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Commonwealth Public Inquiry into Access to Biological Resources in Commonwealth Areas

John Voumard, Inquiry Chair
© Commonwealth of Australia, 2000
ISBN 0642547157

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CHAPTER 6: INDIGENOUS ISSUES AND PERSPECTIVES

• Inquiry terms of reference
• Consultations
• Proposals for a possible scheme under s301 of the EPBC Act
• The right of Indigenous people to protect their knowledge, innovations and practices
  
• Other issues
• Conclusions

Inquiry terms of reference

6.1 The terms of reference directed the Inquiry to address Indigenous issues in the following terms:

The scheme should particularly focus on the equitable sharing of benefits arising from the utilisation of traditional knowledge, innovations and practices (Article 8(j) of the Convention on Biological Diversity)

and further that:

Consistent with the objects of the EPBC Act, the scheme should:

Consultations

Consultations with Indigenous interests

6.2 The Inquiry's expert reference group included an expert on Indigenous knowledge issues, Ms Henrietta Fourmile (now Marrie), Associate Professor at the Centre for Indigenous History and the Arts, University of Western Australia. In March 2000, Ms Marrie returned to work with the Convention on Biological Diversity secretariat in Montreal but she remained a member of the Reference Group.

6.3 Ms Fourmile (now Marrie) provided the Inquiry with a copy of her Master of Laws thesis, an unpublished paper on Indigenous knowledge and a detailed and wide-ranging analysis and review of the Indigenous issues dealt with by the Inquiry. This has been of great value to the Inquiry and, with her permission, I have included it as Appendix 10 of this report.

6.4 I sent letters inviting submissions, and the Inquiry Secretariat sent notices, to approximately 40 organisations and individuals with a specific interest in Indigenous issues. On behalf of the Inquiry, Ms Fourmile (now Marrie) also sent letters to several organisations and individuals.

6.5 The Inquiry received 15 submissions from organisations and individuals with a particular interest in Indigenous issues. The following people made additional presentations at hearings:

Mr Michael Davis, Canberra.

Ms Eleanor Gilbert on behalf of Mr Anderson of the Euahlayi: Nyoongar Ghurradjong Murri Clan Group and Sovereign Union, NSW.

Mr Peter McMahon, Mr Bob Phelps, Australian GeneEthics Network, Melbourne, in association with the Gunggalidda Association, and Ms Wadjularbinna, the Doomadgee Aboriginal Association, Queensland (by telephone).

Ms Christine Morris, Australian Key Centre for Cultural and Media Policy, Griffith University, Brisbane.

6.6 In view of the particular importance of Kakadu, Uluru-Kata Tjuta and Booderee National Parks as Commonwealth 'areas' under s525 of the EPBC Act, owned by Indigenous people and administered by Environment Australia under leasing arrangements, I met with traditional owners of the Parks and their representatives. (These meetings are listed at Appendix 5 and discussed in relation to each Park below.)

Comments about the consultation process

6.7 A few submissions expressed concerns about the Inquiry's consultation processes.

6.8 The Northern, Central and Kimberley Land Councils (supported by the Kimberley Aboriginal Law and Culture Centre) recommended a research and consultation process to develop mechanisms for access and benefit sharing which would be carried out by Land Councils and controlled by Indigenous people, and which would include consideration of a wide range of models and options (including from overseas) for protecting Indigenous rights.

6.9 Mr Michael Anderson, for and on behalf of the Euahlayi: Nyoongar Ghurradjong Murri Clan Group and Sovereign Union, commented that the process assumed that Aboriginal peoples are informed on the issues and matters covered by the Convention on Biological Diversity. The Kimberley Aboriginal Law and Cultural Centre said that it lacked the resources to make complex submissions.

6.10 There was also some concern about the limited coverage of the Inquiry. Mr Anderson, for example, submitted that the Commonwealth Government should show leadership and respect for Aboriginal peoples by seeking to coordinate national negotiations between State and Territory Governments. He observed that a failure to do so would confirm that the Commonwealth is falsely representing, to the international arena, an Act to satisfy possible international scrutiny.

6.11 Similar comments were made in the hearings. Mr Bob Phelps of the GeneEthics Network said,

... we are very unhappy if the Commonwealth is not going to exercise its rights and responsibilities to deal with this issue on a national uniform basis and to recommend to the nation as a whole certain actions in relation to the biota of Australia.

6.12 The Inquiry has noted these concerns, but in view of the limitation of its terms of reference to Commonwealth areas, our primary concern was necessarily the interests of the traditional owners of Kakadu, Uluru-Kata Tjuta and Booderee. However, because of the complexity of the issues and the limited opportunities which the Parks' traditional owners have had to consider them, I have made recommendations for further consultations on the development and implementation of the regulations.

Consultations with the traditional owners of Uluru

6.13 On 22 March 2000, accompanied by the Inquiry Secretariat, I met the following people at Uluru: Mr Fraser Vickery, Manager Uluru-Kata Tjuta National Park, Mr Paul Josif and Ms Kathy Bannister, Office of Joint Management; Mr Graham Lightbody and Mr Tony Keys, Central Land Council, Alice Springs; and Mr Tony Tjamiwa and Mr Ginger Wikilyiri (traditional owners of Uluru).

