Science and Research
John Voumard, Inquiry Chair
© Commonwealth of Australia, 2000
ISBN 0642547157
That this report be printed and circulated widely to stakeholders and interested parties.
That the Department of the Environment and Heritage be the central administering agency for the access scheme.
That the Minister for the Environment and Heritage be given responsibility under the EPBC Act to make decisions whether to grant or refuse applications for access permits.
That applications for access permits be handled through the Department of the Environment and Heritage's permits web site which should be linked to the Access to Biological Resources in Commonwealth Areas page on the Department's web site.
That the Department of the Environment and Heritage's standard permit application be amended to include the information that applicants must provide when seeking access to biological resources under s301.
That the regulations include timeframes (consistent with comparable decisions under the EPBC Act) within which:
That the Department of the Environment and Heritage maintain a register of contracts under s301 of the EPBC Act and the permits which relate to them. To the extent possible, allowing for reasonable concerns of the parties about confidentiality (for example, for commercial, cultural or other reasons) information about the agreements should be made public.
That the proposed scheme be implemented through regulations under s301 of the EPBC Act.
That the decision of traditional owners of biological resources to deny access to their resources (ie not to enter into a contract) not be reviewable.
That the parties to the contract be able to seek merits review of the Minister's decision not to grant an access permit.
That third parties only be able to seek merits review of that part of the Minister's decision which relates to the conditions in the access permit itself, but not the conditions in the contract.
That civil and criminal penalties in the EPBC Act for unlawfully accessing biological resources be sufficient to deter such activities, having regard to the potential profits from biopiracy.
That terms in the proposed model contract anticipate that most contracts will be for commercial purposes but that in some cases, terms which reflect non-commercially motivated research purposes may need to be drafted, and benefit sharing negotiated accordingly.
That the Department of the Environment and Heritage develop a model contract to guide and assist the parties in their negotiations over possible benefit-sharing arrangements.
That the model contract be endorsed by stakeholders including Biotechnology Australia, the Australian Biotechnology Association, the Indigenous Advisory Committee, key land councils and peak environment organisations and subsequently submitted for endorsement by the Minister for the Environment and Heritage.
That the regulations and model contract be used in discussions with State and Territory Governments as the basis of a proposed nationally consistent scheme.
That the Department of the Environment and Heritage, as the national focal point for the Convention on Biological Diversity and other international environmental agreements, consider means of promoting the full and effective participation of Indigenous peoples in Australia in such agreements, including by disseminating to Indigenous organisations relevant information from the secretariats of these agreements.
That the Department of the Environment and Heritage, in cooperation with other relevant Commonwealth agencies, monitor developments in other countries and in international fora to ensure the access scheme established by regulations under s301 of the EPBC Act meets Australia's international obligations.
That the possibility that bioprospecting may be a matter of significance under s23 and s26 of the EPBC Act be considered in assessing permit applications for access to biodiversity on Commonwealth land or in Commonwealth marine areas.
That the Administrative guidelines for determining whether an action has, will have, or is likely to have a significant impact on a matter of national environmental significance under the Environment Protection and Biodiversity Conservation Act 1999 (the Administrative Guidelines) be amended to include guidelines to determine whether an action has, or will have a significant environmental impact, on Commonwealth lands.
That the Administrative Guidelines be amended to indicate that bioprospecting may be a matter of significance under the Act and to indicate when this is likely to be the case in relation to collection and re-collection.
That, in drafting these criteria, the Department of the Environment and Heritage take into account the criteria for significance and the tiered approach described.
That State governments take the criteria for significance and the tiered approach into account as part of developing a nationally consistent approach across all jurisdictions.
That in deciding whether or not to issue an access permit, the Minister for the Environment and Heritage consider the precautionary principle (this will require an amendment to s391 of the EPBC Act).
That, as far as possible, protocols for collecting biological resources be developed and published and that, in developing protocols, guidance be sought from protocols used by, for example, the Australian Institute of Marine Studies, the Great Barrier Reef Marine Park Authority and other relevant institutions.
That the adoption of the appropriate collection protocols be a mandatory condition for each permit, whether or not environmental assessment has been required.
That regulations under s301 and the model contract include a requirement that at least some benefits (whether of a non-monetary or monetary nature) under the contract should promote biodiversity conservation in the area covered by the contract.
That the Minister for the Environment and Heritage consider whether the regulations should require that a percentage of any monetary benefits (such as royalties) under the contract be allocated to a fund for environmental purposes (for example, to fund conservation projects around Australia).
That regulations under s301 require the parties to the contract (in practice, this would usually be the collecting body) to lodge voucher specimens and information about the collection with a CITES-approved authority in Australia which has facilities for preservation (and further dissemination, when appropriate) of this material.
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.
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.
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.
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.
That the regulations and the model contract stipulate that bioprospectors not collect human remains.
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.
That there be further discussions between the Inquiry Secretariat (the Access Taskforce) and the Great Barrier Reef Marine Park Authority regarding development of streamlined procedures under the s301 regulations to ensure access arrangements for the Great Barrier Reef Marine Park and the Commonwealth are harmonised to the greatest extent possible.
