Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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KATIE O’BRYAN[*]
In this paper I look at the global question of the appropriation of indigenous ecological knowledge. First I will attempt to define some of the terms in this field of debate, and explain some of the basic issues, with a brief look at the role of intellectual property laws. Following this I will outline some of the major international developments which may assist the resolution of some of the issues. I then turn to look at Australia’s response, focussing in particular on the role of the Environment Protection and Biodiversity Conservation Act 1999 and the Native Title Act 1993. Particular mention is made of the High Court decision in State of Western Australia v Ward[1] and whether the Native Title Act 1993 still has a role to play in the protection of indigenous ecological knowledge. Finally, I discuss briefly the alternative of a sui generis system as a potential solution.
It is no secret that indigenous people have a unique and special relationship with land.[2] As Noel Pearson, when Director of the Cape York Land Council, stated: ‘the most profound aspect of the aboriginal relationship to their land and seas … is that the environment is vested with spiritual meaning and significance’.[3] Indigenous relationships with the land go back tens of thousands of years, over which time indigenous people have accumulated a wealth of knowledge relating to the natural environment and the resources found within it. But what is indigenous knowledge?
There have been numerous attempts to define indigenous knowledge, and many commentators have noted the difficulties in coming up with a definition that encapsulates the true essence of such knowledge for all indigenous peoples.[4] One of the obvious difficulties in defining indigenous knowledge is that indigenous societies around the world are all different.
Indigenous knowledge is sometimes referred to as traditional knowledge. In a typically obfuscating fashion, the United Nations has established a definition of traditional knowledge for the purposes of the United Nations Convention to Combat Desertification:
Traditional Knowledge consists of practical (instrumental) and normative (enabling) knowledge about the ecological, socio-economic and cultural environment. Traditional knowledge is people centred (generated and transmitted by people as knowledgeable, competent and entitled actors), systemic (intersectional and holistic), experimental (empirical and practical), transmitted from one generation to the next and culturally valorised. This type of knowledge promotes diversity; it valorises and reproduces the local (internal) resources.[5]
Indigenous knowledge can perhaps best be explained by looking at its characteristics. Michael Davis suggests a number of characteristics that are common to indigenous knowledge systems:
• Indigenous people often hold communal rights and interests in their knowledge;
• There is a close interdependence between knowledge, land, and spirituality in indigenous societies;
• Knowledge, innovations and practices are often transmitted orally in accordance with customary rules and principles; and
• There are rules regarding secrecy and sacredness that govern the management of knowledge.[6]
The focus here will be on indigenous biological and ecological knowledge or ‘traditional ecological knowledge’,[7] being knowledge of natural resources, plants, animals, and their environments, and the use made of that knowledge. In focussing on this, one must not lose sight of the fact that such knowledge is inextricably linked with both the spiritual and the sacred. However, Western appropriation of traditional ecological knowledge tends to be appropriation of that aspect of traditional ecological knowledge which is useful for Western scientific purposes, and cynics would claim that there is no room for the spiritual and sacred in Western scientific discourse!
Over the past few decades, the Western world has become increasingly aware of the value of traditional ecological knowledge and the resources around which that knowledge is based. This is no more evident than from the interest shown by major multinational corporations and pharmaceutical companies in obtaining access to those resources and the knowledge surrounding their use.
Western science has discovered that, although itself not scientifically proven, traditional ecological knowledge may provide answers to many of the major problems facing societies today, such as cures for cancer and AIDS, and new pesticides to increase crop productivity. In addition, it provides a source from which to develop other products useful to humankind and provide financial benefits for the developer of the product. So researchers set out to find that knowledge, find the resources and then use the knowledge and resources to develop products for the Western world. This search for knowledge and resources is known as bioprospecting. Bioprospecting has been defined as ‘the name given to the search for useful plant related substances that can be developed into marketable commodities such as pharmaceuticals, pesticides and cosmetics’,[8] which ‘entails isolating and identifying the pure active principle of a traditional medicine’.[9]
In the race to discover new products and processes, the use of traditional ecological knowledge can shorten the odds enormously. As Erica-Irene Daes, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, and Chairperson of the Working Group on Indigenous Populations, noted in 1997, ‘using traditional knowledge increased the efficiency of screening plants for medical purposes by more than 400 per cent’.[10]
It has been pointed out that as a side effect of providing resources and knowledge for new products, bioprospecting can also help in the protection of biodiversity. The natural resources are sought after because they may contain an active principle that is useful for a particular product. So once isolated, this ‘active principle can then be prepared synthetically, thus eliminating reliance on the natural source, which may be a rare plant or animal’.[11] And ‘if carried out appropriately, [bioprospecting can] provide an incentive for the conservation of these resources’.[12]
But there are also problems for biodiversity caused by bioprospecting. Mary Garson cites an example from the field of marine bioprospecting which illustrates the potential dangers of bioprospecting:
The collection of 2400 kg of an Indo-Pacific sponge gave rise to less than 1 mg of a potent anticancer chemical, which was barely sufficient for the full structure of the chemical to be determined.[13]
The harvesting of natural resources on this scale may have a serious effect on indigenous communities who may rely on such resources for traditional purposes, including the maintenance and transmission to their younger generation of the traditional uses and benefits of such resources.