6.14 The main issue the traditional owners raised was concern that they do not receive adequate benefits and recognition from current users of the Park (for example, from tourism and scientific research) and that this would need to be addressed in any future bioprospecting agreements. Although other owners were not available for discussions, the Inquiry was advised that my visit was appreciated. I accepted an invitation to attend the next Board of Management meeting for further discussions with traditional owners. This meeting occurred on 19 May 2000.

6.15 Following this meeting, I wrote to Mrs Joanne Wilmot, Chair of the Board, confirming, as I had said in the discussion with the Board, that there would be an integral recommendation in my report that there be further consultation with traditional owners on the development of the regulations. I would also recommend that funds be made available to hold workshops for traditional owners in all Commonwealth areas to implement the regulations.

Consultations with the traditional owners of Kakadu

6.16 Accompanied by the Inquiry Secretariat, I met with the Northern Lands Council, Darwin, on 20 March 2000 (Mr Leon Morris and Mr Peter Cooke) and park management (including Indigenous staff), Kakadu, on 21 March 2000.

6.17 Unfortunately it was not possible during this visit to meet any of the traditional owners of Kakadu because of the recent death of a member of the Board of Management. In conformity with cultural practice, the owners felt obliged not to undertake any formal business until the appropriate grieving process was concluded.

6.18 However, I returned to Kakadu for a further meeting with the newly appointed Board of Management and the Northern Lands Council on 22 May 2000. At this meeting the Board requested an opportunity to respond to the Inquiry's proposals for regulations and a workshop or conference in Darwin to enable traditional owners from northern Australia to meet and discuss the issues.

6.19 Following this meeting, I wrote to the Chair of the Board in terms similar to those in my letter to the Chair of the Uluru Board, above. In response to the Board's request for further information about the issues, the Inquiry Secretariat prepared a detailed fact sheet in 'question and answer' format which the Board of Management discussed on 15 June 2000 (see Appendix 11). The Board then made a valuable submission to the Inquiry, the key points of which are summarised at paragraphs 6.45 and 6.46 below.

Consultations at Booderee

6.20 On 5 April 2000, accompanied by the Inquiry Secretariat, I met Ms Dawn Waddy, Chair, Board of Management, and Mr Scott Suridge, Manager, Booderee National Park, Jervis Bay Territory together with Indigenous and other Park personnel. On 6 April 2000 we met Mr Reuben Ardler, Community Liaison Officer, Wreck Bay Aboriginal Community Council, Wreck Bay, Jervis Bay Territory.

6.21 During the course of lengthy discussions, Mr Ardler explained that the anticipated meeting with the Council could not occur at that time owing to unresolved matters concerning the role of the Council in relation to the Park Board of Management. Mr Ardler, however, extended an invitation on behalf of the Council for the Inquiry to return when these matters were resolved and suggested that, in the meantime, the Inquiry prepare some written material about the Inquiry and the issues it was considering. This suggestion was taken up and the materials sent (see Appendix 11).

6.22 Unfortunately the difficulty Mr Ardler referred to was not resolved within the timeframe of the Inquiry. I am concerned that the community continue to be consulted and have recommended that further consultations occur.

Recommendation That the Department of the Environment and Heritage ensure that traditional owners and their representatives are further consulted on, and given adequate opportunities to contribute to, development of the regulations under s301 of the EPBC Act. That funds from the Department of the Environment and Heritage's Access Work Program be provided to hold educative workshops or other activities with traditional owners and their representatives in all Commonwealth areas to implement the regulations. That the Indigenous Advisory Committee (formed under s505A of the EPBC Act) be consulted on development of the regulations That the Indigenous Advisory Committee continue to play an advisory role in relation to operation of the regulations, in accordance with its function under s505B(1) of the Act, ie 'to advise the Minister on the operation of the Act, taking into account the significance of Indigenous peoples' knowledge of the management of land and the conservation and sustainable use of biodiversity'. That, in making appointments to the Indigenous Advisory Committee, the Minister for the Environment and Heritage include a member with expertise in access and benefit-sharing issues.

Legal and management regimes in Indigenous owned Commonwealth areas administered by Environment Australia

Rights in the land and ownership of biological resources

6.23 All of the land in Uluru-Kata Tjuta National Park and approximately half of the land in Kakadu National Park is vested in an Aboriginal Land Trust by grants made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act). The Aboriginal land in Kakadu is vested in three separate Land Trusts. Almost all of the remaining land in Kakadu is subject to claim for a grant under the Land Rights Act.

6.24 Under the Land Rights Act, an Aboriginal Land Trust holds title to land, and is the owner of the land, for the benefit of Aboriginals, entitled by Aboriginal tradition,¹⁸ to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission (see ss4(1) and 5(1)).

6.25 The land in Booderee National Park, and the land known as the Booderee Botanic Garden, and the Wreck Bay Aboriginal Community land, is vested in the Wreck Bay Aboriginal Community Council by grants made under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Land Grant Act). The Council holds title to land, and exercises its powers as the owner of the land for the benefit of the members of the Wreck Bay Aboriginal Community (s6).

