Indigenous Law Bulletin
Australia ratified the Convention on Biological Diversity (‘the Convention’) on June 18, 1993. Heavily criticised by Indigenous peoples world-wide at the time that it was opened for signature on 5 June 1992, the Convention has emerged as one of the most important international instruments to recognise and protect our traditional knowledge and rights to natural resources.
In this paper, I review some of the legislative responses to the Convention taking place overseas. Some of these responses include the provision of powerful legal mechanisms for the protection of Indigenous peoples’ rights to biodiversity and traditional knowledge. A key measure emerging from many governments’ legislative responses to the Convention is a requirement that bioprospectors obtain the prior informed consent (‘the PIC’) of the indigenous community (or communities) before collecting biological resources and associated traditional knowledge from Indigenous peoples and their territories. Where the PIC of the local indigenous community is given, mutually agreed terms and benefit-sharing arrangements become a part of contractual agreements between the local community and the researcher/collector. These measures are in no small way intended to ensure the cultural survival and integrity of the Indigenous peoples concerned.
The Environment Protection and Biodiversity Conservation Bill 1998 (Cth), which will make the Convention part of Australian law, is currently before Parliament. There is, therefore, still time for Indigenous people to ensure that the Australian legislation protects our rights and interests in our traditional biological resources and associated knowledge.
The Convention, which reaffirms that ‘States have sovereign rights over their own biological resources’, came into force on 29 December 1993. The language of Article 8(j) and its related provisions, Articles 10(c), 17.2 and 18.4, is extremely limiting, particularly when compared to Indigenous aspirations as expressed in, for example, the UN Draft Declaration on the Rights of Indigenous Peoples. In spite of the Convention’s flaws when viewed from an Indigenous perspective, the Conference of the Parties (‘the COP’) has shown an unprecedented willingness to work with ‘indigenous and local communities embodying traditional lifestyles’ to ensure that the Parties observe the Convention’s requirement that they respect our traditional biodiversity-related knowledge. The Convention also promotes the wider application of traditional knowledge, with the approval and involvement of the knowledge holders, and encourages the equitable sharing of benefits between traditional owners and knowledge-holders, and developers.
The Contracting Parties have recognised that ‘traditional knowledge should be given the same respect as any other form of knowledge in the implementation of the Convention.’ The provision of appropriate protection for traditional biodiversity-related knowledge — referred to here as traditional ecological knowledge (‘TEK’) — is one of the core issues to which the COP is seeking resolution. Framing measures within national laws to secure the PIC of the relevant local Indigenous community before access to a particular biological or genetic resource is granted by the State also enables Parties to ensure that the three requirements of Article 8(j) are honoured.
A range of options for the protection of TEK are currently being investigated. Article 15.5 of the Convention states that: ‘Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.’ The term prior informed consent is not defined in the Convention but is broadly understood to mean consent to an activity that may be given after full disclosure of the reasons for the activity, the specific procedures the activity would entail, the potential risks involved, and the full implications that can realistically be foreseen. Article 15.5 of the Convention has been used by a number of countries as a key mechanism for the protection of both the natural resource rights of Indigenous peoples within their jurisdictions and of those peoples’ TEK.
PIC is a concept that has been utilised in several international instruments that are designed to protect against imports of dangerous products or substances. In the context of the Convention, PIC operates to control the export of potentially valuable resources. In both cases, PIC is a process through which the sovereign rights of the state are made explicit. PIC is, therefore, an administrative process requiring full disclosure of all information that enables the government, as well as interested parties, to assess costs and benefits and thus to decide whether to grant access to bio-resources.
In principle, the Convention refers only to the PIC of the State in possession of the genetic resources to which access is sought but nothing prevents PIC being extended to include all parties involved in an access procedure, particularly Indigenous communities. In the light of the inadequate means for protecting TEK available under current international intellectual property regimes, PIC represents the Convention’s key mechanism for according legal protection of that knowledge. However, much will depend on national and sub-national legislative definitions of what constitutes PIC as well as the mechanisms for enforcing it.
In direct response to Article 8(j) of the Convention, a number of Contracting Parties have devoted considerable effort to devising suitable regimes for the protection of traditional natural resources and associated TEK. Where applicants seek access to genetic resources located on Indigenous peoples’ traditional lands and waters, one option is to implement an access regime in national legislation. Legislators may refer to Article 15.5 which requires, in addition to the consent of the Contracting Party providing genetic resources, the PIC of the local indigenous community (or communities).
To date, countries like the Philippines, Costa Rica, Thailand and the Andean Pact countries (Bolivia, Colombia, Ecuador, Peru and Venezuela) have done just this. The Organisation for African Unity (‘the OAU’) has authorised its fifty-three Member States to adopt Draft Legislation on Community Rights and Access to Biological Diversity prepared by its Scientific, Technology and Research Commission.
It is clear from the terms of this legislation and draft law that the States devising them not only value the contribution that Indigenous peoples within their jurisdictions have made to the development and conservation of biological resources critical to national food and medicinal security, but also take seriously their obligations to establish high levels of protection for their continued use and access to such resources and for the protection of their communal and collective TEK. These legislative precedents and models could be used by Indigenous communities and organisations in Australia in our efforts to negotiate access regimes with Federal, State and Territory governments that will provide adequate protection for our traditional natural resources and TEK.