Given the above, it is not surprising that conflicts have arisen as to the ownership of both the resources and knowledge. The Western world has proceeded to bioprospect on the basis that the natural environment was part of the ‘global commons’,[14] existing for the use and benefit of the whole world. It was part of the world’s common heritage, ‘a notion derived from Western concepts of property … [which] defines products of nature, scientific theory, and folk knowledge to be public goods, belonging to the public domain’.[15] The environment was terra nullius, indigenous people were invisible.
Researchers began exploring areas of rich biological diversity, taking the resources and knowledge they found back home, developing it into a useful product and patenting it, thus removing it from the public domain. In most cases this was done without any recognition of those people from whom they had obtained access and knowledge about such resources in the first place. And so the term ‘biopiracy’ was born. Biopiracy has been described as ‘the exploitation of traditional knowledge of indigenous communities’.[16] There are many examples of biopiracy, the most well known and oft cited one being that of the Neem tree in India,[17] and an example from our own backyard is that of the Smokebush of Western Australia.[18]
Against this background, there have been numerous attempts to reconcile these competing interests and resolve these conflicts at both an international and domestic level.
Given that the bioprospectors had success in using patent laws to protect the processes and products developed from their use of traditional ecological knowledge, it might have been assumed that indigenous people could use the same laws to protect their knowledge. However, it has become widely acknowledged that intellectual property laws do not cater well for indigenous knowledge.[19] In relation to patents which are particularly relevant to traditional ecological knowledge, Michael Davis explains thus:
Biological knowledge in Indigenous communities is generally regarded as being a community resource, and is shared and transmitted ‘freely’ within communities according to customary rights, rules and obligations. The private ownership rights which patent laws confer for inventions are thus antithetical to Indigenous peoples world views.[20]
To explain further, other features of patent laws, such as the requirement that an invention be useful, novel, or recent and original, and non-obvious; as well as the fact that patents are for a fixed time, also make it difficult to apply such laws to indigenous ecological knowledge. As noted earlier, traditional ecological knowledge is communal, usually transmitted orally, and is handed down from generation to generation. As such, the individual nature of patent laws, with their time limits (usually up to 20 years) are not appropriate mechanisms for protecting indigenous ecological knowledge. However, they suit perfectly the Western researcher who can take the resource and knowledge, develop a process or product from them, turning it into a ‘novel’ invention, which may then be able to be patented.
International developments, such as the 1994 GATT/WTO[21] Agreement on Trade-Related Intellectual Property Rights (TRIPs) are of concern to indigenous peoples. Such concerns are that the TRIPs Agreement ‘will facilitate biopiracy’, as it ‘recognises only private rights and makes no provision for the protection of intellectual property held communally, such as indigenous traditional knowledge’.[22] Under the Agreement, all GATT member countries must ensure that their own national laws are in conformity with the Agreement. The Agreement also provides that ‘the products of scientific research become the private property of the products corporate sponsors’.[23]
There are numerous international instruments that relate to the protection of indigenous peoples rights, including rights to traditional ecological knowledge and resources. Following is a brief summary of some of the most significant of those instruments.[24]
One of the first international organisations to specifically address indigenous issues was the International Labour Organisation (ILO). The International Labour Organisation Convention Concerning Indigenous and Tribal Peoples in Independent Countries No 169 (ILO 169) was adopted by the ILO’s General Conference in June 1989 and entered into force on 5 September 1991.[25] It was essentially a revision of ILO Convention 107, The Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, which had been criticised as being based on an outdated integrationist philosophy.[26] ILO 169 still suffers criticism of having an assimilationist orientation.[27] There have been a number of other criticisms of ILO 169, including:
Avoidance of the issue of self-determination; qualified use of the term ‘peoples’; procedural requirements of ‘consultation’ and ‘participation’ rather than an obligation to obtain consent; qualified recognition of indigenous customs and institutions; failure to recognise indigenous ownership of the resources pertaining to their lands; and the denial to indigenous people of access to the ILO’s implementation monitoring procedures.[28]
However, despite these criticisms, it is still an important convention in that it places binding obligations on those parties who have signed, and is the only convention currently in force that is specifically directed at indigenous peoples rights. Insofar as it refers to protection of indigenous ecological knowledge, ILO 169 is only of general application. Relevant articles include Articles 4, 5(a) and (b), 8.1, 8.2, 13 and 23.[29] Also of relevance are Articles 7 and 14(3).[30] However it is also to be noted that the Australian Government has not yet ratified ILO 169.[31]
At the United Nations Conference on Environment and Development held in Rio de Janeiro, Brazil, in June 1992 (The Rio Earth Summit), a number of important international developments emerged: The Rio Declaration; Agenda 21; the Statement of Forest Principles; and the Convention on Biological Diversity.
In relation to traditional ecological knowledge, Principle 22 of the Rio Declaration recognises that:
Indigenous People and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.[32]
Also of relevance in the Rio Declaration are Principles 9 and 10 relating to the transfer of knowledge, however they are not specifically directed at indigenous peoples.
Also to emerge from the Rio Earth Summit was Agenda 21. Agenda 21 sets out a program of action for the 21st Century in relation to sustainable development and conservation. Chapter 26 of Agenda 21 is devoted to indigenous peoples, and is entitled: Recognising and Strengthening the Role of Indigenous Peoples and their Communities. The sections of chapter 26 that relate specifically to the recognition and protection of indigenous knowledge are 26.3(a)(iii) and 26.6(a).