6.26 The Uluru-Kata Tjuta Land Trust and the Kakadu Land Trusts and the Wreck Bay Aboriginal Community Council accordingly hold and exercise all rights as the owner of their respective land, including the rights described earlier in relation to biological resources for the benefit of the Aboriginal people specified in the Land Rights Act and the Land Grant Act. In addition, in relation to Aboriginal land in Kakadu and Uluru-Kata Tjuta National Parks, the Land Rights Act preserves traditional rights in relation to the land.¹⁹

6.27 The Inquiry also sought legal advice in relation to Commonwealth areas which may be subject to native title.

6.28 The advice considered the issue, including relevant court decisions, and concluded that native title rights can include the right to access and use biological resources, and to control the right of others to access and use biological resources in relation to particular land. It went on to point out that, on current authority, native title would not encompass a right to control all uses of a resource wherever it was located.

6.29 It nevertheless identified s301 of the EPBC Act, providing for regulations to be made regulating access to biological resources in Commonwealth areas, as an Act which could affect native title. The advice also pointed out that s8 of the EPBC Act provides that the Act does not affect the operation of the Native Title Act 1993 or the Aboriginal Land Rights (Northern Territory ) Act 1976.

Legal mechanisms controlling access to biological resources and Indigenous people's role in controlling access

6.30 Aboriginal land in the three National Parks is leased to the Director of National Parks in accordance with the Land Rights Act and the Land Grant Act. The leases contain reservations in favour of Indigenous people to enter, use and occupy the Park in accordance with Aboriginal tradition and to continue to use the Park for hunting and food gathering. Under the leases the Director has covenanted to encourage maintenance of the Aboriginal tradition of relevant Aboriginals and to promote and protect the interests of relevant Aboriginals. The leases also require the Director to manage the Park in accordance with the EPBC Act and the regulations and management plans made under the Act.

6.31 The EPBC Act provides for joint management, by the Director and a Board of Management, of Commonwealth reserves that consist of or include Indigenous people's land (as defined in s363 (3)). A majority of the Board must be Indigenous people nominated by the traditional Aboriginal owners of the Indigenous people's land in the Park (s377(4)). The functions of a Board of Management are (s376(1)): to make decisions relating to the management of the reserve that are consistent with the management plan in operation for the reserve; and, in conjunction with the Director, to prepare management plans, monitor the management of the reserve and advise the Minister on all aspects of the future development of the reserve.

6.32 The Boards, in conjunction with the Director, are required by s366(3) of the EPBC Act to prepare management plans for each of the three Parks. In preparing a management plan the Director and the Board must take account of, among other things, the interests of the traditional owners of any Indigenous people's land in the reserve and any other Indigenous persons interested in the reserve.

6.33 There is a management plan in operation for Kakadu National Park. A plan for Uluru-Kata Tjuta National Park will come into operation shortly (unless disallowed by either House of Parliament). A plan for Booderee National Park is being prepared.

6.34 The Director is required to perform the functions and exercise the powers of the Director under the EPBC Act to give effect to a management plan that is in operation for a Commonwealth reserve (s362(1). Also, the Commonwealth and Commonwealth agencies must not perform functions or exercise powers inconsistently with the management plan for a reserve (s362 (2)).

6.35 Regulations about activities in Commonwealth reserves are being prepared under s356 of the EPBC Act and will prohibit, among other things: activities affecting organisms that are members of a native species; and, the carrying out of scientific research unless, among other things, authorised by a permit issued by the Director.²⁰ In addition, activities in relation to species and communities listed under Part 13 will require permits issued by the Minister.

6.36 The management plans for Kakadu and Uluru-Kata Tjuta National Parks include prescriptions relevant to the rights and role of the traditional owners of Aboriginal land in relation to managing biological resources. The relevant sections are reproduced below:

Proposals for a possible scheme under s301 of the EPBC Act

6.37 Several submissions put forward proposals for a scheme under s301.

6.38 ATSIC proposed the following elements of a scheme:

1. effective measures to build capacity for Indigenous management and control in biological resources and traditional knowledge; and
2. an Indigenous biodiversity trust regionally based to control and manage access and use of resources and associated traditional knowledge.