The Republic of the Philippines, in its Executive Order No. 247 (‘the PEO’)
Prescribing Guidelines and Establishing a Regulatory Framework for the Prospecting of Biological and Genetic Resources, Their By-products and Derivatives, for Scientific and Commercial Purposes and for Other Purposes, has established a procedure for assessing, obtaining, and verifying the PIC of local and indigenous communities in relation to Biodiversity prospecting. The policy underlying the PEO is strong and clear: prospecting for biological and genetic resources shall be allowed ‘within the ancestral lands and domains of indigenous cultural communities only with prior informed consent of such communities; obtained in accordance with the customary laws of the concerned community.’
By virtue of Decision 391, Common Regime of Access to Genetic Resources, of the Commission of the Cartagena Agreement, access to intangible assets (such as TEK) owned by a local or indigenous community is prohibited in Andean Pact countries unless their prior consent is obtained. In case of infringement of this requirement for the PIC, the contract will be deemed null (Article 39, Decision 391) and could amount to a criminal offence, as all declarations made by the accessor are affidavits (Article 22, Decision 391).
However, the Draft Legislation on Community Rights and Access to Biological Resources (‘the draft legislation’), prepared by the OAU’s Scientific, Technical and Research Commission in Addis Ababa, Ethiopa, offers perhaps the most powerful and comprehensive protection for TEK and the natural resource rights of Indigenous peoples formulated to date. The principal features of the draft legislation are:
The OAU’s draft legislation follows the requirements of Articles 8(j), 10(c), 15.5, 17.2 and 18.4 to the letter. As such, it provides a clear, concise and plain language model that can be used by Indigenous peoples in Australia in our negotiations with Federal, State and Territory governments to secure appropriate levels of protection for our TEK and traditional natural resources. Besides embedding the right to say no in national legislation — a right critical to the practice of self-determination — the draft legislation also entrenches the expectation that a national government will not allow access to local community genetic resources and associated TEK unless the country from which the collector operates has complementary laws of enforcement.
The Environment Protection and Biodiversity Conservation Bill 1998 (Cth) addresses the control of access to biological/genetic resources under Chapter 5 Part 13 Division 6. Clause 301 provides that:
(a) the equitable sharing of the benefits arising from the use of biological resources in Commonwealth areas;
(b) the facilitation of access to such resources;
(c) the right to deny access to such resources;
(d) the granting of access to such resources and the terms and conditions of such access.
While there is scope within the regulations for implementing PIC-type requirements, these will only apply to Commonwealth areas. Conservation and use of natural resources are, of course, primarily a State and Territory responsibility. However, the Federal Government has constitutional responsibilities in such areas as trade and commerce, corporations, external affairs, export control, and of course, the power to make laws for the ‘people of any race’. Given Australia’s mega-biodiverse status and the interest of foreign based institutions and transnational pharmaceutical and agricultural corporations in our biological wealth, some Federal monitoring of access to and use of that wealth is necessary. The State and Territory governments retain primary responsibility for the management of non-Commonwealth lands and waters. This means that access regimes will have to be negotiated with the States and Territories. The kind of access regimes governing the PIC of the concerned Indigenous communities which have been implemented in other countries might therefore be appropriate for Indigenous communities/traditional owner groups on this level. Nevertheless, the monitoring requirements of the Commonwealth might include the setting of minimum standards and the establishment of appropriate ‘trigger mechanisms’ giving rise to the requirement for the PIC of Indigenous communities/traditional owner groups. The latter should be in line with the emerging high standards of best practice evidenced in the laws of the countries mentioned above.
State and Territory legislation concerning nature conservation and natural resource use generally establish permit regimes to govern a range of activities, including the collection of genetic resources and research. It is in our best interests to negotiate with the State and Territory governments an access regime that will ensure that appropriate PIC procedures regarding access to traditionally used biological and genetic resources and associated TEK are also embedded within this legislation and its regulations.
The outcomes of Indigenous peoples’ negotiations with Australian State and Territory governments would constitute suitable material for case studies which Indigenous organisations have been invited to contribute by the Contracting Parties under Decision IV/9 of the COP. Paragraph 10 of that decision invites indigenous representatives to submit case studies on:
(b) The influence of international instruments, intellectual property rights, current laws and policies on knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity; ....
(e) Matters of prior informed consent, fair and equitable sharing of benefits and in situ conservation in lands and territories used by indigenous and local communities...
Indigenous representatives are encouraged to submit case studies for dissemination through means such as the Convention’s clearing-house mechanism ‘...relating to Article 8(j) and intellectual property rights...for transmittal to the World Intellectual Property Organisation and for use in initiatives on legislating on the implementation of Article 8(j) and related provisions.’ This invitation to submit such case studies is further evidence of the way in which Indigenous peoples are being empowered to contribute to the implementation of the Convention.