The Statement of Forest Principles also deals with the traditional rights of indigenous people in relation to forest environments. At Principle 5(a) and Principle 12(d) the Statement of Forest Principles recognises the vital contribution of indigenous peoples to the protection of forest environments, and that indigenous peoples should be entitled to an equitable share of any benefits arising from the utilisation of their traditional knowledge of those environments.
Arguably the most important international instrument to emerge from the Rio Earth Summit was the Convention on Biological Diversity (CBD). The CBD was opened for signature on 5 June 1992 and came into force on 29 December 1993. The most important Article of relevance to the protection of indigenous knowledge is Article 8(j) which states:
Each Contracting Party shall, as far as possible and as appropriate:
(j) 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 utilisation of such knowledge, innovations and practices.
This is followed closely by Article 10(c) which states:
Each Contracting party shall, as far as possible and as appropriate:
(c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.
Other Articles of relevance to the protection of indigenous knowledge are Article 17.2 which relates to the exchange of information, and Article 18.4 which relates to Scientific and Technical Co-ordination. In addition, the Conference of the Parties to the CBD meets regularly to discuss the CBD, and in 1998 set up an ad hoc open ended working group to continue looking specifically at the operation of Article 8(j) and related provisions.[33]
However like most things, the CBD as it relates to the protection of indigenous rights in general, and indigenous rights in their traditional ecological knowledge and resources, it is not without its critics. The International Alliance of the Indigenous Peoples of the Tropical Forests prepared a paper in response to a request from the Secretariat of the CBD outlining a number of concerns it had with the CBD.[34] Those concerns included: constant affirmation in the CBD that States (rather than indigenous peoples) have rights over biological resources; that Article 8(j) is ‘subject to national legislation’, implying that ‘if national legislation does not recognise the subsequent provisions, they are not valid’;[35] that the creation of protected areas under Article 8 might cause displacement of indigenous peoples from their traditional lands; that terminology such as ‘traditional lifestyles’ and ‘local communities’ were confusing and could potentially restrict the application of the CBD; that access to resources would be determined at a national level without involvement from the traditional peoples whose land was being accessed; and that benefits flowing from access to traditional knowledge might turn ‘into a process where knowledge becomes commodified’.[36] Other criticisms levelled at the CBD are that it encourages, but does not oblige signatories to respect and preserve indigenous knowledge, and that it is overly cautious in its use of language, using words such as ‘shall’ and phrases such as ‘as far as possible’ and ‘as appropriate’.[37] However on the positive side, the inclusion of the phrase ‘with the approval and involvement of the holders’ is seen as being very important, as it amounts to a requirement to obtain the prior informed consent of indigenous peoples before their knowledge, innovation and practices can be used in the wider community.[38] A definition of prior informed consent is not contained in the CBD, however it:
is broadly understood to mean consent given to an activity 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.[39]
There are other important international statements of principle relating to indigenous rights in their traditional ecological knowledge. For example, the United Nations Draft Declaration on the Rights of Indigenous Peoples at Article 29 states:
Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.
Article 24 states:
Indigenous peoples have the right to their traditional medicines and health practices, including the right to the protection of vital medicinal plants, animals and minerals.
Unfortunately the declaration is only in draft form so it is not yet binding on any State. However the Draft Declaration, along with the various mechanisms mentioned above, and other statements of principle,[40] provides a sound, albeit non-binding, international framework in which to advance the rights of indigenous people to protect their knowledge.
Australia ratified the CBD on 18 June 1993,[41] and therefore it is the most relevant of the above international mechanisms for the protection of traditional ecological knowledge. However, as an international instrument, it must be implemented in domestic legislation for it to take effect in Australia. There are two Acts I will focus on in this discussion of the protection of traditional ecological knowledge: the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act); and the Native Title Act 1993 (Cth). Before I turn to them, let me outline a brief history of the recognition of traditional ecological knowledge in Australian law.
In 1992, the Commonwealth’s ‘National Strategy for Ecologically Sustainable Development’ recognised the value of indigenous ecological knowledge. Objective 22.1 states the principle that it is necessary:
To ensure effective mechanisms are put in place to represent Aboriginal and Torres Strait Islander peoples’ land, heritage, economic and cultural development concerns in resource allocation processes,
and in order to fulfil this objective, states that:
Governments will encourage greater recognition of Aboriginal People and Torres Strait Islanders’ values, traditional knowledge and resource management practices relevant to ESD.[42]
Following this, as noted above, on 18 June 1993, Australia ratified the Convention on Biological Diversity.
In 1996 the Commonwealth Government, along with State and Territory Governments, endorsed the National Strategy for the Conservation of Australia’s Biological Diversity. Objective 1.8 of this Strategy relates to traditional ecological knowledge, being to ‘Recognise and ensure the continuity of the contribution of the ethnobiological knowledge of Australia’s indigenous peoples to the conservation of Australia’s biological diversity’. In implementing this objective, Action 1.8.2 is to:
Ensure that the use of traditional biological knowledge in the scientific, commercial and public domains proceeds only with the co-operation and control of the traditional owners of that knowledge and ensure that the use and collection of such knowledge results in social and economic benefits to the traditional owners.