6.39 The key elements of ATSIC's proposed model for regulations under s301 are:

1. adequate definitions of 'traditional knowledge, innovations and practices' and 'Indigenous rights';
2. establishment of partnership arrangements with Indigenous peoples, to advise and recommend on the introduction of capacity-building structures, such as Indigenous regional trusts;
3. establishment of a process, in agreement with the relevant trust, for formulating benefit-sharing arrangements and agreements for access;
   1. royalties must be adequate and reflect realistic market prices;
   2. benefits may include various combinations of financial payments such as up-front payments, research and development payments, 'milestone' payments, capacity building, infrastructure and community support payments;
   3. benefits should include non-financial payments such as capacity building, community infrastructure and support such as training and education, community participation, language, cultural, heritage and ethnobotanical programs and projects;
4. processes for seeking access must be conducted only after having identified and sought the consent of the Indigenous owners, holders and custodians;
5. prior informed consent of the Indigenous owners, custodians and managers must be the basis for any agreements regarding access to and use of biological resources and traditional knowledge;
6. agreements should contain the following information:
   1. details of the community/locality/source/region of origin of the resources sought;
   2. details of any actual or potential traditional knowledge associated with the resources sought;
   3. details of actual or potential uses of the resources sought;
   4. details of the purposes for which the resources are sought;
   5. details of the parties seeking access;
   6. details, if known, of the commercial and market potential of the resources sought, including any potential intellectual property aspects, such as proposals for patenting;
7. contracts must be based on mutually-agreed terms between the parties;
8. agreements must contain provisions;
   1. aimed at preserving customary and traditional uses;
   2. ensuring protection of Indigenous rights and interests in resources, traditional knowledge, including protection of secrecy, confidentiality and Indigenous intellectual property rights;
   3. ensuring that such agreements do not limit or impose constraints on or restrict customary uses of such resources and knowledge;
9. provisions may be made for supporting the development of community (or national) registers or inventories of resources and knowledge -- to be owned, controlled and managed by local and/or regional Indigenous community organisations; and
10. adequate penalties and sanctions for breaches of Indigenous rights in resources and knowledge.

6.40 Professor Stephan Schnierer submitted that the regulations should acknowledge the traditional ownership of biodiversity and related knowledge by Aboriginal people; ensure their continued access for spiritual and practical uses and protect their intellectual property rights. In addition, the following conditions (not necessarily comprehensive) should be placed on collectors:

1. identify the species of interest, the exact location and the traditional owners of the environment in which the species are found;
   b) inform the traditional owners of their interest and the basis of that interest;
2. seek prior informed consent for access and use;
3. enter into contracts with traditional owners based on mutually-agreed terms;
4. obtain permission from traditional owners before biodiversity can be accessed and collected;
5. conform to ethical codes of practice in the collection of biodiversity; and
6. ensure that benefits derived from access be shared equitably with the traditional owners of biodiversity.

6.41 The GeneEthics Network, in association with the Gunggalidda Association, Doomadgee Aboriginal Community, Queensland, also made recommendations regarding the processes associated with and content of access and benefit-sharing agreements. Among them were that:

1. 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.
2. A bioprospecting contract for research could be based on a research agreement between a bioprospecting company, Indigenous owners and a public research institution.
3. Prior informed consent would be required via Environment Australia.
4. Bioprospecting would be monitored by a Federal regulator who would incorporate a wide range of community views.
5. Some benefits (whether royalties or not) from products that are developed from Australian biota should be put directly into a conservation fund and a general Indigenous fund that could be accessed for supporting Indigenous concerns.

6.42 Traditional owners and/or land councils also submitted detailed proposals for the operation of schemes in relation to Uluru and Kakadu.

Central Land Council proposal

6.43 The Central Land Council addressed issues that relate specifically to Uluru-Kata Tjuta National Park, which is the most significant Commonwealth area in the Council's region. The Council noted that while some recommendations may have some relevance to other jointly-managed Commonwealth reserves and to other Commonwealth areas, it did not wish to speak for other stakeholders in Aboriginal-owned Commonwealth areas. The Council also commented that it may be most appropriate for some of the s301 regulations to be confined to Uluru-Kata Tjuta National Park.

6.44 The key elements of the Central Land Council's proposed model are:

1. The regulatory system should differentiate between Aboriginal-owned, jointly managed Commonwealth reserves and other Commonwealth areas.
2. The regulatory system should be based on the principle of informed group consent (see s19(5) of the Land Rights Act).²¹
3. Section 301 regulations should be consistent with current arrangements in the Lease between the Uluru-Kata Tjuta Aboriginal Land Trust and the Director of National Parks and Wildlife and the Plan of Management.
4. The mechanisms for consultation with traditional Aboriginal owners in s19 of the Land Rights Act should be used in dealing with requests for access to biological resources in jointly-managed Commonwealth reserves. The regulations should provide that a Memorandum of Understanding between the traditional Aboriginal owners and another person, with respect to accessing biological samples, may apply instead of the regulations.
5. The regulations should include the traditional owners' right to grant or deny access to the resources on their land.
6. The regulations should provide a mechanism for the Land Council to negotiate, on behalf of owners, agreements between the owners and industry regarding access which will provide social and economic benefits to affected communities, including employment and training opportunities, and financial returns. (The provisions in Part IV of the Land Rights Act regarding access to mineral resources should be used as a prototype.)
7. The regulations should distinguish between commercial and non-commercial uses of biological resources.
8. There should be no commercial use or transfer of ownership without informed consent of the traditional owners. Any transaction entered into in contravention of this regulation should be void. The regulations should also permit the traditional owners to attach terms and conditions to their prior informed consent.
9. The regulations to be drafted pursuant to s356 and s301 of the EPBC Act should be drafted in a complementary manner to provide a one-stop regulator for all requests to access for all purposes.
10. The application fees determined under the regulations should be sufficient to cover all processing costs, which may include the costs of consultations with the traditional owners.
11. Offences against the regulations should be incorporated in amendments to the EPBC Act, rather than within the regulations, to ensure that appropriately substantial penalties for infringements of Indigenous intellectual and cultural property rights are provided.