Henrietta Fourmile is a member of the Gimuy clan of the Yidinji nation, the traditional owners of the land on which the city of Cairns in Northeast Queensland is now situated. She is currently employed as the Programme Officer – Indigenous Knowledge with the Secretariat for the Convention on Biological Diversity in Montreal, Canada. The views expressed in this paper are personal and do not necessarily reflect those of the Secretariat or the Contracting Parties to the Convention.
 At the United Nations Conference on Environment and Development (the Rio ÒEarth SummitÓ).
 Article 10(c) states that ‘Each Contracting Party shall, as far as possible and as appropriate...Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.’
 Preambular paragraph 4 to the Convention. Article 3 restates Principle 21 of the Stockholm Declaration on the Human Environment 1972.
 Article 8(j) states that ‘Each Contracting Party shall, as far as possible and as appropriate:É Subject to its national legislation, 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 and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.’
 The Conference of the Parties is established by Article 23 of the Convention to, amongst other things, ‘keep under review the implementation of [the] Convention’. Apart from any extra-ordinary meetings, the COP meets approximately every two years — the next meeting, COP V, will be in Nairobi in the first half of 2000. At its meetings, the COP makes decisions, which are subsequently published, about matters concerning the implementation of the Convention.
 This description covers some 2 to 3 billion people who are not only responsible for the day-to-day management of the world’s biological resources, but who are also primarily responsible for the world’s food and medicinal security, making Article 8(j) one of the most important provisions of the Convention.
 Preambular paragraph 9, Decision III/14, and as reaffirmed in preambular paragraph 7 of Decision IV/9.
 See for example, Decisions III/14 and III/17 of the COP. A considerable part of Decision IV/9 on the implementation of Article 8(j) of the fourth and most recent meeting of the COP in Bratislava, May 1998, is devoted to this issue (see Decision IV/9 paras 14-17). This and other decisions of COP IV are available on the Web at <http://www.biodiv.org> .
 Other options for the protection of TEK include the use of biodiversity contracts; the development of sui generis legislation for the protection of traditional knowledge; institutional codes of research ethics; common law remedies; the amendment of existing national IPR laws — particularly those dealing with patents and plant breeders’ rights; and the implementation of various administrative procedures. In Australia, in addition to these, use may be made of existing mechanisms available under native title, land rights, Indigenous cultural heritage, natural resource conservation, and community self-government laws covering such matters as, for example, regional agreements, co-management of protected areas, the authority to make local by-laws, and permit regimes governing access to community lands to protect TEK.
 Secretariat of the Convention on Biological Diversity Access to Genetic Resources (document UNEP/CBD/COP/3/24, Montreal, 1996), p 14 para 52; Glowka, L., Burhenne-Guilmin, F. and Synge, H. with McNeely, J.A. and Gundling, L. (eds), A Guide to the Convention on Biological Diversity, (IUCN Environmental Law Centre, Bonn,1994), pp 80-82.
 For example, the Basel Convention on the Control of the Transboundary Movement of Hazardous Waste and their Disposal; the UNEP London Guidelines for the Exchange of Information on Chemicals in International Trade; FAO’s International Code of Conduct on the Distribution and Use of Pesticides (FAO Res 10/85, 1985) amended by Res 6/89,1989; IAEA Code of Practice on the International Transboundary Movement of Radioactive Waste, 1990 (DOC GC (XXXIV)/920; FAO International Code of Conduct for Plant Germplasm Collecting and Transfer; and UNEP’s Code of Ethics on the International Trade in Chemicals. In Rosell, M. ‘Access to Genetic Resources: A Critical Approach to Decision 391 “Common Regime on Access to Genetic Resources” of the Commission of the Cartagena Agreement’ (3)RECIEL (1997) 274: 278.
 Rosell, ibid.
 See above, n 9.
 Republic of the Philippines Executive Order No. 247, Prescribing Guidelines and Establishing a Regulatory Framework for the Prospecting of Biological and Genetic Resources, Their By-products and Derivatives, for Scientific and Commercial Purposes and for Other Purposes (May 1995).
 Ley de Biodiversidad, 1998.
 Draft Act on the Protection and Promotion of Thai Medical Wisdom, 1998.
 Decision 391, Common Regime of Access to Genetic Resources, of the Commission of the Cartagena Agreement, July 1996.
 Organization of African Unity / Scientific, Technical and Research Commission, Declaration and Draft Legislation on Community Rights and Access to Biological Resources (Addis Ababa, Ethiopia, 1998).
 Barber, C.V. and La Vina, A ., ‘Regulating access to genetic resources: The Philippines Experience’ in Mugabe, J., Barber, C.V., Henne, G., Lowka, L. and La Vina, A. (eds), Access to Genetic Resources: Strategies for Sharing Benefits, (ACTS Press, Nairobi, 1997), p 128.
 Rosell, op. cit., above n 12, p 128.
 Mittermeier, R.A., Gil, PR., and Mittermeier, C.G. Megadiversity: Earth’s Biologically Wealthiest Nations, (Conservation International, Washington DC, 1997).
 Cf COP Decision IV/9, paragraph 15.