In 1999 the Australian Government passed the EPBC Act. The EPBC Act purports to implement Australia’s international obligations under Article 8 of the CBD, as well as a number of other international agreements under which Australia has assumed obligations.[43] It replaces and repeals a number of Commonwealth Acts relating to the environment and conservation,[44] and arguably represents ‘the most significant change to Commonwealth environmental laws since they were first introduced’.[45]
There had been much controversy over the Bill when it was introduced into parliament, particularly from indigenous groups who felt that they had not had sufficient opportunity to participate in its formulation, this was reflected in the lack of almost any recognition in the Bill of the role of indigenous people in biodiversity conservation.[46] After debate in the Senate over approximately 800 different amendments, including amendments relating to indigenous peoples, the Bill was eventually passed, and came into force on 16 July 1999. Although the EPBC Act now specifically refers to the interests of indigenous people, some still view the EPBC Act as representing ‘a missed opportunity to fully and effectively include provisions explicitly implementing the CBD, especially in relation to the recognition and protection of indigenous knowledge’.[47]
However, I turn now to what the EPBC Act actually does contain in relation to traditional ecological knowledge. One of the objects of the EPBC Act is ‘to promote the use of indigenous peoples knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge’.[48] And in order to achieve this objective (among others), the EPBC Act:
promotes a partnership approach to environment protection and biodiversity conservation through … recognising and promoting indigenous peoples role in, and knowledge of, the conservation and ecologically sustainable use of biological resources.[49]
The Act specifically states that it does not affect the operation of the Native Title Act 1993.[50]
Other sections of the EPBC Act of specific relevance to indigenous people include section 49A(c), which requires that the Minister can only approve a bilateral agreement under the Act if he or she:
[H]as considered the role and interests of indigenous peoples in promoting the conservation and ecologically sustainable use of natural resources in the context of the proposed agreement, taking into account Australia’s relevant obligations under the Biodiversity Convention.
Bilateral agreements are agreements between the Commonwealth and the State or Territory governments by which the Commonwealth delegates the environmental assessment and/or approvals processes under the Act to the State or Territory Government.[51] The Tasmanian and Commonwealth Governments signed an assessment bilateral agreement on 15 December 2000. Queensland and NSW are in the process of negotiating an assessment bilateral agreement.
Section 305(6) requires that when making a conservation agreement under section 305(5) of the act with indigenous people with ‘usage rights’,[52] the Minister must take into account Articles 8(j), 10(c) and 18(4) of the CBD, and objective 1.8.2 of the National Strategy for the Conservation of Australia’s Biological Diversity. This is the only section which refers specifically to Article 8(j) of the CBD.
Access to biological resources is governed by section 301(1) of the Act, which states:
The regulations may provide for the control of access to biological resources in Commonwealth areas.
Section 301(2) states that the regulations can contain provisions about:
• The equitable sharing of the benefits arising from the use of biological resources in Commonwealth areas;
• The facilitation of access to such resources;
• The right to deny access to such resources;
• The granting of access to such resources and the terms and conditions of such access.
The Commonwealth Government has yet to take the up opportunity to make any regulations under section 301, as evidenced by the lack of any such measures in the Environment Protection and Biodiversity Regulations 2000.[53]
Section 301 (1) above evidences a major defect in the EPBC Act in that the provisions of the Act can only be invoked on Commonwealth lands, or under section 26(2), actions taken outside Commonwealth land which have, will have or are likely to have a significant impact on the environment on the Commonwealth land. The provisions also specifically protect areas such as World Heritage areas or Ramsar Wetlands. Alternatively, albeit another limitation, is that in all other areas, it only applies to activities that will involve a significant impact on matters of ‘national environmental significance’,[54] otherwise the responsibility for the environment falls to State and Territory regimes. The Commonwealth can further divest itself of responsibility for control by way of bilateral agreements with the States, referred to above.
Under sections 201, 216 and 258, a person may be issued a permit by the minister to undertake certain activities in relation to particular endangered, migratory or marine species or communities on Commonwealth land where the Minister is satisfied that: ‘the specified action is of particular significance to indigenous tradition and will not adversely affect the survival or recovery in nature of the [particular] species…’. Indigenous tradition is defined in section 201(4) as ‘the body of traditions, observances, customs and beliefs of indigenous persons generally, or of a particular group of indigenous persons’. These sections enable indigenous people to maintain access to their scarce ecological and biological resources for traditional purposes, but only if they have obtained the relevant permit and the action does not adversely affect the survival of the particular species. Once again, it only applies to Commonwealth land.
The EPBC Act requires the inclusion of indigenous people on the Biological Diversity Advisory Committee,[55] and also sets up a separate Indigenous Advisory Committee[56] to ‘advise the Minister on the operation of the Act, taking into account the significance of indigenous peoples’ knowledge of the management of the land and the conservation and sustainable use of biodiversity’.[57] However, it is to be noted that both of these committees are advisory only, their recommendations and/or advice are not binding on the Minister.
How do indigenous Australians enforce their rights in ecological knowledge under the EPBC Act? Although there is legislative recognition of the rights of indigenous people to their ecological knowledge and resources, there is no real means for enforcing those rights. There are no regulations governing access to biological resources to which indigenous people can turn. An interested member of the public can bring an injunction to prevent breaches of the Act,[58] and it is therefore conceivable that indigenous people might bring an action where the resources they rely on are being threatened by a proposed action. But the resource must be one capable of protection under the Act, and the prohibitive cost to indigenous people of seeking an injunction makes this unlikely. Nor do the enforcement provisions allow for the protection of their knowledge. How can indigenous people compel the government to comply with its obligations under the CBD? Traditional ecological knowledge under the EPBC Act is recognised, however it is not protected.