The proposal of the traditional owners of Kakadu, in conjunction with the Northern Land Council

6.45 This submission expressed two preliminary concerns. They were that:

1. expectations might be raised which might not be realised for years, if at all; and
2. agreements might be worthless and unenforceable.

6.46 The key elements of the proposal are:

1. No distinction to be made between knowledge which can be shown to be derived from traditional Aboriginal usage, and knowledge which is derived from scientific research on plants and animals owned by Aboriginal people.
2. Any company wishing to carry out research or bioprospecting must provide full information specifying comprehensive details of the proposal, including:
   1. the precise nature of the resources to be sampled;
   2. the use to which they are to be put;
   3. the locations from which samples will be taken;
   4. whether the research has commercial aspects; and
   5. the person or body funding the research or bioprospecting.
3. Aboriginal people be given the opportunity of employment in the project and joint ownership of the intellectual property associated with the material collected.
4. The proposal must be sent to the Kakadu Board of Management and the Northern Land Council. The Land Council will then identify the clan groups who are the owners of the land on which the material is to be collected.
5. Where the Board is of the opinion that there is a possible commercial application for research, a more detailed agreement should be negotiated through the Land Council.
6. The process will only be effective if the proponent company is required to pay the costs of the consultation process on a 'user pays' basis.
7. If negotiations are to proceed, the Land Council should ensure full and comprehensive consultations take place and agreement is reached.
8. Benefits would be the subject of negotiation on a case-by-case basis (these could range from up-front access fees, employment of traditional owners in bioprospecting, funding a representative of owners to verify field sampling and a full range of monetary and non-monetary benefits including royalties and/or licence fees on the final product).
9. A range of conditions and terms would need to be included in any agreement and would require further research and consultation, for example:
   1. Copyright or ownership of material collected should, as a minimum, be jointly owned by an appropriate body representing traditional owners.
   2. Protection of naming rights and controls over sampling and harvesting of flora and fauna are important pre-conditions to any agreement.
   3. A way must be found for traditional owners to track the development of commercial products from sampling data, particularly in an industry where development times are long and links between biological resources and commercial products may be difficult to prove.
10. A crucial role for government will be to take measures to ensure that exploitation of biological resource is carefully monitored, accurately recorded and linked to the specific source location and hence the traditional owners. Legislative intervention will be required to ensure that the enforcement of contractual agreements can be guaranteed for all time.

Proposals for Indigenous trusts and community registers

6.47 Several submissions proposed Indigenous trusts as a means of administering and sharing the benefits arising from agreements. Some submissions also proposed establishing community registers of Indigenous knowledge which could be used to provide information to enable organisations or individuals wishing to use Indigenous knowledge to contact the relevant community to obtain their prior informed consent.

6.48 ATSIC proposed a trust which could, for example, be based on a region, such as a bioregion, to be agreed and defined by Indigenous peoples, or on building capacity among a grouping of Indigenous organisations such as land councils and other bodies within a region. The trust would have the functions of:

1. asserting and holding Indigenous collective rights in biological diversity and traditional knowledge for and on behalf of native title holders;
2. making decisions about the control and management, and advocating legal and other forms of protection and recognition of those rights;
3. determining the rightful owners, custodians and managers of Indigenous biodiversity related knowledge and intellectual property;
4. distributing benefits accrued from the wider uses of biodiversity related knowledge, innovations and practices, in accordance with agreed customary rules and procedures; and
5. conducting research, information, education and awareness activities.

6.49 The Northern, Central and Kimberley Land Councils also proposed consideration of a trust model, possibly based on a bioregion.²²

6.50 The Kakadu Board of Management suggested that a Trust could hold and distribute moneys, and represent, advocate and litigate on behalf of traditional owners. The first step would be a trust representing the land trusts areas in Kakadu; there may be a role for the trust to represent wider areas but further research and consultation is necessary before extending the trust proposal. Until establishment of such a Trust, the Northern Land Council is the appropriate body to hold moneys and intellectual property rights in trust and otherwise represent owners' interests.

6.51 The Inquiry observes that the trust and community register proposals are complex and require further consideration. However, it believes that, the scheme should reflect the principle that the disposition of benefits payable to the owners of land must be a matter for those owners to determine. Anything less than this would be a diminution of their rights.

Recommendation That the trust and community register proposals, including (but not limited to) issues such as possible bioregional coverage and beneficiaries of any agreements under s301 of the EPBC Act, be discussed further in consultations on the development of the regulations and in the workshops proposed in Recommendations 30 and 31 above. That the regulations ensure the distribution of benefits derived from a benefit-sharing contract is for traditional owners to determine.

Capacity building -- legal and technical support for Indigenous communities

6.52 Some submissions commented on the need to provide Indigenous communities with legal and technical support. Environment Australia commented that:

Any access scheme should give appropriate recognition of Indigenous intellectual property rights. Knowledge, innovation 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 recovers 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.

6.53 ATSIC recommended that:

Consideration [be] given to implementing, through the Regulations, appropriate forms of capacity building or Indigenous institutional support. The Indigenous Biodiversity Trust model ... provides an example.

