Science and Research
John Voumard, Inquiry Chair
© Commonwealth of Australia, 2000
ISBN 0642547157
The purpose of the Inquiry is to find a way to:
To help the Federal Government choose the best way to control access to biological resources, the Environment Minister, Robert Hill, has established this Inquiry. Section 301 of the new Commonwealth Environment Protection and Biodiversity Conservation Act 1999 allows for regulations to be made to control access. The Inquiry is to advise the Minister on what should be in this law. The Minister has asked for the Inquiry to advise him by 30 June 2000.
The Inquiry covers Commonwealth lands and waters. This includes, for example, land owned by the Department of Defence or other Commonwealth government departments around Australia. Commonwealth lands also includes Aboriginal land leased to the Commonwealth, such as at Kakadu. The Inquiry does not cover State or Territory land and marine waters. Each State and Territory will have to design its own laws.
Biological resources (often called genetic resources) provide us with many medicines and industrial products. For example, aspirin is based on a chemical from willow trees. Quinine, used for 300 years to treat the sickness of malaria, is made from the bark of the yellow cinchona plant. For many years the search for plant products useful for medicine or for industry has not been controlled. Owners of the plants or owners of the knowledge about their use have not shared in the financial benefits made from discoveries. This is not fair.
Australia has many biological resources that might be used in scientific and technological research. Some of these might also be developed into commercial products. Only about one-fifth of Australia's plant species have been investigated, so useful products and drugs may still be found. Many companies are already exploring Australia's land and marine areas and taking very small samples of plants and animals for further studies.
This process, known as bioprospecting, or biodiscovery is expensive and takes a long time. From the many thousands of tiny samples taken, perhaps only one or two may prove to be useful. It may take ten or twelve years before any product is manufactured for sale.
Indigenous peoples of the world have a vast knowledge about the properties of plants and animals they have used for tens of thousands of years. However, there have been cases where companies have used this knowledge for their own gain, with very little being returned to the Indigenous people.
The Inquiry is looking at ways to ensure Indigenous people maintain control over their knowledge and their land. The decision to share their knowledge is one for them to make. They may choose to say 'yes' or may choose to say 'no'. The Inquiry thinks the new law should protect this right to choose. The Inquiry recognises the importance of respecting culture and is looking at ways to ensure the law does this.
The need to recognise Indigenous knowledge is also in an international agreement. This is known as the Convention on Biological Diversity. The Convention encourages the fair sharing of the benefits from the use of traditional knowledge, innovations and practices. Australia agrees to be bound by this Convention. The Inquiry supports this Convention.
Recognising the special knowledge about Australia's biodiversity held by Indigenous people, the Inquiry will work to ensure the fair sharing of benefits from the use of Indigenous knowledge and practices. The Inquiry must also report on ways for ensuring that the collection of biological resources does not damage any species of plant or animal.
Access to biological and genetic resources for environmentally sound uses is important to developing industry in Australia. The inquiry will look at ways for making a fair and simple system that protects the environment and is also fair to industry and makes their effort and investment worthwhile.
South Australian lawyer, Mr John Voumard is the Chairman of the Inquiry. He is independent. He is not part of government. He is supported by a group of experts. They have special knowledge in the environment, law, business, Indigenous issues and science. Environment Australia provides support for the Inquiry.
The Inquiry is an important opportunity for everyone with an interest in these issues to contribute to a system which will ensure the Australian community gets maximum benefit from the commercial and scientific potential of our diverse biological resources.
The Inquiry has considered public submissions from governments, business, environment organisations and universities. Submissions have also been made by Indigenous representative bodies such ATSIC and the Land Councils. The Inquiry has conducted hearings and meetings around Australia. The Chairman has visited Commonwealth areas where Indigenous people have an interest, such as national parks at Uluru, Booderee and Kakadu. He has wanted to talk to the owners of the land and to listen to them.
Commonwealth areas include:
Uluru-Kata Tjuta National Park,
Kakadu National Park,
Booderee National Park,
Christmas Island National Park,
Norfolk Island National Park,
Pulu Keeling National Park,
Great Barrier Reef Marine Park,
marine reserves managed by the Commonwealth,
marine waters in the exclusive economic zone, and
land owned or leased to the Commonwealth.
Although the inquiry is not addressing access to biological resources under the control of the States and Territories, the Inquiry's advice will help the States and the Commonwealth to work towards a common approach to access to biological resources by all governments.