What this means for the protection of traditional ecological knowledge and resources is that indigenous people are not able to use the EPBC Act in any meaningful way to protect their rights in their ecological knowledge and resources, and will instead have to turn to other mechanisms to protect their rights.
One such mechanism, already alluded to above, is the Native Title Act 1993. The Native Title Act was a response to the High Court’s decision in Mabo[59] which overturned the concept of terra nullius, and recognised indigenous rights to land and waters. The preamble to the Native Title Act notes that:
The High Court has:
(a) rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement; and
(b) held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands;…
One of the main objects of the Native Title Act is to provide for the recognition and protection of native title (s3(a)). Native title is defined in subsection 223(1) of the Native Title Act as follows:
The expression ‘native title’ or ‘native title rights and interest’ means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) The rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) The Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) The rights and interests are recognised by the common law of Australia.
The Native Title Act explicitly includes hunting, gathering, or fishing rights and interests (s223(2)).
The elucidation of the content of native title rights and interests has fallen to the Courts. Whether the content would include rights to protect indigenous cultural knowledge gave some cause for debate. David Bennet, writing in 1996 asserted that ‘The Native Title Act makes provision for protecting customary use of biological resources in accordance with traditional practices’.[60] This assertion is based on the notion that the hunting, gathering and fishing rights referred to in s223(2) of the Native Title Act are a form of native title right because they are based on traditional laws and customs which are directly related to the use of land, including knowledge of ‘what and what not to hunt, fish or gather; when and when not to hunt, fish and gather it; where and where not to hunt, fish and gather; who should and should not hunt, fish and gather it; and where to find it’.[61] He later goes on to conclude that:
[T]he use of traditional biological knowledge in the scientific, commercial and public domains without the co-operation and control of the traditional owners of that knowledge and without ensuring that the use and collection of such knowledge results in social and economic benefits to the traditional owners…could lead to extinguishing a communal, group or individual native title right and interest or otherwise be wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests.[62]
Yet despite the High Court decision in Ward (discussed below), these assertions still ring true.
The view that native title rights would include a right to the protection of cultural knowledge was given credence in the trial decision of Justice Lee in Ward v State of Western Australia.[63] In that case, Justice Lee held that the native title rights held by the Miriuwung Gajerrong People included ‘a right to maintain, protect and prevent the misuse of cultural knowledge’. However Justice Lee’s judgment in this respect was subsequently overturned by a majority of the Full Court of the Federal Court on appeal.[64] The case then went to the High Court, and the issue was apparently put to rest when it handed down its judgment on 8 August 2002.[65] Four of the High Court Justices, Chief Justice Gleeson, and Justices Gaudron, Gummow and Hayne, in a few short paragraphs, upheld the Full Court of the Federal Court’s decision that the right to ‘maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the claim area’ was not a right capable of protection under the Native Title Act. Justice Kirby, in giving more considered thought to the issue, was in dissent on this point, and Justices McHugh and Callinan did not discuss it. However, despite the High Court’s decision in Ward, there may still be some scope for arguing for the recognition of the rights of indigenous people to protect their traditional ecological knowledge.
The majority of the High Court held, in relation to cultural knowledge:
The first difficulty in [holding that cultural knowledge is a native title right] is the imprecision of the term ‘cultural knowledge’ and the apparent lack of any specific content given it by factual findings made at trial. In submissions, reference was made to such matters as the inappropriate viewing, hearing or reproduction of secret ceremonies, artworks, song cycles and sacred narratives.[66]
What this signifies is that no one appeared to have really turned their mind to the specific question of traditional ecological knowledge, focussing more on other types of traditional knowledge. This view is strengthened by paragraph 61 of the joint judgment, where the judges point out the following:
That is not to say that in other respects the general law and statute do not afford protection in various respects to matters of cultural knowledge of Aboriginal peoples or Torres Strait Islanders. Decided cases apply in this field the law respecting confidential information, copyright, and fiduciary duties.
I have already mentioned above the problems of Western intellectual property rights laws in protecting traditional ecological knowledge, so to assert that general law and statute can protect indigenous knowledge ignores the specific difficulties relating to traditional ecological knowledge.
The High Court appeared to recognise that the right to control access to land for the purposes of protecting significant cultural sites would satisfy the provisions of the Native Title Act.[67] This view could conceivably encompass the right to control access to land to protect ecological and biological resources so that indigenous groups can continue to maintain their traditional practices relating to the use of those resources. That is, indigenous people could protect their traditional ecological knowledge by protecting the resources around which that knowledge is based. Unauthorised access to resources:
could lead to extinguishing a communal, group or individual native title right and interest or otherwise be wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests.[68]
If one returns to the reasoning of the Full Court of the Federal Court, where the majority held that:
the common law applies to protect only the physical enjoyment of rights and interests that are of a kind that can be exercised on the land, and does not protect purely religious or spiritual relationships with land,[69]
one can perhaps see the relevant link. Indigenous rights in traditional ecological knowledge and resources are not purely religious or spiritual, of necessity they must be related to the use of land. Traditional ecological knowledge is knowledge in relation to land, so to disallow protection of that knowledge may result in an impairment of the physical enjoyment of that knowledge on the land.