Recommendation That the Director of National Parks, as part of the responsibility for administering Commonwealth reserves and conservation zones under s514B(1)(a) of the EPBC Act, provide traditional owners with resources to enable them, if they choose, to seek independent legal or other advice in negotiations over possible access and benefit-sharing agreements.

The right of Indigenous people to protect their knowledge, innovations and practices

6.54 Submissions to the Inquiry acknowledged the need to respect the particular relationship between Indigenous people, their ancestral territories and the species in those territories, as well as the need to respect traditional knowledge associated with their territories and species.

6.55 Many submissions (and not only those which specifically focused on Indigenous issues) expressed concern about the use of Indigenous knowledge without consultation, prior informed consent or benefits.²³ For many Indigenous people, the Smokebush incident in particular confirmed their worst fears about the continuing misappropriation of their biodiversity and associated knowledge. According to Our Culture, Our Future:

The Smokebush [Conospermum] grows in the coastal areas between Geraldton and Esperance in Western Australia. Indigenous people from this region have traditionally used Smokebush for healing. Fourmile (now Marrie) reports that in the 1960s, the Western Australian Government granted the US National Cancer Institute a licence to collect plants for screening purposes. In 1981, specimens of the Smokebush plant were sent to the National Cancer Institute to test for the presence of cancer-fighting properties.

The specimens were found to be ineffective, but were held in storage until the late 1980s when they were tested again in the quest to find a cure for AIDS. Out of 7 000 plants screened from around the world, the Smokebush was one of only four plants found to contain the active property Conocurovone, which laboratory tests showed could destroy the HIV virus in low concentrations. This 'discovery' was subsequently patented. The US National Cancer Institute has since awarded Amrad, a Victorian pharmaceutical company, an exclusive world wide licence to develop the patent.

Under amendments to the Conservation and Land Management Act 1984 (WA) in 1985 and the National Parks and Wildlife Act (WA), the Western Australian Minister of the Environment has the power to grant exclusive rights to Western Australian flora and forest species for research purposes. In the early 1990s, the Western Australian Government also awarded Amrad the rights to the Smokebush species, to develop an anti-AIDS drug ... Amrad paid $1.5 million to the WA government to secure access to Smokebush and related species ... if Conocurovone is successfully commercialised, the WA government will recoup royalties of $100 million per year by 2002.

Indigenous people are concerned that they have not received any acknowledgment, financial or otherwise, for their role in having first discovered the healing properties of Smokebush. According to the Centre for Indigenous History and the Arts (WA):

The current legislation disregards the potential intellectual property rights that Indigenous peoples in WA have in flora on their lands. Furthermore, multinational drug companies could be sold exclusive rights to entire species of flora, preventing anyone from using these species for any other purpose without the consent of the companies.

Indigenous peoples in WA face the possibility of being prevented from using any of the flora which is the subject of an exclusive agreement.

It is therefore vital that any reform of the intellectual and cultural property laws include provisions for the recognition of Indigenous peoples as the native title owners of all the biological resources of the flora and fauna that are on their lands.²⁴

6.56 There is considerable commercial interest in Indigenous knowledge of plant and animal species for food, medicine and other purposes. Much of this knowledge has already been published and is readily available to the public. This knowledge helps to locate species that could be used, for example, by:

1. the pharmaceuticals industry for developing new drugs;
2. herbalists and the medical profession in developing natural therapies and neutriceuticals;
3. the bush food industry, for new herbs, spices, flavours and food staples;
4. agricultural, aquaculture and floriculture industries;
5. industries based on developing personal care products, ie cosmetics, soaps, shampoos, fragrances, sun-screens, aromatic oils, etc.; and
6. biotechnology industries, in which biotechnology can be used to develop products associated with any of the above industries, as well as in the development of industrial products and processes.

6.57 A few examples from the submissions illustrate the extent and depth of concerns about the unauthorised use of Indigenous knowledge.

6.58 Mr DD Brown expressed concern that industry has patented knowledge, innovations and practices which are not theirs and submitted that Indigenous communities should only share their knowledge if they choose to do so, and on their terms and conditions, without coercion.

6.59 Mr Michael Anderson expressed concerns about the continuing expropriation of traditional knowledge and culture and said that it was imperative that the intellectual property rights of the owners of knowledge be provided protection and owners not be forced to share the benefits gained from this knowledge.

6.60 Euroka Gilbert and Kathryn Looke also expressed concerns about the exploitation of Aboriginal people's intellectual property, exemplified by the Smokebush incident, and said that industry, governments and multinational corporations should not be able to use Aboriginal peoples and their traditional knowledge for their own gains without fair forms of reparation for injustices.

6.61 The Kimberley Aboriginal Law and Culture Centre, representing traditional Aboriginal cultural leaders across the Kimberley, expressed their rights to be acknowledged and respected, to benefit from the development of their intellectual property and to be included in the process and decision making.

6.62 The Queensland Government noted that 'issues of intellectual property may arise with respect to Indigenous communities, where traditional knowledge may lead to a significant discovery by bioprospectors'. In such cases, it supports the intellectual property rights of Indigenous people.

