF Statement of Principles
Guidelines for Equitable Partnerships in New Natural Products Development:
Recommendations for a Code of Practice, National Cancer Institute: Conclusions of the Workshop on Drug Development, Biological Diversity and Economic Growth
Williamsburg Declaration by the American Society of Pharmacognosy
Bukittinggi Declaration (West Sumatra, Indonesia, 1992)
Statement of the Fifth Global Biodiversity Forum to the Third Meeting of the Conference of the Parties to the Convention on Biological Diversity (Buenos Aires, 3 November, 1996)
Conclusions and Recommendations of the Panama City Conference on Sustainable Harvest and Marketing of Rain Forest Products, 20-21 June 1991
Guidelines for Equitable Partnerships in New Natural Products Development: Recommendations for a Code of Practice
Chiang Mai Declaration for Conservation of Medicinal Plants
74. Benefits arising from the utilization of genetic resources can be either monetary or non-monetary.
75. Examples of monetary benefits include:
76. Examples of non-monetary benefits include:
77. Some other important non-monetary benefits are often overlooked in benefit sharing discussions. These include:
Biotechnology Australia 1999, Developing Australia's Biotechnology Future: Discussion Paper, Commonwealth of Australia, Canberra.
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