Science and Research

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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FOOTNOTES

1. Reports by ANZECC (March 1994), the Office of the Chief Scientist, Department of the Prime Minister and Cabinet (March 1994) and the Commonwealth State Working Group (October 1996) include detailed lists and some discussion of other relevant international agreements.
2. Terri Janke, 1999: p.24
3. Report of the Fifth Meeting of the Conference of the Parties (COP5) to the Convention on Biological Diversity - UNEP/CBD/COP5/23:p.196
4. COP5 - UNEP/CBD/COP5/23:p.137-40
5. The advice was provided by Paul Minogue, Counsel Biodiversity Group, Environment Australia in consultation with the Australian Government Solicitor.
6. Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 330 per Brennan J, with whome Dawson, Toohey and McHugh JJ expressed agreement, while Mason CJ, Deane and Gaudron JJ expressed 'general agreement'.
7. See Endnote A at the end of this chapter.
8. Harper v Minister for Sea Fisheries, per Brennan J, with whom the remainder of the High Court agreed.
9. If the operation of the EPBC Act of regulations under the Act would result in an acquisition of property from the owner of biological resources, that would otherwise be invalid because of paragraph 51(xxxi) of the Constitution, s519(1) of the Act provides that the Commonwealth must pay the person a reasonable amount of compensation.
10. See Endnote B at the end of this chapter.
11. Patents Act 1990 (Cth), s15(1)(a).
12. The principles have been summarised slightly.
13. Garson M, 1996 and 1997
14. Farnsworth, NF 1994.
15. King SR and Tempesta MS 1994.
16. The Minister can also choose to make a ministerial declaration allowing another Commonwealth body (such as a government department or statutory authority) to carry out the environmental assessment if satisfied about the process to be followed by that body.
17. The Australian Institute of Marine Science's proposal is outlined in Chapter 6.
18. 'Aboriginal tradition' is defined in s3(1) of the Land Rights Act to mean the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.
19. Section 71 of the Act provides -
    1. Subject to this section, an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that the entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor.
    2. Subsection (1) does not authorise an entry, use or occupation that would interfere with the use or enjoyment of an estate or interest in the land held by a person not being a Land Trust or an Aboriginal Council or other incorporated association of Aboriginals.
20. The terms 'organism' and 'native species' are defined in s528 of the EPBC Act.
21. s19(5) A Land Council shall not give a direction under this section for the grant, transfer or surrender of an estate or interest in land unless the Land Council is satisfied that:
    (a) the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed grant, transfer or surrender and, as a group, consent to it;
    (b) and Aboriginal community or group that may be affected by the proposed grant, transfer or surrender has been consulted and has had adequate opportunity to express its view to the Land Council; and
    (c) in the case of an estate or interest -- the terms and conditions on which the grant is to be made are reasonable.
22. The trust model referred to is based on recommendations by Langton, Epworth and Sinnamon, 1999.
23. Various terms are used in the literature, for example: traditional knowledge, traditional ecological knowledge, Indigenous knowledge, and traditional biodiversity-related knowledge. For the purposes of consistency, the Inquiry refers, in this report, to 'Indigenous knowledge', on the basis of Article 8(j) of the Convention on Biological Diversity which refers to 'knowledge, innovations and practices' of Indigenous and local communities.
24. See Out Culture, Our Future, 1998:p.24-25.
25. In December 1999, AMRAD and the Rothschild Bioscience Unit (on behalf of a group of Australian-based investors) announced an agreement whereby AMRAD's interest in AMRAD Discovery Technologies Pty Ltd was sold and a new Australian biotech company -ExGenix Ltd - was established. Under the terms of the agreement, ExGenix obtains all intellectual property, assets and related liabilities of AMRAD Discovery Technologies Pty Ltd and AMRAD retains a 24 per cent interest in ExGenix that will provide AMRAD with high returns throughout screening services to aid AMRAD's own drug discovery programs.
26. Director, AstraZeneca R&D Griffith University and member of the expert reference group.
27. CSIRO presentation at Canberra hearing, 30 May 2000
28. Sub.50.
29. The joint communique, Commonwealth/ Norfolk Island Inter Governmental Meeting, 9 June 2000. Senator Macdonald advised that, in principle, he supports the withdrawal of the Commonwealth from ownership of certain Crown land, subject to a number of planning and other matters being finalised. Senator Macdonald advised that a number of matters needed to be resolved with various Commonwealth portfolios, including environment and heritage agencies, before any transfers could take place.
30. The Norfolk Island Fishery is bounded by: 28š38'S, 167š40;E; 28š38'S, 168š20'E; 29š45'S, 167š40'E; 29š45'S, 168š20'E.
31. The submission received was from the Fisheries Division, Northern Territory Government.
32. Commonwealth State Working Group on Managing Access to Australia's Biological Resources: Developing a Nationally Consistent Approach, a discussion paper, October 1996.
33. Under these arrangements the Northern Territory is treated as a State for the purposes of the Offshore Constitutional Settlement.
34. The Commonwealth made similar provision in relation to the legislative powers of the Northern Territory Legislative Assemble by paragraph 5(c) of the Coastal Waters (Northern territory Powers) Act 1980.
35. Sections 71 and 72.
36. Section 74.
37. Section 75.

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