6.63 Some attempts have been made to address these issues overseas. For example, ATSIC briefly outlined various approaches, which include 'traditional resource rights', the 'community intellectual rights' scheme developed by the Malaysian-based Third World Network, and the model advocated by the Canadian-based advocacy organisation Rural Advancement Foundation International.

6.64 I am sensitive to the views expressed in submissions, as well as discussions and hearings, that Indigenous people's knowledge, and therefore their culture and spirit, has been taken from them. The Inquiry acknowledges the right of Indigenous people to their knowledge and has recommended creation of practical means to protect it under the proposed access system without the further delays which would arise from development of legislation. I do, however, support the work being undertaken to protect Indigenous knowledge.

Protection of rights to biological resources through contractual terms

6.65 Submissions to the Inquiry (and other literature on the issue) tend to discuss the issue in general terms, that is, as it might be addressed on a national basis, rather than in relation to the Indigenous-owned lands which are Commonwealth areas under the EPBC Act to which the Inquiry's terms of reference are limited.

6.66 Having examined this matter carefully, the Inquiry believes that protection for Indigenous-owned biological resources and associated knowledge in Commonwealth areas can be achieved either through the right of Indigenous owners not to allow access to their resources (with no right to review this decision), or, where they do enter into such contracts, by including in the contract terms which protect their rights. Such terms could, for example stipulate that:

1. agreements are not exclusive;
2. Indigenous owners may continue to use their biological resources and associated knowledge as they wish;
3. Indigenous owners are not required to divulge any information or knowledge against their wishes; and
4. access and benefit sharing may be determined in accordance with Indigenous owners' traditional laws and customs, if applicable.

6.67 Terms such as those suggested above are consistent with the Patents Act 1990. According to legal advice provided to the Inquiry, nothing in the grant of a patent gives the patentee any right to any source biological or genetic resources, that is, the specimens. Nor does the grant of a patent extinguish the right to use any traditional knowledge from which the patented subject matter was developed, provided the use does not amount to a use of the patent. The patent will also not extinguish any right to assert confidentiality in that information in general (although an exception would be if there has been a disclosure of that information either in the patent application or other published material relating to the derived invention).

6.68 Similarly, the rights of a registered owner under the Plant Breeders Rights Act 1994 are restricted to the actual registered plant variety and not to any source material from which that variety may have been derived. Plant breeders' rights will also not affect the rights of owners of traditional knowledge except where it is used to produce a plant variety of the same type as that which has been registered, or to exercise one of the other rights of the registered owner.

6.69 It is possible for patents to be owned jointly. However, for a joint application to be made, each individual must have made a contribution to the patentable invention. Mere knowledge in relation to the biological or genetic resources on which the patentable process or product is based does not, in itself, confer joint ownership of patent rights.

6.70 The inventor may, however, agree to another party being registered as a joint applicant, even where they have not made a contribution from which it has been derived. The effect of a joint application being granted is that each applicant may exercise the rights conferred by the grant of the patent individually without having to compensate the other owner/s. They cannot, however, grant a licence or assign an interest in the patent without the agreement of all owners.

Protection of rights where there is no contract or where there is a breach of contract

6.71 Where there is no contract, for example, where biological resources and/or Indigenous knowledge have been obtained from Commonwealth areas, either through activities such as illegal bioprospecting or from previous research and/or publications about the area in question, or where there is a contract, but resources and/or knowledge have nevertheless been obtained in breach of its terms, other forms of redress/penalties may need to be considered.

6.72 These could include preventing the export of the resources in question or refusing the grant of patents without proof of their source, that is, a contract evidencing prior informed consent. The latter appears to be the most common of proposals to protect traditional knowledge without actually creating intellectual property in such knowledge. However, IP Australia's submission, as well as legal advice to the Inquiry, indicates that this is not a current requirement of Australia's patent system.

6.73 As I have said above, the issue of protecting Indigenous knowledge outside Commonwealth areas (and therefore the jurisdiction of the EPBC Act) is beyond the Inquiry's terms of reference. This has not prevented the Inquiry from giving some consideration to the issues. However, the Inquiry notes that among the issues which would need to be addressed are whether the Commonwealth has constitutional power to protect Indigenous knowledge and, if so, what would be the best means of providing this protection.

6.74 In view of the complexity of these issues, their extension beyond Commonwealth 'areas' under the EPBC Act, and the fact that discussion about them is relatively recent in the Australian context, the Inquiry believes further research, consultations with stakeholders and community education are desirable.

Recommendation That the Department of the Environment and Heritage monitor international research and debate by the World Intellectual Property Organization and the World Trade Organization (and other fora) on protection of Indigenous knowledge as well as debate and research on the issue in Australia. That, in the event that stronger measures to protect such knowledge are introduced internationally or in Australia, the Department of the Environment and Heritage consider the adequacy of the regulations in protecting Indigenous intellectual property rights. That the issue of protecting Indigenous knowledge be considered further in (but not necessarily limited to) discussions towards developing a nationally consistent system. That IP Australia consider amending patent law to require proof of source and, where appropriate, prior informed consent, as a prerequisite for granting a patent.