There is a range of issues about which the Inquiry would like to receive the views of traditional owners. They include:
Bioprospecting does not involve disturbing the ground with machines. Scientists are particularly interested in examining plants and small organisms, many of which are invisible to the naked eye without a microscope. They generally do not collect large animals such as kangaroos, possums or birds. The search usually involves a few people, often on foot, looking at the plants and organisms in an area for a limited time. To understand the nature of each plant they need only take a sample of its bark, leaf, flower and seeds. This may involve no more than a handful of material. The sample is later studied in a laboratory.
This is usually not an activity which generates much money. A relatively small fee per sample is usually negotiated, and a larger fee is payable if anything significant is found. Fees per sample paid in Australia are often less than $10 each and sometimes less than $5 each. The only prospect of significant money arises when a substance is found which is able to be turned into a new product, such as a medicine. This takes a long time to develop, often more than 10 years. If a product is found, however, any agreement with the owners should ensure that a royalty is paid to them.
Some communities find money causes disputes and prefer to takes benefits in ways such as training, and employment of community members or building a community facility.
Generally the chances are very low and are about the same as winning a lottery: maybe one in a 100,000 samples or one in several 100,000 samples. It is important not to expect to make money every time.
No. With minerals the value can be determined at the beginning, with bioprospecting this will not be known for many years and may come to nothing.
No. Apart from the very small samples, the land is untouched.
No. The Inquiry has taken the view that Indigenous landowners and holders of traditional knowledge in Commonwealth areas have rights which must be respected. These include the right to grant or refuse entry to their land to bioprospect. The right to decide the conditions under which any bioprospecting may take place and to agree on the level of benefits to be paid by the bioprospector to the community.
The Inquiry is considering that this may be achieved by empowering the community to negotiate a benefit-sharing agreement with a bioprospector if they wish. In addition, a bioprospector would be obliged to apply to the Minister for a permit. This would only be granted if the Minister was satisfied that the agreement with the community was fair and the environment would not be harmed and that the community also agreed.
No matter what is found, the community continues to use its land as it wishes. The Inquiry considers there should be no doubt about this point and is likely to recommend that this be made clear in the new law.
Yes. The Inquiry considers that any agreement made by the community should determine who can be involved, when they may come, where they may go and how the community should be advised of the results of the work. These are matters to be under the control of the owners.
Some communities may require that the bioprospector must be accompanied by a member of the community at all times. The Inquiry believes that the landowner has the right to make these conditions.
Yes, the Inquiry believes that, if a community chooses to make it easier for a company to find particular plants or chooses to tell it of the uses of particular plants or animals, the company benefits and should pay more.
No. The Inquiry believes it would only be fair to pay a community extra for use of traditional knowledge if the community chooses to share that knowledge.
The Inquiry has in mind that special conditions be included in any agreement between a company and the community to ensure that knowledge used is valued, respected and properly recognised according to the wishes of the community. Further use of that knowledge by another party would require the community's approval.
No. The Inquiry believes the traditional knowledge of a community belongs to the community and no-one can take it away. Only the holders of the knowledge can decide when it should be shared.
The Inquiry is considering recommending that Indigenous communities receive independent legal advice and that the basis of any agreement must be a contract that everyone agrees is fair and protects the interests of all parties to the agreement. A community will always retain the right to say 'no' if they don't like an agreement.
In addition, the Inquiry is likely to recommend that a permit for access only be granted if the Minister is satisfied that a fair agreement has been reached and neither the land nor its people would be harmed in any way.
The Inquiry has considered this problem. The Inquiry believes it is important the community approached be given all the information it needs to make a fully informed decision. This is principle is sometimes referred to as 'informed prior consent'.
It is likely that the Inquiry will recommend the new law will make it a permit approval condition that the applicant has provided the community with all the information it may need to make a fully informed decision. If a company fails to be straight with the community, it would not be granted a permit.
This would be in addition to the community having access to independent legal advice and agreements being based on agreed fair contracts.
The Inquiry has in mind that if the agreement is broken the Minister would take away the permit. The community could then require the company to leave and may choose to take legal action.
The Inquiry has formed the view that in this situation the community or the company could ask the Minister to reconsider the decision. If the Minister still did not issue the permit the matter could be taken to the Administrative Appeals Tribunal for a ruling.
The community may have more questions. If so please do not hesitate to contact the Secretariat of the Inquiry for answers or explanations. We are happy to talk to owners or their representatives at any time.
The Director
Access Taskforce
Environment Australia
GPO Box 787
CANBERRA ACT 2601
Phone 02 6274 2528
Fax: 02 6274 2723
Email: geoff.burton@ea.gov.au
Geoff Burton: Inquiry Executive Officer
June 2000