It is of interest to note that in a native title case currently being heard in the Federal Court before Justice Lindgren,[70] the Applicants, as a direct result of the High Court decision in Ward sought leave to amend their application to (among other things) include in their list of native title rights and interests claimed, the right to ‘teach and pass on knowledge of the applicant group’s traditional laws and customs pertaining to the […] area …’ and the right to ‘learn about and acquire knowledge concerning the applicant group’s traditional laws and customs pertaining to the […] area…’. In his reasons for judgment, Justice Lindgren thought it ‘appropriate to allow the amendment’ and to ‘deal with the question [of Ward] in the final reasons for judgment’.[71] Thus although finding force in the Respondents submission that the amendment should not be allowed due to Ward, because of the qualification linking the knowledge to the area of the native title claim, His Honour apparently was not entirely convinced that Ward applied, and has therefore decided to wait until he receives more detailed argument in closing submissions.
Here, unlike the applicants in the Ward case, the Wongatha people have explicitly linked their claim for the protection of the right to teach and pass on cultural knowledge to land. Thus as traditional ecological knowledge is directly related to land, there may still be some room within the High Court judgment in Ward for future High Court benches to recognize at least traditional ecological knowledge as a right capable of protection under the Native Title Act. Whether the Wongatha people have been able to convince His Honour Justice Lindgren of this remains to be seen.
However, before rushing to put all one’s eggs into the native title basket, it must be remembered that the native title avenue is not going to be a possibility for many indigenous people. The recognition of native title rights and interests has now been made much more difficult since the High Court decision in Yorta Yorta.[72] Indigenous communities must pass the increasingly difficult threshold of proving native title in Court before they can begin to exercise a native title right to protect their traditional ecological knowledge, should the High Court move in this direction.
Furthermore, the right to control access to and use to be made of land and resources, which is a very important right for the protection of traditional ecological knowledge, will not always be a claimable right, particularly where there are other competing rights involving access and use, such as pastoral leases. It will only be in those areas where exclusive possession is able to be claimed, that the right to control access to and use of land will be a right capable of protection in a determination of native title.[73]
A further problem with using the Native Title Act to protect traditional ecological knowledge is that it reinforces the Western distinction between cultural and intellectual knowledge, between art and science, the spiritual and the physical. As succinctly put by Erica-Irene Daes:
Since the ultimate source of knowledge and creativity is the land itself, all of the art and science of a specific people are manifestations of the same underlying relationships, and can be considered manifestations of the people as a whole.[74]
Erica Irene-Daes above, and Noel Pearson earlier in this paper articulate the most compelling and indeed appropriate rationale for the creation of a sui generis system of national laws to deal with the protection of indigenous knowledge.
The amendment of current laws is an option,[75] however, as these laws were not designed with indigenous knowledge systems in mind, they will never be able to fully accommodate the needs of indigenous communities to protect their knowledge.
For instance, a sui generis system would not have to deal separately with the protection of indigenous artwork or ecological knowledge. It would be able to recognise the unique features of indigenous knowledge that separates it from Western knowledge and could treat them as part of the same body of knowledge that informs indigenous societies.
A sui generis system could cover all of the issues pertaining to indigenous cultural knowledge including access, protection and benefit sharing. It could deal with the issue of group or communal knowledge, and communal ownership of that knowledge. It could incorporate prior informed consent provisions and could incorporate indigenous legal systems and processes where appropriate. Rights in knowledge could last in perpetuity. It could include appropriate enforcement and compliance mechanisms. Rights could be defined ‘by and in accordance with the laws and customs of indigenous people’.[76] It would provide consistency, and insofar as such laws relate specifically to traditional ecological knowledge, could provide legal ‘recognition and protection for fundamental indigenous rights while regulating conservation and sustainable use of biological diversity and bioprospecting’.[77]
However, there are some pitfalls that would need to be avoided in developing a sui generis system to protect traditional knowledge. For example, such a system should not attempt to freeze indigenous knowledge, but should attempt to allow for contemporary development, adaptation and expression of that knowledge. Neither should it affect or inhibit the customary and traditional use of indigenous knowledge. Other issues, which need to be considered in any development of a sui generis system given the communal nature of indigenous knowledge, include appropriate means of determining how benefits should be distributed, and who should authorise the use of knowledge and resources, particularly if there is more than one indigenous community involved. There would also need to be some co-ordination with the rest of Australia’s intellectual property laws. These are the types of issues that need to be addressed if a sui generis system is going to have any chance of being effective. National laws to protect indigenous knowledge are being introduced already in some countries, namely Costa Rica, Thailand and South Africa.[78] These and other international developments might provide a useful starting point for developing an Australian system.
It is encouraging that the Western world has finally acknowledged the importance of indigenous ecological knowledge to the future of this planet and all the people on it, and that it is now being accorded the respect it deserves in the international arena. However, that respect needs to be coupled with appropriate mechanisms to protect it. Australia is in a unique position to be an example to the rest of the world, being one of the most biologically diverse countries in the world, with an indigenous culture stretching back over tens of thousands of years. Yet we are still paying mere lip service to indigenous aspirations, as the brief analysis of the EPBC Act and the Native Title Act in this paper has indicated. The long term benefits of a comprehensive regime for the protection of traditional ecological knowledge need to be emphasised to our politicians, and our judges need to become much more attuned to the unique and special relationship that Australia’s indigenous people have with the land. It will take time, but in the end it will lead to a more equitable, just and ecologically sustainable society for all.