Other issues

Relationship between Indigenous knowledge and biodiversity conservation

6.75 The basic framework for defining and recognising Indigenous rights to lands, species and knowledge has been evolving for more than a decade in various international fora. A number of submissions drew attention to this, for example, the Australian Research Council pointed 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.

Article 8(J) of the Convention on Biological Diversity requires the Parties to the Convention to 'respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity ...'

6.76 With only a few exceptions, however, the relationship between Indigenous knowledge and biodiversity conservation did not receive much attention in submissions to the Inquiry.

6.77 Dr David H Bennett, Executive Director, The Australian Academy of the Humanities referred to 'the special relationship between Aboriginal and Torres Strait Islander People and Australia's biodiversity and government polices and programs that deal ... with Indigenous access to Commonwealth areas'. Dr Bennett noted in particular Objective 1.8 of the National Strategy for the Conservation of Australia's Biological Diversity:

Traditional Aboriginal and Torres Strait management practices have proved important for the maintenance of biological diversity and their integration into current management programs should be pursued where appropriate.

6.78 ATSIC commented as follows on this issue:

There is a close interdependence between biological resources and the Indigenous peoples who are its managers, custodians and owners. Given this interdependence, respect for, and preservation of biological diversity is best achieved by upholding respect for, and preservation of cultural diversity. In other words, support for the diverse, local Indigenous cultures which have managed biological diversity for millennia, is a necessary element of the maintenance of biodiversity.

Reconciliation

6.79 The Council for Aboriginal Reconciliation and the Tasmanian Conservation Trust suggested that addressing Indigenous knowledge issues could contribute towards reconciliation.

6.80 I understand that Environment Australia's Reconciliation Action Plan includes, among the strategies to protect and use traditional ecological knowledge in addressing contemporary environmental issues, the requirement to ensure that Indigenous people have the opportunity to provide input to this Inquiry.

6.81 The Inquiry has attempted to ensure that this has been the case, but I reiterate the importance of ensuring the continuing participation of the traditional owners of Kakadu, Uluru and Booderee, and their representatives, in developing and implementing the regulations, as recognised in Recommendations 30 and 31 above.

Protecting Aboriginal genetic material

6.82 Ms Christine Morris, Research Fellow, Australian Key Centre for Cultural and Media Policy, Griffith University, Nathan Queensland, submitted that the remains of Indigenous people and others found in the soil should be left untouched by bioprospectors. Euroka Gilbert and Kathryn Looke also expressed concern about the lack of protection over Aboriginal human genetic material.

Recommendation That the regulations and the model contract stipulate that bioprospectors not collect human remains.

Codes of practice/ethics

6.83 Several submissions suggested the use of codes of ethics/practice for conducting bioprospecting. ATSIC provided extracts relating to Indigenous people from a 1998 report by the Australian Science, Technology and Engineering Council entitled Environmental Research Ethics: National Principles and Guidelines for the Ethical Conduct of Research in Protected and Environmentally Sensitive Areas.

6.84 Having examined this document, the Inquiry believes that, rather than create an additional document and enforcement mechanisms and sanctions additional to those proposed for inclusion in the EPBC Act, the contract should include terms which would amount to a code of practice/ethics -- these terms would also be enforceable as part of the contract.

Indigenous people's development of their biological resources and associated knowledge

6.85 Professor Noel Dunn, Director, Cooperative Research Centre for Food Industry Innovation outlined a project in which the Centre has been working with an 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. The Aboriginal community is establishing a company with board management. Royalties/licences will be shared equally between the Aboriginal company and the Cooperative Research Centre.

Recommendation That participants in the workshops proposed in Recommendation 31 explore the possibility of innovative opportunities for Indigenous people to promote and benefit from their knowledge of biodiversity.

Conclusions

6.86 In developing the scheme proposed in Chapter 2, I have sought to reflect the above issues either in the scheme or in my recommendations regarding the need for further consultations with Indigenous owners and monitoring of international developments in protection of Indigenous knowledge.

6.87 The proposed scheme takes into account the concerns of, and suggestions in, the submissions from Indigenous interests by including in the regulations (among other things):

1. the requirement that the Minister take the following factors into account when deciding whether to grant or refuse an access permit:
   1. environmental assessment (if required) was undertaken and the process is completed;
   2. submissions from persons and bodies registered under s266A of the EPBC Act have been taken into account;
   3. the precautionary principle has been applied, where appropriate;
   4. any variations to the model contract are acceptable;
   5. there is a contract between the parties which addresses the following major issues:
      • prior informed consent (the regulations also include indicia of evidence of prior informed consent);
      • mutually-agreed terms; and
      • adequate benefit-sharing arrangements, including protection for and valuing of Indigenous knowledge (where used); and
   6. the access arrangements meet the requirements of leases, management plans and any other relevant agreements, where applicable; and
2. the provision that the decision of the owners of biological resources to deny access to their resources is not reviewable.

6.88 In addition, I believe that my recommendation that a model contract be drafted will benefit Indigenous owners by:

1. helping parties understand the issues;
2. facilitating negotiations between them; and
3. including model terms which will enable traditional owners to protect their interests, for example, with respect to prior informed consent, mutually-agreed terms and adequate benefit-sharing arrangements.

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