That, subject to any international obligations, the access scheme, as recommended by the Inquiry, apply to Australian Antarctic or SubAntarctic areas as far as practicable.
That the Minister for the Environment and Heritage undertake necessary legislative amendment to the Antarctic Treaty (Environment Protection) Act 1980, the Antarctic Marine Living Resources Conservation Act 1981 and such subordinate legislation as is necessary to achieve this and ensure harmonisation with the scheme established under s301 of the EPBC Act.
That, in applying the elements of the recommended access scheme, the Australian Science Advisory Committee continue to have a role in assessing applications for access to biological resources.
That, where applications are made for bioprospecting in Australian Antarctic or SubAntarctic Commonwealth areas, the Australian Antarctic Division negotiate benefit-sharing contracts.
That staff involved in such negotiations be independent of staff involved in considering the grant of an access permit.
That the principle of an integrated permits system, as introduced in the administration of the EPBC Act, apply to administrative arrangements for applications for access to biological resources in Antarctic or SubAntarctic Commonwealth areas.
That benefit-sharing agreements with proponents wishing to access the biological resources on lands owned, leased or otherwise controlled by both Governments on Norfolk Island be negotiated jointly.
That the Minister for the Environment and Heritage agree to the principle that benefits under any such agreement be for the benefit of the people of Norfolk Island and its environment.
That access to the marine biological resources found in the area known as the Norfolk Island Fishery be reserved for the benefit of the people of the Island with benefit agreements to be negotiated by the Norfolk Island Government.
That, in consequence, the regulations under s301 of the EPBC Act be framed to allow for the special circumstances of the island and that the Department of the Environment and Heritage consult with the Department of Transport and Regional Services and the Norfolk Island Government over the administrative arrangements for implementing the regulations.
That the Minister for the Environment and Heritage endorse the Commonwealth State Working Group principles.
That further consultations be held with State and Territory governments to address the broader issue of a nationally consistent approach cross jurisdictions.
That the Minister for the Environment and Heritage review the function of the Commonwealth State Working Group and consider steps necessary to increase the involvement of key stakeholders and ensure any future work done by that body is undertaken with defined outcomes and within agreed timeframes.
That the Department of Environment and Heritage, as administering agency for the EPBC Act; and Agriculture, Fisheries and Forests -- Australia, as the agency with responsibility for the Fisheries Management Act 1991, together with other relevant Commonwealth agencies including the CSIRO and the Australian Institute of Marine Science, conduct discussions to establish a Commonwealth position on:
In the event that this is not possible or desirable, the Minister for the Environment and Heritage should consider amending the EPBC Act to ensure both Acts may operate concurrently and the distinction between action necessary for sustainable fisheries management and action necessary to regulate access to biological resources is clarified.
That the Department of the Environment and Heritage discuss with State and Territory authorities the scope for concurrent operation of regulations under s301 of the EPBC Act in Commonwealth areas where States and Territories have arrangements under the Fisheries Management Act affecting access to biological resources.
That, with the concurrence of the State or Territory involved, the Australian Fisheries Management Authority be invited to participate in these discussions.
That the Minister ask the Department of the Environment and Heritage to discuss, with holders of ex situ collections, the value of a combined request for legal advice on ownership issues.
That, subject to the advice subsequently obtained, the Minister consider any recommendation from the holders of ex situ collections within his portfolio for legislative amendment to resolve outstanding ownership issues.
That, to the extent possible, Commonwealth ex situ collections of native species be included in the access scheme to be introduced by regulations under s301 of the EPBC Act.
That action be taken to identify ex situ collections and that the Department of the Environment and Heritage provide advice about the introduction of the access scheme.
That material which is the subject of existing international agreements, such as the Food and Agricultural Organization International Undertaking on Plant Genetic Resources, be excluded from the ambit of the regulations.
That the Minister for the Environment and Heritage consider deferring application of the regulations to participating Botanic Gardens and other ex situ organisations if, in his view, deferral would aid progress to a common Australian position and if there was no undue delay in establishing the Common Policy Guidelines for Participating Botanic Gardens on Access to Genetic Resources and Benefit Sharing.
That, in settling an Australian position in relation to the terms of the Common Guidelines for participating institutions on access to genetic resources and benefit sharing, the Council of Heads of Australian Herbaria be asked to consider the relationship between the provisions of the access scheme to be introduced under s301 of the EPBC Act and the Common Guidelines.
That the Department of the Environment and Heritage undertake further research to determine the extent of the export of micro-organisms and products derived from them.
That, in light of this information, export controls on such organisms be extended.
That the export provisions of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 be amended to allow the s301 scheme and other similar systems, such as the tiered model being developed by Australian Institute of Marine Science and the Great Barrier Reef Marine Park Authority, to be taken into account when export approvals are sought or that this be reflected when proposed amendments to the EPBC Act incorporate the provisions of the Wildlife Protection Act.