[*] Solicitor, Legal & Native Title Division, Goldfields Land & Sea Council.
[1] State of Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159.
[2] D Smyth, ‘Understanding Country: The Importance of Land and Sea in Aboriginal and Torres Strait Islander Societies’ Council for Aboriginal Reconciliation, Key Issues Paper No 1.
[3] Arena Magazine, October/November 1995, quoted in A Salleh, ‘Politics in/of the Wilderness’ (1996) Arena Magazine 23, 26.
[4] For example, ‘Indigenous knowledge is the body of historically constituted (emic) knowledge instrumental in the long term adaptation of human groups to the biophysical environment’ in T Purcell, ‘Indigenous Knowledge and Applied Anthropology: questions of definition and direction’ (1998) Human Organisation 5. David Jones cites a further definition of traditional knowledge (in the context of biodiversity) as follows: ‘a body of knowledge built by a group of people through generations living in close contact with nature. It includes a system of classification, a set of empirical observations about the local environment, and a system of self management that governs resource use’ in D Jones, ‘Traditional Knowledge in the Global Village’ (2000) 1(3) LASIE 46. In the study Our Culture Our Future, the whole of the first chapter is spent attempting to define indigenous knowledge vis-à-vis cultural and intellectual property rights. The definition eventually settled upon for the purposes of the report states as follows: ‘“Indigenous Cultural and Intellectual Property Rights” refers to Indigenous Australians rights to their heritage. Such rights are also known as “Indigenous Heritage Rights”. Heritage consists of the intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems that have been developed, nurtured and refined (and continue to be developed, nurtured and refined) by Indigenous people and passed on by Indigenous people as part of expressing their cultural identity, including: …’, in T Janke, Our Culture: Our Future Report on Australian Indigenous Cultural and Intellectual Property Rights (1998) 11.
[5] Ad Hoc Open-Ended Inter-sessional Working Group on Article 8(j) and related provisions of the Convention on Biological Diversity, ‘Assessment of the effectiveness of existing sub national, national and international instruments, particularly intellectual property rights instruments, that may have implications on the protection of the knowledge, innovations and practices of indigenous local communities’ UNEP/CBD/WG8J/2/7, 27 November 2001, 9-10.
[6] M Davis, ‘Indigenous Rights and Biological Diversity – Approaches to Protection’ (1999) 4 AILR 1, 5.
[7] Ibid 2.
[8] M Davis, ‘Biological Diversity and Indigenous Knowledge’ (Research Paper No 17, Australian Parliamentary Library, 1997-8) 4. This knowledge may also extend to nutritional knowledge, see K Howden, ‘Indigenous Traditional Knowledge and Native Title’ [2001] 12 UNSWLJ 7; Janke, above n 4, 27.
[9] C Hustwick, ‘Bioprospecting and the Law’ (1999) 66(8) Chemistry in Australia 9.
[10] E-I Daes, Protection of the Heritage of Indigenous People (1997) 12; quoting from M Blalick, ‘Ethnology and the Identification of Therapeutic Agents from the Rainforest’ in D J Chadwick and J Marsh (eds), Bioactive Compounds from Plants (1990).
[11] Hustwick, above n 9, 9-10.
[12] Davis, above n 6, 2.
[13] M Garson, ‘Is Marine Bioprospecting Sustainable?’ (1996) 27(4) Search 115.
[14] Term comes from M Davis, ‘Law, Anthropology, and the Recognition of Indigenous Cultural Systems’ (2001) Law and Anthropology 11, 306.
[15] S Brush, ‘Bioprospecting the Public Domain’ (1999) 14(4) Cultural Anthropology 539-540.
[16] Hustwick, above n 9, 9.
[17] V Shiva and R Holla-Bhar, ‘Piracy by Patent: The Case of the Neem Tree’ in G Mander and E Goldsmith (eds), The Case Against the Global Economy (1996) 146-159; Davis, above n 8, 4.
[18] J Christie, ‘Enclosing the Biodiversity Commons: Bioprospecting or Biopiracy’ in R Hindmarsh and G Lawrence (eds), Altered Genes II The Future? (2001) 60; Janke, above n 4, 24-5; Davis, above n 8, 4-5; Hustwick, above n 9, 9-10.
[19] There is scope for protection of some forms of indigenous knowledge using IPR laws, such as copyright in literary and artistic works. There have been some successful prosecutions in Australia using such laws, see for example: Milpurrurru v Indofurn Pty Ltd (1995) the Aboriginal Carpets Case.
[20] M Davis, ‘Indigenous Peoples and Intellectual Property Rights’ (Research Paper No 20, Australian Parliamentary Library) 6.
[21] General Agreement on Tariffs and Trade/World Trade Organisation - for further information see the following websites: www.gatt.org and www.wto.org.
[22] S Pritchard and C Heindow-Dolman, ‘Indigenous Peoples and International Law: A Critical Overview’ [1998] 38 Australian Indigenous Law Reporter 473, 27 web version.
[23] Ibid.
[24] For a comprehensive overview of international developments in the protection of indigenous rights, see Pritchard and Heindow-Dolman, above n 22; J Sutherland, ‘Representations of Indigenous Peoples’ Knowledge and Practice in Modern International Law and Politics’ (1995) 2 AJHR 1; [1995] AJHR 3.
[25] Pritchard and Heindow-Dolman, above n 22, 6 of web version.
[26] Ibid.
[27] Davis, above n 20, 13.
[28] Pritchard and Heindow-Dolman, above n 22, 7 of web version.
[29] M Davis, above n 20, 13.
[30] Davis, above n 14, 301.
[31] Ibid.
[32] Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3-14 June 1992) Annex I, A.CONF.151/26 (Vol I).
[33] Davis, above n 6, 3.
[34] ‘The Biodiversity Convention: The Concerns of Indigenous Peoples’ [1996] AILR 84; 1 AILR.
[35] Ibid 11.
[36] Ibid 10.
[37] Davis, above n 6, 3-4.
[38] Article 15.5 of the CBD requires that the prior informed consent of the Contracting Party must be obtained before access to resources is provided. In relation to the CBD, the Contracting Party is the State, however in H Fourmile, ‘Using Prior Informed Consent Procedures Under the Convention on Biological Diversity to Protect Indigenous Traditional Ecological Knowledge and Natural Resource Rights’ [1997] IndigLawB 33; (1998) 4 Indigenous Law Bulletin 16, 15 she notes that this Article has been used by 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 [traditional ecological knowledge]’.
[39] Fourmile, above n 38, 15.
[40] The Declaration of Belm (1992), the Kunming Action Plan (1992), the Manila Declaration Concerning the Ethical Utilisation of Biological Resources (1992), the Kari-Oca Declaration (1992), the Mataatua Declaration of Cultural and Intellectual Property Rights of Indigenous Peoples (1993), and the Julayinbul Statement on Indigenous Intellectual Property Rights (1993), and the Declaration Reaffirming the Self Determination and Intellectual Property Rights of the Indigenous Nations and Peoples of the Wet Tropics Rainforest Area (1993), cited in Pritchard and Heindow-Dolman, above n 22, 22-23 of web version; also the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising Out of Their Utilisation, Annex, UNEP/CBD/COP/6/20.
[41] Fourmile, above n 38, 14.
[42] Commonwealth of Australia, National Strategy for Ecologically Sustainable Development (1992) 82 (Objective 22.1).
[43] L Ogle, ‘The Environment Protection and Biodiversity Conservation Act 1999 (Cth): How Workable is it?’ (2000) 17 EPLJ 468.
[44] Environment Protection (Impact of Proposals) Act 1974; Endangered Species Protection Act 1992; National Parks and Wildlife Conservation Act 1975; World Heritage Properties Conservation Act 1983; and Whale Protection Act 1980.
[45] Ogle, above n 43.
[46] T Keyes, ‘Indigenous rights sidelined again: the Federal Environment Protection and Biodiversity Conservation Bill’ [1997] IndigLawB 36; (1999) 4 Indigenous Law Bulletin 22, 14-15.
[47] Davis, above n 6, 4.
[48] EPBC Act, s3(1)(g).
[49] EPBC Act, s3(2)(g)(iii).
[50] EPBC Act, s8.
[51] K O’Bryan, ‘Is the Commonwealth Government carrying out its obligations in relation to environmental protection?’ (Unpublished paper prepared for Macquarie University, Environmental Law Department, June 2002).
[52] A ‘usage right’ is defined in s350(7) of the EPBC Act as ‘an estate or a legal or equitable charge, power, privilege, authority, licence or permit’.
[53] Incorporating amendments up to SR 2002 no 83.
[54] National Environmental Significance is not defined in the EPBC Act, however, the Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment sets out at Attachment 1 those matters that are of national environmental significance. Part 3 Division 1 sets out those matters of national environmental significance which are the subject of the EPBC Act.
[55] EPBC Act, s504(4)(ea).
[56] EPBC Act, s505A
[57] EPBC Act, s505B
[58] EPBC Act, s 475
[59] Mabo and Ors v State of Queensland (No 2) [1992] HCA 23; (1992) 107 ALR 1.
[60] D Bennett, ‘Native Title and Intellectual Property’ (1996) Land, Rights, Laws: Issues of Native Title, Native Title Research Unit, AIATSIS, Issues Paper No 10, 5.
[61] Ibid 7.
[62] Ibid 9.
[63] Ward v State of Western Australia [1998] FCA 1478; (1998) 159 ALR 483.
[64] State of Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159. Justices Beaumont and von Doussa formed the majority, Justice North was in dissent.
[65] State of Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1.
[66] Ibid 58.
[67] Ibid 59.
[68] Bennett, above n 60, 9.
[69] State of Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159, 104.
[70] The Wongatha People v State of Western Australia and Ors (No 6), [2003] FCA 663.
[71] The Wongatha People v State of Western Australia and Ors (No 5) [2003] FCA 218, 39.
[72] [2002] HCA 58 (12 December 2002).
[73] See High Court in State of Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1, 170 and 177-195, also 468 point 10 of the joint judgment.
[74] Daes, above n 10, 3.
[75] See Janke, above n 4, for an elaboration on how current laws could be amended to protect indigenous cultural and intellectual property.
[76] Janke, above n 4, 183.
[77] Davis, above n 5, 26.
[78] Ibid 30.
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